Supreme Court of India
SRI KISHAN & ORS.versusTHE STATE OF HARYANA
- Citation
- 2009 INSC 620
- Decided
- 27 April 2009
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The Court held that where the prosecution’s evidence is clear and the injuries to the accused are minor or superficial, the failure to explain such injuries does not invalidate the conviction, and the convictions under Sections 148, 149 and 302 IPC are upheld.
Summary
The case involved eleven accused who were convicted of offences under Sections 148, 149, 302 (Part II), 325, 324 and 323 of the IPC for forming an armed unlawful assembly that resulted in the death of Habib. The State and the complainant appealed the acquittals on the main charge of murder, while the accused challenged the convictions on the ground that the prosecution failed to explain the minor injuries found on some of them. The Supreme Court held that the prosecution’s evidence was clear, the injuries were trivial, and the failure to explain them did not undermine the conviction. It affirmed that the assembly was unlawful, armed with lethal weapons, and the application of Sections 148 and 149 IPC was proper. The Court also clarified the distinction between murder and culpable homicide under Sections 299 and 300 IPC. Consequently, the convictions and sentences were upheld and the appeals dismissed.
Issues considered
- The failure of the prosecution to explain injuries on the accused warrants reversal of conviction
- Whether conviction under Section 148 IPC and application of Section 149 IPC is valid
- Whether the charge of murder under Section 302 read with Section 149 IPC should stand
- The distinction between murder (Section 299/300 IPC) and culpable homicide not amounting to murder
- Whether the sentences awarded suffer any infirmity
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Penal Code, 1860s. 148, s. 149, s. 299, s. 300, s. 302, s. 323, s. 324, s. 325
Subjects
unlawful assemblysection 148 IPCsection 149 IPCmurderculpable homicidenon-explanation of injuriesconvictionevidenceappellate jurisdiction
Judgment
(2009) 6 S.C.R. 1184
..
A SRI KISHAN & ORS.
v.
THE STATE OF HARYANA
(Criminal Appeal No. 848 of 2009 & ORS.)
APRIL 27, 2009
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
Penal Code, 1860:
c ss.148, 302 (Part II), 325 324 and 323 rlw s. 149 -
Conviction under, by courts below - Interference with - Held:
On facts, order of conviction and sentence awarded does not
call for interference - All accused formed unlawful assembly
armed with weapons which were likely to cause death, thus
D conviction u/s.148 and application of s.149 does not suffer
from infirmity - Non-explanation of minor and superficial
injuries on accused would not affect prosecution case, when
said accused have been acquitted.
ss. 299 and 300 - 'Murder' and ·culpable homicide' not -
E amoun~ing to murder - Distinction between.
Criminal trial - Non-explanation of injuries on accused
- Effect on prosecution case - Discussed.
11 accused persons were convicted for offences
F
punishable ulss. 148, 302 Part II r/w ss. 149, 325 r/w ss.
149, 324 r/w s. 149 and 323 r/w s. 149 IPC. Respondent-
State challenged the acquittal of all the accused for the
main charge of s. 302 r/w s. 149 _IPC. The complainant
also challenged the acquittal of main accused u/s. 302
G and prayer for grant of compensation. The same were
..
dismissed. Hence the present appeals.
Dismissing the appeals, the Court
H 1184
..,. SRI KISHAN & ORS. v. STATE OF HARYANA 1185
<
HELD: 1. On facts, it is clear that the conviction as A
done is appropriate. The sentence awarded do not suffer
- from any infirmity. [Para 31] [1207-B]
2.1. It cannot be accepted that in each and every case
where prosecution fails to explain the injuries found on B
some of the accused, the prosecution case should
automatically be rejected, without any further probe.
