PETITIONER:
STATE OF ANDHRA PRADESH
Vs.
RESPONDENT:
RAYAVARAPU PUNNAYYA & ANOTHER
DATE OF JUDGMENT15/09/1976
BENCH:
SARKARIA, RANJIT SINGH
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 45 1977 SCR (1) 601
1976 SCC (4) 382
ACT
Penal Code Ss. 299 and 300--Culpable homicide not
amounting to murder and Murder--Distinction--Tests to be
applied in each case--s. 300, Thirdly I.P.C.--Scope of
HEADNOTE
In the scheme of the Penal Code, ’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 this
generic offence, the Code practically recognises 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 s.
300 as ’murder’. The second may be termed as ’culpable
homicide of the second degree’. This is punishable under
the 1st part of s. 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 s. 304. [606B-D]
Clause (b) of s. 299 corresponds with cll. (2) and (3)
of s. 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 intentional
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. 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 s. 300.
[607C-D]
Instances of cases failing under clause (2) of s. 300
can be where the assailant causes death by a first 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 as-
sailant 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.
Clause (b) of s. 299 does not postulate any such knowledge
on the part of the offender. [607E-F]
In Clause (3) of s. 300, instead of the words ’likely to
cause death’ occurring in the corresponding clause (b) of
s. 299, the words "sufficient in the ordinary course
of nature" have been used. The distinc-
tion between a bodily injury likely to cause
death and a bodily injury sufficient in the ordinary
course of nature to cause death, is fine but real,
and, if overlooked, may result in miscarriage of justice.
The difference is one of the degree of probability of death
resulting from the intended bodily injury. The word
"likely" in s. 299(b) conveys the sense of 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 proba-
ble’ result of the injury, having regard to the ordinary
course of nature. [607G-H]
602
For cases to fail within clause (3), it is not necessary
that the offender intended to cause death, so long as death
ensues from the intentional bodily injury or injuries suffi-
cient to cause death in the ordinary course of
nature. [608B]
Clause (c)-of s. 299 and clause (4) of s. 300 both
require knowledge of the probability of the act causing
death. 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 immi-
nently 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.
[608F-G]
Whenever a court is confronted with the question whether
the offence is ’murder’ or ’culpable homicide not amounting
to murder’, on the facts of a case, it will be convenient
for it to approach the problem in three stages. The question
to be considered at the first stage would be, whether the
accused has done an act by doing which he has caused the
death of another. Proof of such casual connection between
the act of the accused and the death, leads to the, second
stage for, considering whether that act of the accused
amounts to culpable homicide as defined in s. 299. If the
answer to this. question is prima facie found in the affirm-
ative, the stage for considering the operation of s. 300,
Penal Code, is reached. This is the stage at which the
Court should determine whether the facts proved by the
prosecution bring the case within the ambit of any of the
four clauses of the definition of ’murder’ containd in s.
300. If the answer to this question is in the negative the
offence would be ’culpable homicide not amounting to mur-
der’, punishable under the first or the second part of s.
304, depending, respectively, on whether the second or the
third clause of s. 299 is applicable. If this question is
found in the positive, but the case comes within any of the
Exceptions enumerated in s. 300, the offence would still be
’culpable homicide not mounting to murder’, punishable under
the First Part of s. 304, Penal Code. [608H; 609A-C]
Rajwant and anr. v. State of Kerala AIR 1966 SC 1874,
Virsa Singh v. The State of Punjab [1958] SCR 1495 and
Andhra v. State of Rajasthan AIR 1966 S.C. 148 followed.
In the instant case the prosecution alleged that in
furtherance of political feuds of the village the accused
followed the deceased in the bus when he went to a neigh-
bouring place, chased him when he got off the bus, and
indiscriminately pounded the legs and arms of the deceased,
who was 55 years old, with heavy sticks. The deceased
succumbed to his injuries on the following morning.
The trial court held that the case was covered by clause
’thirdly’ of s. 300 and convicted them under s. 302 and s.
302 read with s. 34. Indian Penal Code. In appeal, the
High Court altered the conviction to one under s. 304 Part
II; on’ the grounds that (i) there was no premeditation in
the attack; (ii) injuries were not on any vital part of the
body; (iii) there was no compound fracture resulting in
heavy haemorrhage; (iv) death occurred due to shock and not
due to haemorrhage and (v) though the accused had knowledge
while inflicting injuries that they were likely to cause
death, they might no( have had the knowledge that they were
so imminently dangerous that in’ all probability their acts
would’ result in such injuries as are likely to came the
death.
