Holding

The case does not fall under Section 302 IPC but is covered by Section 304 Part I IPC, and the conviction is accordingly altered.

Summary

The appellant, Shri Harendra Nath Borah, a police constable, was convicted under Section 302 of the Indian Penal Code for the death of a truck driver who was assaulted by police personnel and later died in hospital. The appellant challenged the conviction, arguing that the facts did not constitute murder but only culpable homicide not amounting to murder. The Supreme Court examined the statutory distinctions between Sections 299 and 300, focusing on the required mens rea of intention, knowledge and the probability of death under the various clauses. It held that the prosecution had not proved the specific intent or knowledge required for murder under Section 302, but the conduct fell within Section 304 Part I. Consequently, the conviction was altered to culpable homicide not amounting to murder and the sentence reduced to ten years' imprisonment. The appeal was partly allowed.

Issues considered

The appropriate provision under the IPC applicable to the facts – whether Section 302 (murder) or Section 304 Part I (culpable homicide not amounting to murder).
Interpretation of Sections 299 and 300 regarding the requisite intention, knowledge and probability of death for murder.
Whether the evidence established the mens rea required for a conviction under Section 302.

Legislation cited

Code of Criminal Procedure, 1973s. 197
Indian Penal Code, 1860s. 299, s. 300(2), s. 300(3), s. 300(4), s. 302, s. 304 Part I

Subjects

murderculpable homicideIPC Section 299IPC Section 300IPC Section 302IPC Section 304intentionknowledgeprobability of deathcriminal lawsentencing

Judgment

SHRl HARENDRA NATH BORAH A
v.
STATE OF ASSAM

JANUARY 24, 2007

[DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] B

Indian Penal Code, 1860.

Sections 299 & JOO-Distinction between 'murder' and culpable
homicide not amounting to 'murder '-Held, in the scheme of /PC culpable C
homicide is genus and 'murder' its specie-All 'murder' is 'culpable
homicide' but not vice-virsa- 'Culpable homicide' sans special
characteristics of murder is 'culpable homicide not amounting to murder'-
In the facts, conviction altered from Section 302 to Section 304 Part /.

Sections 299(b) & 300(2)-Distinction-Held, the 'intention to cause
D
death' is not an essential requirement of Section 300(2)-/ntention of
causing bodily injury coupled with offender's knowledge of the likehood
of such injury causing death of the particular victim, is sufficient to bring
the killing within the ambit of Section 300(2)-Section 299(b) does not
postulate any knowledge on the part of the offender. E

Sections 299(b) & 300(3)-Distinction-Held, 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-Difference is one of the
degree of probability of death resulting from the intended bodily injury- F
For cases to fall within clause (3), it is not necessary that the offender
intended to cause death-Section 300(3) is applicable if there is intention
to inflict that particular bodily injury which in the ordinary course of
nature is sufficient to cause death.

Sections 299(c) & 300(4)-Distinction-Held, Sections 299(c) & G
300(4) both require knowledge of the probability of the act causing
death-Section 300(4) is applicable where knowledge of offender as to
probability of death approximates to a practical certainty.

Prosecution alleged that truck driver-F was assaulted by appellant- H
1211
y

1212 SUPREl\1E COURT REPORTS [2007] I S.C.R.
\-
A police personnel at 11 p.m. as a result of which F became senseless and
the appellant left him on the road and returned to the police station, F was
brought to hospital for treatment and was referred to another hospital and
on way to the hospital his condition became serious and he died. Trial Court
convicted appellant for commission of offence under Section 302 Indian
Penal Code, 1860 and sentenced him to imprisonment for life which was
B also upheld by the High Court in appeal. Hence this appeal by the accused
police personnel. (
..
Partly allowing the appeal, the Court

