NANKAUNOOversusSTATE OF U.P.

                         [2016] 4 S.C.R. 627



                           NANKAUNOO                                       A
                                  v.
                           STATE OF U.P.
                  (Criminal Appeal No. 46of2016)
                         JANUARY 19, 2016                                  B

[T.S. THAKUR, CJI, A.K. SIKRI AND R. BANUMATHI, JJ.]
       Penal Code, 1860: s.302 - Murder - Victim-deceased barber
by profession - Accused went to his shop for haircut - He insisted
preference over other customers which victim refused and accused           c
left the shop threatening the victim - In the evening when the victim
went to the field to attend to nature :5 call, accused fired at him with
his pistol - Gun shot hit on lower part of thigh of the victim -
Deceased died of shock and hemorrhage later in hospital -
Conviction by courts below u/s.302 - Appeal against conviction -
Held: The weapon used and the manner in which attack was made              D
and the injury was inflicted due to premeditation clearly establish
that the appellant intended to cause injury - The injury was however
on non-vital organ - In view of nature of injury and absence of
evidence elicited from the doctor that the said injury was sufficient
in the ordinary course of nature to cause death, it is a fit case for
                                                                           E
conviction uls.304 Part I - Conviction modified to one uls. 304
Part I
     Partly allowing the appeal, the Court
     HELD: Intention is different from motive. It is the intention
with which the act is done that makes a difference in arriving at a        F
conclusion whether the offence is culpable homicide or murder.
The third clause of Section 300 IPC consists of two parts.
Under the first part it must be proved that there was an intention
to inflict the injury and under the second part it must be proved
that the injury was sufficient in the ordinary course of nature to
                                                                           G
cause death. The emphasis in clause three of Section 300 IPC
is on the sufficiency of the injury in the ordinary cou..Se of nature
to cause death. The sufficiency is the high probability of death in
the ordinary course of nature. When the sufficiency exists and
death follows, causing of such injury is intended and causing of
such offence is murder. For ascertaining the sufficiency of the            H
                                627
628             SUPREME COURT REPORTS                      (2016) 4 S.C.R.


A     injury, sometimes the nature of the weapon used, sometimes
      the part of the body on which the injury is caused and sometimes
      both are relevant. The deceased sustained gunshot wound of
      entry 1-112" x 1-112" on the back and inner part of left thigh, six
      gunshot wounds of exit each 113" x 113" in size in front and
      middle left thigh. The injury was on the inner part of left thigh,
B
      which is the non-vital organ. Keeping in view the situs and nature
      of injury and in the absence of evidence elicited from the doctor
      thatthe said injury was sufficient in the ordinary course of nature
      to cause death, it is a fit case where the conviction of the
      appellant under Section 302 IPC should be under Section 304
c     Part 1 IPC. The conviction of the appellant under Section 302
      IPC is modified as conviction under Section 304 Part 1 IPC and
      the appellant is sentenced to undergo ten years rigorous
      imprisonment. [Paras 11 to 14) [631-F-G; 633-B, D, F, G, H; 634-
      A-B]
D            Jai Prakash v. State (Delhi Administration) 1991 (1)
             SCR 202 : (1991) 2 SCC 32 - relied on.
                              Case Law Reference
             1991 (1) SCR 202            relied on        Para 11
 E         CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.
      46 of2016.
            From the Judgment and Order dated 16.05.2013 of the High Court
      of Judicature at Allahabad Lucknow Bench, Lucknow in Criminal Appeal
      No. 775 of 1981.
 F          Kapil Arora, Ms. Ekshita Choudhary, Ms. Kum Kum Sen, Advs.
      for the Appellant.
             Ms. Pragati Neekhra, Mukul Singh, Adv. for the Respondent.
             The Judgment of the Court was delivered by
G            R. BANUMATHI, J. I. Leave granted.
            2. This appeal arises out of the judgment dated 16.05.2013 passed
      by the High Court of Judicature at Allahabad, Lucknow Bench in Criminal
      Appeal No. 775 of 1981, whereby the High Court affirmed the conviction
      of the appellant-accused under Section 302 IPC and also sentence of
H     imprisonment for life imposed on him.
                  NANKAUNOO v. STATE OF U.P.                                  629
                      [R. BANUMATHI, J.]

