Holding

The killing does not satisfy the mens‑rea for murder; the appropriate conviction is under Section 304(1) IPC (culpable homicide not amounting to murder).

Summary

Abbas Ali was convicted by the trial court and the Rajasthan High Court for murder under Section 302 IPC for stabbing a sleeping victim on a railway overbridge. On appeal, the Supreme Court examined the mens‑rea requirements of Sections 299 and 300 IPC, focusing on the distinction between knowledge of a victim’s special frailty and the probability of death from the injury. The Court held that the accused lacked the specific knowledge or intent required for murder under Section 300, and therefore the appropriate charge was culpable homicide not amounting to murder under Section 304(1) IPC. Consequently, the conviction was altered to Section 304(1) and a ten‑year imprisonment was imposed. The appeal was partly allowed.

Issues considered

Whether the stabbing of a sleeping victim constitutes murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304(1) IPC
Interpretation of the mens‑rea clauses of Sections 299 and 300 IPC, particularly the role of intention and knowledge of the victim’s condition

Legislation cited

Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304(1)

Subjects

murderculpable homicideIPC Section 299IPC Section 300IPC Section 304mens reaintentionknowledgestabbingjudicial interpretationcriminal law

Judgment

A ABBAS ALI
.......
v.
STA TE OF RAJAS THAN

FEBRUARY 15, 2007

B (DR. ARIJIT PASA YAT AND S.R KAPADIA, JJ.]

Penal Code, 1860:
-1
ss.299, 300, 302 and 304-1-Accused stabbed the deceased when he
c was sleeping, resulting in his death-Conviction of accused under s.302-
On facts and in the light ofprinciples laid down in ss.299 and 300, conviction
altered to s.304-l

The prosecution case was that the body of deceased was found on a
Railway Overbridge. Recovery of knife was made on disclosure made by
D accused. Trial Court framed the charges against accused for offence
punishable under s.302 IPC. Evidence of PW-9 was to the effect that in the
night she and the deceased were sleeping under a neem tree by the side of ',
the railway track. Suddenly the accused came there, stabbed the deceased and ....,
forcibly took her to his jhuggi. She accepted that the distance was
E considerable. She had lost her senses after seeing the accused stab the
deceased. She accepted that the accused was physically disabled and normally
moved iii a tricycle. She clarified that since deceased was sleeping he could
not escape from the stab blow. Placing relia11ce on evidence of wife of deceased
(PW-9), trial Court found accused guilty and convicted him. On appeal, High
Court upheld the conviction.
F
The question for consideration before this Court is which is the
)- .
appropriate provision to be applied.

Partly allowing the appeal, the Court

G HELD: 1.1. Clause (b) of s.299 IPC corresponds with clauses (2) and
(3) of s.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
,\.
-
H 714
I
).,

• ABBASALlv. STATEOFRAJASTHAN 715
would not in the ordinary way of nature be sufficient to cause death of a person A
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 s.300. !Para 11 J B
1719-E, F]

+ 1.2. Clause (b) of s.299 does not postulate any such knowledge on the
part of the offender. If the assailant had no 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
c
be murder, even if the injury which caused the death, was intentionally given.
In clause (3) of s.300, instead of the words 'likely to cause death' occurring
in the corresponding clause (b) of s.299, the words "sufficient in the ordinary
course of nature to cause death" have been used. Obviously, the distinction
lies between a bodily injury likely to cause death and a bodily injury sufficient D
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 s.299 and clause (3) of s.300 is one of the degree of
probability of death resulting from .the intended bodily injury. The words
"bodily injury.......sufficient in the ordinary course of nature to cause death" E
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 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 12, 13] (719-G; 720-A, B, C, D]
F
~--(
Rajwani and Anr. v. State of Kera/a, AIR (1966) SC 1874 and Vits'!
Singh v. State of Punjab, AIR (1958) SC 465, relied on.

1.3. Clause (c) ofS.299 and clause (4) ofs.300 both require knowledge
of the probability of the act causing death. Clause (4) of s.300 would be
applicable where the knowledge of the offender as to the probability of death
G

- J
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 causing death or such injury as H
•
716 SUPREME COURT REPORTS [2007] 2 S.C.R.

