Holding

The offence does not fall within Section 302 IPC; the proper conviction is under Section 304(Part I) IPC.

Summary

Balkar Singh was convicted by the trial court and affirmed by the High Court for the murder of two persons and attempted murder of a third under Section 302 and 307 IPC, based on the testimony of an injured witness and two eye‑witnesses. The appellant contended that the facts did not satisfy the statutory requirements of murder under Section 300(3) IPC and that the appropriate charge should be culpable homicide not amounting to murder under Section 304(Part I). The Supreme Court examined the distinction between Sections 299(b) and 300(c), emphasizing that murder requires a bodily injury sufficient in the ordinary course of nature to cause death, whereas a merely likely injury falls under culpable homicide. Applying the test laid down in Virsa Singh and Rajwant, the Court held that the injuries inflicted were not sufficient to constitute murder and therefore the conviction under Section 302 was unsustainable. Consequently, the conviction was altered to Section 304(Part I) IPC with an eight‑year imprisonment, and the appeal was partly allowed.

Issues considered

The applicability of Section 302 IPC to the facts of the case versus conviction under Section 304(Part I) IPC
The distinction and interpretation of Sections 299(b) and 300(c) of the IPC in relation to intent and the nature of injury

Legislation cited

Indian Penal Code, 1860s. 299(b), s. 300(c), s. 302, s. 304(Part I)

Subjects

murderculpable homicideSection 302 IPCSection 304 IPCintentbodily injuryIndian Penal Codecriminal law

Judgment

[2009] 5 S.C.R. 242

A BALKAR SINGH
v.
STATE OF UTIARAKHAND
(Criminal Appeal No. 206 of 2007)
MARCH 31, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]

Penal Code, 1860:
c
s. 304 (Part I) - Conviction u/ss. 302 and 307 - By Courts
below - Relying on evidence of injured witness and eye-
witnesses - On appeal, held: In view of the circumstances in
which offence was committed, case not covered u/s. 302 -
0 Conviction altered to one uls. 304 (Part I).
ss. 299 (b) and 300 (c) - Distinction between -
Discussed.

Appellant-accused was prosecuted for having
E caused death of two persons and for attempt of murder
one person . Trial court convicted him ulss. 302 and 307
IPC, placing reliance on evidence of one injured eye-
witness and two other eye-witnesses. The conviction
was confirmed by High Court discarding the contention
F of the accused that the case was not covered by s. 302 •
IPC. Hence, the present appeal.

' Partly allowing the appeal, the Court

HELD: 1.1. In the scheme of the IPC culpable
G 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
H 242
·- BALKAR SINGH v. STATE OF UTTARAKHAND 243

punishment, proportionate to the gravity of the generic A
offence, the IPC practically recognizes three degrees of
culpable homicide. The first is, what may be called,

-- •
'culpable homicide of the first degree'. This is the gravest
form of culpable homicide, which is defined in Section
300 IPC 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 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 c
provided for the three grades. Culpable homicide of this
... degree is punishable under the second part of Section
304 IPC. [Para 7] [248-G-H; 249-A-B]

1.2. The distinction between ss. 299 and 300 IPC lies
__,;
between a bodily injury likely to cause death and a bodily D
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 E
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 th~ gravest,
medium or the lowest degree. The word 'likely' in clause
~ (b) of Section 299 conveys the sense of probable as F
distinguished from a mere possibility. For cases to fall
' within clause (3), it is not necessary that the offender
J
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. [Paras 10 G
and 11] [251-B-G; 252-A-B]

1.3. 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
H
244 SUPREME COURT REPORTS [2009] 5 $.C.R.

A with the intention of causing death or is done with the
intention of causing a bodily injury; and (b) that the injury r
~

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,
8 in the ordinary course of nature, was sufficient to cause
death, viz., that the injury found to be present was the
injury that was intended to be inflicted. [Para 15) [254-A-
• ---
BJ
c and Rajwant and Anr. v. State of Kera/a AIR 1966 SC 1874
Virsa Singh v. State of Punjab AIR 1958 SC 465, relied
on.

