ON Criminal Appeal No 214 of 1971
Appeal by Special Leave from the judgment and Order dated 27 7 1970 of the Andhra Pradesh High
Court in Criminal Appeals Nos 26 and 2769
7 1234SCI76 604 P Parmeswara Rao and G Narayana Rao for the Appellant
A Subba Rao for the Respondents
This appeal by special leave is directed against a judgment of the High Court of Andhra Pradesh
It arises out of these facts
In Rompicherla village there were factions belonging to three major communities viz Reddys Kammas and Bhatrajus
Rayavarapu Respondent No 1 herein was the leader of Kamma faction while Chopparapu Subbareddi was the leader of the Reddys
In politics the Reddys were supporting the Con gress Party while Kammas were supporters of Swatantra Party
There was bad blood between the two factions which were proceeded against under section 107 Cr
In the Panchyat elections of 1954 a clash took place between the two parties
A member of the Kamma faction was murdered
Consequently nine persons belonging to the Reddy faction were prosecuted for that murder
Other incidents also  took place in which these warring factions were involved
So much so a punitive police force was stationed in this village to keep the peace during the period from March 1966 to September 1967
Sarikonda Kotamraju the deceased person in the instant case was the leader of Bhatrajus
In order to devise protective measures against the onslaughts of their opponents the Bhatrajus held a meeting at the house of the deceased wherein they resolved to defend themselves against the aggressive actions of the respondents and their party men
PW 1 a member of Bhatrajus faction has a cattle shed
The passage to this cattle shed was blocked by the other party
The deceased took PW 1 to Police Station Nekar ikal and got a report lodged there
On July 22 1968 the Sub Inspector of Police came to the village and inspected the disputed wail in the presence of the parties
The Sub Inspector went away directing both the parties to come to the Police Station on the following morning so that a com promise might be effected
Another case arising out of a report made to the police by one Kallam Kotireddi against Accused 2 and 3 and another in respect of offences under sections 324 323 and 325 Penal Code was pending before a Magistrate at Narasaraopet and the next date for hearing fixed in that case was July 23 1968
On the morning of July 23 1968 at about 6 30 am PWs 1 2 and the deceased boarded Bus No AP 22607 at Rompicher la for going to Nekarikal
Some minutes later Accused 1 to 5 hereinafter referred to as A1 A2 A3 A4 and A5 also got into the same bus
The accused had obtained tickets for proceeding to Narasaraopet
When the bus stopped at Nekar ikal Cross Roads at about 7 30 am the deceased and his companions alighted for going to the Police Station
The five accused also got down
The deceased and PW 1 went towards a Choultry run by PW 4 While PW 2 went to the roadside to ease himself
A1 and A2 went towards the Coffee Hotel situate near the Choultry
From there they picked up heavy sticks and went after the deceased into the Choultry
On seeing the accused
P W 1 ran away towards a hut nearby
The deceased stood up
605 He was an old man of 55 years
He was not allowed to run
Despite the entreaties made by the deceased with folded hands A 1 and A 2 indiscriminately pounded the legs and arms of the deceased
One of the by standers PW 6 asked the assailants as to why they were mercilessly beating a human being as if he were a buffalo
The assailants angri ly retorted that the witness was nobody to question them and continued the beating till the deceased became unconscious
The accused then threw their sticks at the spot boarded another vehicle and went away
occurrence was witnessed by PWs 1 to 7
The victim was removed by PW 8 to Narasaraopet Hospital in a temporar
There at about 845 am Doctor Konda Reddy examined him and found 19 in juries out of which no less than 9 were internally found to be grievous
They were 1
Dislocation of distal end of proximal phalanx of left middle finger
Fracture of right radius in its middle
Dislocation of lower end of right ulna
Fracture of lower end of right femur
Fracture of medial malleolus of right tibia
Fracture
of lower 13 of right fibula
Dislocation of lower end of left ulna
Fracture of upper end of left tibia
Fracture of right patella
Finding the condition of the injured serious the Doctor sent information to the Judicial Magistrate for getting his dying declaration recorded
On Dr K Reddy s advice the deceased was immediately removed to the Guntur Hospital where he was examined and given medical aid by Dr Sastri
His dying declaration exhibit P 5 was also recorded there by a Magistrate PW 10 at about 805 pm
The de ceased however succumbed to his injuries at about 440 am on July 24 1968 despite medical aid
The autopsy was conducted by Dr PS Sarojini PW 12 in whose opinion the injuries found on the deceased were cummulatively sufficient to cause death in the ordinary course of nature
The cause of death according to the Doctor was shock and haemorrhage resulting from multiple injuries
The trial Judge convicted A 1 and A 2 under section 302 as well as under section 302 read with section 34 Penal Code and sen tenced each of them to imprisonment for life
