ANBAZHAGAN versus THE STATE REPRESENTED BY THE INSPECTOR OF POLICE on 20 July 2023

(1) When the court is confronted with the question, whatoffence the accused could be said to have committed, the trueH

test is to find out the intention or knowledge of the accused indoing the act. If the intention or knowledge was such as isdescribed in Clauses (1) to (4) of Section 300 of the IPC, the actwill be murder even though only a single injury was caused. Toillustrate : ‘A’ is bound hand and foot. ‘B’ comes and placing hisrevolver against the head of ‘A’, shoots ‘A’ in his head killinghim instantaneously. Here, there will be no difficulty in holdingthat the intention of ‘B’ in shooting ‘A’ was to kill him, thoughonly single injury was caused. The case would, therefore, be ofmurder falling within Clause (1) of Section 300 of the IPC. Takinganother instance, ‘B’ sneaks into the bed room of his enemy ‘A’while the latter is asleep on his bed. Taking aim at the left chestof ‘A’, ‘B’ forcibly plunges a sword in the left chest of ‘A’ andruns away. ‘A’ dies shortly thereafter. The injury to ‘A’ was foundto be sufficient in ordinary course of nature to cause death. Theremay be no difficulty in holding that ‘B’ intentionally inflicted theparticular injury found to be caused and that the said injury wasobjectively sufficient in the ordinary course of nature to causedeath. This would bring the act of ‘B’ within Clause (3) of Section300 of the IPC and render him guilty of the offence of murderalthough only single injury was caused.

(2) Even when the intention or knowledge of the accusedmay fall within Clauses (1) to (4) of Section 300 of the IPC, theact of the accused which would otherwise be murder, will be takenout of the purview of murder, if the accused’s case attracts anyone of the five exceptions enumerated in that section. In theevent of the case falling within any of those exceptions, the offencewould be culpable homicide not amounting to murder, falling withinPart 1 of Section 304 of the IPC, if the case of the accused is suchas to fall within Clauses (1) to (3) of Section 300 of the IPC. Itwould be offence under Part II of Section 304 if the case is suchas to fall within Clause (4) of Section 300 of the IPC. Again, theintention or knowledge of the accused may be such that only 2ndor 3rd part of Section 299 of the IPC, may be attracted but notany of the clauses of Section 300 of the IPC. In that situationalso, the offence would be culpable homicide not amounting tomurder under Section 304 of the IPC. It would be an offenceunder Part I of that section, if the case fall within 2nd part of AB

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ASection 299, while it would be an offence under Part II of Section304 if the case fall within 3rd part of Section 299 of the IPC.

(3) To put it in other words, if the act of an accused personfalls within the first two clauses of cases of culpable homicide asdescribed in Section 299 of the IPC it is punishable under theBfirst part of Section 304. If, however, it falls within the third clause,it is punishable under the second part of Section 304. In effect,therefore, the first part of this section would apply when there is‘guilty intention,’ whereas the second part would apply when thereis no such intention, but there is ‘guilty knowledge’.

(4) Even if single injury is inflicted, if that particular injurywas intended, and objectively that injury was sufficient in theordinary course of nature to cause death, the requirements ofClause 3rdly to Section 300 of the IPC, are fulfilled and the offencewould be murder.

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D(5) Section 304 of the IPC will apply to the following classesof cases: (i) when the case falls under one or the other of theclauses of Section 300, but it is covered by one of the exceptionsto that Section, (ii) when the injury caused is not of the higherdegree of likelihood which is covered by the expression ‘sufficientin the ordinary course of nature to cause death’ but is of a lowerEdegree of likelihood which is generally spoken of as an injury‘likely to cause death’ and the case does not fall under Clause (2)of Section 300 of the IPC, (iii) when the act is done with theknowledge that death is likely to ensue but without intention tocause death or an injury likely to cause death.F

(6) The word ‘likely’ means probably and it is distinguishedfrom more ‘possibly’. When chances of happening are even orgreater than its not happening, we may say that the thing will‘probably happen’. In reaching the conclusion, the court has toplace itself in the situation of the accused and then judge whetherGthe accused had the knowledge that by the act he was likely tocause death.

(7) The distinction between culpable homicide (Section 299of the IPC) and murder (Section 300 of the IPC) has always to becarefully borne in mind while dealing with a charge under Section302 of the IPC. Under the category of unlawful homicides, both,H

the cases of culpable homicide amounting to murder and thosenot amounting to murder would fall. Culpable homicide is notmurder when the case is brought within the five exceptions toSection 300 of the IPC. But, even though none of the said fiveexceptions are pleaded or prima facie established on the evidenceon record, the prosecution must still be required under the lawto bring the case under any of the four clauses of Section 300 ofthe IPC to sustain the charge of murder. If the prosecution failsto discharge this onus in establishing any one of the four clausesof Section 300 of the IPC, namely, 1stly to 4thly, the charge ofmurder would not be made out and the case may be one of culpablehomicide not amounting to murder as described under Section299 of the IPC.

(8) The court must address itself to the question of mensrea. If Clause thirdly of Section 300 is to be applied, the assailantmust intend the particular injury inflicted on the deceased. Thisingredient could rarely be proved by direct evidence. Inevitably,it is a matter of inference to be drawn from the provedcircumstances of the case. The court must necessarily have regardto the nature of the weapon used, part of the body injured, extentof the injury, degree of force used in causing the injury, the mannerof attack, the circumstances preceding and attendant on theattack.

(9) Intention to kill is not the only intention that makes aculpable homicide a murder. The intention to cause injury orinjuries sufficient in the ordinary cause of nature to cause deathalso makes a culpable homicide a murder if death has actuallybeen caused and intention to cause such injury or injuries is tobe inferred from the act or acts resulting in the injury or injuries.

(10) When single injury inflicted by the accused results inthe death of the victim, no inference, as a general principle, canbe drawn that the accused did not have the intention to cause thedeath or that particular injury which resulted in the death of thevictim. Whether an accused had the required guilty intention ornot, is a question of fact which has to be determined on the factsof each case.

(11) Where the prosecution proves that the accused hadthe intention to cause death of any person or to cause bodily A

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Ainjury to him and the intended injury is sufficient in the ordinarycourse of nature to cause death, then, even if he inflicts a singleinjury which results in the death of the victim, the offence squarelyfalls under Clause thirdly of Section 300 of the IPC unless one ofthe exceptions applies.

B(12) In determining the question, whether an accused hadguilty intention or guilty knowledge in a case where only a singleinjury is inflicted by him and that injury is sufficient in the ordinarycourse of nature to cause death, the fact that the act is donewithout premeditation in a sudden fight or quarrel, or that thecircumstances justify that the injury was accidental orCunintentional, or that he only intended a simple injury, would leadto the inference of guilty knowledge, and the offence wouldbe one under Section 304 Part II of the IPC. [Para 60][1127-H;1128-A-H; 1129-A-H; 1130-A-H; 1131-A-D]

2. Looking at the overall evidence on record, it is difficultDto come to the conclusion that when the appellant struck thedeceased with the weapon of offence, he intended to cause suchbodily injury as was sufficient in the ordinary course of nature tocause death. The weapon of offence in the present case is acommon agriculture tool. If a man is hit with a weed axe on theEhead with sufficient force, it is bound to cause, as here, death. Itis true that the injuries shown in the post mortem report arefracture of the parietal bone as well as the temporal bone. Thedeceased died on account of the cerebral compression i.e. internalhead injuries. However, the moot question is – whether that byitself is sufficient to draw an inference that the appellant intendedFto cause such bodily injury as was sufficient to cause death. ThisCourt is of the view that the appellant could only be attributedwith the knowledge that it was likely to cause an injury which waslikely to cause the death. It is in such circumstances that thisCourt inclined to take the view that the case on hand doesGnot fall within clause thirdly of Section 300 of the IPC.[Para 62][1131-G-H; 1132-A-B]

Tholan v. State of Tamil Nadu AIR 1984 SC 759: [1984]2 SCC 133; Chamru, Son of Budhwa v. State of MadhyaPradesh AIR 1954 SC 652; Willie (William) Slaney v.HThe State of Madhya Pradesh AIR 1956 SC 116: [1955]

SCR 1140; Kulwant Rai v. State of Punjab, (1981) 4SCC 245; Jagtar Singh v. State of Punjab (1983) 2 SCC342; Hem Raj v. State (Delhi Admn.) (1990) Supp SCC291; Pulicherla Nagaraju v. State of A.P. (2006) 11 SCC444 : [2006] 4 Suppl. SCR 633 – relied on.

