Holding

The accused are guilty of culpable homicide not amounting to murder under Section 304(1) read with Section 34 of the IPC, not of murder under Section 302.

Summary

Four accused assaulted Kuttappan with the handles of an axe, spade and an iron rod at night, causing injuries mainly on non‑vital parts and a single fatal head wound. The trial court convicted them of murder under Section 302 read with Section 34, a decision affirmed by the Kerala High Court. On appeal, the Supreme Court held that the single eyewitness was wholly reliable, corroboration was unnecessary, and the nature of the weapons and injuries did not satisfy the mens rea for murder. The claim of private defence was rejected as the accused failed to show a grave apprehension justifying lethal retaliation. Consequently, the conviction was reduced to culpable homicide not amounting to murder under Section 304(1) read with Section 34, with a ten‑year imprisonment sentence.

Issues considered

The conviction under Section 302 IPC can be sustained on the basis of a single eyewitness testimony.
Whether the nature of the injuries and the weapons used warrant conviction under Section 304(1) IPC rather than Section 302 IPC.
Whether the accused successfully established the right of private defence.
Whether Section 34 IPC (common intention) applies to the accused who only focused a torch.
The distinction between Sections 299 and 300 of the IPC in classifying murder versus culpable homicide not amounting to murder.

Legislation cited

Indian Evidence Act, 1872s. 134
Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304(1), s. 34

Subjects

murderculpable homicide not amounting to murderSection 302 IPCSection 304 IPCprivate defencesingle eyewitness testimonySection 34 IPCcommon intentionIndian Evidence Act Section 134weapon handlingtorch illumination

Judgment

)

A
CHACKO @ ANIY AN KUNJU AND ORS. L·
V.
STATE OF KERALA

JANUARY 21, 2004
B
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

Penal Code-Sections 299 and 300-Distinction between-Accused using 'i
handles of axe and spade for assault of the deceased-Mos/ injuries on non-
C viral parts-Held, the accused can be convicted under Section 304 Part I and
not 11nder Section 302.

Indian Evidence Act, 1872-Section 134-Solitary witness-Reliability
of the evidence of--Evidence of so!itwy eye-witness found to be tr111hf11!-
Held, corroboration not required-Conviction can be maintained on the basis
D of evidence of the solitGIJ' witness-Penal Code-Section 302.

Penal Code-Section I 00-Right of private defence to the extent of
causing death-Exercise of-Evidence by the accused-Acc11sed has to establish r
such apprehension to life and property that retaliation to the exte/11 of causing
E death was absolutely necesswy.

The case of the prosecution was that the accused persons had
previons enmity with the deceased. On the date of occurrence, at 11 p.m.,
the accused persons chased and assaulted the deceased with handle of an
axe, spade and iron rod. The assault was carried out with the help of
F torchlight. Most of the injuries were on the hands, legs and ribs of the
deceased. There was one injury on the head of the deceased. The
prosecution version indicated that there was a quarrel between the accused
persons and the deceased.

During trial, the accused persons denied their guilt and claimed right
G of private defence. They claimed that there were injuries on the body of
the accused, which had not been explained by the prosecution.

The Trial Court convicted the accused under Section 302 read with
Section 34 of Indian Penal Code holding that the only eye-witness was a
reliable witness and apart from that, there was the dying declaration of
H 900
CHACKO @ANIYAN KUN.JU 1•. STATE OF KERALA 901

t •·..!. the deceased. On appeal, the High Court confirnied the conviction and A
sentence awarded by the Trial Court.
The accused persons filed an appeal by way of special leave petition
before the Court.
Partly allowing the appeal of the accused persons and converting the
conviction of the accused persons under Section 302, Indian Penal Code B
into one under Section 304 Part I read with Section 34, Indian Penal Code,
the Court
HELD: t.t. Conviction can be based on the testimony of single
witness if he is wholly reliable. Corroboration may be necessary when he
is only partially reliable. If the evidence is unblemished and beyond all C
possible criticism and the Court is satisfied that the witness was speaking
the truth then on his evidence alone conviction can be maintained.
(906-A-B)