On appeal by the convicts the High Court altered their conviction to one under section 304 Pt
II Penal Code and reduced their sentence to five years rigorous imprison ment each
Aggrieved by the judgment of the High Court the State has come in appeal to this Court after obtaining special leave
A 1 Rayavarappu Punnayya Respondent 1 has as reported by his Counsel died during the pendency of this appeal
This information is not contradicted by the Counsel appearing for the State
This 606 appeal therefore in so far as it relates to A  abates
The appeal  against A 2 Respondent 2 however survives for decision The principal question that falls to be considered in this appeal is whether the offence disclosed by the facts and circumstances established by the prosecution against the respondent is murder  or culpable homicide not amounting to murder 
In the scheme of the Penal Code culpable homicide  is genus and murder  its specie
All murder  is culpable homicide  but not viceversa
Speaking generally culpable homicide  sans special characteristics of murder  is culpable homicide not amounting to
murder 
For the pur pose of fixing punishment proportionate to the gravity of this generic offence the Code practically recognises three degress 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 l st 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
Culpa ble 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 vexed the courts for more than a century
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 minutae abstractions
The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words 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 Subject to certain if the act by which the death exceptions culpable is caused is done homicide is murder if the act by which the death caused is done INTENTION a with the intention of causing death 1 with the intention of causing death or or b with the intention of 2 with the intention of causing such bodily injury causing such bodily inju as is likely to cause death ry as the offender knows to or be likely to cause the death of 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 607 KNOWLEDGE c with the knowledge that 4 with the knowledge that the act likely to cause death
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 using death or such injury as is mentioned above
Clause b of section 299 corresponds with cls
2 and 3 of section 300
The distinguishing feature of the mens rea requi site under cl
2 is the knowledge possessed by the offend er regarding the particular victim being in such a peculiar condition or state of health that the intentional 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 el
Only the intention of causing the bodily injury coupled with the offender s knowledge of the likelihood of such injury caus ing the death of the particular victim is sufficient to bring the killing within the ambit of this clause
This aspect of cl
2 is borne out by illustration b appended to section 300
Clause b of section 299 does not postulate any such knowl edge on the part of the offender
Instances of cases falling under cl
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 inten tion 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 el
b of section 299 the words sufficient in the ordinary course of nature 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 over looked may result in miscarriage of justice
The differ ence between cl
b of section 299 and cl
3 of section 300 is one of the degree 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 cl
b of section 299 conveys the sense of probable  as distinguished from a mere possibili ty
The words bodily injury sufficient in the ordinary course of nature to cause death mean that 608 death will be the most probable result of the injury having regard to the ordinary course of nature
For cases to fall within cl
3 it is not necessary that the offender intended to cause death So long as death ensues from the intentional
bodily injury or injuries sufficient to cause death in the ordinary course of nature
Rajwant and anr
vs State of Kerala2 is an apt illustra tion of this point
In Virsa Singh vs The State of Punjab 2 Vivian Bose j speaking for this Court explained the meaning  and scope of Clause 3 thus at p 1500 The prosecution must prove the following facts before it can bring a case under section 300 3rdly 
First it must establish quite objective ly that a bodily injury is present
secondly the nature of the injury must be proved
These are purely objective investigations
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 suffi cient to cause death in the ordinary course of nature
This part of the enquiry is purely objec tive and inferential and has nothing to do with the intention of the offender Thus according to the rule laid down in Virsa Singh s case supra even if the intention of 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 cl
4 of section 300 both require knowledge of the probability of the 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 cl
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
From the above conspectus it emerges that whenever a court is confronted with the question whether the offence is murder  or culpable homicide not
amounting to murder  on the facts of a case it will  1 AIR 1966 SC 1874
2  609 be convenient for it to approach the problem in three stages
