[2008]13 S.C.R. 1015

BUDHI LAL A

STATE OF UTTARAKHAND (Criminal Appeal No. 1537 of 2008) -*

SEPTEMBER 26, 2008 B

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM ..

SHARMA, JJ.] t

' Penal Code, 1860:

ss. 302 and 304 (Part I) - Murder - Prosecution case c that accused murdered his wife - Visitor in the house witnessed accused assaulting his wife - Conviction u/s 302 and RI for life by courts below - Justification of - Held: Presence of the

witness in the house established - Accused himself accepted that he was with deceased at the night of occurrence - Also D statement by the daughter of accused that herfather suspected his wife was having illicit relationship with witness- Thus, courts below rightly held accused guilty - However, on facts, conviction altered to one u/s. 304 (Part I) with custodial sentence of

10 years.

ss. 299 and 300 - 'Culpable homicide not amounting to murder' and 'murder' - Distinction between - Explained.

.___.

According to the prosecution case, the appellant was residing with his two wives in the same house. On the F fateful day, PW-3 had gone to the house of the appellant to purchase pair of bullocks and stayed in the house at . night In the intervening night, the appellant murdered his second wife-JD. Next day the appellant told the villagers that his wife died of pain in the stomach. FIR was lodged. G Investigation was carried out. The doctor-PW-1 con-

~ ducted post mortem. He opined that JD died due to suffocation as a result of obstruction in the respiratory passage. In the examination uls. 313 Cr.P.C., accused ac-

1015 H

A cepted that he and the deceased were sleeping together in the night of the incident. Witnesses were examined. PW- 3 stated that at the midnight, he saw the appellant sitting on the chest of JD and assaulting her. When PW-3 asked the appellant as to what he was doing, he told him that he ·- B was telling his wife to behave and that PW-3 should leave the place and sleep in another room. Trial court convicted the appellant u/s 302 IPC and sentenced him to rigorous imprisonment for life. High Court upheld the order. Hence the present appeal. c Partly allowing the appeal, the Court

HELD: 1.1 PW.3 gave enough reason as to why he was prei; ent in the house. Even otherwise, PW.4-daughter of the accused, though, she resiled from the statement

D made during investigation, clearly stated that PW.3 was tsleeping in their house in a separate room. She further s?ted that her father suspected fidelity of the deceased and was under the impression that she was having illicit relationship with PW.3. In the examination u/s. 313 Cr.P.C.

E also the accused had accepted this position. Therefore, the presence of PW.3 has been clearly established by evidence on record. Apart from that, the trial court and the High Court rightly noted that the accused accepted that he was with the deceased in the night of occurrence and

F they were sleeping in the same room. Therefore, the trial court and the High Court were justified in holding the appellant guilty. [Paras 9 and 10) [1020, C-F]

1.2 Considering the factual scenario and the manner of assault, as alleged by the prosecution, the appro-

G priate conviction would be u/s. 304 (Part-I) IPC. Custodial sentence of 10 years would meet the ends of justice. [Para

25) [1026, G]

t-- Rajwant and Anr. v. State of Kera/a AIR 1966 SC 1874; Virsa Singh v. State of Punjab AIR 1958 SC 465; State of H Andhra Pradesh v. Rayavarapu Punnayya and Anr. 1976 (4)

BUDHI LAL v. STATE OF UTTARAKHAND 1017

.,;,

SCC 382; Abdul Waheed Khan @ Waheed and Ors. v. State A of Andhra Pradesh JT 2002 (6) SC 27 4; Augustine Saldanha v . .State of Karnataka 2003 (10) SCC 472; Thangaiya v. State of Tamil Nadu 2005 (9) SCC 650; Sunder Lal v. State of Rajasthan 2007 (10) sec 371 - relied on.

--~ Case Law Reference B

AIR 1966 SC 1874 Relied on.

Para 16

AIR 1958 SC 465 Relied on.

Paras 17,18, 19,20,21

1976 (4) sec 382 Relied on.

Para 24 c

JT 2002 (6) SC 27 4 Relied on.

Para 24

2003 (10) sec 472 Relied on.

Para 24

2005 (9) sec 650 Relied on.

Para 24

--~ 2001 (10) sec 371 Relied on.

Para 24 D

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1537 of 2008

From the Judgment and Order dated 17/12/2007 of the E High Court of Uttarakhand at Nainital in Crl. Appeal No. 169 of 2007

D.N. Goburdhan, Pinky Anand, Ankur Mittal and Abhijat P.

Medh for the Appellant.

' Jatinder Kumar Bhatia for the Respondent.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Heard learned counsel for the parties.