c HELD : 1. The crucial question is as to which was the appropriate
provision to be applied. In the scheme of the Indian Penal Code, 1860
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
D
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,
which is defined in Section 300 IPC as 'murder'. The second may be termed
as 'culpable homicide of the second degree'. Thus is punishable under the
E first part of Section 304 IPC. 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
three grades. Culpable homicide of this degree is punishable under the
second part of Section 304 IPC. [Para 7] [1216-E-GJ
F
2. The academic distinction between 'murder' and 'culpable homicide
not amounting to murder' has always vexed the Courts. 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 IPC. [Para 8) [1216-H, 1217-A]
G
3.1. Clause ~b) of Section 299 IPC corresponds with clauses (2) and
(3) of Section 300 IPC. 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
H the internal harm caused to him is likely to.be fatal, notwithstanding the
SHR! HARENDRA NA TH BORAH v. STA TE 1213

fact that such harm would not in the ordinary way of nature be sufficient A
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 likelihood of such injury causing the death of
the particular victim, is sufficient to bring the killing within the ambit of
this clause. This aspect of clause (2) is borne out by illustration (b)
B
appended to Section 300. 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 C
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 inj1Jry sufficient in the
ordinary course of nature to cause death, the offence will not be murder, D
even if the injury which caused the death, was intentionally given.
(Paras 9 and IOI (1218-CJ

3.2. In clause (3) of Section 300 JPC, ir.stead 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 E
been used. Obviously, the distinction lies between a bodily injurY. likely to
cause death and a bodily injury sufficient in the ordinary course of nature
to cause death. The distinction is fine but real and if overlooked, may result
in miscarriage of justice. The difference between clause (b) of Section 299
and clause (3) of Section 300 is one of the degree of probability of death p
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. The words "bodily injury..... sufficient in the ordinary
course of nature to cause death" mean that death will be the "most G
probable" result to the injury having regard to the ordinary course of
nature. For cases to fall within clause (3), it is not necessary that the
offender intended to cause death, so long as the death ensues from the
intentional bodily injury or injuries sufficient to cause death in the
ordinary course of nature. Under clause thirdly of Section 300 IPC, H
y

1214 SUPREME COURT REPORTS (2007] 1 S.C.R.

A culpable homicide is murder, if both the following conditions are satisfied \-

: i.e. (a)that the act which cause!' 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 proved that there was an intention to inflict
that particular bodily injury which, in the ordinary course of nature, was
B
sufficient to cause death, viz., that the injury found to be present was the
injury that was intended to be inflictt'd.
[Paras 10, 11 and 14] [1218-H, 1219-A, 1221-A-C) r

Rajwant and Anr. v. State of Kera/a, AIR (1966) SC 1874 and Virsa
c Singh v. State of Punjab, AIR (1958) SC 465, relied on.

3.3. Clause (c) of Section 299 and clause (4) Section 300 both require
knowledge of the probability of the act causing death. 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
D persons in general as distingui5ihed 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
E injury as aforesaid. [Para 16) (1221-D-F]

Andhra Pradesh v. Rayavarapu Punnayya and Anr., [19761 4 sec
382, Abdul Waheed Khan@ Waheed and Ors. v. State of Andhra Pradesh,
(2002) 7 SCC 175, Augustine Saldanha v. State of Karnataka, [2003) 10
SCC 472 and Thangiya v. State of T.N., [2005) 9 SCC 650, referred to.
F
4. The inevitable conclusion is that the case at hand is not covered
under Section 302 IPC and on the other hand the case is covered under
Section 304 Part I IPC. The conviction is accordingly altered. Custodial
sentence of 10 years would meet the ends of justice. [Para 19] [1222-B) ·"
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. I 07 of
2007.

~
From the Final Judgment and Order dated 5.6.2006 of the Gauhati High
Court in Criminal Appeal No. 33/2005.
H
SHRIHARENDRANATHBORAHv. STATE[PASAYAT,J.] 1215
'
Rana Mukherjee, Azim H. Laskar, Anand and Abhijit Sengupta for the A
Appellant.

Monita Orion (for M/s. Corporate Law Group) for the Respondent.

The Judgment of the Court was delivered by
B
DR. ARIJIT PASAYAT, J.: 1. Leave granted.

2. Challenge in this appeal is to the judgment of the Guwahati High
Court upholding appellant's conviction under Section 302 of the Indian
Penal Code, 1860 (in short the 'IPC') and sentence of imprisonment for life C
as awarded by the learned Sessions Judge, Dhemaji.

