[2008] 5 S.C.k 1043
,._j
DAYA NANO A
V.
STATE OF HARYANA
(Criminal Appeal No. 595 of 2005)
APRIL 3, 2008
B
' 4- (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)
Penal Code, 1860; Ss. 299, 300, 302, 304 Part I and Ill
Arms Act, 1959; S.27:
Culpable homicide/murder - Appellant, at the instance c
of his father; allegedly fired a shot at the deceased resulting in
his death - F /. R. - Investigation - Charge-sheet - Trial Court
found appellant guilty of committing the offence of murder
punishable u/s.302 /PC and s. 27 of the Arms Act but found
evidence against accused father of the appellant insufficient D
to convict him - Appeal dismissed by High Court -
~ Correctness of - Held: According to the law laid down in the
case of Virsa Singh vs. State of Punjab even if the intention of
the accused was limited to the infliction of bodily injury sufficient
to cause death in the ordinary course of nature and did not E
extend to the intention of causing death, the offence would not
be murder - Considering the evidence on record in the
background of the principles of law, the inevitable conclusion
is that the appropriate conviction would be u/s.304 Part II !PC
- Conviction altered accordingly - Sentence restricted to the F
period already undergone - Sentencing.
~
'Culpable homicide' and 'murder' - Distinction between
- Discussed.
According to the prosecution, on the fateful day, an
G
altercation took place between PW5 and his brothers
including the deceased on the one side and accused
persons including the appellant on the other. Accused 'A'
allegedly exhorted his son, appellant, to fire a shot at the
1043 H
1044 SUPREME COURT REPORTS [2008] 5 S.C.R.
A deceased. Appellant fired a shot, which hit the deceased
resulting in bleeding injury. PW5 and PW6, brothers of the
deceased, had taken the victim to a hospital, where he
was declared dead. On the basis of an information
received from the hospital, an FIR was recorded by the
B Police and after investigation of the case, charge sheet
was filed against the accused appellant u/s.302 IPC and
s. 27 of the Arms Act and against his father u/s.302 r/w
s.34 IPC. Trial Court found the prosecution evidence
cogent and credible as against the appellant and
C accordingly convicted him for committing the offence of
murder punishable u/s. 302 IPC and sentenced him
accordingly but found the evidence as against father of
the appellant insufficient, and acquitted him. Appeal filed
thereagainst by the appellant was dismissed by the
Division Bench of the High Court. Hence the present
0
appeal.
Appellant contended that s.302 IPC has no
application in the facts and circumstances Of the case.
Partly allowing the appeal, the Court
E
HELD: 1.1 '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
F 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 t-"
form of culpable homicide, which is defined in s.300 IPC
as 'murder'. The second may be termed as 'culpable
G homicide of the second degree'. This is punishable under
the first part of s.304 IPC. 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
H grades. Cul.pable homicide of this degree is punishable
DAYA NANO v. STATE OF HARYANA 1045
under the second part of s.304 IPC. (Para - 10) [1050-E, A
F & G]
1.2 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 B
...
-+ 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 Ss. c
299 and 300 IPC. (Para - 11) [1050-H; 1051-A & B]
1.3 For cases to fall within clause (3) of s.300 IPC, it
is not necessary that the offender intended to cause
death, so long as the death ensues from the intentional
0
bodily injury or injuries sufficient to cause death in the
ordinary course of nature. (Para - 14) [1053-D & E]
Rajwant and Anr. vs. State of Kera/a, AIR (1966) SC 1874
- relied on.
1.4 Under clause thirdly of s.300 IPC, culpable E
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 F
-v 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. According to the G
rule laid down by this Court in Virsa Singh's case, even if
t~
the intention of accused was limited to the infliction of a
bodily injury sufficient to cause death in the ordinary
course of nature, and did not extend to the intention of
causing death, the offence would not be murder. H
1046 SUPREME COURT REPORTS [2008) 5 S.C.R.
A Illustration (c) appended to S. 300 clearly brings out this
point. (Paras - 18 & 19) [1055-C, D, E & F]
Virsa Singh vs. State of Punjab AIR (1958) SC 465 -
relied on.
