Kailash @ Mangesh vs State Of Madhya Pradesh

Ratnesh Chandra Singh Bisen, J

Shri Anil Kumar Ahirwar, learned counsel for the appellant instead of pressing I.A. No.10654/2025, which is the first application under Section 430(1) of the Bhartiya Nagrik Suraksha Sanhita, 2023 for suspension of sentence and grant of bail to appellant Kailash @ Mangesh, prays that this appeal be heard finally.

Accordingly, I.A. No.10654/2025 is dismissed as not pressed and with the consent of the parties, this appeal is heard finally.

The present criminal appeal under Section 415 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been preferred by the appellant, aggrieved by the judgment of conviction and order of sentence dated 20.03.2025 passed by the learned Additional Sessions Judge, Niwas, District Mandla (M.P.) in Sessions Trial No. 47/2021, whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life along with a fine of Rs. 5,000/-, with a default stipulation.

The case of the prosecution, in brief, is as under:-

4.1 On 22.02.2021 at approximately 6:30 p.m., the informant, Chetram Varkade, reported that he received a telephone call from Baishakhulal Maravi, who informed him that an altercation had taken place between Kailash and Nagendra regarding a mobile phone. This witness further stated that he proceeded to the residence of Baishakhulal and thereafter went to Madhogadh. Upon reaching the spot, he found Nagendra lying on the road with bleeding injuries to his head. When inquired about the incident, Nagendra stated that Kailash had assaulted him with a lathi after he refused to hand over his mobile phone. The injured Nagendra was immediately taken to the hospital for medical treatment; however, he subsequently succumbed to his injuries.

4.2. On the basis of the aforesaid information, Dehati Nalsi No. 00/21 was recorded at Police Station Tikariya for the offence punishable under Section 302 of the Indian Penal Code (IPC). Thereafter, the Dehati Marg Intimation (Ex. P-2) was prepared. Subsequently, Crime No. 0026/2021 was formally registered for the offence under Section 302 of the IPC against the appellant, and the matter was committed for trial before the learned Trial Court.

4.3 At the trial, the appellant denied his guilt and pleaded false implication. On the basis of the material produced by the prosecution and the evidence adduced, the learned trial Court, vide judgment dated 20.03.2025, convicted and sentenced the appellant as aforementioned. Aggrieved thereby, the appellant has preferred the present appeal.

Learned counsel for the appellant submitted that the appellant has been falsely implicated and did not commit the alleged offence of murder. He contended that the prosecution has failed to establish its case beyond reasonable doubt, as the evidence on record is inconsistent, contradictory, and unreliable. The testimonies of the prosecution witnesses neither corroborate one another nor support the prosecution’s version of events. It was further argued that the case rests primarily on hearsay statements attributed to Baishakhulal Maravi and the informant, Chetram Varkade, and that no direct or cogent evidence has been adduced to demonstrate that the appellant acted with the requisite intention or knowledge. Counsel emphasized that there is no independent evidence connecting the appellant to the alleged weapon, and the injuries cannot be conclusively attributed to him. Relying on the settled principle that the burden of proof lies upon the prosecution to establish guilt beyond reasonable doubt, and that any reasonable doubt must enure to the benefit of the accused, he prayed that the conviction and sentence recorded by the trial court be set aside and the appellant be acquitted.

Per contra, counsel for the State submitted that the appellant committed the murder of Nagendra and is liable to be convicted under Section 302 of the Indian Penal Code. It was contended that the prosecution has led cogent and reliable evidence establishing the appellant’s guilt beyond reasonable doubt. The testimonies of the eyewitnesses and the informant clearly implicate the appellant in the occurrence. The evidence demonstrates that the appellant assaulted the deceased with a lathi, inflicting injuries that proved fatal. The motive arising out of a quarrel over a mobile phone, the nature of the injuries sustained, and the subsequent death cumulatively establish the appellant’s culpable act. It was further argued that minor discrepancies in the statements of witnesses are natural in oral evidence and do not affect the substratum of the prosecution case. The State, therefore, prayed that the conviction and sentence imposed by the trial court be affirmed.

We have heard counsel for the parties and also perused the evidence available on record.

To bring home the charges, the prosecution examined as many as 16 witnesses.