State of Andhra Pradesh v. Rayavarapu Punnawa and
Anr.1976 (4) SCC 382; Abdul Waheed Khan@ Waheed and
D Ors. v. State of Andhra Pradesh JT 2002 (6) SC 274; ~

Augustine Saldanha v. State of Karnataka 2003 (10) SCC
472; Thangaiya v. State of Tamil Nadu 2005 (9) SCC 650
and Laxmannath v. State of Chhatisgarh 2009 (1) SCR 348,
referred to.
E
2. The background as projected by the prosecution
is that the accused requested the deceased to have
some wine with him as weather was very cold. Deceased-
1 replied that he did not like to have wine with a person
like the accused. On this the accused pleaded that the
F family members of Deceased-1 and Deceased-2 had got •
him punished and if he did not take wine with him the
enmity would be continued. On this Deceased-2 told him
that they did not have wine with people like the accused
and he can do whatever he wanted to do. On this the
G appellant went inside the house and came back with a
gun. The deceased and the. witnesses were travelling in
a tractor which was moving at a high speed. The
appellant did not direct first shot towards the deceased,
he fired in the air and thereafter indiscriminately fired
H shots. In this background and in view of the principles
BALKAR SINGH v. STATE OF UTIARAKHAND 245

of law as regards s. 299 (b) and s. 300 (3) IPC, the offence A
.is not covered by Section 302 IPC. The proper conviction
would be under Section 304 (Part I) IPC. Custodial
sentence of 8 years would meet the ends of justice in the
peculiar facts of the case. [Paras 5 and 20) [248-C-E; 255-
.. C-D) B
Case Law Reference:
AIR 1966 SC 1874 Relied on Para 11
AIR 1958 SC 465 Relied on Para 12
c
1976 (4) sec 382 Referred to Para 19
JT 2002 (6) SC 274 Referred to Para 19

- -'
2003 (10) sec 472
2005 (9) sec 650
Referred to
Referred to
Para 19
Para 19
D

2009 (1) SCR 348 Referred to Para 19
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 206 of 2007. E
From the Judgment & Order dated 10.07.2006 of the High
Court of Uttaranchal at Nainital in Criminal Appeal No. 1387
of 2001 (Old No. 2174of1985).
.. S.K. Dubey, P.K. Jain, P.K. Goswami, K.K. Mishra, R.P. S. F
'Bhaduria and Sumita Hazarika for the Appellant.

S.S. Sham Shery and Rachana Srivastava for the
Respondents.

The Judgment of the Court was delivered by G

• DR. ARIJIT PASAYAT, J.1. In this appeal challenge is to
the judgment of a Division Bench of the Uttarakhand High Court
upholding the conviction of the appellant as recorded by learned
First Additional Sessions Judge, Nainital under Section 302 of H
246 SUPREME COURT REPORTS [2009] 5 S.C.R.

A Indian Penal Code, 1860 (in short the 'IPC'). The allegation was
that accused committed murder of Ajeet Singh (hereinafter
referred to as 'D-1') and Bajan Singh (hereafter referred to as
'D-2') and attempted to commit murder of Roop Singh for which
he was convicted under Section 307 IPC and sentenced to 10
B years RI. ~