Failure of the prosecution to offer any explanation
regarding the injuries found on the accused may show
that the evidence related to the incident is not true or at
any rate not wholly true. Any non-explanation of the
c
injuries on the accused by the prosecution may affect the
prosecution case. But such a non-explanation may
assume greater importance where the defence gives a
version which competes in probability with that of the
D
prosecution. [Paras 11 and 13] [1197-C-D; 1198-E-G]
Mohar Rai and Bharath Rai v. The State of Bihar 1968
(3) SCR 525; Lakshmi Singh and Ors. v. State of Bihar 1976
(4) SC.C 394 and Vijayee Singh and OrS. v. State of U.P. AIR
1990 SC 1459, relied on. E
2.2. Non-explanation of injuries by the prosecution
will not affect prosecution case where injuries sustained
. .., by the accused are minor and superficial or where the
evidence is so clear and cogent, so independent and F
disinterested, so probable, consistent and creditworthy,
that it outweighs the effect of the omission on the part of
prosecution to explain the injuries. Prosecution is not
called upon in all cases to explain the injuries received
by the accused persons. It is for the defence to put
questions to the prosecution witnesses regarding the G
"-
· injuries of the accused persons. When that is not done,
there is no occasion for the prosecution witnesses to
explain any injury on the person of an accused. The
H
1186 SUPREME COURT REPORTS [2009] 6 S.C.R.
•
A obligation of the prosecution to explain the injuries
..
sustained by the accused in the same occurrence may
not arise in each and every case. It is not an invariable
rule that the prosecution has to explain the injuries
sustained by the accused in the same occurrence. If the
B witm~sses examined on behalf of the prosecution are
believed by the Court in proof of guilt of the accused
beyond reasonable doubt, question of obligation of
prosecution to explain injuries sustained by the accused
will not arise. When the prosecution comes with a definite
c case that the offence has been committed by the accused
and proves its case beyond any reasonable doubt, it
becomes hardly necessary for the prosecution to again
explain how and under what circumstances injuries have
been inflicted on the person of the accused. It is more so
when the injuries are simple or superficial in nature. In the
D
instant case, trifle and superficial injuries on accused are +
of little assistance to them to throw doubt on veracity of
prosecution case, particularly, when the accused who
claimed to have sustained injuries has been acquitted.
[Para 14) [1199-B-H; 1200-A]
E
Ramlagan Singh v. State of Bihar AIR 1972 SC 2593;
HareKrishna Singh and Ors. v. State of Bihar AIR 1988 SC
863 and Sucha Singh and Anr. v. State of Punjab 2003 (7)
sec 643, relied on. ,,
F
3.1. As regards the individual acts, according to the
prosecution version, A1 had inflicted injury on the head
of the deceased, A2 had inflicted injury on PW1, A3 had
inflicted injury on JM who was not examined as a witness.
Similar was the position so far as A4 is concerned. A5
G
who has died inflicted injury on the deceased. AG had
inflicted injuries on JM and PW2. A7 had given a lathi blow
..
to the deceased. AS had inflicted blow on JG and the
deceased. A9 has expired. A10 had inflicted injuries on
H
SRI KISHAN & ORS. v. STATE OF HARYANA 1187
PW1 and A1 to A11 have been convicted with the aid of A
section 149. The evidence of PW1 and PW 2 is clear,
categorical and he was one of the eye witnesses. [Para
16) (1200-B-E]
3.2. High Court noted that from the side of the B
complainant which includes deceased also, five persons
received in total as many as 15 injuries. The main injury
on the head of the deceased has been attributed to A1.
Similarly, GR, JM and JG also received wounds on the
head. Injury on the head of GR was an incised wound
caused by a farsa. JM had received an incised wound on
c
his head. JG had received lacerated wound on the head.
The other injuries on the persons of .all the other injured
persons are in the shape of bruises or lacerated injuries
most of which have been caused by lathies. [Para 17)
D
., [1200-E-G]
3.3. The prosecution evidence clearly shows that the
common object of the unlawful assembly was to commit
the murder of H and it was not just an assembly at a
particular point of time where the accused persons had E
assembled with Farsa and lathis in order to cause injury
on the complainant including deceased who had gone
for filing nomination papers for the Panchayat election.
.,
[Para 18] [1200-H; 1201-A-B]
3.4. High Court found that the purpose of the F
unlawful assembly was to stop H, his brother GR and
their supporter from either contesting the election or
supporting the persons who filed the nomination. They
were all present near the gate of the school where the
._ nomination papers were to be filed. Both the trial court G
and High Court on analysing the evidence held that all
the accused persons had formed an unlawful assembly
armed with weapons which were likely to cause death
and, therefore, conviction under section 148 IPC and
application of section 149 IPC does not suffer from any H
1188 SUPREME COURT REPORTS (2009] 6 S.C.R.
..
