minal Appeals Nos 102  103 of 1965
Appeals by special leave from the judgments and orders dated October 12 1964 of the Kerala High Court in Criminal Appeal No 80 of 1964 and Criminal Appeal No 70 and Referred Trial No 13 of 1964 respectively
Jai Gopal Sethi C L Sareen and R L Kohli for the appellant in Cr A No 10265
Harbans Singh for the appellant in Cr A No 10365
A section R Chari V Narayana Menon and M R K Pillai for the respondent in both the appeals
The Judgment of the Court was delivered by Hidayatullah J
This judgment will also govern the disposal of Criminal Appeal No 102 of 1965 Rajwant Singh vs The State of Kerala
The appellants in these two appeals have been convicted under sections 30234 364 392 394 and 447 of the Indian Penal Code
Unni appellant in this appeal has been sentenced to death and Rajwant Singh appellant in the other appeal has been sentenced to imprisonment for life
No separate sentences under the other sections have been imposed on Unni but Rajwant Singh has been sentenced to four years  rigorous imprisonment under sections 392 and 394 Indian Penal Code with a direction that the sentences shall run concurrently with the sentence of imprisonment for life
The High Court of Kerala has dismissed their appeals and confirmed the sentence of death on Unni
They now appeal by special leave of this Court
These appellants were tried with three others of whom two were acquitted
One Taylor was also convicted of the same offences and was sentenced in the aggregate to imprisonment for life
He has not appealed to this Court
We are not concerned with them
The case relates to the death of one Lt Commander Menianha of the Naval Base INS Vendurthy Willingdon Island Cochin Harbour on the night of March 30 1963
Unni was attached as a rating to this Naval Base and at the time of the offence was on leave
Taylor who has not appealed was an ex sailor and Rajwant Singh was attached to INS Vikrant
The case of the prosecution was that these persons conspired together to burgle the safe of the Base Supply Office on the eve of the pay day when a large sum of money was usually kept there for distribution on the pay day
They collected various articles such as a Naval Officer s dress a bottle of chloroform a hacksaw with spare blades adhesive plaster cotton wool and ropes
On the night in question they decoyed the Lt Commander from his house on the pretext that he was wanted at the Naval Base and in a lonely place caught hold of him
They covered his mouth 233 with the adhesive plaster and tied a handkerchief over the plaster and plugged his nostrils with cotton wool soaked in chloroform
They tied his hands and legs with rope and deposited him in a shallow drain with his own shirt put under his head as a pillow
They then went up to the sentry who was induced to part with his rifle to one of the accused who had dressed himself as an officer and attacked him
The sentry would have received the same treatment as his Lt Commander but he raised a hue and cry and attracted the attention of the watchman
Fearing detection the assailants released the sentry and took to their heels
The sentry after escaping informed the Officer on duty at the Base and stated that he had recognised Rajwant Singh as one of his assailants
Next morning the dead body of the Lt Commander was discovered in the drain where he had been left by the assailants
Investigation followed and five persons were placed on trial before the Session Judge Ernakulam Division who convicted three and sentenced them as stated above and acquitted the other two
The appeals of these persons before the High Court failed
In these appeals the complicity of the appellants in the offence is not challenged but it is argued that the evidence for the prosecution does not establish the offence of murder but of causing grievous hurt or of culpable homicide not amounting to murder
It is also contended that section 34 of the Indian Penal Code could not be used against any of the accused
Unni has also contended that the sentence of death was not proper as the case against him was indistinguishable from that of the other two
We shall deal
with these arguments
Our attention has been drawn to the inquest and postmortem reports to establish what was actually done to the Lt Commander
From these it is established that the legs of the victim were tied with rope and his arms were tied behind his back
A large adhesive plaster was stuck over his mouth and completely sealed it
A handkerchief was next tied firmly over the adhesive plaster to secure it in position
The nostrils were plugged with cotton soaked in chloroform
Counsel for the appellants submit that all this shows that the assailants did not intend to kill the Lt Commander but to render him unconscious
It is admitted that the closing of the mouth with the adhesive plaster and the handkerchief was complete and that it must have been impossible for the Lt Commander to breathe through his mouth
The description however shows that the nostrils were also plugged with cotton wool soaked in chloroform
This was clearly stated in the inquest report and also in the postmortem report and was established not only by the witnesses proving the inquest report but also by the doctor who performed the autopsy
In addition the prosecution has exhibited and proved numerous photographs of the dead body from various angles and these things are clearly seen in the LS5SCI 17 a 234 photographs
According to the doctor death was due to asphyxiation
In addition to the other evidence establishing the connection of Unni and Rajwant Singh with this crime there is a confession by Rajwant Singh before the Sub Magistrate Cochin in which he graphically describes the part played by him and Unni
Rajwant Singh also stated that they only wanted the Lt Commander and the sentry to remain unconscious while they rifted the safe and took away the money