Chetram (PW-1) who is elder brother of the deceased Nagendra, deposed that Baisakhulal Maravi informed him about an altercation between Nagendra and the accused Kailash over a mobile phone. Upon reaching the spot, he found Nagendra lying unconscious on the road outside the house of Mangesh with a lathi injury on his head and blood was coming out of his heard. Nagendra reportedly told him that he had gone to recover his stolen mobile phone and had a dispute with the accused. He further stated that Mangesh threatened Nagendra to flee or face death and assaulted him with two or three blows by a stick on the head, after which Nagendra became unconscious. He took him to the Government Hospital, Narayanganj, where he was admitted and subsequently succumbed to his injuries at about 12:00–12:30 a.m. He lodged information with the police, on the basis of which Dehati Nalishi and Marg Intimation were registered (Exhibits P-1 and P-2). The police prepared the Naksha Panchayatnama (Exhibit P-4), conducted the post-mortem examination, and handed over the dead body to the family. Spot maps were prepared (Exhibits P-6 and P-7), and blood-stained concrete pieces and plain gravel were seized under seizure memo (Exhibit P-9). A receipt relating to a yellow mobile phone in the name of the deceased was also seized (Exhibits P-10 and P-11). The Patwari prepared the site map (Exhibit P-12) and site panchnama (Exhibit P-13). After about two to three months, the Tehsildar conducted identification of the mobile phone at the Tehsil Office, Narayanganj (Exhibit P-14). In para 12 of his cross-examination, he admitted that the deceased was under the influence of alcohol at the time of the incident.

Baishakhulal (PW-2) deposed that the deceased Nagendra, was the son of his brother-in-law. On 22.02.2021, during a programme at the house of his nephew, Dumari Lal, Nagendra’s mobile phone fell while he was dancing. Kailash allegedly took possession of the phone and refused to return it. Nagendra requested Baishakhulal to retrieve the phone, but he declined as he was occupied with the arrangements. Subsequently, Nagendra took him on a motorcycle to Kailash’s house at Madogarh. Kailash’s family members informed them that he was not present. Upon being contacted by phone, Kailash stated that he was on his way. While Nagendra was standing near the motorcycle outside the gate, Kailash allegedly arrived and struck him on the head with a lathi, causing him to fall. When he attempted to intervene, Kailash allegedly abused him. He immediately informed Nagendra’s brother, Chetram, who assisted in taking Nagendra to Narayanganj for medical treatment, where he was declared dead at about 12:30 a.m. In para 2 of his cross-examination, he admitted that when he had telephoned Kailash earlier, Kailash had arrived empty-handed.

Sevaram Pandro (PW-3) and Shivprasad Tekam (PW-4) deposed that on 22.02.2021, between 6:00 and 6:30 p.m., they witnessed an altercation between Mangesh and Nagendra over a mobile phone. As the dispute escalated, they left the spot. On the following day, they came to know from villagers that Nagendra had succumbed to injuries sustained during treatment. Shivprasad further deposed that upon making inquiries with Chetram and Baishakhu, he was informed that Kailash had struck Nagendra on the head with a lathi, resulting in the fatal injury.

Revat Singh Varkade (PW-5) deposed that on 22.02.2021 at approximately 6:00–6:30 PM, he was having tea with Seva Ram at Shiv Prasad’s shop when he heard a commotion nearby. Upon going to the spot, he observed the accused, Kailash and Nagendra, engaged in an argument over a mobile phone. Revat Singh(PW-5) and Seva Ram (PW-3) assumed it was a minor quarrel and left the scene. He further stated that he learned next morning from others that Nagendra had died in the hospital.

Rajkumar Dhurve (PW-6) deposed that in 2021, the accused Kailash was taken into custody and interrogated in his presence. During the interrogation, Kailash stated that he had hidden a teak stick under the cot in a room and his mobile phone under a pillow. The police seized these items and prepared the seizure memo, marked as Exhibit P/20. Thereafter, the accused was arrested, and the arrest memo was prepared, marked as Exhibit P/21.

Kailash Upadhyay (PW-7), who served as a Constable at Tikaria Police Station from 2015 to 2022, deposed that on 23.10.2021, he accompanied the postmortem application (Exhibit P/22) along with the body of the deceased, Nagendra, to Narayanganj CHC for postmortem examination. After the examination, the body was handed over to the deceased’s family, and a duty certificate was issued by the police station (Exhibit P/23). He further stated that on 08.03.2021, Subodh Kumar, Sweeper at CHC Narayanganj, brought a body to the police station along with a lower garment and T-shirt in a sealed packet. The seizure memo was prepared by Head Constable Lal Singh Vayam of the hospital (Exhibit P/24). On 26.03.2021, the deceased’s brother, Chetram, produced a receipt for a mobile phone belonging to the deceased, which was seized by Inspector Amit Bhavor. The seizure memo was prepared accordingly (Exhibit P/10).