2. Prosecution version in a nutshell is as follows:
On 01.01.1983, at about 5:00 P.M., D-1 along with Roop
Singh (P.W. 2) (injured) and Harbhajan Singh (P.W.1) informant,
c were going in a tractor to take flour from wheat flour mill of one
Ram Prasad in village Paigakhas, situated within the limits of
P.S. Kashipur (earlier part of District Nainital. At about 5:15
p.m., when they reached and got down in village Paigakhas,
accused/appellant Balkar Singh met them and asked D-1 to
0 have some wine with him, as it was a chilly day. On this, D-1
curtly replied that he would not have wine, bought with the
money of the accused/appellant. There was old enmity between
Balkar Singh (accused/appellant) and D-1 as earlier on a report
lodged against accused/appellant Balkar Singh by the family
E members of D-1, he had been convicted but later on, acquitted
by the appellate court. When Balkar Singh reiterated his
request to have drinks with him and not to develop further
enmity between them, D··1 again firmly told that he would not
have liquor with Balkar Singh and he may do whatever he likes.
This made Balkar Singh feel insulted and he threatened D-1
F that he will have to face the consequence of this refusal. Then
Balkar Singh went to his house to bring his gun and in the
meantime D-1 after taking flour from the wheat flour mill,
proceeded for his further journey. When D-1 and others, in their
tractor, reached near temple of goddess in village Paigakhas,
G accused Balkar Singh armed with a gun, fired a shot at D-1. It
was around 5:30 p.m. D-1 on seeing Balkar Singh, firing at him,
drove the tractor a bit faster. Balkar Singh, kept on firing shots, •
one after another and injured D-1, Bhajan Singh and Roop
Singh. D-2 along with Roop Singh (P.W. 2) and Harbhajan
H Singh (P.W.1), in an attempt to save their lives, jumped from
BALKAR SINGH v. STATE OF UTIARAKHAND 247
[DR. ARIJIT PASAYAT, J.]
the tractor and took shelter behind rubbish heap by the side of A
pathway in the village. D-1 died on the spot in the tractor.
Meanwhile, villagers started assembling near the scene of
occurrence and accused-appellant Balkar Singh, by then left the
place. Injured Roop Singh and D-2 were taken to Civil Hospital.
But D-2 succumbed to the injuries in the hospital. Harbhajan B
_, Singh (PW-1) lodged oral First Information Report at police
station, Kashipur, at 7:20 p.m. on the very day i.e. 01.01.1983,
which was registered as crime No. 2 of 1983 under Section
302/307 l.P.C. against accused Balkar Singh. On the basis of
the oral report, chick report (Ext. A-1) was prepared and c.
necessary entry in the general diary was made, extract of which
is Ext. A-23. Devendra Kumar Thapliyal (PW-8) Inspector
· lncharge of the police station- Kashipur, took up the
investigation of the case. Meanwhile, the injuries of Roop Singh
(P.W. 2) were recorded in the Civil Hospital at 7:45 p.m. on the 0
.,, same day i.e. 01.01.1983. Inquest report (Ext. A-3) was
prepared after dead body of D-1 was taken into possession
by the police on 02.01.1983, at 7:30 a.m. and police form No.
33 (Ext. A-4), sketch of his dead body (Ext. A-5), police form
No. 13 (Ext. A6) and letter (Ext. A-7) to Chief Medical Officer
for post mortem examination, were prepared. After the death E
of D-2, his dead body was also taken into possession by police
on 02.01.1983, at about 12:30 p.m. and an inquest report (Ext.
A-15), police form No. 33 (Ext. A- 16), sketch of his dead body
(Ext. A-17), police form No. 13 (Ext. A-20) and letter (Ex.A-8)
... to Chief Medical Officer, requesting for post mortem F
examination, were prepared. The Investigating Officer prepared
the site plan and recorded the statements of the witnesses. He
also prepared the recovery memo of the turban lying at the place
of occurrence. After completion of investigation the Investigating
Officer submitted charge sheet. Since the accused persons G
pleaded innocence, trial was held.
Placing reliance on the evidence of an injured witness PW-
- 2 and the eye witnesses PWs 1 and 3 the trial Court recorded
H
248 SUPREME COURT REPORTS [2009] 5 S.C.R.

A the conviction and found the appellant guilty.

3. In appeal the basic stand was that the case at hand is
not covered by Section 302 IPC. The High Court did not accept
the stand and dismissed the appeal. The stand taken before
the High Court was re-iterated in this appeal.
8
4. Learned counsel for the State supported the judgment
of the trial Court as affirmed by the High Court.

