SETTU AND ORS.versusSTATE OF TAMIL NADU

                             SETTU AND ORS.                                       A
                                      v.
                        STATE OF TAMIL NADU

                            AUGUST 22, 2006

      (ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.]                             B


      Penal Code, 1860:

      ss. 299, 300, 302, 304(Part !), 324 and 326- Three accused attacking
one person-Death of victim-Trial court convicting two of them u/s 302 and         C
the third uls 302 r/w 34 !PC-Held, fatal injuries having been inflicted by
appellant no. I, his conviction and sentence uls 302 confirmed-Taking note
of weapon used by appellants and place where injuries were inflicted, appellant
no. 2 convicted u/s 304 (Part !)-His conviction u/s 324 confirmed-Appellant
no. 3 convicted uls 326-Comparative analysis of provisions of ss.299 and          D
300 made and legal principles deduced

       Appellants were prosecuted for causing death of younger brother of
P.W. I and causing injuries to P.W. 12, a friend of the deceased. The
prosecution case was that on the day of occurrence the three appellants
beat the deceased. The deceased made a complaint to the police. Later, E
when the deceased and P.W. 12 were returning to their village, in the way,
they saw the appellants stan~ing with weapons. Appellant no. I gave knife
injuries on the left side of the head, on the left eye-brow and on the right
ear of the deceased. When the injured fell down, appellant no. I once again
inflicted a knife injury on his head. Appellant no. 2 cut the deceased on F
his back as also on his right knee. When P.W. 12 intervened, appellant
No. 2 inflicted an injury on his right wrist. Appellant no. 3 caused grievous
injury on the right hand of the deceased. Besides PW-12, the incident was
also witnessed by PW-I, who had reached there on hearing about the.
earlier occurrence. The deceased was taken to the hospital where he
breathed his last. The trial court .convicted appellant Nos. I and 2 under G
s.302 and appellant no. 3 under s.302 r/w s.34 IPC and sentenced all of
them to imprisonment for life. Besides, appellant no. 2 was also convitted
u/s 324. The High Court confirmed the conviction and sentence. Aggrieved,
all the three accused filed the present appeal.

                                     185                                          H
    186                      SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A         It was contended for the appellants that the scenario described by
    the prosecution clearly ruled out application of s.302 IPC; and so far as
    appellant no.3 was concerned, he allegedly assaulted on the right leg and
    not any vital part of the deceased.

          Allowing the appeal as regards appellants no. 2 and 3 in part, the
B Court
           HELD: I. I. The safest way of approach to the interpretation and
    application of provisions of sections 299 and 300 IPC seems to be to keep
    in focus the keywords used in the various clauses of these sections. In the
    instant case, the factual scenario is examined in the background of the
C   legal principles deduced from various pronouncements of this Court. It is
    the prosecution case that the fatal injuries are attributable to appellant
    no. 1. He assaulted the deceased with a knife which he had kept concealed.
    The appropriate conviction would be in terms of Section 302 IPC so far
    as appellant no. I is concerned and the appeal with regard to him stands
D   dismissed. 1190-D; 194-GI

          Virsa Singh v. State of Punjab, AIR (1958) SC 465; Rajwani and Anr.
    v. State of Kera/a, AIR (1966) SC 1874; State of Andhra Pradesh v.
    Rayavarapu Punnayya and Anr., 1197614 SCC 382; Abdul Waheed Khan@
    Waheed and Ors. v. State of Andhra Pradesh, 120021 7 SCC 175 apd
E   Thangaiya v. State of Tamil Nadu, 2005 (9) sec 650, relied on.

          1.2. Taking note of the weapon used by the appellants and the place
    where injuries were inflicted, appellant no.2 has to be convicted under
    Section 304 (Part I) IPC. His conviction in terms of Section 324 IPC is in
    order. The custodial sentence of 10 years would meet the ends of justice
F   so far as appellant no.2 is concerned. The sentence awarded by the trial
    court as affirmed by the High Court so far as appellant No.2 is concerned
    in respect of his conviction in terms of Section 324 IPC remains unaltered.
                                                              (194-H; 195-A-B[

          1.3. So far as appellant no.3 is concerned, he is to be convicted in
G   terms of Section 326 IPC. For appellant no.3, the custodial sentence would
    be three years rigorous imprisonment. (195-A-BI

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 865
    of 2006.

