NANKAUNOO versus STATE OF U.P.
[2016] 4 S.C.R. 627, Supreme Court of India, 2016
Outcome: Case Partly allowed (Granted)
Segment: Ratio
[2016] 4 S.C.R. 627 
NANKAUNOO 
v. 
STATE OF U.P. 
(Criminal Appeal No. 46of2016) 
JANUARY 19, 2016 
[T.S. THAKUR, CJI, A.K. SIKRI AND R. BANUMATHI, JJ.] 
Penal Code, 1860: s.302 - Murder - Victim-deceased barber 
by profession - Accused went to his shop for haircut - He insisted 
preference over other customers which victim refused and accused 
left the shop threatening the victim - In the evening when the victim 
went to the field to attend to nature :5 call, accused fired at him with 
his pistol - Gun shot hit on lower part of thigh of the victim -
Deceased died of shock and hemorrhage later in hospital -
Conviction by courts below u/s.302 - Appeal against conviction -
Held: The weapon used and the manner in which attack was made 
and the injury was inflicted due to premeditation clearly establish 
that the appellant intended to cause injury - The injury was however 
on non-vital organ - In view of nature of injury and absence of 
evidence elicited from the doctor that the said injury was sufficient 
in the ordinary course of nature to cause death, it is a fit case for 
conviction uls.304 Part I - Conviction modified to one uls. 304 
Part I 
Partly allowing the appeal, the Court 
HELD: Intention is different from motive. It is the intention 
with which the act is done that makes a difference in arriving at a 
conclusion whether the offence is culpable homicide or murder. 
The third clause of Section 300 IPC consists of two parts. 
Under the first part it must be proved
that there was an intention 
to inflict the injury and under the second part it must be proved 
that the injury was sufficient in the ordinary course of nature to 
cause death. The emphasis in clause three of Section 300 IPC 
is on the sufficiency of the injury in the ordinary cou..Se of nature 
to cause death. The sufficiency is the high probability of death in 
the ordinary course of nature. When the sufficiency exists and 
death follows, causing of such injury is intended and causing of 
such offence is murder. For ascertaining the sufficiency of the 
627 
A 
B 
c 
D 
E 
F 
G 
H
628 
A 
B 
c 
SUPREME COURT REPORTS 
(2016) 4 S.C.R. 
injury, sometimes the nature of the weapon used, sometimes 
the part of the body on which the injury is caused and sometimes 
both are relevant. 
The deceased sustained gunshot wound of 
entry 1-112" x 1-112" on the back and inner part of left thigh, six 
gunshot wounds of exit each 113" x 113" in size in front and 
middle left thigh. The injury was on the inner part of left thigh, 
which is the non-vital organ. Keeping in view the situs and nature 
of injury and in the absence of evidence elicited from the doctor 
thatthe said injury was sufficient in the ordinary course of nature 
to cause death, it is a fit case where the conviction of the 
appellant under Section 302 IPC should be under Section 304 
Part 1 IPC. The conviction of the appellant under Section 302 
IPC is modified as conviction under Section 304 Part 1 IPC and 
the appellant is sentenced to undergo ten years rigorous 
imprisonment. [Paras 11 to 14) [631-F-G; 633-B, D, F, G, H; 634-
A-B] 
D 
Jai Prakash v. State (Delhi Administration) 1991 (1) 
SCR 202 : (1991) 2 SCC 32 - relied on. 
Case Law Reference 
1991 (1) SCR 202 
relied on 
Para 11 
E 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 
46 of2016. 
From the Judgment and Order dated 16.05.2013 of the High Court 
of Judicature at Allahabad Lucknow Bench, Lucknow in Criminal Appeal 
No. 775 of 1981. 
F 
Kapil Arora, Ms. Ekshita Choudhary, Ms. Kum Kum Sen, Advs. 
for the Appellant. 
Ms. Pragati
Neekhra, Mukul Singh, Adv. for the Respondent. 
The Judgment of the Court was delivered by 
G 
R. BANUMATHI, J. I. Leave granted. 
2. This appeal arises out of the judgment dated 16.05.2013 passed 
by the High Court of Judicature at Allahabad, Lucknow Bench in Criminal 
Appeal No. 775 of 1981, whereby the High Court affirmed the conviction 
of the appellant-accused under Section 302 IPC and also sentence of 
H 
imprisonment for life imposed on him.