Basdev v. State of Pepsu AIR 1956 SC 488 : [1956]SCR 363; State of Andhra Pradesh v. RayavarapuPunnayya (1976) 4 SCC 382 : [1977] 1 SCR 601; VirsaSingh v. State of Punjab AIR 1958 SC 465 : [1958]SCR 1495; Jagrup Singh v. State of Haryana (1981) 3SCC 616 : [1981] 3 SCR 839; Jawahar Lal v. State ofPunjab (1983) 4 SCC 159; Camilo Vaz v. State of Goa[(2000) 9 SCC 1 : [2000] 2 SCR 1088; Jai Prakash v.State (Delhi Admin.) (1991) 2 SCC 32 : [1991] 1 SCR202; Anda v. State of Rajasthan AIR 1966 SC 148;State of A.P. v. Rayavarapu Punnayya (1976) 4 SCC382 : [1977] 1 SCR 601; Smt. Mathri v. State of PunjabAIR 1964 SC 986 : [1964] SCR 916; Phulia Tudu v.State of Bihar (2007) 14 SCC 588 : [2007] 9 SCR 997;Rajwant Singh v. State of Kerala AIR 1966 SC 1874 :[1966] Suppl. SCR 230; Vineet Kumar Chauhan v. Stateof U.P. (2007) 14 SCC 660 : [2007] 13 SCR 727 –referred to.

Bhagwant v. Kedari I.L.R. 25 Bombay 202; In reKudumula Mahanandi Reddi AIR 1960 AP 141;Emperor v. Sardarkhan Jaridkhan AIR 1916 Bom 191– referred to.

Reg. v. Monkhouse (1849) 4 COX CC 55 – referredto.

Outlines of Criminal Law, Seventeenth Edition at page31; Russell on Crime, Twelfth Edition, 1st Volume atpage 41 – referred to.

Case Law Reference

[1964] SCR 916[1956] SCR 363[1977] 1 SCR 601

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From the Judgment and Order dated 04.04.2019 of the High CourtFof Judicature at Madras in CRLA No. 193 of 2019.

S. Nagamuthu, Sr. Adv., M. P. Parthiban, Ms. PriyaranjaniNagamuthu, R. Sudhakaran, Ms. Shalini Mishra, G. R. Vikash, BilalMansoor, T. Hari Haran Sudhan, Advs. for the Appellant.

Dr. Joseph Aristotle S., Ms. Vaidehi Rastogi, Advs. for theGRespondent.

The Judgment of the Court was delivered by

J. B. PARDIWALA, J. :

1. Leave granted.

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2. This appeal is at the instance of a convict accused and is directedagainst the judgment and order passed by the High Court of Judicatureat Madras dated 04.04.2019 in Criminal Appeal No. 193 of 2019 bywhich the High Court dismissed the appeal filed by the appellant hereinthereby affirming the judgment and order of conviction and sentencepassed by the Additional Sessions Judge, Namakkal in Sessions CaseNo. 41 of 2017.

3. It appears from the materials on record that the appellant hereinand his father were put on trial in the Court of the Additional SessionsJudge, Namakkal in Sessions Case No. 41 of 2017 for the offencepunishable under Section 302 read with Section 34 of the Indian PenalCode (for short, ‘IPC’). The Trial Court held the appellant herein guiltyfor the offence of culpable homicide not amounting to murder punishableunder Section 304 Part I of the IPC and sentenced him to undergo rigorousimprisonment for a period of 10 years with a fine of Rs. 10,000/- and indefault of payment of the amount of fine, further rigorous imprisonmentof one year. The co-accused i.e. father of the appellant herein came tobe acquitted by the Trial Court.

4. The appellant herein being dissatisfied with the judgment andorder of conviction and sentence passed by the Trial Court went in appealbefore the High Court. The High Court dismissed the appeal affirmingthe conviction of the appellant herein for the offence punishable underSection 304 Part I of the IPC.

5. At the outset, Mr. S. Nagamuthu, the learned senior counselappearing for the appellant herein, submitted that he is not pressing thisappeal on merits. He submitted that his only endeavour is to persuadethis Court to alter the conviction of the appellant from the offencepunishable under Section 304 Part I of the IPC to Section 304 Part II ofthe IPC and reduce the sentence accordingly.

FACTUAL MATRIX

6. It appears from the evidence on record that the appellant is anagriculturist. He owns agriculture land in a village by nameSirukinathupalayam situated in Tamil Nadu. The deceased namelyBalasubramaniam was also an agriculturist and had his own agricultureland adjacent to the agriculture land of the appellant herein. There wasa pathway leading to the agriculture land of the appellant over which thedeceased had some issues. At the time of the incident, the appellant had A

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Acultivated Cassava plants (Tapoica) which was ready for harvesting.On 25.10.2015 at around 7 am, the appellant and his father were harvestingthe crop and had also arranged for a lorry for transporting the samefrom their field. At around 11 am, the deceased came at the place of theincident and threatened the driver of the lorry saying he should not drivehis lorry through the pathway leading to the agriculture field of theBappellant. At that point of time, the appellant and his father were in theirfield. The appellant is said to have asked the driver of the lorry to movethe lorry to his field to load the crop. This was questioned by the deceasedwhich resulted in a quarrel. It is the case of the prosecution that afterverbal altercation between the appellant and the deceased for quite someCtime, the appellant is alleged to have picked up a “Hoe” (Kalaikottu – inTamil, a gardening tool with a small metal blade attached with a woodenhandle used mainly for weeding) & inflicted a single blow on the head ofthe deceased as a result of which the deceased fell unconscious andlater died in the hospital.

7. The FIR was lodged on 25.10.2015 at 19.30 Hrs. On completionof the investigation, police filed charge sheet for the offence of murder.The case was committed to the Court of Sessions as the offence wasexclusively triable by the Sessions Court. The Additional Sessions Judge,Namakkal vide order dated 06.09.2017 framed the following charge:- D

E “Whereas the deceased Balasubramaniam has been livingwith his wife Baby and family members at Sevalkattu Moolainear Government High School in Pandamangalam; that theAl is the son of A2; that both the accused were living inPoosaripalayam; in Sirukinatrypalayan: both the accused andthe deceased Balasubramaniarn had their agricultural landsFadjacent to each other’s lands; that there was a pathwaybetween both these lands and that there has been a priorenmity for a longtime regarding the ownership of that pathwaybetween both parties. On 25.10.2015 at 07.30 hrs Al and A2were loading tapioca cultivated and harvested in their landsGon to a lorry owned by one Mr. Palanival, having theregistration number TN 33 AF 3114 by parking that lorry onthe disputed pathway. At that time the deceasedBalasubramaniam came there and told them that the lorrycould not be led in and blocked it. Then A2 yelled at thedeceased Balasubramaniam saying “You do not have a H

pathway here. You may bring anyone you want” and then Aland A2 pushed the deceased Balasubramaniam down andwith an intention to murder him Al had hit the head of thedeceased Balasubramaniam with a “weed removing axe”(Kalaikothi) while A2 was pelting stones at him whereby thedeceased Balasubramaniam sustained grievous injuries onhis head. Balasubramaniam was immediately carried to theGovernment Hospital in Velur, then taken to GovernmentHospital in Namakkal where he did not respond to treatmentand was declared dead at 05.20 pm. Therefore you the accusedhave committed an offense punishable under 302 IPC andwhich can be tried by this court.

I hereby issue an order that both of you Al and A2 shouldbe tried by this court for the commission of the above offense.”

8. The appellant and the co-accused (father of the appellant)pleaded not guilty to the aforesaid charge and claimed to be tried. Itappears that the prosecution examined many witnesses. However, PW8 – Chidambaram and PW 9 – Jeeva are the main witnesses being theeye witnesses to the occurrence. Both the eye witnesses have deposedthat on the date of the incident the appellant herein and the deceasedpicked up verbal altercation in regard to the pathway and the appellant issaid to have inflicted one blow with the weapon of offence as enumeratedabove on the head of the deceased leading to his death.

ORAL EVIDENCE

9. PW-8 namely Chidambaram in his examination in chief hasdeposed as under:-

“I am now residing in Indira Nagar, Thaathaiyangar Patti. Iam working as Lorry Driver. I know the present accused.About 3 years back I took my lorry to Anbazhagan’s field inPoosari Palayam for transporting harvest of tapioca.Subramani, Veerasamy, Raja Manikkam and Jeevaaccompanied me. While Subramani, Veerasamy, RajaManikkam and Jeeva were harvesting the tubers of tapiocathe person belonging to the adjacent field told us that thelorry should not move any further since he the accused havea dispute regarding the pathway in which the lorry was on. Iclimbed into my lorry. At that time the accused Anbazhagan AB

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Awas plucking tapioca in his field. He then asked me to bringthe lorry near his field. I told him about what the neighbortold me. But as I took my lorry ahead a verbal fight broke outbetween Anbazhagan and the neighbor. Then A2 came to thatplace. She was yelling too. With the axe M.O.1 in his righthand, A1 Anbazhagan hit the neighbor on his head. TheBneighbor suffered injuries on his mouth.”

