Kandaswamy vs State Of Tamil Nadu

At about 8.30 p.m. on 4.4.1993 the accused

indiscriminately cut the victim-Alagarsamy (hereinafter

referred to as `deceased') resulting in his instantaneous death.

PWs 1 and 2 were examined as eye witnesses to the

occurrence.

Gurvammal is the elder sister of PW 1 and deceased

Alagarsamy is her husband. The accused was known to him.

Guruvammla died leaving behind two children - a girl and a

boy. This made his father (PW 2) to bring Alagarsamy to his

house. At about 8.30 p.m. on the occurrence day, he was

standing opposite to the house of Ramaiah with his son, after

returning from the house of Visalam. PW 2 was also coming

in the street from the shop and he asked as to whether he had

gone to Visalam's house and come back. Alagarsamy alighted

from the bus and PW 2 also asked him as to whether he had

2 gone to Visalam's house. Palpandi (son of accused) also

alighted from the bus and the accused asked him as to why he

has not brought his mother with him for which he had been

sent. Palpandi replied to his father (the accused) that unless

the accused goes mother will not come. Finding fault that he

is repeating the same answer, the accused beat his son.

Alagarsamy asked him as to why he was beating the young

boy for which the accused responded stating that he had no

business to intervene in his family problem and saying so,

removed the Aruval from his person and cut Alagarsamy

which injury landed on his left hand. Alagarsamy fell down

and the accused thereafter indiscriminately cut him. PWs 1

and 2 rushed towards the scene questioning the act of the

accused. Threatening them with dire consequences, the

accused made good his escape. Alagarsamy was lying dead.

PW-1 went to the police station and gave the complaint

namely Ex.P-1. He identified MO 1 as the weapon of offence

and MOs. 2 to 4 as the personal wearing apparels of the

deceased.

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4. The appellant questioning the correctness of the

judgment and conviction and sentence as imposed by the Trial

Court under Section 302 IPC and sentenced to undergo for life

imprisonment.

5. The only stand before the High Court was that the

scenario as projected by the prosecution clearly rules out the

application of Section 302 IPC. The High Court did not find

any substance in the plea.

6. In support of the appeal, learned counsel for the

appellant reiterated the stand before the High Court and

submitted that even if the prosecution version is accepted in

toto, case under Section 302 IPC is not made out.

7. Learned counsel for the respondent on the other hand

supported the order.

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8. 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

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.

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9. 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

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 6 (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.

10. 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

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

7 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.

11. 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

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.

8 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

"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.

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12. 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.

13. 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

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

10 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.

14. 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.

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.

11 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."

15. 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 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 12 unless the evidence or the circumstances warrant an opposite conclusion."

16. 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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17. Thus, according to the rule laid down in Virsa Singh's

case, 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.

18. 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

14 having been committed by the offender without any excuse for

incurring the risk of causing death or such injury as aforesaid.

19. 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.

20. 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). 15

21. When the factual scenario is considered in the

background of the legal principles set out above, the inevitable

conclusion is that the appropriate conviction would be under

Section 304 Part I IPC. Custodial sentence of 10 years would

meet the end of justice.

22. The appeal is allowed with the aforesaid direction.

...............................

J. (Dr. ARIJIT PASAYAT)

...............................J. (P. SATHASIVAM)

New Delhi, July 17, 2008

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