THANGAIYAversusSTATE OF TAMIL NADU

A                                THANGAIYA
                                     v.
                            STATE OF TAMIL NADU

                              DECEMBER 8, 2004
B
                 [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]

         Penal Code, 1860 : Sections 299, _ 300, 302 and 304 Part 1

         "Murder" and "culpable homicide not amounting to murder"-
C Distinction between-Accused gave one blow with a small stick to the
    deceased-The trial convicted the accused under S. 302-High Court upheld
    the conviction-Correctness of-Held : All 'murde1'' is 'culpable homicide'
    but not vice versa- 'Culpable homicide' sans 'special characteristics of
    murder is culpable homicide not amounting to murder'-It cannot be said
D   as a universal rule of application that whenever one blow is given S. 302
    is ruled out-In the instant case one blow was given with a small stick-
    The place where assault took place was dimly lit-Hence, conviction altered
    to one under S. 304 Part l

         Criminal Trial :
E
          "Chance witnesses "-Evidentiary value of-Held : Evidence of "chance
    witnesses" is not always suspicious and their presence at the scene
    doubtful-Murders are not committed with previous notice to witnesses,
    soliciting their presence-Their evidence cannot be brushed aside or viewed
F   with suspicion on the ground that they are mere "chance witnesses "-If
    the evidenece of a 'chance witness' is clear and cogent it cannot be
    discarded.

         According to the prosecution, the_ ~ppellant-accused used to make
    fun of girls/workers outside the factory of the deceased, which was
G   objected to by the deceased. On that score, there had been enmity
    between the deceased and the accused.

         On the fateful night, when the deceased was coming in a bicycle
    the appellant hit him with a small stick on his head. The deceased
H   sustained injuries and there was profuse bleeding. The deceased died in
                                       786
                       THANGAIYA v. STATE                              787

the hospital the next day.                                                     A

     The trial court convicted the appellant under Section 302 of the
Penal Code, 1860 holding that the evidence of eyewitnesses PWs 1, 2 and
3 were cogent and credible. The High Court upheld the conviction
rejecting the plea of the appellant that PWs 1 and 2 were interested           B
witnesses and that PW-3 was a "chance witness". Hence the appeal.

     Allowing the appeal in part, the Court

      HELD: l. In a murder trial by describing the independent witnesses
as 'chance witnesses' it cannot be implied thereby that their evidence         c
is suspicious and their presence at the scene doubtful. Murders are not
committed with previous notice to witnesses, soliciting their presence.
If murder is committed in a dwelling house, the inmates of the house
are natural witnesses. If murder is committed in a street, only passersby
will be witnesses. Their evidence cannot be brushed aside or viewed with       D
suspicion on the ground that they are mere 'chance witnesses'. The
expression 'chance witness' is borrowed from countries where every
man's home is considered his castle and everyon~ must have an
explanation for his presence elsewhere or in another man's castle. It is
quite an unsuitable expression in a country where people are less formal
and more causal, at any rate in the mater explaining their presence.           E
Therefore, there is no substance in the plea that PW-3's evidence, which
is clear and cogent is to be discarded. (791-A, B, CJ

      2. In the scheme of the IPC culpable homicide is genus and 'murder'
its specie. AH 'murder' is 'culpable homicide' but not vice versa. Speaking    F
generally, 'culpable homicide' sans 'special characteristics of murder is
culpable homicide not amounting to 'murder'. For the propose of fixing
punishment, proportionate to the gravity of the generic offence, the IPC
practically recognizes three degree of culpable homicide. The first is,
what may be called, 'culpable homicide of the first degree'. This is the
gravest form of culpable homicide, which is defined in Section 300 as          G
'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 for the three grades. Culpable homicide of this          H
    788                           SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   degree is punishable under the second part of Section 304. [791-D, E, F)

         3. Section 299(c) and Section 300(4) both require knowledge of the
    probability of the act causing death. Section_, 300(4) w,ould be applicable
    where the knowledge of the offender as ·to the probability of death of
    a person or persons in genei'ii{distinguisbed from a particular person
B   or person-being caused rr(iiii his ~-i-~minently dangerous act,
    ~~~--!-·I- ~

