Supreme Court of India
JAGRITI DEVIversusSTATE OF H.P.
- Citation
- 2009 INSC 863
- Decided
- 6 July 2009
- Disposal
- Case Partly allowed
- Bench
- MUKUNDAKAM SHARMA
Holding
The killing was not murder but culpable homicide not amounting to murder under Section 304(II) IPC, and the conviction under Section 302 IPC was set aside.
Summary
Jagriti Devi was convicted of murder under Section 302 IPC for allegedly killing her co‑wife Shama Devi with a khukri after an altercation. She claimed she acted in private defence after the deceased attacked her with the same weapon, which the deceased had kept under her pillow. The trial court and High Court upheld the murder conviction, but the Supreme Court examined the intent and knowledge required under Sections 299, 300 and 304 IPC. Finding that the accused had no intention to cause death and only acted to prevent further assault, the Court held that the act fell under Section 304(II) IPC, i.e., culpable homicide not amounting to murder. Consequently, the conviction under Section 302 was set aside and the sentence was altered to the period already served (about seven years). The appeal was partly allowed, cancelling the fine and confirming the appellant’s release on bail.
Issues considered
- The appropriate charge: whether the facts constitute murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304(II) IPC.
- Whether the accused had the requisite intention or knowledge to cause death as required under Sections 299 and 300 IPC.
- Whether the defence of private defence is applicable in the circumstances.
Legislation cited
- Code of Criminal Procedure, 1973s. 233, s. 313
- Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304(II)
Subjects
murderculpable homicideSection 302 IPCSection 304 IPCprivate defenceintentionknowledgeIndian Penal Codecriminal appealsentencing
Judgment
[2009] 10 S.C.R. 167
JAGRITI DEVI A
V.
STATE OF H.P.
(Criminal Appeal No. 823 of 2003)
JULY 6, 2009
B
[DR. MUKUNDAKAM SHARMA AND DR. 8.S.
CHAUHAN, JJ.]
PENAL CODE, 1860:
c
s. 304 (part II) - During the course of altercation accused
snatching 'khukri' from her co-wife and assaulting her with it -
Death of victim - Conviction and sentence by trial court u/s
302 - Affirmed by High Court - Held: It is quite clear from
, the record that preceding the incident, the deceased took out
D
the 'Khukri' with the intention of assaulting the accused and
the latter in order to save herself grappled with the deceased
and in the process she also received injuries - Clearly, there
was no intention on the part of the accused to kill the deceased
- Therefore, it is not a case u/s 302 but it falls uls 304 (part
E
II) - Conviction u/s 302 set aside and accused convicted uls
304 (part II) - Sentence altered to the period already under
gone which is about 7 years.
ss. 299 and 300 - 'Culpable homicide' , 'murder', and
'culpable homicide not amounting to murder' - Explained. F
The appellant was prosecuted for commission of
offence punishable uls 302 IPC on the allegation that on
2.6.1996 at 6.00 AM she assaulted her co-wife with 'khukri'
as a result of which the victim died. The accused-
G
appellant, in her statement uls 313 CrPC did not deny
having caused fatal injuries to the deceased, but stated
that she had assaulted her in exercise of her right of
private defence. She also filed a written statement uls 233
167 H
168 SUPREME COURT REPORTS [2009] 10 S.C.R.
A CrPC stating that on the fateful day there was an
altercation between her and the deceased upon which
the latter took out the 'Khukri, kept under her pillow and
attacked the accused with the same causing some
injuri~s on her head; and in order to save herself, she
B snatched the 'khukri' from the deceased and gave a few
'Khukri' blows to the deceased. The trial court convicted
the appellant of the offence charged and sentenced her
to imprisonment for life. The High Court having affirmed
the conviction and the sentence, the accused filed the
C appeal.
Partly allowing the appeal, the Court
HELD:1.1. Sections 299 and 300 IPC deal with the
definition of culpable homicide and murder respectively.
