Holding

Shooting with the intention to cause a bodily injury that is sufficient to cause death constitutes murder under Section 302 IPC, and concessions recorded by the trial court are binding and cannot be contested on appeal.

Summary

The appellant, MD Rafique, was charged with murder (Sec. 302 IPC) and voluntarily causing hurt (Sec. 398 IPC) for shooting the shop owner and assaulting his sons. The trial court convicted him on both counts; the Calcutta High Court upheld the murder conviction but set aside the 398 conviction. On appeal, the appellant argued lack of identification, absence of intent to kill, and that the trial court had erroneously recorded concessions. The Supreme Court held that the eye‑witnesses and medical evidence established that the appellant shot the deceased, causing a bodily injury sufficient in the ordinary course of nature to cause death, satisfying the test for murder under Sec. 300(3) and therefore Sec. 302. It also ruled that concessions recorded by the lower court cannot be contested on appeal and that the High Court’s acquittal on Sec. 398 was correct. Consequently, the appeal was dismissed, leaving the murder conviction intact.

Issues considered

The appellant's intent and whether the act falls under murder (Sec. 302 IPC) or culpable homicide not amounting to murder.
Whether the conviction under Sec. 398 IPC for voluntarily causing hurt to the sons is sustainable.
Whether concessions recorded by the trial court can be challenged on appeal.
Whether the identification of the appellant was proper and reliable.
The interpretation and applicability of Sections 299, 300, and 304 IPC to the facts.

Legislation cited

Indian Penal Code, 1860s. 299, s. 30, s. 300, s. 302, s. 304, s. 307, s. 34, s. 398

Subjects

murderculpable homicideSection 302 IPCSection 398 IPCintenteye‑witness testimonyidentification paradeconcessioncriminal appealIndian Penal Code

Judgment

[2008] 16 S.C.R. 523

MD. RAFIQUE @ CHACHU A
v.
STATE OF WEST BENGAL
(Criminal Appeal No.828 of 2008)

NOVEMBER 21, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]

Penal Code, 1860:
c
s.302 - Prosecution under ss. 302 & 398 - Eye-
witnesses to the occurrence injured - Corroboration by
medical evidence - Conviction by trial Court - High . Court
confirming conviction u/s 302 and acquitting the accused ul
s 398 - On appeal, held: Conviction ·uls 302 is justified and o
is not liable to be altered uls 304.

s.300 C/ause(3) - Scope of....: Discussed.; ..

ss. 299 and 300 - 'Culpable Homicide' and 'murder' - .
Distinction between - Discussed. E
Concession - Concession made before Court - In
appeal, party denying to have made such concession - Held:
Concession cannot be challenged before appellate court -
Grievance against the same to be made·to .the ju,dg.e before F
whom the concession was made.

Appellant~accused al!>ngwith ot.he.r~ were ·
prosecuted ulss 302 and 398 IPC for having caused
death of one and causing inju~ies to two perso11s.
Prosecution case wa·s that the accused persons went-to . G
the shop of the deceased, armed with weapons and
asked for key of the cash box. On refusal, appellant shot
at. the deceased and thereafter alongwith other accused
assaulted him. They also assaulted the two sons of the
523 · H
524 SUPREME COURT REPORTS [2008] 16 S.C.R.

. A deceased. Trial court convicted the appellant-accused u/
s 302 and 398 IPC.

In appeal before High Court, the appellant conceded
that from the evidence of FIR maker and from the
evidence of other witnesses, it was established that the
8
appellant was physically present at the shop room and
he assaulted the deceased with fire arm. However, he
contended . that there was .scope to raise a doubt as to
whether the appellant shot at' the deceased with the
C intention of causing his death and hence case u/s 302
was not made out; and tllat there was also no scope for
conviction u/s 398 IPC. _High Court confirmed the
conviction u/s 302 IPC while ~cquitted the appellant u/s
398 IPC;

D In appeal to this Court, appellant-accused contended
that no offence u/s was made out; that there was no
identification of the appellant; and that High Court
erroneously recorded certain concessions, which in fact
were not made.
E
Dismissing the appeal, the Court

