Holding

The conviction under Section 302 IPC is inappropriate; the appellant is guilty of culpable homicide not amounting to murder under Section 304 Part II IPC.

Summary

On Diwali night the deceased Ramesh was playing cards when appellant Pappu @ Hari Om and co-accused Bal Kishan arrived, quarrelled and later the appellant fired a 12‑bore gun, striking the deceased on the right shoulder/chest. The victim died in hospital. The trial court convicted the appellant under Section 302 IPC (murder) and the High Court affirmed. The Supreme Court examined whether the injury and the appellant's intent satisfied the test for murder under Sections 299 and 300, or whether it fell under culpable homicide not amounting to murder under Section 304 Part II. Relying on the degree of probability of death and the nature of the injury, the Court held that the appropriate conviction was under Section 304 Part II IPC, with an eight‑year sentence deemed to have been served. Consequently, the appellant was ordered to be released and the appeal disposed of.

Issues considered

The correct offence under the Indian Penal Code – whether the facts constitute murder under Section 302/Section 300 or culpable homicide not amounting to murder under Section 304 Part II.
Whether the appellant’s intention and the nature of the gunshot injury satisfy the ‘sufficient in the ordinary course of nature to cause death’ test of Section 300(3).
The appropriate quantum of punishment in view of the injury and the appellant’s custody already served.

Legislation cited

Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304

Subjects

murderculpable homicide not amounting to murderSection 304 Part IIIPC interpretationintentprobability of deathgunshot injurysentencingappeal

Judgment

[2009] 5 S.C.R. 230

A PAPPU @ HARi OM
v.
STATE OF MADHYA PRADESH
(Criminal Appeal No. 599 of 2009)

B
MARCH 31, 2009
[DR. ARIJIT PASAYAT, D.K. JAIN AND DR.
MUKUNDAKAM SHARMA, JJ.]
-
Penal Code, 1860: s.304(Part II) - Gun shot injuries on
c shoulder - Resulting in death - Conviction under s.302 -
Affirmed by High Court -- Held: Considering the part of body
where bullet fired hit the deceased,· appropriate conviction
would be under s.304 Part II - Custodia/ sentence of 8 years
would meet ends of justice - Accused having suffered custody
D of more than that period ordered to be released forthwith.
;,. ;

Prosecution case was that deceased along with
prosecution witnesses was playing cards on Diwali night.
Appellant and co-accused came there and asked them to
permit them to play. Deceased objected to it which gave
E
rise to quarrel between him and the appellant and co-
accused. Both appellant and co-accused went away and
after some time, they returned back. Appellant had 12
bore gun in his hand. Appellant fired gun shots which
caused injuries on the right shoulder of deceased and he
F fell down. He was taken to hospital where he was
y
declared dead. Trial Court convicted appellant under
s.302 IPC. High Court affirmed the conviction. Hence the
appeal.

G Disposing of the appeal, the Court

HELD:1. There was no reason to discard the
prosecution version. PW-10 who reached the spot after
hearing the sound of firing stated that when he reached
H 230
.

PAPPU @HARi OM v. STATE OF MADHYA PRADESH 231

the spot he found that deceased was lying in an injured A
condition:The deceased told that the accused persons
had fired. Since there was wound on the chest of the
· deceased he was taken to the hospital. In his evidence
PW-14 stated that on the night of occurrence at about
..... -;
9.30 p.m. which was Diwali night he was playing cards B
with four others, co-accused and the appellant came
there. There was exchange of hot words between the
accused with the deceased and the appellant fired the
shot and caused injuries on the chest of the deceased
who died while being taken to the hospital. [Para 6] [234- c
E-G]

2. It is the degree of probability of death which

- 1'
determines whether a culpable homicide is of the gravest,
medium or the lowest degree. The word 'likely' in clause
(b) of Section 299 conveys the sense of probable as
distinguished from a mere possibility. The words "bodily
D

injury....... sufficient in the ordinary course of nature to
cause death" mean that death will be the "most
probable" result of the injury, having regard to the
ordinary course of nature. For cases to fall within clause E
(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. (Paras 10 and 11] (238-A-C]
F
'( Rajwant and Anr. v. State of Kera/a AIR (1966) SC 1874
and Virsa Singh v. State of Punjab AIR (1958) SC 465, relied
on.

3. Under clause thirdly of Section 3001PC, culpable
homicide is murder, if both the following conditions are G
satisfied: i.e. (a) that the act which causes death is done

.. with the intention of causing death or is done with the
' intention of causing a bodily injury; and (b) that the injury
intended to be inflicted is sufficient in the ordinary course
of nature to cause death. It must be proved that there was H
232 SUPREME COURT REPORTS [2009] 5 S.C.R.