D It has been repeatedly held by this Court that culpable
homicide is the genus and m1 •rder is species and that all
murders are culpable homicide but not vice versa.
Section 300 IPC, which deals with murder, provides for
the exceptions which will constitute culpable homicide
E not amounting to murder and punishable u/s 304. When
and if there is intent and knowledge then the same would
be a case of s.304 {part I) and if it is only a case of
knowledge and not the intention to cause murder and
bodily injury, then the same would be a case of s. 304
F {part II). [Para 18) [177 -C-E]
State of A. P. v. Rayavarapu Punnayya (1976) 4 SCC
382; Abdul Waheed Khan v. State of A.P. (2002) 7 SCC 175;
Rufi ram v. State of Haryana, (2002) 7 SCC 691; Augustine
Saldanha v. State of Karnataka, (2003) 10 SCC 472; State
G of UP. v. Virendra Prasad, (2004) 9 SCC 37; and Chacko v.
State of Kera/a (2004) 9 SCC 71, referred to.
1.2. When the factual background of the instant case
is tested on the principles laid down by this Court in
~ -
H various decisions, the views taken by the trial court as
-JAGRITI DEVI v. STATE OF H.P. 169
r also by the High Court cannot be sustained. The A
,, deceased was sleeping in the veranda outside the house.
-..:..
The incident took place in the morning at about 6:00 AM.
There was sunshine all around and in that broad day light
the offence was committed. Had the accused any
intention to kill the deceased, she could have done it B
during the night. It is qu_ite clear from the record that there
was an altercation preceding the incident in which the
accused was insulted by the deceased and by doing so
the deceased provoked the accused. The deceased also
took out the 'Khukri' which was under her pillow with the c
intention of assaulting the accused and the latter in order
to save herself grappled with the deceased and during
that process she also received injuries. The prosecution
has failed to give any explanation with regard to those
injuries. Further, it is also established in evidence that the D
'Khukri' used in the incident was kept by the deceased
under her pillow while she was sleeping in the veranda
_. outside the house. Clearly, there was no intention on the
part of the accused to kill the deceased. Therefore, it
cannot be said to be a case u/s 302 IPC but falls u/s 304
E
(part II) IPC. Section 304 (part II) comes into play when
the death is caused by doing an act with knowledge that
it is likely to cause death but there is no intention on the
part of the accused either to cause death or to cause
such bodily injury as is likely to cause death. [Para 22)
[183-C-G] F
1.3. The accused-appellant is, therefore, held guilty
of offence u/s 304 (part II) IPC. Her conviction u/s 302 IPC
is set aside. She has already undergone about seven
years of imprisonment. Therefore, the sentence is altered G
- • to the period already undergone. [Para 23) [183-H; 184-
A]
Case Law Reference:
(1976) 4 sec 382 referred to para 19 H
170 SUPREME COURT REPORTS [2009] 10 S.C.R.
A (2002) 1 sec 11s referred to para 20
(2002) 1 sec 691 referred to para 21 .-
(2003) 10 sec 472 referred to para 21
B (~004) 9 sec 37 referred to para 21
(2004) 9 sec 11 referred to para 21
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 823 of 2003.
c From the Judgment & Order dated 31.8.2000 of the High
Court of H.P. at Shimla in Crl. A. No. 405 of 1998.
Kuldip Singh, R.K. Pandey, T.P. Mishra, Sanjay Katya! and
H.S. Sandhu for the Appellants.
D
Naresh Kr. Sharma for the Respondent.
The Judgment of the Court was delivered by
DR. MUKUNDAKAM SHARMA, J. 1. This appeal is
E directed against the judgment and order passed by the
Himachal Pradesh High Court on 31.08.2000 affirming the
judgment and order passed by the learned Sessions Judge,
Shimla convicting the accused-appellant herein under Section
302 of the Indian Penal Code, 1860 (for short "the IPC") and
F sentencing her to undergo imprisonment for life and to pay a
fine of Rs. 2,000/-, and in default of payment of fine to also
undergo Simple Imprisonment for a further period of one year.