In appeal to this Court the appellant-State contended
that the case fell under s. 300(3) I.P.C., while the accused
sought to support the judgment’ of the High Court.
603
Allowing the appeal.
HELD: (1) It is not correct to say that the attack was
not premeditated or preplanned. The High Court itself found
that the injuries were caused in furtherance of the
common intention of the respondents, and that therefore
section 34 was applicable. [611B]
(2) The High Court may be right in its finding that
since the injuries were not on vital parts, the accused had
no intention to cause death but that finding--assuming it to
be correct--does not necessarily take the case out of the
definition of ’murder’. The crux of the matter is whether
the facts established bring the case within clause ’thirdly’
of s. 300. This question further narrows down into a con-
sideration of the two-fold issue; (i) whether the bodily
injuries found on the deceased were intentionally inflicted
by the accused ? and (ii) If so, were they sufficient to
cause death in the ordinary course of nature ? If both
these elements are satisfactorily established, the offence
will be ’murder’, irrespective of the fact whether an reten-
tion on the part of the accused to cause death, had or
had not been proved. [612 C-E]
In the instant case, the formidable weapons used by the
accused in the beating the savage manner of its execution,
the helpless state of the unarmed victim, the intensity of
the violence caused, the callous conduct of the accused
in persisting in the assault even against the protest of
feeling by standersall, viewed against the background of
previous animosity between the parties, irresistibly lead to
the conclusion that the injuries caused by the accused to
the deceased were intentionally inflicted, and were not
accidental. Thus the presence of the first element of
clause ’thirdly’ of s. 300 had been cogently and convincing-
ly established. [613 B-C]
(3) The medical evidence shows that there were compound
fractures and that there was heavy haemorrhage requiring
blood transfusion. Such injuries are ordinarily dangerous.
[613D]
(4) The medical evidence clearly establishes that the
cause of death was shock and haemorrhage due to multiple
injuries which were cumulatively sufficient to cause death
in the ordinary course of nature. [612B-C]
(5) The mere fact that the beating was designedly con-
fined by the assailants to the legs and arms or that none of
the multiple injuries inflicted was individually sufficient
in the ordinary course of nature to cause death, will not
exclude the application of clause ’thirdly’ of s. 300. The
expression ’bodily injury’ in clause ’thirdly’ includes also
its plural, so that the clause would cover a case where all
the injuries intentionally caused by the accused are cumula-
tively sufficient to cause the death in the ordinary course
of nature. even if none of those injuries individually
measures upto such sufficiency. The sufficiency spoken of
in this clause, is the high probability of death in the
ordinary course of nature, and if such sufficiency exists
and death is caused and the injury causing it is intention-
al, the case would fail under clause ’thirdly’ of s. 300.
All the conditions which are a pre-requisite for the ap-
plicability of this clause have been established and the
offence committed by accused in the instant case was ’mur-
der’. [614G-H]
There is no escape from the conclusion that the offence
committed by the accused was murder notwithstanding the fact
that the intention of the accused to cause death has not
been shown beyond doubt. [613F]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
214 of 1971.
(Appeal by Special Leave from the judgment and Order dated
27-7. 1970 of the Andhra Pradesh High. Court in Criminal
Appeals Nos. 26 and 27/69).
7 --1234SCI/76
604
P. Parmeswara Rao and G. Narayana Rao for the Appellant.
A. Subba Rao for the Respondents.
The Judgment of the Court was delivered by
SARKARIA, .1. This appeal by special leave is directed
against a judgment of the High Court of Andhra Pradesh. It
arises out of these facts.
In Rompicherla village, there were factions belonging to
three major communities viz., Reddys, Kammas and Bhatrajus.
Rayavarapu (Respondent No. 1 herein) was the leader of Kamma
faction, while Chopparapu Subbareddi was the leader of the
Reddys. In politics, the Reddys were supporting the Con-
gress Party, while Kammas were supporters of Swatantra
Party. There was bad blood between the two factions which.
were proceeded against under s. 107, Cr. P.C. In the
Panchyat elections of 1954, a clash took place between the
two parties. A member of the Kamma faction was murdered.
