SHANKAR NARAYAN BHADOLKARversusSTATE OF MAHARASHTRA

A                    SHANKAR NARAYAN BHADOLKAR
                                   v.
                        STA TE OF MAHARASHTRA

                                MARCH 9, 2004

B              [Y.K. SABHARWAL AND ARIJIT PASAYAT, JJ.]


          Penal Code, 1860-Sections 80, 201, 299, 300, 302, 304 Part II, 304A-
    Killing of the deceased by accused by shooting him with a gun at close range
C   and throwing the body of the deceased in a well after wrapping it in a gunny
    bag-Trial Court convicting the accused under Section 302 and 201 IPC-
    High confirming the conviction-Correctness of-Held, on facts and evidence,
    the offence is covered by Section 304 Part II !PC-Arms Act, 1959; Section
    25 (IA).

D         Appellant-accused invited the deceased for dinner along with
    complainant PW 2 and others. After the dinner, the deceased, along with
    others, was standing on the threshold of the appellant's house for catching
    a bus. At that time, the appellant took a gun, loaded it with cartridges
    and shot the deceased from a close range resultin·g in instantaneous death.
    The complainant ran from the scene of occurrence and lodged a complaint
E   with the police, after informing to the relatives of the deceased. Police
    visited the spot along with the complainant. In the meantime, the appellant
    wrapped the body of the deceased in a gunny bag and threw it in a well.
    The dead body of the deceased was retrieved from the well. The
    prosecution framed charges against the appellant and three co-accused
F   under Section 302, 201 and Section 25 (lA) of the Arms Act, 1959.

          The appellant contended before the trial court that the deceased was
    heavily drunk and was unable to control himself; that he picked up a gun
    to scare the deceased; that the deceased tried to snatch the gun from the
    appellant and that in the ensuing scuffle, the deceased accidentally pulled
G   the barrel of the gun and sustained injuries which resulted in the death
    of the deceased; and that the offence committed falls under Section 80 IPC
    or in the alternative under Section 304 Part II IPC. The trial Court
    convicted the appellant under Sections 302 and 201 IPC and under Section
    25 of the Arms Act, 1959 and sentenced him to undergo life imprisonment
    and imprisonment for two years and six months respectively with fines
H                                       868
    --                    S.N. BHADOLKAR "·STATE OF MAHARASHTRA

         and default stipulations.
                                                                                  869

                                                                                         A
               In appeal before High Court, the appellant contended that the case
         falls under Section 304A IPC. The High Court confirmed the conviction
         and sentences imposed by the trial court holding that the case is covered
         under clauses Firstly and Thirdly of Section 300 IPC.
                                                                                         B
               In appeal before this Court, the appellant contended that the case
         falls under Section 80 IPC since the act was merely accidental and that
         there was no motive to kill the deceased as they were both friends; that in


 -       the alternative, it would be a case under Section 304 part II IPC since the
         prosecution failed to make out a case under Section 302;

               The respondent State contended that the case was not accidental and
                                                                                         c
         appellant deliberately fired at the deceased with clear intention to kill the
         deceased; and that if it was accidental, the appellant should have saved
         the deceased and not cause disappearance of the body of the deceased by
         putting it in a gunny bag and throwing it in a well.
                                                                                         D
              Partly allowing the appeal, the Court

                HELD: 1.1. The primordial requirement of Section 80 IPC is that
         the act which killed the other person must have been done "with proper
         care and caution". The amount of care and circumspection taken by an
         accused must be one taken by a prudent and reasonable man in the
                                                                                         E
         circumstances of a particular case. Where the act of the accused is itself
         criminal in nature, the protection under Section 80 IPC is not available.
         If the accused pleads exception within the meaning of Section 80 IPC, there
         is a presumption against him arid the burden to rebut the presumption

-        lies on him. (875-G-H; 875-B-C]

               1.2. The evidence on record, as substantiated by the testimony of
                                                                                         F

         PWs 2 and 3, show that the accused picked up the gun, unlocked it, loaded
         it with cartridges and shot the deceased from a close range of about 4/5
         ft. aiming at his chest. In view of unimpeachable evidence of PWs 2 and
         3, Section 80 IPC has no application. (876-C-D]                           G
              Bhupendra Singh A. Chaudasama v. State of Gujarat, (1998] 2 SCC

--       603 and K.M Nanavati v. State of Maharashtra, AIR (1962) SC 605, referred
         to.

              2. When the intent or knowledge is the direct motivating force of H
    870                   SUPREME COURT REPORTS                 [2004] 2 S.C.R.