1.2. There were injuries found on the body of the accused persons
on the basis of medical evidence. That per se cannot be a ground to totally D
discard the prosecution version. This is a factor which has to be weighed
along with other materials to see whether the prosecution version is
reliable, cogent and trustworthy. When the case of the prosecution is
supported by an eyewitness who is found to be truthful, mere non-
explanation of the injuries on the accused persons cannot be a foundation E
for discarding the prosecution version. Additionally, the dying declaration
was found to be acceptable. 1906-B-CI
1.3. The right of private defence as claimed by the accused persons
have been rightly discarded. Merely because there was a quarrel and two
accused persons sustained injuries, that does not confer a right of private F
defence extending to the extent of causing death as in this case. Though
such right cannot be weighed in golden scales, it has to be established that
the accused persons were under such grave apprehension about the safety
of their life and property that retaliation to the extent done was absolutely
necessary. No evidence much less cogent and credible was adduced in this
regard. (906-C-EI G
2.1. In the scheme of Indian Penal Code culpable homicide is the
genus and "murder" its specie. All "murder" is "culpable homicide" but
not vice versa. "Culpable homicide" sans "special characteristics of murder
is culpable homicide not amounting to murder". For the purpose of fixing
punishment, proportionate to the gravity of the generic offence, Indian H
902 SUPREME COURT REPORTS [2004] 1 S. C.R.

A Penal Code practically recognises three degrees of culpable homicide. The
first is "culpable homicide of the first degree". This is the gravest form of
culpable homicide,. which is defined under Section 300 Indian Penal Code
as "murder". The second may be termed as "culpable homicide of the
second degree". This is punishable under the first part of Section 304,
Indian Penal Code. Then, there is "culpable homicide of the third degree".
B 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, Indian Penal Code. 1906-E-HI
2.2. The distinguishing feature of the mens rea requisite under clause
C (b) of Section 299 and clause (2) of Section 300 Indian Penal Code is the
knowledge possessed by the offender regarding the particular victim being
in such a peculiar condition or state of health that the internal harm caused
to him is likely to be fatal, notwithstanding the fact that such harm would
not in ordinary way of nature be sufficient to cause death of a person in
D normal health or condition. It is noteworthy thnt the "intention to cause
death" is not an essential requirement of clause (2) of Section 300 Indian
Penal Code. Only the intention of causing the bodily injury coupled with
the offender's knowledge of the likelihood of such injury causing the death r
of the particular victim, is sufficient to bring the killing within the ambit
of this clause. If the assailant had no such knowledge about the disease or
E 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. 1908-B-C; E-F]

2.3. The distinction between clause (b) of Section 299 and
F corresponding clause (3) of Section 300 of Indian Penal Code lies between .{
;
a bodily injury likely to cause death and the bodily injury sufficient in
the ordinary course of nature to cause death. The difference between clause
(b) of Section 299 and clause (3) of Section 300 of Indian Penal Code is
one of degree of probability of death resulting from the intended bodily
G injury. The distinction is fine but real and if overlooked, may result in
miscarriage of justice. For cases to fall within clause (3) of Section 300 of
Indian Penal Code, it is not necessary that the offender intended to cause
death, so long as the death ensues from the intentional bodily injury or t ,_
injuries sufficient to cause death in the ordinary course of nature. Under
clause (3) of Section 300 Indian Penal Code, it must be proved that there
H was an intention to inflict that particular bodily injury which, in the
CHACKO@ANIYAN KUNJU v. STATE OF KERALA [ARIJIT PASAYAT, .I.] 903
ordinary course of nature, was sufficient to cause death viz. that the injury A
found to be present was the injury that was intended to be inflicted.
1908-G-Hl

Rajwani Singh v. State of Kera/a, AIR (1966) SC 1874; Virsa Singh v.
State of Punjab, AIR (1958) SC 465; State of A. P. v. Rayavarapu Punnayya
1197614 SCC 382 and Abdul Waheed Khan alias Waheed and Ors. v. State B
of A. P., referred to.

2.4. Clause (c) of Section 299, Indian Penal Code and clause (4) of
Section 300, Indian Penal Code both require knowledge of the probability
of the act causing death. Clause (4) of Section 300, Indian Penal Code
would be applicable where the knowledge of the offender as to the C
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 D
incurring the risk of causing death or such injury as aforesaid. 1911-B-CI

2.5. Taking into account that almost all the injuries were on non-
vital parts of the deceased and only one was on head; weapons used were
not of considerable weight or length; the axe or spade was not used but
their handles of small length and weight were used; it would be E
appropriate to convict the accused persons under Section 304 Part I read
with Section 34 Indian Penal Code instead of Section 302 Indian Penal
Code. 1911-G-Hj

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
87 of 2004. F
From the Judgment and Order dated 9.10.2002 of the Kerala High
Court in Crl. A. No. 77 I of 2000.