Consequently, nine persons belonging to the Reddy faction
were prosecuted for that murder. Other incidents also’ took
place in which these warring factions were involved. So
much so, a punitive police force was stationed in this
village to keep the peace during the period from March 1966
to September 1967. Sarikonda Kotamraju, the deceased person
in the instant case, was the leader of Bhatrajus. In order
to devise protective measures against the onslaughts of
their opponents, the Bhatrajus held a meeting at the house
of the deceased, wherein they resolved to defend themselves
against the aggressive actions of the respondents and their
party-men. PW 1, a member of Bhatrajus faction has a cattle
shed. The passage to this cattle-shed was blocked by the
other party. The deceased took PW 1 to Police Station Nekar-
ikal and got a report lodged there. On July 22, 1968, the
Sub-Inspector of Police came to the village and inspected
the disputed wail in the presence of the parties. The Sub-
Inspector went away directing both the parties to come to
the Police Station on the following morning so that a com-
promise might be effected.
Another case arising out of a report made to the police
by one Kallam Kotireddi against Accused 2 and 3 and another
in respect of offences under ss. 324, 323 and 325, Penal
Code was pending before a Magistrate at Narasaraopet and the
next date for hearing fixed in that case was July 23, 1968.
On the morning of July 23, 1968, at about 6-30 a.m., PWs
1, 2 and the deceased boarded Bus No. AP 22607 at Rompicher-
la for going to Nekarikal. Some minutes later, Accused 1
to 5 (hereinafter referred to as A1, A2, A3, A4 and A5) also
got into the same bus. The accused had obtained tickets for
proceeding to Narasaraopet. When the bus stopped at Nekar-
ikal Cross Roads, at about 7-30 a.m., the deceased and his
companions alighted for going to the Police Station. The
five accused also got down. The deceased and PW 1 went
towards a Choultry run by PW 4, While PW 2 went to the
roadside to ease himself. A1 and A2 went towards the
Coffee Hotel situate near the Choultry. From there, they
picked up heavy sticks and went after the deceased into the
Choultry. On seeing the accused. P W 1 ran away towards a
hut nearby. The deceased stood up.
605
He was an old man of 55 years. He was not allowed to run.
Despite the entreaties made by the deceased with folded
hands, A-1 and A-2 indiscriminately pounded the legs and
arms of the deceased. One of the by-standers, PW 6, asked
the assailants as to why they were mercilessly beating a
human being, as if he were a buffalo. The assailants angri-
ly retorted that the witness was nobody to question them and
continued the beating till the deceased became
unconscious.The accused then threw their sticks at the spot,
boarded another vehicle, and went away. The. occurrence was
witnessed by PWs 1 to 7. The victim was removed by PW 8 to
Narasaraopet Hospital in a temporar. There, at about 8.45
a.m., Doctor Konda Reddy examined him and found 19 in-
juries, out of which, no less than 9 were (internally) found
to be grievous. They were:
1. Dislocation of distal end of proximal phalanx
of left middle finger.
2. Fracture of right radius in its middle.
3. Dislocation of lower end of right ulna.
4. Fracture of lower end of right femur.
5. Fracture of medial malleolus of right tibia.
6. Fracture. of lower 1/3 of right fibula.
7. Dislocation of lower end of left ulna.
8. Fracture of upper end of left tibia.
9. Fracture of right patella.
Finding the condition of the injured serious, the
Doctor sent information to the Judicial Magistrate for
getting his dying declaration -recorded. On Dr. K. Reddy’s
advice, the deceased was immediately removed to the Guntur
Hospital where he was examined and given medical aid by Dr.
Sastri. His dying declaration, Ex. P-5, was also recorded
there by a Magistrate (PW 10) at about 8.05 p.m. The de-
ceased, however, succumbed to his injuries at about 4.40
a.m. on July 24, 1968, despite medical aid.
The autopsy was conducted by Dr. P.S. Sarojini (PW 12)
in whose opinion, the injuries found on the deceased were
cummulatively sufficient to cause death in the ordinary
course of nature. The cause of death, according to the
Doctor, was shock and haemorrhage resulting from multiple
injuries.
The trial Judge convicted A-1 and A-2 under s. 302 as
well as under s. 302 read with s. 34, Penal Code and sen-
tenced each of them to imprisonment for life.
On appeal by the convicts, the High Court altered
their conviction to one under s. 304, Pt. II, Penal Code
and reduced their sentence to ’five years rigorous imprison-
ment, each.
Aggrieved by the judgment of the High Court, the State
has come in appeal to this Court after obtaining special
leave.
