Holding

The intention prevailing at the time of assault, to cause bodily injury sufficient in the ordinary course of nature to cause death, makes the offence murder under Section 302 IPC; the conviction under Section 302 is therefore justified.

Summary

The appellants conspired to rob Hazi Mohd. Yakub and, when he resisted, three of them stabbed him repeatedly with knives, causing his death and stealing cash and drafts. The trial court convicted them of culpable homicide not amounting to murder under Section 304 Part I IPC, but the Andhra Pradesh High Court altered the conviction to murder under Section 302 IPC. The appellants appealed, challenging the conviction and the delay in the test identification parade, while the State appealed the acquittal of other accused. The Supreme Court held that the intention at the time of assault—to inflict bodily injury sufficient in the ordinary course of nature to cause death—makes the offence murder under Section 302, and that the delay in the identification parade does not vitiate the prosecution’s case. Consequently, the conviction under Section 302 was upheld and the appellants’ appeals were dismissed.

Issues considered

The appropriate charge: murder under Section 302 IPC versus culpable homicide not amounting to murder under Section 304 Part I IPC.
Whether the delay in conducting the test identification parade undermines the reliability of eyewitness testimony.
Whether the injuries causing death were sufficient in the ordinary course of nature, affecting the mens rea required for murder.

Legislation cited

Arms Act, 1959s. 25(1-B)
Code of Criminal Procedure, 1973
Indian Evidence Act, 1872
Indian Penal Code, 1860s. 120-B, s. 25(1-B), s. 299, s. 300, s. 302, s. 304, s. 34, s. 392

Subjects

murderculpable homicideSection 302 IPCSection 304 IPCintentiontest identification paradedelayforensic evidencerobberystabbingmens rea

Judgment

/

ABDUL WAHEED KHAN @ WAHEED AND ORS. A
v.
STATE OF ANDHRA PRADESH

AUGUST 27, 2002.

[RUMA PAL AND ARIJIT PASAYAT, JJ.] B

Penal Code, I 860-Sections 302, 300 and 229--Conviction under Section
302--Correctness of-With an object to rob, accused persons indiscriminately
stabbing a person resulting in his death-Trial Court convicting accused for
culpable homicide not amounting to murder-High Court converting convictio71
c
to murder-On appeal held, the intention prevailing at the time of assault
determines applicability of relevant provisions-In the instant case, death
ensued from bodily injury or injuries sufficient to cause death in the ordinary
course of nature-Hence High Court justified in converting conviction of
accused to murder. D
Murder and culpable homicide not amounting to murder-Distinction
betwee~Discussed ·.
Test identification parade-To be conducted immediately after arrest of
accused person-However, some delay in holding the test which is beyond E
control does not corrode the prosecution case.

- Appellants-accused entered into conspiracy to rob one H. Three of
the accused indiscriminately stabbed H with knives which resulted in his
death. Trial Court on the basis of evidence of eye-witnesses convicted the
three accused under Section 304 Part I read with Section 34 IPC and F
acquitted others. High Court altered the conviction and sentence to one
under Section 302 IPC and upheld the acquittal of other accused. Hence
the present appeals.

Appellants contended that delay in conducting the test identification
parade corroded the prosecution version; that High Court should not have G
altered the conviction and as per the doctor who conducted post-mortem
injury was on account of fall on the rough surface thus it was not possible
to draw inference about the intention of the accused to kill deceased for
robbing the cash.
H
... 703
,•
704 SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.

A Respondent contended that due formalities were observed before
conducting test identification parades and the reason for some delay in
conducting th~ test had been duly explained and that to achieve the
intended object of robbing deceased, accused persons indiscriminately
stabbed him till he succumbed to death and the cash and the drafts were
B snatched away from him; thus High Court was justified in applying Section
302 IPC.