The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused the death of another
Proof of such causal connection between the act of the accused and the death leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in section 299
If the answer to this question is prima facie found in the affirmative the stage for considering the operation of section 300 Penal Code is reached
This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder  contained in section 300
If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder  punishable under the first or the second part of section 304 depending
respectively on whether the second or the third Clause of section 299 is applicable
If this question is found in the positive but the case comes within any of the Exceptions enumerated in section 300 the offence would still be culpable homicide not amounting to murder  punishable under the First Part of section 304 Penal Code
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 inter twined and the second and the third stages so tele scoped into each other that it may not be convenientto give a separate treatment to the matters involved in the second and third stages
Now let us consider the problem before us in the light of the above enunciation
It is not disputed that the death of the deceased was caused by the accused there being a direct causal connec tion between the beating administered by A 1 and A 2 to the deceased and his death
The accused confined the beating to
the legs and arms of the deceased and therefore it can be said that they perhaps had no intention to cause death within the contemplation clause a of section 299 or cl
1 of section 300
It is nobody s case that the instant case falls within el
4 of section 300
This clause as already noticed is designed for that class of cases where the act of the offender is not directed against any particular individual but there is in his act that recklessness and risk of immi nent danger knowingly and unjustifiably incurred which is directed against the man in general and places the lives of many in jeopardy
Indeed in all fairness Counsel for the appellant has not contended that the case would fall under el
4 of section 300
His sole contention is that even if the accused had no intention to cause death the facts estab lished fully bring the case within the purview of cl
3 of section 300 and as such the offence committed is murder and nothing less
In support of this contention reference has been made to Andhra vs State of Rajasthan1 and Rajwant Singh vs State of Kerala supra
As against this Counsel for the respondent submits that since the accused selected only non vital parts of the body of the deceased for 1 AIR 1966 SC 148
610 inflicting the injuries they could not be attributed the mens rea requisite for bringing the case under clause 3 of section 300 at the most it could be said that they had knowl edge that the injuries inflicted by them were likely to cause death and as such the case falls within the third clause of section 299 and the offence committed was only culpa ble homicide not amounting to murder punishable under section 304 Part 11
Counsel has thus tried to support the reason ing of the High Court
The trial Court as already noticed had convicted the respondent of the offence of murder
It applied the rule in Virsa Singh s case supra
and the ratio of Anda vs State and held that the case was clearly covered by clause Thirdly of section 300
The High Court has disagreed with the trail Court and held that the offence was not murder but one under section 304 Pt
The High Court reached this conclusion on the following reasoning a There was no premeditation in the attack
It was almost an impulsive act
b Though there were 21 injuries they were all on the arms and legs and not on the head or other vital parts the body c There was no compound fracture to result in heavy haemorrhage there must have been some bleeding
which according to PWI might have stopped with in about half an hour to one hour d Death that had occurred 21 hours later could have been only due to shock and not due to haemorrhage also as stated by PW 12 who conducted the autopsy
This reference is strengthened by the evidence of PW 26 who says that the patient was under shock and he was treating him for shock by sending fluids through his vein
From the injuries inflicted the accused therefore could not have intended to cause death
 e A1 and A2 had beaten the deceased with heavy sticks
These beatings had resulted in fracture of the right radius right femur right tibia right fibula right patalla and left tibia and dislocation of  therefore considerable force must have been used while inflicting the blows
Accused 1 and 2 should have therefore inflicted these injuries with the knowledge that they are likely by so beating to cause the death of the deceased though they might not have had the knowledge that they were so imminent ly dangerous that in all probability their acts would result in such injuries as are likely to cause the death
The offence  is therefore culpable homicide falling under  section 299 IPC punishable under section 304 Part II and not murder
 611 With respect we are unable to appreciate and accept this reasoning