5. It is to be noted that the background as projected by the
c prosecution is that the accused requested the deceased to
have some wine with him as weather was very cold. D-1 replied
that he did not like to have wine with a person like the accused.
On this the accused pleaded that the family members of D-1
and D-2 had got him punished and if he did not take wine with
0 him the enmity would be continued. On this D-2 told him that ....
they did not have wine with people like the accused and he can
do whatever he wanted to do. On this the appellant went inside
the house and came back with a gun. The deceased and the
witnesses were travelling in a tractor which was moving at a
E high speed. The appellant did not direct first shot towards the
deceased, he fired in the air and thereafter indiscriminately fired
shots.

6. The basic question is whether Section 302 IPC has
application.
F
7. In the scheme of the IPC culpable homicide is genus
and 'murder' its specie. All 'murder' is 'culpable homicide' but
not vice-versa. Speaking generally, 'culpable homicide' sans
'special characteristics of murder is culpable homicide not
G amounting to murder'. For the purpose of fixing punishment,
proportionate to the gravity of the generic offence, the IPC
practically recognizes three degrees of culpable homicide. The
first is, what may be called, 'culpable homicide of the first
degree'. This is the gravest form of culpable homicide, which -
H is defined in Section 300 as 'murder'. The second may be

r·
BALKAR SINGH v. STATE OF UTIARAKHAND 249
[DR. ARIJIT PASAYAT, J.]
termed as 'culpable homicide of the second degree'. This is A
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 B
the second part of Section 304.

8. 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 C
the true scope and meaning of the terms used by the legislature
in these sections, allow themselves to be drawn into minute
abstractions. The safest way of approach to the interpretation
and application of these provisions seems to be to keep in
focus the keywords used in the various clauses of Sections 299
_, and 300. The following comparative table will be helpful in 0
appreciating the points of distinction between the two offences.
Section 299 Section 300
A person commits Subject to certain exceptions E
culpable homicide if culpable homicide is murder
the act by which the if the act by which the death
death is caused is done- is caused is done -
INTENTION
F
-1 (a) with the intention of causing (1) with the intention of
death; or

causing death; or
G
(b) with the intention of causing ·.. (2) with the intention of
such bodily injury as is likely causing such bodily
to cause death; or injury as the offender
knows to be likely to
cause the death of the
person to whom the H
250 SUPREME COURT REPORTS (2009] 5 S.C.R.

A or

(3) With the intention of
causing bodily injury to
any person and the
bodily injury intended to
B
be inflicted is sufficient
in the ordinary course of
nature to cause death;
or
c KNOWLEDGE

****

(c) with the knowledge that (4) with the knowledge
the act is likely to cause that the act is so
D death. imminently dangerous
'
that it must in ;:111
probability cause death
or such bodily injury as
is likely to cause death,
E and without any excuse
for incurring the risk of
causing death or such
injury as Is mentioned
above.
F
9. Clause (b) of Section 299 corresponds with clauses (2) •
and (3) of Section 300. The distinguishing feature of the mens
rea requisite under clause (2) is the knowledge possessed by
the offender regarding the particular victim being in such a
G 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
H requirement of clause (2). Only the intention of causing the
BALKAR SINGH v. STATE OF UTTARAKHAND 251
[DR. ARIJIT PASAYAT, J.]
bodily injury coupled with the offender's knowledge of the A
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 .
l!l"" -; B
10. Clause (b) of Section 299 does not postulate any such
knowledge on the part of the offender. Instances of cases falling
under clause (2) of Section 300 can be where the assailant
causes death by a fist blow intentionally given knowing that the
victim is suffering from an enlarged liver, or enlarged spleen or
diseased heart and such blow is likely to cause death of that
c
particular person as a result of the rupture of the liver, or spleen
or the failure of the heart, as the case may be. If the assailant
had no such knowledge about the disease or special frailty of
the victim, nor an intention to cause death or bodily injury
~ sufficient in the ordinary course of nature to cause death, the D
offence will not be murder, even if the injury which caused the
death, was intentionally given. In clause (3) of Section 300,
instead of the words 'likely to cause death' occurring in the
corresponding clause (b) of Section 299, the words "sufficient
in the ordinary course of nature" have been used. Obviously, E
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 F
" of the degree of probability of death resulting from the intended
bodily injury. To put it more broadly, it Is the degree of probability
of death which determines whether a culpable homicide is of
the gravest, medium or the lowest degree. The word 'likely' In
clause (b) of Section 299 conveys the sense of probable a$ G
distinguished from a mere possibility. The words ~bod!ly
-i
injury....... sufficient in the ordinary course of nature to caus!!I
death" means that death will be the "most probable~ result of
the injury, having regard to the ordinary course of nature,
H
252 SUPREME COURT REPORTS [2009] 5 S.C.R.

