Holding

The conviction under Section 302 IPC cannot be maintained and must be reduced to conviction under Section 304 Part II IPC.

Summary

The appellant Rajinder was convicted for the death of his nephew Subhash, who died from a thigh wound inflicted by a firearm. The trial court and High Court upheld a conviction under Section 302 IPC (murder) and Section 27 of the Arms Act. On appeal, the Supreme Court examined the distinction between murder and culpable homicide not amounting to murder, focusing on the mens rea requirements of Sections 299 and 300 and the degree of probability of death from the injury. It held that the injury, though dangerous, was not sufficient in the ordinary course of nature to cause death, and the appellant lacked the requisite knowledge or intention for murder. Consequently, the conviction under Section 302 was set aside and substituted with conviction under Section 304 Part II IPC, imposing a seven‑year imprisonment. The appeal was allowed.

Issues considered

The appropriate IPC provision for the offence – whether Section 302 (murder) or Section 304 Part II (culpable homicide not amounting to murder) applies.
The interpretation of Sections 299 and 300 IPC regarding intention, knowledge and the probability of death.
The relevance of the nature of the injury (thigh wound) to the classification of the offence.

Legislation cited

Arms Act, 1959s. 27
Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304, s. 326

Subjects

murderculpable homicideIPC Section 299IPC Section 300IPC Section 302IPC Section 304Arms Actintentionprobability of deathfirearm injury

Judgment

RAJINDER. A
v.
STATE OF HARYANA

JUNE 5, 2006

[ARJJIT PASAYAT AND C.K. THAKKER, JJ.] B

Penal Code, 1860:

Sections 304-11 and 302-Culpable homicide-Accused caused death of
PW8 's nephew by using fire-arm-Deceased suffered thigh injury which the C
Doctor opined was dangerous to life-Deceased succumbed to the injury
subsequently-Held: Courts below erred in convicting accused under s.302.
!PC-Conviction under s. 304-11 with custodial sentence ofseven years justified
in facts and circumstances of the case-Arms Act, 1959-Section 27.

Sections 299 & 300- 'Murder' and 'Culpable homicide not amounting
D
to murder-Distinction between-Corresponding clauses of ss.299 and 300
discussed.

According to the prosecution, Appellant killed the nephew of PW8
by firing gunshot as he suspected that the deceased gave secret information E
against him to the police. ,\ppellant also bore grudge against the deceased
as his father took on lease land belonging to the Appellant's brother.

The incident occurred at night when deceased and PW8 were going
by the side of their village. Deceased suffered thigh injury, which the
Doctor opined was dangerous to life. He subsequently succumbed to the F
injury in the hospital. Prosecution examined 14 witnesses. PW8 was stated
to be eye-witness. Trial Court convicted Appellant under Section 302 IPC
and under Section 27 of the Arms Act, 1959. The conviction was upheld
by the High Court. Hence the present appeal.

Allowing the appeal, the Court G
HELD: 1. In the scheme of the IPC culpable homicide is genus and
'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa.
Speaking generally, 'culpable homicide' sans 'special characteristics of

5 H
6 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A 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 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
B 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
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 (11-F-H; 12-A)

2.1. The academic distinction between 'murder' and 'culpable
homicide not amounting to murder' has always vexed the Courts. 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
D clauses of Sections 299 and 300. (12-8, CJ

2.2. Clause (b) of Section 299 corresponds with clauses (2) and (3)
of Section 300. The distinguishing feature of the mens rea requisite under
clause (2) is the knowledge possessed by the offender regarding the
particular victim being in such. a peculiar condition or state of health that
E the internal harm caused to him is likely to be fatal, notwithstanding the
fact that such harm would not in the ordinary way of nature be sufficient
to cause death of a person in normal health or condition. 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
F knowledge of the likelihood of such injury causing the death of the
particular victim, is sufficient to bring the killing within the ambit of this
clause. This aspect of clause (2) is borne out by illustration (b) appended
to Section 300. (13-C, DJ

