SETTU AND ORS.

STATE OF TAMIL NADU

AUGUST 22, 2006

(ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.] B

Penal Code, 1860:

ss. 299, 300, 302, 304(Part !), 324 and 326- Three accused attacking one person-Death of victim-Trial court convicting two of them u/s 302 and C the third uls 302 r/w 34 !PC-Held, fatal injuries having been inflicted by appellant no. I, his conviction and sentence uls 302 confirmed-Taking note of weapon used by appellants and place where injuries were inflicted, appellant no. 2 convicted u/s 304 (Part !)-His conviction u/s 324 confirmed-Appellant no. 3 convicted uls 326-Comparative analysis of provisions of ss.299 and D 300 made and legal principles deduced

Appellants were prosecuted for causing death of younger brother of P.W. I and causing injuries to P.W. 12, a friend of the deceased. The prosecution case was that on the day of occurrence the three appellants beat the deceased. The deceased made a complaint to the police. Later, E when the deceased and P.W. 12 were returning to their village, in the way, they saw the appellants staning with weapons. Appellant no. I gave knife injuries on the left side of the head, on the left eye-brow and on the right ear of the deceased. When the injured fell down, appellant no. I once again inflicted a knife injury on his head. Appellant no. 2 cut the deceased on F his back as also on his right knee. When P.W. 12 intervened, appellant No. 2 inflicted an injury on his right wrist. Appellant no. 3 caused grievous injury on the right hand of the deceased. Besides PW-12, the incident was also witnessed by PW-I, who had reached there on hearing about the. earlier occurrence. The deceased was taken to the hospital where he breathed his last. The trial court .convicted appellant Nos. I and 2 under G s.302 and appellant no. 3 under s.302 r/w s.34 IPC and sentenced all of them to imprisonment for life. Besides, appellant no. 2 was also convitted u/s 324. The High Court confirmed the conviction and sentence. Aggrieved, all the three accused filed the present appeal.

185 H

A It was contended for the appellants that the scenario described by the prosecution clearly ruled out application of s.302 IPC; and so far as appellant no.3 was concerned, he allegedly assaulted on the right leg and not any vital part of the deceased.

Allowing the appeal as regards appellants no. 2 and 3 in part, the B Court

HELD: I. I. The safest way of approach to the interpretation and application of provisions of sections 299 and 300 IPC seems to be to keep in focus the keywords used in the various clauses of these sections. In the instant case, the factual scenario is examined in the background of the C legal principles deduced from various pronouncements of this Court. It is the prosecution case that the fatal injuries are attributable to appellant no. 1. He assaulted the deceased with a knife which he had kept concealed.

The appropriate conviction would be in terms of Section 302 IPC so far as appellant no. I is concerned and the appeal with regard to him stands D dismissed. 1190-D; 194-GI

Virsa Singh v. State of Punjab, AIR (1958) SC 465; Rajwani and Anr.

v. State of Kera/a, AIR (1966) SC 1874; State of Andhra Pradesh v.

Rayavarapu Punnayya and Anr., 1197614 SCC 382; Abdul Waheed Khan@ Waheed and Ors. v. State of Andhra Pradesh, 120021 7 SCC 175 apd E Thangaiya v. State of Tamil Nadu, 2005 (9) sec 650, relied on.

1.2. Taking note of the weapon used by the appellants and the place where injuries were inflicted, appellant no.2 has to be convicted under Section 304 (Part I) IPC. His conviction in terms of Section 324 IPC is in order. The custodial sentence of 10 years would meet the ends of justice F so far as appellant no.2 is concerned. The sentence awarded by the trial court as affirmed by the High Court so far as appellant No.2 is concerned in respect of his conviction in terms of Section 324 IPC remains unaltered.

(194-H; 195-A-B[

1.3. So far as appellant no.3 is concerned, he is to be convicted in G terms of Section 326 IPC. For appellant no.3, the custodial sentence would be three years rigorous imprisonment. (195-A-BI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 865 of 2006.

H From the Judgment and Order dated 9.9.2005 of the High Court of

SETTU v. STATE OF TAMIL NADU [PASAYAT . .I.] 187

Judicature at Madras in Criminal Appeal No. 786 of 2000.

V .A. Mohta and T. Harish Kumar for the Appeallants.

V.G. Pragasam and S. Vallinayagam for the Respondent.

The Judgment of the Court was delivered by B

ARIJlT PASAYA T, J. Leave granted.

Heard learned counsei for the parties.

Appellants call in question legality of the judgment rendered by a C Division Bench of the Madras High Court confirming conviction of each of the appellants and imposition of sentence as done by t'1e learned Additional Sessions Judge Vellore. While appellant Nos. I and 2 were convicted for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the !PC), appellant No.3 was convicted for offence punishable under Section 302 read with Section 34 IPC.