A infirmity. [Para 19) [1201-B-D] ,I-
4.1. Clause (b) of Section 299 IPC corresponds with ~
clauses (2) and (3) of section 300 IPC. The distinguishing
feature of the mens rea requisite under clause (2) is the
B 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 person in normal health or condition.
c The 'intention to cause death' is not an essential
requirement of clause (2). Only the intention of causing
the b9dily injury coupled with the offender's knowle~ge
of the likelihood of such injury causing the death of the
particular victim, is sufficient to bring the killing within the
D ambit of this clause. This of clause (2) is borne out by
illustration (b) appended to section 300 IPC. [Para 22)
[1,203-A-C]
4.2. Clause (b) of section 299 IPC does not postulate
E any such knowledge on the part of the offender.
Instances of cases of falling under clause (2) of Section
300 IPC 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 /
F diseased heart and such blow is likely to cause death of
that 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
G
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 IPC,
instead of the words 'likely to cause death' occurring in
the corresponding clause (b) of section 299 IPC, the
H
SRI KISHAN & ORS. v. STATE OF HARYANA 1189
~
words "sufficient in the ordinary course of nature" have A
~. been used. 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. [Para 23) [1203-D-G] B
4.3. The difference between clause (b) of section 299
" IPC and clause (3) of section 300 IPC is one of the degree
of probability of death resulting from the intended bodily
injury. It is the degree of probability of death which
determines whether a culpable homicide is of the gravest,
c
medium or the lowest degree. The word 'likely' in clause
(b) of section 299 IPC 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 D
probable" result of the injury, having regard to the
ordinary course of nature. [Para 23) [1204-H; 1205-A-B]
4.4. Under clause thirdly of section 300 IPC, culpable
homicide is murder, if both the following conditions are E
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 F
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 the injury
that was intended to be inflicted. Thus, even if the
intention of accused was limited to the infliction of a G
L bodily injury sufficient to cause death in the ordinary
course of nature, and did not ext~nd to the intention of
causing death, the offence would be murder. Illustration
(c) appended to Section 300 IPC clearly brings out this
point. [Paras 28 and 29] [1206-C-F]
H
1190 SUPREME COURT REPORTS (2009] 6 S.C.R.
A 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.
4.5. Clause (c) and clause (4) of section 300 IPC both
require knowledge of the probability of the act causing
8
death. It is not necessary for the purpose of this case to
dilate much on the distinction between these
corresponding clauses. 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
C 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
D committed by the offender without any excuse for
incurring the risk of causing death or such injury. [Para
30) [1206-G; 1207-A-B]
Case Law Reference:
E 1968 (3) SCR 525 Relied on. Para 11
1976 (4) sec 394 Relied on. Para 12
AIR 1990 SC 1459 Relied on. Para 13
F AIR 1972 SC 2593 Relied on. Para 14
AIR 1988 SC 863 Relied on. Para 14
2003 (7) sec 643 Relied on. Para 15
AIR 1966 SC 1874 Relied on. Para 24
G
AIR 1958 SC 465 Relied on. Para 25
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 848 of 2009.
H
SRI KISHAN & ORS: v. STATE OF HARYANA 1191
'
,(
From the Judgment & Order dated 1.11.2006 of the High A
.. Court of Punjab & Haryana at Chandigarh in Crir:1inal Appeal
No. 557-DBA of 1999.
WITH
Crl. A. No. 850 of 2009. B
)
Crl. A. No. 849 of 2009.
Sushil Kumar, P.S. Patwalia, Aditya Kumar, Jasbir Singh
Malik, Shilpi, Sanjay Rathi, R.K. Tripathy, S.K. Sabharwal, Aditya
Kumar, Mukesh Kumar, Anmol Thakral, V.P. Sharma,
c
Meenakshi Kumar, Sanjay Jain, Rajeev Gaur 'Naseem', Rajesh
Ranjan, T.V. George, Jaswant Persoya, Jagjit Singh Chhabra
and Sanjay Jain for the appearing parties.
