Holding

The conviction should be under Section 304 Part I IPC (culpable homicide not amounting to murder) rather than Section 302 IPC (murder).

Summary

The deceased Heeralal was attacked at night while sleeping; Sunder Lal struck him on the head with a gandasi and Laxmi Narain injured his legs. He died a few hours later and gave a dying declaration identifying the assailants. The trial court convicted both under Section 302 IPC, a conviction affirmed by the High Court. On appeal, the Supreme Court examined whether a dying declaration can alone support a conviction, whether identification was possible in low‑light conditions, and whether the offence constituted murder or culpable homicide not amounting to murder. The Court held that the dying declaration, being coherent, voluntary and made when the victim was fit, could be the sole basis of conviction, and that identification was feasible because the parties knew each other. However, the nature of the injury was deemed "likely to cause death" rather than "sufficient in the ordinary course of nature", so the appropriate charge was under Section 304 Part I IPC, not murder. The appeal was partly allowed, reducing the conviction to culpable homicide not amounting to murder.

Issues considered

The admissibility and sufficiency of a dying declaration as the sole basis of conviction without corroboration
Whether the victim could identify the accused despite the attack occurring at night with feeble light
Whether the facts satisfy the legal definition of murder under Section 300 IPC or only culpable homicide not amounting to murder under Section 304 IPC
The correct interpretation of Sections 299 and 300 of the IPC regarding the degree of probability of death

Legislation cited

Code of Criminal Procedure, 1973s. 161
Indian Evidence Act, 1872s. 32
Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304

Subjects

dying declarationmurderculpable homicide not amounting to murderidentification in darknessSection 302 IPCSection 304 IPCIndian Penal CodeEvidence Actprobability of death

Judgment

A SUNDER LAL
v.
STA TE OF RAJASTHAN

MAY 7, 2007

B [DR.ARIJITPASAYAT,P.K.BALASUBRAMANYANANDD.K.JAIN,JJ.]

Penal Code, 1860: Sections 299, 300, 302 and 304.

Murder and culpable homicide not amounting to murder-Distinction
C between-When the deceased was sleeping in his house the accused inflicted
a blow on his head by a 'Gandasi' with the intention to kill him and also
inflicted injuries on his hand-When the deceased cried, some person came
but the accused ran away-The occurrence was said to have taken place at
night with practically no light-The deceased was taken to the hospital and
D a case was registered under S~. 307, 323, 448 read with S. 34 /PC on the
basis of the statement of the deceased-The deceased succumbed to the
injuries and the case was converted for an offence punishable under S. 302
/PC-The trial court found the evidence to be cogent and credible-The >
dying declaration was found to be reliable-The trial court accordingly
convicted the accused under Section 302 and sentenced him to undergo
E imprisonment for life-The High Court affirmed the conviction and sentence-
Correctness of-Held: Jn the scheme of the /PC 'culpable homicide is genus
and 'murder' its specie-All 'murder' is 'culpable homicide' but not vice-
versa-Generally, 'culpable homicide' sans the 'special characteristics of
murder is culpable homicide not amounting to murder'-lt is the degree of
F probability of death which determines whether a culpable homicide is of the
gravest, medium or the lowest degree-The distinction lie5 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 ofjustice-The occurrence took place
in the night in almost dark conditions with feeble light and attack was made
G indiscriminately and, therefore, the appropriate conviction would be under
Section 304 Part /, /PC.

Evidence Act, 1872: Section 32.

76
H
SUNDER LAL v. STA TE OF RAJASTHAN 77
"Dying declaration "-Meaning and evidentiary value of-Conviction A
solely based on-Permissibility of-Held: If after careful scrutiny the Court
is satisfied that the dying declaration is true and free from any effort to
induce the deceased to make a false statement and if it is coherent and
consistent, there shall be no legal impediment to make it a basis of conviction,
even if there is no corroboration-It cannot be laid down as an absolute rule
of law that the dying declaration cannot form the sole basis of conviction B
unless it is corroborated.

Criminal Trial:

Identification of accused-Occurrence took place at night with
practically no light-The deceased and the accused were known to each C
other-Possibility of the deceased identifying the accused-Held: If persons
are known to each other, from the manner of walk. talking and peculiar
feature of gait identification is possible-The courts below have rightly held
that the deceased could have easily identified the accused under these
circumstances. D
Words & Phrases:"

Sufficient in the ordinary course ofnature"-Meaning of-Jn the context
of Clause (b) Section 299 of the Penal Code, 1860.
E
"Likely to cause death"-Meaning of-In the context of Clause (3)
Section 300 of the Penal Code, 1860.