With respect to be inconsistent erroneous and largely speculativeIt appears to us To say that the attack was not premeditated or pre planned is not only factually incorrect but also at war with High Court s own finding that the injuries were caused to the deceased in furtherance of the common intention of A 1 and A 2 and therefore section 34 IPC was applicable
Fur ther the finding that there was no compound fracture no heavy haemorrhage and the cause of the death was shock only is not in accord with the evidence on the record
The best person to speak about haemorrhage and the cause of the death was Dr P section Sarojini PW 12 who had conducted the autopsy
She testified that the cause of death of the deceased was shock and haemorrhage due to multiple in juries
This categorical opinion of the Doctor was not assailed in cross examination
In the post mortem examina tion report exhibit P 8 the Doctor noted that the heart of the deceased was found full of clotted blood
Again in injury No 6 which also was an internal fracture the bone was visible through the wound
Dr DA Sastri PW 26 had testified that he was treating Kotamraju injured of shock not only by sending fluids through his vein but also blood
This part of his statement wherein he spoke about the giving of blood transfusion to the deceased appears to have been overlooked by the High Court
Dr Kondareddy PW 11 who was the first Medical Officer to examine the injuries of the deceased had noted that there was bleeding and swelling around injury No 6 which was located on the left leg 3 inches above the ankle
Dr Sarojini PW 12 found fracture of the left tibia underneath this injury
There could therefore be no doubt that this was a compound fracture
PW 11 found bleeding from the other abraded injuries also
He however found the condition of the injured grave and immediately sent an information to the Magistrate for recording his dying declaration
PW 11 also advised immediate removal of the deceased to the bigger Hospital at Guntur
There also Dr Sastri finding that life in the patient was ebbing fast took immediate two fold action
First he put the patient on blood transfusion
Second he sent an intimation for recording his dying declaration
A Magistrate PW 10 came there and recorded the statement
These are all tell tale circumstances which unerring by show that there was substantial haemorrhage from some of the injuries involving compound fractures
This being the case there was absolutely no reason to doubt the sworn word of the Doctor PW 12 that the cause of the death was shock and haemorrhage
Although the learned Judges of the High Court have not specifically referred to the quotation from page 289 of Modi s book on Medical Jurisprudence and Toxicology 1961 Edn which was put to Dr Sarojini in cross examination they appear to have derived support from the same for the argument that fractures of such bones are not ordinarily dangerous therefore the accused could not have intended cause death but had only knowledge that they were likely by such beating to cause the death of the deceased
It will be worthwhile to extract that quotation from Mody as a reference to the same was made by Mr Subba Rao before us also
612 According to Mody Fractures are not ordinarily dangerous unless they are compound when death may occur from loss of blood if a big vessel is wounded by the split end of a fractured bone
 It may be noted in the first place that this opinion of the learned author is couched in too general and wide language
Fractures of some vital bones such as those of the skull and the vertebral column are generally known to be dangerous to life
Secondly even this general statement has been qualified by the learned author by saying that compound fractures involving haemorrhage are ordinarily dangerous
We have seen that some of the fractures under neath the injuries of the deceased were compound fractures accompanied by substantial haemorrhage
In the face of this finding Mody s opinion far from advancing the conten tion of the defence discounts it
The High Court has held that the accused had no inten tion to cause death because they deliberately avoided to hit any vital part of the body and confined the beating to the legs and arms of the deceased
There is much that can be said in support of this particular finding
But that find ing assuming it to be correct does not necessarily take the case out of the definition of murder 
The crux of the matter is whether the facts established bring the case within Clause Thirdly of section 300
This question further narrows down into a consideration of the two fold issue 
i Whether the bodily injuries found on the deceased were intentionally inflicted by the accused  ii If so were they sufficient to cause death in the ordinary course of nature  If both these elements are satisfactorily established the offence will be murder  irrespective of the fact whether an intention on the part of the accused to cause death had or had not been proved
In the instant case the existence of both these ele ments was clearly established by the prosecution
There was bitter hostility between the warring factions to which the accused and the deceased belonged
Criminal litigation was going on between these factions since long
Both the factions had been proceeded against under section 107 Cr
The accused had therefore a motive to beat the deceased