2. The accused-appellant herein was tried for an offence
of murder punishable under Section 302, IPC for allegedly
G committing the murder of her co-wife Shama Devi, on
02.06.1996 at her house in Village Atgaon, Tehsil Chirgaon, , -
District Shimla.
3. The accused-appellant Jagriti Devi is the legally
H
JAGRITI DEVI v. STATE OF H.P. 171
[DR. MUKUNDAKAM SHARMA, J.]
wedded wife of one Mohinder Singh who was a resident of A
·•
village Atgaon. Out of the aforesaid wedlock, the accused-
appellant gave birth to five children, four daughters and one son.
The husband of the accused-appellant, however, married for a
second time and brought the second wife-Shanti Devi home
who was the deceased in the present case. B
4. The aforesaid marriage with the deceased-Shanti Devi
took place about 2-3 months prior to the date of occurrence.
On 02.06.1996, the husband of the accused-appellant was out
of station as he had gone to Rohru on the previous day. The
deceased-Shanti Devi slept outside the house in veranda on
c
the night intervening 01.06.1996 and 02.06.1996. When the
said deceased was sleeping in the veranda on 02.06.1996 at
about 6 a.m., the accused-appellant assaulted her with a
'Khukri'. A number of blows appeared to have been given on
her head and one blow on her neck. The deceased-Shanti Devi, D
however, survived for about few hours of the infliction of the
injuries, and thereafter she died. The accused-appellant
immediately after committing the crime fled away with the
weapon of offence after washing her hands at the water tap in
front of her house. E
5. The Police was informed by Naresh, the brother of the
'i deceased-Shanti Devi who lived in a separate village but not
... very far from the village of the husD.and of the accused-appellant.
Being informed by a boy named ~jesh, Naresh came to the F
spot and saw his sister lying un-conscious with a number of
bleeding injuries on her head and neck. Naresh informed the
police. On being informed, Sub Inspector Dhanpat Rai who was
the Additional Station House Officer at Police Station, Rohru,
went to the spot of occurrence. By the tir:ne he reached the spot,
G
the deceased-Shanti Devi had died. The body of the deceased
t was sent for post mortem examination.
6. During the course of investigation, the police arrested
the accused-appellant in Chirgaon Bazar, when she was going
H
172 SUPREME COURT REPORTS . (2009] 10 S.C.R.
A towards her parents village in the company of he1 brother. On
being interrogated, the accused-appellant told the Police that
she had kept the 'Khukri' hidden in a field. On the basis of the
aforesaid statement, the 'Khukri' was subsequently recovered
and sealed in a parcel. The Police completed the investigation
B and submitted a charge sheet 2g1inst the accused-appellant-
appeUant under Section 302 IPC.
7. The accused-appellant pleaded not guilty to the charge
of Section 302 IPC and claimed to be tried. During the course
of the trial, the prosecution examined 21 witnesses. After
C completion of the recording of evidence of the prosecution
witnesses, the accused-appellant was examined under Section
313 of the Code of Criminal Procedure, 1973 (for short "the
CrPG"). In the said examination, the accused-appellant did not
deny having caused fatal injuries to the deceased, but she
D stated that she had killed the deceased in exercise of her right •
of private defence. The accused-appellant also filed a written
statement under Section 233 of the Cr.PC in which she stated
that on the fateful day, there was altercation between her and
the deceased upon which deceased took out the 'Khukri' kept
E under her pillow and attacked the accused-appellant with the
same to which the accused-appellant received some injuries
on her head, but luckily through the handle of the 'Khukri'. It was
F
also stated by the accused-appellant that in order to prevent
the deceased from further assault, she snatched the 'Khukri'
from the deceased and had given a few blows of 'Khukri' to
the deceased.
