2004 Supreme(SC) 1548

2005(1) Supreme 867
Supreme Court of India
(From Madras High Court)
Arijit Pasayat & S.H. Kapadia, JJ.
Thangaiya —Appellant
versus
State of Tamil Nadu —Respondent
Criminal Appeal No. 1456 of 2004
(Arising out of S.L.P. (Crl.) No. 5080 of 2003)
Decided on 8-12-2004
Counsel for the Parties :
For the Appellant : Mahendra Anand, Sr. Advocate­ and Mrs. Revathy Raghavan, ­Advocate (SCLSC).
For the Respondent : Subramanium Prasad, Gopalakrishnan, Abhay Kumar and Rahul, Advocates.

Important pointIt cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case.

Headnote:(i) Indian Penal Code, 1860—Section 302—Murder Trial—Chance witness—Evidentiary value—In a murder trial by describing the independent witnesses as ‘chance witnesses’ it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful—Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere ‘chance witnesses’—Evidence Act, 1872—Section 3.

       Held : Coming to the plea of the accused that PW-3 was ‘chance witness’ who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. In a murder trial by describing the independent witnesses as ‘chance witnesses’ it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere ‘chance witnesses’. The expression ‘chance witness’ is borrowed from countries where every man’s home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man’s castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence. Therefore, there is no substance in the plea that PW-3’s evidence which is clear and cogent is to be discarded. (Para 7)

       (ii) Indian Penal Code, 1860—Sections 299, 300, 302 and 304-I—Culpable Homicide and Murder—Distinction—Scope and meaning of terms used by the legislature in these sections—Distinguishing feature of mens rea requisite under clause (2) of Section 300 IPC—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 intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature.

       Held : 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. 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. (Paras 8 and 9)

       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 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. 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. 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. (Paras 10 and 11)

       Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons — being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. The above are only broad guidelines and not cast iron imperatives. In 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. (Paras 18 and 19)

       (iii) Indian Penal Code, 1860—Sections 304-I and 302—Alteration of conviction from Section 302 to Section 304-I—One blow was given on head with a small stick—Place of assault was dimly lit—Accused allegedly used to make fun of girls workers outside the factory of deceased and this was objected to by the deceased—There had been enmity between deceased and the accused—Prosecution case that at about 9.30 p.m. when PW1, PW2 were standing, accused rushed to the deceased who came in a bicycle—Accused saying ‘you die, old man’ hit him with a stick on his head—Deceased sustained injuries and there was profuse bleeding—Deceased was treated in a hospital where he died the next day—Case is covered by Section 304-I IPC and not under Section 302 IPC—Custodial sentence of 10 years would meet the ends of justice.

       Held : It cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered. In the instant case admittedly one blow was given with a small stick, and the place where the assault took place was dimly lit. Inevitable conclusion is that the case is covered by Section 304 Part I IPC and not Section 302 IPC. The con­viction is accordingly altered. Custodial ­sentence of 10 years would meet the ends of justice. (Para 21)