Karnataka High Court
Shrishail S/O. Madivalappa Ganiger vs The State Of Karnataka on 16 March, 2026
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2026:KHC-D:4097-DB
CRL.A No. 100616 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 16TH DAY OF MARCH, 2026
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
CRIMINAL APPEAL NO. 100616 OF 2024 (C)
BETWEEN:
SHRISHAIL S/O MADIVALAPPA GANIGER,
AGE. 38 YEARS,
OCC. AGRICULTURE,
R/O. SHIRUR, TALUK: NAVALGUND,
NOW AT GANESH NAGAR,
2ND CROSS, MADIHAL,
DHARWAD-580 011.
...APPELLANT
(BY SRI. RAVI.B. NAIK, SENIOR COUNSEL APPEARING FOR
SRI. BASAVARAJ.J, ADVOCATE)
AND:
Digitally signed by
THE STATE OF KARNATAKA
RAKESH S REPRESENTED BY ITS STATE PUBLIC PROSECUTOR
HARIHAR
Location: High
HIGH COURT OF KARNATAKA
Court of Karnataka, BENCH AT DHARWAD-580011
Dharwad Bench,
Dharwad THROUGH TOWN POLICE STATION DHARWAD.
...RESPONDENT
(BY SRI. ASHOK KATTIMANI, AGA)
THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF CR.P.C. (SEC.
415(2) OF BNSS, 2023,) SEEKING TO CALL FOR RECORDS FROM THE
COURT BELOW, ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION DATED 23.09.2024 AND SENTENCE DATED
24.09.204 PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS
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NC: 2026:KHC-D:4097-DB
CRL.A No. 100616 of 2024
HC-KAR
JDUGE AT DHARWAD IN S.C.NO. 71/2020 FOR THE OFFENCES P/U/SEC.
302, 307 AND 506 OF IPC AND SET THE APPELLANT AT LIBERTY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
16.09.2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, S.R.KRISHNA KUMAR J., DELIVERED FOLLOWING:-
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR) This appeal by the sole accused in S.C.No.71/2020 is directed against the impugned judgment dated 23.09.2024 passed by the IV Addl. District & Sessions Judge, Dharwad, whereby the appellant - accused was convicted for offences punishable under Sections 302, 307 and 506 IPC and consequently, he was sentenced to undergo rigorous imprisonment for life together with fine of Rs.10,000/- each and in default, to undergo rigorous imprisonment for one year.
2. The material on record discloses that on 05.07.2020, PW1, Smt. Suvarna filed a complaint interalia stating that at around 1.30 A.M. on that day, the deceased Shivayogi Bhavikatti had been -3- NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR murdered by the appellant - accused, who also grievously injured and attempted to murder her son Irappa (PW2) and one Sunil (PW3) in the said incident and accordingly, she requested the police authorities to take action against the appellant-accused in this regard. In pursuance of the said complaint, the police authorities registered an FIR in Crime No.53/2020 against the appellant for offences punishable under Sections 302, 307 and 506 IPC and Section 25 of the Indian Arms Act. On 06.07.2020, the appellant - accused was arrested and has been remanded to judicial custody ever since that day.
3. After investigation, the police authorities filed a charge sheet before the Sessions Court, which came to the conclusion that there was sufficient material to frame charges against the appellant, who pleaded 'not guilty' and as such, the Trial Court proceeded to frame charges against the appellant for offences punishable under Sections 302, 307 and 506 IPC and Section 25 of the Indian Arms Act.
4. The respondent - prosecution examined totally 33 witnesses as PW-1 to PW-33 and documentary evidence at Exs.P1 to P90 and material objects at MO-1 to MO-35 were produced and -4- NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR marked by the prosecution, while the appellant - accused got marked Exs.D1 to D5 in support of his defence. The appellant -
accused contested the case and cross-examined the prosecution witnesses and in his statement recorded under Section 313 Cr.P.C., the appellant took up a specific contention of private defence / self defence and contended that the demise of Shivayogi Bhavikatti and the injuries caused to PW2 and PW3 was on account of the appellant attempting to protect himself by way of private defence / self defence and the appellant was pleaded 'not guilty' of the alleged offences and accordingly, sought for his acquittal.
5. Based on the aforesaid pleadings, the Sessions Court formulated the following points for consideration:
1. Whether the prosecution proves beyond all reasonable doubts that, the death of Shivayogi Bhavikatti was a homicidal death?
2. Whether the prosecution has further proved that the homicidal death of Shivayogi Bhavikatti was caused by accused on 05.07.2020 in his rented house at 2nd Cross, Madihal, Dharwad at about 1.30 A.M., by firing bullet from a Revolver M.O.No.8?-5-
NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR
3. Whether the prosecution further proved that on the aforesaid date, time and place, the accused fired gunshot to P.W.2-Irappa and P.W.3-Sunil Konannavar with intention and knowledge that by his act of firing with gun shot and causing injury to their vital body parts might cause death of them and attempted to murder them and further proved beyond all reasonable doubt that the accused has used his Licenced gun for commission of offence punishable under Section 25 of Indian Arms Act?
4. Whether the act of the accused in causing the death of Shivayogi Bhavikatti is culpable homicide amounting to murder or not amounting to murder?
5. What conclusion?
6. After hearing the parties, the Trial Court proceeded to pass the impugned judgment convicting the appellant - accused for offences punishable under Sections 302, 307 and 506 IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.10,000/- each for offences punishable under Sections 302 and 307 of IPC. Aggrieved by the impugned judgment, the appellant -
accused is before this Court by way of the present appeal.
7. Heard Sri. Ravi B. Naik, learned Senior Counsel for the petitioner and learned Addl. SPP for the respondent - State and perused the material on record.
