Holding

The conviction under Section 302 IPC was altered to Section 304 Part I IPC because the injury did not meet the criteria for murder, warranting a ten‑year imprisonment.

Summary

The appellant Kandaswamy was convicted by the trial court for murder under Section 302 of the Indian Penal Code after allegedly cutting the deceased Alagarsamy, leading to his instantaneous death. On appeal, the central issue was whether the facts satisfied the legal requirements for murder or merely culpable homicide not amounting to murder. The Supreme Court examined the distinctions between Sections 299 and 300, focusing on the required mens rea and the degree of probability of death from the inflicted injury. It held that the prosecution failed to prove the specific intent or knowledge of a fatal injury as required for murder, and the appropriate conviction was under Section 304 Part I. Consequently, the Court altered the conviction and imposed a ten‑year imprisonment, allowing the appeal.

Issues considered

Whether the facts constitute murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 Part I IPC.
Interpretation of Sections 299 and 300 IPC regarding the requisite mens rea and probability of death.
Appropriate conviction and sentencing in light of the statutory distinctions.

Legislation cited

Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304

Subjects

murderculpable homicideSection 302 IPCSection 304 IPCmens reaprobability of deathcriminal lawsentencingIndian Penal Code

Judgment

i·
[2008] 10 S.C.R 1103
-it-

KANDASWAMY A
v.
STATE OF TAMIL NADU
CRIMINAL APPEAL N0.1111 OF 2008
r ~-
JULY 17, 2008
B
[DR. ARIJIT, PASAYAT AND P. SATHASIVAM, JJ.]

Penal Code, 1860: s. 299, 300, 302 and 304 (Part I) - Cul-
pable Homicide - Conviction under s. 302 - Challenge against
- Held: In the light of factual scenario and principles laid down c
in ss.299 and 300, conviction altered to s.304(Part /).
The prosecution case was that appellant-accused in-
discriminately cut the deceased which resulted in his
death. The trial Court convicted appellant under s.302 IPC
and sentenced him to undergo life·imprisonment. The only D
stand before the High Court was that the scenario as pro-
jected by the prosecution ruled out the application of s.302
IPC. High Court did not find any substance in the plea.
In appeal to this Court, the crucial question is the ap-
E
plicability of the appropriate provision.
Allowing the appeal, the Court
HELD: 1. In the background of the legal principles
--r.. and the factual scenario, the inevitable conclusion is that
the appropriate conviction would be under s.304 Part I F
IPC. Custodial sentence of 10 years would meet the end
of justice. [Para 21] [1114 C-D]
2.1. In the scheme of the IPC, culpable homicide is
genus and 'murder' its specie. All 'murder' is 'culpable
G
__._. homicide' but notvice-versa. Speaking generally, 'culpable
homicide' sans 'special characteristics of mu'rder is cul-
pable homicide not amounting to murder'., For the pur-
p~se of fixing punishment, proportionate to the gravity of
1103 H
1104 SUPREME COURT REPORTS [2008] 10 S.C.R.
1'·

A the generic offence, the IPC. practically recognizes three I
degrees of culpable homicide. The first is, what may be
called, 'culpable homicide of the first degree'. This is the
gravest form of culpable homicide, which is defined in
s.300 as 'munter'. The second may be termed as 'culpable ~ --
B homicide of the second degree'. This is punishable un-
der the first part of s~304. Then, there is 'culpable homi-
cide of the third degree'. This is the _lowest type of cul-
pable homicide and the punishment provided for it is also
the lowest among the punishments provided for the three
c grades. Culpable homicide of this degree is punishable
·under the second part of s.304. [Para 8] [1108 D-Gl
2.2. Clause (b) of s.299 corresponds with clauses (2)
and (3) of s.300. The distinguishing feature of the mens
rea requisite under clause (2) is the knowledge possessed
D. by the offender regarding the particular victim being in ~-
such a peculiar condition or state of health that the inter-
nal harm caused to him is likely to be fatal; notwithstand-
ing the fact that such harm would not in the ordinary way
of nature be sufficient to cause death of a person in nor-
E mal health or condition. It is noteworthy that the 'inten-
tion 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,
F is sufficient to bring the killing within the ambit of this
clause. This aspect of clause (2) is borne. out by illustra-
tion (b) appended to s.300. Clause (b) of s.299 does not
postulate any such knowledge on the part of the offender.
Instances of cases falling under clause (2) of s.300 can
be where the assailant causes <!eath by a fist blow inten-
G
tionally 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 per-
son 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
H
KANDASWAMY v. STATE OF TAMIL NADU 1105