Dismissing tlie appeals, the Court

HELD: 1.1. The academic distinction between 'murder' and
'culpable homicide' not amounting to murder' has always vexed the
(
C 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. (712-C, DJ

1.2. Clause (b) of Section 299 IPC corresponds with clauses (2) and
D (3) of SectioD--300 IPC. The distinguishing feature of the mens rea requisite
under clause (2) is the knowledge possessed by 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. The 'intention
E 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. (713-F, G]

F 1.3. 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 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
G death of that particular person as a result of 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
H 300, instead of the words 'likely to cause death' occurring in the
ABDUL WAHEED KHAN~ WAHEED r. STATE OF A.P. [ARIJIT PASA VAT, 1 J 705

corresponding clause (b) of Section 299, the words "sufficient in the A
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 degrees of probability of death resulting from the intended bodily B
injury. 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 C
will be the "most probable" result of the injury, having regard to the
ordinary course of nature. 1713-H; 714-A-EI

1.4. 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 iujury or injuries sufficient to cause death in the D
ordinary course of nature. 1714-FJ
- 1.5. 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 E
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 F
probability, the act having been committed by the offender without any
excuse for incurring the risk of causing death or such injury. These 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 G
each, that it may not be convenient to give a separate treatment to the
matters involved in the second and third stages. )716-E-HJ

1.6. In the instant case, evidence of witnesses was that the three
appellants had indiscriminately stabbed the deceased, though their object
was to rob him. As established by evidence of eye-witnesses accused H
706 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A persons expected resistance and all the three were armed with knives. It
cannot be said that they expected no resistance even if they intended to
rob a huge sum of money. The intended object was to get money. When
there was expected resistance by the deceased, they went on giving stabs
with the knives till deceased lost his life and thereafter cash and demand
B drafts were snatched. It is the intention prevailing at the time of assault,
which determines the applicability of the relevant provisions. One of the
factors which appears to have weighed with trial court, and on which
reliance was placed to alter conviction to Section 304 Part I was the finding
that the two injuries which were stated by the doctor-prosecution witness
to be sufficient to cause the death were possible by fall. A reading of the
C post-mortem report indicates that several injuries were stated by the
doctor to be the cause of death and the two injuries noticed by trial court
were not the only ones. In fact, stab injury was one of them. There were
six stab wounds. The doctor stated stab injury, other injuries and internal
injuries were sufficient to cause death in the normal course of nature.
D Much was made by trial court of the statement of doctor to the effect that
cause of death could be stab wounds associated with head injury. It was,
however, not noticed that the doctor clarified that the stab wounds as well
as the head injury are individually sufficient to cause death. The stab
wounds came first and then the possible fall. Thus taking into account the
totality of the circumstances the conviction under Section 302 IPC by High
E Court cannot be faulted. 1717-B-FI
Rajwant and Ors. v. State of Kera/a, AIR (19661 SC 1874; Virsa Singh
v. State of Punjab, AIR (1958) SC 465 and State of Andhra Pradesh v.
Rayavarapu Punnayya, (19761 4 SCC 382, relied on.

F 2. The necessity for holding an identification parade can arise only
when the accused are not previously known to witnesses. The main object
of holding an identification parade, during the investigation stage, is to
test the memory of witnesses who claim to have seen the culprits at the
time of occurrence are to identify them from the midst of other. persons
G without any aid or any other source based upon first impression and also
to enable prosecution to decide whether all or any of them could be cited
as eye-witness of the crime. The identification proceedings are in the nature
of tests done to check upon their veracity. It is desirable that a test
identification parade should be conducted soon after the arrest of accused.
This becomes necessary to eliminate the possibility of accused being shown
H to witnesses prior to the test identification parade. If however,
ABDUL \VA HEED KHAN 1@ WA HEED v. STATE OF AP [ARIJIT PASA VAT, J.] 707

circumstances are beyond control and there is some delay, it cannot be A
said to be fatal to the prosecution. In the instant case, all possible efforts
were made to have test identification parade immediately after the arrest
of accused persons. As the prosecution witness was not available on the
first test, on request of police second test was held. Merely because the
second test identification parade was held, that cannot be a suspicious
circumstance. 1710-H; 711-A-EI B
Matru '.OJ Girish Chandra v. The State of UP., AIR (1971) SC 1050
and Santokh Singh v. hhar Hussain and Anr., AIR (1973) SC 2190, relied
on.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 917- C
920 of 2000.

