Holding

The Supreme Court upheld the conviction under Section 302 IPC, finding that the injury caused the death and that the dying declaration was reliable.

Summary

The appellant, Mohd. Asif, assaulted the deceased, Mohd. Saeed, with a knife in a cinema hall, causing a stab wound that required surgery. The victim died four days later, with the post‑mortem attributing death to pulmonary embolism, which the defence argued was an intervening cause unrelated to the injury. The trial court relied on a dying declaration of the victim, found the declaration reliable, and convicted the appellant under Section 302 IPC with a life sentence. On appeal, the Supreme Court examined whether the death was causally linked to the injury, the applicability of Sections 304 Part II and 326 IPC, and the validity of the dying declaration. It held that the injury necessitated the operation and was the proximate cause of death, that the case did not fall under the lesser offences, and that the dying declaration was trustworthy. Consequently, the conviction under Section 302 was affirmed and the appeal dismissed.

Issues considered

The death of the deceased was caused by the injury inflicted or by an intervening pulmonary embolism.
Whether the appellant should be convicted under Section 302 IPC or the offence reduced to Section 304 Part II or Section 326.
The reliability and admissibility of the dying declaration as sole evidence.
Whether the facts attracted the exception to murder under Section 300 IPC, i.e., sudden provocation.
Whether the sentence should be converted from Section 300 to Section 304 IPC.

Legislation cited

Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304 Part II, s. 307, s. 326, s. 34

Subjects

murderculpable homicidedying declarationcausationpulmonary embolismSection 302 IPCSection 304 Part II IPCSection 326 IPCprovocationmedical evidence

Judgment

[2009] 4 S.C.R. 12

A MOHD. ASIF
v ...
STATE OF UTTARANCHAL
CRIMINAL APPEAL NO. 78 OF 2007
MARCH 6, 2009
B
(S.S. SINHA AND ASOK KUMAR GANGULY, JJ.)
Penal Code, 1860 :
Sections 300, 302, 304 Part II, 326 - Conviction uls 3021
c 34 - Affirmed by High Court - On appeal, Held: It cannot be ..
said that the death did not take place due to the injury inflicted
- Not a case which attracts provisions of s. 304 Part II ors. 326
- Rightly convicted u/s 302 - Evidence - Dying declaration.
In this appeal against High Court's judgment
D convicting the appellant for an offence punishable under
s.302/34 confirming the order of the trial court, reliability
of the dying declaration, whether the death was caused
due to the injury caused and for converting the sentence
from s.300 IPC to s.304 IPC were involved.
E
Dismissing the appeal, the Court
HELD: 1.1 Pulmonary embolism is caused by reason
of the blockage in the lungs, a clot may form on any part
of the body and then travel upto the lungs. Pulmonary
...
F
embolism is an extremely common and highly lethal
condition that is a leading cause of death in all age groups.
It may arise from anywhere in the body. It may be caused
even during long air travels as commonly it arises from
the calf veins. It is not a disease by itself. It has been argued
G
on behalf of the appellant that the death of the deceased
~
occurred due to pulmonary embolism as a result of the
operation that he had to undergo after the incident and
not due to the injury caused to him at the time of the
H 12
MOHD. ASIF V. STATE OF UTTARANCHAL 13

scuffle. This argument as rightly pointed out by the lower A
....
court is misconceived. [Para 8] [20-D-F]
1.2 The operation of the deceased was necessitated
because of the injury inflicted upon him at the time of the
incident and there would have been no question of
subjecting him to such an operation had he not been so B
seriously injured in the incident. The operation of the
deceased became necessary on account of the injury. It
can hardly be argued that his death did not take place
,.._
due to the aforesaid injury. [Para 1OJ [24-G]
Medical Dictionary, 2nd Edition, by P.H. Collin and
c
Taylor's Principles and Practice of Medical Jurisprudence -
referred to.
2. Dying declaration in this case has been held to be
reliable. The level of reliance to be placed on a dying D
--; declaration by a court has now come to be well settled. If
it is trustworthy, a judgment of conviction can be based
thereupon. [Para 8] [20-F-G]
Ranjit Singh & ors. Vs. State of Punjab (2006) 13 SCC
130; Shakuntala (Smt.) vs. State of Haryana (2007) 10 SCC E
168; State of Rajasthan vs. Parthu (2007) 12 SCC 754 and
Samadhan Dhudaka Kofi vs. State of Maharashtra (2008) 16
SCALE 66 - relied on.
~