A-1, Rayavarappu Punnayya (Respondent 1) has, as reported by
his Counsel, died during the pendency of this appeal. This
information is not contradicted by the Counsel appearing for
the State. This
606
appeal therefore, in so far as it relates to A-, abates.
The appeal’ against A-2 (Respondent 2), however, survives
for decision.
’The principal question that falls to be considered in
this appeal is, whether the offence disclosed by the facts
and circumstances established by the prosecution against the
respondent, is ’murder’ or ’culpable homicide not amounting
to murder’.
In the scheme of the Penal Code, ’culpable homicide’ is
genus and ’murder’ its specie. All ’murder’ is ’culpable
homicide’ but not viceversa. Speaking generally, ’culpable
homicide’ sans ’special characteristics of murder’, is
’culpable homicide not amounting to. murder’. For the pur-
pose of fixing punishment, proportionate to the gravity of
this generic offence, the Code practically recognises three
degress 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 s. 300
as ’murder’. The second may be termed as ’culpable homicide
of the second degree’. This is punishable under the l st
part of s. 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. Culpa-
ble homicide of this degree is punishable under the second
Part of s. 304.
The academic distinction between ’murder’ and ’culpable
homicide not amounting to murder’ has vexed the courts for
more than a century. 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 minutae abstractions. The safest way of
approach to the interpretation and application of these
provisions seems to be to keep in focus the key words used
in the various clauses of ss. 299 and 300. The following
comparative table will be helpful in appreciating the points
of distinction between the two offences.
Section 299 Section 300
A person commits culpable homicide Subject to certain
if the act by which the death exceptions culpable
is caused is done homicide is murder
if the act by which
the death caused is
done--
INTENTION
(a) with the intention of
causing death: (1) with the intention
of causing death;
or or
(b) with the intention of (2) with the intention of
causing such bodily injury causing such bodily inju-
as is likely to cause death; ry as the offender knows to
or be likely to cause the
death of person to whom
the harm is caused; or
(3) with the intention of
causing bodily injury to
any person and the bodily
injury intended to be
inflicted is sufficient
in the ordinary course of
nature to cause death;
or
607
KNOWLEDGE
(c) with the knowledge that (4) with the knowledge that
the act likely to cause death. the act is so imminently
dangerous that it must in
all probability cause
death or such bodily
injury as is likely to
cause death, and without
any excuse for incurring
the risk of using death
or such injury as is
mentioned above.
Clause (b) of s. 299 corresponds with cls. (2) and (3)
of s. 300. The distinguishing feature of the mens rea requi-
site under cl. (2) is the knowledge possessed by the offend-
er regarding the particular victim being in such a peculiar
condition or state of health that the intentional 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 el. (2). Only the
intention of causing the bodily injury coupled with the
offender’s knowledge of the likelihood of such injury caus-
ing the death of the particular victim, is sufficient to
bring the killing within the ambit of this clause. This
aspect of cl. (2) is borne out by illustration (b) appended
to s. 300.
Clause (b) of s. 299 does not postulate any such knowl-
edge on the part of the offender. Instances of cases
falling under cl. (2) of s. 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 he,art, as the
case may be. If the assailant had no such knowledge about
the disease or special frailty of the victim, nor an inten-
tion 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 s. 300, instead of the words ’likely
to cause death’ occurring in the corresponding el. (b) of s.
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 over-
looked, may result ’in miscarriage of justice. The differ-
ence between cl. (b) of s. 299 and cl. (3) of s. 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 cl. (b) of s. 299 conveys the
sense of ’probable’ as distinguished from a mere possibili-
ty. The words "bodily injury... sufficient in the ordinary
course of nature to cause death" mean that
608
death will be the "most probable" result of the injury
having regard to the ordinary course of nature.
For cases to fall within cl. (3), it is not necessary
that the offender intended to cause death, So long as death
ensues from the intentional. bodily injury or injuries
sufficient to cause death in the ordinary course of nature.
Rajwant and anr. v. State of Kerala(2) is an apt illustra-
tion of this point.