had no such knowledge about the disease or special A
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 s.300, instead of the words 'likely to cause B
death' occurring in the corresponding clause (b) of s.299,
the words "sufficient in the ordinary course of nature"
have been used. Obviously, the distinction lies between
a bodily injury likely to cause death and a bodily injury
sufficient in the ordinary course of nature to cause death. c
The distinction is fine but real and if overlooked, may re-
su It in miscarriage of justice. The difference between
clause (b) of s.299 and clause (3) of s.300 is one of the
degree of probability of death resulting from the intended
>-- bodily injury. To put it more broadly, it is the degree of
0
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 s.299 conveys the sense
of probable as distinguished from a mere possibility. The
words "bodily injury.......sufficient in the ordinary course of
nature to cause death" mean that death will be the "most E
probable" result of the injury, having regard to the ordi-
nary 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 F
course of nature. [Paras 10-12] (1110 A-H -1111-B]
Rajwant and Anr. v. State of Kera/a AIR (1966) SC 1874;
Virsa Singh v. State of Punjab AIR (1958) SC 465- relied on.
2.3. Under clause thirdly of s.300 IPC, culpable ho- G
micide is murder, if both the following conditions are sat-
isfied: i.e. (a) that the act which causes death is done with
the intention of causing death or is done with the inten-
tion of causing a bodily injury; and (b) that the injury in-
tended to be inflicted is sufficient in the ordinary course H
1106 SUPREME COURT REPORTS [2008] 10 S.C.R.
-+
A 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. [Para 16] [1113 A-C]
+-
B 2.4. Clause (c) of s. 299 and clause (4) of s.300 both
require knowledge of the probability of the act causing
death. It is not necessary for the purpose of this case .to 1-
dilate much on the distinction between these correspond-
ing clauses. It will be sufficient to say that clause (4) of
c s.300 would be applicable Where the knowledge of the
offender as to the probability of death of a person or per-
sons in general as distinguished from a particular per-
son or persons - being caused from his imminently dan-
gerous act, approximates to a pracUcal certainty. Sl.foh
_..._
D knowledge on the part of the offender must be of the high-
est 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. [Para 18]
State of Andhra Pradesh v. Rayavarapu Punnayya and
E Anr. (1976) 4 SCC 382; Abdul Waheed Khan @ Waheed and
Ors. v. State of Andhra Pradesh JT (2002) 6 SC 274; August-
ine s·aldanha v. State of Karnataka (2003) 10 SCC 472;
Thangaiya v. State of Tamil Nadu (2005) 9 SCC 650;
r .
Sunder
Lal v. State, of Rajasthan (2007) 10 SCC 371 - relied o_n.
F ·\"
CRIMINALAPPELLATEJURISDICTION: Crimin~IAppeal.
No. 1111 of 2008
I -
Fror:n the Judgment dated' 3.1.200p of the High' Cqurt of
Madras, Bench at Madurai in Crl. Appeal No. 700/1-996
G \
B. Sridhar for the Appellant.
~
V. Kanakraj, V.G. Pragashm, S.J. Aristotle and Prabu
Rama Subramaniam for the Respondert.
The Judgment of the Court was delivered by
H
f
KANDASWAMY v. STATE OF TAMIL NADU 1107
[DR. ARIJIT PASAYAT, J.]

