Holding

The offence is culpable homicide not amounting to murder, so Section 304 Part II IPC applies instead of Section 302 IPC.

Summary

The Supreme Court reviewed the conviction of Sellappan for beating the deceased Periasamy, who later died from head injuries. The key issue was whether the injury satisfied the test for murder under Section 300(3) of the IPC – i.e., being sufficient in the ordinary course of nature to cause death – or only "likely to cause death" under Section 299(b). The Court held that the injury was not of the degree that makes death the most probable result, and therefore the appropriate charge is culpable homicide not amounting to murder under Section 304 Part II, not murder under Section 302. It also rejected the appellant's claim that proper medical treatment could have saved the victim, relying on the Explanation to Section 299. Accordingly, the conviction was altered to Section 304 Part II with a ten‑year imprisonment, and the appeal was allowed.

Issues considered

Whether the facts constitute murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 Part II.
Whether the lack of proper medical treatment can affect the liability of the accused.
Interpretation of Clause (b) of Section 299 and Clause (3) of Section 300 regarding the degree of probability of death.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304

Subjects

murderculpable homicideSection 302 IPCSection 304 IPCdegree of probabilityintentionmedical treatmentIndian Penal Code

Judgment

,.
\

A SELLAPPAN
v.
STATE OF TAMIL NADU

JANUARY 3 I, 2007

B [DR. AR!JlTPASAYAT AND S.H. KAPADIA, JJ.]

Penal Code, 1860:

Section 302-'Murder' and 'culpable homicide not amounting to
C murder'-Distinction between-The deceased married the daughter of the
accused without his knowledge on account of which he was angry towards
the deceased-When the deceased was on his way to bring agricultural
labourers, the accused beat the deceased on his head twice with a stick-
The deceased fell down and died later in the hospital-Trial court convicted
D the accused under S. 302-High Court affirmed the decision-Correctness
of-Held: It is the degree of probability of death which determines whether
a culpable homicide is of the gravest, medium or the lowest degree-Even
if the intention of the 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-Jn the instant
E case, the accused is responsible for causing the death of the deceased-
However, S. 304 Part II /PC would be applicable and not S. 302 IPC-
Conviction accordingly altered.

Words & Phrases:

F "Likely to cause death"-Meaning of-In the context of Clause (b) of
Section 299 of the Penal Code, 1860.

According to the prosecution, on the fateful day the deceased left his
house to bring agricultural labourers and, while he was on his way, the
appellant armed with a stick and, his son armed with an aruval, appeared before
G him. On seeing them, the deceased became panicky and shouted saying that
they were about to beat him. The appellant with the stick, which he had in his
hand, beat the deceased on the head twice. The deceased fell down. The
appellant, leaving the stick, ran away from the place followed by his sQn, who
took away the aruval with him. The occurrence was witnessed by PWs 1 to 3.
H 46
SELLAPPANv. STATEOFTAMILNADU 47
-r-- The trial court found the appellant and his son guilty under Section A
302 of the Penal Code, 1860. However, in appeal, the appellant's son was
acquitted but the appellant's appeal was dismissed. Hence this appeal.

On behalf of the appellant, it was contended that the offence under
Section 302 IPC was not made out; and that with proper treatment life of the
deceased could have been saved. B
Allowing the appeal in part, the Court

t· HELD: I. The argument regarding the absence of proper medical
treatment is clearly unsustainable in view of the Explanation to Section 299
of the Penal Code, 1860. The explanation clearly contemplates that where the c
death is caused by bodily injury, the person who causes such bodily injury
shall be deemed to have caused tire death, although by resorting to proper
remedies and skilful treatment the death might have been prevented. [Para
25) [54-D)

2. The crucial question is as to which was the appropriate provision to
D
be applied. 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 amounting to murder'. For the purpose of fixing
punishment, proportionate to the gravity of the generic offence, the IPC E
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 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, there is 'culpable homicide of the
y third degree'. This is the lowest type of culpable homicide and the punishment F
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. jPara 261154-E-Gl