    approximates to a practical certainty. Such knowledge on the part of
    the offender must be of the highest degree of probability, the ~ct having
    been committed by the offender without any excuse for incurring the
    risk of causing death or such injury as aforesaid. [796-C, D] .
c        Rajwani and Anr. v. State of Kera/a, AIR (1966) SC 1874; Virsa Singh
    v. State & Punjab, AIR (1958) SC 465, State of Andhra Pradesh v.
    Rayavarapu Punnayya, (1976) 4 SCC 382; Abdul Waheed Khan@ Waheed
    and ors. v. ·State of Andhra Pradesh, JT (2002) 6 SC 274 and Augustine
    Saldanha v. State of Karnataka, (2003] 10 SCC 472, relied on.
D
           4. It cannot be said as a rule of universal application that whenever
     one blow is given Section 302 IPC is ruled out. It would depend upon the
     facts of each casP.. The weapon used, size of the weapon, place where the
     assault took place, background facts leading to the assault, part of the
E    body where the blow was given are some of the factors to be considered.
     In the instant case admittedly one blow was given with a small stick, and
     the place where the assault took place was dimly lit. Inevitable conclusion
     is that the case is covered by Section 304 Part I IPC and not Section 302
     IPC. The conviction is accordingl~ltered.-(796-G, H; 797-A)
         -----~          -~·
p          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
     No. 1456 of2004.

         from the Judgment and Order dated 20.3.2001 of the Madras High
     Court in Crl.A. No. 483 of 1992.

G       Mahendra Anand and Mrs. Revathy Raghavan, (SCLSC) for the
    Appellant.

          Subramanium Prasad, Gopalakrishnan, Abhay Kumar and Rahul for
     the Respondent,.

H                  The Judgment of the Court was deliveri.>d by
                THANGAIYA v. STATE [PASAYAT, J.]                         789

     ARIJIT PASAYAT, J.: Leave granted.                                          A
     Appellant calls in question legality of the judgment rendered by a
Division Bench of the Madras High Court confirming his conviction for
offence punishable under Section 302 of the Indian Penal Code, I 860 (in
short 'IPC'), and sentence of imprisonment for life as awarded by the
learned Sessions Judge, Kanyakumari.
                                                                                 B

     Background facts as unfolded during trial by the prosecution are
essentially as follows:

     One Selvamani Nadar (hereinafter· referred to as the 'deceased') was        C
having industry and he employed a number of girls. The accused used to
make fun of the girls/workers outside the factory and this was objected to
by the deceased several times. On that score, there had been enmity between
the deceased and the accused.

      At about 8.30 p.m. on 1.5.1990, PW-I, PW-2 and one Murugesan were
                                                                                 D
standing in front of Bensam Ground, south of Kulachal-Nagercoil Mail
Road. The accused was sitting on the eastern side of a culvert. There was
a tube light burning and hence there was enough light at that place. At that
time, the deceased, who came in a bicycle proceeding from east to west, took
a turn towards south. The accused rushed to the deceased saying "you die,        E
old man" and hit him with a stick (M.O. I) on his head. The deceased
sustained injuries and there was profuse bleeding. PW-I, PW-2 and Murgesan
immediately went near him and when the accused saw them coming near
ran towards west, leaving the weapon viz., M.O.I stick. Thereafter, PW-
 I, PW-2, Murugesan and the wife of the deceased took the deceased to the
                                                                                 F
Government Hospital at Kulachal. After giving first aid to the deceased,
the doctors in the said hospital advised to take the deceased to Nagercoil
for further treatment. The aforementioned persons thereafter took the
deceased to Nagercoil and at the Government Hospital, Kottar, the deceased
was treated by Doctor Rani Fnoch (PW-6).
                                                                                 G
     The doctor found several injuries. PW-I narrated the incident to the
Head Constable (PW-IO) at the police station who recorded the first
information report (Ex.P-1 I). Same was dispatched to the Court of Judicial
Magistrate. Assistant Surgeon, Government Hospital (PW-7) treated the
deceased who breathed his last at about I .25 a.m. on 2.5. I 990. On receiving   H
    790                   SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A information about the death the case which was originally registered under
    Sections 307, 323 and 341 IPC was registered under Section 302 IPC, and
    necessary information was sent to the Court of Judicial Magistrate. On
    postmortem 6 injuries were noticed, out of which 3 were external and the
    rest were internal. Injuries 1 and 2 as noticed were abrasions but the fatal
B   injury i.e. injury No. 3 was stated to be 4" linear oblique sutured wound over
    the right parietal scalp. The doctor opined that the injury was sufficient in
    ordinary course of nature to cause death. On 4.5.1990 the accused was
    arrested and after completion of investigation the charge sheet was placed.
    The accused pleaded innocence. The Trial Court found that the evidence of
    eye witnesses PWs. 1, 2 and 3 were cogent and credible. The accused used
C   to tease girls working in the factory of the deceased. When the deceased
    objected to the .same, there was some misunderstanding and at the time of
    occurrence when the deceased was coming by bicycle, the accused rushed
    towards him and attacked \
                                  him; resulting the fatal injury. When the eye
    witnesses rushed to help the deceased, the accused ran away. Placing
D   reliance on the evidence and considering the entire material on record the
    trial Court found the accused guilty and convicted as aforesaid. An appeal
    was preferred before the High Court questioning the conviction and sentence.
    Before the High Court, it was urged that PWs. 1 and 2 were related to the
    deceased, and PW-3 was a chance witness and no credence should be put
    on their evidence. The High Court did not accept the plea and finding the
E   analysis of evidence by the trial Court to be in order, upheld the conviction
    and sentence.