H         From the Judgment and Order dated 9.9.2005 of the High Court of
              SETTU v. STATE OF TAMIL NADU [PASAYAT. .I.]              187
Judicature at Madras in Criminal Appeal No. 786 of 2000.                       A
      V.A. Mohta and T. Harish Kumar for the Appeallants.

      V.G. Pragasam and S. Vallinayagam for the Respondent.

      The Judgment of the Court was delivered by                               B
      ARIJlT PASAYA T, J. Leave granted.

      Heard learned counsei for the parties.

      Appellants call in question legality of the judgment rendered by a       C
Division Bench of the Madras High Court confirming conviction of each of
the appellants and imposition of sentence as done by t'1e learned Additional
Sessions Judge Vellore. While appellant Nos. I and 2 were convicted for
offence punishable under Section 302 of the Indian Penal Code, 1860 (in
short the !PC), appellant No.3 was convicted for offence punishable under
Section 302 read with Section 34 IPC.                                          D
      The trial Court held that the prosecution had established the accusations
that on 22.8.1995 at 6.00 P.M. the appellants caused injuries to Ramesh
(hereinafter referred to as the 'deceased') by cutting him with knife and
pichuvas and as a result of the said injuries, the deceased breathed his life at
about 3.20 P.M. on 29.8. I 995 at Christian Medical College Hospital, Vellore E
while undergoing treatinent. The further allegation against appellant No.2
was that during the incident he caused injuries to Babu (PW- I 2). Appellant
No.2 was accordingly found guilty of offence punishable under Section 324
!PC and sentenced to one year rigorous imprisonment.

      The factual position as highlighted by the prosecution during trial      F
essentially as follows:

      Chandru (P.W. I) is the elder brother of the deceased and Babu (P. W. 12)
was his friend. On 22.08. I 995 at about 3.30 p.m. Babu (P.W. 12) met the
deceased, at the bus stop near Sankaranpalayam and deceased was seen with G
blood-stained injuries. Babu (P.W.12) questioned him as to what happe!ied.
Deceased informed him that appellant Nos. I to 3 and another had beaten
him. Babu (P.W. 12) took the deceased to the hospital, where he was given
treatment. Later, the deceased gave a complaint at the Police Station. P.W.12
and the deceased were returning to their village via Sankaranpalayam. While.
they were at the college road, appellant Nos. I to 3 were seen standing with H
    188                        SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A weapons in their hands. On seeing the deceased, the appellant No. I, removing
    a knife, which he had kept concealed, cut him on the left side of the head,
    which caused an injury on the left eyebrow. He was also inflicted an injury
    on the right ear by the said appellant. The deceased fell down. The appellant
    No. I, once again inflicted cut on the head of the deceased. The appellant
B   No.2 cut the deceaseci on his back as well as on his right knee. P.W.12
    intervened and he also sustained injury on account of the assault by the
    appellant No.2, which warded off. P. W.12 suffered an injury on the right
    wrist. The appellant No.3 beat the deceased on the right hand causing grievous
    injury. The occurrence was witnessed by P.W.12 and by P.W.J, the elder
    brother of the deceased, who had come to the scene of occurrence in search
C   of his brother on hearing about the earlier occurrence, which took place at
    about 3.30 p.m., as well as by P.Ws 2 to 8. The deceased was taken to the
    Government Hospital at Veliore, where he was examined by the Casualty
    Medical Officer (P. W. I 9) at 7.10 p.m. The doctor found the following injuries:

            I.   A laceration on the left eyebrow with force. Fracture frontal
D                skull 5X 1/2 X 1/2 deep.
           2.    A laceration on the right forehead 5 X 1/2 X 1/2 cm.