3. The academic distinction between 'murder' and 'culpable homicide
G
not amounting to murder' has always vexed the Courts. The confusion is
caused, if Courts losing sight of the true scope and meaning of the terms
~ used by the legislature in these sections, allow themselves to be drawn into
minute abstractions. The safest way of approach to the interpretation and
application of these provisions seems to be to keep in focus the keywords used
in the various clauses of Sections 299 and 300. [Para 27] [54-H; 55-A] H
48 SUPREME COURT REPORTS (2007) 2 S.C.R.

A 4.1. 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 :IOO 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
B 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
offence will not be murder, even if the injury which caused the death was 1
intentionally given. In clause (3) of Section 300, instead of the words 'likely
C to cause death' occurring in the corresponding clause (b) of Section 299, the
words "sufficient in the ordinary course of nature to cause death" 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
D clause (3) of Section 300 is one of the degrees 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 distinguished from a mere possibility.
E 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, having
regard to the ordinary course of nature. (Para 29) [56-D-H; 57-A]

4.2. 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
F intentional bodily injury or injuries sufficient to cause death in the ordinary
course of nature. [Para 30) [57-8)

Rajwani v. State of Kera/a, AIR (1966) SC 1874, relied on.

4.3. Thus, according to the rule laid down in Virsa Singh's case, even if
G the intc:ntion of the 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 cam;ing death, the offence would be murder. Illustration (r.)
appended to Section 300 clearly brings out this point. [Para 35[ [59-A)

Virsa Singh v. State of Punjab, AIR (1958) SC 465, followed.
H
~
SELLAPPANv. STATEOFTAMILNADU 49

'
+· 5. Clause (c) of Section 299 and clause (4) of Section 300 both require
knowledge of the probability of the act causing death. It is not necessary for
A

the ·purpose of this case to dilate much on the distinction between these
corresponding clauses. It will be sufficient to say that clause ( 4) of Section
300 would be applicable where the knowledge of the offender as to the
probability of death of a person or persons in general as distinguished from
a particular person or persons - being caused from his imminently dangerous B
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. !Para 36) 159-C-D)

6. The above are only broad guidelines and not cast iron imperatives. In
c
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 to the matters involved in the second and third stages. !Para 37)
D
State of Andhra Pradesh v. Rayavarapu Punnayya, 11976) 4 SCC 382;
Abdul Waheed Khan v. State ofAndhra Pradesh, (2002) 7 SCC 175; Augustine
Sc,/danha v. State of Karnataka, [2003] 10 SCC 472 and Thangiya v. State of
T.N., (2005] 9 sec 650, referred to.

7. When the factual scenario in the case is set aside on the touchstone E
of the principles set out above, it becomes clear that the appellant is
responsible for causing the death of the deceased. However, the application of
Section 304 Part II IPC would be applicable and not Section 302 IPC. The
conviction is accordingly altered. Ten years custodial.sentence would meet
the ends of justice. (Para 39) (59-F-GJ
F
1
I
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 123 of
2007.

From the Final Judgment and Order dated 21.6.2005 of the High Court
of Judicature at Madras in crl. A. No. 494/1998.
G
R.Nedumaran for the Appellant.
...;
R. Sundaravaradan, S. Vallinayagam and V.G. Pragasam for the
Respondent.
H
50 SUPREME COURT REPORTS [2007] 2 S.C.R.

A The Judgment of the Court was delivered bv

DR. ARIJIT PASA YAT, J, I. Leave granted.

2. Appellant calls in question legality of the judgment rendered by a
Division Bench of the Madras High Court confirming the conviction of the
B appellant for commission of offence punishable under Section 302 of the
Indian Penal Code, I 860 (in short the 'IPC') and affinning the sentence of
imprisonment of life as imposed. lt is to be noted that the appellant was tried
with one another whose conviction and the sentence imposed by the trial
Court for offence punishable under Section 324 read with Section 5 I I !PC was
C set aside. Similar was the case for the appellant.