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10. PW-9 namely Jeeva in his examination in chief has deposedas under:- “I am now residing in Indira Nagar, Thaathaiyangar Patti. II am a coolie. I know the accused present here. I went topluck tapioca tubers in the garden of the accused Anbazhaganalong with Chidambaram, Subramani, Veerasamy, RajaManikkam between 07.30 & 08.00 am on 25.10.2015 atPoosari Palayam. We went inside the field with Anbazhaganto gather the tubers. When we were clearing the plants aftergathering the tubers Chidambaram drove the lorry inside thefield. Immediately the deceased Balasubramaniam cameinside. He was shouting at the driver and asked him as towho gave him the authority to enter inside. He told this toAnbazhagan. The deceased Balasubramaniam was standingon the road. Both the accused present there were gatheringtapioca. Incidentally the accused and the deceased startedgetting into a verbal quarrel. We are securing the pluckedtubers. The fight became bigger. Hearing the louder soundwe all came over to the road where the verbal fight was goingon. At that time the accused hit the deceased at his head withthe wedding axe causing injury. He fell down immediately.”

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11. PW-18 Dr. Anbumalar in her examination in chief has state asunder:- “I am currently working as a Senior Doctor in NamakkalGovernment District Head Hospital. On 26.10.2015, while Iwas on duty then the body of one Balasubramaniam (57 yearsold) was brought by one Arunagiri, Head constable for post-mortem examination with permission letter and accordinglyon 26.10.2015 at 2.15 PM, the post- mortem was performed.The details of the post- mortem examination are as follows –

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External injuries respectively,

There was bleeding from the ear and nose, above the left eyebrow 3×2 cm cut injury. A cut injury measuring 4 × 2 cm wasfound on the left forehead. The front skull bone was fracturedon both sides (Both parietal bone).

Internal Inspection Details-

The skull bone was broken and the inner lining was torn.Left Side Temporal Bone 7.5 cm. was broken. There was ablood clot at the base of the skull. The inside of the sproutwas red. Navicular bone was correct. Left ribs 3 and 4 werefractured.”

12. The Trial Court, upon appreciation of the oral and documentaryevidence on record and more particularly having regard to the genesisof the occurrence; the manner of assault and the nature of the weapon,took the view that the case was not one of murder punishable underSection 302 of the IPC but could be said one of culpable homicide notamounting to murder punishable under Section 304 Part I of the IPC andaccordingly sentenced the appellant herein.

13. The High Court also came to the conclusion that the TrialCourt was right in holding the appellant herein guilty of the offencepunishable under Section 304 Part I of the IPC.

14. In such circumstances referred to above, the appellant is herebefore this Court with the present appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANT

15. Mr. S. Nagamuthu, the learned senior counsel appearing forthe appellant herein submitted that considering the manner in which theincident had occurred and the role attributed to the appellant, the convictiondeserves to be altered from Section 304 Part I of the IPC to one underSection 304 Part II of the IPC. According to the learned senior counsel,the case does not fall within clause thirdly of Section 300 of the IPC. Allthat can be attributed to the appellant is ‘knowledge’ and ‘not intention’.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

STATE

16. Dr. Joseph Aristotle S., the learned counsel appearing for therespondent State on the other hand, submitted that the Trial Court as A

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Awell as the High Court rightly held the appellant herein guilty of theoffence punishable under Section 304 Part I of the IPC. According tothe learned counsel, the case is not one falling within the ambit of Section304 Part II of the IPC. He would submit that the case falls within clausethirdly of Section 300 of the IPC. He submitted that exception 4 toSection 300 of the IPC is attracted and therefore, the courts rightlyBconvicted the appellant for the offence punishable under Section 304Part I of the IPC.

ANALYSIS

17. Having heard the learned counsel appearing for the partiesCand having gone through the materials on record, the only question thatfalls for our consideration is whether the conviction of the appellantherein for the offence punishable under Section 304 Part I of the IPCshould be further altered to Section 304 Part II of the IPC.

18. We have given more than a fair idea as regards the genesis ofDthe occurrence and the role attributed to the appellant herein. Dr.Karthikeyan (PW-15) was examined by the prosecution in his capacityas the Medical Officer who performed the post mortem of the deceased.In the post mortem report, the doctor has noted three injuries, (i) cutinjury over 4 x 2 cm on the left eye, (ii) cut injury 4 x 3 cm on the leftforehead, and (iii) 4 x 2 cm contusion around the left eye. The cause ofEdeath assigned in the post mortem report appears to be shock andhaemorrhage due to head injury.

19. As the only argument canvassed before us is that the casedoes not travel beyond culpable homicide as the same falls within thethird part of Section 299 of the IPC, the accused could only be said toFhave knowledge that he is likely by his act to cause death and not theintention to kill the deceased, we must explain the fine distinction betweenthe terms ‘intent’ and ‘knowledge’.

INTENT AND KNOWLEDGE :-

20. The word “intent” is derived from the word archery or aim.GThe “act” attempted to must be with “intention” of killing a man.

21. Intention, which is a state of mind, can never be preciselyproved by direct evidence as a fact; it can only be deduced or inferredfrom other facts which are proved. The intention may be proved by resgestae, by acts or events previous or subsequent to the incident orH

occurrence, on admission. Intention of a person cannot be proved bydirect evidence but is to be deduced from the facts and circumstancesof a case. There are various relevant circumstances from which theintention can be gathered. Some relevant considerations are the following:-

1. The nature of the weapon used.

2. The place where the injuries were inflicted.

3. The nature of the injuries caused.

4. The opportunity available which the accused gets.

22. In the case of Smt. Mathri v. State of Punjab, AIR 1964 SC986, at page 990, Das Gupta J. has explained the concept of the word‘intent’. The relevant observations are made by referring to theobservations made by Batty J. in the decision Bhagwant v. Kedari,I.L.R. 25 Bombay 202. They are as under:- “The word “intent” by its etymology, seems to havemetaphorical allusion to archery, and implies “aim” and thus-connotes not a casual or merely possible resultforeseenperhaps as a not improbable incident, but not desired-but-rather connotes the one object for which the effort is madeand thus has reference to what has been called the dominantmotive, without which, the action would not have been taken.”

23. In the case of Basdev v. State of Pepsu, AIR 1956 SC 488,at page 490, the following observations have been made byChadrasekhara Aiyar J.:- “6. ...Of course, we have to distinguish between motive,intention and knowledge. Motive is something which promptsa man to form an intention and knowledge is an awarenessof the consequences of the act. In many cases intention andknowledge merge into each other and mean the same thingmore or less and intention can be presumed from knowledge.The demarcating line between knowledge and intention is nodoubt thin but it is not difficult to perceive that they connotedifferent things. Even in some English decisions, the threeideas are used interchangeably and this had led to a certainamount of confusion.”

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A24. In para 9 of the judgment, at page 490, the observations madeby Coleridge J. in Reg. v. Monkhouse, (1849) 4 COX CC 55(C), havebeen referred to. They can be referred to, with advantage at this stage,as they are very illuminating:- “The inquiry as to intent is far less simple than that as toBwhether an act has been committed, because you cannot lookinto a man’s mind to see what was passing there at any giventime. What he intends can only be judged of by what he doesor says, and if he says nothing, then his act alone must guideyou to your decision. It is a general rule in criminal law, andone founded on common sense, that juries are to presume aCman to do what is the natural consequence of his act. Theconsequence is sometimes so apparent as to leave no doubtof the intention. A man could not put a pistol which he knewto be loaded to another’s head, and fire it off, withoutintending to kill him; but even there the state of mind of theDparty is most material to be considered. For instance, if suchan act were done by a born idiot, the intent to kill could notbe inferred from the act. So if the defendant is proved to havebeen intoxicated, the question becomes a more subtle one;but it is of the same kind, namely; was he rendered byEintoxication entirely incapable of forming the intentcharged?” (Emphasis supplied)

25. Bearing in mind the test suggested in the aforesaid decisionand also bearing in mind that our legislature has used two differentFterminologies ‘intent’ and ‘knowledge’ and separate punishments areprovided for an act committed with an intent to cause bodily injury whichis likely to cause death and for an act committed with a knowledge thathis act is likely to cause death without intent to cause such bodily injuryas is likely to cause death, it would be proper to hold that ‘intent’ andG‘knowledge’ cannot be equated with each other. They connote differentthings. Sometimes, if the consequence is so apparent, it may happen thatfrom the knowledge, intent may be presumed. But it will not mean that‘intent’ and ‘knowledge’ are the same. ‘Knowledge’ will be only one ofthe circumstances to be taken into consideration while determining orinferring the requisite intent.H

26. In the case In re Kudumula Mahanandi Reddi, AIR 1960AP 141, also the distinction between ‘knowledge’ and ‘intention’ is aptlyexplained. It is as under:- “Knowledge and intention must not be confused.

17. … Every person is presumed to intend the natural andprobable consequences of his act until the contrary isproved. It is therefore necessary in order to arrive at adecision, as to an offender’s intention to inquire what the- natural and probable consequences of his acts wouldbe. Once there is evidence that a deceased person,sustained injuries which were sufficient in the ordinarycourse of nature to cause death, the person who inflictedthem could be presumed to have intended those naturaland probable consequences. His offence would fall underthe third head of sec. 300, I.P.C.

18. … A man’s intention has to be inferred from what hedoes. But there are cases in which death is caused and theintention which can safely be imputed to the offender isless grave. The degree of guilt depends upon intention andthe intention to be inferred must be gathered from the factsproved. Sometimes an act is committed which would not inan ordinary case inflict injury sufficient in the ordinary-course of nature to cause death, but which the offenderknows is likely to cause the death. Proof of such knowledgethrows light upon his intention.