2. Leave granted.

3. Challenge in this appeal is to the judgment of a Division '+ Bench of the Uttarakhand High Court dismissing the appeal filed by the appellant. In the appeal challenge was to the order of conviction recorded by the learned Sessions Judge, Chamoli H

A in Sessions Trial No.8 of 1986 for offence punishable under Section 302 the Indian Penal Code, 1860 (in short 'IPC'). The appellant was sentenced to undergo rigorous imprisonment for life.

4. Prosecution story in brief is that house of Budhi Lal (ap- B pellant) is one kilometer away from village abadi in villageAirash.

Appellant got married firstly to one Sobati Devi, but he had no issue from her. Later, he got married to Jashu Devi (hereinafter referred to as the 'deceased') and from her he had seven children. Out of the seven, eldest daughter Sushila was married.

C Both the ladies used to live with Budhi Lal in aforesaid house.

Jaspal (PW.3) of village Kaphalkhet came to the house of Bud hi

Lal on 9.8.1985, in connection with purchase of a pair of bullocks, belonging to him. The deal was settled at Rs.1200/- and in that night Jaspal stayed in the house of Budhi Lal. After hav- D ing meals the family members and Jaspal slept in the house. In

said intervening night i.e. 9/101h August, 1985, appellant Bud hi Lal at about 2 a.m. committed murder of Jashu Devi. According to the prosecution Jaspal woke up to go to toilet and saw from a window that Budhi Lal sitting on the chest of Jashu Devi, E assaulting her with his hands. On being questioned, why he is doing so, Budhi Lal told him that he was telling his wife to behave. Appellant asked Jaspal being guest he should leave the place and sleep in another room. Next morning, Budhi Lal told the villagers that his wife Jashu Devi has died of pain in her F stomach. He asked Jaspal to go to the houses of his brothers and relations living in village Jilasu and inform them about the death of Jashu Devi. jaspal (PW.3) informed the relatives of Budhi Lal, as told by him about the death of his wife due to pain in her stomach and came back to the village. Meanwhile, Sobati G Devi informed the village Pradhan about the death of Jashu Devi. The village Pradhan came to the spot at 10 a.m. and thereafter got sent the information of death of Jashu Devi to Patwari of the area (in Uttarakhand hills Patwaris are given police powers). The Patti Patwari Sri Kareem Bux (PW.6) received the information on 10.8.1985 at his Chauki when he returned back H

in the evening. The entry of written information (Ext. A-2) sent A through Ashadu Lal was made in the General Diary (copy of which is extract Ext. A-3), by the Investigation Officer Kareem Bux on the next day at 11.30 a.m., Patwari came to the spot and took the dead body in his possession, sealed it and pre-

-~ pared the inquest report (Ext. A-4) and sketch of the dead body B (Ext. A-5). He also prepared a letter of request (Ext. A-6) for the post mortem examination and sent the dead bodyfor autopsy.

Meanwhile, he prepared site plan (Ext. A-9) on same day i.e. ; 11.8.1985. He also recorded the statements of the witnesses of the inquest report. The post mortem examination was conc ducted by Dr. S.K. Srivastava (PW.1) on 12.8.1995 at 4.30 p.m. at District HeasJquarter, Gopeshwar (District Chamoli). The said Medical Officer prepared post mortem examination report (Ext.

A-1). He opined that Jashu Devi had died due to suffocation as

-.+ a result of obstruction in respiratory passage. He also recorded D the ante mortem injuries found on the body of the deceased.

Investigating Officer Kareem Bux (PW.6) thereafter examined Bud hi Lal and his daughter _Sushila. The Investigating Officer also interrogated other witnesses. On completion of the investigation, charge sheet (Ext. A-8) was filed by Investigating Of-

E ficer on 20..11.1985, before the Magistrate concerned.

5. The case was committed by the court of learned Magistrate concerned to the Court of Sessions: Since the appellant pleaded innocence, trial was held. Six witnesses were exam-

>~ ined to further the prosecution version. Primarily, _relying on the F evidence of PW.3, the learned Trial Judge directed conviction of the accused, as aforenoted. The Trial Court, it needs to be pointed out, also referred to the evidence of PW.5 before whom accused gave varying versions as to how the deceased had died. The Trial Court also took note of the fact that the deceased G and the accused were last seen and in the examination under Section 313 of the Code of Criminal Procedure, 1973 (in short 'the Code'), the accused had accepted that he and the deceased were sleeping together in the night of the incident.

6. In appeal before the High Court, the primary stand was H

A that the evidence of PW.3 should not have been relied upon and in any event, a case under Section 302 IPC was not made out. The High Court did not find substance in the plea and dismissed the appeal.

7. In support of the appeal, learned counsel for the appel- 8 lant submitted that presence of PW.3 in the house has not been

established ancl in any event, in view of the accepted prosecu- . tion version, a case under Section 302 IPC is not made out.