HELD: 1.1. The accused appellant shot at the
deceased from his fire arm as a result of which he
sustained grievous injuries and died in the hospital. T)l'ere
F are two eye witnesses to the occurrence i.e . .PWs 12 and
24. They are sons of the deceased and had sustained
injuries in the incident. The doctor PW-22 had stated that
death was due to the -effect of the gun shot injury. There
is no merit in the plea that the offence is not covered by
G Section 30~ IPC. [Paras 21, 22, 23 and 24) [538-F, G; 539-
D] · .
1.2. The Judicial Magistrate who c·o nducted· the Test
ldentificatjo11 ·Parade h~s cfarifiedthe position". "It has been
stated that
' -. on 7.10.1996
- . " ' -- - .. there
. · . be 'i(tentification
co.u ld not .
H
MD. RAFIQUE @ CHACHU v. STATE OF Y\fEST BENGAL 525

'1 of the present appellant because the wrong person was A
put in the Tl Parade. The real suspect, i.e. the appellant
was not put in Tl Parade and this aspect has been noted
in the report relating to Tl Parade. Subsequently, Tl
Parade was held where the appellant was identified. [Para
19] [538-D] B
2.1. In the scheme of the IPC culpable homicide. is
genus and 'murder' its specie. All 'murders' are 'culpable
homicide' but not vice-versa. Speaking generally,
'culpable homicide' sans 'special characteristics of
murder is culpable homicide not amounting to murder'. c
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, D
which is defined in Section 300 as 'murder'. The second
may be termed as 'culpable ho.micide of the second
degree'. This is 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 E
punishment provided for 1t 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. [Para 6] [532-A-D]
., 2.2. The·safest way of approach to the interpretation F
i
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 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 G
bodily injury. [Paras 7 and 9] [532-E-F; 534-E-F]
.-.+ 2.3. 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 H
526 ·SUPREME COURT REPORTS · [2008] 16 S.C.R.

~·
A 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 unint~ntional or that some other kind of
injury was intended. Once these three. elements are
B 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 setoutabove
was suffici,ent to cause death in the ordinary course of
nature. This part of the enquiry is purely objective and
c ·inferential and has nothing to do. with the jntention of the
offender. [Para 11] (535-C-E]
2.4. Under clause thirdly of Section 300 IPC, culpable
homici.de is murder, if both the following conditions are
~:~ s·atisfied:
. i.e. (a) that the act which causes death is done
'

D . with the intention of causing cleath 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,
E 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 14] (537-A-
8]
2~5. Even if the intention of accused was limited to
F 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. (Para 15] (537~C-D] · · ·
G 2.6. Clause (c) of Section 299 .and clause (4) ·of
Section 300 both require knowledge of the probability of +..
the act causing death. Clause. (4) of Section 300 would
be applicable where the knowledge of the offender as tO
the probability of death of a P.e.rson o·r persons in general
H
MD. RAFIQUE@ CHACHU v. STATE Of WEST BENGAL 527

as distinguished from a particular person or persons - A
being caused from his imminently dangerous act,
approximates to a practical certainty. Such knowledge on
the part of the offender must be of the highest degree of
probability,· the act having been committed by the
offender without any excuse. for incurring the risk, of s
l causing death or such injury. 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 c
may not be convenient to give a separate treatment to the
matters involved in the second and third sta·ges. [Paras
16 and 17] [537-0-F]
' ,,
'.,
....':· ~
; ,.·'' I

Rajwant and Anr. v. State of Kera/a, AIR 1966 SC 1874;
Virsa Singh v. State of Pµnjab AIR 1958 SC 465; . State' of D
Andhra Pradesh v. Rayavarapu Punnayya and Anr. 1976 (4)
SCC 382; Abdul Waheed Khan@ Waheed and Ors. v. State
·i:lt ·Andhra Pradesh (JT ) 2002 (6) SC 2·7 4; Augustine
Saldanha v. State of Karnataka 2003 (10) SCC 47,2;
Thangaiya v. State of Tamil Nadu 2005 (9) SCC 650; Sunder E
. Lal. v. State of Rajasthan 2007 (10) SCC 371 a~d
Kandaswamy v. State rep. by the Inspector of Police (SLP
(Cr/.) No.5134/2006 disposed of on 17.7.2008, relied on.