2.3. Clause (b) of Section 299 does not postulate any such knowledge
G 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 particular person as a result of the rupture of the liver, or
H spleen or the failure of the hea1rt, as the case may be. If the assailant had
no such knowledge about the disease or special frailty of the \'ictim, nor
RAJINDER v. STATEOFHARYANA 7
;
an intention to cause death or bodily injury sufficient in the ordinary A
course of nature to cause death, the offence will not be murder, even if
the injury which caused the death, was intentionally given. In clause (3)
of Section 300, instead of the words 'likely to cause death' occurring in
the corresponding clause (b) of Section 299, the words "sufficient in the
ordinary course of nature to cause death" have been used. [13-E-G I
B
2.4. 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
4. miscarriage of justice. The difference between clause (b) of Section 299
and clause (3) of Section 300 is one of the degree of probability of death C
resulting from the intended bodily injury. To put it more broadly, it is
the degree of probability of death which determines whether a culpable
homicide is of the gravest, medium or the lowest degree. The word 'likely'
in clause (b) of Section 299 conveys the sense of probable as distinguished
from a mere possibility. The words "bodily injury.......sufficient in the
ordinary course of nature to cause death" mean that death will be the D
"most probable" result of the injury, having regard to the ordinary course
of nature. [13-G, H; 14-A, Bl

.> 2.5. 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 E
ordinary course of nature. [14-C)

2.6. Under clause thirdly of Section 300 IPC, culpable homicide is
murder, if both the following conditions are satisfied: i.e. (a) that the act
which causes death is done with the intention of causing death or is done F
with the intention of causing a bodily injury; and (b) that the injury
intended to be inflicted is sufficient in the ordinary course of nature to
cause death. It must be proved that there was an intention to inflict that
particular bodily injury which, in the ordinary course of nature, was
sufficient to cause death, viz., that the injury found to be present was the
injury that was intended to be inflicted. (15-G, H; 16-AJ G
2.7. Thus, even ifthe 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. rnustration (c) appended to Section 300 clearly brings out this
point. [16-BI H
8 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.
1,
A 2.8. Clause (c) of Section 299 and clause (4) of Section 300 both
require knowledge of the probability of the act causing death. But clause
(4) of Section 300 would bt~ 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
imminendy dangerous act, approximates to a practical certainty. Such
"
B knowledge on the part of the offender must be of the highest degree of
probability, the act having been committed by the offender without any
excuse for incurring the risk of causing death or such injury as aforesaid.
(16-C-D)

'
c Virsa Singh v. State of Punjab, AIR (1958) SC 465, relied on.

Rajwant and Anr. v. State of Kera/a, AIR (1966) SC 1874, referred
to.

3. The above are only broad guidelines and eot cast iron imperatives.
In most cases, their observance will facilitate the task of the Court. But
D
sometimes the facts are so interwined 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.
(16-D, E)

E State of Andhra Pradesh v. Rayavarapu Punnayya and Anr., (1976) 4
SCC 382; Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra
Pradesh, (2002) 7 SCC 175, Augustine Sa/danha v. State of Karnataka, (20031
10 SCC 472 and Thangiya v. State of TN., (2005) 9 SCC 650, relied on.

4. When the factual background is tested on the principles set out
F above, the inevitable conclusion is that the conviction under Section 302
IPC cannot be maintained and the conviction has to be in terms of Section
304 Part II IPC. Custodial sentence of 7 years would meet the ends of
justice. [16-F, G)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 689
G of 2006.

From the Judgment and Order dated 20.9.2005 of the High Court of
Punjab and Haryana at Chandigarh in Crl. Appeal No. 525-DB of 1998.

H
Naresh Kaushik and Lalita Kaushik for the Appellant.

-
RAJINDER v. STATEOFHARYANA[PASAYAT,J.] 9

Rajeev Gaur Naseem and T.V. George for the Respondent. A
The Judgment of the Court was delivered by

ARIJIT PASA YAT, J. Leave granted.

Appellant calls in question legality of the judgment rendered by a B
Division Bench of the Punjab and Haryana High Court dismissing the appeal
filed by the appellant, upholding the conviction recorded and sentenced
imposed on the appellant by learned Additional Sessions Judge, Hissar, for
alleged commission of offences punishable under Section 302 of the Indian
9 Penal Code, 1860 (in short 'IPC') and Section 27 of the Arms Act 1959, (in
short the 'Arms Act'). The appellant was convicted for the offence punishable C
under Section 302 !PC and sentenced to undergo RI for life and to pay a fine
of Rs. I 0,000/- with default stipulation. He was also convicted in terms of
.·1 Section 27 of the Arms Act and was sentenced to undergo RI for one year
and to pay a fine of Rs.500/ with default stipulation.