3.1 The Explanation appended to s.300 IPC states
that whether the provocation was grave and sudden F
enough to prevent the offence from amounting to murder
is a question of fact. It is not a case of exercise of right of
private defence. The provocation was not given by a thing
done in obedience to the law, or by a public servant in the
..j
lawful exercise of the powers of such public servant. The G
provocation, if any, was sought for by the offenders. In
this case, appellant and the co-accused must be held to
have known that it was so imminently dangerous that it
must, in all probability, cause death or such bodily injury
as is likely to cause death.[Para 14] [26-G-H; 27-A-B] H
14 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 3.2 Applying the settled legal principles, there is no
doubt in that it is not a case which attracts the provisions
of Section 304 Part II of the IPC or Section 326 thereof .
[Para 14] [29-B]
Virsa Singh vs. State of Punjab AIR 1958 SC 465 and
8 Kesar Singh & Anr. Vs. State of Haryana 2008 (6) SCALE 433
- relied on.
4. The present case is not a case where the
intervening ailment was wholly unconnected with the
c injury. The appellant has rightly been found guilty of
commission of an offence under Section 302 of the IPC.
[Para 16] [31-A-C]
Manubhai Atabhai vs. State of Gujarat (2007) 10 SCC
358 - relied on.
D
Dashrath Singh vs. State of U.P (2004) 7 SCC 408 - t

held inapplicable.
Chowa Manda/ & anr. Vs. State of Bihar (Now Jharkhand)
(2004) 13 SCC 231; State of Rajasthan vs. Jara Ram (2005)
E 10 SCC 591 and Gokul Parashram Patil vs. State of
Maharashtra (1981) 3 SCC 331 - distinguished.
Case Law Reference
(2006) 13 sec 130 relied on Para 8
F (2001) 1o sec 168 relied on Para 8
(2007) 12 sec 754 relied on Para 8
(2008) 16 SCALE 66 relied on Para 8

G AIR 1958 SC 465 relied on Para 14
2008 (6) SCALE 433 relied on Para 14
(2004) 1 sec 408 held inapplicable Para 15
(2004) 13 sec :31 distinguished Para 15
H
MOHD. ASIF V. STATE OF UTTARANCHAL 15

(2005) 1o sec 591 distinguished Para 15 A
(1981) 3 sec 331 distinguished Para 15
(2007) 1 o sec 358 relied on Para 16
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 78 of 2007 B

From the Judgement and Order dated 08.06.2006 of the
Court of Judicature at Nainital, Uttaranchal in Criminal appeal
" no. 439 of 2001 (old No. 2671 of 1982)

K.V. Vishwanathan, Rashid Saeed, samirAli Khan, lrshad C
Ahmad, Amit Rana Anup Kumar, for the Appellants.
S.S. Shamshery, Anuvrat Sharma, Rachna Srivastava, for
the Respondent.
The Judgement of the Court was delivered by D
S.B. SINHA, J.
1. Khatima is a small town in the State of Uttaranchal. In a
cinema theatre known as 'Sharda' a movie 'Akhri lnsaf was
being exhibited at the relevant time. On or about 15.2.1981, E
Mohd. Saeed, the deceased, and his friend Shakeel Ahmad
(PW 3) were watching the night show of the said movie in the
said theatre. At about 10.30 p.m. Iqbal Ahmad (Iqbal), an
associate of the appellant went inside the cinema hall and asked
the deceased to come out therefrom. Meanwhile, the appellant F
waited outside. The deceased followed Iqbal and came out of
the cinema hall. Iqbal and appellant started quarreling with the
deceased. There was some heated exchange of words. Both
the accused took out knives which they were carrying. Iqbal
. ..; caught hold the deceased and appellant struck a blow with the G
knife on the back of the deceased. PW 1 - Kanhaiya Lal, a
betel shopkeeper in the said theatre, PW-2 Hem Raj, gate-
keeper of the cinema hall and PW-3 Sha keel Ahmad witnessed
the said occurrence. Hearing the shouts and cries for help, PW-
4 Constable Bachche Singh with another constable Bhishma H
16 SUPREME COURT REPORTS [2009] 4 S.C.R.