19. …Under sec. 299 there need be no proof of knowledge,that the bodily injury intended was likely to cause death.Before deciding that a case of culpable homicide amountsto murder, there must be proof of intention sufficient tobring it under Sec.300. Where the injury deliberatelyinflicted is more than merely ‘likely to cause death’ butsufficient in the ordinary course of nature to cause death,the higher degree of guilt is presumed.” (Emphasis supplied)

It has been further observed therein as under:- “26. …Where the evidence does not disclose that there wasany intention, to cause death of the deceased but it wasclear that the accused had the knowledge that their acts A

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1108SUPREME COURT REPORTS

Awere likely to cause death the accused can be held guiltyunder the second part of sec. 304, I.P.C. The contentionthat in order to bring the case under the second part ofsec. 304, I.P.C. it must be brought within one of theexceptions to sec 300, I.P.C. is not acceptable.” (Emphasissupplied)

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27. Thus, while defining the offence of culpable homicide andmurder, the framers of the IPC laid down that the requisite intention orknowledge must be imputed to the accused when he committed the actwhich caused the death in order to hold him guilty for the offence ofculpable homicide or murder as the case may be. The framers of theCIPC designedly used the two words ‘intention’ and ‘knowledge’, and itmust be taken that the framers intended to draw a distinction betweenthese two expressions. The knowledge of the consequences which mayresult in the doing of an act is not the same thing as the intention thatsuch consequences should ensue. Except in cases where mens rea isDnot required in order to prove that a person had certain knowledge, he“must have been aware that certain specified harmful consequenceswould or could follow.” (Russell on Crime, Twelfth Edition, Volume 1at page 40).

28. This awareness is termed as knowledge. But the knowledgeEthat specified consequences would result or could result by doing an actis not the same thing as the intention that such consequences shouldensue. If an act is done by a man with the knowledge that certainconsequences may follow or will follow, it does not necessarily meanthat he intended such consequences and acted with such intention.Intention requires something more than a mere foresight of theFconsequences. It requires a purposeful doing of a thing to achieve aparticular end. This we may make it clear by referring to two passagesfrom leading text-books on the subject. Kenny in his Outlines of CriminalLaw, Seventeenth Edition at page 31 has observed:- “To intend is to have in mind a fixed purpose to reach a desiredGobjective; the noun ‘intention’ in the present connexion isused to denote the state of mind of a man who not only foreseesbut also desires the possible consequences of his conduct……..It will be noted that there cannot be intention unless there isalso foresight, since a man must decide to his own satisfaction,Hand accordingly must foresee, that to which his express purpose is directed……… Again, a man cannot intend to do a”thing unless he desires to do it.

29. Russell on Crime, Twelfth Edition, 1st Volume at page 41has observed:- “In the present analysis of the mental element in crime theword “intention” is used to denote the mental attitude of aman who has resolved to bring about a certain result if hecan possibly do so. He shapes his line of conduct so as toachieve a particular end at which he aims………… Differingfrom intention, yet closely resembling it, there are two otherattitudes of mind, either of which is sufficient to attract legalsanctions for harm resulting from action taken in obedienceto its stimulus, but both of which can be denoted by the word“recklessness”. In each of these the man adopts a line ofconduct with the intention of thereby attaining an end whichhe does desire, but at the same time realises that this conductmay also produce another result which he does not desire. Inthis case he acts with full knowledge that he is taking thechance that this secondary result will follow. Here, again, ifthis secondary result is one forbidden by law, then he will becriminally responsible for it if it occurs. His precise mental-attitude will be one of two kinds(a) he would prefer that theharmful result should not occur, or (b) he is indifferent as to”whether it does or does not occur. (Emphasis supplied)

30. The phraseology of Sections 299 and 300 respectively of theIPC leaves no manner of doubt that under these Sections when it is saidthat a particular act in order to be punishable be done with such intention,the requisite intention must be proved by the prosecution. It must beproved that the accused aimed or desired that his act should lead to suchand such consequences. For example, when under Section 299 it is said“whoever causes death by doing an act with the intention of causingdeath” it must be proved that the accused by doing the act, intended tobring about the particular consequence, that is, causing of death. Similarly,when it is said that “whoever causes death by doing an act with theintention of causing such bodily injury as is likely to cause death” it mustbe proved that the accused had the aim of causing such bodily injury aswas likely to cause death.

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A31. Thus, in order that the requirements of law with regard tointention may be satisfied for holding an offence of culpable homicideproved, it is necessary that any of the two specific intentions must beproved. But, even when such intention is not proved, the offence will beculpable homicide if the doer of the act causes the death with theknowledge that he is likely by his such act to cause death, that is, withBthe knowledge that the result of his doing his act may be such as mayresult in death.

32. The important question which has engaged our careful attentionin this case is, whether on the facts and in the circumstances of the casewe should maintain the conviction of the appellant herein for the offenceCunder Section 304 Part I or we should further alter it to Section 304 PartII of the IPC?

SECTIONS 299 AND 300 OF THE IPC:-

33. Sections 299 and 300 of the IPC deal with the definition ofD‘culpable homicide’ and ‘murder’, respectively. In terms of Section 299,‘culpable homicide’ is described as an act of causing death (i) with theintention of causing death or (ii) with the intention of causing such bodilyinjury as is likely to cause death, or (iii) with the knowledge that such anact is likely to cause death. As is clear from a reading of this provision,the former part of it emphasises on the expression ‘intention’ while theElatter upon ‘knowledge’. Both these are positive mental attitudes, however,of different degrees. The mental element in ‘culpable homicide’, that is,the mental attitude towards the consequences of conduct is one ofintention and knowledge. Once an offence is caused in any of the threestated manners noted-above, it would be ‘culpable homicide’. SectionF300 of the IPC, however, deals with ‘murder’, although there is no cleardefinition of ‘murder’ in Section 300 of the IPC. As has been repeatedlyheld by this Court, ‘culpable homicide’ is the genus and ‘murder’ is itsspecies and all ‘murders’ are ‘culpable homicides’ but all ‘culpablehomicides’ are not ‘murders’. (see Rampal Singh v. State of U.P., (2012)8 SCC 289)G

34. In the case of State of Andhra Pradesh v. RayavarapuPunnayya, (1976) 4 SCC 382, this Court, while clarifying the distinctionbetween these two terms and their consequences, held as under:- “12. In the scheme of the Penal Code, ‘culpable homicide’is genus and ‘murder’ is species. All ‘murder’ is ‘culpableH

’‘homicide but not vice-versa. Speaking generally, culpablehomicide not amounting to murder’. For the purpose of fixingpunishment, proportionate to the gravity of this genericoffence, the Code practically recognises three degrees ofculpable homicide. The first is what may be called ‘culpablehomicide of the first degree’. This is the greatest form ofculpable homicide, which is defined in Section 300 as‘murder’. The second may be termed as ‘culpable homicideof the second degree’. This is punishable under the firstpart of Section 304. Then, there is ‘culpable homicide ofthe third degree’. This is the lowest type of culpable homicideand the punishment provided for it is, also, the lowest amongthe punishments provided for the three grades. Culpablehomicide of this degree is punishable under the second partof Section 304.”

35. Section 300 of the IPC proceeds with reference to Section299 of the IPC. ‘Culpable homicide’ may or may not amount to ‘murder’,in terms of Section 300 of the IPC. When a ‘culpable homicide is murder’,the punitive consequences shall follow in terms of Section 302 of theIPC, while in other cases, that is, where an offence is ‘culpable homicidenot amounting to murder’, punishment would be dealt with under Section304 of the IPC. Various judgments of this Court have dealt with thecases which fall in various classes of firstly, secondly, thirdly and fourthly,respectively, stated under Section 300 of the IPC. It would not benecessary for us to deal with that aspect of the case in any furtherdetail.

36. The principles stated in the case of Virsa Singh v. State ofPunjab, AIR 1958 SC 465, are the broad guidelines for the courts toexercise their judicial discretion while considering the cases to determineas to which particular clause of Section 300 of the IPC they fall in. ThisCourt has time and again deliberated upon the crucial question ofdistinction between Sections 299 and 300 of the IPC, i.e. ‘culpablehomicide’ and ‘murder’ respectively. In Phulia Tudu v. State ofBihar, (2007) 14 SCC 588, this Court noticed that confusion may ariseif the courts would lose sight of the true scope and meaning of the termsused by the legislature in these sections. This Court observed that the A

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Asafest way of approach to the interpretation and application of theseprovisions seems to be to keep in focus the keywords used in the variousclauses of these sections.