Background facts in a nutshell are as follows:
D

Vishnu Ram £PW-8) followed agricultural pursuits at village Tharwa.
His elder brother Prithi Raj lived separately from him. Subhash (hereinafter
referred to as the 'deceased') was the son of said Prithi Raj. About 1Yi years
prior to this occurrence, the police had recovered poppy husk from appellant E
- Rajinder. He suspected that deceased had given secret information to the
police and he had a hand in getting the poppy husk, recovered from him.
Then in the year 1995, Prithi Raj had taken IO acres of land on lease from
Indal Kumar, brother of appellant-Rajinder. Rajinder took ill of it.

On 29.4.1995 at about 7.00 p.m., Vishnu Ram (PW-8) and deceased F
were going to irrigate their fields. Appellant met them on the village phimi.
He declared that deceased had given information to the police regarding the
poppy husk and Prithi Raj had taken on lease the land of his brother and they
shall have to pay price for the same. Vishnu Ram (PW-8) pacified appellant
and he left for the village. Then later at about 9.15 p.m. Vishnu Ram (PW-
8) and deceased were going through their fields looking after the water course. G
Vishnu Ram (PW-8) had a torch with him. When they reached on the culvert
by the side of the village near the road leading to village Pirthala and deceased
was walking ahead of Vishnu Ram (PW-8), appellant was spotted in the torch
light coming from the village side. He was armed with his gun. He enquired
from Vishnu Ram (PW-8) and deceased as to who they were. Vishnu Ram H
10 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A disclosed his own identity and identity of Subhash. Then appellant raised a •
'lalkara' saying that he will teach a lesson to them for giving secret information
to the police and for taking the land on lease. He then fired a shot at Subhash
with his gun, which hit on his right thigh. Subhash fell down on the ground.
Vishun Ram (PW-9) raised alarm. Appellant then ran away towards his house
B by firing shots from the gun. Prithi Raj, elder brother of Vishnu Ram (PW-
8) reached the spot on hearing the alarm. A conveyance was arranged and
Vishnu Ram and Prithi Raj took Subhash to Tohana for treatment.

Dr. H.L. Gupta (PW-9) on 29.4.1995 at I0 a.m. medically examined
the injured. He found the following injury on his body:
'
C "I. A fire arm wound on the right thigh-wound of entry - circular in
shape IV. cm x IV. cm margins were inverted on the postereo-
lateral aspect of the middle of the right thigh. Margins were
greasy and black. Wound of exit-large extensive would I 'Ii x 4"
on the atereo-medial aspect of right thigh (at middle). There
D were severe bleeding from the wound and margins were everted.
There was corresponding tears in the pant.
There was corresponding tear in the pant. Pa1'1, Ex.P 16 was sealed
by the doctor into a parcel and it was given to the police. "

The doctor opined that the injury was dangerous to life. Its duration
E was fresh and it was caused by a fire-arm. Ex.PK is copy of the M.L. report.
Dr. H.L. Gupta had sent ruqas Ex.PM and PL to the police.

Subhash Chander (PW-14) SI/SHO Police Station Tohana on the night
intervening 29/30.4.1995 reci!ived two ruqas Ex.PL and PM from Civil
F Hospital, Tohana. He then went to Civil Hospital Tohana along with other
police officials. Ruqas were accompanied by copy of M.L. report of Subhash.
Vishnu Ram - complainant met PW Subhash Chander SI in the hospital. His
statement Ex.PD was recorded.. He made his endorsement Ex.PD/2 and got
his case registered. Ex.PD/I is the copy of the FIR.

G Subhash succumbed to the injury in the hospital. His dead body was
lying on the trolly in the gallery of the hospital, when Subhash Chander SI
visited the hospital. He prepared Inquest Report Ex.PH on the dead body of
Subhash. Inquest proceedings were attested by Vishnu Ram and Prithi Raj.