B 1.5 Clause (c) of s.299 and clause (4) of s.300 IPC
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
c clause (4) of s.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
0
must be of the highest degree of probability, the act
having been committed by the offender without any 1'' •
excuse for incurring the risk of causing death or such
injury. (Para""'.' 20) [1055-G & H; 1056-A & B]
E State of Andhra Pradesh vs. Rayavarapu Punnayya and
Anr. (1976) 4 SCC 382; Abdul Waheed Khan @ Waheed and
Ors. vs. State of Andhra Pradesh (2002) 7 SCC 175; Augustine
Sa/danha vs. State of Kamataka (2003) 10 SCC 472; Thangiya
vs. State of TN. (2005) 9 SCC 650 and Rajinder vs. State of
F Haryana (2006) 5 SCC 425 - relied on.
2. Considering the evidence on record in the
background of the principles of law, the inevitable
conclusion is that the appropriate conviction would be
under s.304 Part II IPC. The conviction is accordingly
G altered. The accused has suffered custody of nearly 8%
years. The sentence is restricted to the period already
undergone. (Paras - 23 & 24) [1056-E & F] ·
CRIMINAL APPELLATE JURISDICTION : Criminal
H Appeal No. 595 of 2008.
DAYA NANO v. STATE OF HARYANA 1047
[DR. ARIJIT PASAYAT, J.]
~
From the Judgment/ final Order dated 27.2.2007 of the A
High Court of Punjab and Haryana at Chandigarh in Crl. A. No.
789-DB/1997.
Naresh Kaushik, Satish Dayanandan, Parag Goyal and
Lalita Kaushik for the Appellant.
B
. Rajeev Gaur 'Naseem', Rajesh Ranjan and Naresh Bakshi
., -+
for the Respondent.
The Judgment of the Court was deliver<?d by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
c
2. Challenge in this appeal is to the judgment rendered by
a Division Bench of the Punjab and Haryana High Court
upholding the conviction of the appellant for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short 'IPC')
in terms of the judgment dated 9/10.10.1997 passed by the D
Additional Sessions Judge, Hissar.
~- 3. A synoptical resume of the prosecution case is as under:
The prosecution machinery was set into motion at the
instance of Shankar - PW 5 who had four brothers. Chhajju Ram
(hereinafter referred to as the 'Deceased') was younger to PW E
5- Shankar and they had a joint khewat in the revenue estate of
village Sirdhan. On 9.9.1993 the said Shankar and his brother
Nain Sukh and deceased Chhajju Ram went to their fields known
as Theriwala for irrigating the land. Amar Singh (who faced trial
and was acquitted) and Daya Nand (appellant herein) were F
already irrigating their fields. Shankar and others were to take
"'.!(.
turn of irrigation at 8.00 A.M. from the accused. At 8.00 A.M.
deceased Chhajju Ram diverted the irrigation water to his field.
Accused Daya Nand objected that his turn of water had not yet
started. Chhajju Ram retorted that their turn started from 8.00 G
A.M. onwards. An altercation took place between Shankar and
the deceased on one side and the accused on the other.
t~
Accused threatened that they will see them and both of them
left towards the village. Shankar and others also went to
supervise the flow of irrigation water through the water courses. H
1048 SUPREME COURT REPORTS [2008] 5 S.C.R.
A In the meantime, both the accused came from the side of village
Sirdhan. Accused Daya Nan~ was armed with a gun. Accused
Amar Singh exhorted his son accused -Daya Nand to fire a
shot. Accused Daya Nand then fired a shot from his gun towards
Chhajju Ram who took a turn but was hit on the right side of the
B waist and fell down. Blood started oozing out from the fire shot
injury. Nain Sukh (PW-6) also reached there at the Naka and
witnessed the occurrence apart from Shankar. Thereafter,
accused fled away towards the village along with the gun.