In Virsa Singh v. The State of Punjab, (2) Vivian Bose
j. speaking for this Court, explained the meaning’ and scope
of Clause (3), thus (at p. 1500):
"The prosecution must prove the following
facts before it can bring a case under s. 300,
3rdly’. First, it must establish, quite objective-
ly, that a bodily injury is present;. secondly
the nature of the injury must be proved. These
are purely objective investigations. It must be
proved that there was an intention to inflict that
particular injury, that is to say,. that it was
not accidental or unintentional or that some other
kind of injury was intended. Once these three
elements are proved to be present, the enquiry
proceeds further, and, fourthly it must be ,proved
that the injury of the type just described made up
of the three elements set out above was suffi-
cient to cause death in the ordinary course of
nature. This part of the enquiry is purely objec-
tive and inferential and has nothing to do with
the intention of the offender."
Thus according to the rule laid down in Virsa Singh’s
case (supra) even if the intention of accused was limited to
the infliction of a bodily injury sufficient to cause death
in the ordinary course of nature and did not extend to the
intention of causing death, the offence would be murder.
Illustration (c) appended to s. 300 clearly brings out this
point.
Clause (c) of s. 299 and cl. (4) of s. 300 both require
knowledge of the probability of the 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 cl. (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 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.
From the above conspectus, it emerges that whenever a
court is confronted with the question whether the offence
is ’murder’ or ’culpable homicide not. amounting to murder,’
on ,the facts of a case, it will’
(1) A.I.R. 1966 S.C. 1874. (2) [1958]
S.C.R. 1495..
609
be convenient for it to approach the problem in three
stages. The question to be considered at the first stage
would be, whether the accused has done an act by doing
which he has caused the death of another. Proof of such
causal connection between the act of the accused and the
death, leads to the second stage for considering whether
that act of the accused amounts to "culpable homicide" as
defined in s. 299. If the answer to this question is prima
facie found in the affirmative, the stage for considering
the operation of s. 300, Penal Code is reached. This is the
stage at which the Court should determine whether the facts
proved by the prosecution bring the case within the ambit
of any of the four Clauses of the definition of murder’
contained in s. 300. If the answer to this question is in
the negative the offence would be ’culpable homicide not
amounting to murder’, punishable under the first or the
second part of s. 304, depending. respectively, on whether
the second or the third Clause of s. 299 is applicable. If
this question is found in the positive, but the case comes,
within any of the Exceptions enumerated in s. 300, the
offence would still be ’culpable homicide not amounting to
murder’ punishable under the First Part of s. 304, Penal
Code.
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
inter-twined and the second and the third stages so tele-
scoped into each other, that it may not be convenient,to
give a separate treatment to the matters involved in the
second and third stages.
Now let us consider the problem before us in the light
of the above enunciation.
It is not disputed that the death of the deceased was
caused by the accused, there being a direct causal connec-
tion between the beating administered by A-1 and A-2 to the
deceased and his death. The accused confined the beating
to. the legs and arms of the deceased, and therefore, it can
be said that they perhaps had no "intention to cause death"
within the contemplation clause (a) of s. 299 or cl. (1)
of s. 300. It is nobody’s case that the instant case falls
within el. (4) of s. 300. This clause, as already noticed,
is designed for that class of cases where the act of the
offender is not directed against any particular individual
but there is in his act that recklessness and risk of immi-
nent danger, knowingly and unjustifiably incurred, which is
directed against the man in general, and places the lives of
many in jeopardy. Indeed, in all fairness, Counsel for the
appellant has not contended that the case would fall under
el. (4) of s. 300. His sole contention is that even if the
accused had no intention to cause death, the facts estab-
lished fully bring the case within the purview of cl. (3) of
s. 300 and as such the offence committed is murder and
nothing less. In support of this contention reference has
been made to Andhra v. State of Rajasthan(1) and Rajwant
Singh v. State of Kerala (supra).
As against this, Counsel for the respondent submits that
since the accused selected only non-vital parts of the body
of the deceased, for
(1) A.I.R. 1966 S.C. 148.
610
inflicting the injuries, they could not be attributed the
mens rea requisite for bringing the case under clause (3) of
s. 300; at the most, it could be said that they had knowl-
edge that the injuries inflicted by them were likely to
cause death and as such the case falls within the third
clause of s. 299, and the offence committed was only "culpa-
ble homicide not amounting to murder", punishable under s.
304, Part 11. Counsel has thus tried to support the reason-
ing of the High Court.
The trial Court, ’as ’already noticed, had convicted the
respondent of the offence of murder. It applied the rule
in Virsa Singh’s case (supra). and the ratio of Anda v.
State and held that the case was clearly covered by clause
Thirdly of s. 300. The High Court has disagreed with the
trail Court and held that the offence was not murder but one
under s. 304, Pt. II.