3. Accusations which led to the trial of the appellant are essentially as
follows:

One Premlal Verma lodged a written complaint to the Superintendent
D
of Police, East Siang, Arunachal Pradesh on 29.9.2000 alleging that on
26.9.2000 one Fekan Das (hereinafter referred to as the 'deceased') was
driving a Truck No.AS-25/641. At about 11.00 p.m. when the truck reached
Ruksing Gate, the police personnel of Jonai Police Station came there in a
three wheeler and assaulted the deceased. The deceased became senseless E
and the police left him on the road and returned to the police station. It was
further alleged that the deceased was. brought to the Pasighat General
Hospital for treatment. On 28.9.2000, he was referred to Dibugarh for
treatment and on 29.9.2000 on way to the hospital his condition became
serious and he died while being brought to Pasighat. F

4. The aforesaid information was registered. The investigation was
undertaken and charge sheet was placed. The accused was absconding and,
/therefore, no test identification parade could be held. On conclusion of
investigation, the Investigating Officer submitted the charge sheet indicating
commission of offence punishable under Section 302 IPC. Charge was G
framed after he was arrested. In order to substantiate its accusations 16
witnesses were examined. The accused pleaded innocence. On analysis of
the evidence tendered, the Trial Court found the accused guilty and
convicted and sentenced as aforesaid. An appeal was preferred before the
High Court. The main stand of the accused-appellant was that the evidence H
1216 SUPREME COURT REPORTS [2007] I S.C.R.

A of the eye witnesses cannot be relied upon as there was delay in lodging..
the FIR, and conviction was vitiated. Further no sanction was obtained as
required under Section 197 of the Code of Criminal Procedure, I 973 (in short
the 'Code'). The stand of the respondent-State on the other hand was that
the evidence of PWs. 5, 6 and 7 had clearly established the accusations. It
was s11bmitted that the deceased was assaulted without any fault on his
B part. Further, it was pointed out that since the appellant, a police personnel
was involved there was effort on the part of the other officials not to accept ...
the information given and ultimately the grievance was made before the
Superintendent of Police. The High Court found that the evidence of the
three witnesses who were stated to be eye witnesses left no manner of
C doubt that the accused was guilty. Therefore, the appeal was dismissed.

5. Learned counsel for the accused submitted that even if the accusations
are accepted in toto, the offence under Section 302 IPC is not made out.

6. Learned counsel for the respondent on the other hand supported the
D
judgment and the. convic_tion and sentence as passed by the Trial Court and
affirmed by the High Court.

7. The crucial question is as to which was the appropriate provision
to be applied. In the scheme of the IPC 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
murde1 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,
F what may he called, 'culpable hor11icide of the first degree'. This is the
grave:it 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
I
is 'culpable. homicide of the third degree'. This is the lowest type of culpable
1..
homicide and the punishment provided for it is also the lowest among the '
G punishments provided for the three grades. Culpable homicide of this degree
is punishable under the second part of Section 304.
{
8. The academic distinction between 'murder' and 'culpable homicide i
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
SHRIHARENDRANATHBORAHv. STATE[PASAYAT,J.] 1217

used by the legislature in these sections, allow themselves to be drawn into A
minute abstractions. The safest way of approach to the interpretation and
applicatio~ 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.
B
Section 299 Section 300

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 c
death is caused is done -

INTENTION

(a) with the intention of causing (l) with the intention of
death; or causing death; or
D

(b) with the intention of causing (2) with the intention of
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 E
of the person to whom the
harm is caused; or

(3) With the intention of
causing bodily injury to F
any person and the bodily
injury intended to be
inflicted is sufficient in the
ordinary course of nature
to cause death; or
G
KNOWLEDGE
****
(c) with the knowledge that the act (4) with the knowledge that
is likely to cause death. the act is so imminently H
1218 SUPREME COURT REPORTS [2007] 1 S:C.R.
·.....
A dangerous that" it 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
B causing death . or; !)UCh
injury as ·is· mentioned
above.