The Judgment of the Court was delivered by D
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. These three appeals relate to the judgment of a Division
Bench of the Punjab and Haryana High Court dealing with
E
Criminal Appeal No. 366-SB of 1999, Criminal Appeal No.557-
OB A of 1999 and Criminal Revision No.788of1999. The first
Criminal appeal was filed by the present appellants. The
second criminal appeal was filed by the State of Haryana and
--- the third i.e. Criminal Revision Petition was filed by the
F
complainant Gulan1 Bashir.
3. Background facts in a nutshell are as follows:
4. Originally there were 11 accused persons and they were
the appellants in Criminal Appeal No.366-SB of 1999. They
G
were convicted for offences punishable under Sections 148, 302
< "' Part II read with Sections 149, 325 read with Sections 149, 324
read with Section 149 and 323 read with Section 149 of the
Indian Penal Code, 1860 (in short the 'IPC'). They were
convicted in the following manner:
H
1192 SUPREME COURT REPORTS [2009] 6 S.C.R. I
A Name of Convict Sentence Amount of Sentence
Conviction recorded awarded Fine awarded in
Under imposed default of.
Section payment of
fine
1. Dalip 304 Part II Five years Rs.700/- Four months
B
Singh IPC RI Each RI
2. Mir Singh read with
149 IPC
3. Parshadi 325 IPC Three years Rs.300/- Two months
read with RI each each RI
c 149 IPC
324 IPC Two years
read with RI each
1491PC
323 IPC Six months
read with RI each
D 149 IPC
148 IPC Two years
RI each
1. Siri 304 Part II Seven years Rs.1000/- Six months RI
Krishan IPC RI each
E ..
2. Samey read with Three years Rs.300/- Two months
Singh 149 IPC RI each each RI
F
3. Dharam
Singh
4. Hari
325 IPC
read with
149 IPC
324 IPC Three years
-
Singh read with RI each
149 IPC
5. lndraj 323 IPC Six months
alias read with RI each
G
lnderpal 1491PC
6. Kanwar 148 IPC Two years
Singh RI each
7. Sohrab
H 8. Mamman
SRI KISHAN & ORS. v. STATE OF HARYANA 1193
[DR. ARIJIT PASAYAT, J.]
.t 5. State of Haryana also filed the appeal dissatisfied with A
the acquittal of all the accused for the main charge of Section
302 read with Section 149 IPC. Complainant also filed the
separate Revision Petition with similar prayer and for grant of
compensation.
B
6. Background facts, as projected by the prosecution
during trial, are essentially as follows:
' The instant case was registered on the basis of statement
Ex.P.A. of Gulam Rasool complainant. His real brother Habib c
is described hereinafter as deceased in this case, who
according to the allegations on 1.8.1988 had gone to the
school building in the village for filing nomination papers for
election of Sarpanch. Complainant Gulam Rasool was
accompanying him. Habib was to contest the election of D
Sarpanch. At about 11 A.M. when they came out of the said
school building, accused Samey Singh and Dharam Singh
armed with Pharsa each and remaining accused present there
had lathies in their hands. When complainant and Habib came
out of the school, Samey Singh accused gave a lalkara saying
E
that they should be killed (in village parlance, it is stated, 'lnhe
Maar Lo'). Thereafter, Samey Singh accused gave Pharsa
blow on the head of Gulam Rasool and Siri Kishan gave a lathi
blow on the head of Habib. Accused Schrab also gave a lathi
blow on the back of Gulam Rasool touching his neck. Accused
F
Mamman also gave a lathi blow on his back. It, is then alleged
that when Jan Mohammad son of Sultan, Suleman and another
Jan Mohammad son of Shakurmal reached there on hearing
the noise and tried to intervene in order to rescue the
complainant party, accused lndraj and Kanwar Singh gave lathi
G
blows to Habib who was already lying down. The blow inflicted
.Oo by Kanwar Singh hit the waist of Habib whereas lathi blow
given by accused lndraj hit him on his back. Dharam Singh,
Dalip Singh, lndraj and Kanwar Singh accused had hit Jan
Mohamniad son of Shakurmal on right side of head, right
H
1194 SUPREME COURT REPORTS [2009] 6 S.C.R.
A forearm, right hand, right shoulder and the right arm. Jan
Mohammad son of Sultan, Gulam Rasool, his brother Habib,
Jan Mohammad son of Shakurmal and Shakurmal had
sustained inuries in this occurrence and they were removed to
hospital. A ruqa was sent to Police Station Tauru, from where
B Om Parkash, SI, SHO (PW11) reached the hospital and
recorded statement Ex.PA of Gulam Rasool, on the basis of
which formal FIR Ex. PA/2 was recorded. Gulam Rasool and
. Habib were referred to General Hospital, Gurgaon and from
there to Safdarjang Hospital, New Delhi, where Habib
C succumbed to the injuries on 2.8.1988. Initially, the case was
registered under Sections 148, 149, 324 323 506 IPC and after
the death of Habib Section 302 IPC was added.
During the investigation the accused persons were
D arrested on different dates and weapons of offence were
recovered from them, which were taken into possession.
After the completion of the investigation, all the accused
were challaned.
E It is worth mentioning here that since Siri Kishan accused
was serving in Indian Army, proceedings were initiated against
him after obtaining sanction from the concerned Commanding
Officer. This was the reason that a supplementary challan was
filed qua him and ultimately all the accused were tried together.
F Charge under Sections 148, 302, 323, 325, 324 and 323 read
with Section 149 IPC were framed against all the 11 accused.
The prosecution in order to substantiate its case examined
Gulam Rasool, complainant as PW1 who had given the detailed
G description of the entire occurrence as already narrated by him
in his initial statement Ex.PA.
...
PW2 is Suleman son of Jayudin the other injured witness.
He also corroborated the testimony of Gulam Rasool on all
H material aspects describing the specific role of each of the
SRI KISHAN & ORS. v. STATE OF HARYANA 1195
[DR. ARIJIT PASAYAT, J.]
accused. A
PW 3 is Mui Chand Punia, the Draftsman had prepared
the scaled Plan Ex.PB of the place of occurrence. PW 4 is Ram
Chander who while posted as Sub Inspector in Police Station
City Gurgaon had moved an application on 2.8.1988 for B
obtaining the medical opinion on Habib injured with respect to
his fitness to make statement.
Dr. S.P. Singh (PW 5). who was posted in the General
Hospital, Gurgaon, on 1.8.1988 examined Hubib Suleman, c
Gulam Rasool, Jan Mohammad son of Sultan and Jan
Mohammad son of Shakur Mal. The said witness also was
cross examined to show that on 3.8.1988 he had examined
accused Prasadi Lal under the Court orders and found some
injuries.
D
Dr. 8.8. Aggarwal (PW 6) had radiologically examined Jan
Mohammad son of Shakur Mal, Suleman and found one
fracture one injury each. Dr. S.K. Verma (PW10) had conducted
autopsy on the dead body of Habib. The plea taken by the
accused, as is evident from their statement recorded under E
Section 313 of the Code of Criminal Procedure, 1973 (in short
the 'Code'), was of false implication. However, accused
Prasadi Lal stated that a large crowd had collected at the spot
l
at the time of occurrence and many persons out of the crowd
had started throwing stones on the complainant party as a result F
of which they had received injuries. He had further stated that
the accused had been falsely implicated on account of party
fraction in the village. Seven witnesses were examined to further
the defence version.
G
• The trial court, as noted above, on consideration of the
evidence found the accused persons guilty and convicted and
sentenced them. Primary stand of the accused persons before
the High Court in the appeal filed by them was that lndraj had
H
1196 SUPREME COURT REPORTS [2009] 6 S.C.R.
A not filed nomination papers at the time of occurrence and the
finding of the trial court that lndraj had already filed nomination
is not correct. It was also pointed out that the ocular testimony
stands falsified by the medical evidence and in any event the
case being one of free fight at the most each accused can be
8 fastened with individual liability taking into consideration the
specific role or part attributed to each of the accused. In any
event Sections 148 and 149 had no application.
It is pointed out that accused No.1 was serving in the army
c and had been falsely implicated. In the revision filed before the
High Court, the complainant adopted the stand of the State and
also in addition prayed for compensation.
By the impugned judgment the High Court disposed of the
Criminal appeal and the Revision dismissing each one of them.