A the act, Section 304A IPC has to make room for the graver and more
  serious charge of culpable homicide. In order to be encompassed the
  protection under Section 304A IPC, there should be neither intention nor
  knowledge to cause death. When any of these two element is found to be
  present, Section 304A IPC has no application. The accused-appellant not
B only picked up the gun, unlocked it for use, put the cartridges and fired
  from very close range aiming at a very vital part of the body. Hence, the
  inevitable conclusion is that Section 304A IPC has no application. The
  evidence on PWs 2 and 3 show that there was no scuffle as claimed by the
                                                                                  -
  accused-appellant. [876-F-H; 877-A-B]

C         Sadhu Singh Harnam Singh v. The State of Pepsu, AIR (1954) SC 271,
    distinguished.

        3. Clause (4) of Section 300 IPC 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
D in general as distinguished from a particular person or persons - being
  caused from his imminently dangerous act, approximates to a practical
  certainty. Such knowledge on the part of the offender must be of the
  highest degree of probability, the act having been committed by the
  offender without any excuse for incurring the risk of causing death or such
  injury as aforesaid. As per the eyewitness reports of PWs 2 and 3 and
E evidence of ballistic report, the offence committed by accused is covered
  by Section 304 Part II. [881-F-G; 882-B-C]

        Rajwant and Anr. v. State of Kera/a, AIR (1966) SC 1874; Virsa Singh
  v. State of Punjab, AIR (1958) SC 465; State of Andhra Pradesh v.
p Ravavarapu Punnayya and Anr., [1976] 4 SCC 382 and Abdul Waheed Khan
  @ Waheed and Ors. v. State ofAndhra Pradesh, JT (2002) 6 SC 274, referred
  to.
                                                                                  ----
        4. For the conviction under Section 201 IPC, it has been established
  beyond even a shadow of doubt that dead bodies were carried in a gunny
G bag. It was discovered on the basis of the discovery statement in terms of
  Section 27 of the Indian Evidence Act, 1872. [882-C-D)

        5. Regarding the offence under Section 25 (lA) of the Arms Act is
  concerned, the admitted position being that the gun belong'!d to the son
  of the appellant and that he had no license to hold the gun, the evidence
H has clearly made out the offence. The District Magistrate had accorded
                S.N. BHADOLKAR v. STATE OF MAHARASHTRA [PASA YAT, J.]       87 J

     sanction under Section 39 of the Arms Act for the prosecution. Therefore, A
     the conviction under Section 25 (IA) is well merited. Custodial sentence
     of 8 years would meet the ends of justice. [882-D-E]

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 309
     of 1997.
                                                                                   B
           From the Judgment and Order dated 7.8.96 of the Bombay High Court
     in Cr!. A. No. 184 of 1983.

          A.S. Bhasme for the Appellant.

          Ravindra Keshavrao Adsure for the Respondent.                            c
          The Judgment of the Court was delivered by

            ARIJIT PASAYA T, J. Pandurang Varambale (hereinafter referred to
     as the 'deceased') would not have in his wildest dreams on 8.5.1982 dreamt
     when he left home to attend the invitation extended by the appellant Shankar D
     Narayan Bhadolkar (hereinafter referred to as accused A-1), that he would
     never return alive. The appellant allegedly shot him dead by a gun when the
     deceased was in his house in response to his invitation to attend a marriage
     celebration. The appellant along with his wife Laxmibai (A-4), son Dinkar
     (A-3) and one Sambhaji Mahadeo Patil (A-2) faced trial. They were charged
     for commission of offences punishable under Sections 302, 201 read with E
     Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'). Appellant was
     alternatively charged for commission of offence punishable under Section
     302, 201 and Section 25(1A) of the Arms Act, 1959 (in short the 'Arms
     Act').
                                                                                   F
--         The trial Court found the appellant guilty of the offences punishable
     under Sections 302, 201 IPC and 25 of the Arms Act. The other three co-
     accused persons were acquitted. Appellant was sentenced to undergo life
     imprisonment, two years and six months respectively, with fines and default
     stipulations.
                                                                                   G
          Prosecution version as unfolded during trial is as follows:

          ·Complainant Dilip Shripati Dalavi (PW-2) had a laundry in the Shivaji
     Chowk, Kohlapur. There was also a hair cutting shop adjoining his laundry,
     which was run by Shantaram Mane (PW-4) and Ramchandra Mane. They are
     friends. The deceased was coming to the said hair cutting saloon and hence H
    872                     SUPREME COURT REPORTS                    [2004] 2 S.C.R.