From the Judgment and Order dated 22-1-2000 of the Andhra Pradesh
High Court in Crl.A.Nos. 717/96, 916/96, 660196 and IOI 1/96.

Nrottam Vyas. S.N. Tewari and B.D. Sharma for the Appellants. Ms. D
T. Anamika and G. Prabhakar for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASA YAT, J. These four appeals relate to a common
judgment passed by a Division Bench of the Andhra Pradesh High Court, E
whereby three appeals filed by the accused-appellants and one by the State
were disposed of. While the accused-appellants challenged their conviction
under Section 304 Part 1 read with Section 34 of the Indian Penal Code, 1860
(in short 'IPC'}, State had taken the stand that accused-appellants should have
been convicted under Section 302 read with Section 34 IPC and the two
accused who had been acquitted by the trial court should have also been F
convicted. The appeals filed by the accused-appellants were dismissed and
the appeal filed by the State was partially allowed by converting sentence to
Section 302 !PC.

Prosecution version sans unnecessary details as unfolded during trial G
was as follows:

Accused no. 4 Babu Jani @ Majid Khan @ Majid was an ex-employee
of Hazi Mohd. Yakub (hereinafter referred to as 'deceased'), who had five
textile wholesale shops, which he was running along with his sons and
grandsons. Accused Babu Jani joined hands with city dossier criminals, namely, H
708 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A Abdul Waheed Khan @ Waheed (accused no. I); Mohd. Haneef@ Haneef
(accused no. 2) and Mohd. Khadeer @ Khadeer (accused no. 3), and hatched
a plan with the aforesaid three accused persons and a friend of his namely,
Aleem (accused no. 5). The object was to rob the deceased, and if necessary
by liquidating him. Accused Babu Jani had the knowledge that the deceased
used to go his house around 8.00 p.m. with the sale proceeds of the shops
B and the collections were more than rupees one lakh. In pursuance of the
conspiracy, accused Babu Jani took the first three accused on 19-2-1993 and
20-2-1993 between 7 and 7 .30 p.m. to point out the deceased and to acquaint
them with his moments of a fixed nature. First attempt was made on 22-2-
1993, but finding a lot of people around the spot, the intended objective
C could not be achieved. On the next day i.e. 23-2-1993 the fateful date of the
incident, at about 7.30 p.m. after obtaining information from accused Babu
Jani accused nos. 1 to 3 waited near house of the deceased on a stolen Chetak
scooter and were armed with the knives. Accused no. 2 was having a plastic
tin containing chilly powder water in his hands. At about 7.45 p.m. the
deceased reached near his house in his Ambassador car driven by Mohd.
D Taher PW2. He was carrying cash of more than Rs. 2.32 lakhs and demand
drafts of Rs. 1,60,000 which were in his cloth bag. When the driver opened
the rear right door of the car and went to collect the tiffin-carrier of the
deceased from the left front door, accused nos. 1 to 3 kept their scooter in
motion and rushed to the deceased Haze Mohd. Yakub and began stabbing
E him indiscriminately with their three knives, while accused no. 2 tried to
snatch the bag containing the cash and the demand drafts. There was street
light and also light inside the car. When PW2 rushed to the rescue of the
deceased, accused no. 2 threw chilly powder water on his face and he shouted
for help. Further knife blows were given by the three accused persons till the
deceased collapsed. Accused no. 2 snatched away the cash bag from the
F hands of the deceased and all the three accused persons fled away on their
scooter. Though PW2 and one Samad Khan (PW-4) chased the accused persons
to some distance, they succeeded in fleeing away. Several other persons
including Mohd. Idris Ali Khan, Mohd. Abdul Bari (PW-3) tried to come
near the deceased, but they found him dead. The three accused Nos. 1 to 3
G went to the house of accused Aleem at Boda Banda where accused Babu Jani
was waiting for them. Aleem harboured accused nos. 1 to 4 in his house and
they shared the looted money but destroyed the demand drafts. Police on
getting information reached at the spot and the First Information Report was
lodged by Mohd. Iqbal (PW-1). Investigation was conducted and on completion
thereof charge-sheet was filed.
H
ABDUL WAHEED KHAN@WAHEEDv. STATE OF A.P [ARIJITPASAYAT,J J 709