Rani Uikey (PW-8) deposed that she had been posted as Revenue Inspector in Village Madhogadh since 2020. She stated that Letter No. 334/21 was received from Police Station Tikariya in the office of the Tahsildar, Narayanganj, pertained to the preparation of the map of occurrence by the Patwari. She further deposed that she prepared the map of occurrence, marked as Ex. P/12, and the Panchnama, marked as Ex. P/13.

Somnath (PW-9) and Sunderlal (PW-10) were the witnesses to Identification Memo Ex. P/14. However, they did not describe the details of the identification proceedings of the mobile. When asked leading questions, they merely admitted that an identification proceeding had taken place before the Tehsildar but did not state that Chetram had identified the mobile. Consequently, these witnesses did not support the prosecution’s case.

Baldau Patel (PW-11) deposed that on 23.02.2021, while posted as Assistant Sub-Inspector at Police Station Tikariya, he received information from CHC Narayanganj regarding a fight. He, along with Constable No. 56, Kailash Upadhyay, went to the CHC, verified the information, and obtained the hospital memo (Ex. P/27). Based on the statement of the informant, Chetram, he registered Dehati Nalishi Merg No. 0/21 under Section 174 IPC, prepared the Inquest Report (Ex. P/2), and recorded the Dehati Nalishi (Ex. P/1). He identified the deceased’s body and sent it for postmortem through Constable No. 56, for which a duty certificate was issued (Ex. P/23). Subsequently, he registered the original case as Case No. 10/21, with the Inquest Report (Ex. P/28) and Crime No. 26/21 (Ex. P/29). In cross-examination, he admitted that there had been a prior dispute between the deceased, Nagendra, and the accused, Kailash, over a mobile phone.

Lal Singh (PW-13) deposed that on 08.03.2021, he was posted as Head Constable No. 451 at Tikaria Police Station. On that day, when sweeper Subodh Kumar Balmiki was brought from CHC Narayanganj to the police station and produced before them, the clothes worn by the deceased, Nagendra including his lower garment, T-shirt, and a hospital-sealed sample were seized in the presence of witnesses and placed in a sealed packet. The seizure memo is marked as Exhibit P/24.

Suresh Bhatere (PW-14) stated that on 19-11-2015, he was posted in the Cyber Cell of the S.P., Mandla. He received a letter from the S.P. (Exhibit P-33) regarding the CDR, KAIF, and a certificate under the Evidence Act. He obtained the call details of SIM No. 8991863040042406127 and mobile No. 9302262796 from the Nodal Officer of Reliance Jio via email. A copy of the KAIF with the Aadhaar card was marked as Exhibit P-34. The CDR of mobile No. 9302262796 was marked as Exhibit P-35. He also issued a certificate under Section 65-B of the Evidence Act, marked as Exhibit P-36. All these documents were sent to the In-Charge of Police Station, Tikariya, by letter (Exhibit P-37). According to Exhibit P-34, SIM No. 8991863040042406127 and mobile No. 9302262796 are registered in the name of Nagendra. Exhibit P-35 shows that this number was used in a mobile phone with IMEI No. 862439041933653..

Amit Bhavor (PW-16), investigating officer, deposed that on 23-02-2021, while posted as Inspector at Tikariya Police Station, he received the case diary of Crime No. 26/21 under Section 302 IPC. He visited the crime scene, prepared the spot map (Ex. P/7), and seized concrete with blood stains and ordinary concrete (Ex. P/9). Statements of witnesses Chetram, Baishakhu, Revatram, and Sevaram were recorded. On 24-02-2021, he examined accused Kailash @ Mangesh in the presence of witnesses and recorded his statement (Ex. P/19). A lathi and mobile phone produced by the accused were seized (Ex. P/20), and the accused was arrested (Ex. P/21). Notices were issued to Rajkumar and Shivprasad (Ex. P/41 & P/42), and the Tahsildar, Narayanganj, was requested to prepare the Patwari naksha (Ex. P/25). On 02-03-2021, informants Chetram and Baishakhu were sent to court for recording statements under Section 164 Cr.P.C. (Ex. P/43). On 08-03-2021, examination of the seized lathi was requested from BMO Narayanganj (report Ex. P/39), and CDR analysis with Section 65-B certification was sought from SP Mandla (Ex. P/33). Seized items were sent to FSL Jabalpur (memo No. 29/21, Ex. P/44; deposit receipt Ex. P/45; FSL report Ex. P/46). On 08-04-2021, a letter was sent to the Tahsildar regarding identification of the mobile phone (Ex. P/30)..