The High Court reached this conclusion on the following
reasoning:
(a) "There was no premeditation in the attack. It was
almost an impulsive act".
(b) "Though there were 21 injuries, they were all on the
arms and legs and not on the head or other vital parts
the body."
(c) "There was no compound fracture to result in heavy
haemorrhage; there must have been some bleeding". (which)
"according to PWI might have stopped with in about half
an hour to one hour."
(d) "Death that had occurred 21 hours later, could have
been only due to shock and not due to haemorrhage also, as
stated by PW 12... who conducted the autopsy. This
reference is strengthened by the evidence of PW 26 who says
that the patient was under shock and he was treating him for
shock by sending fluids through his vein. From the injuries
inflicted the accused therefore could not have intended to
cause death."
(e) "A1 and A2 had beaten the deceased with heavy
sticks. These beatings had resulted in fracture of the
right radius, right femur, right tibia, right fibula, right
patalla and left tibia and dislocation of... , therefore
considerable force must have been used while inflicting the
blows. Accused 1 and 2 should have therefore inflicted
these injuries with the knowledge that they are likely, by
so beating, to cause the death of the deceased, though they
might not have had the knowledge that they were so imminent-
ly dangerous that in all probability their acts would result
in such injuries as are likely to cause the death. The
offence ...is therefore culpable homicide falling
under ....s. 299, I.P.C. punishable under s. 304 Part II
and not murder."
611
With respect we are unable to appreciate and accept this
reasoning. With respect, to be inconsistent, erroneous and
largely speculative,It appears to us
To say that the attack was not premeditated or pre-
planned is not only factually incorrect but also at war with
High Court’s own finding that the injuries were caused to
the deceased in furtherance of the common intention of A-1
and A-2 and therefore, s. 34, I.P.C. was applicable. Fur-
ther, the finding that there was no compound fracture, no
heavy haemorrhage and the cause of the death was shock,
only, is not in accord with the evidence on the record. The
best person to speak about haemorrhage and the cause of the
death was Dr. P..S. Sarojini (PW 12) who had conducted the
autopsy. She testified that ,the cause of death of the
deceased was "shock and haemorrhage due to multiple in-
juries". This categorical opinion of the Doctor was not
assailed in cross-examination. In the post-mortem examina-
tion report Ex. P-8, the Doctor noted that the heart of the
deceased was found full of clotted blood. Again in injury
No. 6, which also was an internal fracture, the bone was
visible through the wound. Dr. D.A. Sastri, PW 26, had
testified that he was treating Kotamraju injured of shock,
not only by sending fluids through his vein, but also blood.
This part of his statement wherein he spoke about the giving
of blood transfusion to the deceased, appears to have been
overlooked by the High Court. Dr. Kondareddy, PW 11, who was
the first Medical Officer to examine -the injuries of the
deceased, had noted that there was bleeding and swelling
around injury No. 6 which was located on the left leg 3
inches above the ankle. Dr. Sarojini, PW 12, found fracture
of the left tibia underneath this injury. There could
therefore, be no doubt that this was a compound fracture.
P.W. 11 found bleeding from the other abraded injuries,
also. He however found the condition of the injured grave
and immediately sent an information to the Magistrate
for recording his dying declaration. PW 11 also advised
immediate removal of the deceased to the bigger Hospital at
Guntur. There, also, Dr. Sastri finding that life in the
patient was ebbing fast, took immediate two-fold action.
First, he put the patient on blood transfusion. Second, he
sent an intimation for recording his dying declaration. A
Magistrate (PW 10) came there and recorded the statement.
These are all tell-tale circumstances which unerring by show
that there was substantial haemorrhage from some of the
injuries involving compound fractures. This being the case,
there was absolutely no reason to doubt the sworn word of
the Doctor, (PW 12) that the cause of the death was shock
and haemorrhage.
Although the learned Judges of the High Court have not
specifically referred to the quotation from page 289, of
Modi’s book on Medical Jurisprudence and Toxicology (1961
Edn.) which was put to Dr. Sarojini in cross-examination,
they appear to have derived support from the same for the
argument that fractures of such bones "are not ordinarily
dangerous"; therefore, the accused could not have intended
cause death but had only knowledge that they were likely by
such beating to cause the death of the deceased.
It will be worthwhile to extract that quotation from
Mody, as a reference to the same was made by Mr. Subba Rao
before us, also.