A Singh also reached the spot. Appellant was apprehended at
the spot whereas Iqbal succeeded in running away. The knife
used by the appellant was also recovered from him. The
deceased was taken to a nearby hospital. He was referred to a
hospital at Pilibhit. He died four days after the incident, i.e., on
B 20.2.1981.
2. A First Information Report (FIR) under Section 307 of
the Indian Penal Code (IPC) was lodged on or about 16.2.1981.
The case was subsequently converted to one under Section
302 of the IPC.
c
3. A dying declaration of the deceased was recorded by
one Javed Usmani, Sub-Divisional Magistrate, Khatima on or
about 15.2.1981, which reads as under:
"About 1 -1-1/2 hours before, I was watching night show
D of movie at Sharda Cinema, then Iqbal s/o unknown Asif
s/o unknown asked me to come out of the cinema hall.
Iqbal had come to asked me to come out. I came outside.
Iqbal started getting angry upon me, I said do not get
angry upon me. There was hand-scuffle between me and
E Iqbal, and Iqbal drew out the knife. Asif was also scuffling
with me and I was trying to keep myself away from them.
Asif also drew out the knife and then Asif struck the knife
blow at my back. Iqbal ran away from the spot after the
knife blow was struck. Asif was apprehended by Shakeel
F s/o Farooq. Shakeel had come along with me to watch
the movie. Beside Shakeel, there were two-three more
persons who apprehended Asif, whom I do not know. There
was no past enmity between me and Iqbal and Asif. Asif '
used to live at Mohalla Gotia nearthe Chakki in front of the
house of Farooq Master. Iqbal used to live at Potters ,..
G
locality.
I had no past enmity with Asif but 3 - 4 days before there
was some altercation between Asif and me at Golia
Mohalla. It may be possible that because of this, today's
H incident took place."
MOHD. ASIF V. STATE OF UTTARANCHAL 17
'
' [S.B. SINHA J.]

4. Appellant was put to trial. He was found guilty of A
"t' commission of an offence punishable under Section 302/34 of
the IPC and was sentenced to undergo R.I. for life. An appeal
was preferred thereagainst, which has been dismissed by
reason of the impugned judgment. However, as during the
pendency of the said appeal Iqbal expired, the appeal filed.by B
him stood abated.
. '· .._.
-'

5. Mr. K.V. Viswanathan, learned counsel appearing on
behalf of the appellant would contend that the deceased having
• been given only a single blow and that too on a non vital part of
the body, no offence can be said to have been committed by c
him under Section 302 of the Code. Drawing our attention to
the post-mortem report, the learned counsel would urge that the
deceased having died of pulmonary embolism and furthermore _
having regard to the fact that before the purported attack a scuffle
had taken place and thus there being a sudden provocation, D
~
the High Court committed a serious error in holding that the
appellant had the intention to cause murder of the deceased. In
a case of this nature, Mr. Viswanathan would contend, the
principle of causa causan should be applied. ·
6. Mr. S.S. Shamshery, learned counsel appearing on E
behalf of the respondent, on the other hand, would support the
impugned judgment.
.. 7. Indisputably, the deceased was watching a movie on
that fatal night with his friend Shakeel (PW-3). Appellant and F
Iqbal knew thereabout. The fact that there existed a dispute
between the appellant and the deceased is neither denied nor
disputed. Iqbal was sent by the appellant to ask the deceased
to come out of the cinema hall. As soon as he came out,
'
appellant along with Iqbal started quarreling with him. There was G
./ no cause therefor, It was not a case of sudden provocation. Both
the accused were armed with knives. During the said quarrel,
both of them took out their weapons. Iqbal caught hold of the
deceased whereas appellant inflicted the injury. The injury might
have been inflicted on the back side of the lowermost part. The
H
18 SUPREME COURT REPORTS [2009] 4 S.C.R.