3. There is no ground taken even in the F
memorandum of appeal that there was no concession as
recorded by the trial Court. The appellan~ conceded
certain aspects before the High Court. After having done
so, it .is not open to the appellant to turn around or take
a plea that no concession was given. This is clearly a G
case of sitting on the fence, and is not to be encouraged.
If really there was no concession, the only course open
to the appellant was to move the High Court. Statements
of fact as to what transpired at the hearing, recorded In
the judgment of the Court, are conclusive of the facts so
H
528 SUPREME COURT .REPORTS [2008] 16 $.C.R.

A stated and no one can contradict such statements by
affidavit or other evidence: If a party thinks that the
happenings in court have been wrongly recorded in a
judgment, it is incumbent upon the party, while the matter
is still fresh in the minds of the judges, to caH the
B attention of the very judges who have made the record.
That is the only way to have the record correct~d .. If no +
such step is taken, the matter must necessarily end ~here.
It is not open to the appellant Jo conten.d before this
Court to the contrary. [Para 5] (531-F-H; 532-A-Dl
c State of M_aharashtra ·v. Ramdas Shririivas Na yak, 19.82
(2) SCC 463; Bhavnagar University v. Palitana Sugar Mill (P)
Ltd. 2003 (2) SCC 111 and Roop Kumar v. Mohan Thedani
2003 (6) sec 595, relied on.

D Case Law Reference:
1982 (2) sec 463 Relied on. Para 5
·~
2003 (2) sec .111 Relied on. Para 5 -
2003 (6) sec 595 Relied on. Para 5
E
AIR 1966 SC 1874 Relied on. Para 10
AIR 1958 SC 465 Relied on. ·Para 11
1976 (4) sec 382 Relied on. Para 18
F ),- ..
· (JT) 2002 (6) S.C 274 Relied on. P;ara 18
2003 (10) sec 472 Relied on. Para 18
2005 (9) sec 650 Relied on. Para 18
''
G 2001 {1 o) sec 371 Relied on. Para 18
2008 {10) SCR ·1103 Relied. on. . Para 18
· CRIMlNALAPPELLATE JURISDICTION: Criminal Appeal
• - •• • • . . - t .• •

No. 828 of 2006.
H
MD. RAFIQUE @ CHACHU v. STATE OF WEST BENGAL 529

· From the Judgment and Order dated 24.1.2006 of the High A
Court of. .Calcutta at Calcutta in Crl. Appeal
, .
No. 367 of 1999.

S.S. Malik, Sanjay Sharawat for the Appellants.·

Avij,it Bhattacha_rjee and. Saumya. Kundu for. the
respondent. B

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal i~
to the judgment of a Division Bench of the Calcutta High Court c.
which by the impugned judgment upheld the conviction of the
appellant for offence punishable under Section 302 of the Indian
Penal Code, 1860 (in short the 'IPC') while setting aside the
conviction under Section 398 IPC as done by learned
Additional Sessions Judge, Ali pore, in connection _with'
0
Sessions trial No.6 (1) of 1997.

2. Prosecution case·in a nutshell is as follows:

On 1st August, 1996,. at about 11.40 in the. night .the
present appellant along with others came in a white E
Ambassador car having fake number- plate in front of the
grocery shop unde~ the name and style "Prabhat Stores"
situated at 7/1, Bampass Road, Calcutta-29. The persons who -
came in the Ambassador car were armed with weapons like
pistol, nepala etc. and they entered into the grocery shop and F
demanded key of the cash box from the proprietor of the shop
namely Guiab Mehata (hereinafter referred to as the
'deceased'). At that relevant time Guiab Mehata alongwith his
sons Mukesh Mehata was about to take their dinner and the
FIR maker Shyam Mehata just cam·e inside the shop with
drinking water. Since Guiab Mehata refused to hand over the · ~
key of the cash box the present appellant shot at the deceased
from the front side at his chest and on receiving the injury, he
fell down and thereafter the appellant and other accused
persons inflicted cut injuries on· the -person of the deceased. H
530 SUPREME COURT REPORTS· [2008] 16 S.C.R.