The trial Court held that the prosecution had established the accusations that on 22.8.1995 at 6.00 P.M. the appellants caused injuries to Ramesh (hereinafter referred to as the 'deceased') by cutting him with knife and pichuvas and as a result of the said injuries, the deceased breathed his life at about 3.20 P.M. on 29.8. I 995 at Christian Medical College Hospital, Vellore E while undergoing treatinent. The further allegation against appellant No.2 was that during the incident he caused injuries to Babu (PW- I 2). Appellant No.2 was accordingly found guilty of offence punishable under Section 324 !PC and sentenced to one year rigorous imprisonment.

The factual position as highlighted by the prosecution during trial F essentially as follows:

Chandru (P.W. I) is the elder brother of the deceased and Babu (P. W. 12) was his friend. On 22.08. I 995 at about 3.30 p.m. Babu (P.W. 12) met the deceased, at the bus stop near Sankaranpalayam and deceased was seen with G blood-stained injuries. Babu (P.W.12) questioned him as to what happe!ied.

Deceased informed him that appellant Nos. I to 3 and another had beaten him. Babu (P.W. 12) took the deceased to the hospital, where he was given treatment. Later, the deceased gave a complaint at the Police Station. P.W.12 and the deceased were returning to their village via Sankaranpalayam. While. they were at the college road, appellant Nos. I to 3 were seen standing with H

A weapons in their hands. On seeing the deceased, the appellant No. I, removing a knife, which he had kept concealed, cut him on the left side of the head, which caused an injury on the left eyebrow. He was also inflicted an injury on the right ear by the said appellant. The deceased fell down. The appellant No. I, once again inflicted cut on the head of the deceased. The appellant B No.2 cut the deceaseci on his back as well as on his right knee. P.W.12

intervened and he also sustained injury on account of the assault by the appellant No.2, which warded off. P. W.12 suffered an injury on the right wrist. The appellant No.3 beat the deceased on the right hand causing grievous injury. The occurrence was witnessed by P.W.12 and by P.W.J, the elder brother of the deceased, who had come to the scene of occurrence in search C of his brother on hearing about the earlier occurrence, which took place at about 3.30 p.m., as well as by P.Ws 2 to 8. The deceased was taken to the Government Hospital at Veliore, where he was examined by the Casualty Medical Officer (P. W. I 9) at 7.10 p.m. The doctor found the following injuries:

A laceration on the left eyebrow with force. Fracture frontal D skull 5X 1/2 X 1/2 deep.

A laceration on the right forehead 5 X 1/2 X 1/2 cm.

Ex. P.14 is the wound certificate. In the meantime P.W. 12 appeared before P.W.20, the Sub-Inspector of Police of Vellore South Police Station E and gave a complaint, which was reduced into writing. The said complaint is Ex. P.4. On the complaint (Ex. P.4) P. W.20 registered a crime in Crime No.900 of I 995 under Sections 326 and 323 l.P.C. Investigation was taken up by P.W.20.

P.W.20 reached the scene of occurrence and examined witnesses. As F there was no sufficient light at the place, he returned to the police station. In the meantime, P.W. 12, who had suffered injury was referred to the hospital and was examined by P. W. I 9. The doctor found an abrasion on his right wrist measuring 1 X 1/8 cm. P. W.12 complained of pain in his arm. Ex. P.15 is the wound certificate issued by the Doctor. The bloodstained earth and sample earth, M.Os.9 and 10 were seized under a mahazar Ex. P.19. He went G to Christian Medical College Hospital, where the deceased was sent from Government Pentland Hospital, Veilore, but he could not record the statement of injured Ramesh as he was unconscious. P.W.20 seized M.0.5 banian and M.0.6 pant, of the deceased Ramesh under a mahazar Ex. P.3. He searched for the appellants and arrested appellant Nos. 2 and 3 at about 1.00 i; v1 on H 24.8.95 when they were near Bagayam bus stand. They were questioned. The

SETTU v. ST A TE OF TAMIL NADU [PASAYA T, .I.] 189

appellant No.2 gave a statement and in pursuance of the admissible portion A (Ex. P. 20) given by him, and on production by him knife and two sticks M.O. 8 series, were seized under a mahazar, (Ex. P.21 ). On 24.8.95, investigation in the crime was taken up by P. W. 21, the Inspector of Police.

On 4.9.1995 appellant No. I was arrested and on the basis of his statement a knife was recovered.

After completion of investigation Investigating Officer filed charge sheet and the accused persons were sent •!p for trial.

In order to further its version prosecution examined nine witnesses. Out

of them, PWs 2 to 8 made departure from the statement given during C investigation. Therefore, prosecution relied upon the evidence of PWI and PW 12. The trial Court held that the evidence of these two witnesses was cogent, credible and trustworthy and accordingly recorded the convictions and imposed sentence as noted earlier.

The accused persons preferred an appeal before the High Court which D as noted supra was dismissed by the impugned judgment.