A depth of the wound could not be ascertained immediately. As
per the injury report prepared by Dr. L.D. Khatri (P.W.9), the i"
stab wound was of the size of about 2 cm x 1 cm x depth ..
Edges of wound were found clean cut. Both ends were pointed.
Profused bleeding from the wound was noticed. Even the sub
B coetaneous tissue was visible. As per the said doctor, the injury
was caused by a sharp edged weapon like a knife. The
deceased had to be operated upon. He, however, could not
survive.
The post-mortem examination on the person of the
C deceased was held on 21.2.1981 by Dr. A.K. Mehrotra. He, in
his report, stated that the deceased suffered the following ante-
mortem injuries:
"i) Stitched wound 15 cm long, oblique 26 cm
below the auxiliary pit left side, drainage put in.
D
ii) Stitched wound 2 cm long in lumbar region back
of the left side of abdomen 5 cm from injury no.
1.
iii) Cut open wounds on both legs on medical
E mellows 1 cm x 0.5 cm x muscle deep."
Whereas the first and third injuries were operational ones,
injury No.2 was caused during the incident.
Dr. A.K. Mehrotra, in his deposition before the court, inter
F alia, stated :
"Left lung was infract and collapsed. There was a big blood
clot in the left pulmonary artery. Peritoneum was stitched
below the wound caused by operation. The stomach was
G empty. Left kidney was stitched at cortex.
In my opinion the cause of death was pulmonary
embolism."
It was furthermore stated:
H "It is possible that the kidney of the deceased was ruptured
MOHD. ASIF V. STATE OF UTTARANCHAL 19
[S.B. SINHA J.]

because of the injury no. 2. And it is also possible that the A
pulmonary embolism was due to injury no. 2. The
abovementioned injury no.2 was sufficient to cause death
in ordinary course of nature. The above mentioned injuries
no. 1 and 3 are likely to be related with the operation."
To a question as to whether the stab wound of the size of 8
about 2 cm x 1 cm x depth would correspond to injury no.2
mentioned in the post-mortem examination report, he answered
in the affirmative. In his cross-examination, he stated:

"Pulmonary embolism occurred due to the blockage in the c
pulmonary artery. The pulmonary embolism in the body
was caused due to blood clot. The said blood clot happens
some times after the operation. I cannot say definitely that
the said blood clot was caused because of injury no. 2"
8. The term 'Pulmonary', it must be noted, refers to the D
lungs. 'Pulmonary Embolism' is described in Medical Dictionary,
2"d Edition, by P.H. Collin a!? under: .
"blockage of a pulmonary artery by a blood clot"
Further, it must be noted that pulmonary arteries take E
deoxygenated blood from the heart to the lungs for oxygenation.
In Taylor's Principles and Practice of Medical
Jurisprudence, it is stated:
"Pulmonary embolism is a condition in which thrombi are F
formed on the walls of the pelvic and leg veins and such
thrombi break away and embolise to the lungs. The veins
themselves are usually normal and the condition is referred
to as phlebothrombosis in contradistinction to
· thrombophlebitis where thrombosis occurs in a vein which G
is already inflamed. In this latter case embolism is much
less likely to occur as the inftammation anchors the
thrombus to the vessel wall. Although the thrombosis is
the primary event the embolus itself usually consists of a
tube of thrombus with a central core of clotted blood. When H
20 SUPREME COURT REPORTS [2009] 4 S.C.R.

A it reaches the lung its effects depend on its size. Small
ones are carried to the periphery of the lung where they t
cause pulmonary infarcts but large ones straddle the
bifurcation of the pulmonary artery completely blocking
the blood circulation. Spasm of the pulmonary arteries
B around the thrombus only helps to make matters worse.
The cause of the thrombosis is thought to be damage to
the vessel wall by slowing of the blood flow and pulmonary
embolism frequently causes death in people who are
confined to bed, particularly in the postoperative period.
It has even been observed in people confined to an
•
c aeroplane seat on long journeys such as the flight to
America."