8. Learned counsel for the State, on the other hand, supported the judgment.

9. Coming to the evidence of PW.3, it appears that PW.3 has given enough reason as to why he was present in the house.

Even otherwise!, PW.4, the daughter of the accused, though, she resiled from the statement made during investigation, clearly

0 stated that PW.3 was sleeping in their house in a separate room.

This witness further stated that her father, the accused suspected fidelity of the deceased and was under the impression that she was having illicit relationship with PW.3. In the. examination under Section 313 Cr.P.C. also, the accused had accepted this position. Therefore, the presence of PW.3 has been E clearly established by evidence on record. Apart from that, as rightly noted by the Trial Court and the High Court, the accused accepted that he was with the deceased in the night of occurrence and they were sleeping in the same room. _ ,~

10. Therefore, the Trial Court and the High Court were justified in holding the appellant guilty.

11. The residual question is whether Section 302 IPC has application?

12. This brings us fo the crucial question as to which was G the appropriate provision to be applied. In the Scheme of the

IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the H purpose of fixing punishment, proportionate to the gravity of the

generic offence, the IPC practically recognizes three degrees '-A of culpable homicide. The first is, what may be called, 'cufpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murde_r'.

The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section B

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. c

13. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute ab- D . stractions. The safest way of approach to the interpretation and application of. these provisions seems to be to keep in focus the keywo-rds 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

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 - F

INTENTION

(a) with the intention of causing death; or

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

( 1) with the intention of caJJSing death; or

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

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

KNOWLEDGE

(c) with the knowledge that 4) the act is likely to cause death.

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

14. Clause (b) of Section 299 corresponds with clauses

(2) and (3) of Section 300. The distinguishing feature of the E mens rea requisite under clause (2) is the knowledge possessed ·

by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to F cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential re- ~· quirement of clause (2). Only the intention of causin.g the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is suffi- G cient 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.

15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases fall- H ing under clause (2) of Section 300 can be where the assailant

BUDHI LAL v. STATE OF UTTARAKHAND 1023

(DR. ARIJIT PASAYAT, J.]

causes death by a fist blow intentionally given knowing that the A 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 B the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, in-· stead of the words 'likely to cause death' occurring in the correc spending 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 injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, m<i!Y D 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 determines whether a culpable homicide is of the E gravest, medium or the 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.

16. 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. Rajwant and Anr.

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

17. In Virsa Singh v. State of Punjab, (AIR 1958 SC 465), Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution H

A 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 present; secondly the nature of the injury must be proved. These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict B 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 c 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.

18. The ingredients of clause "Thirdly" of Section 300, IPC were brought out by the illustrious Judge in his terse language D as follows:

"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 E is present.

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

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

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

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature.

This part of the enquiry is purely objective and inferentiat and has nothing to do with the intention of the offender."

19. The learned Judge explained the third ingredient in A the following words (at page 468):

"The questio'n is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury ttiat is proved to be present. If he can show that he did not, or ifthe totality of theccircumstances justify 8

such an inference, then of course, the intentthat the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whetti13r he knew of its seriousness or intended serious C consequences, is neither here or there, The question, so far as the intention is concerned, is not whether he intended. to kill, or to inflict an injury_ -0f -a particular degree of . seriousness but whether.he intended to.inflict the injury in question and once the existence of the injury is proved the D intention to cause it will be presumed unless the evidence or the circumstanc_es warrant an opposite conclusion."

 20. These observations of Vivian Bose, J. have become -locus classicus. The test laid down by Virsa Singh's-case (su- . E

 pra) fo.r the applicability of clause "Thirdly'' is now ingrained in our legal system and has become part of the rule of law. Under clause .

thirly of Section 300 IPC, culpable homicide is murder, ff both the following conditions are satisfied: J.e. (a) ttiat 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 f

...Jnjuryintendedto be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be_ inflicted.

21. Thus, according to the cule laid down in Virsa Singh's case (supra), even ifthe intentipn 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 caus- H

A ing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.

22. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to B dilate much on the distinction between these corresponding

clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons - being C 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.

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

24. The position was illuminatingly highlighted by this Court in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976 (4) SCC 382), Abdul Waheed Khan @ Waheed and F Ors. v. State of Andhra Pradesh (JT 2002 (6) SC 274), Augustine Saldanha v. State of Karnataka (2003 (10) SCC 472), Thangaiya v. State of Tamil Nadu (2005 (9) SCC 650) and Sunder Lal v. State of Rajasthan (2007 (10) SCC 371 ).

25. Considering the factual scenario and the manner of as- G sault, as alleged by the prosecution, in our considered view, the appropriate conviction shall be under Section 304 Part-I IPC.

Custodial sentence of 10 years would meet the ends of justice.

26.

The appeal is allowed to the aforesaid extent.

H N.J.

Appeal partly allowed.