3. Background facts as projected by the prosecution in a nutshell are
as follows:

4. Rathinavelu (PW-I) is the son, Saradha (PW-2) is the wife, Kanakraj
(PW-3) is the younger brother and Selvi (PW-4) is the second wife of Periasamy
D (hereinafter referred to as the 'deceased'). Appellant-Sellappan is the father
and acquitted accused Selvaraj is the brother of Selvi (PW-4). All of them
were residing at Nallarayanapatti.

5. The deceased without the knowledge of the appellant and Selvaraj
E married PW-4 on account of which, they were angry towards the deceased.
6. About I 112 years prior to the incident, appellant abused the grandmother
of PW-I and he was questioned by the grandfather of PW-I. Appellant beat
the grandmother of PW-I and the deceased went to the police station and
gave a complaint against him. A panchayat was convened, where the appellant
F was advised that he should not abuse the family members of the deceased.

7. About a year prior to the date of incident, the appellant went to the
house of the deceased and wanted his daughter PW-4 to return the jewels
which was given to her. She refused to part with the jewels on account of
which also the appellant was nurturing a grievance against the deceased.
G
8. At about 5.45 p.m. on 3.4.1994, Saradha (PW-2), the mother of
Rathinavelu (PW-I), who is the wife of the deceased Periasamy, was collecting
leaves for silk wonns for the purpose of feeding them. Kanakaraj (PW-3) was
inside the house. The deceased left the house to bring agricultural labourers
and, while he was on his way, the appellant anned with a stick, Selvaraj anned
H
SELLAPPANv. STATEOFTAMILNADU[PASAYAT,J.] 51

With an aruval, appeared before him. On seeing them the deceased became A
panicky and shouted saying that they are about to beat him. Selvaraj threw
the aruval, which he had in his hand at the deceased and the deceased side
stepped. At that time, the appellant with the stick, which he had in his hand,
beat the deceased on the head twice. The deceased fell down. The appellant
leaving the stick, ran away from the place followed by Selvaraj, who took B
away the aruval with him. The occurrence was witnessed by PWs. I to 3.

9. Kanakaraj (PW-3) went and brought a taxi at about 7.45 p.m. The
injured Periasamy was placed in the vehicle and taken to the Government
Mohan Kumaramangalam Hospital, where he was produced before Dr.
Chellammalpuri (PW-9), the Casualty Medical Officer at 9.00 p.m. PW-9 on C
examination of the injured Periasamy found the following injuries.

"I. A contusion about 4" in diameter at the occipital region.

2. A contusion about I" diameter at the back of right scapular".

10. PW-9 issued Ex.PS, a copy of the accident register and Ex.P6, the D
wound certificate. PW-9 also sent Ex.P4 intimation to the Outpost Police
Station, which was received by Head Constable (PW-11) attached to the
Outpost Police Station, Dr. Singaram (PW-10) treated the deceased and issued
Ex.P7 wound certificate.

11. On receipt ofEx.P4 sent by PW-9, Head Constable (PW-11) attached E
to the Outpost Police Station went to the ward, where the injured was admitted
and finding him unconscious, questioned PW-I, who gave a statement. The
said statement was reduced into writing and the same stands marked as Ex.PI.
PW-11 then returned to the Outpost Police Station and by wireless informed
Attayampati Police Station, within whose jurisdiction the occurrence took p
·) · place.

12. The Head Constable (PW-I 5) attached to Attayampatti Police Station,
on getting information over wireless, proceeded to the Outpost Police Station
and received Ex.Pl from PW-11. He then returned to the Police Station at
Attayampatti with Ex.Pl and registered a case in Crime No.304of1994 against G
the appellant and Selvaraj under Sections 34 I and 326 !PC by preparing
printed FIR. Ex.P14 is the copy of the printed FIR. PW-15 then took up
investigation in the crime.