Dr. ARIJIT PASAYAT, J. 1. L:eave granted. A
2. Challenge in this appeal is to the judgment of the Divi-
sion Bench of the Madras High Court upholding conviction of the
appellant under Section 302 of the Indian Penal Code, 1860 (in
+ short the 'IPC'), as was awarded by learned Sessions Judge,
Kamarajar, District at Srivilliputtur in Sessions case no.99 of 1994. 8
3. The prosecution case in a nutshell is as follows:-
At about 8.30 p.m. on 4.4.1993 the accused indiscrimi-
nately cut the victim-Alagarsamy (hereinafter referred to as 'de-
ceased') resulting in his instantaneous death. PWs 1 and 2 C
were examined as eye witnesses to the occurrence.
Gurvammal is the elder sister of PW 1 and deceased .
Alagarsamy is her husband. The accused was known to him.
Guruvammla died leaving behind two children - a girl and a boy. 0
This made his father (PW 2) to bring Alagarsamy to his house.
At about 8.30 p.m. on the occurrence day, he was standing op-
posite to the house of Ramaiah with his son, after returning from
the house of Visalam. PW 2 was also coming in the street from
the shop and he asked as to whether he had gone to Visalam's E
house and come back. Alagarsamy alighted from the bus and
PW 2 also asked him as to whether he had gone to Visalam's
house. Palpandi (son of accused) also alighted from the bus and
the accused asked him as to why he has not brought his mother
with him for which he had been sent. Palpandi replied to his-""
father (the accused) that unless the accused goes mother will not F
come. Finding fault that he is repeating the same answer, the
accused beat his son. Alagarsamy asked him as to why he was
beating the young boy for which the accused responded stating
that he had no business to intervene in his family problem and
saying so, removed theAruval from his person and cutAlagarsamy G.
which injury landed on his left hand. Alagarsamy fell down and
the accused thereafter indiscriminately cut him. PWs 1 and 2
rushed towards the scene questioning the act of the accused.
Threatening them with dire consequences, the accused made
good his escape. Alagarsamy was lying dead. PW-1 went to H
1108 SUPREME COURT REPORTS [2008] 10 S.C.R.
-f

A the police station and gave the complaint namely Ex. P-1. He
identified MO 1 as the weapon of offence and MOs. 2 to 4 as the
personal wearing apparels of the deceased.
4. The appellant questioning the correctness of the judgment
and conviction and sentence as imposed by the Trial Court under + ~
B Section 302 IPC and sentenced to undergo for life imprisonment. "
5. The only stand before the High Court was that the see-
nario as projected by the prosecution clearly rules out the appli-
cation of Section 302 IPC. The High Court did not find any sub-
c stance in the plea.
6. In support of the appeal, learned counsel for the appel-
lant reiterated the stand before the High Court and submitted
that even if the prosecution version is accepted in toto, case I

under Section 302 IPC is not made out.
D ~
7. Learned counsel for the respondent on the other hand
supported the order. l
8. This brings us to the crucial question as to which was
t
the appropriate provision to be applied. In the scheme .of the
E IPC culpable homicide is genus and 'murder' its specie. All 'mur-
der' is 'culpable homicide' but not vice-versa. Speaking gener-
ally, 'culpable homicide' sans 'special characteristics of mur-
der is culpable homicide riot amounting to murder'. For the pur-
pose of fixing punishment, proportionate to the gravity of the
generic offence, the IPC practically recognizes three degrees ~
F \.
of culpable homicide. The first is, what may be called, 'culpable
homicide of the first degree'. This is the gravest form of cul-
pable homicide, which is defined .in Section 300 as 'murder'.
The second may be termed as 'culpable homicide of the sec-
G ond degree'. This is punishable under the first part of Section
304. Then, there is 'culpable homicide of the third degree'. This t·
)

is the low~st type of culpable homicide and the punishment pro- t----.
vided for it is also the lowest among the punishments provided
for the three grades. Culpable homicide of this degree is pun-
ishable under the second part of Section 304.
H
KANDASWAMY v. STATE OF TAMIL NADU 1109
[DR. ARIJIT PASAYAT, J.]

9. The academic distinction between 'murder' and 'cul- A
pable 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 ab-
stractions. The safest way of approach to the interpretation and B
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 appreci-
ating the points of distinction between the two offences.
Section 299 Section 300 c
A person commits culpable homicide Subject to certain exceptions culpable
if the act by which the death is caused homicide is nurder if the act by which
is done- the death is cause is done-
INTENTION
(a) with the intention of (1) with the intention of D
causing death; or causing death; or
(b) with the intention of (2) with the intention of
causing such bodily causing such bodily
injury as is likely to injury as the offender
cause death; or knows to be likely to
cause the death of the
person to whom the E
harm is caused; or
is sufficient in the
ordinary course of
nature to cause death;
or
KNOWLEDGE F
(C) with the knowledge that (4) with the knowledge that
the act is likely to cause the act is so imminently
death. dangerous that it must
in all probability cause
death or such bodily G
injury as is likely to
cause death, and
without any excuse for
incurring the risk of
causing death or such
injury as is mentioned
above. H
1110 SUPREME COURT REPORTS [2008] 10 S.C.R.
"i

A 10. 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
peculiar condition or state of health that the internal harm caused :;..

