IMPORTANT POINT
Where deceased was sleeping under a tree by side of railway track and accused suddenly came there and inflicted single blow by knife on deceased and forcibly took lady sleeping with deceased to his Jhuggi as earlier lady was married to accused, offence of accused would fall u/s 304 Part I IPC.

Headnote:Indian Penal Code, 1860—Section 302—Deceased was sleeping with PW9 under a tree by side of railway track—Accused came and stabbed deceased and forcibly took PW9 to his jhuggi as earlier PW9 had been married to accused—Conviction for murder by trial Court and upheld by High Court—Appeal—Question about nature of offence—Distinction between murder and culpable homicide not amounting to murder—Difference between clause (b) of Section 299 and clause (3) of Section 300 was one of the degrees of probability of death resulting from intended bodily injury—Word ‘likely’ in clause (b) of Section 299 conveyed sense of probable as distinguished from mere possibility—Clause (4) of Section 300 would be applicable where knowledge of offender as to the probability of death of person being caused from his imminently dangerous act, approximates to practical certainty—Such knowledge on part of offender must be of highest degree of probability—Offence committed by appellant fell u/s 304 Part I IPC—Sentence of 10 years imprisonment awarded.
       Held : Evidence of PW-9 is to the effect that in the night she and the deceased were sleeping under a neem tree by the side of the railway track. Suddenly the accused came there, stabbed the deceased and forcibly took her to his jhuggi. She accepted that the distance was considerable. She had lost her senses after seeing the accused stab the deceased. She accepted that the accused was physically disabled and normally moved in a tricycle. She clarified that since deceased was sleeping he could not escape from the stab blow. (Para 7)
       The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is the 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.(Para 8)
       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.(Para 10)
       The test laid down by Virsa Singh’s case (supra) for the applicability of clause “Thirdly” is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted.(Para 16)
       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.(Para 18)
       In view of the factual position as noted in the background of the principles set up above it is clear that the appropriate conviction is under Section 304 Part I, IPC which is accordingly altered. Custodial sentence of 10 years would meet the ends of justice.(Para 21)

JUDGMENT

Dr, Arijit Pasayat, J.—Leave granted.

2. Challenge in this appeal is to the judgment of the Rajasthan High Court at Jodhpur. By the impugned judgment the High Court upheld the judgment of Learned Additional Sessions Judge, Bhilwara holding the appellant guilty of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentencing him to undergo imprisonment for life.

3. Prosecution version as unfolded during trial is essentially as follows:

First information report (in short the ‘FIR’) was lodged by Duda Ram (PW-5) on 15.11.2001. According to the FIR, the informant was a Chowkidar for Chirag Travel Agency. At about 12 midnight, he saw a body on the railway overbridge. A bearded man was pelting stones, he closed the doors of the office and went inside. After sometime, when he opened the door, he saw that there was a dead body lying. Seeing this, a report was lodged with Police Station Pratap Nagar, Bhilwara where a Case No. 501/2001 was registered. Recovery was made of the knife on the basis of disclosure made by the accused. After registration of the case, investigation was conducted and after investigation, charge sheet was filed against the accused. The case was committed to the trial court. The trial court framed the charges against the accused persons for offence punishable under Section 302 IPC. The accused denied the charge and claimed trial.

4. Placing reliance on evidence of Neela Bai (PW-9), the wife of the deceased, the trial court held the accused guilty. The High Court also found the evidence of this eye witness to be reliable and dismissed the appeal by impugned judgment.

5. With reference to certain observations made by the trial court learned counsel for the appellant submitted that the trial court found that it was impossible that the accused who himself is lame and travels on a tricycle could take PW9 to his jhuggi – a place far from place of incident and therefore the evidence of PW-9 cannot be believed. She had herself accepted that earlier she was married to the accused and later on stated living with the deceased. The informant (PW-5) resiled from his statement recorded during investigation. Ultimately it was submitted that only one blow was given and therefore Section 302 IPC has no application.

6. Per contra learned counsel for the State supported the impugned judgment.

7. Evidence of PW-9 is to the effect that in the night she and the deceased were sleeping under a neem tree by the side of the railway track. Suddenly the accused came there, stabbed the deceased and forcibly took her to his jhuggi. She accepted that the distance was considerable. She had lost her senses after seeing the accused stab the deceased. She accepted that the accused was physically disabled and normally moved in a tricycle. She clarified that since deceased was sleeping he could not escape from the stab blow.

8. The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is the 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.

9. The