The attack was premeditated and pre planned although the interval between the conception and execution of the plan was not very long
The accused had purchased tickets for going further to Narasaraopet but on seeing the deceased their bete noir alighting at Nekarikal they designedly got down there and trailed him
They selected heavy sticks about 3 inches in diameter each and with those lethal weapons despite the entreaties of the deceased mercilessly pounded his legs and arms causing no less than 19 or 20 injuries smashing at least seven bones
mostly major bones and dislocating two more
The beating was administered in a brutal and reckless manner
It was pressed home with an unusually fierce cruel and sadistic determination
When the human conscience of one of the shocked bystanders spontaneously cried out in protest as to why the accused were beating a human being as if he were a buffalo the only echo it could draw from the assailants 613 a minacious retort who callously continued their malevolent action and did not stop the beating till the deceased became unconscious
May be the intention of the accused was to cause death and they stopped the beating under the impression that the deceased was dead
But this lone circumstance cannot take this possible inference to the plane of positive proof
Nevertheless the formidable weapons used by the accused in the beating the savage manner of its execution the helpless state of the unarmed victim the intensity of the violence caused the callous conduct of the accused in persisting in the assault even against the protest of feeling bystanders all viewed against the background of previous animosity between the parties irresistibly lead to the conclusion that the in juries caused by the accused to the deceased were intention ally inflicted and were not accidental
Thus the presence of the first element of Clause Thirdly of section 300 had been cogently and convincingly established
This takes us to the second element of Clause 3
Dr Sarojini PW 12 testified that the injuries of the deceased were cumulatively sufficient in the ordinary course of nature to cause death
In her opinion which we have found to be entirely trustworthy the cause of the death was shock and haemorrhage due to the multiple injuries
Dr Sarojini had conducted the post mortem examination of the deadbody of the deceased
She had dissected the body and examined the injuries to the internal organs
She was therefore the best informed expert who could opine with authority as to the cause of the death and as to the suffi ciency or otherwise of the injuries from which the death ensued
Dr Sarojini s evidence on this point stood on a better footing than that of the Doctors PWs
11 and 26 who had externally examined the deceased in his life time
Despite this position the High Court has not specifically considered the evidence of Dr Sarojini with regard to the sufficiency of the injuries to cause death in the ordinary course of nature
There is no reason why Dr Sarojini s evidence with regard to the second element of Clause 3 of section 300 be not accepted
Dr Sarojini s evidence satisfacto rily establishes the presence of the second element of this clause
There is therefore no escape from the conclusion that the offence committed by the accused was murder  notwith standing the fact that the intention of the accused to cause death has not been shown beyond doubt
In Anda vs State of Rajasthan supra this Court had to deal with a very similar situation
In that case several accused beat the victim with sticks after dragging him into a house and caused multiple injuries including 16 lacerated wounds on the arms and legs a hematoma on the forhead and a bruise on the chest
Under these injuries to the arms and legs lay fractures of the right and left ulnas second and third metacarpal bones on the right hand and second metacar pal bone of the left hand compound fractures of the right tibia and right fibula
There was loss of blood from the injuries
The Medical Officer who conducted the autopsy opined that the cause of the death was shock and syncope due to multiple injuries that all the injuries collectively could be sufficient to cause death in the ordinary course of nature but individually none of them was so sufficient
614 Question arose whether in such a case when no signifi cant injury had been inflicted on a vital art of the body and the weapons used were ordinary lathis and the accused could not be said to have the intention of causing death the offence would be murder  or merely culpable homicide not amounting to murder 
This Court speaking through Hidayatullah J as he then was after explaining the comparative scope of and the distinction between sections 299 and 300 answered the question in these terms The injuries were not on a vital part of the body and no weapon was used which can be described as specially dangerous
Only lathis were used
It cannot therefore be said safely that there was an intention to cause the death of Bherun within the first clause of section 300
At the same time it is obvious that his hands and legs were smashed and numerous bruises and lacerated wounds were caused
The number of injuries shows that every one joined in beating him
It is also clear that the assailants aimed at breaking his arms and legs