A 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. Considering the
part of the body where the bullet fired hit the deceased,
B the appropriate conviction would be under Section 304
Part II IPC. Custodial sentence of 8 years would meet the
....
ends of justice. The record showed that the appellant has
suffered custody of more than that period. He shall be
released forthwith. (Paras 15 and 20] (240-B-D; 241-E]
'
C.
State of Andhra Pradesh v. Rayavarapu Punnayya and
Anr. (1976) 4 SCC 382; Abdul Waheed Khan@ Waheed and
Ors. v. State of Andhra Pradesh JT (2002) 6 SC 274;
Augustine Saldanha v. State of Kamataka (2003) 1 SCC 472;
Thangaiya v. State of Tamil Nadu (2005) 9 SCC 650 and
D Sunder Lal v. State of Rajasthan (2007) 1 SCC 371, relied
't
on.

Case Law Reference:
AIR (1966) SC 1874 relied on Para 11
E
AIR (1958) SC 465 relied on Para 12
(1976) 4 sec 382 relied on Para 19 '"
JT (2002) 6 SC 27 4 relied on Para 19
F
(2003) 1 sec 472 relied on Para 19
(2005) 9 sec 650 relied on Para 19
(2007) 1 sec 371 relied on Para 19
G CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 599 of 2009.

From the Judgment & Order dated 23.4.2007 of the High
Court of Madhya Pradesh, Jabalpur Bench at Gwalior in
' ..
H
- PAPPU@ HARi OM v. STATE OF MADHYA PRADESH 233

Criminal Appeal No. 23 of 1998. A

Narendra Kumar (SCLSC) for the Appellant.

C.D. Singh, S. Chaudhary, V. Vandhan, Aditya Singh and
""" Upsana Nath for the Respondents.
B
The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of the
Division Bench of the Madhya Pradesh High Court, Jabalpur c
Bench, which affirmed the conviction of the appellant for the
offences punishable under Sections 302 of the Indian Penal
Code, 1860 (in short the 'IPC'). He was sentenced to undergo
imprisonment for life and to pay a fine of Rs.500/- with default
stipulation. Accused Bal Kishan was convicted for offence D
• 7 punishable under Section 302 read with Section 34 IPC. The
convictions were recorded by learned Additional Sessions
Judge, Gohad, Bhind, M.P. in Sessions Case No.11/95. The
conviction as recorded by the Trial Court was assailed by two
separate appeals. As accused-appellant Bal Kishan died E

- during the pendency of the appeal, the same stood abated.

3. Prosecution version in a nutshell is as follows:

On 2.11.1994 at about 9.30 p.m. Ram Babu (PW-1),
Jagdish (PW-12), Sanjeev Kumar (PW-14) and Ramesh F
·t
(hereinafter referred as 'deceased' were playing cards near the
house of Kishanlal under an electric pole. The appellant Pappu
@ Hari Om alongwith co-accused Bal Kishan came there and
asked the persons who were playing cards to permit them to
play with them. Ramesh objected to it and this gave rise to G
quarrel between Ramesh and the accused Pappu @ Hari Ram
& Bal Kishan. Both Balkishan and Pappu @ Hari Om went away
after abusing Ramesh. After sometime, they returned back from
the lane of Rahim Khan Ki Gali. Papu@ Hari Om had a 12
H
234 SUPREME COURT REPORTS [2009] 5 S.C.R.
---
A bore gun in his hand. Both accused abused Ramesh and
Pappu @ Hari Ram fired gun shots, which caused injuries on
the right shoulder of Ramesh and he fell down. Bablu (PW-2)
and other persons took him to the hospital on a handcart, where
I-
Ramesh was declared dead. The report of this incident was
B lodged by Rambabu (PW-1 ), which is marked as Ex.P-1. On
the basis of this report, Crime No.261/94 was registered
against the accused.

4. Before the High Court the basic stand was that the
independent witnesses did not support the prosecution version
c and it was only the evidence of PW-14 who supported the
prosecution version. Additionally, it was submitted that the case
at hand is not one which is covered by Section 302 IPC. The
High Court did not find any substance in the aforesaid plea and
dismissed the appeal.
D
~ ~
5. Learned counsel for the appellant reiterated the plea
taken before the High before this Court. Learned counsel for
the respondent-State supported the judgment.