Chhajju Ram was admitted to Civil Hospital, Fatehabad by his
c brother Shanker and Nain Sukh, where he was declared dead
by the doctor. Ruqa Ex. PG was sent by Dr. Jagdish Chaudhry
to the Station House Officer, Police Station Fatehabad. A
wireless message Ex. PK was sent by the said Police Station
to Police Station Bhattu. Ram Kumar, Assistant Sub inspector
D along with some constables reached Civil Hospital Fatehabad
and recorded the statement of Shanker in Civil Hospital,
Fatehabad. That statement Ex. PG/1 was sent to the Police
Station and on its basis, FIR was recorded by Satbir Singh MHC,
copy of which is Ex. PG/3. Inquest proceedings were conducted
and report Ex. PF/1 was prepared by Ram Kumar Assistant
E Sub Inspector in the presence of Devi Lal and Shanker Lal PWs.
He moved an application Ex. PF and post mortem examination
was conducted vide report Ex. PF/2 by Dr. S.P. Mimani. Multiple
wounds of small sizes were found and eleven pellets were
recovered from the abdomen of the deceased. The pellets were
F sealed in a vial. The clothes of the deceased were removed
and sealed into a parcel. The cause of death was due to shock
and haemorrhage as a result of fire arm injuries which were
ante mortem in nature and sufficient to cause death in the
ordinary course of nature vide post mortem report Ex. PF/2.
G Ram Kumar, Assistant Sub Inspector along with Ram Kumar
Constable then went to village Sirdhan. He inspected the spot
in the presence of Nain Sukh, Ram Sarup, Sarpanch and Brij
Lal, Chowkidar. Blood stained earth was lifted, made into a
sealed parcel and taken into possession vide recovery memo
H Ex. PH. One empty cartridge of 12 bore was found lying which
DAYA NANO v. STATE OF HARYANA 1049
[DR. ARIJIT PASAYAT, J.)
was also lifted, made into a sealed parcel and taken into A
possession vide memo Ex. PJ. Rough site plan, Ex. PL, was
prepared and statements of other witnesses were recorded.
Accused Daya Nand produced a double barrel gun, Ex. P-8,
licence, Ex. P-9, and two live cartridges. Sketch map, Ex. PP of
the gun was prepared. The gun was placed in a sealed parcel. B
The licence and the two live cartridges were also sealed in parcel
and taken into possession vide memo Ex. PP/1. The case
property was sent for Chemical Examination and for report of
the Ballistic expert of Forensic Science Laboratory, Haryana,
Madhuban. Vide report, Ex. PO, the double barrel gun, Ex. P8, c
was found in working order, the empty cartridge hereinafter
referred to as the crime cartridge, which was lifted from the spot,·
Ex. P6, was opined to have been fired from the said gun. The
pellets recovered from the dead body were opined to be pellets
as are usually loaded in shot gun cartridges, including 12 bore
D
cartridge. As per reports, Ex. P0/1 and Ex. P0/2, human blood
was found in blood stained earth and on shirt, Ex. P-1, Banian,
\ Ex. P-2 and underwear Ex. P-3 of the accused. After completion
of investigation, accused was sent up for trial.
Charge was framed against accused Daya Nand under E
Section 302 IPC and 27 of the Arms Act, 1959. Charge was
framed against accused Amar Singh under Section 302 read
with Section 34 IPC.
4. In order to establish the accusations the prosecution
examined 10 witnesses and the report of the Forensic Science F
Laboratory, Haryana, Madhuban was exhibited.
-I
5. Accused persons during their examination under Section
313 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.')
pleaded innocence and false implication. The Trial Court relied
G
on the evidence of eye witnesses Shankar (PW5) and Nain Sukh
(PW6). It found the prosecution evidence cogent and credible
and recorded conviction of the appellant. But so far as accused
r Amar Singh is concerned, it was held that the evidence was not
sufficient to fasten guilt on him.