Looking at the injuries caused to Bherun in furtherance of the common intention of all it is clear that the injuries intended to be caused were sufficient to cause death in the ordinary course of nature even if it cannot be said that his death was intended
This is suffi cient to bring the case within 3rdly of section 300 The ratio of Anda vs State of Rajasthan supra applies in full force to the facts of the present case
Here a direct causal connection between the act of the accused and the death was established
The injuries were the direct cause of the death
No secondary factor such as gangrene tetanus etc supervened
There was no doubt whatever that the beating was premeditated and calculated
Just as in Anda s case here also the aim of the asailants was to smash the arms and legs of the deceased and they succeeded in that design
causing no less than 19 injuries including fractures of most of the bones of the legs and the arms
While in Anda s case the sticks used by the assailants were not specially dangerous in the instant case they were unusually heavy lethal weapons
All these acts of the accused were pre planned and intentional which considered objectively in the light of the medical evidence
were sufficient in the ordinary course of nature to cause death
The mere fact that the beating was designedly con fined by the assailants to the legs and arms or that none of the multiple injuries inflicted was individually suffi cient in the ordinary course of nature to cause death will not exclude the application of Clause 3rdly of section 300
The expression bodily injury in Clause 3rdly includes also its plural so that the clause would cover a case where all the injuries intentionally caused by the accused are cumula tively sufficient to cause the death in the ordinary course of nature even if none of those injuries individually measures upto such sufficiency
The sufficiency spoken of in this clause
as aready noticed is the high probability of death in the ordinary course of nature and if such suffi ciency exists and death is caused and the injury causing it is intentional the case would fail under Clause 3rdly of section 300
All the conditions which are a pre requisite for the applicability of this clause have been established and the offence committed by the accused in the instant case was murder 
615 For all the foregoing reasons we are of opinion that the High Court was in error in altering the conviction of the accused respondent from one under section 302 30234 to that under section 304 Part II Penal Code
Accordingly we allow this appeal and restore the order of the trial Court convicting the accused Respondent 2 herein for the offence of murder with a sentence of imprisonment for life
Respondent 2 if he is not already in jail shall be arrested and committed to prison to serve out the sentence inflicted on him
PBR Appeal allowed


Summary:
In the scheme of the Penal Code 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 this generic offence the Code 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 1st 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
606B D Clause b of section 299 corresponds with cll
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 intentional 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
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
607C D Instances of cases failing under clause 2 of section 300 can be where the assailant causes death by a first 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 as sailant 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
Clause b of section 299 does not postulate any such knowledge on the part of the offender
607E F 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 have been used
The distinc tion between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death is fine but real and if overlooked may result in miscarriage of justice
The difference is one of the degree of probability of death resulting from the intended bodily injury
The word likely in section 299b conveys the sense of of probable  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 proba ble  result of the injury having regard to the ordinary course of nature
607G H 602 For cases to fail within clause 3 it is not necessary that the offender intended to cause death so long as death ensues from the intentional bodily injury or injuries suffi cient to cause death in the ordinary course of nature
608B Clause c of section 299 and clause 4 of section 300 both require knowledge of the probability of the act causing death
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 immi nently 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
608F G Whenever a court is confronted with the question whether the offence is murder  or culpable homicide not amounting to murder  on the facts of a case it will be convenient for it to approach the problem in three stages
The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused the death of another
Proof of such casual connection between the act of the accused and the death leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in section 299
If the answer to this
question is prima facie found in the affirm ative the stage for considering the operation of section 300 Penal Code is reached
This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of murder  containd in section 300