A The miscreants. also assaulted Mukesh Mehata with the butt of
the revolver. Soon after the occurrence, hearing the alarm :of
the FIR maker, Shyam Mehata and his brother Mukesh Mehata,
the neighbours· ofthe locality rushed in the shop and Guiab·
Mehata and_Muk~sh Mehata were taken to the n~arby hospital
B where subsequently Guiab Mehata succumbed to his injurie~. .
One of the neighbours informed Tollygunge Police Station
immediately about the occurrence and Tollygunge Police +
Station officials soon thereafter arrived at the spot and started
investigation. On completion of the investigation, police
c submitted the charge sheet against the present appellant along
with others under Section 302 read with Section 34, Section
307 read with Section 34 and Section 398 read with Section
34 IPC. Since the accused persons pleaded innocence trial·
was held.
D Before the High Court the learned counsel for the appellant ·
accepted that there was no challenge to the fact relating to the
occurrence. It was also conceded that from the evidence of the
FIR maker and also from the evidence of the other witnesses
examined during the trial it was establi~hed that the present
E appellant was physically present inside the shop room. It was
also conceded that there was little scope to deny the
prosecution charge that accus~d had assaulted the deceased
Guiab Mehata· with. the help of fire arm. It was, however,
submitted that the circumstances under which firing has been
F done were not very clear. Brother of the FIR maker who was
also injured at the time .of occurrence did not identify the
appellant as the person who shot at his father and, therefore;
there was scope to raise a doubt _as to whether the appellant
with the intention of causing death to Guiab Mehata .shot at him.
G In other words, it was submitted that a case under Section 302
·is not made out The High court did not accept this piea, though
it accepted the starid that there was no scope for the conviction
under; Section 398 IPC. The stand taken before the High Court
was re-iterated ·by learned 'counsel for the appellant In support
H of the appeai,' it was subm,itted that the High c'ourt has
MD. RAFIQUE@ CHACHU v. STATE OF WEST BENGAL 531
[DR. ARIJIT PASAYAT, J.]

-1 erroneously recorded certain concessions which in fact were A
not made. It is submitted. that in any event, -no offence under
Section302 IPC is made out. It is also submitted that there was
no identification of the appellant as claimed.

3 .. Learned counsel for -the State on ttie other hand·:
B
subrriitted -that the factual scenario clearly established the
commission of offence under Section 302 IPC.

4. So far as the aspect of concession is concerned it is to
be noted that there is no ground taken even in the memorandum
of appeal that there was no concession as recorded by the trial c
Court.

5. It would be logical to first deal with the plea relating to
absence of concession. It is to be noted that the appellant
conceded certain aspects before the High Court. After having D
done so, it is not open to the appellant to turn around or take a
plea that no concession was given. This is clearly a case of
sitting on the fence, and is not to be encouraged. If really there
was no concession, the only course open to the appellant was
to move the High Court in line with what has been said in State
E
of Maharashtra v. Ramdas Shrinivas Nayak (1982 (2) SCC
463). In a decision Bhavnagar University v. Palitana Sugar Mill
(P) Ltd. (2003 (2) sec 111) the view in the said case was
reiterated by observing that statements of fact as to what
transpired at the hearing, recorded in the judgment of the Court,
are conclusive of the facts so stated and no one can contradict F
-1
such statements by affidavit or other evidence. If a party thinks
that the happenings in court have been wrongly recorded in a
judgment, it is incumbent upon the party, while the matter is still
~resh in the minds of the judges, to call the attention of the very
Judges who have made the record. That is the only way to have G
>-.....-
the record corrected. If no such step is taken, the matter must
necessarily end there. It is not open to the appellant to contend
before this Court to the contrary. The above position was
highlighted in Roop Kumar v. Mohan Thedani (2003) 6 SCC
595).
H
I-

532 SUPREME, COURT REPORTS [2008] 16 S.C.R.

A 6. Tl)is brings us to the crucial question as to whjch was .
the appropri.ate .. prov.ision to ,be applied. In the scheme of the.
IPC culpable homicicf_e is. g~nqs ,and. '.murder' its. spe~ie ..,All
'murders' are 'culpable homicide' but not vice-versa. Speaking
generally; 'culpable homicide' ·sans 'special characteristics of
B rnurder.is·culpabie 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 gravest form of culpable
c· homicide, which is defined in Section 300 as 'murder'. The
second may be termed as 'culpable homicide of the second
degree'. This is punishable under the first part of Section 304.
Then, th.e_re i~. ·~ulP.a.ble homicide of the third degree'. This is
th_e lowest type of culpable homicide and the punishment
provided for it is also the lowest among the punishments
0
provided.for the three grades·. Culpable homicide ·af this degree
is punishable
. . . under
.-
~
the.
second
-
part
.
of Section 304. .