9. Clause (b) of Section 299 corresponds with clauses (2) and (3) of
c 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 ~f he~lth 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 person in normal health or condition. It is noteworthy that_
D
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) is borne out by illustration (b) appended
E to Section 300.

10. 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
F intentionally given knowing .that the victim is suffering from an enlarged
liver, or enlarged spleen or diseased heart and such blow is likely to cause

.. death of that particular person as a result of the rupture of the liver, or
spleen or the failure of the heart, as the case may be. If the assailant h~d-""' •
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
G 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. !O cause death" have been :·sed. Obviously, the distinction lies.
H between a bodily injury likely to cause death and a bodily injury sufficient
SHRIHARENDRANATHBORAHv. STATE[PASAYAT,J.] 1219

in the ordinary course of nature to cause death. The distinction is fine but A
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 o(probabilitY of death resulting from the intended bodily injury.
To P.ut it more broadly, it is the degree of probability of death which
determines ·whether ;i culpable homicide is of the gravest, medium or the
lowest degr~e. The-word 'likely' in clause (b) of Section 299 conveys the
B
sense of probaqle as distinguished from a mere possibility. \fhe words
''j)odily 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
11. 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. Rajwant and Anr. v. State of Kera/a, AIR (1966) SC 1874
is an apt. ~llustration of this point. D
Ii, In Virsa Singh v. State ofPunjab, 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 ca5e 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 ~ot 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 F
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
intei:ition'of the offender.

13. The ingredients of clause "Thirdly" of .Section 300, IPC were G
bro~ght out by the illustrious Judge in his terse language as follows:

"To put it shortly, the prosecution must prove the following facts
before it can bring a case under Section 300, "thirdly''.
H
1220 SUPREME COURT REPORTS [2007] I S.C.R.

A First, it must establish, quite objectively, that a bodily injury is
present.

Secondly, the nature of the injury must be proved. These are purely
objective investigations.

B Thirdly, it must be proved that there was an intention to inflict that
particular bodily injury, that is to say that it was not accidental or
unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry
c 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 n"ture. This part of the
enquiry is purely objective and inferential and has nothing to do
D with the intention of the offender."

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

E "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
F
inflicted it, the only possible inference is that he intended to inflict
it. Whether he knew of its seriousness or intended serious
consequences, is neither here or there. The question, so far as the
intention is concerned, is not whether he intended to kill, or to
inflict an injury of a particular degree of seriousness but whether
G he intended to inflict the injury in question and once the, existence
of the injury is proved the intention to cause it will be presumed
unless the evidence or the circumstances warrant an opposite
conclusion."

H 14. These observations of Vivian Bose, J. have become locus classicus.
SHRIHARENDRANATHBORAHv. STATE [PASAYAT,J.] 1221

The test laid down by Virsa Singh 's case (supra) for the applicability of A
clause "Thirdly" is now ingrained in our legal system and has become part
of the rule oflaw. 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 inflicted is sufficient in the ordinary course of nature to cause death.
B
It must be proved that there was an intention to inflict that particular bodily
injury which, in the ordinary course of nature, was sufficient to cause death,
viz., that the injury found to be present was the injury that was intended
to be inflicted.
c
15. Thus, according to the rule laid down in Virs~ Singh 's 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. It will be sufficient to say that clause (4) of Section
300 would be applicable where the knowledge of the offender as to the E
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 F
causing death or such injury as aforesaid.

17. 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 may not be convenient to give a G
separate treatment 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 Anr., [1976] 4 SCC 382,
Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh, H
1222 SUPREME COURT REPORTS [2007] 1 S.C.R.
'!"''

A [2002] 7 sec 175,AugustineSaldanha v. State of Karnataka, [2003] 10 sec
472) and in Thangiya V. State of TN., [2005] 9 sec 650.

19. When the factual background of the case is analysed on the

B
touchstone of principles set out above, the inevitable conclusion is that the
case at hand is not covered under Section 302 IPC and on the other hand
.the case is covered under Section 304 Part I IPC. The conviction is
'l
\

accordingly altered. Custodial sentence of l 0 years would meet the ends of
justice.

20. The appeal is allowed to the aforesaid extent.
c
A.K.T. Appeal partly allowed.