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8. In addition to reiterating the various contentions urged in the appeal and referring to the material on record, learned Senior Counsel for the appellant submits that the prosecution had failed to establish beyond reasonable doubt that the appellant was guilty of the alleged offences. It was submitted that on the other hand, the material on record clearly established that the appellant had caused the demise of the deceased Shivayogi Bhavikatti and had injured PW-2 and PW-3 by way of self defence during the course of the incident that took place / occurred on 05.07.2020 at around 01.30 A.M. and the Trial Court has failed to consider and appreciate the various inconsistencies, discrepancies, contradictions and admissions in the evidence adduced by the prosecution which clearly indicate that the prosecution had failed to establish the guilt of the appellant beyond reasonable doubt. It was therefore submitted that the impugned judgment passed by the Trial Court convicting and sentencing the appellant for the alleged offences deserves to be set aside and the appellant deserves to be acquitted of the offences alleged against him. In support of his submissions, learned Senior Counsel for the appellant would place reliance upon the following judgments:
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(i) Mahadev v. Border Security Force - (2022) 8 SCC 502
(ii) Suresh Singhal v. State (NCT of Delhi)- (2017) 2 SCC 737
(iii) Mohd. Khan v. State of M.P.,- (1971) 3 SCC 683
(iv) Anand Ramachandra Chougule v. Sidarai Laxman Chougala - -(2019) 8 SCC 50
(v) Rajender Singh v. State of Haryana- (2014) 15 SCC
507.
(vi) Jasbir Singh v. State of Punjab - (2023) 18 SCC 806
(vii) Jharmal v. State of Haryana - (1994) 2 SCC 551
(viii) Darshan Singh v. State of Punjab - (2010) 2 SCC
333.
(ix) State of Punjab v. Gurbux Singh - 1995 Supp (3) SCC 734.
9. Per contra, learned AGA for the respondent - prosecution would support the impugned judgment and submits that there is no merit in the appeal and that the same is liable to be dismissed.
10. We have given our anxious consideration to the rival submissions and perused the material on record.
11. A perusal of the material on record will indicate that the Trial Court has placed reliance upon the evidence of PW1, the complainant and the two eye-witnesses who were injured during the incident viz., PW2 and PW3 as well as Doctors, PW23, PW24 -8- NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR and PW32 and the post-mortem report, autopsy reports, FSL reports, etc., and also the evidence of the Investigating Officer -
PW33 in order to come to the conclusion that the prosecution had established that the appellant was guilty of the alleged offences alleged against him; so also, the Trial Court placed reliance upon the evidence of the other independent witnesses PW20, PW21- Family of the deceased and injured(PW3) and PW30- Executive Magistrate in order to hold that the said evidence corroborated and supported the case of the prosecution. Further, the Trial Court also came to the conclusion that the specific defence of private defence / self defence put-forth by the appellant had not been substantiated or established by him. The Trial Court also noticed that having specifically put-forth a plea of private defence / self defence, the appellant had contradicted himself by also contending that the subject Revolver was actually used by one more person, Eshwar Ganigar, whose contention had not been established by the appellant.
12. In this context, a perusal of the impugned judgment will indicate that the Trial Court came to the conclusion that apart from the fact that the evidence adduced by the prosecution did not suffer -9- NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR from any illegalities or infirmities and that there were no material contradiction, inconsistencies or discrepancies in the case of the prosecution, the defence put-forth by the appellant had not been probablised or proved by him and the material on record was properly considered and appreciated by the Trial Court, which came to the conclusion that the appellant was guilty of the offences alleged against him by holding as under:
"10. Point No.1: In order to prove its case, the prosecution has to prove the ingredients of Section 302, 307, 506 of IPC and Section 25 of Indian Arms Act. Hence, it is essential to see the ingredients of all these Sections which have to be proved by the prosecution beyond all reasonable doubt.
11. Section 302 of IPC, which deals with punishment for murder, Section 307 of IPC deals with punishment for attempting to murder, Section 506 of IPC deals with punishment for criminal intimidation and Section 25 of Indian Arms Act deals with punishment for illegal possession of arms.
12. The ingredients of Section 299-culpable homicide is as under:
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
The ingredients of Section 300 of IPC - murder is as under:
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR 2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1: When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
Exception 2: Culpable Homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
The ingredients of Section 307 of Indian Penal Code speaks that:
307. Attempt to murder.--
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR The ingredients of Section 506 of IPC deals with :
Section 506.Punishment for criminal intimidation. -- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc. Regarding Section 25 of Indian Arms Act, it is alleged by the prosecution that, the licence of said gun was expired on the date of incident and it was not renewed. It is alleged that, the gun was used for commission of offence in contravention of Rules of Indian Arms Act. With these explanations, this Court has to look into whether the prosecution has proved the ingredients of these Sections beyond all reasonable doubt.
13. It is argued by the learned Public Prosecutor on behalf of the State that, the prosecution has proved the guilt of the accused beyond all reasonable doubt under Section 302, 307, 506 of IPC and Section 25 of Indian Arms Act. He has argued that, totally 33 witnesses are examined and 90 exhibits are marked on behalf of the prosecution and 35 Material Objects are marked as M.O.No.1 to 35. The brief facts of the prosecution case as stated by the learned Public Prosecutor is that, C.W.1 / P.W.1 is the cousin sister of the accused. She is the only daughter of her father. Her father and father's brothers are having joint family property for more than 200 acres in her parental house and they are still living jointly. This C.W.1 had asked for financial help from her father to repair her house to the tune of 10 lakhs. Her father is said to have informed her that, she would be given Rs. 10 lakhs only is she relinquishes her share in the joint family property, for which she refused. Hence, difference of opinion occurred in the family of the complainant and the accused.
14. The learned Public Prosecutor argued that, the accused was residing with this C.W.1 - complainant at her house for more than two years prior to the incident and about six months back, when this property dispute arose, she informed the accused to move out of the house due to this dispute. The accused left her house and started to
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR live at a rented house at Madihal, Ganesh Nagar which is nearly 10 minutes distance from the complainant's house. It is further argued that, P.W.2 - Iranna, who is the son of C.W.1, had gone to the house of the accused on the alleged date of incident to ask for share of his mother in the family property. C.W.1 was not aware about it. She called him and when he did not receive phone call, she had called the accused, he did not respond. Later, the accused called to the phone of Kavita, who is wife of her husband's brother. Kavita received the call and gave to C.W.1. When the accused informed her that, her son has come to his house asking share in the property and he would be shown the consequences on that day. Immediately she informed this fact to P.W.3, who was sleeping at her house, and told him to go and bring back her son. P.W.3 - Sunil Konannavar requested deceased Shivayogi Bhavikatti to accompany him to bring back the son of C.W.1 from the house of the accused. Both of them went to the house of the accused. They were trying to pacify the quarrel between the accused and P.W.2. At that time, the accused fired his licenced gun to the neck of P.W.2 and he fell down on the floor. P.W.3 and deceased Shivayogi started to run towards the door. At that time, this accused fired twice and one gun shot hit to P.W.3-Sunil on his abdomen, who also fell in the same room. The deceased Shivayogi got gun shot injury on his back, who ran out of the house and fell outside the house unconscious. It is the case of the prosecution that, the neighbours heard about this incident and later when P.W.2 got conscious, he informed C.W.1, who is his mother, and C.W.28. P.W.21, who is the mother of deceased Shivayogi Bhavikatti was also informed, who rushed to the spot and saw that injured Shivayogi Bhavikatti was lying on the road. She shifted him in an Auto Rickshaw belonging to P.W.19, who is relative of the deceased. They took him to District Hospital, Dharwad. It is further argued that, on the way to the hospital, the deceased had named this accused for having caused gun shot injury to him. He was referred to KMC Hospital, Hubballi for further treatment. But, as his condition was worse, he was taken to SDM Hospital, where he was declared dead. Regarding P.W.2 and P.W.3, they were shifted
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR to KMC Hospital, Hubballi and later to several other hospitals and after several days treatment both recovered from gun shot injuries.