          Ex. P.14 is the wound certificate. In the meantime P.W. 12 appeared
    before P.W.20, the Sub-Inspector of Police of Vellore South Police Station
E   and gave a complaint, which was reduced into writing. The said complaint
    is Ex. P.4. On the complaint (Ex. P.4) P. W.20 registered a crime in Crime
    No.900 of I995 under Sections 326 and 323 l.P.C. Investigation was taken
    up by P.W.20.

          P.W.20 reached the scene of occurrence and examined witnesses. As
F there was no sufficient light at the place, he returned to the police station. In
    the meantime, P.W. 12, who had suffered injury was referred to the hospital
    and was examined by P. W. I9. The doctor found an abrasion on his right
    wrist measuring 1 X 1/8 cm. P. W.12 complained of pain in his arm. Ex. P.15
    is the wound certificate issued by the Doctor. The bloodstained earth and
    sample earth, M.Os.9 and 10 were seized under a mahazar Ex. P.19. He went
G   to Christian Medical College Hospital, where the deceased was sent from
    Government Pentland Hospital, Veilore, but he could not record the statement
    of injured Ramesh as he was unconscious. P.W.20 seized M.0.5 banian and
    M.0.6 pant, of the deceased Ramesh under a mahazar Ex. P.3. He searched
    for the appellants and arrested appellant Nos. 2 and 3 at about 1.00 i;v1· on
H   24.8.95 when they were near Bagayam bus stand. They were questioned. The
              SETTU v. ST ATE OF TAMIL NADU [PASAYA T, .I.]                 189
appellant No.2 gave a statement and in pursuance of the admissible portion          A
(Ex. P. 20) given by him, and on production by him knife and two sticks
M.O. 8 series, were seized under a mahazar, (Ex. P.21 ). On 24.8.95,
investigation in the crime was taken up by P. W. 21, the Inspector of Police.
On 4.9.1995 appellant No. I was arrested and on the basis of his statement a
knife was recovered.
                                                                                    B
      After completion of investigation Investigating Officer filed charge sheet
and the accused persons were sent •!p for trial.

      In order to further its version prosecution examined nine witnesses. Out
of them, ·PWs 2 to 8 made departure from the statement given during                 C
investigation. Therefore, prosecution relied upon the evidence of PWI and
PW 12. The trial Court held that the evidence of these two witnesses was
cogent, credible and trustworthy and accordingly recorded the convictions
and imposed sentence as noted earlier.

      The accused persons preferred an appeal before the High Court which           D
as noted supra was dismissed by the impugned judgment.

       Learned counsel of or the appellants submitted that the prosecution
version is not credible, cogent and is essentially unreliable. The evidence of
PWs. I and 12 has not been analysed carefully because former was the elder
brother of the deceased while the later was his friend. Additionally, the           E
scenario as described by the prosecution clearly rules out application of Section
302 !PC. So far as appellant No.3 is concerned, the prosecution version is to
the effect that he assaulted on the right leg and not on any vital part. The
Doctor PW13 has clearly indicated that the injuries which were stated to be
fatal injuries were lacerated injuries.
                                                                                    F
      In· response, learned counsel for the respondent-State supported the
judgment of the trial court and the High Court. According to him the concurrent
finding of fact recorded by the courts below should not be interfered with.

       The evidence of PWs I and I2 have been analysed in great detail by
the trial Court and the High Court. The same has been rightly held to be            G
cogent and credible.

      This brings us to the crucial question as to which was the appropriate ·
provision to be applied. Jn the scheme of the IPC culpable homicide is genus
and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice- H
    190                       SUPREME COURT REPORTS [20:l61 SUPP. 5 S.C.R.

A 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 practically recognizes three degrees of culpable homicide. The first is,
    what may be called, 'culpable homicide of the first degree'. This is the
B   greatest 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
    punishment for the three grades. Culpable homicide of this degree is punishable
C   under the second part of Section 304.