If the answer to this question is in the negative the offence would be culpable homicide not amounting to mur der  punishable under the first or the second part of section 304 depending respectively on whether the second or the third clause of section 299 is applicable
If this question is found in the positive but the case comes within any of the Exceptions enumerated in section 300 the offence would still be culpable homicide not mounting to murder  punishable under the First Part of section 304 Penal Code
608H 609A C Rajwant and anr
vs State of Kerala AIR 1966 SC 1874 Virsa Singh vs The State of Punjab  and Andhra vs State of Rajasthan AIR 1966 SC 148 followed
In the instant case the prosecution alleged that in furtherance of political feuds of the village the accused followed the deceased in the bus when he went to a neigh bouring place chased him when he got off the bus and indiscriminately pounded the legs and arms of the deceased who was 55 years old with heavy sticks
The deceased succumbed to his injuries on the following morning
The trial court held that the case was covered by clause thirdly  of section 300 and convicted them under section 302 and section 302 read with section 34
Indian Penal Code
In appeal the High Court altered the conviction to one under section 304 Part II on  the grounds that i there was no premeditation in the attack ii injuries were not on any vital part of the body iii there was no compound fracture resulting in heavy haemorrhage iv death occurred due to shock and not due to haemorrhage and v though the accused had knowledge while inflicting injuries that they were likely to cause death they might no have had the knowledge that they were so imminently dangerous that in  all probability their acts would  result in such injuries as are likely to came the death
In appeal to this Court the appellant State contended that the case fell under section 3003 IPC while the accused sought to support the judgment  of the High Court
603 Allowing the appeal
HELD 1 It is not correct to say that the attack was not premeditated or preplanned
The High Court itself found that the injuries were caused in furtherance of the common intention of the respondents and that therefore section 34 was applicable
611B 2 The High Court may be right in its finding that since the injuries were not on vital parts the accused had no intention to cause death but that finding assuming it to be correct does not necessarily take the case out of the definition of murder 
The crux of the matter is whether the facts established bring the case within clause thirdly  of section 300
This question further narrows down into a con sideration of the two fold issue i whether the bodily injuries found on the deceased were intentionally inflicted by the accused  and ii If so were they sufficient to cause death in the ordinary course of nature  If both these elements are satisfactorily established the offence will be murder  irrespective of the fact whether an reten tion on the part of the accused to cause death had or had not been proved
612 C E In the instant case the formidable weapons used by the accused in the beating the savage manner of its execution the helpless state of the unarmed victim the intensity of the violence caused the callous conduct of the accused in persisting in the assault even against the protest of feeling by standersall viewed against the background of previous animosity between the parties irresistibly lead to the conclusion that the injuries caused by the accused to the deceased were intentionally inflicted and were not accidental
Thus the presence of the first element of clause thirdly  of section 300 had been cogently and convincing ly established
613 B C 3 The medical evidence shows that there were compound fractures and that there was heavy haemorrhage requiring blood transfusion
Such injuries are ordinarily dangerous
613D 4 The medical evidence clearly establishes that the cause of death was shock and haemorrhage due to multiple injuries which were cumulatively sufficient to cause death in the ordinary course of nature
612B C 5 The mere fact that the beating was designedly con fined by the assailants to the legs and arms or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death will not exclude the application of clause thirdly  of section 300
The expression bodily injury  in clause thirdly  includes also its plural so that the clause would cover a case where all the injuries intentionally caused by the accused are cumula tively sufficient to cause the death in the ordinary course of nature
even if none of those injuries individually measures upto such sufficiency
The sufficiency spoken of in this clause is the high probability of death in the ordinary course of nature and if such sufficiency exists and death is caused and the injury causing it is intention al the case would fail under clause thirdly  of section 300
All the conditions which are a pre requisite for the ap plicability of this clause have been established and the offence committed by accused in the instant case was mur der 
614G H There is no escape from the conclusion that the offence committed by the accused was murder notwithstanding the fact that the intention of the accused to cause death has not been shown beyond doubt
613F