           In support of the appeal, learned counsel for the appellant submitted
    that the evidence of PW-3 who was treated as an independent witness was
F   that a chance witness and his evidence should not have been relied upon.
    It is further submitted that even if the prosecution version is accepted in toto
    no case for application of Section 302 IPC has been made out. Only one
    blow with a small stick was given.

          Per contra, learned counsel for the respondent-State supported the
G judgment or the Courts below and submitted that the judgments are well
    reasoned and no interference is called for.

          Coming to the plea of the accused that PW-3 was 'chance witness' who
    has not explained how he happened to be at the. alleged place of occurrence,
H   it has to be noted that the said witness was an independent. witness. There
                THANGAIYA v. STATE [PASAYAT, J.]                          791

was not even a suggestion to the witness that he had any animosity towards        A'
the accused. In a murder trial by describing the independent witnesses as
'chance witnesses' it cannot be implied thereby that their evidence is
suspicious and their presence at the scene doubtful. Murders are not committed
with previous notice to witnesses; soliciting their presence. If murder is
committed in a dwelling house, the inmates of the house are natural witnesses.    B
If murder is committed in a street, only passersby will be witnesses. Their
evidence cannot be brushed aside or viewed with suspicion on the ground
that they are mere 'chance witnesses'. The expression 'chance witness' is
 borrowed from countries where every man's home is considered his castle
 and everyone must have an explanation for his presence elsewhere or in
another man's castle. It is quite unsuitable an expression in a country where     C
 people are less formal and more casual, at any rate in the matter explaining
 their presence. Therefore, there is no substance in the plea that PW-3's
 evidence which is clear and cogent is to be discarded.

      This brings us to the crucial question as to which was the appropriate      D
provision to be applied. In the scheme of the IPC culpable homicide is genus
and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-
versa. Speaking generally, 'culpable homicide' sans 'special characteristics
of murder is culpable homicide not amounting to murder'. For the purpose
of fixing punishment, proportionate to the gravity of the generic offence,
the IPC practically recogniz¥s three degrees of culpable homicide. The first      E
is, what may be called, 'culpable homicide of the first degree'. This is the
gravest form of culpable homicide, which is defined in Section 300 as
'murder'. The second may be termed as 'culpable homicide of the second
degree'. This is punishable under the first part of Section 304. Then, there
is 'culpable homicide of the third degree'. This is the lowest type of culpable   F
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.

     The academic distinction between 'murder' and 'culpable homicide
not amounting to murder' has always vexed the Courts. The confusion is            G
caused, if Courts losing sight of the true scope and meaning of the terms
used by the legislature in these sections, allow themselves to be drawn into
minute abstractions. The safest way of approach to the interpretation and
application of these provisions seems to be to keep in focus the keywords
used in the various clauses of Sections 299 and 300. The following                H
    792                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   comparative table will be helpful in appreciating the points of distinction
    between the two offences.

          Section 299                                Section 300

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

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

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

                                  KNOWLEDGE
                                       ****
          (c) with the knowledge that the act       (4) with the knowledge
G             likely to cause death.                the act is so imminently
                                                    dangerous that it must in '
                                                    ali probability cause death
                                                    or such bodily injury as is
                                                    likely to cause death, and
                                                    without any excus.e for
H
                 THANGAIYA v. STATE [PASAYAT, J.]                             793

                                                  incurring the risk of               A
                                                  causing death or such
                                                  injury as is mentioned
                                                  above.

      Clause (b) of Section 299 corresponds with clauses (2) and (3) of               B
Section 300. The distinguishing feature of the mens rea requisite under
clause (2) is the knowledge possessed by the offender regarding the particular
victim being in such a peculiar condition or state of health that the internal
harm caused to him is likely to be fatal, notwithstanding the fact that such
harm would not in the ordinary way of nature be sufficient to cause death
of a person in normal health or condition. It is noteworthy that the 'intention       c
to cause death' is QOt 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.
                                                                                      D
      Clause (b) of Section 299 does not postulate any such knowledge on
the part of the offender. Instances of cases falling under clause (2) of
Section 300 can be where the assailant causes death by a fist blow intentionally
given knowing that the victim is suffering from an enlarged liver, or enlarged
spleen or diseased heart and such blow is likely to cause death of that               E
particular person as a result of the ruptw-e of the liver, or spleen or the failure
of the heart, as the case may be. If the assailant had no such knowledge
about the disease or special frailty of the victim, nor an intention to cause
 death or bodily injury sufficient in the ordinary course of nature to cause
death, the offence will not be murder, even if the injury which caused the            F
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 injury sufficient in the ordinary course of nature
to cause death. The distinction is fine but real and if overlooked, may result        G
in miscarriage of justice. The difference between clause (b) of Section 299
and clause (3) of Section 300 is one of the degree of probability of death
resulting from the intended bodily injury. To put it more broadly, it is the
degree of probability of death which determines whether a culpable homicide
is of the gravest, medium or the lowest degree. The word 'likely' in clause           H
                                                                                       .-