: •T"The academic· distinction between 'murder' and
'culpable homicide.hot amounting to murder' hasalways vexed
E the Courts. ihe confusion is caused, if Courts losing sight of
the true scope ahd meaning of the terms used by the legislature
in these ·sections, allow themselves to be dmwn into niinute
abstractions. The. safest way of approach. to the interpretation
and a·pplicatiori of these provisions seems to be to keep in
F focus the keywords used in the various clauses of Sections ·299
and 300. The following comparative table wiff be helpful in
appreciating the points of distinction between the two offences.

· Section 299 Section 300
G
A person·commits culpable·homicide Subject to certain exceptions ,:;.,
if the act by which the death is culpable homicide is murder
caused is. done - if the act by which the death
is c(3used is done -
INTENTION
H

I
MD. RAFIQUE@ CHACHU v. STATE OF WEST 533
BENGAL [DR. ARIJIT PASAYAT, J.]

(a) with the intention of causing (1) with the intention of A
death; or causing death; or
(b) with the intention of causing · (2) with the intention of
. such bodily injury as is li~ely causing such bodily injury
to cause death; or as the offender knows to be
likely to cause the death of
the person to whom the harm
B
is caused; or
(3) With the intention of
causing bodily injury to any
person and the bodily injury
intended to be inflicted c
is sufficient in the
ordinary course of nature
to cause death; or
KNOWLEDGE
****
D
(c) with the knowledge that the act (4) with the knowledge that
is likely to cause death. the act is so imminently
dangerous that it must in all
probability cause death or
such bodily injury as is
likely to cause death, and E
without any excuse for
incurring the risk of causing
death or such injury as is
mentioned above.
8. Clause (b) of Section 299 corresponds with clauses (2) F
' -( 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 to him is likely to be fatal, notwithstanding the fact that
such harm would not in the ordinary way of nature be sufficient
G
~ y
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 of causing the
bodily injury coupled with the offender's knowledge of the
t.IJ
534 · SUPREME COURT· REPORTS- {2008] 16 S.C.R.

A likelihood of such injury causing the death of the particular victim,
·is sufficient to .br~ng the killing within the ambi.t of thi~ clause.
Thi$ ~specf of_¢1_ause (2) is bqrne out by rnu.strat.ion (b)
;appended..to SeGtion 300.
~r . . ~ ..

B . . 9. 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 pers'on as a result of the rupture of the liver or spleen
or the failure of ~he 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 cou'rse 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,
inste:ad of the Vl.'.Otds 'likely to cause death' occurring in the
corresponding Ciause (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
arid 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 misca"ri"iage of justice. The difference between
clause (b) of.Section 299 and clause (3) o.f 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· as
G distinguished from 9 mere possibility; The words "bodily
injury .... ~ .. sufficient in· the ordinary course of nature to cause
death" mean that death will be the "most probable" result ·Of the
injury, ·ha\(ing regard to the ordinary·course of nature...

10. For cases to fall within clause (3), it is not necessary
H
MD. RAFIQUE @ CHACHU v. STATE OF WEST 535
BENGAL [DR ARIJIT PASAYAT, J.]

that the offender intended to cause death, so long as the death A
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, (Al R 1966 SC 1874) is an apt illustration of
this point.
B.
11. 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, C
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 injury was intended.
Once these three elements are proved to be present, the D
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
course of nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the E
offender. .

12. The ingredients of clause "Thirdly" of Section 300, IPC
were brought out by the illustrious Judge in his terse language
as follows:
- -1 F
"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 G
"y is present.

Secondly, the nature of the injury must be proved. These
are purely objective investigations.
H
536 SUPREME COURT REPORTS !2008] 16 S.C.R.

A ·- 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.

Ones these three elements are proved to be ·present, the
B,
e·n(luiry ·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 s'l.1ffiqient to cause.death in-the ordinary course of nature.
c Thi~ part Cit the enquiry is purely objective and inferential
and·llas nothing to do with the intention of the offender."