612
According to Mody: "Fractures are not ordinarily dangerous
unless they are compound, when death may occur from ,loss of
blood, if a big vessel is wounded by the split end of a
fractured bone."
It may be noted, in the first place, that this opinion
of the learned author is couched in too general and wide
language. Fractures of some vital bones, such as those of
the skull and the vertebral column are generally known to be
dangerous to life. Secondly, even this general statement
has been qualified by the learned author, by saying that
compound fractures involving haemorrhage, are ordinarily
dangerous. We have seen, that some of the fractures under-
neath the injuries of the deceased, were compound fractures
accompanied by substantial haemorrhage. In the face of
this finding, Mody’s opinion, far from advancing the conten-
tion of the defence, discounts it.
The High Court has held that the accused had no inten-
tion to cause death because they deliberately avoided to hit
any vital part of the body, and confined the beating to the
legs and arms of the deceased. There is much that can be
said in support of this particular finding. But that find-
ing--assuming it to be correct---does not necessarily take
the case out of the definition of ’murder’. The crux of the
matter is, whether the facts established bring the case
within Clause Thirdly of s. 300. This question further
narrows down into a consideration of the two-fold issue :.
(i) Whether the bodily injuries found on the deceased
were intentionally inflicted by the accused ?
(ii) If so, were they sufficient to cause death in the
ordinary course of nature ? If both these elements are
satisfactorily established, the offence will be ’murder’,
irrespective of the fact whether an intention on the part of
the accused to cause death, had or had not been proved.
In the instant case, the existence of both these ele-
ments was clearly established by the prosecution. There was
bitter hostility between the warring factions to which the
accused and the deceased belonged. Criminal litigation
was going on between these factions since long. Both the
factions had been proceeded against under s. 107, Cr. P.C.
The accused had therefore a motive to beat the deceased.
The attack was premeditated and pre-planned, although the
interval between the conception and execution of the plan
was not very long. The accused had purchased tickets for
going further to Narasaraopet, but on seeing the deceased,
their bete noir, alighting at Nekarikal, they designedly got
down there and trailed him. They selected heavy sticks
about 3 inches in diameter, each, and with those lethal
weapons, despite the entreaties of the deceased, mercilessly
pounded his legs and arms causing no less than 19 or 20
injuries, smashing at least seven bones. mostly major bones,
and dislocating two more. The beating was administered
in a brutal and reckless manner. It was pressed home with
an unusually fierce, cruel and sadistic determination. When
the human conscience of one of the shocked bystanders
spontaneously cried out in protest as to why the accused
were beating a human being as if he were a buffalo, the only
echo it could draw from the assailants,
613
a minacious retort, who callously continued their
malevolent action, and did not stop the beating till the
deceased became unconscious. May be, the intention of the
accused was to cause death and they stopped the beating
under the impression that the deceased was dead. But this
lone circumstance cannot take this possible inference to the
plane of positive proof. Nevertheless, the formidable
weapons used by the accused in the beating, the savage
manner of its execution, the helpless state of the unarmed
victim, the intensity of the violence caused, the callous
conduct of the accused in persisting in the assault even
against the protest of feeling bystanders--all, viewed
against the background of previous animosity between the
parties, irresistibly lead to the conclusion that the in-
juries caused by the accused to the deceased were intention-
ally inflicted, and were not accidental. Thus the
presence of the first element of Clause Thirdly of s. 300
had been cogently and convincingly established.
This takes us to the second element of Clause (3). Dr.
Sarojini, PW 12, testified that the injuries of the deceased
were cumulatively sufficient in the ordinary course of
nature to cause death. In her opinion--which we have
found to be entirely trustworthy--the cause of the death was
shock and haemorrhage due to the multiple injuries. Dr.
Sarojini had conducted the post-mortem examination of the
deadbody of the deceased. She had dissected the body and
examined the injuries to the internal organs. She was
therefore the best informed expert who could opine with
authority as to the cause of the death and as to the suffi-
ciency or otherwise of the injuries from which the death
ensued. Dr. Sarojini’s evidence on this point stood on a
better footing than that of the Doctors (PWs. 11 and 26)
who had externally examined the deceased in his life-time.
Despite this position, the High Court has not specifically
considered the evidence of Dr. Sarojini with regard to the
sufficiency of the injuries to cause death in the ordinary
course of nature. There is no reason why Dr. Sarojini’s
evidence with regard to the second element of Clause (3) of
s. 300 be not accepted. Dr. Sarojini’s evidence satisfacto-
rily establishes the presence of the second element of this
clause.