37. This Court in Phulia Tudu (supra) has observed that theacademic distinction between ‘murder’ and ‘culpable homicide notBamounting to murder’ has always vexed the courts. The confusion iscaused if courts losing sight of the true scope and meaning of the termsused by the legislature in these sections, allow themselves to be drawninto minute abstractions. The safest way of approach to the interpretationand application of these provisions seems to be to keep in focus thekeywords used in the various clauses of Sections 299 and 300 of theCIPC. The following comparative table will be helpful in appreciating thepoints of distinction between the two offences:- H

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38. Clause (b) of Section 299 of the IPC corresponds with clauses(2) and (3) of Section 300 of the IPC. The distinguishing feature ofthe mens rea requisite under clause (2) is the knowledge possessed bythe offender regarding the particular victim being in such a peculiarcondition or state of health that the internal harm caused to him is likelyto be fatal, notwithstanding the fact that such harm would not in theordinary way of nature be sufficient to cause death of a person in normalhealth or condition. It is noteworthy that the ‘intention to cause death’ isnot an essential requirement of clause (2). Only the intention of causingthe bodily injury coupled with the offender’s knowledge of the likelihoodof such injury causing the death of the particular victim, is sufficient tobring the killing within the ambit of this clause. This clause (2) is borneout by illustration (b) appended to Section 300 of the IPC.

39. Clause (b) of Section 299 of the IPC does not postulate anysuch knowledge on the part of the offender. Instances of cases fallingunder clause (2) of Section 300 of the IPC can be where the assailantcauses death by a fist blow intentionally given knowing that the victim issuffering from an enlarged liver, or enlarged spleen or diseased heartand such blow is likely to cause death of that particular person as aresult; of the rupture of the liver, or spleen or the failure of the heart, asthe case may be. If the assailant had no such knowledge about thedisease or special frailty of the victim, nor an intention to cause death orbodily 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 of the IPC, insteadof the words “likely to cause death” occurring in the corresponding clause(b) of Section 299 of the IPC, the words “sufficient in the ordinary courseof nature” have been used. Obviously, the distinction lies between abodily injury likely to cause death and a bodily injury sufficient in theordinary course of nature to cause death. The distinction is fine but realand if overlooked, may result in miscarriage of justice. The differencebetween clause (b) of Section 299 of the IPC and clause (3) of Section300 of the IPC is one of the degree of probability of death resulting fromthe intended bodily injury. To put it more broadly, it is the degree ofprobability of death which determines whether a culpable homicide is ofthe gravest, medium or the lowest degree. The word ‘likely’ in clause(b) of Section 299 of the IPC conveys the sense of probable asdistinguished from a mere possibility. The words “bodily A

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Ainjury…..sufficient in the ordinary course of nature to cause death” meanthat death will be the “most probable” result of the injury, having regardto the ordinary course of nature.

40. For cases to fall within clause (3), it is not necessary that theoffender intended to cause death, so long as the death ensues from theBintentional bodily injury or injuries sufficient to cause death in the ordinarycourse of nature. The decision in the case of Rajwant Singh v. State ofKerala, AIR 1966 SC 1874, is an apt illustration of this point.

41. The scope of clause thirdly of Section 300 of the IPC hasbeen the subject matter of various decisions of this Court. The decisionCin Virsa Singh (supra) has throughout been followed in a number ofcases by this Court. In all these cases the approach has been to find outwhether the ingredient namely the intention to cause the particular injurywas present or not? If such an intention to cause that particular injury ismade out and if the injury is found to be sufficient in the ordinary courseDof nature to cause death, then clause thirdly of Section 300 of the IPCis attracted. Analysing clause thirdly and as to what the prosecutionmust prove, it was held in Virsa Singh (supra) as under:- “15. First, it must establish, quite objectively, that a bodilyinjury is present;

E16. Secondly, the nature of the injury must be proved; Theseare purely objective investigations.

17. Thirdly, it must be proved that there was an intention toinflict that particular bodily injury, that is to say, that itwas not accidental or unintentional, or that some otherFkind of injury was intended…

18. Once these three elements are proved to be present, theenquiry proceeds further and,

19. Fourthly, it must be proved that the injury of the typeGjust described made up of the three elements set out aboveis sufficient to cause death in the ordinary course of nature.This part of the enquiry is purely objective and inferentialand has nothing to do with the intention of the offender.”

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“20. … If they inflict injuries of that kind, they must facethe consequences; and they can only escape if it can beshown, or reasonably deduced that the injury was”accidental or otherwise unintentional.

(Emphasis supplied)

42. Thus, it is clear that the ingredient of clause thirdly is not theintention to cause death but on the other hand the ingredient to be provedis the intention to cause the particular injury that was present. It isfallacious to contend that wherever there is a single injury only a case ofculpable homicide is made out irrespective of other circumstances.In Emperor v. Sardarkhan Jaridkhan, AIR 1916 Bom 191, it wasobserved as under:- “Where death is caused by a single blow, it is always muchmore difficult to be absolutely certain what degree of bodily”injury the offender intended.

43. Commenting upon the aforesaid observation of the BombayHigh Court, Justice Bose, in Virsa Singh (supra), held thus:- “23. … With due respect to the learned Judge he has linkedup the intent required with the seriousness of the injury,and that, as we have shown, is not what the section requires.The two matters are quite separate and distinct, thoughthe evidence about them may sometimes overlap.”

44. As to how the intention is to be inferred even in a case ofsingle injury, Justice Bose further held as under:- “23. … The question is not whether the prisoner intendedto inflict a serious injury or a trivial one but whether heintended to inflict the injury that is proved to be present. Ifhe can show that he did not, or if the totality of thecircumstances justify such an inference, then, of course,the intent that the section requires is not proved. But ifthere is nothing beyond the injury and the fact that theappellant inflicted it, the only possible inference is that heintended to inflict it. Whether he knew of its seriousness, A

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Aor intended serious consequences is neither here nor there.The question, so far as the intention is concerned, is notwhether he intended to kill, or to inflict an injury of aparticular degree of seriousness, but whether he intendedto inflict the injury in question; and once the existence ofthe injury is proved the intention to cause it will be presumedBunless the evidence or the circumstances warrant anopposite conclusion. But whether the intention is there ornot is one of fact and not one of law. Whether the woundis serious or otherwise, and if serious, how serious, is atotally separate and distinct question and has nothing toCdo with the question whether the prisoner intended to inflictthe injury in question.

24. It is true that in a given case the enquiry may be linkedup with the seriousness of the injury. For example, if itcan be proved, or if the totality of the circumstances justifyDan inference, that the prisoner only intended a superficialscratch and that by accident his victim stumbled and fellon the sword or spear that was used, then of course theoffence is not murder. But that is not because the prisonerdid not intend the injury that he intended to inflict to be asserious as it turned out to be but because he did not intendEto inflict the injury in question at all. His intention in sucha case would be to inflict a totally different injury. Thedifference is not one of law but one of fact. …”

45. This question was again considered in Jagrup Singh v. StateFof Haryana, (1981) 3 SCC 616, by a Bench of this Court consisting ofJustice D.A. Desai and Justice A.P. Sen and following the ratio laiddown in Virsa Singh (supra) it was held as under:- “6. There is no justification for the assertion that the givingof a solitary blow on a vital part of the body resulting theGdeath must always necessarily reduce the offence to culpablehomicide not amounting to murder punishable under Section304 Part II of the Code. If a man deliberately strikes anotheron the head with a heavy log of wood or an iron rod or evena lathi so as to cause a fracture of the skull, he must, in theHabsence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim orsuch bodily injury as is sufficient to cause death. The wholething depends upon the intention to cause death, and the casemay be covered by either clause Istly or clause 3rdly. Thenature of intention must be gathered from the kind of weaponused, the part of the body hit, the amount of force employedand the circumstances attendant upon the death.”

The aforesaid decision of this Court in Jagrup Singh (supra) hasbeen strongly relied upon by the learned senior counsel appearing forthe appellant.

46. However, the learned senior counsel did not seek to rely onthe observations made in para 6 referred to above in the case of JagrupSingh (supra). The learned senior counsel relied on the observationswhich we shall refer to hereinafter, but after giving some factualbackground in the case of Jagrup Singh (supra). On the fateful evening,the marriage of one Tej Kaur was performed. Shortly thereafter, theappellant Jagrup Singh armed with a gandhala, his brothers Billaur Singharmed with a gandasa and Jarmail Singh and Waryam Singh armedwith lathies emerged suddenly and made a joint assault on the deceasedChanan Singh and the three eyewitnesses, Gurdev Singh, PW 10,Sukhdev Singh, PW 11 and Makhan Singh, PW 12. The deceased alongwith the three eyewitnesses was rushed to the Rural Dispensary, Roriwhere they were examined at 6 pm by Dr. Bishnoi, PW 3, who foundthat the deceased had a lacerated wound 9 cm × 11/2 cm bone deep onthe right parietal region, 9 cm away from the tip of right pinna; marginsof wound were red, irregular and were bleeding on touch; direction ofwound was anterior-posterior. The deceased succumbed to the injuries.The Doctor who performed an autopsy on the dead body of the deceaseddeposed before the Trial Court that the death of the deceased was dueto cerebral compression as a result of the head injury which was sufficientin the ordinary course of nature to cause death. In the background ofthis case, this Court held:- “14. … In our judgment, the High Court having held that itwas more probable that the appellant Jagrup Singh had alsoattended the marriage as the collateral, but somethinghappened on the spur of the moment which resulted in theinfliction of the injury by Jagrup Singh on the person of thedeceased Chanan Singh which resulted in his death, manifestly AB

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Aerred in applying Clause Thirdly of Section 300 of the Code.On the finding that the appellant when he struck the deceasedwith the blunt side of the gandhala in the heat of the moment,-without premeditation and in a sudden fight, the case wascovered by Exception 4 to Section 300. It is not suggestedthat the appellant had taken undue advantage of the situationBor had acted in a cruel or unusual manner. Thus, all therequirements of Exception 4 are clearly met. That being so,the conviction of the appellant Jagrup Singh, under Section302 of the Code cannot be sustained.