      3. Briefly stated case of the prosecution is as under:- Deceased-       A
Chhedi Lal was running a barber shop in Kurari Khurd Market. On
18.02.1981, the appellant visited the shop ofChhedi Lal and asked for a
haircut. An altercation took place between the two 2 when appellant
insisted the deceased for haircut claiming preference over other
customers; but the deceased-Chhedi Lal declined his demand. The
                                                                              B
appellant felt insulted and left the barber shop threatening the deceased.
At around 5.00 p.m., deceased-Chhedi Lal closed the shop and went
back home. Later at 6.00 p.m., the deceased went towards the canal
lying in the western side of the village abadi to answer the nature's call.
When the deceased reached near the eastern mend of the grove of
Ishwari, the appellant emerged from the northern side carrying a pistol        c
in his hand and threatened the deceased as he had insulted the appellant
in the market and that he would not spare him alive. The deceased fled
towards the west to save himself and appellant fired from his pistol
which hit the deceased on his left thigh and he had fallen down. The
incident was witnessed by Janoo-PW2, Udan-PW3 and Muneshwar.
                                                                               D
Also father of the deceased namely Kishore-PWI and his son-Ram Pal
saw the incident when they were returning from their field. On the alarm
raised by the deceased and the witnesses, the appellant fled away from
the scene. The deceased was taken on a cot to his house and on the
narration of incident by Ki shore-the father of the deceased, the complaint
was written by Shiv Pujan Singh. Thereafter, deceased was taken to             E
Police Station-Achal Ganj, where FIR (Ex. Ka-I) bearing Crime No.37/
81 dated 18.02.1981 was registered against the appellant under Section
307 !PC. SI-Ravinder Prasad Yadav (PW-6) recorded the statement of
Chhedi Lal who was lying injured on the kharkhara outside the Police
3 Station and the deceased was sent to Achal Ganj Hospital from where
he was referred to District Hospital Unnao; but the deceased died on
                                                                               F
the way to the hospital. FIR was altered from Section 307 !PC to Section
302 !PC and further investigation was taken up. After inquest by the
police, post mortem was conducted by Dr. J.N. Bajpai (PW-4) at District
Hospital Unnao on 19 .02.1981 at 3 .30 p.m. PW-4-Dr. Bajpai noted a
gunshot would of entry 'h" x 'h" on the back and inner part of left thigh      G
and six gunshot wounds of exit each 1/3" x 1/3" in size in front and
middle left thigh. Dr. J. N. Bajpai (PW-4) opined that the death was due
to shock and hemorrhage due to injuries of firearm. After completion of
 investigation, chargesheet was filed against the appellant u11der Section
302 !PC. After committal of the case to the Sessions Court, charge was
                                                                               H
630            SUPREME COURT REPORTS                           [2016] 4 S.C.R.


A     framed against the appellant under Section 302 IPC.
           4. To bring home the guilt of the accused-appellant, prosecution
      has examined in all eight witnesses and exhibited the material object on
      record. The incriminating evidence and circumstances were put to the
      appellant under Section 313 Cr.P.C. and the accused denied all of them
B     and pleaded that he was falsely implicated. Upon consideration of the
      evidence, the Sessions Judge, Unnao found the appellant guilty of the
      offence under Section 302 !PC and sentenced him to undergo
      imprisonment for life. Being aggrieved, the appellant preferred appeal
      before the High Court which was dismissed by the impugned judgment.