-
8. The Trial Court, after going through the evidence on
record found the accused-appellant guilty of the offence alleged
G against her and convicted her for the offence of murder
punishable under Section 302 of the Indian Penal Code. The
learned Sessions Judge, Shimla thereafter passed an order of
sentence against the accused-appellant to undergo
imprisonment for life and to pay a fine of Rs. 2,000/- and in
default of payment of fine, directed her to undergo further simple
H
JAGRITI DEVI v. STATE OF H.P. 173
[DR. MUKUNDAKAM SHARMA, J.]
imprisonment for a period of one year. A
-. 9. Being aggrieved by the aforesaid judgment and order
of conviction and sentence, the accused-appellant filed an
appeal before the High Court of Himachal Pradesh which
entertained it and by a detailed judgment and order dated
B
31.8.2000 upheld the order of conviction and sentence by
affirming the same.
10. The accused-appellant being aggrieved by the
aforesaid concurring judgments of conviction and sentence filed
the present appeal on which we have heard the learned counsel c
appearing for the· parties. Our attention was drawn to the
statements of the prosecution witnesses as also the medical
evidence and also to the statement of accused-appellant under
Section 313 of the CrPC as also her written statement under
Section 233 of CrPC. D
11. The death of the deceased on the morning of
02.06.1996 is not disputed. It is also not disputed that the
deceased died because of the injuries received due to the
blows of 'Khukri' given by the accused-appellant. What is,
E
however, disputed is that the accused-appellant whife giving the
aforesaid blows by the 'Khukri' neither had the intention nor the
knowledge that the same would cause bodily injury to the
deceased. The stand of the defense is that the aforesaid ·
incident had taken place at the spur of the moment due to
F
altercation between the deceased and the accused-appellant
regarding doing certain daily cores. It is also the stand of the
defense that the aforesaid injuries to the deceased were
caused in exercise of the right of private defence by the
accused-appellant. Therefore, we are required to examine as
to whether such a case as sought to be made out by the G
• defense could be deduced from the evidence on record .
12. The deceased was sleeping in the veranda outside the
house. The incident had taken place early in the morning i.e.
at about 6 a.m. If the accused-appellant had any intention to H
174 SUPREME COURT REPORTS [2009] 10 S.C.R.
A kill the deceased, she could have done the same during the
night and would not have waited till the day light had broken
out. It was a morning When there was sunshine all around and
in that broad day light, the offence was committed. The
-
accused-appellant had specifically stated in her statement
B under Section 313 CrPC and alsc i1 the written statement filed
under Section 233 CrPC that there was an altercation between
her and the deceased upon which the deceased took out the
'Khukri' which the deceased had kept under the pillow and
attacked her with the same but luckily she did not receive any
c serious injuries and received certain injuries by the handle of
'Khukri' and in order to save herself from further assault, she
snatched away the 'Khukri' from the deceased and gave few
blow with the said 'Khukri' to the deceased.
13, The aforesaid 'Khukri' which was used as a weapon
D for the commission of offence was recovered by the Police from
the field, at the instance of the accused-appellant, but it is also
established in evidence that the said 'Khukri' was kept by the
deceased under her pillow while she was sleeping in the
veranda outside the house.
E
14. It is also further established from the records that the
accuseo-appellant also received some injuries on her head
which of course were of simple nature. But the prosecution has
not given any explanation in their case regarding those injuries
F received by the accused-appellant. The eye witnesses
examined by the prosecution themselves namely PW-16
(Divya), PW-18 (Vikram) and PW-19 (Vijay Singh) have stated
in their evidence about the altercation between the deceased
and the accused-appellant-appellant preceding the incident.