Learned counsel of or the appellants submitted that the prosecution version is not credible, cogent and is essentially unreliable. The evidence of PWs. I and 12 has not been analysed carefully because former was the elder brother of the deceased while the later was his friend. Additionally, the E scenario as described by the prosecution clearly rules out application of Section 302 !PC. So far as appellant No.3 is concerned, the prosecution version is to the effect that he assaulted on the right leg and not on any vital part. The Doctor PW13 has clearly indicated that the injuries which were stated to be fatal injuries were lacerated injuries.

In response, learned counsel for the respondent-State supported the judgment of the trial court and the High Court. According to him the concurrent finding of fact recorded by the courts below should not be interfered with.

The evidence of PWs I and I 2 have been analysed in great detail by the trial Court and the High Court. The same has been rightly held to be G cogent and credible.

This brings us to the crucial question as to which was the appropriate provision to be applied. Jn the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice- H

A 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, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the B greatest 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 punishment for the three grades. Culpable homicide of this degree is punishable C 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 !he terms used by the legislature in these sections, allow themselves to be drawn into minute D 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 s:ctions 299 and 300. The following comparative table will be helpful in appreciating the points distinction between the two offences.

Section 299

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

Section 300

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

INTENTION

(a) with the intention death; or

(b) with the intention such bodily injury as cause death; or

of causing

of causing is likely to

(I) with the intention of causing death; or

(2) with the intention of causing such bodily injuries 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 ano the

SETTU v. STATE OF TAMIL NADU (PASAYA T. l.] 191

bodily injury intended to be A 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 B 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 in jury as is mentioned C 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 D 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 nonnal 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 E to bring the killing within the ambit of this clause. This of Clause (2) is borne out by illustration (b) appendP, d to Section 300.

Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases of falling under Clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally F given knowing that the victim is suffering from an enlarged liver, or enlarge0 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 G 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" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily H

A 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 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 detennines whether a culpable homicide is of the gravest, medium of the B lowest degree. The word 'likely' in Clause (b) of Section 299 conveys the sense 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 probable" result of the injury, having regard to the ordinary course of nature. c

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. Rajwani and Anr. v. State of Kera/a, AIR (1966) SC 1874 is an apt illustration of this point.

In Virsa Singh v. State of Pzmjab, AIR (I 958) SC 465, 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 acts before it can bring a case under Section 300. "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury E 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 proceeded further, and fourthly it must be proved that the injury of p the type just described made up the tltree 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 ingredient of clause "'Thirdly'' of Section 300, !PC were brought G out by the illustrious Judge in his terse language as follows:

"12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly".

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

SETTU v. ST A TE OFT AMIL NADU [PASAYA T, J.] 193

Secondly, the nature of the injury must be proved; These are A 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 C purely objective and inferential and has nothing to do with the intention of the offender."

The leaned Judge explained the third ingredient in the following words (at page 468):

"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, E 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 F 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 come locus classicus. The test laid down by Virsa Singh 's case (supra) for the applicability of clause G "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 !PC, 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 H

A 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 the injury that was intendea to be inflicted.

Thus, according to the rule laid down in Virsa Singh 's case, eve if the intention of accused was limited to the infliction of a bodily injury sufficient B 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 and Clause ( 4) of Section 300 both require C knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilte 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 D 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 E 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.

F The position was illuminatingly highlighted by this Court in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr., [1976) 4 SCC 382 and recently in Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh, (2002) 7 SCC 175 and in Thangaiya v. State of Tamil Nadu, (2005) 9 sec 650.

G The fai:tual scenario is examined in the background of the legal principles set out above. The conclusion is that the appropriate conviction would be in terms of Section 302 !PC so far as appellant No. I is concerned. The appeals stands dismissed so far as he is concerned. It is the prosecution case that the fatal injuries are attributable to him. He had assaulted the deceased with a knife which was concealed by him. Taking note of the weapon used by the H appellants and the place where injuries were inflicted, appellant No.2 has to

SETTUv. STATEOFTAMILNADU [PASAYAT, l.] 195

be convicted under Section 304 Part I !PC. So far as appellant No.3 is concerned, A he is to be convicted in terms of Section 326 JPC. The conviction of appellant No. 2 in terms of Section 324 !PC is in order. The custodial sentence of I 0 years would meet the ends of justice so far as appellant No.2 is concerned.

For appellant No.3, the custodial sentence would be three years rigorous imprisonment. The sentence awarded by the trial court as affirmed by the B High Court so far as appellant No.2 is concerned in respect of his conviction in terms of Section 324 IPC remains unaltered. The two sentences imposed .. on him shall run concurrently. The appeal is allowed to the aforesaid extent, so far as appellant Nos. 2 and 3 are concerned.

In view of the disposal of the appeal itself, no orders are necessary to C be passed in miscellaneous petitions.

RP.

Appeal dismissed in respect of Appellant No. and partly allowed in respect of Appellant Nos. 2 and 3.