A he had become their friend. Accused no. I-appellant was also visiting the said
    saloon and he had also become their friend. On 2.5.1982, accused no. l had
                                                                                       --
    come to the shop of Dilip Dalavi (PW-2) and gave him invitation for dinner
    arranged in his house at Vadanage, near the limits ofNigave Dumala Village.
    The said invitation was for the dinner arranged on 8.5.1982. Besides the
    complainant, accused no.l also invited Rajendra the brother of the complainant,
B   Shantaram Mane (PW-4) and his brother Rama and another friend Dattu
    Kurane. Accused no. I told him that in case they did not attend the dinner,
    then they will have to pay a penalty of Rs. 100. At that time, deceased had
    come to the saloon where this talk was going on. The deceased was also
    invited by accused no. l for the said dinner.
c         On 8.5.1982 about 5.30 p.m. the complainant and others left for
    Vadanage to the village of accused no.l. After reaching the Mace, they
    moved around and thereafter took meals. A bus was to leave at about 8.00
    p.m. for their return journey to Kolhapur. They finished their meals at about
    7.30 p.m. Thereafter all the invitees came out of the house and they wanted
D   to catch the bus.

          One Sambhaji Patil (A-2) and one unknown person entered the house
    of accused no. I. Deceased also followed them and went inside. As there was
    some time for catching the bus, the complainant also entered the house of
    accused no. I for chewing beta! leaves. The bus stop was just in front of the
E   house of accused no. I. The complainant sat on the cot. The deceased was
    standing on the threshold of the house. The unknown person was standing
    close to them. Accused no.2 was sitting on the chair in front of him.

          Accused no. l lifted the gun, loaded it with cartridge and pointed it
F   towards the deceased and then fired it. The said shot hit on the left side chest
    of the deceased, who collapsed and blood started oozing. As soon as deceased
    fell down, he died instantaneously. As the complainant was afraid, he came
    out of the house. Rajendra, Shantaram, Ramchandra and Dattu Kurane were
    outside the house. As soon as he came out of the house, those persons
    enquired from him about the sound. He disclosed to them that accused no. l
G   had fired a gun hitting Pandurang. Thereafter they all started towards
    Vadanage. They went to the house of Sadashiv Khadaka to whom they narrated
    the incident, because he was their friend. The distance between his house and
    the house of accused no. I is about 2 to 3 kms. The brother-in-law of the
    deceased resides in the same village. Khadake had taken them in his house.
H   Then they went to village Kerli in the bus belonging to the society ofVadanage,
                   S.N. BHADOLKAR v. STATE OF MAHARASHTRA [PASAYAT, J)          873
-
'      because the deceased was from Kerli. Then they went to Mahadeo Varsmble A
       who is the cousin brother of the deceased. They woke him up and told him
       about the incident. Thereafter they all went to Shripati Chougule and disclosed
       to him the incident. Then he himself alongwith five others who were present
       for the dinner came to Karvir Police Station in jeep. Shripati Chougule came
       to the police station by motorcycle. Complaint was lodged in the Karvir
       Police Station. It was reduced into writing. On the basis of the said first B
       information report, the Police Inspector Shirawekar registered the offence u/
       s 302 IPC and also under Section 25 of the Arms Act. Thereafter Police
       Inspector visited the spot along with the complainant and his staff in the jeep.
       The complainant pointed out the house of accused no. I. Police Inspector
       called out accused no. i by standing near door. Accused no. I who came out     c
       by opening the latch of the door was arrested. A green lungi which was on
       the person of accused no. I was attached under panchanama (Ex.12). On
       interrogation accused no. l expressed his willingness to show the well where
       the corpse of the deceased was thrown. The said well is situate at village
       Kerli. Accordingly a memorandum was prepared vide Ex.23 in presence of
       the panchas. Accused no. I then Jed them to the well and the dead body of D
       deceased was taken out from the well. It was wrapped in a gunny bag. After
       opening the gunny bag, the dead body was taken out. It was identified by
       Sadashiv and others. Accordingly panchanama (Ex.24) was prepared. Under
       the panchanama muddemal articles nos. 2 and 3 were also attached. Then
       inquest on the dead body was drawn (Ex.30). The dead body was sent to the E
       doctor for autopsy. Then the Police Inspector arrested accused no.2. He also
       attached a white Dhoti and Nehru shirt (Art. 4 & 5) of deceased no.2 under
       panchanama (Ex.14). Then he visited the scene ofoffence in the morning and
       drew panchanama (Ex.15). He found some blood stains on the threshold and
       also on the bench. The floor was cleaned with cow dung. Soiled cow dung
       was found at the backyard of the house of accused no. I. It was also attached. F
       Statements of witnesses were recorded.