13. PW-15 on taking up investigation, reached the scene of occurrence
H
52 SUPREME COURT REPORTS (2007) 2 S.C.R.

A at 4.00 p.m. on 4.4.1994 and prepared Ex.P2, Observation Mahazar and Ex.P-
15, rough sketch. At about 6.15 p.m., he seized MO I, which was lying at the
scene under the mahazar Ex.P-3, attested by witnesses. He examined PW-2,
PW-3, PW-4 and others and recorded their statements.

14. In the meantime, the injured Periasamy was removed from the
B Government Mohan Kumaramangalam Hospital and was admitted as a patient
in a private Nursing Home run by Dr. Chandrasekaran (PW-14) on 4.4.1994.
An operation was performed in the hospital and in spite of the treatment
given, Periasamy breathed his last at about 7.45 p.m. on 9.4.1994. The doctor
sent Ex.Pl I intimation to Kondalampatty Police Station, which in tum was
C forwarded to Attayampatty Police Station. Ex.Pl2 is the copy of the accident
register issued by PW-14 and Ex.Pl3 is the case sheet maintained in the
hospital.

15. On receipt of the death intimation, Ex.P-11, the crime was altered to
one under Section 302 IPC and Ex. P-16 is the express report in the altered
D crime. Thereafter, investigation was taken up by PW-16, Inspector of Police
ofKondalampatty circle.

16. PW-16 on taking up investigation on 9.4.1994 reached SKS Hospital
at 11 p.m. and conducted inquest between 6.00 a.m. and I0.00 a.m. on 10.4.1994
over the dead body of Periasamy in the presence of panchayatdars by preparing
E inquest report, Ex.P-17. At the time of inquest, PWs 2 to 4 and others were
questioned and their statements were recorded. After inquest, PW-16 gave
a requisition to the Doctor for conducting autopsy.

17. On receipt of the requisition, Ex.P-8, PW-13 Assistant Surgeon
attached to the Government Mohan Kumaramangalam Hospital conducted
F autopsy over the body of Periasamy and found the following injuries:-
"!. Abrasions are present o the following areas:
(a) On the back of upper third of right forearm I cm x 0.5 cm.
(b) On the posterior aspect of right side parietal area 3 cm x 2 cm.
G
(c) On the left side occipital area 4 cm x 2 cm.
(d) On the anterior aspect right parietal area I cm x 0.5 cm. r-
(e) A linear abrasion on the left side cheek I cm x 0.2 cm.

H All are dark brown in colour."
4
SELLAPPANv. STATEOFTAMILNADU[PASAYAT,J.] 53
18. A curved sutured wound 14 cm in length on the right front to parieto A
temporal region of the scalp with the convexity facing upwards. The front
end of the wound begins 2 ems above the inner end of the right eyebrow.
On removal of the sutures, partially healed, 0.5 cm in breadth edges of the
wound are clean cut, through which the gel foam is coming out."

19. PW-13 issued Ex.P-10, Postmortem certificate with his opinion that B
death was on account of cranio-cerebral injuries.

20. PW-16, continuing with his investigation, questioned witnesses and
recorded their statements. He searched for the appellants, who were
absconding. On 11.4.1994, he examined the witnesses including the Doctors. C
On 13.4.1994, PW-16 was informed that the appellant and Selvaraj have
surrendered themselves before the Judicial Magistrate, Omalur. After his
transfer, investigation in the crime was taken up by PW-17, who after examining
thQ:.Doctors and other witnesses filed the final report against the appellant
on 19.10.1994.
D
21. The appellant was questioned under Section 313 of the Code of
Criminal Procedure, 1973 (in short 'Cr.P.C. ') on the incriminating circumstances
appearing against him. He denied all the incriminating circumstances and
- ' stated that on account of enmity, this case has been foisted.

22. The trial Court found the two accused persons before it guilty. E
However, in appeal Selvaraj was acquitted, but as noted above, appellant's
appeal was dismissed.