13. The learned Judge explained the third ingredient in the
following words: (at page 46~):
D 'The question is not whether the prisoner intended to inflict
: a serious· injury or a trivial one but whether ~e intended to
inflict the injury that is proved to be present. If he can show
that he did not, or if the totality ofthe circumstances justify
· .sue~ a!l inference, then of course, tlie intent that the section
E ..
requir~s is not proved. But if there is nothing ,beyond the
· injury. and. the fact that the· app'ellant inflicted it, the only
possi.ble.inference is that he intended to i.nflict it. Whether
he. knew of its seriousness or· intended serious
consequences, is neither here or there. The question, so
F far as the intention is concemec:f, is not whether he intended
to kill,, .or to inflict ·an 1njury 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
G . or: ttie cir~ums.tances. warrant an .opposite conclusion."
14. 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
H in our legal system and has become part of the rule of law.

-·
MD. RAFIQUE @ CHACHU v. STATE OF WEST 537
BENGAL [DR. ARIJIT PASAYAT, J.]

Under clause thirdly of Section 300 IPC, culpable homicide is A
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
ordinary course of nature to cause death. It must be proved that B1
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.

15. Thus, according to the rule laid down in Virsa Singh's
c
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. · D

16. 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. E,
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 probability, the act having
been committed by the offender without any excuse for incurring
the risk of causing death or such injury as aforesaid. ·

17. The above are only broad guidelines and not cast iron G,
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
538 SUPREME COURT REPORTS [2008] 16 S.C.R.

A to the matters involved in the second and .third stages.

18. The position was illuminatingly highlighted by this Court
in State of Andhra Pradesh v. Rayavarapu Punnayya and Anf. -
(1976 (4) SCC 382), Abdul Waheed Khan@ Waheed and
8 Ors. v. State of Andhra Pradesh (JT 2002 (6) SC 274),
Augustine Saldanha v. State of Karnataka (2003 (10) SCC
47_2), Thangaiya v. State of Tamil Nadu (2005 (9) SCC 650)
and Sunder Lal v. State of Rajasthan (2007 (10) SCC 371)
and Kandaswamy v. State rep. by the Inspector of Police (SLP
C (Crl.) No.5134/2006 disposed of on 17.7.2008)

19. Coming to the identification aspect the Judicial
Magistrate .who conducted the Test Identification Parade has
clarified the position. It has been stated that on 7.10.1996 there
could not be identification of the present appellant because the
D wrong person was put in the Tl Parade. The real suspect, i.e.
the present appellant was not put in Tl Parade and this aspect
has been noted in the report relating to Tl Parade. Subsequently,
Tl Par~de was held where th_e appellant was identified. ~

E 20. It is further relevant to note that during trial the present
appellant escaped from jail custody at the time of transporting
from Alipore Jail to the Court.

21. Coming to the ·question as to whether the offence
committed by the appellant is covered by Section .302 or
F Section 304 IPC. It is to be noted that the accused appellant
shcit at the deceased from his fire arm as a result of which he
sustained grievous injuries and died in the hospital.

22. There are two eye witnesses to the occurrence i.e.
G PWs 12 and 24. Shyam Prasad Mehata (PW-12) was the
informant while PW-24 was another eye witness of the
occurrence. They are sons of the deceased and had sustained
injuries-in the incident.

23. According to PW-12 on the date of occurrence he had
H
MD. RAFIQUE@ CHACHU v. STATE OF WEST BENGAL 539
[DR. ARIJIT PASAYAT, J.]

carried food for his father and elder brother
\
as usual around A
11.30 p.m. He was talking to his f{lther and his father asked
him to feteh drinking water from the fubewell. Shortly thereafter
while he was standing in front of the counter of the shop room,
one Ambassador car stopped iri front of the shop room from
which six persons alighted and two persons remained inside B
the car. All the six persons were armed with various weapons
out of which two were armed with revolvers. They trespassed
to the shop room and demanded keys of the almirahs and when
PW-24 stated that he did not have the same, one of them
assaulted his elder brother with the butt of the gun four times, c
thrice on the head and one near the eye side as a result of
which he received blood injuries. He tried to save his elder
brother. At that time the present appellant shot at his father. To
the similar effect is the evidence of PW-24. The doctor PW-22
had stated that death was due to the effect of the gun shot injury. 0
24. Above being the position there is no merit in the plea
that the offence is not covered by Section 302 IPC .

. 25. The appeal fails and hence dismissed . .'
E
K.K.T. Appeal dismissed.