NANKAUNOO v. STATE OF U.P. 
[R. BANUMATHI, J.] 
3. Briefly stated case of the prosecution is as under:- Deceased-
Chhedi Lal was running a barber shop in Kurari Khurd Market. On 
18.02.1981, the appellant visited the shop ofChhedi Lal and asked for a 
haircut. An altercation took place between the two 2 when appellant 
insisted the deceased for haircut claiming preference over other 
customers; but the deceased-Chhedi Lal declined his demand. The 
appellant felt insulted and left the barber shop threatening the deceased. 
At around 5.00 p.m., deceased-Chhedi Lal closed the shop and went 
back home. Later at 6.00 p.m., the deceased went towards the canal 
lying in the western side of the village abadi to answer the nature's call. 
When the deceased reached near the eastern mend of the grove of 
Ishwari, the appellant emerged from the northern side carrying a pistol 
in his hand and threatened the deceased as he had insulted the appellant 
in the market and that he would not spare him alive. The deceased fled 
towards the west to save himself and appellant fired from his pistol 
which hit the deceased on his left thigh and he had fallen down. The 
incident was witnessed by Janoo-PW2, Udan-PW3 and Muneshwar. 
Also father of the deceased namely Kishore-PWI and his son-Ram Pal 
saw the incident when they were returning from their field. On the alarm 
raised by the deceased and the witnesses, the appellant fled away from 
the scene. The deceased was taken on a cot to his house and
on the 
narration of incident by Ki shore-the father of the deceased, the complaint 
was written by Shiv Pujan Singh. Thereafter, deceased was taken to 
Police Station-Achal Ganj, where FIR (Ex. Ka-I) bearing Crime No.37/ 
81 dated 18.02.1981 was registered against the appellant under Section 
307 !PC. SI-Ravinder Prasad Yadav (PW-6) recorded the statement of 
Chhedi Lal who was lying injured on the kharkhara outside the Police 
3 Station and the deceased was sent to Achal Ganj Hospital from where 
he was referred to District Hospital Unnao; but the deceased died on 
the way to the hospital. FIR was altered from Section 307 !PC to Section 
302 !PC and further investigation was taken up. After inquest by the 
police, post mortem was conducted by Dr. J.N. Bajpai (PW-4) at District 
Hospital Unnao on 19 .02.1981 at 3 .30 p.m. PW-4-Dr. Bajpai noted a 
gunshot would of entry 'h" x 'h" on the back and inner part of left thigh 
and six gunshot wounds of exit each 1/3" x 1/3" in size in front and 
middle left thigh. Dr. J. N. Bajpai (PW-4) opined that the death was due 
to shock and hemorrhage due to injuries of firearm. After completion of 
investigation, chargesheet was filed against the appellant u11der Section 
302 !PC. After committal of the case to the Sessions Court, charge was 
629 
A 
B 
c 
D 
E 
F 
G 
H
630 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
framed against the appellant under Section 302 IPC. 
4. To bring home the guilt of the accused-appellant, prosecution 
has examined in all eight witnesses and exhibited the material object on 
record. The incriminating evidence and circumstances were put to the 
appellant under Section 313 Cr.P.C. and the accused denied all of them 
and pleaded that he was falsely implicated. Upon consideration of the 
evidence, the Sessions Judge, Unnao found the appellant guilty of the 
offence under Section 302 !PC and sentenced him to undergo 
imprisonment for life. Being aggrieved, the appellant preferred appeal 
before the High Court which was dismissed by the impugned judgment. 
5. Learned counsel for the appellant Mr. Kapil Arora submitted 
that the prosecution could not have relied on the testimony of PW s I, 2 
and 3 as PW-1-Kishore, father of the deceased, is an interested witness 
and PWs 2 and 3 are the inimical interested witnesses and the trial court 
was not right in basing the conviction of the appellant on the testimony 
PWs 1 to 3 and the High Court erred in confirming the conviction. It 
was further contended that the courts below failed to take note of the 
factthat the alleged weapon of murder 'countrymade pistol' was never 
recovered by the investigating officer and in the absence of clear 
connection of the weapon used for crime and resultant injury, the 
prosecution cannot be said to have proved its
case beyond reasonable 
doubt. 