Maxim:

"Nemo moriturus proesumitur mentiri"-Meaning of-Explained F
According to the prosecution, when the deceased was sleeping in his
house the accused-appellant inflicted a blow on his head by a 'Gandasi' with
the intention to kill him and also inflicted injuries on his hand. The co-accused
also inflicted injuries on his legs. When the deceased cried, some person
came but both the accused persons ran away. The deceased was taken to the G
hospital and a case was registered under Sections 307, 323, 448 read with
Section 34 of the Penal Code, 1860 on the basis of the statement of the
deceased. The deceased succumbed to the injuries and the case was converted
for an offence punishable under Section 302 IPC.

The trial court found the evidence to be cogent and credible. The dying H
78 SUPREME COURT REPORTS [2007) 6 S.C.R.

A declaration was found to be reliable. The trial court accordingly convicted !;'
the accused persons under Section 302 read with Section 34 IPC and
sentenced them to undergo imprisonment for life. The High Court affirmed
the conviction and sentence. Hence the appeal.

On behalf of the accused, it was contended that the High Court ought
B not to have placed reliance on the so-called dying declaration which was not
worthy of acceptance; that the occurrence took place at night with practically
no light and, therefore, no identification would have been possible and that he
offence under Section 302 IPC had not been made out.
>.
Allowing the appeal in part, the Court
c
HELD: 1. Dying declaration means statements made by a person as to
the cause of his death or as to the circumstances of the transaction resulting
in his death. The grounds of admission are: firstly, necessity for the victim
being generally the only principal eyewitness to the crime, the exclusion of
the statement might deflect the ends of justice; and secondly, the sense of
D
impending death, which creates a sanction equal to the obligation of an oath.
The general principle 011 which this species of evidence is admitted is that
they are declarations made in extremity, when the party is at the point of death >
and when every hope of this world is gone, when every motive to falsehood is
silenced, and the mind is induced by the most powerful considerations to speak
E the truth; a situation so solemn and so lawful that it is considered by the law
as creating an obligation equal to that which is imposed by a positive oath
administered in a Court of Justice. [Para 9] (85-B-D(

R. v. Wood Cock, [1989] 1 Leach 500, referred to.

F 2. This is a case where the basis of conviction of the accused is the
dying declaration. The situation in which a person is on the deathbed is so
solemn and serene when he is dying that the grave position in which he is
placed, is the reason in law to accept the veracity of his statement. It is for
this reason the requirements of oath and cross-examination are dispensed
with. Beside, should the dying declaration be excluded it will result in
G miscarriage of justice because the victim being generally the only eyewitness
in a serious crime, the exclusion of the statement would leave the Court
without a scrap of evidence. [Para 10) [86-B]
..._
3. Though a dying declaration is entitled to a great weight, it is
H worthwhile to note that the accused has no power of cross-examination. Such
-"
SUNDER LAL v. STATE OF RAJASTHAN 79
a power is essential for eliciting the truth as an obligation of oath could be. A
This is the reason the Court also insists that the dying declaration should be
of such a nature as to inspire full confidence or the Court in its correctness.
The Court has to be on guard that the statement of the deceased was not as a
result of either tutoring or prompting or a product of imagination. The Court
must be further satisfied that the deceased was in a fit state of mind after a
clear opportunity to observe and identify the assailant. Once the Court is B
satisfied that the declaration was true and voluntary, undoubtedly, it can base
its conviction without any further corroboration. It cannot be laid down as an
absolute rule of law that the dying declaration cannot form the sole basis of
-l
conviction unless it is corroborated. The rule requiring corroboration is
merely a rule of prudence. [Para llJ (86-C-E) c
Smt. Paniben v. State a/Gujarat, AIR (1992) SC 1817, relied on.