A aforesaid. (Para 19) (722-E, Fl ..-
State of Andhra Pradesh v._ Rayavarapu Punnayya and Anr., (1976) 4
SCC 382; Abdul Waheed Khan@ Waheed and Ors. v. State ofAndhra Pradesh,
(2002) 7 SCC 175; Augustine Saldanha v. State of Karnataka, (2003) 10 SCC
472; Shanker Narayan Bhadolkar v. State of Maharashtra, (2005) 9 SCC
B 71; Thangiya v. State ofT.N., (2005) 9 SCC 650; Rajinderv. State ofHaryana,
(2006( 5 SCC 425 and Raj Pal v. State ofHaryana, (200619 SCC 678, referred
to.
--y
2. In view of the factual position as noted in the background of the
c principles set up above it is clear that the appropriate conviction is under
s.304 Part I, IPC which is accordingly altered. Custodial sentence of 10 years
would meet the ends of justice. [Para 221 (723-BJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 214 of
2007.
D
From the Judgment and Order dated 16.8.2005 of the High Court of
Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal No. 510/2003.
-..£.
Kiran Bhardwaj for the Appellant.

E Arimeshwar Gupta, Naveen Kumar Singh, Mukul Sood and Shaswat
Gupta for the Respondent.

The Judgment of the Court was delivered by

DR.. ARIJIT PASAYAT,J. I. Leave granted.
F
2. Challenge in this appeal is to the judgment of the Rajasthan High r-~

Court at Jodhpur. By the impugned judgment the High Court upheld the
judgment of Learned Additional Sessions Judge, Bhilwara holding the appellant
guilty ofoffence punishable under Section 302 of the Indian Penal Code, 1860
(in short the 'IPC') arid sentencing him to undergo imprisonment for life.
G
3. Prosecution version as unfolded during trial is essentially as follows:
~
.....
4. First information report (in short the 'FIR') was lodged by Duda Ram
(PW-5) on 15.11.200 I. According to the FIR, the informant was a Chowkidar
for Chirag Travel Agency. At about 12 midnight, he saw a body on the railway
H
ABBAS ALI v. STATEOFRAJASTHAN [PASAYAT,J.] 717

overbridge. A bearded man was pelting stones, he closed the doors of the A
office and went inside. After sometime, when he opened the door, he saw that
there was a dead body lying. Seeing this, a report was lodged with Police
Station Pratap Nagar, Bhilwara where a Case No. 5011200 I was registered.
Recovery was made of the knife on the basis of disclosure made by the
accused. After registration of the case, investigation was conducted and after B
investigation, charge sheet was filed against the accused. The case was
committed to the trial court. The trial court framed the charges against the
accused persons for offence punishable under Section 302 IPC. The accused
denied the charge and claimed trial.

5. Placing reliance on evidence of Neela Bai (PW-9), the wife of the C
deceased, the trial court held the accused guilty. The High Court also found
the evidence of this eye witness to be reliable and dismissed the appeal by
impugned judgment.

6. With reference to certain observations made by the trial court learned
counsel for the appellant submitted that the trial court found that it was D
impossible that the accused who himself is lame and travels on a tricycle
could take PW9 to his jhuggi a place far from place of incident and therefore
,,. the evirlence of PW-9 cannot be believed. She had herself accepted that
earlier she was married to the accused and later on stated living with the
deceased. The informant (PW-5) resiled from his statement recorded during
investigation. Ultimately it was submitted that only one blow was given and E
therefore Section 302 !PC has no application.

7. Per contra learned counsel for the State supported the impugned
judgment.

8. Evidence of PW-9 is to the effect that in the night she and the F
deceased were sleeping under a neem tree by the side of the railway track.
Suddenly the accused came there, stabbed the deceased and forcibly took her
to his jhuggi. She accepted that the distance was considerable. She had lost
her senses after seeing the accused stab the deceased. She accepted that the
accused was physically disabled and normally moved in a tricycle. She clarified G
-" that since deceased was sleeping he could not escape from the stab blow.

9. The crucial question is as to which was the appropriate provision to
be applied. In the scheme of the !PC culpable homicide is the genus and
'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa.
H
718 SUPREME COURT REPORTS [2007] 2 S.C.R.

A Speaking generally, 'culpable homicide' sans special characteristics of murder
is culpable homicide not amounting to murder'. For the purpose of fixing
punishment, proportionate to the gravity of the generic offence, the !PC
practically recognizes three degrees of culpable homicide. The first is, what
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
B 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 deg1'ee'. 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
C part of Section 304.

IO. 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
D abstractions. The safest way of approach to the interpretation and application
of these provisions seems to be to keep in focus the keywords used in the
various clauses of Sections 299 and 300. The following comparative table will
be helpful in appreciating the points of distinction between the two offences.

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

F
' ; INTENTION

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

G (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 of
the person to whom the harm
H is caused; or
ABBAS ALI v. STATEOFRAJASTHAN [PASA YAT, J.] 719
(3) With the intention of A
causing 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 B
KNOWLEDGE
't ****
'
(c) with the knowledge that the act (4) with the Knowledge that
is likely to cause death. the act is so imminently C
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 causing D
death or such injury as is
mentioned above.