6. Per contra, learned counsel for the respondent-State Ms. Pragati 
Neekhra submitted that witnesses have consistently deposed that the 
appellant threatened the deceased that he would not be spared alive and 
thereafter fired shot from his loaded pistol and medical evidence amply 
corroborates the version of the eye witnesses and the courts below rightly 
convicted the appellant under Section 302 !PC. 
7. We have carefully considered the rival contentions and perused 
the impugned judgment and the material on record. 
8. PW-1 Kishore, PW-2 Janoo and PW-3 Udan have given 
consistent version about the occurrence that the appellant fired at the 
deceased-Chhedi Lal with 'countrymade pistol' which he was carrying 
5 in his hand. Despite the searching cross-examination, nothing substantial 
was elicited from the witnesses to discredit their testimony. In the context 
ofunimpeachable oral evidence coupled with the medical evidence that 
deceased-Chhedi Lal met with homicidal death due to gunshot injuries,
NANKAUNOO v. STATE OF U.P. 
[R. BANUMATHI, J.] 
trial court rightly held that the appellant was responsible for the death of 
Chhedi Lal. High Court rightly agreed with the finding of the trial court 
that PWs 1to3 were reliable witnesses. Having heard the learned counsel 
for the parties and on going through the record, we do not find any 
reason to disbelieve the evidence of eye witnesses-PWs 2 and 3. 
9. Learned counsel for the appellant contended that the courts 
below failed to take note of the fact that the alleged weapon 
'countrymade pistol' was never recovered by the investigating officer 
and in the absence of any clear connection between the weapon used 
for crime and ballistic report and resultant injury, the prosecution cannot 
be said to have established the guilt of the appellant. In the light of 
unimpeachable oral evidence which is amply corroborated by the medical 
evidence, non-recovery of'countrymade pistol' does not materially affect 
the case of the prosecution. In a case of this nature, any omission on the 
part of the investigating officer cannot go against the prosecution case. 
Story of the prosecution is to be examined dehors such omission by the 
investigating agency. Otherwise, it would shake the confidence of the 
people not merely in the law enforcing agency but also in the 
administration of justice. 
I 0. Learned counsel for the appellant then contended that the 
gunshot injury was on the lower part of the left thigh which is a non-vital
organ and it cannot be said that the appellant intended to cause the death 
of the deceased and therefore the conviction of the appellant under 
Section 302 IPC is not sustainable. In the light of the above contention, 
the question falling for consideration is whether the conviction of the 
appellant under Section 302 IPC is sustainable. 
11. Intention is different from motive. It is the intention with which 
the act is done that makes a difference in arriving at a conclusion whether 
the offence is culpable homicide or murder. The third clause of Section 
300 !PC consists of two parts. Under the first part it must be proved that 
there was an intention to inflict the injury that is present and under the 
second part it must be proved that the injury was sufficient in the ordinary 
course of nature to cause death. Considering the clause thirdly of Section 
300 !PC and reiterating the principles in Virsa Singh s case, in Jai 
Prakash v. State (Delhi Administration) (1991) 2 SCC 32, para (12), 
this Court held as under:-
"12. Referring to these observations, Division Bench of this Court 
in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC 
631 
A 
B 
c 
D 
E 
F 
G 
H
632 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
p. 620, para 7) 
"These observations of Vivian Bose, J. have become locus 
classicus. The test laid down in Virsa Singh case, AIR 1958 
SC 465 forthe applicability of Clause Thirdly is now ingrained 
in our legal system and has become part of the rule of law." 