15. It is further argued by the learned Public Prosecutor that, out of 33 witnesses examined by the prosecution, P.W.1, P.W.2, P.W.3, P.W.19, P.W.20, P.W.21 are the family members of injured and the deceased including both injured. P.W.15, P.W.16, P.W.17 and P.W.18 are the neighbours of the accused house. P.W.4, P.W.5, P.W.6, P.W.7, P.W.8, P.W.10, P.W.12 and P.W.13 are mahazar witnesses. P.W.23 is the Doctor, who conducted the post-mortem. P.W.24 is the Doctor, who treated both the injured P.W.2 and P.W.3. P.W.24 is the Ballistic expert, who gave opinion on the gun shot injury. P.W.33 is the Investigating Officer, who had conducted the entire investigation and filed the Charge sheet. P.W.30 is an Executive Magistrate, who recorded the dying declaration of P.W.2 and P.W.3, as they were seriously injured and in an anticipation of their death, statements were recorded and that statements are relevant to the case of prosecution. He has argued that, both of them were in the hospital and there was no chance of recovery from gun shot injury and they were not aware about the death of Shivayogi Bhavikatti and statement given at that point of time pointing towards gun shot injury by the accused is a relevant fact. He has further argued that, the injured witnesses P.W.2 and P.W.3 are best witnesses who have spoken every incident happened and supported the case of the prosecution. There is no doubt Shivayogi Bhavikatti died due to gun shot injury. The Revolver has been seized, which is a licensed Revolver of the accused. There is no dispute that, it was not the gun of the accused nor it was denied that, any such incident has happened at the room of the accused.
16. It is further argued by the learned Public Prosecutor that, it is the defence of the accused during the cross-examination that, this P.W.2, P.W.3, P.W.1 had enemity towards the contended for denying share in the property. Hence, they along with one Prashant Kadam, Ishwar Ganiger, Shivayogi Bhavikatti, Irappa and C.W.1 Suvarna @ Channamma plotted a sketch to kill the accused. It is the defence
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR that, they had assembled in the house of C.W.1 two days prior to this incident and called Shivayogi Bhavikatti and made contract with him to kill this accused and he would be paid 5 lakhs and 02 Acres of land in return. It is the defence that, in furtherance of this plan, they went to the house of this accused in the midnight at about 1.00 to 1.30 A.M. and they banged the door. All of them were under the influence of liquor and as the door was about to be broken, the accused opened the door. All of them tried to assault him and this Shivayogi Bhavikatti was equipped with a dagger. He tried to kill the accused with said dagger. Because of this scuffle, the accused tried to remove the Revolver kept in the showcase, who was held by all other witnesses and in this effort of snatching of Revolver by all of them, it was accidentally fired. It is totally denied by the prosecution that, the injuries found on the neck of P.W.2 and abdomen of P.W.3 and back of the deceased cannot be caused in an accidental firing. The accused was the person who should have explained the circumstances under which such firing has taken place. He has also argued that, this defence was not put-forth similarly to P.W.1, P.W.2 and P.W.3. There is inconsistency in the suggestions, manner in which these persons went to the house of the accused, total number of persons present on the date of incident, manner in which the accidental fire was done varies from the witness to witness. It is suggested to P.W.3 that, one Ishwar Ganiger snatched the Revolver and he tried to fire the accused, who was running out of the house. The accused fell near the door and Shivayogi Bhavikatti tried to hold on this accused, at that time firing done to Ishwar Ganiger hit to Shivayogi Bhavikatti. This is a strange suggestion wherein the accused has taken a defence that, even though gun belongs to him, he has not fired. Throughout the defence, it was suggested that, in the scuffle between the accused and P.W.2, P.W.3, Shivayogi Bhavikatti and Ishwar Ganiger, the Revolver got fired accidentally and caused injuries. Nowhere, the accused has taken a direct defence that, as there was threat to his life, he himself has fired his licenced gun in his right of self defence to protect himself. That would have been proper defence if taken by the accused. But, in
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR the present case, the defence taken by the accused looks more dramatic than the actual occurrence. He has relied upon the evidence of P.W.2 and P.W.3, who are injured witnesses, and why their evidence should not be believed by the Court. P.W.15, who is the owner of the house of the accused, has spoken about hearing sound of gun shot at about 1.30 A.M. near his rented house. He totally denied seeing of these witnesses and the accused near the incident. Regarding the evidence of Ballistic expert P.W.32, he has totally denied all the suggestions made by the Advocate for the accused that, such injuries could happen in any scuffle and in an accidental gun shot. When specific defence is taken by the accused, he has to prove it either in the cross-examination or explained it in 313 statement. In the present case, the accused has given written statement in his 313 statement and explained same defence taken by the Advocate throughout the trial.