              On 30.5.1982 he sent the muddemal articles nos. 1 to 30 and also the
       viscera and plastic like material forwarded by the Medical Officer, along
       with his forwarding letter to the Chemical Analyser Pune so also, muddemal
       article n?. I 0 the gun was sent to the Ballistic Expert for examination and his G
       opinion. On enquiry it was revealed that the gun (Art. I 0) was in the name
       of accused no.3 having a valid licence. The same was attached by him. He
....   obtained a permission from the District Magistrate, Kolhapur (Ex.21) against
       accused no. 1 for having used the gun without valid licence, for his prosecution
       under the Arms Act. After conclusion of the investigation, charge sheet was H
    874                      SUPREME COURT REPORTS                   [2004] 2 S.C.R.

A submitted in the Court of Chief Judicial Magistrate, Kolhapur.
          The charge was framed against accused nos. I to 4 and they pleaded
    not guilty.

          Accused appellant took the plea that on the date of occurrence he had
B   invited 30/40 persons to attend the dinner and the deceased was one of them.
    He was heavily drunk and was not in a position to walk and also unable to
    control himself. Apprehending that the deceased might create problems and
    fall on the road, the appellant dissuaded him from returning to his place and
    advised him to go on the next day. But the deceased paid little heed. To
C   scarce him, the appellant picked up a gun lying there, loaded the same with
    blank cartridges which only create noise. But the deceased tried to snatch it
    from him. In the scuffle when the deceased pulled the barrel of the gun
    accidentally it got fired and deceased sustained injuries on his chest. After
    seeing the injury, the appellant was totally shocked and fled away. The other
    accused persons denied their involvement in the occurrence. The trial Court
D   as noted above, found the co-accused not guilty but recorded the conviction
    so far as the appellant is concerned under Sections 302, 201 IPC and Section
    25(IA) of the Arms Act, and imposed sentences.

           The plea before the High Court which, did not find acceptance, was
    that there was no offence involved as the act was covered by Section 80 IPC.
E   In any event, there was no element of culpability to bring home accusations
    of Section 302. At the most it was covered by Section 304A. Finally, it was
    submitted that even if the prosecution version is accepted in its toto, the case
    would be covered under.Section 304 Part II. The trial Court held that though
    intention may not be attributed for causing death, it cannot be said that the
F   accused did not have the requisite knowledge and the case was covered under
    clause fourthly of Section 300. In appeal by the impugned judgment, the
    High Court upheld the conviction and sentence. It, however, held that the
    case was really covered by clauses Firstly and Thirdly of Section 300.

          In support of the appeal, learned counsel for the accused appellant
G reiterated the stand taken before the trial court. It is relevant to note at this
    juncture that before the High Court the plea that the case was covered under
    Section 304A was not specifically pressed into service. However, the other
    two pleas raised before the trial Court i.e. applicability of Section 80 IPC or
    in the alternative Section 304 Part II IPC were urged. According to him, the
    first plea was available to be urged. He further submitted that the scenario
H
            S.N. BHADOLKAR "·STATE OF MAHARASHTRA [PASAYAT, J.)            875

clearly rules out any culpability and the act was merely accidental. The A
accepted position being that there was no motive to kill the deceased, both
the accused and the deceased were friendly, there was large number of people
invited for the dinner and the invitees included the deceased, the pleas of the
accused appellant, should have been accepted. It was urged that the case at
hand bears great resemblance to factual position in Sadhu Singh Harnam B
Singh v. The State of Pepsu, AIR (1954) SC 271. In th<>,t crc~e it was held that
the case was covered by Section 304A and the custodial sentence was restricted
to the period of custodial sentence already undergone.

      Residually it was submitted that even if as projected by the prosecution,
its case is accepted offence under Section 302 IPC is not made out and it         C
would be a case under Section 304 Part II. With reference to the age of the
accused it was pointed out that he is now nearly 80 years and the sentence
should be restricted to the period already undergone.

       In response, learned counsel for the respondent-State submitted that the
two courts have analysed the factual position in great detail and have rejected D
the pleas presently being urged. The case is one where Section 302 IPC is
clearly applicable. The conduct of the accused after the occurrence shows the
deliberateness in his action. If it was accidental as pleaded, the normal reaction
after the gun shot would have been to save the deceased and not to cause
disappearance of his dead body by carrying it in gunny bag and throwing it E
into a well. These factors clearly establish that the gun was fired deliberately
with clear intention to kill the deceased.