Pulmonary embolism is, thus, caused by reason of the
blockage in the lungs, a clot may form on any part of the body
D and then travel upto the lungs. Pulmonary embolism is an
extremely common and highly lethal condition that is a leading
cause of death in all age groups. It may arise from anywhere in
the body. It may be caused even during long air travels as
commonly it arises from the calf veins. It is not a disease by
E itself. It has been argued by the learned counsel for the appellant
that the death of the deceased occurred due to pulmonary
embolism as a result of the operation that he had to undergo
after the incident and not due to the injury caused to him at the
time of the scuffle. This argument has been rightly pointed out
F by the lower court is misconceived.

Dying declaration in this case has been held to be reliable.
The level of reliance to be placed on a dying declaration by a
court has now come to be well settled. If it is trustworthy, a
judgment of conviction can be based thereupon.
G
In Ranjit Singh & ors. vs. State of Punjab [(2006) 13 SCC
130], this Court held:

"13. It is now well settled that conviction can be recorded
on the basis of a dying declaration alone, if the same is
H wholly reliable, but in the event there exists any suspicion
MOHD. ASIF V. STATE OF UTTARANCHAL 21
. [S.B. SINHA J.]

as regards correctness or otherwise of the said dying . A
declaration, the Courts in arriving at the judgment of
conviction shall look for some corroborating evidence. It
is also well known that in a case where inconsistencies in
the dying'declarations, in relation to the active role played
by one or the other accused persons, exist, the Court shall B .
lean more towards the first dying declaration than the
second one."
In Shakuntala (Smt.) vs. State of Haryana [(2007) 10 SCC
168], this Court held:
c
"11. 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 placed, is
the reason in law to accept veracity of his statement. It is · D
+ . for this reason the requirements of oath and cross-
examination are dispensed with. Besides, should the dying
declaration be excluded it wilt result in miscarriage of justice
because the victim being generally the only eye-witness in
a serious crime, tlie exclusion of the statement would leave E
the Court without a scrap of evidence.
12. Though a dying declaration is entitled to great weight,
it is worthwhile to note that the accused h.as no power of
cross- 'examination. Such a power is essential for eliciting F
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 insp.ire full confidence of
the Court in its correctness. The Court-hast<;> be on guard
that the statement of deceased was not as a result of
G
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 H
22 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 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 conviction
unless it is corroborated. The rule requiring corroboration
is merely a rule of prudence. This Court has laid down in
B several judgments the principles governing dying
declaration, which could be summed up as under as
indicated in Smt. Paniben v. State of Gujarat [(1992) 2
SCC 474]: (SCC pp.480-81, paras 18-19)

(i) There is neither rule of law nor of prudence that dying
c declaration cannot be acted upon without corroboration.
[See Munnu Raja and Anr. v. The State of Madhya
Pradesh (1976) 3 SCC 104]
(ii) If the Court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
D
corroboration. [See State of Uttar Pradesh v. Ram Sagar
Yadav and Ors. (1985) 1 SCC 552, and Ramavati Devi +
v. State of Bihar (1983) 1 SCC 211]
(iii) The Court has to scrutinize the dying declaration
E carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The deceased
had an opportunity to observe and identify the assailants
and was in a fit state to make the declaration. [See K.
Ramachandra Reddy and Anr. v. The Public Prosecutor ..
F (1976) 3 sec 6181
(iv) Where dying declaration is suspicious, it should not
be acted upon without corroborative evidence. [See
Rasheed Beg v. State of Madhya Pradesh (1974) 4 SCC
264]
G
(v) Where the deceased was unconscious and could
~
never make any dying declaration the evidence with regard ·"
to it is to be rejected. [See Kake Singh v. State of M.P ,
1981 Supp. sec 25]

H (vi) A dying declaration which suffers from infirmity cannot
MOHD. ASIF V. STATE OF UTTARANCHAL 23
[S.B. SINHA J.]

form the basis of conviction. [See Ram Manorath and A
Ors. v. State of UP (1981) 2 SCC 654]
(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,
1980 Supp. sec 455] B