8 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 require-
ment of clause (2). Only the intention of causing the bodily injury
c 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.
D ..J...
11. 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
E 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 disease or special frailty of
the victim, nor an intention to cause death or bodily injury suffi-
F cient in the ordinary course of nature to cause death, the of- t
fence 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, the distinction lies
G
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 mis-
carriage of justice. The difference between clause (b) of Sec-
tion 299 and clause (3) of Section 300 is one of the degree of
H I
~
KANDASWAMY v. STATE OF TAMIL NADU 1111
[DR. ARIJIT PASAYAT, J.]

probability of death resulting from the intended bodily injury. To A
put it more broadly, it is the degree of probability of death which
determines whether a culpable homicide is of the gravest, me-
di um or the lowest degree. The word 'likely' in clause (b) of Sec-

. tion 299 conveys the sense of probable as distinguished from
a mere possibility. The words "bodily injury...... '.sufficient in the B
ordinary 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.
12. For cases to fall within clause (3), it is not necessary that
the offender intended to cause death, so long as the death ensues c
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 this point.
13. In Virsa Singh v. State of Punjab, (AIR 1958 SC 465),
)- D
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
must be proved. These are purely objective investigations. E
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 en-
'f quiry proceeds further, and fourthly it must be proved that the F
injury of the type just described made up of the 'three elements
set out above was sufficient to cause death in the ordinary course
of nature. This part of the enquiry is purely objective and infer-
ential and has nothing to do with the intention of the offender.
G
14. The ingredients of clause "Thirdly" of Section 300, IPC
..... 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". H
..
1112 SUPREME COURT REPORTS [2008] 10 S.C.R.
1
A 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.
~
B 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.

Once these three elements are proved to be present, the
c 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
D -{
and has nothing to do with the intention of the offender."
15. The learned Judge explained the third ingredient in the
following words (at page 468):

"The question is not whether the prisoner intended to inflict
E
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
F 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
G 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."
H
KANDASWAMY v. STATE OF TAMIL NADU 1113
l [DR. ARIJIT PASAYAT, J.]

16. These observations of Vivian Bose, J. have become A
locus classicus. The test laid down by Virsa Singh's case (su-
pra) for the applicability of clause "Thirdly" is now ingrained in
our legal system and has become part of the rule of law. Under
clause thirdly of Section 300 IPC, culpable homicide is murder;
if both the following conditions are satisfied: i.e. (a) that the act B
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 injury which, in c
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.
17. Thus, according to the rule laid down in Virsa Singh's
case, even if the intention of accused was limited to the inflic- D
tion of a bodily injury sufficient to cause deat~ 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.
18. Clause (c) of Section 299 and clause (4) of Section E
300 both require knowledge of the probability of the act caus-
ing 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 F
the probability of death of a person or persons in general as
distinguished from a particular person or persons - being
caused from his imminently dangerous act, approximates to a
practical certainty. Such knowledge on the part of the offender
must be of the highest degree of probability, the act having been G
committed by the offender without any excuse for incurring the
,.J<

~ risk of causing death or such injury as aforesaid.

19. The above are only broad guidelines and not cast iron
imperatives. In most cases, their observance will facilitate the
H
1114 SUPREME COURT REPORTS [2008] 10 S.C.R.

A 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
·to the matters involved in the second and third stages ..
20. The position was illuminatingly highlighted by this Court
8 in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr.
(1976 (4) SCC 382), Abdul Waheed Khan@ Waheed and
Ors. v. State of Andhra Pradesh (JT 2002 (6) SC 274), Augus-
tine Saldanha v. State of Karnataka (2003 (10) SCC 472),
Thangaiya v. State of Tamil Nadu (2005 (9) SCC 650) and
C Sunder Lal v. State of Rajasthan (2007 (10) SCC 371 ).
21. When the factual scenario is considered in the back-
ground of the legal principles set out above, the inevitable con-
clusion is that the appropriate conviction would be under Sec-
D tion 304Part1 IPC. Custodial sentence of 10 years would meet
the end of justice.
22. The appeal is allowed with the aforesaid direction.
D.G. Appeal allowed.