Munna Raja v. State of Madhya Pradesh, (1976) 2 SCR 764; State of
Uttar Pradesh v. Ram Sagar Yadav, AIR (1985) SC 416; Ramavati Devi v.
State of Bihar, AIR (1983) SC 164, K. Ramachandra Reddy v. The Public D
Prosecutor, AIR SC (1994), Rasheed Beg v. State ofMadhya Pradesh, (1974)
4 SCC 264, Kaka Singh v. State ofMP., AIR (1982) SC 1021, Ram Manorath
......
v. State of U.P., (1981) 2 SCC 654, State of Maharashtra v. Krishnamurthi
Laxmipati Naidu, AIR (1981) SC 617, Surajedo Oza v. State of Bihar, AIR
(1979) SC 1505, Nanahau Ram v. State of Madhya Pradesh, AIR (1988) SC
912, State of U.P. v. Madan Mohan, AIR (1989) SC 1519 and Mohan/al E
Gangaram Gehani v. State ofMaharashtra, AIR (1982) SC 839, referred to.

4. The dying declaration is only a piece of untested evidence and must
like any other evidence, satisfy the Court that what is stated therein is the
unalloyed truth and that is absolutely safe to act upon it. If after careful
scrutiny the Court is satisfied that it is true and free from any effort to induce
F
the deceased to make a false statement and if it is coherent and consistent,
there shall be no legal impediment to make it a basis of conviction, even if
there is no corroboration. [Para 121

Gangotri Singh v. State of U.P., JT (1992) 2 SC 417, Goverdhan Raoji G
Ghyare v. State of Maharashtra, JT (1993) 5 SC 87, Meesala Ramakrishnan
v. State ofAndhra Padesh, JT (1994) 3 SC 232, State ofRajasthan v. Kishore,
JT (1996) 2 SC 595 and Muthu Kutty v. State by Inspector of Police, T.N.
-J (2005) 9 sec 113, referred to.

5. In the scheme of the Penal Code, 1860 culpable homicide is genus H
80 SUPREME COURT REPORTS (2007] 6 S.C.R.

A and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa.
Speaking generally, 'culpable homicide' sans the '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 gravest form
B 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 three
C grades. Culpable homicide of this degree is punishable under the second part
of Section 304. (Para 13)

6. 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 the terms
D 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 keyword~ used
in the various clauses of Sections 299 and 300. [Para 14)

7. Clause (b) of Section 299 corresponds with clauses (2) and (3) of
E 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 particular 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 the death
F 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) appended to Section 300. (Para 15)
G
8.1. 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 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
H spleen or diseased heart and such blow is likely to cause death of that
SUNDER LAL v. STATE OF RAJASTHAN 81
particular person as a result of the rupture of the liver or spleen or the failure A
of the heart, as the case may be. If the assailant had no such knowledge about
the disease or special frailty of the victim or an intention to cause death or
bodily injury sufficient in the ordinary course of nature to cause death, the
offence will not be murder, even if the injury which caused the death, was
intentionally given. In clause (3) of Section 300, instead of the words "likely
to cause death" occurring in the corresponding clause (b) of Section 299, B
the words "sufficient in the ordinary course of nature" have been used.
Obviously, the distinction lies between a bodily injury likely to cause death
and a bodily injury sufficient in the ordinary course of nature to cause death.
The distinction is fine but real and, if overlooked, may result in miscarriage
of justice. [Para 16) C
8.2. The difference between clause (b) of Section 299 and clause (3) of
Section 300 is one of a 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 D
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. [Para 16)

8.3. For cases to fall within clause (3), it is not necessary that the E
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. [Para 17)

Rajwant v. State of Kera/a, AIR (1966) SC 1874, relied on.
F
9.1. 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. It must G
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 intended to be inflicted. [Para 21)

Virsa Singh v. State of Punjab, AIR (1958) SC 465, relied on.
H
82 SUPREME COURT REPORTS [2007] 6 S.C.R.

A 9.2. Thus, according to the rule laid down in Virsa Singh's case, even
if the intention of the accused was limited to the infliction ofa 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 22)

B Virsa Singh v. State of Punjab, AIR (1958) SC 465, relied on.

10. 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
C 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
D committed by the offe:tder without any excuse for incurring the risk of causing
death or such injury as aforesaid. [Para 23]

11. 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 interwined and the second and the third stages so
E 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 24)

State ofAndhra Pradesh v. Rayavarapu Punnayya, [1976] 4 SCC 382,
Abdul Waheed khan@ Waheed v. State of Andhra Pradesh, JT (2002) 6 SC
F 274, Augustne Saldanha v. State of Karnataka, [2003] to SCC 472 and
Thangaiya v. State of Tamil Nadu, [2005] 9 SCC 650, referred to.