c           5. Learned counsel for the appellant Mr. Kapil Arora submitted
      that the prosecution could not have relied on the testimony of PW s I, 2
      and 3 as PW-1-Kishore, father of the deceased, is an interested witness
      and PWs 2 and 3 are the inimical interested witnesses and the trial court
      was not right in basing the conviction of the appellant on the testimony
      PWs 1 to 3 and the High Court erred in confirming the conviction. It
D     was further contended that the courts below failed to take note of the
      factthat the alleged weapon of murder 'countrymade pistol' was never
      recovered by the investigating officer and in the absence of clear
      connection of the weapon used for crime and resultant injury, the
      prosecution cannot be said to have proved its case beyond reasonable
 E    doubt.
           6. Per contra, learned counsel for the respondent-State Ms. Pragati
      Neekhra submitted that witnesses have consistently deposed that the
      appellant threatened the deceased that he would not be spared alive and
      thereafter fired shot from his loaded pistol and medical evidence amply
 F    corroborates the version of the eye witnesses and the courts below rightly
      convicted the appellant under Section 302 !PC.
            7. We have carefully considered the rival contentions and perused
      the impugned judgment and the material on record.
            8. PW-1 Kishore, PW-2 Janoo and PW-3 Udan have given
 G    consistent version about the occurrence that the appellant fired at the
      deceased-Chhedi Lal with 'countrymade pistol' which he was carrying
      5 in his hand. Despite the searching cross-examination, nothing substantial
      was elicited from the witnesses to discredit their testimony. In the context
      ofunimpeachable oral evidence coupled with the medical evidence that
      deceased-Chhedi Lal met with homicidal death due to gunshot injuries,
H
                  NANKAUNOO v. STATE OF U.P.                                   631
                      [R. BANUMATHI, J.]

trial court rightly held that the appellant was responsible for the death of   A
Chhedi Lal. High Court rightly agreed with the finding of the trial court
that PWs 1to3 were reliable witnesses. Having heard the learned counsel
for the parties and on going through the record, we do not find any
reason to disbelieve the evidence of eye witnesses-PWs 2 and 3.
      9. Learned counsel for the appellant contended that the courts            B
below failed to take note of the fact that the alleged weapon
'countrymade pistol' was never recovered by the investigating officer
and in the absence of any clear connection between the weapon used
for crime and ballistic report and resultant injury, the prosecution cannot
be said to have established the guilt of the appellant. In the light of
unimpeachable oral evidence which is amply corroborated by the medical
                                                                                c
evidence, non-recovery of'countrymade pistol' does not materially affect
the case of the prosecution. In a case of this nature, any omission on the
part of the investigating officer cannot go against the prosecution case.
Story of the prosecution is to be examined dehors such omission by the
investigating agency. Otherwise, it would shake the confidence of the           D
people not merely in the law enforcing agency but also in the
administration ofjustice.
      I 0. Learned counsel for the appellant then contended that the
gunshot injury was on the lower part of the left thigh which is a non-vital
organ and it cannot be said that the appellant intended to cause the death      E
of the deceased and therefore the conviction of the appellant under
Section 302 IPC is not sustainable. In the light of the above contention,
the question falling for consideration is whether the conviction of the
appellant under Section 302 IPC is sustainable.
      11. Intention is different from motive. It is the intention with which    F
the act is done that makes a difference in arriving at a conclusion whether
the offence is culpable homicide or murder. The third clause of Section
300 !PC consists of two parts. Under the first part it must be proved that
there was an intention to inflict the injury that is present and under the
second part it must be proved that the injury was sufficient in the ordinary
course of nature to cause death. Considering the clause thirdly of Section      G
300 !PC and reiterating the principles in Virsa Singh s case, in Jai
Prakash v. State (Delhi Administration) (1991) 2 SCC 32, para (12),
this Court held as under:-
       "12. Referring to these observations, Division Bench of this Court
       in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC               H
632      SUPREME COURT REPORTS                           [2016] 4 S.C.R.