(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 Ojha and
Ors. v. State of Bihar, 1980 Supp. SCC 769]. c
(ix) Normally the CoL1rt in order to satisfy whether
deceased was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where the
eye- witness said that the deceased was in a fit and
conscious state to make the dying declaration, the medical D
... opinion cannot prevail. [See Nanhau Ram and Anr. v.
State of Madhya Pradesh, 1988 Supp SCC 152].
(x) Where the prosecution version differs from the version
as given in the dying declaration, the said declaration
cannot be acted upon. [See State of UP v. Madan Mohan E
and·.Ors. (1989) 3 SCC 390].
(xi) Where there are more than one statement in.the nature
of dying declaration, one first in point of time must be
pref!'!rred. Of course, if the plurality of dying declaration F
. could be held to be trustworthy and reliable, it has to be
· accepted. [See Mohan/al Gangaram Gehani v. State of
Maharashtra (1982) 1 SCC 700]"
In State of Rajasthan vs. Parthu [(2007) 12 SCC 754],
this Court held: G
tf
"13. It is now a well settled principles of law that a judgment
of conviction can be recorded on the basis of the dying
declaration alone subject of course to the satisfaction of
the Court that the same was true and voluntary. For the
H
24 SUPREME COURT REPORTS [2009] 4 S.C.R.

A purpose of ascertaining truth or voluntariness of the dying
declaration, the Court may look to the other circum- r
stances .... "
We do not see any reason to differ with the ratio laid down
therein. {See also Samadhan Dhudaka Kofi vs. State of
B Maharashtra 1(2008) 16 SCALE 66]}

9. It is not a case where the death of the deceased had
nothing to do with the injury inflicted. The utterances on the part
of the appellant that he would not leave the deceased alive ...
c indicate the state of mind on the part of the appellant. The doctors
tried their best to save his life. They could not do it.
10. Section 299 of the IPC reads as under:
"299. Culpable homicide.- Whoever causes death by
doing an act with the intention of causing death, or with the
D
intention of causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by such act
to cause death, commits the offence of culpable homicide."
Explanation-2 appended thereto may also be noticed:
E "Explanation 2.-Where death is caused by bodily injury,
the person who causes such bodily injury shall be deemed
to have caused the death, although by resorting to proper
remedies and skilful treatment the death might have been
prevented."
F
The operation of the deceased was necessitated because
of the injury inflicted upon him at the time of the incident and
there would have been no question of.subjecting him to such an
operation had he not been so seriously injured in the incident.
G The operation of the deceased became necessary on account
of the injury. It can hardly be argued that his death did not take
place due to the aforesaid injury.
11. The question which now arises for consideration is as
to whether a case for converting the sentence from Section 300
H IPC to Section 304 IPC has been made out.

t
MOHD. ASIF V. STATE OF UTIARANCHAL 25
[S.8. SINHA J.]