    794                   SUPREME COURT REPORTS. [2004] SUPP. 6 S.C.R.

A   (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.

          For cases to fall within clause (3), it is not necessary that the offender
B   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 la, AIR ( 1966) SC 1874 is an apt
    illustration of this point.

C         In Virsa Singh v. State of Punjab, AIR (1958) SC 465, Vivian Bose,
    J. speaking for the Court, explained the meaning and scope of clause (3).
    It was observed that the prosecution must prove the following facts before
    it can bring a case under Section 300, "thirdly". First, it must establish quite
    objectively, that a bodily injury is present; secondly the nature of the injury
    must be proved. These are purely objective investigations. Thirdly, it must
D   be proved that there was an intention to inflict that particular injury, that
    is to say, that it was not accidental or unintentional or that some other kind
    of injury was intended. Once these three elements are proved to be present,
    the enquiry proceeds further, and fourthly it must be proved that th~ injury
    of the type just described made up of the three elements set out above was
E   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 ingredients of clause "Thirdly" of Section 300, IPC were brought
    out by the illustrious Judge in his terse language as follows:
F
             "To put it shortly, the prosecution must prove the following facts
             before it can bring a case under Section 300, "thirdly".

             First, it must establish, quite objectively, that a bodily injury is
             present.
G
             Secondly, the nature of the injury must be proved. These are purely
             objective investigations.

             Thirdly, it must be proved that there was an intention to inflict that
             particular bodily injury, that is to say that it was not accidental or
H
                 THANGAIYA v. SJATE [PASAYAT, J.]"                           795

          unintentional, or that some other kind of injury was intended.              A

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

          Fourthly, it must be proved that the injury of the type just described      B
          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
          intention of the offender."

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

          "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,        D
          or ifthe 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, 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         E
          intention is concerned, is not whether he intended to kill, or to
          inflict an injury of a particular degree of seriousness but whether
          he intended to inflict the injury in 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                p.
          conclusion."

        These observations of Vivian Bose, J. have become locus classicus.
  The test laid down by Vir.:-a Singh 's case (supra) for the applicability of
· clause "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               G
  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 be proved that there was an intention to inflict that particular     H
    796                   SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   bodily injury which, in the ordinary course of nature, was sufficient to ca1.1se
    death, viz., that the injury found to be present was the injury that was
    intended to be inflicted.

          Thus, according to the rule laid down in Virsa Singh 's case, even if
B   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.

          Clause (c) of Section 299 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 dilate much on the distinction between these
    corresponding clauses. It will be sufficient to say that clause (4) of Section
    300 would be applicable where the knowledge of the offender as to the
    probability of death of a person or persons in general as distinguished from
D   a particular person or persons - being caused from his imminently dangerous
    act, approximates to a practical certainty. Such knowledge on the part of
    the offender must be of the highest degree of probability, the act having been
    committed by the offender without any excuse for incurring the risk of
    causing death or such injury as aforesaid.

E         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 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,
    Abdul Waheed Khan@ Waheed and Ors. v. State of Andhra Pradesh, JT
    (2002) 6 SC 274, and Augustine Saldanha v. State of Karnataka, [2003] I 0
    sec 472.
G
         Keeping the aforesaid legal principles in view, the factual position is
    to be examined. It cannot be said ~s a rule of universal application that
    whenever one blow is given Se~tion 302 IPC is ruled out. It would depend
    upon the facts of each case. The weapon used, size of the weapon, place
H   where the assault took place, background facts leading to the assault, part
                   I

               THANGAIYA v. STATE [PASAYAT, J.]                         797

of the body where the blow was given are some of the factors to be             A
considered. In the instant case admittedly one blow was given with a small
stick, and the place where the assault took place was dimly lit. Inevitable
conclusion is that the case is covered by Section 304 Part I IPC and not
Section 302 IPC. The conviction is accordingly altered. Custodial sentence
of I 0 years would meet the ends of justice.                                   B
     The appeal is allowed to the aforesaid extent.

v.s.s.                                                Appeal partly allowed.