G 15. PW-16 (Divya) is the daughter of the aCt;USed-
appellant. She had stated in her deposition that on the fateful i
day when her mother asked the deceased to go to the fields
to fetch grass, the deceased not only refused to oblige the
accused-appellant but also retorted saying as the milk is
H
JAGRITI DEVI v. STATE OF H.P. 175
[DR. MUKUNDAKAM SHARMA, J.]
required for her own children, it was her job to arrange fodder. A
PW-16 had also stated that hearing the aforesaid reply by the
deceased, the accused-appellant lost her tamper and slapped
the deceased on her face and in retaliation, the deceased also
slapped the accused-appellant. After that, the deceased took
out the 'Khukri' which she had kept under the pillow and tried B
to attack lhe accused-appellant. At that time, th,e accused-
appellant grappled with the deceased to snatch the 'Khukri'
from the deceased and when they were grappling at the scene
of occurrence, she (PW-16) ran to call her uncle to inter\tene
but by the time she returned, the deceased was lying with the · c
bleeding injuries on the floor of veranda while the accused-
appellant was missing. PW-18 (Vikram), aged about 9 years
who is a son of the brother of the husband of the accused-
appellant-appellant, was also examined in the trial. He had
given a detailed account of what he saw at the place of
0
occurrence. He stated that when he came out in the morning
to urinate, he saw the accused-appellant giving 'Khukri' blows·
to deceased. He had stated that he had seen PW-16 (Divya)
standing in the veranda at that time i.e. when the incident took
place. He also stated that he thereafter went inside to call upon E
PW-19 (Vijay Singh), the other brother. The Trial Court as also
the High Court relied upon the statement of PW-18 and PW-
19 and discarded the statement of PW-16 on the ground that
PW-18 and PW-19 have contradicted the statement of PW-16
who is the real daughter of the accused-appellant. Both, the trial
court as well as the High Court held that PW-18 and PW-19 F
proved to be truthful witnesses who had stated that they had
not seen any quarrel preceding the incident in which the
accused-appellant assaulted and inflicted 'Khukri' blows on the
deceased.
G
16. We have examined the evidence of PW-16, PW-18 and
PW-19 carefully and on a reading thereof, we are of the
considered view that both PW-18 and PW-19 came to the
scene of occurrence when the accused-appellant had assaulted
H
176 SUPREME COURT REPORTS [2009] 10 S.C.R.
A the deceased with the 'Khukri'. PW-18 came to the place of
occurrence when he saw PW-16 standing in the veranda. PW-
19 was informed by PW-18. When PW-18 went inside to inform
PW-19 by that time the incident must have been over as it took
only few minutes for the accused-appellant to give blows to the
B deceased and then running away from the scene of occurrence.
Therefore, it is crystal clear that PW-16 has seen the entire
incident from the starting point namely altercation taking place
between the accused-appellant and the deceased and
thereafter accused-appellant receiving injuries and the
c thereafter deceased being given those fatal blows by the
accused-appellant.
17. We find no reason to disbelieve the statement of PW-
16. In our considered opinion both the trial court and the High
Court discarded her evidence without any cogent reason. The
D trial court and the High Court took the view that the injuries
received by the accused-appellant were not explained by the
prosecution in the trial. It is true that those injuries were received
by the accused-appellant while there was a grappling going on
between the accused-appellant and the deceased for snatching
E 'Khukri' which was the weapon of murder. On appreciation of
the entire evidence on record, we are satisfied that there was
an altercation preceding the incident of murder in which
accused-appellant was insulted by the deceased and by doing
so the deceased provoked the accused-appellant and the
F accused-appellant snatched away the 'Khukri' from the hands
of the deceased due to which the accused-appellant also
received the injuries.
18. Section 299 and Section 300 IPC deals with the
G definition of culpable homicide and murder respectively.
Section 299 defines culpable homicide as the act of causing
death; (i) with the intention of causing death or (ii) with the
intention of causing such bodily injury as is likely to cause death
or (iii) with the knowledge that such act is likely to cause death.