While the first three accused persons were charged for having committed A
offences punishable under Section 302 !PC read with Section 34 thereof and
Section 392 read with Section 34 thereof, and Section 25(1-B) of the Arms
Act, 1959 (in short 'Arms Act'). The first four accused persons were charged
with commission of offences punishable under Section 302 read with Section
120-B(l)IPC well Section 392 read with Section 120-B(l) !PC. Accused no.
5 was charged with commission of offence punishable under Section 302 B
read with Section 212 !PC, and Section 41 l !PC. The accused persons pleaded
innocence.

In order to substantiate its case, the prosecution examined 33 witnesses.
The trial court found the evidence of the eye-witnesses to be credible and C
held accused nos. I to 3 to be guilty. However, it was concluded that the
offences for the commission of which accused nos. I to 3 were to be convicted
related to Section 304 Part I and Section 392 read with Section 34 !PC. They
were sentenced to suffer rigorous imprisonment for a period of ten years each
on the first count, and also to undergo seven years rigorous imprisonment for
the second. Both the sentences were directed to run concurrently. While the D
accused persons filed appeals against their conviction and sentence before
the High Court, State challenged the conviction for lesser offences, and also
against the acquittal of the other two accused persons. As noted above, the
High Court held accused persons to be guilty of offence punishable under
Section 302 li'C, and not under Section 304 Part I. Accordingly, the State's E
appeal to that extent was allowed. But the acquittal of the other accused
persons was upheld. Judgment of the High Court, as noted above, is the
subject matter of challenge in these appeals.

Learned counsel for the appellants submitted that the evidence on which
the trial court has placed reliance does not inspire confidence. The accused F
persons were put to test identification parade after their arrest. PW2, the
driver did not participate in the first test identification parade and only after
a month a second test identification parade was conducted when PW2
participated and identified the accused persons. According to the learned
counsel delay in conducting the parade corroded prosecution version.
Ultimately, it was submitted that looking into the circumstances, Trial Court G
came to the right conclusion that the accused were to be convicted under
Section 304 Part I !PC and not under Section 302 !PC. The High Court
should not have altered the conviction. Learned counsel for the appellant has
submitted that the doctor PW8, who conduced the post-mortem has found
injury no. 10 in Ex. P/5 to be an abrasion on the left temple of the deceased H
710 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A and it is possible on account of fall on the rough surface. Similarly, internal
injury no.2 corresponded to external injury no. I 0. From this the trial court
had arrived at the conclusion that it was not possible to drawn inference
about accused nos. I to 3's intention to kill the deceased for robbing the cash.

The learned counsel for the State submitted that the trial court has dealt
B with in detail as to why there was some delay in holding the test identification
parades. It is to be noted that the accused persons were arrested after about
2 months of the date of occurrence. They were placed in police custody and
thereafter under judicial custody. Immediately after the accused persons were
arrested a motion was made to the concerned court for test identification
C parade and moment the court fixed the date, the test identification parade was
conducted. As PW2 was not available on the first date, a second test
identification parade was done. The High Court found no substance in the
plea of the accused-appellants that the witnesses identified the accused persons
as they were in jail prior to this identification parade. It was noted with
referred to the evidence of concerned Metropolitan Magistrate who conducted
D the test identification parade that due formalities were observed before
conducting test identification parades. It also held that the reason for delay
has been duly explained.

Coming to the applicability of Section 302 IPC, it is submitted that
E though the intention was to rob the deceased, when the deceased resisted, in
order to achieve the intended object, he was indiscriminately stabbled till he
succumbed to death and the cash and the drafts were snatched away. The
High Court was justified in its conclusion about the applicability of Section
302 IPC.

p The High Court has duly considered the injuries highlighted by Trial
Court and found the approach to be wrong. The respective stands need careful
consideration.