It is contended that we must accept the confession as a whole and must hold on its basis that the intention was not to kill and that the offence of murder is therefore not established
As this is the most important point in the case we shall consider it first
This point was argued by Mr J G Sethi on behalf of Rajwant Singh and his arguments were adopted by Mr Harbans Singh on behalf of Unni
Mr Sethi argued that the offence was one of causing grievous hurt or at the worst of culpable homicide not amounting to murder and punishable under section 304 second part of the Indian Penal Code
It is quite plain that the acts of the appellants resulted in the death of the victim and the offence cannot be placed lower than culpable homicide because the appellants must have known that what they were doing was likely to kW The short question therefore is whether the offence was murder or culpable homicide
Mr Sethi submits that of the three clauses of section 299
which define the offence of culpable homicide the first deals with intentional killing and the second with injuries which are intentionally caused and are likely to cause death
He submits that these two clauses form the basis of the offence of murder and culpable homicide punishable under he first part of section 304 and the third clause which involves the causing of death with the knowledge that by his act the offender is likely to cause death is the foundation of offence of culpable homicide not amounting to murder punish able under the second part of section 304
He submits that the appellants did not intend causing the death of the Lt Commander but took action to keep him immobilised and silent while they rifled the safe
To achieve their purpose they tied the victim and closed his mouth and plugged the nostrils with cotton soaked in chloroform
Each of these acts denoted a desire to keep the Lt Commander out of the way for the time being but not to kill him
Nor can the acts be described as done with the intention of causing such bodily injury as was likely to kill
At the most says he it can be said that the death was caused with the knowledge on the part of the appellants that by their acts they were likely to cause death and that brings the matter within section 304 II IPC 235 The argument requires close examination
Two offences in volve the killing of a person
They are the offence of culpable homicide and the more henious offence of murder
What distinguishes these two offences is the presence of a special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater
These four mental attitudes are stated in section 300 IPC as distinguishing murder from culpable homicide Unless the offence can be said to involve at least one such mental attitude it cannot be murder
We shall consider the acts of the appellants in relation to each of the clauses of section 300
The first clause says that culpable homicide is murder if the act by which death is caused is done with the intention of causing death
An intention to kill a person brings the matter so clearly within the general principle of mens rea as to cause no difficulty
Once the intention to kill is proved the offence is murder unless one of the exceptions applies in which case the offence is reduced to culpable homicide not amounting to murder
As there is no question of any of the exceptions they need not be mentioned
But it is plain that the appellants did not contemplate killing the Lt Commander
No part of their preparations shows an intention to kill
Had they so desired they had ample time and opportunity to effectuate that purpose without going to the trouble of using cotton soaked in chloroform to stuff the nostrils
They had only to hold his nose closed for a few minutes
The confession to which we have referred also shows that the news of the death of the Lt Commander came to them with as much surprise as shock
In these circumstances the first clause of section 300 cannot apply
The second clause deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm is caused
The mental attitude here is two fold
There is first the intention to cause bodily harm and next there is the subjective knowledge that death will be the likely consequence of the intended injury
English Common Law made no clear distinction between intention and recklessness but in our law the foresight of the death must be present
The mental attitude is thus made of two elements a causing an intentional injury and b which injury the offender has the foresight to know would cause death
Here the injury or harm was intended
The appellants intended tying up the victim closing his mouth by sticking adhesive plaster and plugging his nose with cotton wool soaked in chloroform
They intended that the Lt Commander should be rendered unconscious for some time but they did not intend to do more harm than this
Can it be said that they had the subjective knowledge of the fatal consequences of the bodily harm they were causing We think that on the facts the answer cannot be in the affirmative
To say that the act satisfied the test of subjective knowledge would be really 236 tantamount to saying that the appellants intended to commit the murder of the Lt Commander which as said already was not the case
The third clause discards the test of subjective knowledge
It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death
In this clause the result of the intentionally caused injury must be viewed objectively
If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequences or not
As was laid down in Virsa Singh vs The State of Punjab1 for the application of this clause it must be first established that an injury is caused next it must be established objectively what the nature of that injury in the ordinary course of nature is
If the injury is found to be sufficient to cause death one test is satisfied
Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional
If this is also held against the offender the offence of murder is established
Applying these tests to the acts of the appellants we have to see first what bodily injury has been established
The bodily injury consisted of tying up the hands and feet of the victim closing the mouth with adhesive plaster and plugging the nostrils with cotton soaked in chloroform
All these acts were deliberate acts which had been preplanned and they therefore satisfy the subjective test involved in the clause
The next question is whether these acts considered objectively were sufficient in the ordinary course of nature to cause death
In our judgment they were
The victim could only possibly breathe through the nostrils but they were also closed with cotton wool and in addition an asphyxiating agent was infused in the cotton
All in all it would have been a miracle if the victim had escaped
Death of the victim took place as a direct result of the acts of his assailants
Mr Sethi suggested that the victim must have struggled to free himself and had rolled into the drain and this must have pushed up the cotton further into the nostrils
This is not correct
The victim was placed in the drain by his assailants because his folded shirt was placed under his head and had obviously fainted by that time
No one seems to have been aware of his presence otherwise discovery would have taken place earlier
This leads to the only conclusion that there was no change in the circumstances in which the victim was left by the assailants
The bodily injury proved fatal in the ordinary course of nature
The ordinary course 11968 SCR 1495
237 of nature was neither interrupted nor interfered with by any intervening act of another and whatever happened was the result of the acts of the assailants and their acts alone
Mr Sethi argues that the sufficiency of the injury to cause death in the ordinary course of nature is something which must be proved and cannot be inferred from the fact that death has in fact taken place
This is true of some cases
If a blow is given by reason of which death ensues it may be necessary to prove whether it was necessarily fatal or in the language of the Code sufficient in the ordinary course of nature to cause death
In such a case it may not be open to argue backwards from the death to the blow to hold that the sufficiency is established because death did result
As death can take place from other causes the sufficiency is required to be proved by other and separate evidence
There are however cases and cases
Where the victim is either helpless or rendered helpless and the offender does some act which leads to death in the ordinary course and death takes place from the act of the offender and nothing else it is hardly necessary to prove more than the acts themselves and the causal connection between the acts and the end result
Mr Sethi contends that the concentration of chloroform the quantity actually used and its effect on the victim ought to have been proved
Alternatively he argues that the quantity of the cotton wool used to plug the nostrils and the manner of plugging should have been established before a finding can be given that the bodily injury was sufficient in the ordinary course of nature to cause death
This would of course have been necessary if it could at all be thought that not the acts of the assailants but some other intervening circumstance might have led to the death of the victim
But there was none
There was no interference by anyone else
Death was due to asphyxiation whether caused by the mechanical obstruction of the nostrils or by chloroform as an asphyxiating agent or both
Whichever way one looks at it the injury which caused the death was the one inflicted by the assailants
The sufficiency of the injury was objectively established by the nature and quality of the acts taken with the consequence which was intimately related to the acts
There was no need to establish more than this in the case
As was pointed out in Anda vs State of Rajasthan1 the emphasis in clause thirdly is on the sufficiency of the injury in the ordinary course of nature to cause death
The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and if the causing of the injury is intended the offence is murder
In this case the acts of the appellants were covered by the third clause in section 300
As we are satisfied that this case falls within clause thirdly we need hardly consider whether it falls also within the fourth clause or not
That clause comprehends generally the commission of 1 AI R at 151
238 imminently dangerous acts which must in all probability cause death
To tie a man so that he cannot help himself to close his mouth completely and plug his nostrils with cotton wool soaked in chloroform is an act imminently dangerous to life and it may well be said to satisfy the requirements of the last clause also although that clause is ordinarily applicable to cases in which there is no intention to kill any one in particular
We need not however discuss the point in this case
We accordingly hold that the offence was murder
All the acts were done after deliberation by the appellants
They were of a type which required more than one person to perpetrate
What was done had already been discussed and the execution of the plan was carried out as contemplated
That there was a common intention admits of no doubt and as clause 3 of section 300 views the consequence of the act objectively all those who shared the common intention of causing the bodily injury which was sufficient to cause death in the ordinary course of nature must be held responsible for the resulting offence
Even if the consequence was different from what was actually intended those who abetted and the appellants were either offenders principally or abetters would be equally responsible under section 113 of the Indian Penal Code provided they knew that the act which they were abetting was likely to cause that effect