0
7. In support of appeal filed by the accused the stand taken
before the High Court has been reiterated. It is pointed out that
accused Nos.5 and 9 have already died. It is stated that the
PWs 1 & 2 were $lated to be injured witnesses, but their
E evidence does not inspire confidence. Additionally, this being
a case of free fight, Sections 148 and 149 IPC have no
application. The background for the instant case has been
twisted. Undisputedly, no nomination was filed by lndraj and,
therefore, the question of that being the starting point of the
F prosecution's case is highly unreliable. The partisan approach
of the investigating agency is clear from the fact that no action
was taken even though some of the accused persons have
suffered injuries. In any event it is submitted that custodial
sentence of ten years given for the offence relatable to Section
G 300 Part II is harsh.
..
8. Learned counsel for the State in support of the appeal
submitted that the High Court after having found the accused
persons guilty, should have convicted them for offence
H
SRI KISHAN & ORS. v. STATE OF HARYANA 1197
[DR. ARIJIT PASAYAT, J.]
punishable under Section 302 read with Section 149 IPC. Not A
only did they inflict injuries on the deceased and the witnesses,
but also were armed with deadly weapons, and it showed their
clear intention.
' '
9. Leaned counsel for the informant made similar B
statements.
10. It shall first be desirable to examine the question
relating to non-explanation of injuries on the accused.
11. One of the pleas is that the prosecution has not
c
explained the injuries on the accused. Issue is if there is no such
explanation. what would be its effect? We are not prepared to
agree with the learned counsel for the defence that in each and
every case where prosecution fails to explain the injuries found
D
on some of the accused, the prosecution case should
automatically be rejected, without any further probe. In Mohar
Rai and Bharath Rai v. The State of Bihar (1968 (3) SCR
525), it .was observed:
"... In our judgment, the failure of the prosecution to offer any E
explanation in that regard shows that evidence of the
prosecution witnesses relating to the incident is not true
or at any rate not wholly true. Further those injuries
probabilise the plea taken by the appellants."
F
12. In another important case Lakshmi Singh and Ors. v.
State of Bihar (1976 (4) SCC 394), after referring to the ratio
laid down in Mohar Rai's case (supra), this Court observed:
"Where the prosecution fails to explain the injuries on the G
•• accused, two results follow:
( 1) that the evidence of the prosecution witnesses is
untrue; and (2) that the injuries probabilise the plea taken
by the appellants." H
1198 SUPREME COURT REPORTS [2009] 6 S.C.R.
A It was further observed that:
"In a murder case, the non-explanation of the injuries
sustained by the accused at about the time of the
occurrence or in the course of altercation is a very
B important circumstance from which the Court can draw the
following inferences:
(1) that the prosecution has suppressed the genesis
and the origin of the occurrence and has thus not
c presented the true version;
(2) that the witnesses who have denied the presence
of the injuries on the person of the accused are lying on a
most material point and, therefore, their evidence is
unreliable;
D
(3) that in case there is a defence version which
explains the injuries on the person of the accused assumes
·.much greater importance where the evidence consists of
interested or inimical witnesses or where the defence
E gives a version which competes in probability with that of
the prosecution one."
13. In Mohar Rai's case (supra) it is made clear that failure
of the prosecution to offer any explanation regarding the injuries
F found on the accused may show that the evidence related to
the incident is not true or at any rate not wholly true. Likewise
in Lakshmi Singh's case (supra) it is observed that any non-
explanation of the injuries on the accused by the prosecution
may affect the prosecution case. But such a non-explanation
G may assume greater importance where the defence gives a
version which competes in probability with that of the
prosecution. But where the evidence is clear, cogent and
creditworthy and where the Court can distinguish the truth from
falsehood the mere fact that the injuries are not explained by
H
SRI KISHAN & ORS. v. STATE OF HARYANA 1199
[DR. ARIJIT PASAYAT, J.]
the prosecution cannot by itself be a sole basis to reject such A
evidence, and consequently the whole case. Much depends on
the facts and circumstances of each case. These aspects were
highlighted by this Court in Vijayee Singh and Ors. v. State of
U.P. (AIR 1990 SC 1459).