17. Hence, based on entire prosecution case, the learned Public Prosecutor has argued that, the accused has failed to put-forth the defence that, in his right of self protection the present incident has happened. The defence is not able to establish that there was conspiracy to kill the accused by the witnesses themselves and he had just exercised his right of private defence. The burden is totally on the accused himself to prove this defence. They ought to have examined this Ishwar Ganiger, whose presence was shown in the entire cross-examination. The evidence of P.W.30, who is an Executive Magistrate and who is not interested witness, being Tahasildar recorded the statement of P.W.2 and P.W.3 when they were in serious condition as if it was a dying declaration. This statement has got evidentiary value. Hence, the learned Public Prosecutor stated that, all the offences alleged against the accused are proved by the prosecution beyond all reasonable doubt. Regarding Section 25 of Arms Act, he has stated that, Gun licence was expired and was not renewed at the time of incident. No document produced by the accused to show that it was renewed. Hence, Section 25 of Indian Arms Act is clearly attracted for having
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR used the Gun for commission of offence. In order to substantiate the defence of accused, no weapons are seized from the house of the accused. The prosecution further argued that, when P.W.1 to P.W.3 being close relatives, who already knew that the accused possess licenced gun since several years and carries the same, why they would go at night 1.30 A.M. to his house unarmed with an intention to kill him. There is no explanation by the defence in this regard. Hence, he prays to convict the accused for all the offences proved by the prosecution.
18. In support of his argument, the learned Public Prosecutor has relied upon the following citations:
1. Reportable Judgment of The Hone'ble Supreme Court of India in Cri. App No.1910/2010 in the case of Balu Sudam Khalde and another Vs. The state of Maharashtra.
2. (2011) 1 SCC (Cri) 381 of Hon'ble Supreme Court in the case of State of Uttar Pradesh Vs. Krishna Master and Others.
3. Reportable Judgment of The Hone'ble Supreme Court of India in Cri. App No.1588/2008 in the case of Birabal Nath Vs. The State of Rajasthan and Others.
4. 2023 AIAR (Criminal) 292 of Hon'ble Supreme Court of India in the case of Prasad Pradhan and Another Vs. The State of Chattisgarh.
5. 2024 AIAR (Criminal) 707 of Hon'ble Supreme Court of India in the case of Surendar Singh Vs. State (NCT of Delhi).
6. 2024 AIAR (Criminal) 83 of Hon'ble Supreme Court of India in the case of Gurmail Singh and Another Vs. State of Uttar Pradesh and Another.
7. AIR 2009 Supreme Court, 2469 in the case of Rajesh Narang Vs. State of Punjab.
8. 2010 Cri.L.J. 1659 Hon'ble Supreme Court in the case of Satyavir Singh Vs. State of U.P.
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR The same would be discussed at relevant point of time.
19. On the other hand, learned Advocate for the accused has argued in length about this case as under:
He has stated that, whether the motive attributed by the prosecution is so strong to kill Shivayogi Bhavikatti and injured P.W.2 and P.W.3 with the gun shot. He has argued that, the prosecution has totally failed to prove any motive and intention on behalf of the accused to commit such crime. It is argued that, the place, time, incident, injury are not disputed by the accused. The only disputed fact by the accused is that, the accused has shot Shivayogi Bhavikatti and P.W.2 and P.W.3. The Court has to look into who are the aggressors in this case. The circumstances such as going to the room of the accused at 1.30 A.M. in the midnight i.e. early morning of 05.07.2020 by P.W.2, P.W.3 and deceased Shivayogi Bhavikatti and secondly; it was a heavy rainy season in July and thirdly; it was a time when Covid-19 pandemic was at peak in the first phase and a curfew was imposed throughout the State for any movement of people during night time. No one was allowed to go out except in case of emergency. Then, whether the prosecution has given any motive to show that there was emergency for P.W.2, P.W.3 to go to the room of the accused in the midnight to seek partition in an ancestral property of the accused and P.W.1. It is argued that, the prosecution has highlighted much about P.W.2 going to the room of the accused at 11.30 P.M. and there was verbal fight between them. They also showed in the Charge sheet that, the accused had called P.W.1, but when she has not picked the call, he had called Kavita Hebballi. This Kavita is an important witness who had received the call of the accused and gave the phone to P.W.1. This Kavita is not shown as a witness at all and the Investigating Officer did not make any effort to enquire her and record her statement. The presence of P.W.1, the mother of P.W.2, near the spot as per her evidence is totally disputed. One Yallappa, who is maternal uncle of P.W.2, was said to be contacted immediately by P.W.2 over phone and he came alone to the spot as per the
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR evidence of P.W.2. He has clearly stated that, this Yallappa shifted himself and C.W.17 / P.W.3-Sunil in an Ambulance. P.W.1 Channamma never came to the spot and she went directly to the hospital in the early morning. Hence, her evidence that she went to the spot and saw all the injured is total improvement. The exact spot where these injured were found is not shown by the prosecution in the evidence of any of the witnesses and there is no clear evidence about it. P.W.1 says about it, but she never gone to the spot. He has highlighted Ex.P.33 and Ex.P.34 intimation issued by Civil Hospital, Dharwad to the Police, where the name of P.W.1 is not found as accompanied with the injured. In the evidence of P.W.26-Doctor, it is stated that, one Ravi Chandrashekhar Horaginamath brought injured to the hospital. But, it is not mentioned in Ex.P.33 and Ex.P.34. It is strange to see that, even in intimation to the Police, the name of the assailant is not stated. Advocate for the accused has relied on Call Detail Records filed along with Charge sheet by the Investigating Officer and got marked as Ex.D.5 and he has argued that, said Call Records supports his defence to show that, these Sunil, Irappa Hebballi, Suvarna and Ishwar Ganiger had several phone calls made between them prior to the incident and said fact is admitted by P.W.2. He has further highlighted that, regarding motive stated by the prosecution, if the details of ancestral family house of Channamma is taken, then Nagappa is the father of the complainant and Mallappa is the eldest son, who died long back, Madivalappa, who is third son, who is th father of the accused, who died long back, Siddappa being the 4 son died after 8-9 months of said incident. The mother of the accused is also dead. All these brothers are still living together with their family members in a joint family property wherein partition has not taken place. This accused is not having any right to give any portion in the ancestral property to P.W.1 and there is no chance of this accused having any enemity against P.W.1 and P.W.2. There was no instance for this P.W.2 to go to the house of the accused in the midnight that too during curfew of Covid-19 to seek share of P.W.1 in the ancestral property. Hence, this circumstance itself is