On the argument of the appellants that section 304 11 applies it is obvious that the above provision must be attracted
In our judgment the appellants were rightly adjudged guilty under section 30234 Indian Penal Code
As regards the sentence of death passed on Unni we see no reason to interfere
He was the master mind behind the whole affair and the sentence of death was therefore appropriate
We see no force in either appeal
They will be dismissed
Appeals dismissed


Summary:
The appellants were convicted of murder under section 302 read with section 34 IPC on the allegation that they had laid their victim in a drain after closing his mouth with adhesive tape and plugging his nose with cotton wool soaked in chloroform as a result of which death was caused
They appealed to this Court by special leave
It was contended on their behalf i that their offence did not amount to murder but only to culpable homicide under the second part of section 304 ii that it could not be inferred from the mere fact of death that the injury caused by the appellants was sufficient in the ordinary course of nature to cause death this had to be proved by further evidence and iii that the ingredients of section 34 IPC were not satisfied
HELD  i What distinguishes the offences of murder and culpable homicide is the presence of a special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes the greater
These four mental attitudes are stated in the four clauses of section 300 IPC 235 B iiThe first clause of section 300 says that culpable homicide is murder if the act by which death is caused is done with the intention of causing death
An intention to kill a person brings the matter so clearly within the general principle of mens rea as to cause no difficulty
Once the intention to kill is proved the offence is murder unless one of the exceptions applies in which case the offence is reduced to culpable hominid not amounting to murder
On the facts of the present case an intention to cause death was not proved against the appellants and the clause therefore did not apply
235 C iiiThe second clause of the section deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm is caused
The mental attitude here is two fold
There is first the intention to cause bodily harm and next there is the subjective knowledge that death will be the likely consequence
English Common Law made no clear distinction between intention and recklessness but in our law the foresight of the death must be Present
The mental attitude is thus made of two elements a causing an intentional injury and b which injury the offender has the foresight to know would cause death
The Present case could not fall under this clause either
because it could not be said that the appellants who only wanted to make their victim unconscious had the Subjective knowledge of the fatal consequences of the boil harm they were causing
iv The appellants were however guilty of murder under the third clause of section 300
237 G H The third clause discards the test of subjective knowledge
It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death
In this clause the result of the intentionally caused injury must be viewed objectively
If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequences or not
236 B For the application of this clause it must be first established that an injury is caused next it must be established objectively what the nature of that injury in the ordinary course of nature is
If the injury is found to be sufficient to cause death one test is satisfied
Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional
236 C D Virsa Singh vs State of Punjab   referred to
The bodily injury caused by the appellants was deliberate and preplanned and the subjective test involved in the clause was therefore satisfied
The other test namely whether the injury was sufficient in the ordinary course of nature to cause death was also satisfied in the case as in the circumstances it would have been a miracle if the victim had escaped
Death of the victim took place as a direct result of the acts of his assailants
236 E F vThe fourth clause of section 300 comprehends generally the commission of imminently dangerous acts which must in all probability cause death
What the appellants did may well be said to satisfy the requirements of this clause also although it is ordinarily applicable to cases in which there is no intention to kill anybody in particular
Obiter
238 A viThe sufficiency of an injury to cause death in the ordinary course of nature in the terms of el 3 need not in every case be required to be proved by separate evidence in that regard
Where the victim is either helpless or rendered helpless and the offender does some act which leads to death in the ordinary course and death takes place from the act of the offender and nothing else it is hardly necessary to prove more than the acts themselves and the causal connection between the acts and the end result
The sufficiency of the injury in the present case was objectively established by the nature and quality of the acts taken with the consequence which was intimately related to the acts
There was no need to establish more than this in the case
237 B G Anda vs 9tate of Rajasthan AIR 1965 SC 148 referred to
viiAll the acts were done after deliberation by the appellants
They were of a type which required more than one person to perpetrate
That there was a common intention admits of no doubt and as clause 3 of section 300 views the consequence of the act objectively all those who shared the common intention of causing the bodily injury which was sufficient to cause death in the ordinary course of nature must be held responsible for the resulting offence
238 C 232