15. The result, therefore, is that the conviction of the appellantCunder Section 302 is altered to one under Section 304, PartII of the Indian Penal Code. For the altered conviction, theappellant is sentenced to suffer rigorous imprisonment for a”period of seven years.

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We have noticed something in the aforesaid observations madeby this Court which, in our opinion, creates some confusion. We havecome across such observations in many other decisions of this Courtover and above the case of Jagrup Singh (supra). What we are tryingto highlight is that in Jagrup Singh (supra), although this Court alteredEthe conviction from Section 302 to Section 304 Part II, it took shelter ofException 4 to Section 300 of the IPC. The question is, was there anyneed for the Court to take recourse to Exception 4 to Section 300 of theIPC for the purpose of altering the conviction from Section 302 to Section304 Part II of the IPC. We say so because there is fine differenceFbetween the two parts of Section 304 of the IPC. Under the first part,the crime of murder is first established and the accused is then given thebenefit of one of the exceptions to Section 300 of the IPC, while underthe second part, the crime of murder is never established at all. Therefore,for the purpose of holding an accused guilty of the offence punishableunder the second part of Section 304 of the IPC, the accused need notGbring his case within one of the exceptions to Section 300 of the IPC.

47. In Jawahar Lal v. State of Punjab, (1983) 4 SCC 159, alsothe accused hit the deceased with a knife blow in front of left side of hischest and as per the autopsy report the injuries were found sufficient inan ordinary course of nature to cause death. This Court took a view thatH

the accused could be attributed the knowledge that he was likely tocause an injury which was likely to cause death. The relevant paras ofthe said judgment is reproduced as under:

“17…….we should also not further dilate on this point in viewof the decision of this Court in Jagrup Singh v. State ofHaryana : 1981 Cri LJ 1136. In that case after referring tothe evidence, this Court held that the appellant gave one blowon the head of the deceased with the blunt side of thegandhala and this injury proved fatal. The Court thenproceeded to examine as to the nature of the offence becausethe appellant in the case was convicted for an offence underSection 302. Undoubtedly, this Court said that there is nojustification for the assertion that the giving of a solitary blowon a vital part of the body resulting in death must alwaysnecessarily reduce the offence to culpable homicide notamounting to murder punishable under Section 304, Part IIof the Code. The Court then proceeded to lay down thecriteria for judging the nature of the offence. It may beextracted;

The whole thing depends upon the intention to cause death,and the case may be covered by either clause Firstly or clauseThirdly. The nature of intention must be gathered from thekind of weapon used, the part of the body hit, the amount offorce employed and the circumstance attendant upon thedeath.

18. We may point out that decision in Jagrup Singh’sCase 1981 Cri LJ 1136 was subsequently followed in RandhirSingh @ Dhire v. State of Punjab Decided on September 18,1981 and in Kulwant Rai v. State of Punjab Decided on August7, 1981 (Criminal Appeal No. 630 of 1981).

19. Having kept this criteria under view, we are of the opinionthat the offence committed by the 1st appellant would not becovered by clause Thirdly of Para 3 of Section 300 andtherefore, the conviction under Section 302, I.P.C. cannot besustained.

20. What then is the offence committed by the 1st appellant?Looking to the age of the 1st appellant at the time of the A

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Aoccurrence, the nature of the weapon used, the circumstancesin which one blow was inflicted, the time of the day when theoccurrence took place and the totality of other circumstances,namely, the previous trivial disputes between the parties, weare of the opinion that the 1st appellant could be attributedthe knowledge that he was likely to cause an injury whichBwas likely to cause death. Accordingly, the 1st appellant isshown to have committed an offence under Section 304, PartII of the Indian Penal Code and he must be convicted for thesame and sentenced to suffer rigorous imprisonment for fiveyears maintaining the sentence of fine.”

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48. In Camilo Vaz v. State of Goa [(2000) 9 SCC 1 : 2000 SCC(Cri) 1128] the accused had hit the deceased with a danda during apremeditated gang-fight, resulting in the death of the victim. Both thetrial court and the Bombay High Court convicted the appellant underSection 302 IPC. This Court, however, converted the conviction to oneDunder Section 304 Part II IPC and observed:- (SCC p. 9, para 14)

“14. … When a person hits another with a danda on a vitalpart of the body with such a force that the person hit meetshis death, knowledge has to be imputed to the accused. Inthat situation case will fallin Part II of Section 304 IPC as inEthe present case.”

49. In Jai Prakash v. State (Delhi Admin.), (1991) 2 SCC 32,this Court, after an exhaustive review of various decisions, moreparticularly, the principles laid down in Virsa Singh’s case (supra),Fconcluded as under:- “18. In all these cases, injury by a single blow was found tobe sufficient in the ordinary course of nature to cause death.The Supreme Court took into consideration the circumstancessuch as sudden quarrel, grappling etc. as mentioned aboveGonly to assess the state of mind namely whether the accusedhad the necessary intention to cause that particular injuryi.e. to say that he desired expressly that such injury onlyshould be the result. It is held in all these cases that there wasno such intention to cause that particular injury as in thosecircumstances, the accused could have been barely aware i.e.

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only had knowledge of the consequences. These circumstancesunder which the appellant happened to inflict the injury it isfelt or at least a doubt arose that all his mental faculties couldnot have been roused as to form an intention to achieve theparticular result. We may point out that we are not concernedwith the intention to cause death in which case it will be amurder simplicitor unless exception is attracted. We areconcerned under clause 3rdly with the intention to cause thatparticular injury which is a subjective inquiry and when oncesuch intention is established and if the intended injury is foundobjectively to be sufficient in the ordinary course of natureto cause death, clause 3rdly is attracted and it would bemurder, unless one of the exceptions to Section 300 isattracted. If on the other hand this ingredient of ‘intention’ isnot established or if a reasonable doubt arises in this regardthen only it would be reasonable to infer that clause 3rdly isnot attracted and that the accused must be attributedknowledge that in inflicting the injury he was likely to causedeath in which case it will be culpable homicide punishable”under Section 304 Part II IPC.

50. In the case of Rajwant Singh (supra), after referring to therelevant clauses of Section 300 of the IPC, the following observationshave been made:- “10. … The mental attitude is thus made of two elements (a)causing an intentional injury and (b) which injury theoffender has the foresight to know would cause death….

11. … For the application of clause three it must first beestablished that the injury is caused, next it must be establishedobjectively what the nature of that injury in the ordinarycourse of nature is. If the injury is found to be sufficient tocause death, one test is satisfied. Then it must be proved thatthere was an intention to inflict that very Injury and not someother injury and that it was not accidental or unintentional.If this is also held against the offender the offence of murderis established.”

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51. In the case of Anda v. State of Rajasthan, AIR 1966 SC148, the two relevant Sections 299 and 300 respectively are brilliantlyanalysed and the relevant observations are made at page 151 in para 7.Before we refer to those observations, we would refer to certainobservations made earlier. They are as under:- A

B“The offence of culpable homicide involves the doing of anact (which term includes illegal omissions) (a) with theintention of causing death, or (b) with the intention of causingsuch bodily injury as is likely to cause death or (c) with theknowledge that the act is likely to cause death. If the death iscaused in any of these three circumstances, the offence ofCculpable homicide is said to be committed……. Intention andknowledge in the ingredients of the section postulate theexistence of a positive mental attitude and this mental conditionis the special mens rea necessary for the offence. The guiltyintention in the first two conditions contemplates the intendedDdeath of the person harmed or the intentional causing of aninjury likely to cause his death. The knowledge in the thirdcondition contemplates knowledge of the death of the person.Sec. 300 tells us when the offence is murder and when it isculpable homicide not amounting to murder. Sec. 300 beginsby setting out the circumstances when culpable homicide turnsEout into murder which is punishable under sec. 302 and theexceptions in the same section tell us when offence is notmurder but culpable homicide not amounting to murderpunishable under sec. 304. Murder is an aggravated form ofculpable homicide. The existence of one of four conditionsFturns culpable homicide into murder while the specialexceptions reduce the offence of murder again to culpablehomicide not amounting to murder.” (Emphasis supplied)

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52. We will now refer to the relevant observations made in paraG10 at page 151. They are as under:-