Siddhartha Dave for Haris Beeran for Mis. Lawyer's Knit & Co., for
the Appellants.
G
Ramesh Babu M.R. for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave granted.
H
)

904 SUPREME COURT REPORTS [2004) I S.C.R.

A The four appellants faced trial for allegedly having caused homicidal
death of one Kuttappan (hereinafter referred to as 'the deceased') on 16.6.1994.
They were tried for commission of offence punishable under Section 302
read with Section 34 of Indian Penal Code, 1860 (in short 'the !PC'). The
learned Sessions Judge, Kottayam, found all the four accused persons guilty
and convicted and sentenced them for the offence punishable under Section
B 302 read with Section 34 IPC and sentenced each of them to undergo
imprisonment for life. Fine of Rs. 10,000 with default stipulation was also
imposed. The accused-appellants unsuccessfully challenged their conviction
and sentence before the Kerala High Court which dismissed the same by the 1
impugned judgment.
c Prosecution version as unfolded during trial is as follows:

There was previous enmity between accused persons and the deceased.
In furtherance of their common intention because of such enmity, the accused I,

persons chased and assaulted the deceased on 16.6.1994 at about 11 p.m. A-
D 2 beat the deceased with an iron rod on his back and when deceased ran away
to save his life, all the accused persons chased him and near a road side
junction, A-4 lighted the torch carried by him which enabled the other accused
r
persons to beat the deceased with handles of axe and spade, and iron rod on •
different parts of the body. The injuries were caused mostly on the hands,
legs and ribs. Only one injury was inflicted on the head which was the fatal
E injury. Though the deceased was taken to the hospital he breathed his last
at about 2.25 a.m. on 17.6.1994. I0 witnesses were examined to further the
prosecution version. Rajan (PW-2) was said to be an eyewitness. The
information was lodged with the police by Anil Kumar (PW-I). Soman (PW-
3) was the brother-in-law of the deceased who was informed about the quarrel
F between deceased and the accused persons. The deceased allegedly made a
dying declaration before them implicating the accused persons. The accused
persons pleaded innocence. They pleaded that the actual occurrence was
suppressed by the prosecution and, in fact, the deceased attacked them and
caused injuries on A-I and A-2. Since the accused persons were attacked,
they exercised their right of private defence and tried to protect themselves
G and if on account of that the deceased sustained injuries there was no offence
involved. Trial Court after analyzing the evidence on record came to hold
that the plea of right of private defence was not established. A- I to A-4 were
the authors of the crime. It also did not accept the contention of A-4 that no
overt act was attributed to him and there was no material to bring him within
H the field of Section 34 IPC. The Trial court held that evidence of PW-2
CHACKO@ANIYAN KUN.JU v. STATE OF KERA LA [ARl.llT PASAYAT • .I.] 905

j inspire confidence. He was a reliable witness and on his evide1ice alone the A
· conviction has to be recorded, though additionally the dying declaration was
there.

In appeal, the Kerala High Court held that merely because the accused
persons have sustained some injuries, that cannot ipso facto be a ground for
throwing out the prosecution case. Non-explanation of injuries on the accused B
persons in all cases is not a ground for discarding the prosecution version. It
also did not find any substance in the plea of the accused-appellants that on
the basis of solitary witness's evidence conviction.cannot be recorded. Finally,
the plea that offence under Section 302 read with Section 34 IPC was not
made out did not find acceptance by the High Court. It also did not accept C
the plea that there was no material for applying Section 34 to A-4. It was
noticed that he was the person who focused the Iight on the deceased,
facilitating the assaults.

In support of the appeal, learned counsel for the appellant submitted
that the Trial Court and the High Court have lost sight of relevant factors. D
The prosecution version itself indicated that there was quarrel between the
deceased and the accused and since the assaults allegedly took place in course
of a sudden quarrel, that too in exercise of right of private defence, the
accused persons should not have been found guilty. It was pointed out that
the prosecution version primarily stands on the solitary evidence of PW-2.
The occurrence, according to the prosecution took place late in the night and E
it was completely dark and necessitated focusing of torch by A-4. These
materials adduced by the prosecution go to show that no particular injury was
intended. In fact, the post-mortem shows that injuries were on non-vital parts
of the body. The reference to these aspects was highlighted to substantiate
the plea that Section 302 has not attracted. Alternatively, it is submitted that F
no offence under Section 34 IPC is made out and so far as accused A-4 is
con~erned, as admittedly no assault was done by him and, therefore, he
should not have been convicted.