Application Ex.PQ was sent through Om Parkash Constable for getting
H the post mortem examination conducted on the dead body of Subhash.
RAJINDER v. STATEOFHARYANA[PASAYAT,J.] 11
, • On 30.4.1995 at 8.30 a.m., Dr. B.B.Lala (PW-IO) conducted post mortem A
examination on the dead body of Subhash, who had expired on 29.4.1995 at
11.50 p.m. in the hospital.

On completion of investigation charge-sheet was filed and the accused
was charged for alleged commission of offence punishable under Section 302
IPC and Section 27 of the Arms Act. B

Prosecution examined 14 witnesses. PW-8 was stated to be eye-witness.
Accused pleaded innocence and false implication. Before the High Court the
•. stand of the accused was that there was delay in sending the first information
report. The alleged motive for commission of offence is not established and
in any event there was only one injury that too on the thigh and, therefore, c
the case is not covered under Section 302 IPC. As noted above Trial Court
found the accused guilty and convicted and sentenced him. In the appeal
before the High Court, the plea raised before the Trial Court was reiterated
before the High Court. The prosecution supported the order of conviction as
recorded by the Trial Court. The High Court on consideration of rival stands D
held that the conviction as recorded and sentenced as awarded do not suffer
any infirmity. The appeal was accordingly dismissed.

In support of the appeal learned counsel for the appellant submitted
that scenario as depicted clearly rules out application of Section 302 !PC. At
the most even if prosecution version is accepted in toto the conviction could E
be under Section 326 !PC. It is submitted that accused has already suffered
custody for more than 6 years and 8 months.

Learned counsel for the State on the other hand supported the impugned
judgment.
F
The crucial question is as to which was the appropriate provision to be
applied. In the scheme of the !PC culpable homicide 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 amounting to murder'. For the purpose of fixing
G
punishment, proportionate to the gravity of the generic offence, the IPC
~·· practically recognizes three degrees of culpable homicide. The first is, what
may be called, 'culpable homicide of the first degree'. This is the gravest
form of culpable homicide, which is defined in Section 300 as 'murder'. The
second may be termed as 'culpable homicide of the second degree'. This is
+-.)
punishable under the first part of S~ction 304. Then, there is 'culpable homicide H
12 SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A of the third degree'. This is the lowest type of culpable homicide and the •
punishment provided for it is also the lowest among the punishments provided
for the three grades. Culpable homicide of this degree is punishable under tht:
second part of Section 304.

The academic distinction between 'murder' and 'culpable homicide not
B amounting to murder' has always vexed the Courts. The confusion is caused,
if Courts losing sight of the true scope and meaning of the terms used by the
legislature in these sections, allow themselves to be drawn into minute
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 •
C various clauses of Sections 299 and 300. The following comparative table
will be helpful in appreciating the points of distinction between the two
offences.

Section 299 Section 300

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

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

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

(3) With the intention of causing
bodily injury to any person and the
G bodily injury intended to be inflicted
is sufficient in the ordinary course
of nature to cause death; or

H
RAJINDER v. STATEOFHARYANA[PASAYAT,J.] 13
• KNOWLEDGE A
****
(c) with the knowledge that the act (4) with the knowledge that
is likely to cause death. the act is so imminently dangerous
that it must in all probability cause
d~ath or such bodily injury as is B
likely to cause death, and without
any excuse for incurring the risk of
causing death or such injury as is
mentioned above.

Clause (b) of Section 299 corresponds with clauses (2) and (3) of C
Section 300. The distinguishing feature of the mens rea requisite under clause
(2) is the knowledge possessed by the offender regarding the particular victim
being in such a peculiar condition or state of health that the internal harm
caused to him is likely to be fatal, notwithstanding the fact that such harm
would not in the ordinary way of nature be sufficient to cause death of a D
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
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. E
Clause (b) of Section 299 does not postulate any such knowledge on
the part of the offender. Instances of cases falling under clause (2) of Section
300 can be where the assailant causes death by a fist blow intentionally given
knowing that the victim is suffering from an enlarged liver, or enlarged
spleen or diseased heart and such blow is likely to cause death of that particular F
person as a result of the rupture of the liver, or spleen or the failure of the
heart, as the case may be. If the assailant had no such knowledge about the
disease or special frailty of the victim, nor an intention to cause death or
bodily injury sufficient in the ordinary course of nature to cause death, the
offence will not be murder, even if the injury which caused the death, was G
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 to cause death" have been
used. Obviously, the distinction lies between a bodily injury likely to cause
death and a bodily injury sufficient in the ordinary course of nature to cause
H
14 SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A 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 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 detennines whether a culpable homicide is of the
gravest, medium or the lowest degree. The word 'likely' in clause (b) of
B Section 299 conveys the sense of probable as 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.
, .
C 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 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 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
E proved that 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 or
injury was intended. Once these three elements are proved to be present, th1:
enquiry proceeds further, and fourthly it must be proved that the injury ofth1:
type just described made up of the three elements set out above was sufficient
p 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.