23. In support of the appeal learned counsel for the appellant submitted
that the evidence is not credible and cogent and in any event offence under
Section 302 !PC is not made out~ It is submitted further that with proper F
treatment life of the deceased could have been saved. Learned counsel for
the State submitted that no case for interference is made out.

24. PW-I, the son, PW-2, the wife and PW-3, the younger brother of
the deceased were examined to establish that the appellant inflicted the fatal
injuries. It is the evidence of the witnesses that on account of the deceased G
marrying PW-4, who is the daughter of the appellant, as second wife, the
.--i.. appellant, the father and Selvaraj, the brother of PW-4 were not happy with
the deceased and about 18 months prior to the date of incident, the appellant
quarreled with the grand parents of PW-I and during the quarrel, beat the
grandmother of PW-I, for which a complaint was given at Police Station. The H
54 SUPREME COURT REPORTS [2007] 2 S.C.R.

A evidence further show that a panchayat was convened and the appellant was
advised not to abuse the family members of the deceased, but the appellant
did not heed to the advice. The evidence further shows that some time prior
to the date of incident, the appellant wanted PW-4, her daughter to return the
jewels, which he gave previously and when she refused, a quarrel ensured
B and, therefore, the appellant was nurturing a grievance against the deceased
and his family members. The witnesses have further deposed that on the date
of the incident when the deceased was on his way to engage agricultural
labourers, the appellant armed with a stick, MOI appeared before the deceased
and that the appellant beat the deceased on the head two or three times and
that on account of the said injuries inflicted by the appellant, the deceased
C fell down and later on he was removed to the hospital and treated by various
doctors and ultimately in spite of the treatment, he died on 9.4.1994.

25. Coming to the plea regarding absence of proper medical treatment
the argument is clearly unsustainable in view of the Explanation to Section
299 !PC. The explanation clearly contemplates that where the death is caused
D by bodily injury, the person who causes such bodily injury shall be deemed
to have caused the death, although by resorting to proper remedies and
skilful treatment the death might have been prevented.

26. The crucial question is as to which was the appropriate provision
to be applied. In the scheme of the !PC culpable homicide is genus and
E '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
punishment, proportionate to the gravity of the generic offence, the !PC
practically recognizes three degrees of culpable homicide. The first is, what
F 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 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
G three grades. Culpable homicide of this degree is punishable under the second
part of Section 304.

27. The academic distinction between 'murder' and 'culpable homicide
not amounting to murder' has always vexed the Courts. The confusion is
H caused, if Courts losing sight of the true scope and meaning of the terms used
SELLAPPANv. STATEOFTAMILNADU[PASAYAT,J.] 55
by the legislature in these sections, allow themselves to be drawn into 1:1inute A
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.

Section 299 Section 300 B
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 caused is done -
c
INTENTION

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

(b) with the intention of causing (2) with the intention of D
such bodily injury as is likely 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 is
caused; or E
(3) With the intention of
causing bodily injury to any
person and the bodily injury
intended to be inflicted
is sufficient in the F
ordinary course of nature
to cause death; or

KNOWLEDGE
(c) with the knowledge that the act (4) with the knowledge that G
is likely to cause the act is so imminently
death. dangerous that it must in all
probability cause death or
such bodily injury as is
likely to cause death, and H
56 SUPREME COURT REPORTS [2007] 2 S.C.R.

A without any excuse for
incurring the risk of causing
death or such injury as is
mentioned above.