“-The third clause views the matter from a general standpoint.It speaks of an intention to cause bodily injury which issufficient in the ordinary course of nature to cause death.The emphasis here is on the sufficiency of the injury in the H

ordinary course of nature to cause death. The sufficiency isthe high probability of death in the ordinary way of natureand when this exists and death ensues and the causing ofsuch injury is intended the offence is murder. Sometimes thenature of the weapon used, sometimes the part of the body onwhich the injury is caused, and sometimes both are relevant.The determinant factor is the intentional injury which mustbe sufficient to cause death, that is to say, the probability ofdeath is not so high, the offence does not fall within murderbut within culpable homicide not amounting to murder orsomething less. The illustration appended to the clause 3rdlyreads:

‘(c) A intentionally gives Z a sword-cut or club-woundsufficient to cause the death of a man in the ordinary courseof nature. Z dies in consequence. Here A is guilty of murder,although he may not have intended to cause Z’s death.’The sufficiency of an intentional injury to cause death inthe ordinary way of nature is the gist of the clauseirrespective of an intention to cause death. Here again,the exceptions may bring down the offence to culpablehomicide not amounting to murder.” (Emphasis supplied)

53. This Court in Vineet Kumar Chauhan v. State of U.P., (2007)14 SCC 660, noticed that the academic distinction between ‘murder’and ‘culpable homicide not amounting to murder’ had vividly been broughtout by this Court in State of A.P. v. Rayavarapu Punnayya, (1976) 4SCC 382, where it was observed as under:- “…that the safest way of approach to the interpretation andapplication of Sections 299 and 300 of the Code is to keep infocus the key words used in various clauses of the saidsections. Minutely comparing each of the clauses of sections299 and 300 of the Code and the drawing support from thedecisions of the court in Virsa Singh v. State of Punjab, (AIR1958 SC 465 : 1958 Cri LJ 818) and Rajwant Singh v. Stateof Kerala, (AIR 1966 SC 1874 : 1966 Cri LJ 1509) speakingfor the court, Justice RS Sarkaria, neatly brought out thepoints of distinction between the two offences, which havebeen time and again reiterated. Having done so, the courtsaid that wherever the Court is confronted with the question A

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Awhether the offence is murder or culpable homicide notamounting to murder, on the facts of a case, it would beconvenient for it to approach the problem in three stages.The question to be considered at the first stage would be thatthe accused has done an act by doing which he has causedthe death of another. Two, if such causal connection betweenBthe act of the accused and the death, leads to the secondstage for considering whether that act of the accused amountsto culpable homicide as defined in section 299. If the answerto this question is in the negative, the offence would beculpable homicide not amounting to murder, punishable underCthe First or Second part of Section 304, dependingrespectively, on whether this second or the third clause ofSection 299 is applicable. If this question is found in thepositive but the cases come within any of the exceptionsenumerated in Section 300, the offence would still be culpablehomicide not amounting to murder, punishable under the firstDpart of Section 304 of the Code. It was, however, clarifiedthat these were only broad guidelines to facilitate the task ofthe court and not cast-iron imperative.” (Emphasis supplied)

54. In the case of Tholan v. State of Tamil Nadu, AIR 1984 SC759,the accused stood in front of the house of the deceased and usedEfilthy language against some persons who were unconnected with thedeceased. The deceased came out of his house and told the accusedthat he should not use vulgar and filthy language in front of ladies andasked him to go away. The accused questioned the authority of thedeceased to ask him to leave the place. In the ensuing altercation, theFaccused gave one blow with a knife which landed on the (right) chest ofthe deceased which proved to be fatal. This Court came to the conclusionthat the accused could not be convicted under Section 302, but wasguilty under Section 304 Part II. The circumstances which weighed withthis Court were : (i) there was no connection between the accused and the deceased and the presence of the deceased at the time of the incident,Gwas wholly accidental; (ii) altercation with the deceased was on thespur of the moment and the accused gave a single blow being enragedby the deceased asking him to leave the place; (iii) the requisite intentioncould not be attributed to the accused as there was nothing to indicatethat the accused intended the blow to land on the right side of the chestHwhich proved to be fatal.

55. In Chamru, Son of Budhwa v. State of Madhya Pradesh,AIR 1954 SC 652, in somewhat similar circumstances, where there wasexchange of abuses between the two parties both of whom were armedwith lathis, they came to blows and in the course of the fight that ensued,the accused struck a lathi blow on the head of the deceased which causeda fracture of the skull resulting in the death. In view of the fact that theaccused had given only one blow in the heat of the moment, it was heldthat all that can be said was that he had given the blow with the knowledgethat it was likely to cause death and, therefore, the offence fell underSection 304, Part II of the IPC. In Willie (William) Slaney v. The Stateof Madhya Pradesh, AIR 1956 SC 116, there was, as here, a suddenquarrel leading to an exchange of abuses and in the heat of the momenta solitary blow with a hockey-stick had been given on the head. TheCourt held that the offence amounted to culpable homicide not amountingto murder punishable under Section 304, Part II.

56. In Kulwant Rai v. State of Punjab, (1981) 4 SCC 245, theaccused, without any prior enmity or premeditation, on a short quarrelgave a single blow with a dagger which later proved to be fatal. ThisCourt observed that since there was no premeditation, Part 3 of Section300 of the IPC could not be attracted because it cannot be said that theaccused intended to inflict that particular injury which was ultimatelyfound to have been inflicted. In the facts and circumstances of thatcase, the conviction of the accused was altered from Section 302 to thatunder Section 304 Part II IPC and the accused was sentenced to sufferrigorous imprisonment for five years.

57. In Jagtar Singh v. State of Punjab, (1983) 2 SCC 342, theaccused on the spur of the moment inflicted a knife-blow on the chest ofthe deceased. The injury proved to be fatal. The doctor opined that theinjury was sufficient in the ordinary course of nature to cause death.This Court observed that: (SCC p. 344, para 8):- “8. … The quarrel was of a trivial nature and even in such atrivial quarrel the appellant wielded a weapon like a knifeand landed a blow in the chest. In these circumstances, it is apermissible inference that the appellant at least could beimputed with a knowledge that he was likely to cause an injurywhich was likely to cause death. …”

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AThis Court altered the conviction of the appellant from Section302 IPC to Section 304 Part II IPC and sentenced the accused to sufferrigorous imprisonment for five years.

58. In Hem Raj v. State (Delhi Admn.), 1990 Supp SCC 291,the accused inflicted single stab injury landing on the chest of the deceased.BThe occurrence admittedly had taken place on the spur of the momentand in heat of passion upon a sudden quarrel. According to the doctorthe injury was sufficient in the ordinary course of nature to cause death.This Court observed as under: (SCC p. 295, para 14)”- “14. The question is whether the appellant could be said toChave caused that particular injury with the intention of causingdeath of the deceased. As the totality of the established factsand circumstances do show that the occurrence had happenedmost unexpectedly in a sudden quarrel and withoutpremeditation during the course of which the appellant causeda solitary injury, he could not be imputed with the intentionDto cause death of the deceased or with the intention to causethat particular fatal injury; but he could be imputed with theknowledge that he was likely to cause an injury which waslikely to cause death. Because in the absence of any positiveproof that the appellant caused the death of the deceasedEwith the intention of causing death or intentionally inflictedthat particular injury which in the ordinary course of naturewas sufficient to cause death, neither clause I nor clause III”of Section 300 IPC will be attracted.

FThis Court while setting aside the conviction under Section 302convicted the accused under Section 304 Part II and sentenced him toundergo rigorous imprisonment for seven years.

59. We may lastly refer to the decision of this Court in PulicherlaNagaraju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500,Gwherein this Court enumerated some of the circumstances relevant tofinding out whether there was any intention to cause death on the part ofthe accused. This Court observed : (SCC pp. 457-58, para 29)

“29. Therefore, the court should proceed to decide the pivotalquestion of intention, with care and caution, as that will decideHwhether the case falls under Section 302 or 304 Part I or

304 Part II. Many petty or insignificant matters — pluckingof a fruit, straying of cattle, quarrel of children, utterance ofa rude word or even an objectionable glance, may lead toaltercations and group clashes culminating in deaths. Usualmotives like revenge, greed, jealousy or suspicion may betotally absent in such cases. There may be no intention. Theremay be no premeditation. In fact, there may not even becriminality. At the other end of the spectrum, there may becases of murder where the accused attempts to avoid thepenalty for murder by attempting to put forth a case that therewas no intention to cause death. It is for the courts to ensurethat the cases of murder punishable under Section 302, arenot converted into offences punishable under Section 304Part I/II, or cases of culpable homicide not amounting tomurder, are treated as murder punishable under Section302. The intention to cause death can be gathered generallyfrom a combination of a few or several of the following, amongother, circumstances : (i) nature of the weapon used; (ii)whether the weapon was carried by the accused or was pickedup from the spot; (iii) whether the blow is aimed at a vital partof the body; (iv) the amount of force employed in causinginjury; (v) whether the act was in the course of sudden quarrelor sudden fight or free for all fight; (vi) whether the incidentoccurs by chance or whether there was any premeditation;(vii) whether there was any prior enmity or whether thedeceased was a stranger; (viii) whether there was any graveand sudden provocation, and if so, the cause for suchprovocation; (ix) whether it was in the heat of passion; (x)whether the person inflicting the injury has taken undueadvantage or has acted in a cruel and unusual manner; (xi)whether the accused dealt a single blow or several blows.The above list of circumstances is, of course, not exhaustiveand there may be several other special circumstances withreference to individual cases which may throw light on thequestion of intention.” (Emphasis supplied)