As was observed by this Court in Matru@ Girish Chandra v. The State
of UP., AIR (1971) SC 1050, identification tests do not constitute substantive
G evidence. They are primarily meant for purpose of helping the investigating
agency with an assurance that their progress with the investigation into the
offence is proceeding on the right lines. The identification can only be used
as corroborative of the statement in court. [See Santokh Singh v. lzhar Hussain
and Anr., AIR (1973) SC 2190. The necessity for holding an identification
H parade can arise only when the accused are not previously known to the
ABDUL WAHEED KHAN @WAH EEO 1•. STATE OF AP. [ARIJIT PASA YAT, J.] 711

witnesses. The whole idea of a test identification parade is that witnesses who A
claim to have seen the culprits at the time of occurrence are to identify them
from the midst of other persons \Vithout any aid or any other source. The test
is done to check upon their veracity. In other words. the main object of
holding an identification parade, during the investigation stage, is to test the
memory of the witnesses based upon first impression and also to enable the
prosecution to decide whether all or any of them could be cited as eye- B
\Vitness of the crime. The identification proceedings are in the nature of tests
and significantly, therefore, there is no provision for it in the Code of
Criminal Procedure, 1973 (in short 'Code') and the Indian Evidence Act,
1872 (in short the 'Evidence Act,'). It is desirable that a test identification
parade should be conducted as soon as after the arrest of the accused. This C
becomes necessary to eliminate the possibility of the accused being shown to
the witnesses prior to the test identification parade. This is a very common
plea of the accused and, therefore, the prosecution has to be cautious to
ensure that there is no scope for making such allegation. If, however,
circumstances are beyond the control and there is some delay, it cannot be
said to be fatal to the prosecution. In the instant case, the factual scenario D
noted by the trial court reveals that all possible efforts were made to have test
identification parade immediately after the arrest of the accused persons. The
accused persons were arrested on 25-5-1993, Were in police custody from 9-
6-1993. On 16-6-1993, requisition was given to the Magistrate to hold the
identification and first test was held on 26-6-1993 by the Magistrate. As PW- E
2 was not available, on request of police second test was held. Merely because
the second test identification parade was held that cannot be a suspicious
circumstance as prosecution has explained as to why that was necessitated.

In view of the credible and cogent evidence of the eye-witnesses we do
not find any substance in the plea that the testimony of the witnesses suffered F
from any infirmity. The appellants have already been held to be the authors
of the crime. The Trial Court analysed evidence of the eye-witnesses in great
detail. They have graphically described the incident. Incisive cross-examination
has not brought any doubt on the truthfulness of their statements. High Court
in appeal has also dealt with the acceptability of the evidence and found it
to be flawless. G

This brings us to the crucial question as to which was the appropriate
provision to be applied. In the scheme of the !PC 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 H
712 SUPREME COURT REPORTS [2002) SUPP. I S.C.R.
.....
A 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 greatest
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
B 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.
c 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
D of these provisions seems to be to keep in focus the keywords used in the
various clauses of Sections 299 and 300, the following comparative table will
be helpful in appreciating the point of distinction between the two offences.

Section 299 Section 300
E A person commits culpable
Subject to certain exceptions
homicide if the act by which the
culpable homicide is murder if the
death is caused is done-
act bywhich the death is caused is
done-

INTENTION
F
(a) with the intention of causing (I) with the intention of causing
death; or death or

(b) with the intention of causing (2) with the intention of causing
such bodily injury as is likely such bodilyinjury as the
G to cause death, or offender downs to be 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 person and
H
ABDUL WAHEED KHAN@ WAHEED v. STATE OF A.P LARiJIT PASA YAT, J_J 713

the bodily injury intended to be A
infected is sufficient in the

- ordinary course of nature tb
cause death; or

B

c

KNOWLEDGE

(c) with the knowledge that the act (4) with the knowledge that the act
is likely to is so cause death imminently D
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 E
causing death or such injury as
is mentioned above.