Section 300 of the IPC reads as under: A
1' "300. Murder.- Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death
is caused is done with the intention of causing death, or-;-
Secondly.- If it is done with the intention of causing such 8
bodily injury as the offender knows to be likely to cause
the death of the person to whom the harm is caused, or-
Thirdly.- If it is done with the intention of causing bodily
.,,__
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to
c
cause death, or-
Fourthly.- If the person committing the act knows that it is
so imminently dangerous that it must, in all probability,
ca.use death or such _bodily injury as is likely to cause D
death, and commits such act without any excuse for
~
incurring the risk of causing· death or such injury as
aforesaid."
Exception 4 thereof reads as under:
E
"Exception 4. - Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
. •
...... offender having taken undue advantage or acted in a cruel
or-unusual manner. F
Exception 4 of Section 300 in this case would not arise.
12. Indisputably, commission of offence has been proved
by the witnesses Kanhaiya Lal (PW-1), Hem Raj (PW-2) and
Shakeel Ahmad (PW-3). The facts do not disclose any sudden G
provocation.
Indisputably, the doctor has noticed that left lung was infract
and collapsed. A big blood clot in the left pulmonary artery was
also noticed. There was thus no adequate blood supply.
(
H
26 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 13. There may be a scuffle but it occurred because of the
overt acts on the part of the appellant and Iqbal. We have noticed
hereinbefore the manner in which the assault had taken place
as well as the manner in which the force was applied in inflicting
the assault is evident. It ruptured the kidney. The wound was
B therefore deep. Profused bleeding was noticed. And that IS the
reason he had to be operated upon.
14. The question with regard to finding out the intention on
the part of the accused to cause death depends upon the facts
C and circumstances of each case. No hard and fast rule can be
laid down therefor. Section 300 of the Code provides that subject
to the exceptions contained therein culpable homicide would
be murder if the act by which the death is caused is done with
the intention of causing death. Exception 1 thereto providing for
a situation when culpable homicide is not murder. In terms of
0
Exception 1, culpable homicide is not murder if the offender,
whilst deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the
provocation or causes the death of any other person by mistake
E or accident. The said provision is, however, subject to the
following :
"First - That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing
harm to any person.
F
Secondly.- That the provocation is not given by anything
done in obedience to the law, or by a public servant in the
lawful exercise of the powers of such public servant.
Thirdly. - That the provocation is not given by anything done
G in the lawful exercise of the right of private defence."
The Explanation appended thereto states that whether the
provocation was grave and sudden enough to prevent the
offence from amounting to murder is a question of fact. It is not
H a case of exercise of right of private defence. The provocation
-
MOHD. ASIF V. STATE OF UTTARANCHAL 27
[S.B. SINHA~-)

was not given by a thing done in obedience to the law, or by a A
public servant in the lawful exercise of the powers of such public
servant. The provocation, if any, was sought for by the
offenders. In this case, appellant and Iqbal must be held to have
known that it was so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely to cause B
death.

What is meant by 'imminently dangerous' which, in all
probability, cause death or such bodily injury as is likely to cause
death came up for consideration before this Court in Virsa Singh C
vs. State of Punjab [AIR 1958 SC 465], wherein it was held:
"(15) ..... We quote a few sentences earlier from the same
learned judgment :

"No doubt, if the prosecution prove and act the natural
0
consequences of which would be a certain result and no
evidence or explanation is given, then a jury may, on a
proper direction, find that the prisoner is guilty of doing the
act with intent alleged."

That is exactly the position here. No evidence or . E
explanation is given about why the appellant thrust a spear
into the abdomen of the deceased with such force that if
penetrated the bowels and three coils of the intestines
came out of the would and that digested food oozed out
from cuts in three places. In the absence of evidence, or F
reasonable explanation, that the prisoner did not intend to
stab in the stomach with degree of force sufficient to
penetrate that far into the body, or to indicate that his act
was regrettable accident and that he intended otherwise,
it would be perverse tb conclude that he did not intend to G
inflict the injury that he did. Once that intend is established
(and no other conclusion is reasonably possible in this
case, and in any case it is a question of fact), the rest is
a matter for objective determination from the medical and
H
28 SUPREME COURT REPORTS [2009] 4 S.C.R.

A other evidence about the nature and seriousness of the
injury."
A bench of this Court in Kesar Singh & Anr vs. State of
Haryana [2008 (6) SCALE 433] applied the standard laid down
in Virsa Singh (supra) to hold:
8
'To put it shortly, the prosecution must prove the followin9
facts before it can bring a case under Section 300, "3rdly":

First, it must establish, quite objectively, that a bodily injury
is present;
c
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
D 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,
Fourthly, it must be proved that the injury of the type just
E 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.

F Once these four elements are established by the
prosecution (and, indisputably, the burden is on the
prosecution througho4t). the offence is murder under
Section 300, "3rdly". It does not matter that there was no
intention to cause death. It does not matter that there was
G no intention even to cause an injury of a kind that is
sufficient to cause death in the ordinary course of nature
(not that there is any real distinction between the two). It
does not even matter that there is no knowledge that an
act of that kind will be likely to cause death. Once the
H intention to cause the bodily injury is actually found to be
MOHD. ASIF V. STATE OF UTTARANCHAL . 29
[S.B. SINHA J.]