H
1050 SUPREME COURT REPORTS [2008] 5 S.C.R.
>-·
A 6. In appeal, it was submitted that the evidence of Shankar
(PW5) and Nain Sukh (PW6) should not have been relied upon.
It was further submitted that a single shot that too on the hip
cannot attract application of Section 302 IPC. Prosecution with
reference to the evidence of Shankar (PW5) and Nain Sukh
B (PW6) submitted that the evidence was clear and cogent and,
therefore, the accused persons were to be convicted. The High
Court, as noted above, dismissed the appeal.
... "
7. Basic challenge in this appeal is to the conviction under
Section 302 IPC.
c
8. It was contended, as was done before the Trial Court
and the High Court, that Section 302 IPC has no application. .
9. Learned counsel for the State, on the other hand
supported the impugned judgment.
D
10. The crucial question is as to which was the appr<>priate ,
provision to be applied. In. the scheme of the IPC culpable 1-
homicide is genus and 'murder' its specie. AH',.murder' is
'culpable homicide' but not vice-versa. Speaking generally,
'culpable homicide' sans 'special characteristics of murder is
E 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,
F which is defined in Section 300 as 'murder'. The second may
1 •
be termed as 'culpable homicide of the second degree'. This is
'r
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
G the lowest among the punishments provided for the three grades.
Culpable homicide of this degree is punishable under the
second part of Section 304.
11. The academic distinction between 'murder' and
'culpable homicide not amounting to murder' has always vexed
H
DAYA NANO v. STATE OF HARYANA 1051
[DR. ARIJIT PASAYAT, J.]
~ the Courts. The confusion is caused, if Courts losing sight of A
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 B
300. The following comparative table will be helpful in
· ~· appreciating the points of distinction between the two offences.
Section 299 · Section 300
A person commits culpable homicide
if the act by which the death is
Subject to certain exceptions
culpable homicide is murder
c
caused is done -
if the act by which the
death is caused is done -
INTENTION D
(a) with the intention of causing (1) with the intention of
death; or causing death; or
(b) with the intention of causing (2) with the intention of
such bodily injury as is likely causing such bodily injury
to cause death; or as the offender knows to be E
likely to cause the death of
the person to whom the harm
is caused; or
(3) With the intention of
causing bodily injury to any F
person and the bodily injury
intended to be inflicted
is sufficient in the
ordinary course of nature
to cause death; or G
KNOWLEDGE
****
(c) with the knowledge that the act (4) with the knowledge that
is likely to cause deattr the act is so imminently
H
1052 SUPREME COURT REPORTS [2008] 5 S.C.R.
A dangerous that it must in all
probability cause death or
such bodily injury as is
likely to cause death, and
without any excuse for
B incurring the risk of causing
death or such injury as is
mentioned above.
12. Clause (b) of Section 299 corresponds with clauses
C (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
D 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
E bring the killing within the ambit of this clause. This aspect of
clause (2) is borne out by illustration (b) appended to Section
300.
13. Clause (b) of Section 299 does not postulate any such
F 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
G 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
H intentionally given. In clause (3) of Section 300, instead of the
DAYA NANO v. STATE OF HARYANA 1053
[DR. ARIJIT PASAYAT, J.]
words 'likely to cause death' occurring in the corresponding A
clause (b) of Section 299, the words "sufficient in the ordinary
course of nature to cause death" 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, B
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 c
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
D
injury, having regard to the ordinary course of nature.
~ 14. For cases to fall within clause (3), it is not necessary
that the offender intended to cause death, so long as the death
ensues from the intentional bodily injury or injuries sufficient to
cause death in the ordinary course of nature. Rajwant and Anr. E
v. State of Kera/a, (AIR 1966 SC 1874) is an apt illustration of
this point.