          The academic distinction between 'murder' and 'culpable homicide not
    amounting to murder' has always vexed the Courts. The confusion is caused,
    if Courts losing sight of the true scope and meaning of !he terms used by the
    legislature in these sections, allow themselves to be drawn into minute
D   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 s:ctions 299 and 300. The following comparative table
    will be helpful in appreciating the points distinction between the two offences.

          Section 299                               Section 300
E
    A person commits culpable                Subject to certain exceptions culpable
    homicide if the act by which the         homicide is murder if the act by
    death is caused is done-                 which the death is caused is done -

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

    (b) with the intention of causing        (2) with the intention of causing such
    such bodily injury as is likely to       bodily injuries as the offender knows
G   cause death; or                          to be likely to cause the death of the
                                             person to whom the harm is caused;
                                             or
                                             (3) with the intention of causing
                                             bodily injury to any person ano the
H
               SETTU v. STATE OF TAMIL NADU (PASAYA T. l.]                   191

                                           bodily injury intended to be              A
                                           inflicted is sufficient in the ordinary
                                           course of nature to cause death; or

                                KNOWLEDGE

 (c) with the knowledge that the act       (4) with the knowledge that the act
 is likely to cause death                  is so imminently dangerous that it        B
                                           must in all probability cause death
                                           or such bodily injury as is likely to
                                           cause death, and without any excuse
                                           for incurring the risk of causing
                                           death or such injury as is mentioned      C
                                           above.
       Clause (b) of Section 299 corresponds with Clauses (2) and (3) of
Section 300. The distinguishing feature of the mens rea requisite under Clause
(2) is the knowledge possessed by the offender regarding the particular victim
being in such a peculiar condition or state of health that the internal harm D
caused to him is likely to be fatal, notwithstanding the fact that such harm
would not in the ordinary way of nature be sufficient to cause death of a
person in nonnal 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 E
to bring the killing within the ambit of this clause. This of Clause (2) is borne
out by illustration (b) appendP,d to Section 300.

       Clause (b) of Section 299 does not postulate any such knowledge on
the part of the offender. Instances of cases of falling under Clause (2) of
Section 300 can be where the assailant causes death by a fist blow intentionally F
given knowing that the victim is suffering from an enlarged liver, or enlarge0
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 G
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 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 between a bodily injury likely to cause death and a bodily H
    192                        SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

A injury sufficient in the ordinary course of nature to cause death. The distinction
    is fine but real and if overlooked, may result in miscarriage of Justice. The
    difference between Clause (b) of Section 299 and Clause (3) of Section 300
    is one of the degree of probability of death resulting from the intended bodily
    injury. To put it more broadly, it is the degree of probability of death which
    detennines whether a culpable homicide is of the gravest, medium of the
B   lowest degree. The word 'likely' in Clause (b) of Section 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 probable" result of the injury, having regard to the
    ordinary course of nature.
c          For cases to fall within Clause (3), it is not necessary that the offender
    intended to cause death, so long as the death ensues from the intentional
    bodily injury or injuries sufficient to cause death in the ordinary course of
    nature. Rajwani and Anr. v. State of Kera/a, AIR (1966) SC 1874 is an apt
    illustration of this point.
D
          In Virsa Singh v. State of Pzmjab, AIR (I 958) 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 acts 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
E   must be proved. These are purely objective investigations. Thirdly, it must be
    proved that there was an intention to inflict that particular injury, that is to
    say, that it was not accidental or unintentional or that some other kind of
    injury was intended. Once these three elements are proved to be present, the
    enquiry proceeded further, and fourthly it must be proved that the injury of
p   the type just described made up the tltree 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 offender.

          The ingredient of clause "'Thirdly'' of Section 300, !PC were brought
G out by the illustrious Judge in his terse language as follows:
            "12. To put it shortly, the prosecution must prove the following facts
            before it can bring a case under Section 300, "thirdly".