H The bare reading of the section makes it crystal clear that the
" ,,
JAGRITI DEVI v. STATE OF H.P. 177
[DR. MUKUNDAKAM SHARMA, J.]
first and the second clause of the section refer to intention apart A
from the knowledge and the third clause refers to knowledge
alone and not intention. Both the expression "intent" and
"knowledge" postulate the existence of a positive mental attitude
which is of different degrees. The mental element in culpable
homicide i.e. mental attitude towards the consequences of B
conduct is one of intention and knowledge. If that is caused in
any of the aforesaid three circumstances, the offence of
culpable homicide is said to have been committed. Section 300
IPC, however, deals with murder although there is no clear
definition of murder provided in Section 300 IPC. It has been c
repeatedly held by this Court that culpable homicide is the
genus and murder is species and that all murders are culpable
homicide but not vice versa. Section 300 IPC further provides
for the exceptions which will constitute culpable homicide not
amounting to murder and punishable under Section 304. When D
and if there is intent and knowledge then the same would be a
case of Section 304 Part I and if it is only a case of knowledge
and not the intention to cause murder and bodily injury, then the .
same would be a case of Section 304 Part II. The aforesaid
distinction between an act amounting to murder and an act not E
amounting to murder has been brought out in the numerous
decisions of this Court.
19. In the case of State of A.P. v. Rayavarapu Punnayya,
(1976) 4 SCC 382, this Court observed as follows at page 386:
F
"12. In the scheme of the Penal Code, "culpable
homicides" 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 G
amounting to murder". For the purpose of fixing
punishment, proportionate to the gravity of this generic
offence, the Code practically recognises three degrees of
culpable homicide. The first is, what may be called,
"culpable homicide of the first degree". This is the greatest H
178 SUPREME COURT REPORTS (2009] 10 S.C.R.
A forrn 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
8 culpable homicide and the punishment provided for it is,
also, the lowest among the punishments provided for the
three grades. Culpable homicide of this degree is
punishable under the second part of Section 304."
C 20. Placing strong reliance on the aforesaid decision, this
Court in the case of Abdul Waheed Khan v. State of A.P.,
(2002} 7 sec 175, observed as follows at page 184:
"13. Clause (b) of Section 299 corresponds with clauses
I
(2) and (3) of Section 300. The distinguishing feature of
D 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
E ordinary way of nature be sufficient to cause death of a
person in normal health or condition. It is noteworthy that
the "intention to cause death" is not an essential
requirement of clause (2). Only the intention of causing the
bodily injury coupled with the offender's knowledge of the
F 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.
14. Clause (b) of Section 299 does not postulate any such
G 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
H
JAGRITI DEVI v. STATE OF H.P. 179
[DR. MUKUNDAKAM SHARMA, J.]
likely to cause death of that particular person as a result A
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 B
will not be murder, even if the injury which caused the
death, was intentionally given. In clause (3) of Section 300,
instead of the words "likely to cause death" occurring in
the corresponding clause (b) of Section 299, the words
"sufficient in the ordinary course of nature" have been used. c
Obviously, the distinction lies between a bodily injury likely
to cause death and a bodily injury sufficient in the ordinary
course of nature to cause death. The distinction is fine but
real and if overlooked, may result in miscarriage of justice.
The difference between clause (b) of Section 299 and
D
clause (3) of Section 300 is one of 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 E
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.
F
15. 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 Singh v. State of Kera/a 3 is an apt illustration of G
this point.
)
16. In Virsa Singh v. State of Punjab 4 Vivian Bose, J,
speaking for the Court, explained the meaning and scope
of clause (3). It was observed that the prosecution .must
H
180 SUPREME COURT REPORTS [2009] 10 S.C.R.
A prove tr1e 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
B 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 the injury of the
c type just described made up of the three elements set out
above was sufficient to cause death in the ordinary course
of nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the
offender.
D 17. The ingredients of clause "thirdly" of Section 300 IPC
were brought out by the illustrious Judge in his terse
language as follows: (AIR p. 467, para 12)
"12. To put it shortly, the prosecution must prove the
E following facts before it can bring a case under Section
300 'thirdly';
First, it must establish, quite objectively, that a bodily
injury is present;
F 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 unintentional, or that some other kind of
injury was intended.
Once these three elements are proved to be present,
the enquiry proceeds further and,
H
JAGRITI DEVI v. STATE OF H.P. 181
[DR. MUKUNDAKAM SHARMA, J.]