Dr. Amritlal Kol (PW-15) deposed that on 01.02.2021, he was posted at the Narayanganj Community Health Centre. On that day, Constable Kailash Upadhyay (No. 56, Tikaria Police Station) brought the body of the deceased, Nagendra, for examination. He observed the following injuries on the body:

(i) A lacerated wound on the front of the head, measuring 4 cm;

(ii) A superficial scratch on the left arm, about 6 inches long;

(iii) Bleeding from both nostrils.

He opined that the cause of death was hemorrhagic shock due to excessive bleeding from the head injury. The postmortem report is marked as Exhibit P/38. During cross-examination, he admitted that such injuries could also result from a sudden fall on a concrete road, and that these injuries could have been fatal.

After analysing the oral and documentary evidence presented by prosecution it is clear that this case is a based on the evidence of Baisakhulal (PW-2) Sevaram (PW-3), Shivprasad (PW-4) Revat Singh Verkade (PW-5). The truthfulness and reliability of the evidence of by Baisakhulal (PW-2) is concerned, he is not only unrebutted but also transpires confidence as he is a natural eyewitness and Nagendra and this witness both went to the place of incident together. it is also clear that deceased Nagendra had gone to take his mobile from accused on the spot. As per the evidence of Sevaram (PW-3) Shivprasad (PW-4) and Revat Singh Verkde(PW-5), they had gone on the spot after hearing the quarrel and they had seen the accused and deceased for disputing on the point of Mobile. It is also revealed that accused had assaulted by the lathi on head of the deceased Nagendra, as a result of which he sustained injury on his head and as such, he fell down and got unconscious. The deceased was taken to hospital by Chatram, Baisakhulal and others, and he died in community health Centre Narayanganj during the treatment.

It is also appropriate to mention here that the evidence of Baisakhulal (PW-2) is getting support by the evidence of Chetram(PW-1) who had reached the spot after receiving information through Baisakhulal (PW2). The oral evidence of Baisakhulal (PW2) to some extent, find corroboration from the evidence of Sevaram (PW3) Shiv Prasad(PW4) and Revat Singh (PW5) who just after incident reached on the spot. It is also revealed that they had seen the deceased Nagendra and accused in Conversation regarding the Mobile.

Dr Amrit Lal Kol((PW 15) also opined that the injuries were caused the lathi and this fact is also supported the fact the disease had been assaulted with lathi. It is revealed that lacerated injury had been caused to the deceased on his head, and it may be caused by the lathi. As per the opinion of Dr Amit Kol(PW-15) the cause of the death was haemorrhage shock and it was due to the injuries on the head and excess of bleeding.

It is also noteworthy here that the date of incident was 22.02.2021 and Dehati Nalishi Exhibit P-1 has been recorded by Baldau Patel(PW 11) on the basis of information given by Chetram Verkde (PW-1). It is also clear that FIR Xxhibit P/29 has been registered on the basis of Dehati Nalishi Exhibit P-1.The above facts strengthens the credibility of the prosecution.

Looking to the aforementioned reasons and in view of the above discussion and placing reliance on the unimpeached evidence of eyewitnesses like by Baisakhulal and to some extent to the Chetram Sevaram, Shivprasad and Revat Singh and from other documentary evidence, the prosecution has proved beyond all reasonable doubt that on 22nd February 2021 at around 6:30 PM at in front of house of Sundar Lal in village, Madhogarh accused assaulted to deceased Nagendra with lathi on the head and due to head injury, deceased Nagendra was died.

Upon consideration of the evidence on record, it is clear that a dispute had arisen between the deceased Nagendra and the accused regarding a mobile phone. During the course of this quarrel, the accused struck the deceased on the head with a stick. The testimony of Dr. Amrit Lal Kol establishes that a lacerated injury was present on the head of the deceased and that death occurred as a result of the said injury. However, the circumstances of the case indicate that the incident occurred in the course of a dispute and there is no material to show premeditation or intention on the part of the accused to commit murder.