12. Though the occurrence took place at night, the existence of light,
however, feeble has been established. The accused and the deceased were well
G known to each other. So identification by the deceased, since he was seeing
him from close quarters, is possible. If persons are known to each other, from
the manner of walk, talking and peculiar feature of gait identific11tion is
possible. The courts below have rightly held that the deceased could have easily
identified the accused persons. [Para 26)

H 13. Considering the fact that the occurrence took place in the night in
SUNDERLALv. STATEOFRAJASTHAN[PASAYAT,J.] 83
I' almost dark conditions with feeble light and attack was made indiscriminately, A
the appropriate conviction would be under Section 304 Part I, IPC. [Para 271

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 690 of
2007.

From the Final Judgment and Order dated 10.11.2004 of the High Court B
of Rajasthan Bench at Jaipur in D.B. Crl. A. No. 44 of 2000.

Seeraj Bagga (A.C.) for the Appellant.

Milind Kumar and Aruneshwar Gupta for the Respondent.

The Judgme11t of the Court was delivered by
c
DR. ARIJIT PASA YAT, J. I. Leave granted.

2. In this appeal judgment of a Division Bench of the Rajasthan High
Court is the subject matter of challenge. The appellant was found guilty of D
offence punishable under Section 302 of the Indian Penal Code, 1860 (in short
the '!PC'), while the co-accused Laxmi Narain was found guilty of offence
punishable under Section 302 read with Section 34 !PC. Each of the accused
was sentenced to undergo imprisonment for life and to pay a fine of
Rs.1,000/- each with default stipulation. The trial Court's judgment of conviction
& sentence was maintained. E
3. Background facts in a nutshell are as under:

4. On 22.8.1998 a 'Parcha Bayan' (Ex.P20) of injured Heeralal (hereinafter
referred to as the 'deceased') was recorded by the SHO, Police Station,
Chechat, Distt. Kota, wherein it was stated that accused appellant Sunderlal F
told him as to why he has been abused. He told him that he should remove
the stones. Subsequently in the night at about 2 a.m. when he was sleeping
in his house, accused Sunderlal inflicted a blow on his head by 'Gandasi' with
the intention to kill him and also inflicted injuries on his hand. He also stated
that accused Laxmi Narain also inflicted injuries on his legs. When he cried G
Chaturbhuj, Deva, Rameshwar came but both the accused appellants ran
away. On the basis of this 'Parcha Bayan' Police registered a case for offences
under Sections 448, 307, 323 and 34 !PC. Subsequently, FIR No.125/1998
(Ex.P.22) was registered on 22.8.1998 itself. The injured was examined in the
night itself at about 3 a.m. at Primary Health Centre, Chechat by Dr. Girish
Chand (PW-I). The injured succumbed to the injuries at about 7 a.m. His post- H
84 SUPREME COURT REPORTS (2007) 6 S.C.R.

A mortem was conducted on 22.8.1998 itself by Dr. Ashok Mundara (P.W.22).
The 1.0. prepared the site plan and recorded the statements of the prosecution
witnesses under Section 161 of the Code of Criminal Procedure, 1973 (in short
the 'Code'). The accused persons were arrested and on the basis of their
information, the weapons i.e. gandasi and lathi were recovered. After death
of Heera Lal the case was converted for offence punishable under Section 302
B IPC. After completion of the investigation, the police filed a challan against
both the accused appellants. The case was committed and the trial Court
framed the charges against the accused appellant Sunderlal for offence under
Section 302 IPC and appellant Laxmi Narain for offence under Section 302 read
with Section 34 IPC. Both the accused denied the charges and claimed to be
C tried.

5. The trial Court found the evidence to be cogent and credible. The
dying declaration was found to be reliable. The High Court found the judgment
of the trial Court to be in order and dismissed the appeal.

D 6. In support of the appeal, learned counsel for the appellants submitted
that the High Court should not have placed reliance on the so called dying
declaration. The same was not worthy of acceptance. Additionally, when the
recovery has been disbelieved, the conviction solely on the highly improbable
dying declaration should not have been made. Alternatively, it was submitted
that offence under Section 302 IPC has not been made out.
E
7. In response, learned counsel for the respondent-State supported the
order of the courts below.