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR totally against the prosecution witnesses and they are the aggressors. The Investigating Officer has not investigated anything in this regard and he has not examined Nagappa, who is the father of P.W.1 and Madivalappa, who is the father of the accused to bring anything about this rivalry. The investigating Officer admits that, he never went to the village of the accused to enquire anything about this aspect. The accused was not competent to give any share to P.W.1. Hence, motive itself looks doubtful. None of the persons in Shirur village are examined by the prosecution. It is alleged that, the accused had made phone call to P.W.1 and when she did not receive it, he had called Kavita to inform that P.W.2 is in his house. If the accused had any intention to kill P.W.2, why he has called Kavita and informed it before killing. It is also the case of prosecution that, this accused was staying in the house of P.W.1 Channamma for nearly two years prior to this incident and all of them knew about the accused possessing licenced gun with him. If the accused had any intention to kill P.W.2, he would have killed long back when he was staying at their house itself. It is further argued that, there was no reason for the accused to wait until Sunil and Shivayogi Bhavikatti comes to his house in order to fire gun shot to all three. This gives doubt as to story of the prosecution and its genuineness. It is the clear defence of the accused that, P.W.1, P.W.2, P.W.3 and one Ishwar Ganiger along with deceased Shivayogi Bhavikatti had hatched a plan to kill this accused and on the date of incident, P.W.2-Irappa Hebballi, P.W.3-Sunil Konannavar along with deceased Shivayogi Bhavikatti and Ishwar Ganiger had gone to the house of the accused at about 1.00 to 1.30 A.M. in the midnight. They started to bang the door of the house of the accused, they were under the influence of liquor. The accused seeing them through window warned them to go back and come on the next day. When they continued to bang on the door, he opened it and all of them rushed inside the house and started to quarrel with him for share in the property for P.W.1. When he tried to pacify them, Shivayogi Bhavikatti assaulted him with punch and dagger. He had sustained simple injury on his left hand. He tried to call
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR Police in this regard and it is his case that, he had called P.W.1 at that time and when she did not lift the call, he called Kavita and asked her to give phone to P.W.1. He explained about their presence in his house and told her to call them back. P.W.1 told him that, it would be decided as to who is strong today and she disconnected the phone. On this incident, the accused went near the showcase to pick up the Revolver for selfprotection. Seeing this, all the four of them caught hold of him and tried to snatch the Revolver and in that scuffle accidentally firing has taken place which hit to P.W.2 and P.W.3. The accused further took the defence that, he left Revolver and ran towards the door and fell near the door. Shivayogi Bhavikatti rushed to hold him and gun shot fired by Ishwar Ganiger to kill this accused has hit Shivayogi Bhavikatti on his back and he has sustained injuries. Same defence is explained by the accused in his 313 statement in a written note. The same defence is put-forth to P.W.1, P.W.2, P.W.3 and all the circumstantial witnesses throughout the case. It is the specific defence of the accused that, he is not an aggressor, but he has used right of self- defence to protect himself from the aggressors who entered his room at 1.30 A.M. in the night and tried to kill him. P.W.3 in his cross-examination has admitted that, the accused and himself had no enemity with each other. Same defence was put-forth to P.W.1, P.W.2, P.W.3 and some of the facts are partially admitted. In the Case Sheet of P.W.2, it is to be observed that, there was presence of alcohol smell during the surgery, which substantiates the defence of the accused that P.W.2 came in drunken state to his house. Even though no alcohol contents are traced in the viscera of the deceased and the Case Sheet of Sunil Konannavar, the fact that Ishwar Ganiger had consumed liquor is proved in the prosecution case itself. One dagger is seized from the spot of offence which also supports the defence of the accused that it was brought by the deceased Shivayogi Bhavikatti. There was no necessity for the prosecution to seize the dagger which is said to be kept in showcase. But, it was actually fallen on the ground in the scene of offence. Even though P.W.1 says that, she had gone to the spot and
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR she was informed by her son about the incident, P.W.2 himself has stated that, only Yallappa came to the spot and shifted them to the hospital. This Yallappa is not cited as a witness. Even the mother of deceased Shivayogi Bhavikatti examined as P.W.21, who had never gone to the spot, but directly went to the hospital. But, the prosecution has falsely shown her as went to the spot. Hence, on the basis of all these aspects, Advocate for the accused has prayed that, this is the case of culpable homicide not amounting to murder and it is squarely falls in Explanation-2 of Section 300, wherein the accused has used his right of self-defence to protect himself and committed crime and several citations are relied upon by the Advocate for the accused as under, which would be discussed in detail during the relevant point of time.
1. 2001 (1) Kar. L.J. 255 (DB) in the case of State of Karnataka Vs. K.M. Kukkappa.
2. 1992 Crl.L.J. 2845 in the case of Shivappa Laxman Savadi Vs. The State.
3. (2002) 9 Supreme Court Cases, 494 in the case of Motisingh Vs. State of Maharashtra.
4 (2006) 11 Supreme Court Cases, 304 in the case of Krishnan Vs. State of Tamil Nadu.
5 (2008) 2 Kar.L.J. 525 in the case of S. Ganesh Vs. State of Karnataka.
6 (2008) 16 SCC 33 in the case of Raghbir Singh and Others Vs. State of Haryana.
7 (2009) 2 SC (Cri) 110 in the case of Ranvir Singh Vs. State of M.P.
8. 2016 AIAR (Criminal) 731 in the case of Indira Devi and Others Vs. State of Himachal Pradesh.
20. For this argument of Advocate for the accused, the learned Prosecutor has replied that, the defence of right of self-defence
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR taken by the accused is not substantiated by any evidence. When there are clear evidence of injured persons who sustained gun shot injury, why there evidence should be brushed aside by the Court and the defence of the accused should be considered?. He has further brought to the notice of this Court about the report of Ballistic Expert and his evidence, wherein it is clearly stated that, in Ex.P.61 a Blue Colour T-Shirt is examined and there are GSR detected on Article No.6, which is marked as M.O.No.9, on the chest portion. This GSR can be detected on the chest portion only if the gun is hold by the accused and if he directly fires towards the injured / deceased. Hence, the defence is defeated by this aspect. He has also highlighted the evidence of P.W.3, who says that, there was no enemity between P.W.3 and the accused. Hence, there was no threat by P.W.3 to this accused. The evidence of P.W.1 cannot be brushed aside only on the single statement of P.W.2 that his mother did not come to the spot. If the case of the accused is to be believed, then the phone call made by the accused at 11.00 P.M. to P.W.1 does not tally with the defence of the accused. If he had called to P.W.1 at 11.00 P.M. stating that, her son is at his house, then the story of defence that P.W.2, P.W.3 along with Shivayogi Bhavikatti and one Ishwar Ganiger came to his house at 1.30 A.M. cannot be believed. The accused must show in his defence that, to protect himself he himself directly fired towards the injured and deceased. He cannot take defence that, in the scuffle someone else fired and caused injury. He cannot totally deny that gun shot was not fired by him. Hence, based on the evidence of Doctor, Ballistic Expert and on the evidence of injured P.W.2 and P.W.3 corroborated by the evidence of P.W.1, the prosecution prays that, plea of self defence taken by the accused should not be considered and it is a clear case of murder with knowledge and intention and he must be convicted for the said offence.