Mainly it has been argued on behalf of the appellant that it is clear from the evidence of brother of deceased, Chetram (PW-5) that when he reached the spot, the deceased told him that he had come to the accused to collect the missing mobile, when there was a conversation between them regarding the said mobile, the accused had told his brother to run away otherwise he would kill him and the accused hit him three times on the head with a stick. In such a situation, it is concluded that the accused did not intend to cause the death of the deceased. Therefore act of the accused will not fall under Section 302 of the IPC but will fall under Section 304 Part II of the IPC. The above argument was considered. Perusal of the case it appears that Baisakhulal (PW-2) is eyewitness of this case. From that statement Baisakhulal (PW-2) it is clear that he had accompanied the deceased to the scene of the incident. The accused was not at home at that time. He came when called through phone. The accused suddenly came with a stick and hit deceased Nagendra on the head, due to which deceased Nagendra fell on the ground. Thus, it is clear from the statement of this witness that as soon as the accused arrived, he hit the deceased on the head with a stick. Therefore, it cannot be concluded that the accused intended to cause the death of the deceased, but it is clear from the conduct of the accused that he was aware that the deceased might die as the injury was inflicted on the head of the deceased which was on the vital part. In this regard, the principle propounded by the Hon'ble Supreme Court in the case of Rajinder vs. State of Haryana reported in (2006) 5 SCC 425, is relevant. Paras 15 to 28 of the said judgment are relevant which read as under:-

“15. The crucial question is as to which was the appropriate provision to be applied. In the scheme of IPC, culpable homicide is genus and “murder” its specie. All “murder” is “culpable homicide” but not vice versa. Speaking generally, “culpable homicide” sans “special characteristics of murder is culpable homicide not amounting to murder”. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognises three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the gravest form of culpable homicide which is defined in Section 300 as “murder”. The second may be termed as “culpable homicide of the second degree”. This is punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree”. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

The academic distinction between “murder” and “culpable homicide not amounting to murder” has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done—

Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done—

Intention

(a)with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily of injury as is likely to cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or

(3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or Knowledge

(c) with the knowledge that the act is likely to cause death

(4) with the knowledge that the act is so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the “intention to cause death” is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.

Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death was intentionally given. In clause (3) of Section 300, instead of the words “likely to cause death” occurring in the corresponding clause (b) of Section 299, the words “sufficient in the ordinary course of nature to cause death” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degrees of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word “likely” in clause (b) of Section 299 conveys the sense of probability as distinguished from a mere possibility. The words “bodily injury … sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature.

For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Kalarimadathil Unni v. State of Kerala [1966 Supp SCR 230 : AIR 1966 SC 1874 : 1966 Cri LJ 1509] is an apt illustration of this point.

In Virsa Singh v. State of Punjab [1958 SCR 1495 : AIR 1958 SC 465 : 1958 Cri LJ 818] Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 “Thirdly”. Firstly, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

The ingredients of clause “Thirdly” of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows : (SCR pp. 1500-01)

“To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 ‘3rdly’.

First, it must establish, quite objectively, that a bodily injury is present.

Secondly, the nature of the injury must be proved. These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.”

The learned Judge explained the third ingredient in the following words (at AIR p. 468) : (SCR p. 1503)

“The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.”

These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case [1958 SCR 1495 : AIR 1958 SC 465 : 1958 Cri LJ 818] for the applicability of clause “Thirdly” is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied : i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted.

Thus, according to the rule laid down in Virsa Singh case [1958 SCR 1495 : AIR 1958 SC 465 : 1958 Cri LJ 818], even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.

Clause (c) of Section 299 and clause (4) [Ed. : Fourthly] of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons — being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.

The position was illuminatingly highlighted by this Court in State of A.P. v. Rayavarapu Punnayya [(1976) 4 SCC 382 : 1976 SCC (Cri) 659] , Abdul Waheed Khan v. State of A.P. [(2002) 7 SCC 175 : 2005 SCC (Cri) 1301] , Augustine Saldanha v. State of Karnataka [(2003) 10 SCC 472 : 2005 SCC (Cri) 1313] and in Thangaiya v. State of T.N. [(2005) 9 SCC 650 : 2005 SCC (Cri) 1284]

When the factual background is tested on the principles set out above, the inevitable conclusion is that the conviction under Section 302 IPC cannot be maintained and the conviction has to be in terms of Section 304 Part II IPC. Custodial sentence of 7 years would meet the ends of justice.”

In view of the above, it is clear that the act of the accused would not fall within the ambit of Section 302 of the IPC but would amount to culpable homicide not amounting to murder.

Resultantly, the appeal is partly allowed. The conviction of the appellant/accused under Section 302 IPC is set aside, instead the appellant is convicted under Section 304 Part-II IPC, Accordingly, the appellant is sentenced to undergo R.I. for 07 years with fine of Rs.5000/- (as awarded by the trial Court).

Record of the trial Court be sent back immediately along with copy of this judgment for information and necessary action.