28. Clause (b) of Section 299 corresponds with clauses (2) and (3) of
B 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 to cause death of a
C 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
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)
D is borne out by illustration (b) appended to Section 300.
29. Clause (b) of Section 299 does not postulate any such knowledg.:
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
E spleen or diseased heart and such blow is likely to cause death of that
particular person as a result of the rupture of the liver, or spleen or the failure
of the heart, as the case may be. If the assailant had no such knowledge
about the 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
F 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 words "sufficient in the ordinary course of nature to cause
death" have been used. Obviously, the distinction lies between a bodily
injury likely to cause death and a bodily injury sufficient in the ordinary
G course of nature to cause death. The distinction is fine but real and if
overlooked, may result in miscarriage of justice. The difference between
clause (b) of Section 299 and clause (3) of Section 300 is one of the degree
of probability of death resulting from the intended bodily injury. To put it
more broadly, it is the degree of probability of death which determines whether
H a culpable homicide is of the gravest, medium or the lowest degree. The word
SELLAPPANv. STATEOFTAMILNADU[PASAYAT,J.] 57
'likely' in clause (b) of Section 299 conveys the sense of probable as A
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 probable" result of the injury, having regard to the ordinary course of
nature.

30. For cases to fall within clause (3), it is not necessary that the B
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 this point.

31. In Virsa Singh v. State ofPunjab, AIR (1958) SC 465, Vivian Bose, C
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. Thirdly, it must D
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 sufficient
to cause death in the ordinary course of nature. This part of the enquiry is E'
purely objective and inferential and has nothing to do with the intention of
the offender.

32. The ingredients of clause "Thirdly" of Section 300, !PC were brought
out by the illustrious Judge in his terse language as follows:
F
r "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.

Secondly, the nature of the injury must be proved. These are purely G
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
58 SUPREME COURT REPORTS (2007] 2 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
B purely objective and inferential and has nothing to do with the
intention of the offender."

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

c "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 suet an inference, then of course,
the intent that the section requires is not proved. But if there is
nothing beyond the injury and the fact that the appellant inflicted it,
D the only possible inference is that he intended to inflict it. Whether
he knew of its seriousness or intended serious consequences, is
neither here or there. The question, so far as the intention is concerned,
is not whether he intended to kill, or to inflict an injury of a particular
degree of seriousness but whether he intended to inflict the injury in
E 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."

34. These observations of Vivian Bose, J. have become locus classicus.
The test laid down by Vitsa Singh 's case (supra) for the applicability of clause
F "Thirdly" is now ingrained in our legal system and has become part of the c:::::

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 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
G inflicted is sufficient in the ordinary course of nature to cause death. It must
be proved that there was an intention to inflict that particular bodily injury
which, in the ordinary c0t1rse of nature, was sufficient to cause death, viz.,
that the injury found to be present was the injury thai was intended to be
inflicted.

H 35. Thus, according to the rule laid down in Virsa Singh 's case, even
SELLAPPANv. STATEOFTAMILNADU[PASAYAT,J.) 59

if the intention of accused was limited to the infliction of a bodily injury A
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.

36. 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 B
for the purpose of this case to dilate much on the distinction between these
corresponding clauses. It will be sufficient to say that clause (4) of Section
300 would be applicable where the knowledge of the offender as to the
probability of death of a person or persons in general as distinguished from
a particular person or persons being caused from ~is imminently dangerous C
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.

37. The above are only broad guidelines and not cast iron imperatives. D
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 to the matters involved in the second and third stages.

38. The position was illuminatingly highlighted by this Court in Stare E
of Andhra Pradesh v. Rayavarapu Punnayya and Anr., [1976] 4 SCC 382,
Abdul Waheed Khan@ Waheed and Ors. v. State ofAndhra Pradesh, [2002]
7 SCC 175, Augustine Saldanha v. State ofKarnataka, [2003] l 0 SCC 472 and
in Thangiya v. State of T.N., [2005] 9 SCC 650.

39. When the factual scenario in the case is set aside on the touchstone F
of principles set out above, it becomes clear that the appellant is responsible
for causing the death of the deceased. However, the application of Section
304 Part II IPC would be applicable and not Section 302 IPC. The conviction
is accordingly altered. Ten years custodial sentence would meet the ends of
justice. G
40. Appeal is allowed to the aforesaid extent.

v.s.s. Appeal Parity allowed.