21. Based on the argument of learned Public Prosecutor and Advocate for the accused and on the citations furnished by both
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR parties, this Court has to answer Point No.1 whether death of Shivayogi Bhavikatti by gun shot injury was homicidal death.
22. The prosecution has to prove that, in order to bring the charges of homicidal death, the intention and knowledge of accused has to be proved beyond all reasonable doubt. In the present case, I have gone through the evidence of P.W.23-Dr. Sunilkumar S. Biradar, who has conducted post-mortem of deceased Shivayogi Bhavikatti on 06.07.2020. He has given the details of the dead body and the description of gun shot injury, clothes and articles present over the body as under:
2. One light blue colored half T-shirt measuring 64cms in length, 53cms in breadth. T shirt shows a hole (2.5X2cms) at back on right side at a meeting point between 36cms from shoulder line, 26cms from bottom line and 15cms from outer margin, Surrounding area shows blackening and bloodstains.
3. One sky blue colored sleeveless T-shirt measuring71cms in length, 49cms in breadth. T-shirt shows a hole (2.5X2cms) at back on right side at a meeting point between 39cms from shoulder line, 30cms from bottom line and 14cms from outer margin, Surrounding area shows blackening and bloodstains.
Upon examining the dead body, he has also noted the External Injuries as under:
1. A circular gunshot entry wound of diameter 7.5mm present at right lower back, situated at a meeting point between 40cms from right shoulder line, 9cms away from midline and 109cms from right heel. Abrasion collar of size 1mm present around the wound.
Surrounding area shows blackening, which is more on right side of wound.
2. Two contusions measuring 7.4mm present horizontally over right chest at a meeting point, between 33cms from right shoulder line (10cms from right nipple), 3cms away from midline and 118cms from right heel, Surrounding area is bulged.
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR On further dissection of entry wound, External Injury No.1, subcutaneous and deeper tissues shows disruption of underlying muscles. A track is established from the entry wound to the External injury No.2 the projectile after piercing the skin, subcutaneous tissue, muscles, passed through the upper part of right kidney, entering abdomen then piercing the inferior surface of liver (right lobe) exited through the anterior surface of liver. Then further, the projectile after piercing the diaphragm, entering chest cavity through 8th intercostals space by piercing intercostals muscles, finally lodged in subcutaneous tissues. The track is found to be directed upwards, forwards and medially. Tissues in the track shows reddish colour discolouration. ALL INJURIES ARE ANTEMORTEM IN NATURE. He has further stated that, a bullet is recovered from the External injury No.2 and packed separately, labelled and handed over to the Police in sealed manner along with sample seal, signature and this report for ballistic opinion. Time since death : Brought dead to KIMS on 05.07.2020. As per the opinion as to cause of death, the Doctor has stated that:
"DEATH DUE TO HAEMORRHAGE AND SHOCK AS A RESULT OF GUNSHOT WOUND SUSTAINED TO THE ABDOMEN HOWEVER VISCERA PRESERVED TO ESTIMATE THE ETHYAL ALCOHOL IF ANY."
Regarding this last opinion of presence of Ethyal alcohol, he has given one report as per Ex.P.90 which was marked with consent at a later stage and in that opinion, it is stated that, Final opinion as to cause of death: After careful perusal of form No.146(i) and (ii), Postmortem report and chemical analysis report of the case, I am of the opinion that cause of death remains same as mentioned in the postmortem report that is "death due to haemorrhage and shock as a result of gunshot wound sustained to the abdomen".
23. This Doctor has been thoroughly cross-examined in detail by the Advocate for the accused. It is suggested that, if a person is walking straight and he was shot from behind, said injury cannot be
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR sustained. But, the Doctor has denied this aspect. It was suggested that, if a person was bent down and another one shoots him from a height, such gunshot injury can be sustained. Even this suggestion is also denied by this Doctor. He has stated that, gunshot injury is depending on the direction in which Revolver is hold by the person who shoots the same. Hence, the evidence of Doctor remains undeterred in the cross-examination by Advocate for the accused.
24. It is proved by the prosecution that the death of Shivayogi Bhavikatti was due to gunshot injuries to his vital parts like kidney, surface of liver, diaphragm, chest cavity, which are vital parts in a human body.
25. Regarding gunshot injury, Ballistic expert is examined in this case as P.W.32. He has stated that, on 05.07.2020 at about 6.30 P.M., he was called by the Dy.S.P., Dharwad and he was informed to visit KIMS Hospital mortuary to examine the dead body of one Shivayogi Bhavikatti. He visited the hospital on 06.07.2020 at 12.00 p.m. There was a blue colour T-shirt and blue colour sleeveless Banian on the body of the deceased. There was an entry wound on the lower right side of back of the deceased. There was gun powder residues. The measurement of this entry wound was 2X2.5cms. When he pushed T-shirt aside, he observed gunshot injury measuring 7.5mm. There was blackening of nearly 5mm around the said entry wound. Thereafter, he has visited the spot of offence and examined the entire house. He has observed one gunshot graze mark on the main door, which was 42 inches from the floor. There was bloodstains on the floor of the hall and there were two dent marks of gunshot on the floor. Later, on 28.07.2020 he had received 21 sealed packets from Dharwad Town Police Station for examination, out of which, packet No.1 was One fired 32 caliber cartridge case. Packet No.2- One revolver pouch with two 32 caliber cartridges; Packet No.3 - One 32 caliber Revolver bearing Sl.No.A4523 of IOF; Packet No.4- Five 32 caliber cartridge cases marked as 4(a) to 4(e) and 32 caliber revolver cartridge; Packet No.5 - One fired 32 caliber cartridge case; Packet No.10 - One 32
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR caliber fired bullet; Packet No.18 - One fired 32 caliber bullet; Packet No.21 - One 32 caliber fired bullet. Upon his examination of .32 caliber empty cartridge, which is marked as M.O.No.26, .32 revolver, which is marked as M.O.No.8, he has given his opinion as under:
1. The Revolver in Article No.3 bears sign of discharge but no opinion is possible regarding the actual date and time of firing.
