Budhi Lal vs State Of Uttarakhand

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,

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 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 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

3 his Chauki when he returned back in the evening. The entry

of written information (Ext. A-2) sent 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 prepared the inquest report

(Ext. A-4) and sketch of the dead body (Ext. A-5). He also

prepared a letter of request (Ext. A-6) for the post mortem

examination and sent the dead body for 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 conducted

by Dr. S.K. Srivastava (PW.1) on 12.8.1995 at 4.30 p.m. at

District Headquarter, 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 the ante mortem injuries found on the body of the

deceased. Investigating Officer Kareem Bux (PW.6) thereafter

examined Budhi Lal and his daughter Sushila. The

4 Investigating Officer also interrogated other witnesses. On

completion of the investigation, charge sheet (Ext. A-8) was

filed by Investigating Officer 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 examined to further the prosecution version. Primarily,

relying on the 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 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.

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

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

appellant submitted that presence of PW.3 in the house has

not been established and in any event, in view of the accepted

prosecution 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 stated that PW.3 was sleeping in their house in a

separate room. This witness further stated that her father,

6 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 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 to the crucial question as to which was

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

7 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 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 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

punishments provided for the three grades. Culpable homicide

of this degree is punishable under the second part of Section

304.

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

8 true scope and meaning of the terms used by the legislature in

these sections, allow themselves to be drawn into minute

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

INTENTION

(a) with the intention of causing (1) with the intention of death; or causing death; or

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

9 (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 the act 4) with the knowledge that is 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 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 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

10 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 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.

15. Clause (b) of Section 299 does not postulate any such

knowledge on the part of the offender. Instances of cases

falling under clause (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

11 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 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

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 determines whether a culpable

homicide is of the 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

12 "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 Kerala, (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

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

13 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 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 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 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 is present.

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

14 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 purely objective and inferential and has nothing to do with the intention of the offender."

19. The learned 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, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious 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 of a

15 particular degree of seriousness but whether he intended to inflict 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."

20. These observations of Vivian Bose, J. have become locus

classicus. The test laid down by Virsa Singh's case (supra) for

the applicability of clause "Thirdly" is now ingrained in our

legal system and has become part of the rule of law. Under

clause thirdly of Section 300 IPC, 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 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.

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21. 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.

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 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

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

17 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 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.

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 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). 18

25. Considering the factual scenario and the manner of

assault, 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.

..........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi September 26, 2008

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