                First, it must establish, quite objectively, that a bodily injury is
H           present;
               SETTU v. ST ATE OFTAMIL NADU [PASAYA T, J.]                    193
            Secondly, the nature of the injury must be proved; These are              A
        purely objective investigations.

            Thirdly, it must be proved that there was an intention to inflict
        that particular bodily injury, that is to say, that it was not accidental
        or unintentional, or that some other kind of injury was intended.
                                                                                      B
           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           C
        purely objective and inferential and has nothing to do with the
        intention of the offender."

      The leaned Judge explained the third ingredient in the following words
(at page 468):
                                                                                      D
        "The question is not whether the prisoner intended to inflict a serious
        injury or a trivial one but whether he intended to inflict the injury that
        is proved to be present. If he can show that he did not, or if the
        totality of the circumstances justify such an inference, then, of course,
        the intent that the section requires is not proved. But if there is
        nothing beyond the injury and the fact that the appellant inflicted it,       E
        the only possible inference is that he intended to inflict it. Whether
        he knew of its seriousness, or intended serious consequences, is
        neither here nor there. The question, so far as the intention is
        concerned, is not whether he intended to kill, or to inflict an injury of
        a particular degree of seriousness but whether he intended to inflict         F
        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."

       These observations of Vivian Bose, J. have come locus classicus. The
test laid down by Virsa Singh 's case (supra) for the applicability of clause         G
"Thirdly" is now ingrained in our legal system and has become part of the
rule of law. Under clause thirdly of Section 300 !PC, culpable homicide is
murder, if both the following conditions are satisfied: i.e. (a) that the act which
causes death is done with the intention of causing death or is done with the
intention of causing a bodily injury; and (b) that the injury intended to be
inflicted is sufficient in the ordinary course of nature to cause death. It must      H
     194                      SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A 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 the injury that was intendea to be inflicted.

            Thus, according to the rule laid down in Virsa Singh 's case, eve if the
     intention of accused was limited to the infliction of a bodily injury sufficient
B    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.

           Clause (c) of Section and Clause (4) of Section 300 both require
C    knowledge of the probability of the act causing death. It is not necessary for
     the purpose of this case to dil~te 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
·D   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.

           The above are only broad guidelines and not cast iron imperatives. In
E 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.

F          The position was illuminatingly highlighted by this Court in State of
     Andhra Pradesh v. Rayavarapu Punnayya and Anr., [1976) 4 SCC 382 and
     recently in Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra
     Pradesh, (2002) 7 SCC 175 and in Thangaiya v. State of Tamil Nadu, (2005)
     9 sec 650.

G        The fai:tual scenario is examined in the background of the legal principles
  set out above. The conclusion is that the appropriate conviction would be
  in terms of Section 302 !PC so far as appellant No. I is concerned. The appeals
  stands dismissed so far as he is concerned. It is the prosecution case that
  the fatal injuries are attributable to him. He had assaulted the deceased with
  a knife which was concealed by him. Taking note of the weapon used by the
H appellants and the place where injuries were inflicted, appellant No.2 has to
              SETTUv. STATEOFTAMILNADU [PASAYAT,l.]                        195
be convicted under Section 304 Part I !PC. So far as appellant No.3 is concerned, A
he is to be convicted in terms of Section 326 JPC. The conviction of appellant
No. 2 in terms of Section 324 !PC is in order. The custodial sentence of I0
years would meet the ends of justice so far as appellant No.2 is concerned.
For appellant No.3, the custodial sentence would be three years rigorous
imprisonment. The sentence awarded by the trial court as affirmed by the B
High Court so far as appellant No.2 is concerned in respect of his conviction
                                                                 .
in terms of Section 324 IPC remains unaltered. The two sentences imposed
on him shall run concurrently. The appeal is allowed to the aforesaid extent,
so far as appellant Nos. 2 and 3 are concerned.

     In view of the disposal of the appeal itself, no orders are necessary to    C
be passed in miscellaneous petitions.

RP.                       Appeal dismissed in respect of Appellant No.
                 and partly allowed in respect of Appellant Nos. 2 and 3.