60. Few important principles of law discernible from the aforesaiddiscussion may be summed up thus:-

(1) When the court is confronted with the question, what offencethe accused could be said to have committed, the true test is to AB

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find out the intention or knowledge of the accused in doing theact. If the intention or knowledge was such as is described inClauses (1) to (4) of Section 300 of the IPC, the act will be murdereven though only a single injury was caused. To illustrate : ‘A’ isbound hand and foot. ‘B’ comes and placing his revolver againstthe head of ‘A’, shoots ‘A’ in his head killing him instantaneously.Here, there will be no difficulty in holding that the intention of ‘B’in shooting ‘A’ was to kill him, though only single injury was caused.The case would, therefore, be of murder falling within Clause (1)of Section 300 of the IPC. Taking another instance, ‘B’ sneaksinto the bed room of his enemy ‘A’ while the latter is asleep on hisbed. Taking aim at the left chest of ‘A’, ‘B’ forcibly plunges asword in the left chest of ‘A’ and runs away. ‘A’ dies shortlythereafter. The injury to ‘A’ was found to be sufficient in ordinarycourse of nature to cause death. There may be no difficulty inholding that ‘B’ intentionally inflicted the particular injury found tobe caused and that the said injury was objectively sufficient in theordinary course of nature to cause death. This would bring theact of ‘B’ within Clause (3) of Section 300 of the IPC and renderhim guilty of the offence of murder although only single injurywas caused.

(2) Even when the intention or knowledge of the accused mayfall within Clauses (1) to (4) of Section 300 of the IPC, the act ofthe accused which would otherwise be murder, will be taken outof the purview of murder, if the accused’s case attracts any oneof the five exceptions enumerated in that section. In the event ofthe case falling within any of those exceptions, the offence wouldbe culpable homicide not amounting to murder, falling within Part1 of Section 304 of the IPC, if the case of the accused is such asto fall within Clauses (1) to (3) of Section 300 of the IPC. Itwould be offence under Part II of Section 304 if the case is suchas to fall within Clause (4) of Section 300 of the IPC. Again, theintention or knowledge of the accused may be such that only 2ndor 3rd part of Section 299 of the IPC, may be attracted but notany of the clauses of Section 300 of the IPC. In that situationalso, the offence would be culpable homicide not amounting tomurder under Section 304 of the IPC. It would be an offenceunder Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section304 if the case fall within 3rd part of Section 299 of the IPC.

(3) To put it in other words, if the act of an accused person fallswithin the first two clauses of cases of culpable homicide asdescribed in Section 299 of the IPC it is punishable under the firstpart of Section 304. If, however, it falls within the third clause, it ispunishable under the second part of Section 304. In effect,therefore, the first part of this section would apply when there is‘guilty intention,’ whereas the second part would apply when thereis no such intention, but there is ‘guilty knowledge’.

(4) Even if single injury is inflicted, if that particular injury wasintended, and objectively that injury was sufficient in the ordinarycourse of nature to cause death, the requirements of Clause 3rdlyto Section 300 of the IPC, are fulfilled and the offence would bemurder.

(5) Section 304 of the IPC will apply to the following classes ofcases: (i) when the case falls under one or the other of the clausesof Section 300, but it is covered by one of the exceptions to thatSection, (ii) when the injury caused is not of the higher degree oflikelihood which is covered by the expression ‘sufficient in theordinary course of nature to cause death’ but is of a lower degreeof likelihood which is generally spoken of as an injury ‘likely tocause death’ and the case does not fall under Clause (2) of Section300 of the IPC, (iii) when the act is done with the knowledge thatdeath is likely to ensue but without intention to cause death or aninjury likely to cause death.

To put it more succinctly, the difference between the two partsof Section 304 of the IPC is that under the first part, the crime ofmurder is first established and the accused is then given the benefitof one of the exceptions to Section 300 of the IPC, while underthe second part, the crime of murder is never established at all.Therefore, for the purpose of holding an accused guilty of theoffence punishable under the second part of Section 304 of theIPC, the accused need not bring his case within one of theexceptions to Section 300 of the IPC.

(6) The word ‘likely’ means probably and it is distinguished frommore ‘possibly’. When chances of happening are even or greater AB

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than its not happening, we may say that the thing will ‘probablyhappen’. In reaching the conclusion, the court has to place itselfin the situation of the accused and then judge whether the accusedhad the knowledge that by the act he was likely to cause death.

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(7) The distinction between culpable homicide (Section 299 of theIPC) and murder (Section 300 of the IPC) has always to becarefully borne in mind while dealing with a charge under Section302 of the IPC. Under the category of unlawful homicides, both,the cases of culpable homicide amounting to murder and thosenot amounting to murder would fall. Culpable homicide is not murderwhen the case is brought within the five exceptions to Section300 of the IPC. But, even though none of the said five exceptionsare pleaded or prima facie established on the evidence on record,the prosecution must still be required under the law to bring thecase under any of the four clauses of Section 300 of the IPC tosustain the charge of murder. If the prosecution fails to dischargethis onus in establishing any one of the four clauses of Section300 of the IPC, namely, 1stly to 4thly, the charge of murder wouldnot be made out and the case may be one of culpable homicidenot amounting to murder as described under Section 299 of theIPC.

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E(8) The court must address itself to the question of mens rea. IfClause thirdly of Section 300 is to be applied, the assailant mustintend the particular injury inflicted on the deceased. This ingredientcould rarely be proved by direct evidence. Inevitably, it is a matterof inference to be drawn from the proved circumstances of thecase. The court must necessarily have regard to the nature of theFweapon used, part of the body injured, extent of the injury, degreeof force used in causing the injury, the manner of attack, thecircumstances preceding and attendant on the attack.

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(9) Intention to kill is not the only intention that makes a culpablehomicide a murder. The intention to cause injury or injuriessufficient in the ordinary cause of nature to cause death also makesa culpable homicide a murder if death has actually been causedand intention to cause such injury or injuries is to be inferred fromthe act or acts resulting in the injury or injuries.

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(10) When single injury inflicted by the accused results in thedeath of the victim, no inference, as a general principle, can be H

drawn that the accused did not have the intention to cause thedeath or that particular injury which resulted in the death of thevictim. Whether an accused had the required guilty intention ornot, is a question of fact which has to be determined on the factsof each case.

(11) Where the prosecution proves that the accused had theintention to cause death of any person or to cause bodily injury tohim and the intended injury is sufficient in the ordinary course ofnature to cause death, then, even if he inflicts a single injury whichresults in the death of the victim, the offence squarely falls underClause thirdly of Section 300 of the IPC unless one of theexceptions applies.

(12) In determining the question, whether an accused had guiltyintention or guilty knowledge in a case where only a single injuryis inflicted by him and that injury is sufficient in the ordinary courseof nature to cause death, the fact that the act is done withoutpremeditation in a sudden fight or quarrel, or that the circumstancesjustify that the injury was accidental or unintentional, or that heonly intended a simple injury, would lead to the inference of guiltyknowledge, and the offence would be one under Section 304 PartII of the IPC.

61. We once again recapitulate the facts of this case. On thefateful day of the incident, the father and son were working in theiragricultural field early in the morning. They wanted to transport the crop,they had harvested and for that purpose they had called for a lorry. Thelorry arrived, however, the deceased did not allow the driver of the lorryto use the disputed pathway. This led to a verbal altercation between theappellant and the deceased. After quite some time of the verbalaltercation, the appellant hit a blow on the head of the deceased with theweapon of offence (weed axe) resulting in his death in the hospital.

62. Looking at the overall evidence on record, we find it difficultto come to the conclusion that when the appellant struck the deceasedwith the weapon of offence, he intended to cause such bodily injury aswas sufficient in the ordinary course of nature to cause death. Theweapon of offence in the present case is a common agriculture tool. If aman is hit with a weed axe on the head with sufficient force, it is boundto cause, as here, death. It is true that the injuries shown in the postmortem report are fracture of the parietal bone as well as the temporal A

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Abone. The deceased died on account of the cerebral compression i.e.internal head injuries. However, the moot question is – whether that byitself is sufficient to draw an inference that the appellant intended tocause such bodily injury as was sufficient to cause death. We are of theview that the appellant could only be attributed with the knowledge thatit was likely to cause an injury which was likely to cause the death. It isBin such circumstances that we are inclined to take the view that the caseon hand does not fall within clause thirdly of Section 300 of the IPC.

63. In the aforesaid view of the matter and more particularly bearingthe principles of law explained aforesaid, the present appeal is partlyallowed. The conviction of the appellant under Section 304 Part I of theCIPC is altered to one under Section 304 Part II of the IPC. For thealtered conviction, the appellant is sentenced to undergo rigorousimprisonment for a period of five years.

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Ankit Gyan

Appeal partly allowed.

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