8. The dying declaration was recorded at 3.45 a.m. on 22.8.1998. It was
categorically stated that be was sleeping in the night. The appellant came and
F assaulted him on his head with the gandasi with the intention of killing him
and the co-accused Laxmi Narain inflicted injuries on his legs. The dying
declaration was treated as the first FIR when the investigation was taken.

9. At this juncture, it is relevant to take note of Section 32 of the Indian
G Evidence Act, 1872 (in short 'Evidence Act') which deals with cases in which
statement of relevant fact by person who is dead or cannot be found, etc. is
relevant. The general rule is that all oral evidenc~ must be direct viz., if it
refers to a fact which could be seen it must be the evidence of the witness
who says he saw it, if it refers to a fact which could be heard, it must be the
evidence of the witness who says he heard it, if it refers to a fact which could
H be perceived by any other sense, it must be the evidence of the witness who
SUNDER LAL v. STATE OF RAJASTHAN [PASAYAT, J.) 85
says he perceived it by that sense. Similar is the case with opinion. These A
aspects are elaborated in Section 60 of the Evidence Act. The eighth clauses
of Section 32 are exceptions to the general rule against hearsay just stated.
Clause (I) of Section 32 makes relevant what is generally described as dying
declaration, though such an expression has not been used in any Statute. It
essentially means statements made by a person as to the cause of his death
or as to the circumstances of the transaction resulting in his death. The B
grounds of admission are: firstly, necessity for the victim being generally the
only principal eye-witness to the crime, the exclusion of the statement might
deflect the ends of justice; and secondly, the sense of impending death,
which creates a sanction equal to the obligation of an oath. The general
principle on which this species of evidence is admitted is that they are C
declarations made in extremity, when the party is at the point of death and
when every hope of this world is gone, when every motive to falsehood is
silenced, and the mind is induced by the most powerful considerations to
speak the truth; a situation so solemn and so lawful is considered by the law
as creating an obligation equal to that which is imposed by a positive oath
administered in a Court of justice. These aspects have been eloquently stated D
by Lyre LCR in R. v. Wood Cock (1789) I Leach 500. Shakespeare makes the
wounded Melun, finding himself disbelieved while announcing the intended
treachery of the Dauphin Lewis explain:

"Have I met hideous death within my
E
view,

Retaining but a quantity of life,

Which bleeds away even as a form of wax,

Resolveth from his figure 'gainst the fire? F
What is the world should make me now deceive,

Since I must lose the use of all deceit?

Why should I then be false since it is true
G
That I must die here and live hence by truth?"
(See King John, Act 5, Sect.4)

The principle on which dying declaration is admitted in evidence is indicated
in legal maxim "nemo moriturus proesumitur mentiria man will not meet his H
86 SUPREME COURT REPORTS (2007] 6 S. C.R.

A maker with a lie in his mouth."
I0. This is a case where the basis of conviction of the accused is the
dying declaration. The situation in which a person is on deathbed is so
solemn and serene when he is dying that the grave position in which he is
B placed, is the reason in law to accept veracity of his statement. It is for this
reason the requirements of oath and cross-examination are dispensed with.
Besides, should the dying declaration be excluded it will result in miscarriage
of justice because the victim being generally the only eye-witness in a serious
·crime, the exclusion of the statement would leave the Court without a scrap
.i
of evidence.
c 11. Though a dying declaration is entitled to great weight, it is worthwhile
to note that the accused has no power of cross-examination. Such a power
is essential for eliciting the truth as an obligation of oath could be. This is
the reason the Court also insists that the dying declaration should be of such
a nature as to inspire full confidence of the Court in its correctness. The Court
D has to be on guard that the statement of deceased was not as a result of either
tutoring, or prompting or a product of imagination. The Court must be further
satisfied that the deceased was in a fit state of mind after a clear opportunity
to observe and identify the assailant. Once the Court is satisfied that the
declaration was true and voluntary, undoubtedly, it can base its conviction
E without any further corroboration. It cannot be laid down as an absolute rule
of law that the dying declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring corroboration is merely a rule of
prudence. This Court has laid down in several judgments the principles
governing dying declaration, which could be summed up as under as indicated
in Smt. Paniben v. State of Gujarat, AIR (1992) SC 1817:
F
(i) There is neither rule of law nor of prudence that dying declaration
cannot be acted upon without corroboration. [See Munnu Raja & Anr. v. The
State of Madhya Pradesh, (1976] 2 SCR 764.]