B
14. Non-explanation of injuries by the prosecution will not
affect prosecution case where injuries sustained by the accused
are minor and superficial or where the evidence is so clear and
cogent, so independent and disinterested, so probable,
consistent and creditworthy, that it outweighs the effect of the c
omission on the part of prosecution to explain the injuries. As
observed by this Court in Ramlagan Singh v. State of Bihar
(AIR 1972 SC 2593) prosecution is not called upon in all cases
to explain the injuries received by the accused persons. It is
for the defence to put questions to the prosecution witnesses 0
regarding the injuries of the accused persons. When that is not
done, there is no occasion for the prosecution witnesses to
explain any injury on the person of an accused. In Hare krishna
Singh and Ors. v. State of Bihar (AIR 1988 SC 863), it was
observed that the obligation of the prosecution to explain the E
injuries sustained by the accused in the same occurrence may
not arise in each and every case. In other words, it is not an
invariable rule that the prosecution has to explain the injuries
sustained by the accused in the same occurrence. If the
witnesses examined on behalf of the prosecution are believed F
by the Court in proof of guilt of the accused beyond reasonable
doubt, question of obligation of prosecution to explain injuries
sustained by the accused will not arise. When the prosecution
comes with a definite case that the offence has been
committed by the accused and proves its case beyond any G
reasonable doubt, it becomes hardly necessary for the
prosecution to again explain how and under what
circumstances injuries have been inflicted on the person of the
accused. It is more so when the injuries are simple or
superficial in nature. In the case at hand, trifle and superficial H
1200 SUPREME COURT REPORTS [2009] 6 S.C.R.
A injuries on accused are of little assistance to them to throw
doubt on veracity of prosecution case, particularly, when the
accused who claimed to have sustained injuries has been
acquitted.
B 15. These aspects were highlighted in Sucha Singh and
Anr. v. State of Punjab (2003 (7) SCC 643).
16. So far as the individual acts are concerned, according
to the prosecution version, A1 had inflicted injury on the head
C of the deceased, A2. had inflicted injury on PW1, A3 had inflicted
injury on one Jan Mohammad, who was not examined as a
witness. Similar was the position so far as A4 is concerned.
A5 who has died inflicted injury on the deceased. A6 had
inflicted injuries on Jan Mohammad and PW2. A7 had given a
0 lathi blow to the deceased. AS had inflicted blow on Jung
Mohammad, and the deceased A9 as noted above has
expired. A10 had inflicted injuries on PW1 and A 1 to A11 have
been convicted with the aid of Section 149: The evidence of
,. PW 1 is clear, categorical and he was one of the eye
E witnesses. Similar is the position vis-a-vis PW 2.
17. The High Court has noted that from the side of the
complainant which includes deceased also, five persons have
received in total as many as 15 injuries. The main injury on the
head of the deceased has been attributed to A1. Similarly,
F Gulam Rasul, Jan Mohammad son of Sultan and another Jan
Mohammad, have also received wounds on the head. Injury on
the head of Gulam Rasul was an incised wound caused by a
Farsa. Jan Mohammad son of Sultan had received an incised
wound on his head. The other Jan Mohammad had received
G lacerated wound on the head. The other injuries on the persons
of all the other injured persons are in the shape of bruises or
lacerated injuries most of which have been caused by lathies.
18. The prosecution evidence clearly shows that the
H
SRI KISHAN & ORS. v. STATE OF HARYANA 1201
'\- [DR. ARIJIT PASAYAT, J.]
common object of the unlawful assembly was to commit the A
murder of Habib and it was not just an assembly at a particular
point of time where the accused persons had C'ssembled with
Farsa and lathis in order to cause injury on the complainant
including Habib-deceased who had gone for filing nomination
papers for the Panchayat election. B
19. The High Court found that the purpose of the unlawful
assembly was to stop Habib, his brother Gulam Rasul_ and their
supporter from either contesting the election or supporting the
persons who filed the nomination. They were all present near c
the gate of the school where the nomination papers were to be
filed. Both the trial court and High Court have on analyses of
the evidence come to hold that all the accused persons had
formed an unlawful assembly armed with weapons which were
likely to cause death and, therefore, conviction under Section o
148 IPC and application of Section 149 IPC does not suffer
from any infirmity.