The Division Bench also further held that the decision in Virsa 
Singh case AIR 1958 SC 465 has throughout been followed as 
laying down the guiding principles. In both these cases it is clearly 
laid down that the prosecution must prove (I) that the body injury 
is present, (2) that the injury is sufficient in the 7 ordinary course 
of nature to cause death, (3) that the accused intended to inflict 
that particular injury that is to say it was not accidental or 
unintentional or that some other kind of injury was intended. In 
other words Clause Thirdly consists of two parts. The first part is 
that there was an intention to inflict the injury that is found to be 
present and the second part that the said injury is sufficient to 
cause death in the ordinary course of nature. Under the first part 
the prosecution has to prove :from the given facts and circumstances 
that the intention of the accused was to cause that particular injury. 
Whereas the second part whether it was sufficient to cause death 
is an objective enquiry and it is a matter of inference or deduction 
:from the particulars of the injury. The language of Clause Thirdly 
of Section
300 speaks of intention at two places and in each the 
sequence is to be established by the prosecution before the case 
can fall in that clause. The 'intention' and 'knowledge' of the 
accused are subjective and invisible states of mind and their 
existence has to be gathered from the circumstances, such as the 
weapon used, the ferocity ofattack, multiplicity of injuries and all 
other surrounding circumstances. The framers of the Code 
designedly used the words 'intention' and 'knowledge' and it is 
accepted that the knowledge of the consequences which may 
result in doing an act is not the same thing as the intention that 
such consequences should ensue. Firstly, when an act is done by 
a person, it is presumed that he must have been aware that certain 
specified harmful consequences would or could follow. But that 
knowledge is bare awareness and not the same thing as intention 
that such consequences should ensue. As compared to 
'knowledge', 'intention' requires something more than the mere
NANKAUNOO v. STATE OF U.P. 
[R. BANUMATHI, J.] 
foresight of the consequences, namely the purposeful doing of a 
thing to achieve a particular end." 
12. The emphasis in clause three of Section 300 IPC is on the 
sufficiency of the injury in the ordinary course ofnature to cause death. 
The sufficiency is the high probability of death in the ordinary course of 
nature. When the sufficiency exists and death follows, causing of such 
injury is intended and causing of such offence is murder. For ascertaining 
the sufficiency of the injury, sometimes the nature of the weapon used, 
sometimes the part of the body on which the injury is caused and sometimes 
both are relevant. Depending on the nature of weapon used and situs of 
the injury, in some cases, the 8 sufficiency of injury to cause death in the 
ordinary course ofnature,must be proved and cannot be inferred from 
the fact that death has, in fact, taken place. 
13. Keeping in view the above principles, when we examine the 
facts of the present case, the deceased sustained gunshot wound of 
entry 1-1/2" x 1-112" on the back and inner part ofleft thigh, six gunshot 
wounds of exit each 1/3" x I /3" in size in front and middle left thigh. 
Due to the occurrence in the morning at the barber shop of the deceased, 
the appellant emerged from the northern side of the grove carrying pistol 
in his hand and fired at the deceased. The weapon used and the manner 
in which attack was made and the injury was inflicted due to
premeditation 
clearly establish that the appellant intended to cause the injury. Once it is 
established that the accused intentionally inflicted the injury, then the 
offence would be murder, if it is sufficient in the ordinary course of 
nature to cause the death. We find substance in the contention of the 
learned counsel for the appellant the injury was on the inner part ofleft 
thigh, which is the non-vital organ. Having regard to the facts and 
circumstances of the case that the gunshot injury was caused in the 
inner part of left thigh, the sufficiency of injury to cause death must be 
proved and cannot be inferred from the fact that death has taken place. 
But the prosecution has not elicited from the doctors that the gunshot 
injury on the inner part of left thigh caused rupture of any important 
blood vessel and that it was sufficient in the ordinary course ofnature to 
9 cause the death. Keeping iii view the situs and nature of injury and in 
the absence of evidence elicited from the doctor that the said injury was 
sufficient in the ordinary course of nature to cause death, we are of the 
view that it is a fit case where the conviction of the appellant under 
Section 302 !PC should be under Section 304 Part I IPC. 
633 
A 
B 
c 
D 
E 
F 
G 
H
634 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
A 
14. In the result, the conviction of the appellant under Section 302 
B 
IPC is modified as conviction under Section 304 Part I IPC and the 
appellant is sentenced to undergo ten years rigorous imprisonment and 
the appeal is partly allowed. 
Devika Gujral 
Appeal partly allO\,·ed.