      Section 80 IPC is a part of Chapter IV IPC dealing with "General
Exceptions". The "general exceptions" contained in Sections 76 to 106 make
an offence a non-offence, The "general exceptions" enacted by IPC are of F
universal application and for the sake of brevity of expression, instead of
repeating in every Section that the definition is to be taken subject to the
exceptions, the Legislature by Section 6 IPC enacted that all the definitions
must be regarded as subject to the general exceptions. Therefore, general
exceptions are part of definition of every offence contained in IPC, but the
burden to prove their existence lies on the accused.                          G
      Section 80 protects an act done by accident or misfortunate and without
any criminal intention or knowledge in the doing of a lawful act in a lawful
manner by lawful means and with proper care and caution. The primordial
requirement of Section 80 is that the act which killed the other person must H
    876                     SUPREME COURT REPORTS                   [2004] 2 S.C.R.

A have been done "with proper care and caution". In Bhupendrasinh A.
    Chaudasama v. State of Gujarat, [1998] 2 SCC 603 it was held by this Court
    that where the accused shot his own colleague at close range without knowing
    the identity of his target, the act smacked of utter dearth of any care and
    caution.

B          The amount of care and circumspection taken by an accused must be
    one taken by a prudent and reasonable man in the circumstances of a particular
    case. Where the act of the accused is itself criminal in nature the protection
    under Section 80 is not available. If the accused pleads exception within the
    meaning of Section 80 there is a presumption against him and the burden to
C   rebut the presumption lies on him: (See KM Nanavati v. State ofMaharashtra,
    AIR (1962) SC 605.

           Here the evidence on record as substantiated by the testimony of PWs
    2 and 3 shows that the accused picked up the gun, unlocked it, loaded it with
    cartridges and shot the gun from a close range of about 4/5 ft. aimed at his       ~·
D   chest. Certainly in view of unimpeachable evidence of PWs 2 and 3, Section
    80 has no application.

           Coming to the plea of the applicability of Section 304A it is to be noted
    that the said provision relates to death caused by negligence. Section. 304A
    applies to cases where there is no intention to cause death and no knowledge
E   that the act done in all probabilities will cause death. The provision relating
    to offences outside the range of Sections 299 and 300 IPC. It applies only to
    such acts which are rash and negli~ent and are directly the cause of death of
    another person. Rashness and negligence are essential elements under Section
    304A. It carves out a specific offence where death is caused by doing a rash
F   or negligent act and that act does not amount to culpable homicide under
    Section 299 or murder in Section 300 IPC. Doing an act with the intent to
    kill a person or knowledge tjlat doing an act was likely to cause a persons'
    death is culpable homicide. When the intent or knowledge is the direct
    motivating force of the act, Section 304A IPC has to make room for the
    graver and more serious charge of culpable homicide.
G
           In order to be encompassed the protection under Section 304A there
    should be neither intention nor knowledge to cause death. When any of these
    two elements is found to be present, Section 304A has no application. The
    accused-appellant not only picked up the gun, unlocked it for user but also
    put the cartridges and fired from very close range, aiming at a very vital part
H   of the body.
                  S.N. BHADOLKAR v. STATE OF MAHARASHTRA [PASAYAT, J.]          877

             In the background facts as highlighted above the inevitable conclusion A
      is that Section 304A has no application.

            The decision in Sadhu Singh 's case (supra) has no application because
      in that case the evidence indic1:~ed that the gun was not aimed at the victim
      and there was evidence of scuffle between the accused and the deceased. In
      the present case though such plea was taken, it has not been substantiated. On   B
      the contrary the evidence of PWs 2 and 3 shows that there was no scuffle as
      claimed by the accused.

           The only other point which needs to be considered is whether Section

---   302 IPC has been rightly made applicable.

             This brings us to the crucial question as to which was the appropriate
                                                                                       c
      provision to be applied. 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 murder is culpable homicide not amounting to murder'. For the purpose D
      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 degree'. This
      is punishable under the first part of Section 304. Then, there is 'culpable E
      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.