A     p. 620, para 7)
         "These observations of Vivian Bose, J. have become locus
         classicus. The test laid down in Virsa Singh case, AIR 1958
         SC 465 forthe applicability of Clause Thirdly is now ingrained
         in our legal system and has become part of the rule of law."
B     The Division Bench also further held that the decision in Virsa
      Singh case AIR 1958 SC 465 has throughout been followed as
      laying down the guiding principles. In both these cases it is clearly
      laid down that the prosecution must prove (I) that the body injury
      is present, (2) that the injury is sufficient in the 7 ordinary course
c     of nature to cause death, (3) that the accused intended to inflict
      that particular injury that is to say it was not accidental or
      unintentional or that some other kind of injury was intended. In
      other words Clause Thirdly consists of two parts. The first part is
      that there was an intention to inflict the injury that is found to be
      present and the second part that the said injury is sufficient to
D     cause death in the ordinary course of nature. Under the first part
      the prosecution has to prove :from the given facts and circumstances
      that the intention of the accused was to cause that particular injury.
      Whereas the second part whether it was sufficient to cause death
      is an objective enquiry and it is a matter of inference or deduction
 E    :from the particulars of the injury. The language of Clause Thirdly
      of Section 300 speaks of intention at two places and in each the
      sequence is to be established by the prosecution before the case
      can fall in that clause. The 'intention' and 'knowledge' of the
      accused are subjective and invisible states of mind and their
      existence has to be gathered from the circumstances, such as the
 F    weapon used, the ferocity ofattack, multiplicity of injuries and all
      other surrounding circumstances. The framers of the Code
      designedly used the words 'intention' and 'knowledge' and it is
      accepted that the knowledge of the consequences which may
      result in doing an act is not the same thing as the intention that
 G    such consequences should ensue. Firstly, when an act is done by
      a person, it is presumed that he must have been aware that certain
      specified harmful consequences would or could follow. But that
      knowledge is bare awareness and not the same thing as intention
      that such consequences should ensue. As compared to
      'knowledge', 'intention' requires something more than the mere
H
                  NANKAUNOO v. STATE OF U.P.                                    633
                      [R. BANUMATHI, J.]

      foresight of the consequences, namely the purposeful doing of a            A
      thing to achieve a particular end."
      12. The emphasis in clause three of Section 300 IPC is on the
sufficiency of the injury in the ordinary course ofnature to cause death.
The sufficiency is the high probability of death in the ordinary course of
nature. When the sufficiency exists and death follows, causing of such           B
injury is intended and causing of such offence is murder. For ascertaining
the sufficiency of the injury, sometimes the nature of the weapon used,
sometimes the part of the body on which the injury is caused and sometimes
both are relevant. Depending on the nature of weapon used and situs of
the injury, in some cases, the 8 sufficiency of injury to cause death in the
ordinary course ofnature,must be proved and cannot be inferred from
                                                                                 c
the fact that death has, in fact, taken place.
      13. Keeping in view the above principles, when we examine the
facts of the present case, the deceased sustained gunshot wound of
entry 1-1/2" x 1-112" on the back and inner part ofleft thigh, six gunshot
wounds of exit each 1/3" x I /3" in size in front and middle left thigh.         D
Due to the occurrence in the morning at the barber shop of the deceased,
the appellant emerged from the northern side of the grove carrying pistol
in his hand and fired at the deceased. The weapon used and the manner
in which attack was made and the injury was inflicted due to premeditation
clearly establish that the appellant intended to cause the injury. Once it is    E
established that the accused intentionally inflicted the injury, then the
offence would be murder, if it is sufficient in the ordinary course of
nature to cause the death. We find substance in the contention of the
learned counsel for the appellant the injury was on the inner part ofleft
thigh, which is the non-vital organ. Having regard to the facts and
circumstances of the case that the gunshot injury was caused in the              F
inner part of left thigh, the sufficiency of injury to cause death must be
proved and cannot be inferred from the fact that death has taken place.
But the prosecution has not elicited from the doctors that the gunshot
injury on the inner part of left thigh caused rupture of any important
blood vessel and that it was sufficient in the ordinary course ofnature to       G
9 cause the death. Keeping iii view the situs and nature of injury and in
the absence of evidence elicited from the doctor that the said injury was
 sufficient in the ordinary course of nature to cause death, we are of the
view that it is a fit case where the conviction of the appellant under
 Section 302 !PC should be under Section 304 Part I IPC.
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634             SUPREME COURT REPORTS                          [2016] 4 S.C.R.



A           14. In the result, the conviction of the appellant under Section 302
      IPC is modified as conviction under Section 304 Part I IPC and the
      appellant is sentenced to undergo ten years rigorous imprisonment and
      the appeal is partly allowed.
      Devika Gujral                                         Appeal partly allO\,·ed.
B