2. The revolver in Article No.3 is in working condition at the time of examination.
3. The effective range of the revolver in article No.3 is about 50 yards.
4. The cartridge cases in article No. 1, the cartridge cases marked as 4(a) to r(e) in article No.4 and the cartridge case in article No.5 have been fired through the revolver in article No.3.
7. Presence of GSR(gun shot resides) were detected on the T-Shirt in article No.6.
9. The hole marked as 8H-1 on the T-Shirt in article No.8,9H-1 on the T-shirt in article No.9, 17H-1 and 17H- 2 on the shirt in article No.17, 19H-1 on the banian in article No.19 and 20H-1 on the shirt in article No.20 have been caused due to the impact and passage of lead bullets and the same have been fired through the revolver in article No.3.
10. The bullets in article No. 10, 18 and 21 have been fired through the revolver in article No.3.
He has also further given opinion that, the range of firing with respect of entry hole marked as 8H-1 on the T-shirt in article No.8 is from loose contact shot. This belongs to Tshirt of Shivayogi Bhavikatti. This witness was thoroughly cross-examined by the Advocate for the accused.
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR
26. This P.W.32 has admitted the suggestion made in the cross- examination by the Advocate for the accused as under:
"²ªÀAiÉÆÃV CªÀgÀ ¨É¤ß£À PɼÀ¨sÁUÀz° À è M¼ÀºÉÆPÀÌ UÀÄAqÀÄ AiÀiÁªÀ jÃw M¼ÀUqÀ É ºÉÆÃV MAzÀÄ PÀqÉ ¤AwzÉ C£ÀÄߪÀ §UÉÎ ªÀÄgÀuÉÆÃvÀg Û À ¥ÀjÃPÉAë iÀÄ°è G¯ÉÃè R EzÉ CAzÀgÉ ¸Àj. ªÀÄÈvÀ ²ªÀAiÉÆÃVgÀªg À ÀÄ £ÉÃgÀªÁV £Àqz É ÀÄPÉÆAqÀÄ ºÉÆÃUÀÄwÛgÀĪÁUÀ »A¢¤AzÀ UÀÄAqÀÄ ºÉÆqÉzg À É ªÀÄgÀuÉÆÃvÀg Û À ¥ÀjÃPÉAë iÀÄ°è PÁt¸ÀĪÀAvÉ UÁAiÀÄ DUÀĪÀÅ¢®è CAzÀgÉ ¸ÁQëAiÀÄÄ ¸Àé®à §VÎzg À É D jÃw UÁAiÀÄ DUÀÄvÀz Û É CAvÁ ºÉüÀÄvÁÛg.É ªÀÄÈvÀ ²ªÀAiÉÆÃV EªÀjUÉ 6-7 ¥ÀÄl CAvÀgz À ° À è UÀÄAqÀÄ ºÉÆqÉAiÀįÁVzÉ CAzÀgÉ ¸ÀjAiÀÄ®è, ¸ÁQë ªÀÄÄAzÀĪÀgz É ÀÄ ²ªÀAiÉÆÃVgÀªg À À zÉúÀ¢AzÀ 3 EAa£À M¼ÀUq À AÉ iÀÄ CAvÀgzÀ °À è UÀÄAqÀÄ ºÉÆqÉAiÀįÁVzÉ CAvÁ ºÉüÀÄvÁÛgÉ. £À£Àß C©ü¥ÁæAiÀÄzÀ ¹ÃjAiÀÄ¯ï £ÀA§gÀ 12 gÀ°è Contact shot CAvÁ §gÉ¢zÀÄÝ CzÀgÀ CxÀð zÉúÀPÉÌ lZï ªÀiÁr UÀÄAqÀÄ ºÉÆqÉ¢zÀÄÝ EgÀvz ÀÛ É."
This admission in the cross-examination in the evidence of P.W.32 clearly goes to show that, even the accused admits that the death of Shivayogi Bhavikatti was due to gunshot injury. The Ballistic expert has clearly stated that, the gun was fired within 03 inches from the body of Shivayogi Bhavikatti and as if Revolver has touched the body before the gunshot. Hence, on the basis of evidence of this Doctor and Ballistic expert, I am of the clear opinion that, the prosecution has clearly proved that the death of Shivayogi Bhavikatti was due to the injuries sustained in the gunshot and death is a homicidal death and I have answered Point No.1 in the Affirmative.
27. POINT No.2 AND 3: I have taken Point No.1 and 2 together for discussion since firing has taken place in the same place, time and in the same incident. There was no time gap in both these incidents. Hence, these two points are taken together for discussion.
28. The prosecution has already proved that the death of Shivayogi Bhavikatti was a homicidal death. The motive shown by the prosecution is that, the complainant and the accused had enemity towards property dispute in the ancestral property of complainant's father. The prosecution has to prove this motive of the
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR accused. As already stated in the argument of learned Public Prosecutor, he has pointed out several aspects stating that, C.W.1, who is the mother, has given evidence in support of prosecution case and she has stated that, her request for a loan of Rs. 10 lakhs from her father in order to repair her house was denied by them and later they agreed to pay 10 lakhs to her on the condition that she has to relinquish her share in the ancestral property. It is to be observed that, she was a married daughter and her marriage was taken place long back and she was residing at Dharwad along with her husband's brother and his family.
29. The admitted facts in this case by the accused as well as the prosecution is that, the complainant and the accused are relatives. The father of the complainant and father of the accused are own brothers, the accused was residing in the house of P.W.1 two years prior to the incident and only after property dispute arose between them P.W.1 told him to go out of the house and he left the house to stay at a rented house at Ganesh Nagar, Madihal, Dharwad. It is also admitted fact by the accused in the cross-examination of P.W.1, P.W.2 and P.W.3 that, P.W.2 and P.W.3 came to his room on the alleged date of incident during night hours. It is put-forth by the prosecution that, at about 11.00 P.M., Iranna Hebballi had gone to the house of the accused. It is also admitted fact by the prosecution as well as the accused that, the accused called to the phone number of C.W.1 / P.W.1 at about 1.00 A.M. in the midnight. As per the prosecution case, she had received the call and the accused threatened to kill her son as he is in his house and asking for share in the property. Only this fact is denied by the accused saying that, when he called P.W.1 through phone, she did not receive the same and he had to call Kavita at about 1.00 A.M. to inform that, P.W.2 and P.W.3 and Shivayogi Bhavikatti along with Ishwar Ganiger have come to his room and making quarrel with him. There is a thin line between the defence of the accused and the story of the prosecution. The evidence of these eye witnesses has to be appreciated about this aspect.