            The academic distinction between 'murder' and 'culpable homicide not F
      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 G
      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
                                                                                       H
    878                       SUPREME COURT REPORTS                     [2004] 2 S.C.R.
                                                                                          ...........
A   A person commits culpable                   Subject to certain exceptions
    homicide if the act by which the            culpable homicide is murder
    death is caused is done -                   if the act by which the death is
                                                caused is done -
                                        INTENTION
B   (a) with the intention of causing           (1) with the intention of causing
     death; or                                  death; or

    (b) with the intention of causing           (2) with the intention of causing
     such bodily injury as is likely           ·such bodily injury as the offender

c
     to cause death; or                         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
                                                bodily injury intended to be inflicted
D                                               is sufficient in the ordinary course
                                                of nature to cause death; or
                                     KNOWLEDGE
    (c) with the knowledge that                 (4) with the knowledge that the act
    the act is likely to cause death.           is so imminently dangerous that it
E                                               must in all probability cause death
                                                or such bodily injury as is likely to
                                                cause death, and without any excuse
                                                for incurring the risk of causing
                                                death or such injury as is mentioned
                                                above.
F
           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 the internal harm
    caused to him is likely to be fatal, notwithstanding the fact that such harm
G   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
    likelihood of such injury causing the death of the particular victim, is sufficient
H   to bring the killing within the ambit of this clause. This aspect of clause (2)
-                S.N. BHADOLKAR v. STATE OF MAHARASHTRA [PASA YAT, J]

    is borne out by illustration (b) appended to Section 300.
                                                                                879

                                                                                        A
           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 B
    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 C
    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,
    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 D
    difference between clause (b) of Section 299 and clause (3) of Section 300
    is one of the degrees 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 E
    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.

           For cases to fall within clause (3), it is not necessary that the offender   p
    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.

          In Virsa Singh v. State of Punjab, AIR (1958) SC 465, Vivian Bose, J. G
    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 8ection 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 H
    880                     SUPREME COURT REPORTS                     [2004] 2 S.C.R.

A 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 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 course of nature. This part of the enquiry is
B   purely objective and inferential and has nothing to do with the intention of
    the offender.

         The ingredients of clause "Thirdly" of Section 300, IPC were brought
    out by the illustdous Judge in his terse language as follows:

c           "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 is present.

            Secondly, the nature of the injury must be proved. These are purely
            objective investigations.
D
            Thirdly, it must be proved that there was an intention to inflict that
            particular bodily injury, that is· to say that it was not accidental or
            unintentional, or that some other kind of injury was intended. Once
            these three elements are proved to be present, the enquiry proceeds
            further and,
E
            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."
F
          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
G           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 possible inference is that he intended to inflict it. Whether
H           he knew of its seriousness or intended serious consequences, is neither
""I


                     S.N. BHADOLKAR v. STATE OF MAHARASHTRA [PASAYAT, J.)            881

----             here or there. The question, so far as the intention is concerned, is not A
                 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."
                                                                                            B
                These observations of Vivian Bose, J. 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 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
                                                                                            c
         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 D
         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
         intention of causing death, the offence would be murder. Illustration (c)          E
         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
         corresponding clauses. It will be sufficient to say that clause (4) of Section     F
         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
         offender must be of the highest degree of probability, the act having been         G
         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
         the facts are so intertwined and the second and the third stages so telescoped H
                                                                                             r-


     882                     SUPREME COURT REPORTS                    [2004] 2 S.C.R.

A 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 and
    in Abdul Waheed Khan@ Waheed and Ors. v. State of Andhra Pradesh, JT
B   (2002) 6 SC 274.

            Looked at the scenario as described by PWs 2 and 3 and evidence of
     ballistic report, in our considered view the offence committed by accused is
     covered by Section 304 Part II.

C         So far as the other convictions are concerned the conclusions of the
    trial Court and the High Court do not warrant any interference. For the
    conviction under Section 20 l it has been established beyond even a shadow
    of doubt that dead bodies were carried in a gunny bag. It was discovered on
    the basis of the discovery statement in terms of Section 27 of the Indian
D   Evidence Act, 1872 (in short the 'Evidence Act') which is also relevant. The
    conviction is well merited. So far as offence under Section 25 (lA) of the
    Arms Act is concerned, the admitted position being that the gun belonged to
    the son of the appellant, and that he had no license to hold the gun, the
    evidence has clearly made out the offence. The District Magistrate, Kohlapur
    had accorded sanction under Section 39 of the Arms Act for the prosecution.
E   Therefore, the conviction under Section 25 (lA) is also well merited. Custodial
    sentence of 8 years would meet the ends of justice. The appeal is allowed to .
    the extent indicated above.
                                                                                            ·I

     B.S.                                                    Appeal partly allowed.




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