(ii) If the Court is satisfied that the dying declaration is true and
G voluntary it can base conviction on it, without corroboration. [See State of
Uttar Pradesh v. Ram Sagar Yadav and Ors., AIR (1985) SC 416 and Ramavati
Devi v. State of Bihar, AIR (1983) SC 164.]

(iii) The Court has to scrutinize the dying declaration carefully and must
ensure that the declaration is not the result of tutoring, prompting or
H imagination. The deceased had an opportunity to observe and identify the
SUNDER LAL v. STATE OF RAJASTHAN [PASAYAT, J.) 87
-r- assailants and was in a fit state to make the declaration. [See K. Ramachandra A
Reddy and Anr. v. The Public Prosecutor, AIR (1976) SC 1994.]

(iv) Where dying declaration is suspicious, it should not be acted upon
without corroborative evidence. [See Rasheed Beg v. State ofMadhya Pradesh.
[1974] 4 sec 264.J
B
(v) Where the deceased was unconscious and could never make any
dying declaration the evidence with regard to it is to be rejected. [See Kaka
Singh v. State of MP., AIR (1982) SC 1021.]
:,,,,
(vi) A dying declaration which suffers from infirmity cannot form the
basis of conviction. [See Ram Manorath and Ors. v. State of UP., [ 1981] 2 c
SCC654.]

(vii) Merely because a dying declaration does contain the details as to
. the occurrence, it· is not to be rejected. [See State of Maharashtra v.
Krishnamurthi Laxmipati Naidu, AIR (1981) SC 617.]
D
(viii) Equally, merely because it is a brief statement, it is not to be
.. discarded. On the contrary, the shortness of the statement itself guarantees
truth. [See Surajdeo Oza and Ors. v. State of Bihar, AIR (1979) SC 1505.]

(ix) Normally the Court in order to satisfy whether deceased was in a
fit mental condition to make the dying declaration look up to the medical E
opinion. But where the eye-witness said that the deceased was in a fit and
conscious state to make the dying declaration, the medical opinion cannot
prevail. [See Nanahau Ram and Anr. v. State ofMadhya Pradesh, AIR ( 1988)
SC 912.]

(x) Where the prosecution version differs from the version as given in
F
the dying declaration, the said declaration cannot be acted upon. [See State
of UP. v. Madan Mohan and Ors., AIR (1989) SC 1519.]

(xi) Where there are more than one statement in the nature of dying
declaration, one first in point of time must be preferred. Of course, if the G
plurality of dying declaration could be held to be trustworthy and reliable, it
has to be accepted. [See Mohan/al Gangaram Gehani v. State ofMaharashtra,
AIR(l982) SC 839.]
_J
l~.In the light of the above principles, the acceptability of alleged
dying declaration in the instant case has to be considered. The dying H
88 SUPREME COURT REPORTS [2007] 6 S.C.R.

A declaration is only a piece of untested evidence and must like any other 'f
evidence, satisfy the Court that what is stated therein is the unalloyed truth
and that it is absolutely safe to act upon it. If after careful scrutiny the Court
is satisfied that it is true and free from any effort to induce the deceased to
make a false statement and if it is coherent and consistent, there shall be no
legal impediment to make it basis of conviction, even if there is no
B corroboration. (See Gangotri Singh v. State of U.P. JT (1992) 2 SC 417,
Goverdhan Raoji Ghyare v. State of Maharashtra, JT (1993) 5 SC 87, Meesala
Ramakrishan v. State of Andhra Pradesh, JT (1994) 3 SC 232, State of
Rajasthan v. Kishore, JT (1996) 2 SC 595 and Muthu Kutty and Anr. v. State
by Inspector of Police, T.N. (2005] 9 SCC 113].
c 13. This brings us to the crucial question as to which was the appropriate
provision to be applied. It is stated that the occurrence took place at night
with practically no light and therefore, no identification would have been
possible. In the scheme of the !PC culpable homicide is genus and 'murder'
its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking
D 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 may be
called, 'culpable homicide of the first degree'. This is the gravest form of
E 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
three grades. Culpable homicide of this degree is punishable under the second
F part of Section 304.