The ingredients of clause "Thirdly" of Section 300, !PC were brought
out by the illustrious Judge in his terse language as follows:
G
"To put it shortly, the prosecution must prove the following facts
before it can bring a case under Section 300, "thirdly".

First, it must establish, quite objectively, that a bodily injury !s present.
-
H
Secondly, the nature or the injury must be proved. These are purely
objective investigations.
.. -
-<
J
J
? RAJINDER v. STATEOFHARYANA[PASAYAT,J.] 15
-J > Thirdly, it must be proved that there was an intention to inflict that A
particular bodily injury, that is to say that it was not accidental or
unintentional, or that some other kind of injury was intended.
I
~ J Once these three elements are proved to be present, the enquiry
proceeds further and,
B
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."
c
The learned Judge explained the third ingredient in the following words
(at page 468):

"The question is not whether the prisoner intended to inflict a serious
injury or a trivial one but whether he intended to inflict the injury that
is proved to be present. If he can show that he did not, or if the D
totality of the circumstances justify such an inference, then of course,
the intent that the section requires is not proved. But ifthere is nothing
beyond the injury and the fact that the appellant inflicted it, the only
possible inference is that he intended to inflict it. Whether he knew
of its seriousness or intended serious consequences, is neither here or E
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
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." F
These observations of Vivian Bose, 1. have become locus classicus.
The test laid down by Virsa Singh 's case (supra) for the applicability of
clause "Thirdly" is now ingrained in our legal system and has become part
of the rule of law. Under clause thirdly of Section 300 !PC, culpable homicide
is murder, if both the following conditions are satisfied: i.e. (a) that the act G
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
.J injury which, in the ordinary course of nature, was sufficient to cause death, H

r
16 SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A viz., that the injury found to be present was the injury that was intended to
be inflicted.

Thus, according to the rule laid down in Virsa Singh 's case, even if the
intention of accused was limited to the infliction of a bodily injury sufficient
to cause death in the ordinary course of nature, and did not extend to the
B intention of causing death, the offence would be murder. Illustration (c)
appended to Section 300 clearly brings out this point.

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
•
C corresponding clauses. It will be sufficient to say that clause (4) of Section
300 would be applicable where the knowledge of the offender as to the
probability of death of a person or persons in general as distinguished from
a particular person or persons - being caused from his imminently dangerous
act, approximates to a practical certainty. Such knowledge on the part of the
D offender must be of the highest degree of probability, the act having been
committed by the offender without any excuse for incurring the risk of causing
death or such injury as aforesaid.

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
E the facts are so intertwined and the second and the third stages so telescoped
into each other that it may not be convenient to give a separate treatment to
the matters involved in the second and third stages.

The position was illuminatingly highlighted by this Court in State of
Andhra Pradesh v. Rayavarapu Punnayya and Anr., [1976] 4 SCC 382,
F Abdul Waheed Khan@ Waheed and Ors. v. State of Andhra Pradesh, [2002]
7 SCC 175, Augustine Saldanha v. State of Karnataka, [2003] I 0 SCC 472
and in Thangiya v. State of T.N., [2005] 9 SCC 650.

When the factual background is tested on the principles set out above,
G the inevitable conclusion is that the conviction under Section 302 IPC cannot
be maintained and the conviction has to be in terms of Section 304 Part II
!PC. Custodial sentence of 7 years would meet the ends of justice.

The appeal is allowed to the aforesaid extent.

H B.B.B. Appeal allowed.