. proved, the rest of the enquiry is purely objective and the A
only question is whether, as a matter of purely objective
inference, the injury is sufficient in the ordinary course of
nature to cause death .... "

Applying the aforementioned principles, we have no doubt
8
in our mind that it is not a case which attracts the provisions of--
Section 304 Part II of the IPC or Section 326 thereof.

15. Mr. Viswanathan relied upon a decision of this Court
in Chowa Manda/ & anr. vs. State of Bihar (Now Jharkhand)
[(2004) 13 sec 231]. In that case it was found that there was c
no motive, intention or knowledge on the part of the offenders
as to their act which led to the death of the deceased. It was
found that the incident had occurred on the spur of the moment
without there being any intention of causing death or of causiAg
such injury as they knew was likely to cause death. 0
In State of Rajasthan vs. Jara Ram [(2005) 10 SCC 591]
whereupon again Mr. Viswanathan placed reliance, the High
Court itself found that medical evidence on record did not make
out a case of murder as it disclosed that the injuries found on
the person of the deceased were simple injuries and furthermore E
it was found that they were not sufficient in ordinary course of
nature to cause death as merely a bruise was found. Even that
injury was not attributed to the respondent therein.
ll

In Goku/ Parashram Patil vs. State of Maharashtra [(1981)
3 SCC 331), relied upon by Mr. Viswanathan, distinguishing F
Virsa Singh (supra), this Court held:
"... The question thus is whether the particular injury which
was found to be sufficient in the ordinary course of nature
to cause death, in the present case, was an injury intended G
-+- · by the appellant. Our answer to the question is an emphatic
No. The solitary blow given by the appellant to the
deceased was on the left clavicle-a non-vital part-and it
would be too much to say that the appellant knew that the
superior venacava would be cut as a result of that wound. H
30 SUPREME COURT REPORTS [2009) 4 S.C.R.

A Even a medical man perhaps may not have been able to
judge the location of the superior venacava with any
precision of that type. The fact that the venacava was cut
must, therefore, be ascribed to a non-intentional or
accidental circumstance."
B Such is not the case here.
Reliance has also been placed by Mr. Viswanathan on
Dashrath Singh vs. State of UP [(2004) 7 SCC 408) wherein
it was held:
•
C "29. The medical evidence however does not establish
beyond reasonable doubt that the ultimate cause of death
was the aforesaid injury. From the date of the surgery, the
victim was alive for 23 days and undergoing treatment in
the hospital. He survived for 38 days after the injury was
D received. Not a word has been said and no report or
case-sheet has been filed to indicate the condition of the
patient after the surgery. No doubt, there was no crass
examination of the Doctor (PW8) on this aspect. Yet, it
was the primary duty of the prosecution to adduce evidence
E in regard to the post-operative condition of the patient so
that the scope for any intervening ailment unconnected
with the injury is ruled out. This becomes ail the more
important because of the long time lag and the omission
to hold post-mortem. Apparently, there was a callous
F indifference or lack of vigilance on the part of the
Investigating Officer in failing to ensure the post-mortem
examination in a case of this nature. PW 8 came forward
with the explanation that the post-mortem is not absolutely
necessary to ascertain the cause of death. But, then, the
prosecution has to establish beyond reasonable doubt
G
that the eventual cause of death was only the injury inflicted
by the appellant and nothing else, but it has failed to do
so."
The said ciecisi...in also has no application in the present
H case.
MOHD. ASIF V. STATE OF UTTARANCHAL 31
[S.B. SINHA J.]

16. It is not a case where the intervening ailment was wholly A
unconnected with the injury. On the other hand, in Manubhai
Atabhai vs. State of Gujarat [(2007) 10 SCC 358], this court
clea(ly held:

"Merely because a single blow was given that does not
automatically bring in application of Section 304 Part I 8
IPC.''

We, therefore, are of the opinion that the appellant has
rightly been found guilty of commission of an offence under
Section 302 of the IPC. c
17. For the reasons aforementioned, there is no merit in
the appeal. It is dismissed accordingly.

G.N. Appeal dismissed .

•