E 6. Coming to the plea relating to acceptability of evidence,
PW-10 who reached the spot after hearing the sound of firing
stated that when he reached the spot he found Ramesh was
lying in an injured condition and was told by the deceased that
the accused persons had fired. Since there was wound on the
chest of the deceased he was taken to the hospital. In his
F
evidence Sanjeev Kumar (PW-14) stated that in the night of
occurrence at about 9:30 p.m. which was Diwali night he was
playing cards with four others, Balkishan and the present
appellant came there. There was exchange of hot words
between the accused with the deceased and the appellant fired
G the shot and caused injuries on the chest of the deceased who
died while being taken to the hospital. There is no reason to
discard the prosecution version.

7. This brings us to the crucial question as to which was
H the appropriate provision to be applied. In the scheme of the
PAPPU@ HARi OM v. STATE OF MADHYA PRADESH 235
[DR. ARIJIT PASAYAT, J.]
IPC culpable homicide is genus and 'murder' its specie. All A
'murder' is 'culpable homicide' but not vice-versa. Speaking
generally, 'culpable homicide' sans 'special characteristics of
murder is culpable homicide not amounting to murder'. For the
purpose of fixing punishment, proportionate to the gravity of the
generic offence, the IPC practically recognizes three degrees B
of culpable homicide. The first is, what may be called, 'culpable
homicide of the first degree'. This is the gravest form of culpable
homicide, which is defined in Section 300 as 'murder'. The
second may be termed as 'culpable homicide of the second
degree'. This is punishable under the first part of Section 304. c
Then, there is 'culpable homicide of the third degree'. This is
the lowest type of culpable homicide and the punishment
w. provided for it is also the lowest among the punishments
provided for the three grades. Culpable homicide of this degree

- .j
is punishable under the second part of Section 304.

8. The academic distinction between 'murder' and
'culpable homicide not amounting to murder' has always vexed
D

the Courts. The confusion is caused, if Courts losing sight of
the true scope and meaning of the terms used by the legislature
in these sections, allow themselves to be drawn into minute E
abstractions. The safest way of approach to the interpretation
----. and application of these provisions seems to be to keep in
focus the keywords used in the various clauses of Sections 299
and 300. The following comparative table will be helpful in
appreciating the points of distinction between the two offences. F
1
Section 299 Section 300

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

H
236 SUPREME COURT REPORTS [2009] 5 S.C.R.

A INTENTION

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

(b) with the intention of causing (2) with the intention of
B such bodily injury as is likely causing such bodily
injury to cause death; or
as the offender knows
to be likely to cause the
death of the person to
c whom the harm
is caused; or

(3) With the intention of
causing bodily injury to
D any person and the
bodily injury intended to
be inflicted is sufficient
.._ -
in the ordinary course of
nature to cause death;
or
E
KNOWLEDGE

****

(c) with the knowledge (4) with the knowledge
F
that the act is likely to that the act is so
cause death. imminently dangerous
that it must in all
probability cause death
or such bodily injury as
G is likely to cause death,
and without any excuse
for incurring the risk of
causing death or such
injury as is mentioned
H above.
'·
~ PAPPU @HARi OM v. STATE OF MADHYA PRADESH 237
[DR. ARIJIT PASAYAT, J.]

9. Clause (b) of Section 299 corresponds with clauses (2) A
!'
and (3) of Section 300. The distinguishing feature of the mens
rea requisite under clause (2) is the knowledge possessed by
I 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 B
such harm would not in the ordinary way of nature be sufficient
to cause death of a person in normal health or condition. It is
noteworthy that the 'intention to 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 c
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.

- I
-!
10. Clause (b) of Section 299 does not postulate any such D
knowledge on the part of the offender. Instances of cases falling
under clause (2) of Section 300 can be where the assailant
causes death by a fist blow intentionally given knowing that the
victim is suffering from an enlarged liver, or enlarged spleen or
diseased heart and such blow is likely to cause death of that E
particular person as a result of the 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 F
offence will not be murder, even if the injury which caused the
death, was intentionally given. In clause (3) of Section 300,
instead of the words 'likely to cause death' occurring in the
corresponding clause (b) of Section 299, the words "sufficient
in the ordinary course of nature" have been used. Obviously, G
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 clause (3) of Section 300 is one H
238 SUPREME COURT REPORTS [2009] 5 S.C.R.

A of the degree of probability of death resulting from the, intended
bodily injury. To put it more broadly, it is the degree of probability
..
of death which determines whether a culpable homicide is of
the gravest, medium or the lowest degree. The word 'likely' in
clause (b) of Section 299 conveys the sense of probable as
B 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

C
injury, having regard to the ordinary course of nature.