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 F
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 G
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 H
714 SUPREME COURT REPORTS f2002] SUPP. I S.C.R.

A 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
·-
B 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
C words "sufficient in the ordinary course ofnature" 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
D 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 \\/Ord '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 cause death" mean that
E death will be the "most probable" result of the injury, having regard to the
ordinary course of nature.

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
F nature. Rajwani and Ors. v. State of Kera/a, AIR ( 1966) SC 187 4 is an apt
illustration of this point.

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 must prove the following facts before it can
G 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 that particular injury, that is to
say, that it was not accidental or unintentional or that some other kind of
H injury was intended. Once these three elements are proved to be present, the
-· ABDUL WAHEED KHAN 'ill WAHEED v STATE OF AP_ [ARIJIT PASA VAT, J.}

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 sufficient
715

A

- ·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.

T:1e ingredients of clause "Thirdly" of Section 300, !PC were brought B
out by the illustrious Judge in his terse language as follows:

"To put it shortly, the prosecution must prove the followi.ng facts
before it can bring a case under Section 300, "thirdly".

First, it must establish, quite objectively, that a bodily injury is present. C
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 that
particular bodily injury, that is to say that it was not accidental or D
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 is sufficient to cause E
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."

The learned Judge explained the third ingredient in the following words
(at page 468).
F

"The question is not whether the prisoner intended to inflict 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, G
the intent that the section requires is not proved. But ifthere is nothing
beyond the injury and the fact that the appellant inflicted it, the only
possible inference is that he intended to inflict it. Whether 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 H
716 SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.

A seriousness but whether he intended to inflict the injury in 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."

There observations of Vivian Bose, J. have become locus classicus.
B 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. ta) that the act
which causes death is done with the intention of causing death or is done
C 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.
D
Thus, according to the rule laid down in Virsa Singh's case, 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 Section 300 clearly brings out this point.
E
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
F probability of death of a person or persons in general as distinguished from
a particular person or persons-being caused from his imminentiy 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
G 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 interwined and the second and the third stages so telescoped
into each, that it may not be convenient to give a separate treatment to the
H matters involved in the second and third stages.
ABDUL WAHEED KHAN@WAHEElh STATE OF AP IARIJIT PASAYAT, J 1 717

The position was illuminatingly highlighted by the this Court in State A

-
of Andhra Pradesh v. Rayvarapu Punnayya, (1976] 4 SCC 382.

In the case at hand, the evidence of the witnesses was that the three
appellants had indiscriminately stabbed the deceased, though their object was
to rob deceased. As established by evidence of eye-witness the accused persons
expected resistance and all the three were armed with knives. It cannot be B
said that they expected no resistance even if they intended to rob a huge sum
of money. The intended object was to get the money. When there was expected
resistance by the deceased, they went on giving stabs with the knives till the
deceased lost his life and thereafter the cash and the demand drafts were

- snatched. It is the intention prevailing at the time of assaults, which determines
the applicability of the relevant provisions. One of the factors which appears
to have weighed with the trial court, and on which the reliance was placed
C

to alter conviction to Section 304 Part I was the finding that the two injuries
which were stated by the doctor PW8 to he sufficient to cause death were
possible by fall. A reading of the post-mortem report indicates that several
injures were stated by the doctor to be the cause of death and the two injuries D
·noticed by the trial court were not the only ones. In fact, injury no, 5 i.e. stab
injury was one of them. There were six stab wounds. The doctor stated injury
Nos. 5,7 and l l and internal injuries I and 2 were sufficient to cause death
in the normal course of nature. Much was made by the trial Court of the
statement of PW-8 to the effect that cause of death could be stab wounds
associated with head injury. It was, however, not noticed that the doctor
E
clarified to the following effect: . "The Stab wounds as well as the head
injury are individually sufficient to cause death". The stab wounds came first
and then the possible fall. Taking into account the totality of the circumstances
the conviction recorded by the High court under Section 302 !PC cannot be
faulted. F
The appeals deserve dismissal, which we direct.

N.J. Appeals dismissed.