I I. Clause (b) of Section 299 corresponds with clauses (2) and (3) of
Section 300. The distinguishing feature of the mens rea requisite under clause E
(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 to F
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.
G
12. 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
H
720 SUPREME COURT REPORTS (2007) 2 S.C.R.

A particular person as a result of the rupture of the liver, or spleen or the failure
of the heart, as the case may be. If the assailant had no such knowledge about
the disease or special frailty of the victim, nor an intention to cause death or
bodily injury sufficient in the ordinary course of nature to cause death, the
offence will not be murder, even if the injury which caused the death, was
intentionally given. In clause (3) of Section 300, instead of the words 'likely
B to cause death' occurring in the corresponding clause (b) of Section 299, the
words "sufficient in the ordinary course of nature to cause death" have been
used. Obviously, the distinction lies between a bodily injury likely to cause
death and a bodily injury sufficient in the ordinary course of nature to cause
death. The distinction is fine but real and if overlooked, may result in miscarriage
C 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 (b) of Section 299
conveys the sense of probable as distinguished from a mere possibility. The
D 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.

13. 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. Rajwant and Anr. v. State of Kera/a, AIR (1966) SC 1874
is an apt illustration of this point.

14. In Virsa Singh v. State of Punjab, AIR (1958) SC 465, Vivian Bose,
F 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 be
proved that there was an intention to inflict that particular injury, that is to
G say, that it was not accidental or unintentional or that some other kind of
injury was intended. Once these three elements are proved to be present, the
enquiry proceeds further, and fourthly it must be proved that the injury of the
type just described made up of the three elements set out above was sufficient
to cause death in the ordinary course of nature. This part of the enquiry is
H purely objective and inferential and has nothing to do with the intention of
ABBAS ALI v. STATEOFRAJASTHAN [PASAYAT,J.] 721

the offender. A
15. The ingredients of clause "Thirdly" of Section 300, !PC were brought
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". B
First, it must establish, quite objectively, that a bodily injury is present.

Secondly, the nature of the injury must be proved. These are purely
7
objective investigations.

Thirdly, it must be proved that there was an intention to inflicf that c
particular bodily injury, that is to say that it was not accidental or
unintentional, or that some other kir.d of injury was intended.

Once these three elements are proved to be present, the enquiry
proceeds further and,
D
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
y purely objective and inferential and has nothing to do with the
intention of the offender."
E
I 6. The learned Judge explained the third ingredient in the following
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, or if the F
>---r 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
G
neither here or there. The question, so far as the intention is concerned,

- A
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 circumstilnces
H
I I

722 SUPREME COURT REPORTS [2007) 2 S.C.R.

A warrant an opposite conclusion."
~·

17. 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
"Thirdly" is now ingrained in our legal system and has become part of the
rule of law; Under clause thirdly of Section 300 !PC, culpable homicide is
B 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 bodily injury
which, in the ordinary course of nature, was sufficient to cause death, viz.,
c that the injury found to be present was the injury that was intended to be
inflicted.

18. 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
D 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) appendt:d to Section 300 clearly brings out this point.

19. 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
E the purpose of this case to dilate much on the distinction between these
corresponding clauses. It will be sufficient to say that clause (4) of Section
300 would be applicable where the knowledge of the offender as to the
probability of death of a person or persons in general as distinguished from
a particular person or persons being caused from his imminently dangerous
act, approximates to a practical certainty. Such knowledge on the part of the
F offender must be of the highest degree of probability, the act having been 'y-'-"
commiitc:d by the offender without any excuse for incurring the risk of causing
death or such injury as aforesaid.

20. The above are only broad guidelines and not cast iron imperatives.
In most cases, their observance will facilitate the task of the Court. But
G
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.

2 I. The position was illuminatingly highlighted by this Court in State
H
ABBASAL!v. STATEOFRAJASTHAN[PASAYAT,J.] 723
of Andhra Pradesh v. Rayavarapu Punnayya and Anr., [1976] 4 SCC 382, A
Abdul Waheed Khan@ Waheed and Ors. v. State ofAndhra Pradesh, [2002]
7 SCC 175, Augustine Saldanha v. State of Karnataka, [2003] I 0 SCC 472,
Shanker Narayan Bhadolkar v. State of Maharashtra, [2005] 9 SCC 71,
Thangiya v. State of TN., [2005] 9 SCC 650, Rajinder v. State of Haryana,
[2006] 5 SCC 425 and in Raj Pal v. State of Haryana, [2006] 9 SCC 678.
B
22. In view of the factual position as noted in the background of the
principles set up above it is clear that the appropriate conviction is under
Section 304 Part I, JPC which is accordingly altered. Custodial sentence of I0
years would meet the ends of justice.

23. The appeal is allowed to the aforesaid extent. c
D.G. Appeal Partly allowed.