14. 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 the terms used
by the legislature in these sections, allow themselves to be drawn into minute
G 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.

H
SUNDERLALv. STATEOFRAJASTHAN[PASAYAT,J.] 89
Section 299 Section 300 A
A person commits culpable Subject to certain exceptions,
homicide if the act by which culpable homicide is murder
the death is caused is done - if the act by which the death is
caused is done -
INTENTION B

(a) with the intention of (1) with the intention of
causing death; or causing death; or

(b) with the intention of causing (2) with the intention of
such bodily injury as is causing such bodily injury C
likely 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

(3) With the intention of causing D
bodily injury to any person and
the bodily injury intended to be
inflicted is sufficient in the
ordinary course of nature to
cause death; or E
KNOWLEDGE ****

(c) with the knowledge that (4) with the knowledge that
the act is likely to cause the act is so imminently
death. dangerous that it must in all F
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 above. G

15. 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 H
90 SUPREME COURT REPORTS (2007] 6 S.C.R.

A caused to him is likely to be fatal, notwithstanding the fact that such hann (

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
B likelihood of such injury causing the death of the particular victim, is sufficient
to bring the killing within the ambit of this clause. This aspect of clause (2)
is borne out by illustration (b) appended to Section 300.

16. Clause (b) of Section 299 does not postulate any such knowledge J..
on the part of the offender. Instances of cases falling under clause (2) of
C 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
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
D 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 ofnature" have been used. Obviously,
E 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 resulting from the intended bodily
injury. To put it more broadly, it is the degree of probability of death which
F detennines 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 probable" result of the injury, having regard to the
G ordinary course of nature.
17. 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
H is an apt illustration of this point.
SUNDERLALv. STATEOFRAJASTHAN [PASAYAT, J.] 91
...
r 18. Jn Virsa Singh v. State of Punjab, AIR (1958) SC 465, Vivian Bose, A
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, 1t must be B
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
l 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 C
purely objective and inferential and has nothing to do with the intention of
the offender.

19. The ingredients of clause "Thirdly" of Section 300, IPC were brought
out by the illustrious Judge in his terse language as follows:
D
"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 E
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.

Once these three elements are proved to be present, the enquiry F
proceeds further and,

Fourthly, it must be proved that the injury of the type just described
made up of the three elements set out above is sufficient to cause
death in the ordinary course of nature. This part of the enquiry is
purely objective and inferential and has nothing to do with the G
intention of the offender."

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

H
92 SUPREME COURT REPORTS [2007] 6 S.C.R.

A "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,
B 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 1
degree of seriousness but whether he intended to inflict the injury in
c 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."

21. 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
D "Thirdly" is now ingrained in our legal system and has become part of the
rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is
murder, if both the following conditions are satisfied: i.e. (a) that the act 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
E 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 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.

p 22. Thus, according to the rule laid down in Virsa 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.

G 23. 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
H probability of death of a person or persons in general as distinguished from
SUNDERLALv. STATEOFRAJASTHAN(PASAYAT,J.] 93
a particular person or persons-being caused from his imminently dangerous A
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.

24. The above are only broad guidelines and not cast iron imperatives. B
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.

25. The position was illuminatingly highlighted by this Court in State C
of Andhra Pradesh v. Rayavarapu Punnayya and Anr., [1976] 4 SCC 382,
Abdul Waheed Khan@ Waheed and Ors. v. State of Andhra Pradesh, JT
(2002) 6 SC 274, Augustine Saldanha v. State of Karnataka, [2003] 10 SCC
472 and Thangaiya v. State of Tamil Nadu, [2005] 9 SCC 650.
D
26. Though the occurrence took place at night, the existence of light,
however, feeble has been established. The accused and deceased were well
known to each other. So identification by deceased, since he was seeing him
from close quarters, is possible. If persons are known to each other, from the
manner of walk, talking and peculiar features of gait identification is possible.
The courts below have rightly held that deceased could have easily identified E
the accused persons.

27. Considering the fact that the occurrence took place in the night in
almost dark conditions with feeble light and attack was made indiscriminately,
the appropriate conviction would be under Section 304 Part I, IPC. Custodial
sentence of I0 years would meet the ends of justice. F
28. The appeal is allowed to the aforesaid extent.

v.s.s. Appeal partly allowed.

G