15. In Virsa Singh v. State of Punjab, (AIR 1958 SC 465),
Vivian Bose, J. speaking for the Court, explained the meaning
and scope of clause (3). It was observed that the prosecution F
must prove the following facts before it can bring a case under
Section 300, "thirdly". First, it must establish quite objectively,
that a bodily injury is present; secondly the nature of the injury
must be proved. These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict G
that particular injury, that is to say, that it was not accidental or
unintentional or that some other kind of injury was intended. Once
these three elements are proved to be present, the enquiry
~~
proceeds further, and fourthly it must be proved that the injury of
t the type just described made up of the three elements set out H
1054 SUPREME COURT REPORTS [2008) 5 S.C.R.
A above was sufficient to cause death in the ordinary course of
nature. This part of the enquiry is purely objective and inferential
and has nothing to do with the intention of the offender.
..
16. The ingredients of clause "Thirdly" of Section 300, IPC
were brought out by the illustrious Judge in his terse language
8 as follows:
~
"To put it shortly, the prosecution must prove the following +.-
facts before it can bring a case under Section 300, "thirdly".
First, it must establish, quite objectively, that a bodily injury
c is present.
Secondly, the nature of the injury must be proved. These
are purely objective investigations.
Thirdly, it must be proved that there was an intention to
D inflict that particular bodily injury, that is to say that it was
not accidental or unintentional, or that some other kind of
injury was intended.
Once these three elements are proved to be present, the
enquiry proceeds further and,
E
Fourthly, it must be proved that the injury of the type just
described made up of the three elements set out above
is sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential
F and has nothing to do with the intention of the offender."
17. The learned Judge explained the third ingredient in
the following words (at page 468): -Y
'The question is not whether the prisoner intended to inflict
G
a serious injury or a trivial one but whether he intended to
inflict the injury that is proved to be present. If he can show
that he did not, or if the totality of the circumstances justify
such an inference, then of course, the intent that the section
requires is not proved. But if there is nothing beyond the
injury and the fact that the appellant inflicted it, the only
H
DAYA NANO v. STATE OF HARYANA 1055
[DR. ARIJIT PASAYAT, J.]
possible inference is that he intended to inflict it. Whether A
he knew of its seriousness or intended serious
consequences, is neither here or there. The question, so
far as the intention is concerned, is not whether he intended
to kill, or to inflict an injury of a particular degree of
seriousness but whether he intended to inflict the injury in B
question and once the existence of the injury is proved the
intention to cause it will be presumed unless the evidence
or the circumstances warrant an opposite conclusion."
18. These observations of Vivian Bose, J. have become
locus classicus. The test laid down by Virsa Singh's case (supra) C
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 witr the intention of causing death D
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, E
viz., that the injury found to be present was the injury that was
intended to be inflicted.
19. Thus, according to the rule laid down in Virsa Singh's
case, even ifthe intention of accused was limited to the infliction
of a bodily injury sufficient to cause death in the ordinary course F
of nature, and did not extend to the intention of causing death,
the offence would not be murder. Illustration (c) appended to
Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4) of Section G
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 H
1056 SUPREME COURT REPORTS [2008] 5 S.C.R.
)...~
A 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
B committed by the offender without any excuse for incurring the
risk of causing death or such injury as aforesaid.
~
21. 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
c 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.
22. The position was illuminatingly highlighted by this Court
in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr.
D
(1976 (4) SCC 382), Abdul Waheed Khan @ Waheed and
Ors. v. State ofAndhra Pradesh (2002 (7) SCC 175), Augustine )<.
Saldanha v. State ofKarnataka (2003 (10) SCC 472), Thangiya
v. State of TN. (2005 (9) SCC 650) and in Rajinder v. State of
Haryana (2006 (5) SCC 425).
E
23. Considering the evidence on record in the background
of the principles of law, the inevitable conclusion is that the
appropriate conviction would be under Section 304 Part 11 IPC.
The conviction ls accordingly altered.
F 24. Undisputedly, the accused has suffered custody of
nearly 8~ years. The sentence is restricted, therefore, to the
period already undergone. The appeal is allowed to that extent.
The accused person be set at liberty forthwith unless required
in custody in any other case.
G
S.K.S. Appeal partly allowed.