Per contra, learned counsel for the State submitted that the Trial Court
and the High Court have given adequate reasons for finding the accused G
persons guilty and sentencing them. As they have analysed the factual position
in great detail and have come to the conclusion regarding guilt of the accused,
there is no scope for any interference. According to him the case is squarely
covered by Section 302 IPC.

Coming to the question whether on the basis of a solitary evidence H
).

906 SUPREME COURT REPORTS [2004) l S.C.R.
A conviction can be mairitained. A bare reference of Section 134 of the Indian {•
Evidence Act, l 872 (in short 'the Evidence Act') would suffice. The provision
clearly states that no particular number of witnesses is required to establish
the case. Conviction can be based on the testimony of single witness if he is
wholly reliable. Corroboration may be necessary when he is only partially
reliable. If the evidence is unblemished and beyond all possible criticism and
B
the Court is satisfied that the witness was speaking the truth then on his
evidence alone conviction can be maintained. Undisputedly, there were injuries
found on the body of the accused persons on medical evidence. That per se
' cannot be a ground to totally discard the prosecution version. This is a factor
which has to be weighed along with other materials to see whether the
c prosecution version is reliable, cogent and trustworthy. When the case of the
prosecution is supported by an eyewitness who is found to be truthful, as
well, mere non-explanation of the injuries on the accused persons cannot be
a foundation for discarding the prosecution version. Additionally, the dying
declaration was found to be acceptable.

D Other plea emphasized related to alleged exercise of right of private
defence. Merely because there was a quarrel and two accused persons sustained
injuries, that does not confer a right of private defence extending to the +
extent of causing death as in this case. Though such right cannot be weighed
•
in golden scales, it has to be established that the accused persons were under
such grave apprehension about the safety of their life and prorerty that
E
retaliation to the extent done was absolutely necessary. No evidence much
less cogent and credible was adduced in th is regard. The right of private
defence as claimed by the accused persons have been rightly discarded.

This brings us to the crucial question as to which was the appropriate \
F provision to be applied. In the scheme of IPC culpable homicide is the genus
and "murder", its specie. All "murder" is "culpable homicide" but not vice
versa. Speaking generally, "culpable homicide" sans "special characteristics
j
j
l
of murder is culpable homicide not amounting to murder". For the purpose
of fixing punishment, proportionate to the gravity of the generic offence, IPC
practically recognizes three degrees of culpable homicide. The first is, what
G may be called, "culpable homicide of the first degree". This is the gravest
form of culpable homicide, which is defined in Section 300 as "murder". The
second may be termed as "culpable homicide of the second degree". This is t
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
H and the punishment provided for it is also the lowest among the punishments
CHACKO@ ANIYAN KUNJU v STATE OF KERALA [ARIJIT PASAYAT, J.] 907

- >- ~ provided for the three grades. Culpable homicide of this degree is punishable A
under the second palt of Section 304.

The academic distinction between "murder" and "culpable homicide
not amounting to murder" has always vexed the coults. 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 B
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 appreciating the points of distinction between the two
offences : c
Section 299 Section 300
A person commits Subject to certain exceptions
culpable homicide if the act culpable homicide is murder if the
by the death is caused 1s act by which the death is caused
done- is done-
D
INTENTION

(a) with the intention of (I) with the intention of causing
causing death; or death; or
E
(b) with the intention (2) with the intention of causing
of causing such such bodily injury as the
bodily injury as is offender knows to be likely to
likely to cause death; or cause the death of the person
to whom the harm is caused; or
F
(3) With the intention of causing
bodily injury to any person
and the bodily injury intended
to be inflicted is sufficient.
in the ordinJry course of G
nature to cause death; or
KNOWLEDGE
(c) with the (4) with the knowledge that the
knowledge that act is so imminently
H
908 SUPREME COURT REPORTS [2004] I S.C.R.

A the act is likely to dangerous that it must in all
cause death. probability cause death or
such bodily injury as is likely
to cause death, and commits
such act without any
excuse for incurring the
B risk of 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
C being in such a peculiar condition or state of health that the internal hann
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
4

person in nornial health or condition. It is noteworthy that the "intention to
cause death" is not an essential requirement of clause (2). Only the intention
D 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
E the part of the offender. Instances of cases falling under clause (2) of Section
300 can be wl1ere 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
F 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 su.fficient 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
G w.ords "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 overlooked, may result in miscarriage of justice. The
difference between clause (b) of Section 299 and clause (3) of Section 300
is one of degree of probability of death resulting from the intended bodily
H injury. To put it more broadly, it is the degree of probability of death which
CHACKO @ ANIYAN KUNJU "· STATE OF KERALA [ARIJIT PASA YAT, J.] 909