20. According to informant the appropriate conviction
would b'e under Section 302 IPC.
E
21. The academic distinction between 'murder' and
'culpable homicide not 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. F
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 IPC. The following comparative table will be helpful in
appreciating the points distinction between the two offences. G
H
1202 SUPREME COURT REPORTS (2009] 6 S.C.R.
A Section 299 Section 300
A person commits culpable Subject to certain exceptions
homicide if the act by which culpable homicide is murder
the death is caused is done- if the act by which the death is
caused is done -
B
INTENTION
(a) with the intention of (1) with the intention of causing
causing death; or death; or
c
(b) with the intention of (2) with the intention of causing
causing such bodily injury as such bodily injuries as the
is likely to cause death; or offender knows to be likely to
cause the death of the person
D 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
E inflicted is sufficient in the
ordinary course of nature to
cause death; or
KNOWLEDGE
F
(c) with the knowledge that (4) with the knowledge that the
the act is likely to cause act is so imminently dangerous
death. that it must in all probability
cause death or such bodily
G 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.
H
SRI KISHAN & ORS. v. STATE OF HARYANA 1203
~
[DR. ARIJIT PASAYAT, J.]
22. Clause (b) of Section 299 IPC corresponds with A
Clauses (2) and (3) of Section 300 IPC. 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, B
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. 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 offende~s c
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 of Clause (2) is borne out by illustration
(b) appended to Section 300 IPC.
23. Clause (b) of Section 299 IPC does not postulate any D
'· such knowledge on the part of the offender. Instances of cases
· of falling under Clause (2) of Section 300 IPC 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 E
cause death of that 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 F
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 IPC, instead of the words 'likely to cause death'
occurring in the corresponding Clause (b) of Section 299 IPC,
the words "sufficient in the ordinary course of nature" have been G
• 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
difference between Clause (b) of Section 299 IPC and Clause H
1204 SUPREME COURT REPORTS (2009) 6 S.C.R.
t
A (3) of Section 300 IPC 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 determines
whether a culpable homicide is of the gravest, medium or the
lowest degree. The word 'likely' in Clause (b) of Section 299
8 IPC .;onveys 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 24. 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
D this point.
25. 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
E must prove the following acts before it can bring a case under
Section 300 IPC, "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
F 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 proceeded further, and fourthly it must be
proved that the injury of the type just described made up the
three elements set out above was sufficient to cause death in
G
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.
H
26. The ingredient of clause "Thirdly" of Section 300 IPC ..
SRI KISHAN & ORS. v. STATE OF HARYANA 1205
[DR. ARIJIT PASAYAT, J.]
were brought out by the illustrious Judge in his terse language A
as follows:
"12. To put it shortly, the prosecution must prove the
following facts before it can bring a case under Section
300, "thirdly".
B
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. c
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.
D
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 E
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."
27. The learned Judge explained the third ingredient in the F
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 G
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 he knew of its seriousness, H
1206 SUPREME COURT REPORTS [2009] 6 S.C.R.
A or intended serious consequences, is neither here nor 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
B intention to cause it will be presumed unless the evidence or
the circumstances warrant an opposite conclusion."
28. These observations of Vivian Bose, J. have come
locus classicus. The test laid down by Virsa Singh's case
C (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 condition~ are 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;
D 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 the injury that was
E intended to be inflicted.
29. 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
F of nature, and did not extend to the intention of causing death,
the offence would be murder. Illustration (c) appended to
Section 300 IPC clearly brings out this point.
30. Clause (c) and Clause (4) of Section 300 IPC both
require knowledge of the probability of the act causing death.
G 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 IPC would
be applicable where the knowledge of the offender as to the
probability of death of a person or persons in general as
H
-'I
SRI KISHAN & ORS. v. STATE OF HARYANA 1207
[DR. ARIJIT PASAYAT, J.]
distinguished from a particular person or persons - being . A
caused from his imminently dangerous act apprnximates 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. B
31. In the background facts, it is clear that the conviction
as done is appropriate. The sentences awarded do not suffer
from any infirmity.
32. All the appeals are without merit, deserve dismissal, C
which we direct.
N.J. Appeals dismissed.
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