A 11. 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.
v. State of Kera/a, (AIR 1966 SC 1874) is an apt illustration of
B this point. ' "'fl
12. 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 bring a case under
c 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
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 was sufficient to cause death in the ordinary
E course of nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the ......
offender.

13. The ingredients of clause "Thirdly" of Section 300, IPC
F were brought out by the illustrious Judge in his terse language
as follows:
"To put it shortly, the prosecution must prove the following
facts before it can bring a case under Section 300,
"thirdly".
G
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.
H
BALKAR SINGH v. STATE OF UTIARAKHAND 253
[DR. ARIJIT PASAYAT, J.]
Thirdly, it must be proved that there was an intention to A
~ 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 B
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 death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential c
and has nothing to do with the intention of the offender."

14. The learned Judge explained the third ingredient in the
following words (at page 468):
D
-{
''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, the intent that the section
requires is not proved. But if there is nothing beyond the E
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
:: 1 far as the intention is concerned, is not whether he intended F
to kill, or to inflict an injury of a particular degree of
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." G
15. These observations of Vivian Bose, J. have become
locus classicus. 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. H
254 SUPREME COURT REPORTS [2009] 5 S.C.R.

A Under clause thirdly of Section 300 IPC, culpable homicide is
murder, if both the following conditions are satisfied: i.e. (a) that
the act which causes death is done with the intention of causing
death or is done with the intention of causing a bodily injury;
and (b) that the injury intended to be inflicted is sufficient in the I-

B 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.
c 16. 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
D Section 300 clearly brings out this point. )

17. 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
E much on the distinction between these corresponding clauses.
It will be sufficient to say that clause (4) of Section 300 would
be applicable where the knowledge of the offender as to the
probability of death of a person or persons in general as
distinguished from a particular person or persons - being
F caused from his imminently dangerous act, approximates to a t ':.
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.
G 18. The above are only broad guidelines and not cast iron
imperatives. In most cases, their observance will facilitate the
task of the Court. But sometimes the facts are so intertwined
and the second and the third stages so telescoped into each
other that it may not be convenient to give a separate treatment
H
I

::t
BALKAR SINGH v. STATE OF UTTARAKHAND 255
[DR ARIJIT PASAYAT, J.]

- ..
'
to the matters involved in the second and third stages.

19. The position was illuminatingly highlighted by this Court
in State of Andhra Pradesh v. Rayavarapu Punnawa and Anr.
A

< (1976 (4) SCC 382), Abdul Waheed Khan @ Waheed and
"""""' _, Ors. v. State of Andhra Pradesh (JT 2002 (6) SC 274), B
Augustine Saldanha v. State of Kamataka (2003 (10) SCC
472) and Thangaiya v. State of Tamil Nadu (2005 (9) SCC
650) and Laxmannath v. State of Chhatisgarh (SLP (Crl.) No.
6403 of 2006)

20. If the background facts are considered keeping in view c
the principles of law as noted above, the inevitable conclusion
is that the offence is not covered by Section 302 IPC and the
proper conviction would be under Section 304 Part I IPC.
Custodial sentence of 8 years would meet the ends of justice
,
'
-{ in the peculiar facts of the case. D
•
21. The appeal is allowed to the aforesaid extent.
K.K.T. Appeal partly allowed.