11. 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 and Anr. ....
v. State of Kera/a, (AIR 1966 SC 1874) is an apt illustration of
this point.
D
12. In Virsa Singh v. State of Punjab, (AIR 1958 SC 465),
Vivian Bose, J. speaking for the Court, explained the meaning
and scope of clause (3). It was observed that the prosecution
must prove the following facts before it can bring a c_ase under
E Section 300, "thirdly". First, it must establish quite objectively,
that a bodily injury is present; secondly the nature of the injury
must be proved. These are purely objective investigations.
.
Thirdly, it must be proved that there was an intention to inflict
that particular injury, that is to say, that it was not accidental or
F unintentional or that some other kind of injury was intended.
Once these three elements are proved to be present, the
enquiry proceeds further, and fourthly it must be proved that the
injury of the type just described made up of the three elements
set out above was sufficient to cause death in the ordinary
G course of nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the
offender.
•
13. The ingredients of clause "Thirdly" of Section 300, IPC
were brought out by the illustrious Judge in his terse language
H as follows:
-I

PAPPU@ HARi OM v. STATE OF MADHYA PRADESH 239
[DR. ARIJIT PASAYAT, J.]
"To put it shortly, the prosecution must prove the following A
--< facts before it can bring a case under Section 300,
"thirdly".

First, it must establish, quite objectively, that a bodily injury
• is present. B
Secondly, the nature of the injury must be proved. These
are purely objective investigations .
....
Thirdly, it must b~ proved that there was an intention to
r7
inflict that particular bodily injury, that is to say that it was c
~ not accidental or unintentional, or that some other kind of
injury was intended.

Once these three elements are proved to be present, the

--'>
. -I enquiry proceeds further and,
D
Fourthly, it must be proved that the injury of the type just
described made up of the three elements set out above
is sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential
and has nothing to do with the intention of the offender." E

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

"The question is not whether the prisoner intended to inflict
a serious injury or a trivial one but whether he intended to F
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, the only G
possible inference is that he intended to inflict it. Whether
he knew of its seriousness or intended serious
consequences, is neither here or there. The question, so
far as the intention is concerned, is not whether he intended
to kill, or to inflict an injury of a particular degree of H
240 SUPREME COURT REPORTS [2009] 5 S.C.R.

A 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."

15. These observations of Vivian Bose, J. have become
8
locus classicus. The test laid down by Virsa Singh's case
(supra) for the applicability of clause "Thirdly" is now ingrained
in our legal system and has become part of the rule of law.
Under clause thirdly of Section 300 IPC, culpable homicide is
murder, if both the following conditions are satisfied: i.e. (a) that
c the act which causes death is done with the intention of causing
death or is done with the intention of causing a bodily injury;
and (b) that the injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death. It must be proved that
there was an intention to inflict that particular bodily injury which,
D 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.

16. Thus, according to the rule laid down in Virsa Singh's
E case (supra), even if the intention of accused was limited to the
infliction of a bodily injury sufficient to cause death in the ordinary
~
course of nature, and did not extend to the intention of causing
death, the offence would be murder. Illustration (c) appended
to Section 300 clearly brings out this point.
F 17. Clause (c) of Section 299 and clause (4) of Section
300 both require knowledge of the probability of the act causing
death. It is not necessary for 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
G be applicable where the knowledge of the offender as to the
probability of death of a person or persons in general as
distinguished from a particular person or persons - being
caused from his imminently dangerous act, approximates to a
practical certainty. Such knowledge on the part of the offender
H must be of the highest degree of probability, the act having
PAPPU@ HARi OM v. STATE OF MADHYA PRADESH 241
[DR. ARIJIT PASAYAT, J.]
been committed by the offender without any excuse for incurring A
the risk of causing death or such injury as aforesaid.

18. The above are only broad guidelines and not cast iron
imperatives. In most cases, their observance will facilitate the
task of the Court. But sometimes the facts are so intertwined 8
and the second and the third stages so telescoped into each
other that it may not be convenient to give a separate treatment
to the matters involved in the second and third stages.

19. The position was illuminatingly highlighted by this Court
in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. C
(1976 (4) SCC 382), Abdul Waheed Khan @ Waheed and
Ors. v. State of Andhra Pradesh (JT 2002 (6) SC 274),
Augustine Saldanha v. State of Kamataka (2003 (10) SCC
' 472), Thangaiya v. State of Tamil Nadu (2005 (9) SCC 650)
--i and Sunder Lal v. State of Rajasthan (2007 (10) SCC 371). D

20. Considering the part of the body where the bullet fired
hit the deceased, in our considered opinion the appropriate
conviction would be under Section 304 Part II IPC. Custodial
sentence of 8 years would meet the ends of justice. It appears E
from the record that the appellant has suffered custody of more
than that period. He shall be released forthwith unless required
to be custody in any other case.
D.G. Appeal disposed of.

-