-~ determ1t.cs whether a culpable homicide is of the gravest, medium or the A
lowest degree. The word "likely" in clause (b) of Section 299 conveys the
sense of probability as distinguished from a mere possibility. The words
"bodily injury ... sufficient in the ordin'ary course of nature to cause death"
mean that death will be the "most ·probable"· result of the injury, having
regard to the ordinary course of nature.
B
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. Rajwani Singh v. State of Kera/a, AIR (1966) SC 1874 is an apt
, illustration of this point. c
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 Section 300 "thirdly". First, it must establish quite
objectively, that a bodily injury is present; secondly, the nature of the injury D
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
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 E
sufficient to cause death in the ordinary course of nature. This part of the
enquiry is purely objective and inferential and has nothing to do with the
intention of the offender.

The ingredients of clause "thirdly" of Section 300 IPC were brought
F
~ out by the illustrious Judge in his terse language as follows :

"12. To put it shortly, the prosecution must prove the following facts
before it can bring a case under Section 300 'thirdly';

First, it must establish, quite objectively, that a bodily injury is present; G

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
unintentional, or that some other kind of injury was intended. H
)

910 SUPREME COURT REPORTS [2004] l S.C.R.

A 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 death in the ordinary course of nature. This part
of the enquiry is purely objective and inferential and has nothing to
B do with the intention of the offender."

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

"The question is not whether the prisoner intended to inflict a serious
C 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 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
D of its seriousness, or intended serious consequences, is neither here
nor there. The question, so far as the intention is concerned, is not
whether he intended to kill, or to inflict an injury of a particular
degree of seriousness, but whether he intended to inflict the injury in
question; and once the existence of the injury is proved the intention
E to cause it will be presumed unless the evidence or the circumstances
warrant an opposite conclusion."

These observations of Vivian Bose, J. have become locus classicus.
The test laid down by Virsa Singh case (supra) for the applicability of clause
"thirdly" is now ingrained in our legal system and has become part of the
F rule of law. Under clause thirdly of Section 300 JPC, culpable homicide is
murder, if both the following conditions are satisfied i.e. (a) that the act .i.,
which causes death is done with the intention of causing death or is done
with the intention of causing a bodily injury; and (b) that the injury intended
to be inflicted is sufficient in the ordinary course of nature to cause death.
It must be proved that there was an intention to inflict that particular bodily
G 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.

Thus, according to the rule laid down in Virsa Singh case (supra) even
H if the intention of the accused was limited to the infliction of a bodily injury
Cl!ACKO@ANIYAN KUN.IU t'. STATE OF KERALA [ARIJIT PASAYAT, .I.] 911

sufficienrto cause death in the ordinary course of nature, and did not extend A
to the intention of causing death, the offence would be murder. Illustration
(c) appended to Section 300 clearly brings out this point.

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 B
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 C
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.

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 D
the facts are so intertwined and the second and the third stages so telescoped
into each, that it may not be convenient to give a separate and clear cut
treatment to the matters involved in the second and third stages.

The position was illuminatingly highlighted by this Court in State of
A.P. v. Rayavarapu Punnayya, [1976] 4 SCC 382 and Abdul Waheed Khan E
alias Waheed and Ors. v. State of A.P., [2002] 7 SCC 175.

The factual scenario goes to show that late at night in a stage of complete
darkness, the occurrence took place. According to the prosecution itself for
visibility A-4 used the torch and focused the light on the deceased so that the F
other accused persons could assault him. The distance from which the light
was focused is also not very small. It was no doubt possible on the part of
the accused persons to place the deceased and assault him; but taking into
account the fact that almost all the injuries were on non-vital parts and only
one was on head, it cannot be definitely said that any particular injury was
intended. As noticed by Courts below weapons used were not of considerable G
weight or length. They axe or spade was not used but their handles of small
length and weight were used. Taking the totality of the evidence into
consideration and the special features noticed, it would be appropriate to
convict the accused persons under Section 304 Part I read with Section 34
!PC instead of Section 302 !PC. A-4 has been rightly roped in under Section
34. He accompanied the accused persons, and actively facilitated the assaults H
912 SUPREME COURT REPORTS [2004] 1 S.C.R.

A to be effectively made on the accused by focusing the torch. His conduct
prior and subsequent to the occurrence clearly shows that he shared the
common intention so far as the assaults on the deceased is concerned.
Custodial sentence of I0 years would meet the ends of justice. The appeal is
partly allowed to the extent indicated.

B B.K.M. Appeal Partly allowed.

•