There is therefore, no escape from the conclusion, that
the offence committed by the accused was ’murder’, notwith-
standing the fact that the intention of the accused to cause
death has not been shown beyond doubt.
In Anda v. State of Rajasthan (supra), this Court had to
deal with a very similar situation. In that case, several
accused beat the victim with sticks after dragging him into
a house and caused multiple injuries including 16 lacerated
wounds on the arms and legs, a hematoma on the forhead and a
bruise on the chest. Under these injuries to the arms and
legs lay fractures of the right and left ulnas, second and
third metacarpal bones on the right hand and second metacar-
pal bone of the left hand, compound fractures of the right
tibia and right fibula. There was loss of blood from the
injuries. The Medical Officer who conducted the autopsy
opined that the cause of the death was shock and syncope due
to multiple injuries; that all the injuries collectively
could be sufficient to cause death in the ordinary course of
nature, but individually none of them was so sufficient.
614
Question arose whether in such a case when no signifi-
cant injury had been inflicted on a vital art of the body,
and the weapons used were ordinary lathis, and the accused
could not be said to have the intention of causing death,
the offence would be ’murder’ or merely ’culpable homicide
not amounting to murder’. This Court speaking through
Hidayatullah J. (as he then was), after explaining the
comparative scope of and the distinction between ss. 299 and
300, answered the question in these terms:
"The injuries were not on a vital part of the body and
no weapon was used which can be described as specially
dangerous. Only lathis were used. It cannot, therefore, be
said safely that there was an intention to cause the death
of Bherun within the first clause of s. 300. At the same
time, it is obvious that his hands and legs were smashed
and numerous bruises and lacerated wounds were caused. The
number of injuries shows that every one joined in beating
him. It is also clear that the assailants aimed at breaking
his arms and legs. Looking at the injuries caused to Bherun
in furtherance of the common intention of all it is clear
that the injuries intended to be caused were sufficient to
cause death in the ordinary course of nature, even if it
cannot be said that his death was intended. This is suffi-
cient to bring the, case within 3rdly of s. 300."
The ratio of Anda v. State of Rajasthan (supra) applies
in full force to the facts of the present case. Here, a
direct causal connection between the act of the accused and
the death was established. The injuries were the direct
cause of the death. No secondary factor such as gangrene,
tetanus etc., supervened. There was no doubt whatever that
the beating was premeditated and calculated. Just as in
Anda’s case, here also, the aim of the asailants was to
smash the arms and legs of the deceased, and they succeeded
in that design. causing no less than 19 injuries, including
fractures of most of the bones of the legs and the arms.
While in Anda’s case, the sticks used by the assailants were
not specially dangerous, in the instant case they were
unusually heavy, lethal weapons. All these acts of the
accused were pre-planned and intentional, which, considered
objectively in the light of the medical evidence. were
sufficient in the ordinary course of nature to cause
death. The mere fact that the beating was designedly con-
fined by the assailants to the legs and arms, or that none
of the multiple injuries inflicted was individually suffi-
cient in the ordinary course of nature to cause death, will
not exclude the application of Clause 3rdly of s. 300. The
expression "bodily injury" in Clause 3rdly includes also its
plural, so that the clause would cover a case where all the
injuries intentionally, caused by the accused are cumula-
tively sufficient to cause the death in the ordinary course
of nature, even if none of those injuries individually
measures upto such sufficiency. The sufficiency spoken of in
this clause. as a|ready noticed, is the high probability of
death in the ordinary course of nature, and if such suffi-
ciency exists and death is caused and the injury causing it
is intentional, the case would fail under Clause 3rdly of s.
300. All the conditions which are a pre-requisite for the
applicability of this clause have been established and the
offence committed by the accused in the instant case was
’murder’.
615
For all the foregoing reasons, we are of opinion that the
High Court was in error in altering the conviction of the
accused-respondent from one under s. 302, 302/34, to that
under s. 304, Part II, Penal Code. Accordingly we allow this
appeal and restore the order of the trial Court convicting
the accused (Respondent 2 herein) for the offence of murder,
with a sentence of imprisonment for life. Respondent 2, if
he is not already in jail shall be arrested and committed
to prison to serve out the sentence inflicted on him.
P.B.R. Appeal
allowed.
616