Fourthly, it must be proved that the injury of the type A
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 intention of the
offender." . B
18. The learned Judge explained the third ingredient in the
..following words (at p. 468): (AIR para 16)
"The question is not whether the prisoner intended to inflict
a serious injury or a trivial one but whether he intended to C
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, D
the only possible inference is that he intended to inflict it.
Whether he knew of its seriousness, or intended serious
consequences, is neither here nor there. The question, so
far as the intention is concerned, is not whether he intended
to kill, or to inflict an injury of a particular degree of E
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 conclusion."
19. These observations of Vivian Bose, J. have become F
locus classicus. The test laid down by Virsa Singh case4
for the applicability of clause "thirdly" is now ingrained in
our lega-1 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. G
(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
H
182 SUPREME COURT REPORTS [2009) 10 S.C.R.
A 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.
B
20. Thus, according to the rule laid down in Virsa Singh
case4 even if the intention of the 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.
c Illustration (c} appended to Section 300 clearly brings out
this point. ·
21. Clause (c) of Section 299 and clause (4) of Section
300 both require knowledge of the probability of the act
D 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
E 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
F committed by the offender without any excuse for incurring
the risk of causing death or such injury as aforesaid.
22. 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
G intertwined and the second and the third stages so
telescoped into each, that it may not be convenient to give
t
a separate treatment to the matters involved in the second ~
and third stages. n
H 21. The aforesaid principles have been consistently
JAGRITI DEVI v. STATE OF H.P. 183
[DR. MUKUNDAKAM SHARMA, J.]
,.. applied by this Court in several decisions. Reference in this A
regard may be made to the decision of this Court in Rufi Ram
"' v. State of Haryana, (2002) 7 SCC 691; Augustine Saldanha
v. State of Kamataka, (2003) 10 SCC 472; State of U. P. v.
Virendra Prasad, (2004) 9 SCC 37; Chacko v. State of Kera/a,
(2004) 12 SCC 269; and S. N. Bhadolkar v. State of B
Maharasthra, (2005) 9 SCC 71.
.. 22. That being the well settled legal position, when the
factual background of the present case is tested on the
principles laid down by this Court in the aforesaid decisions,
we are unable to agree with the views taken by th~ trial court
c
as also by the High Court. As already noted, it is quite clear
from the record that there was an altercation preceding the
' incident of murder in which the accused-appellant was insulted
by the deceased and by doing so the deceased provoked the
D
.I accused-appellant. The deceased also took out the 'Khukri'
which was under the pillow with the intention of assaulting the
accused-appellant and the accused-appellant in order to save
herself grappled with the deceased and during that process she
also received injuries. The prosecution has failed to give any
explanation with regard to those injuries received by the E
accused-appellant. Further, it is also established in evidence
that the 'Khukri' used in the commission of offence was kept
by the deceased under her pillow while she was sleeping in the
... .. veranda outside the house. Clearly, there was no intention on
the part of the accused-appellant to· kill the deceased. That F
being the position, we are of the considered view that the
present case cannot be said to be a case under Section 302
IPC but it is a case falling under Section 304 Part II IPC. It is
trite law that Section 304 Part II comes into play when the death
is. caused by doing an act with knowledge that it is likely to G
cause death but there is no intention on the part of the accused
+ either to cause death or to cause such bodily injury as is likely
to cause death.
23. We, therefore, hold the accused-appellant to be guilty
H
184 SUPREME COURT REPORTS [2009] 10 S.C.R.
A for offence under Section 304 Part 11 IPC. Her conviction under
Section 302 IPC is, therefore, set aside. The accused-appellant
has already undergone about seven years of imprisonment. We
therefore, alter the sentence to the period already undergone
by the accused-appellant. So far as the punishment of fine is
B concerned, the same stands set aside. The accused-appellant
is already on bail. The bail bonds shall stand cancelled.
24. The appeal stands allowed to the aforesaid extent.
R.P. Appeal Partly allowed.
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