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR
30. The prosecution has adduced oral evidence of following witnesses in support of its case.
The P.W.1, P.W.2, P.W.3, P.W.19, P.W.20, P.W.21 are the family members of injured and the deceased including both injured. P.W.15, P.W.16, P.W.17 and P.W.18 are the neighbours of the accused house. P.W.4, P.W.5, P.W.6, P.W.7, P.W.8, P.W.10, P.W.12 and P.W.13 are mahazar witnesses. P.W.23 is the Doctor, who conducted the post-mortem. P.W.24 is the Doctor, who treated both the injured P.W.2 and P.W.3. P.W.24 is the Ballistic expert, who gave opinion on the gun shot injury. P.W.33 is the Investigating Officer, who had conducted the entire investigation and filed the Charge sheet. P.W.30 is an Executive Magistrate, who recorded the dying declaration of P.W.2 and P.W.3.
31. The P.W.1 in her examination-in-chief has deposed that, at about 1½ years back at 9.00 P.M., her son Iranna Hebballi (P.W.2) went out of the house saying that, he is going to field. He did not return till 12.00 P.M. At that time, she called her son from the phone of Kavita. Her son did not receive the phone call. Immediately after the phone was disconnected, the accused Shrishail called to the same phone of Kavita and informed her that, her son is with him and he would teach a lesson to him. P.W.1 further stated that, she heard her son crying in the background calling her name. She immediately informed Sunil that both of them are fighting and sent him to bring her son back. In her chief examination, she says that, immediately herself and her brother-in-law Yallappa went to the house of the accused. When she went there, she saw that her son was fallen inside the house and was struggling for life. Sunil and Shivayogi Bhavikatti had fallen outside the house and both of them were unconscious. She had seen bleeding injury to the neck of her son Iranna and bleeding injury to the abdomen of Sunil. Shivayogi Bhavikatti was unconscious and blood was oozing behind his neck. The accused was not in the house and immediately her brother-in- law Yallappa brought an ambulance and they shifted her son Iranna and Sunil to Government Hospital, Dharwad. Shivayogi Bhavikatti
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR was also brought to the Hospital and then shifted to SDM Hospital. Her son and Sunil were shifted to KMC Hospital and she reached KMC Hospital at 6.00 A.M. and thereafter she went to the police station and lodged the complaint. She has clearly stated that, she lodged the complaint against the accused stating that, he has shot her son. It is further stated that, she came to know from the neighbours that, Shrishail had shot all the three of them. It is clear from the evidence of P.W.1 that, she had called at 12.00 P.M. to the phone of her son and the accused called her immediately thereafter.
32. The P.W.2 in his examination-in-chief has deposed that, on 04.07.2020 he along with Shivayogi Bhavikatti went to his field at 8.30 P.M. in a bike. They had gone to put fodder to their cattle. He was dropped near his own house at about 11.00 P.M. by Shivayogi Bhavikatti. From there, he went to the house of the accused. He asked the accused stating that, as they are poor they are in need of property and it should be given to them. At about 1.00 A.M., the accused called to mother of this P.W.2 over phone and told that, her son is at his house and he would teach him a lesson that day. After ten minutes of speaking to his mother, C.W.17-Sunil and Shivayogi Bhavikatti came to the house of the accused. This Shivayogi Bhavikatti also told the accused that, P.W.2 is poor and they are in need of property and it must be given by the accused. It is further stated by P.W.2 that, the accused immediately took his Revolver saying that he will not give share in the property and shot P.W.2. Gunshot injury was sustained on the back of neck on the left side of Iranna. This witness has further stated that, immediately C.W.17- Sunil and Shivayogi Bhavikatti tried to run out of the house and the accused shot them also. P.W.2 fell down and lost his consciousness. After 15 minutes, he regained consciousness and called his uncle Yallappa and informed the same. Within 5 to 10 minutes, his uncle came to the spot and shifted himself and C.W.17 Sunil to the hospital in an ambulance.
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR
33. The P.W.3 in his examination-in-chief has deposed that, on 04.07.2020 at about 10.00 P.M. he had his food and was sleeping in the house of Iranna Hebballi and in the same house C.W.1 was also residing. This P.W.2 Iranna had gone to the field and he did not return. He has clearly stated that, P.W.1, P.W.2 and their uncle residing in the same house. At about 1.00 A.M. in the night the accused called C.W.1 and told her that Iranna Hebballi has come to his room and he would finish him. C.W.1Channamma immediately informed this aspect to the present witness and told him to bring Irappa Hebballi from the house of the accused. This witness while going out of the house, went to Shivayogi Bhavikatti and informed him about the incident and asked him to accompany this P.W.3. Thereafter, Shivayogi Bhavikatti brought his Motorcycle and both of them went to the house of this accused on the bike of Shivayogi. In the middle of the road / half way, the petrol was emptied and bike was stopped. Thereafter, they started to walk towards the room of Shrishail Ganiger. When they reached his room, the accused and Iranna Hebballi were orally quarreling each other. At that time, both this witness and Shivayogi Bhavikatti told them not to quarrel and let them speak on the next day. It is stated that, the accused suddenly took Revolver and saying that he would finish all of them fired towards Irappa Hebballi and caused gunshot injury to his neck. Immediately this Sunil and Shivayogi Bhavikatti got frightened and started to run towards the door. At that time, the accused fired on the back of Shivayogi Bhavikatti and on the stomach of this witness. He fell down near the door and lost his conscious. At about 10 to 15 minutes later he regained conscious and he called his mother on her phone and informed about the incident. Thereafter, his mother C.W.1 and Yallappa came to the house of the accused and brought an Ambulance. All of them were shifted to Government Hospital, Dharwad and thereafter to KIMS Hospital, Hubballi. He was operated at the hospital at about 5.00 A.M. and he was in the same hospital for nearly one week under treatment. He speaks about his statement given to the police on 07.07.2020 regarding this incident. He came to know about death of Shivayogi Bhavikatti later by the
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR Police. He also speaks about giving statement before the Judge under Section 164 of Cr.P.C. Hence, both injured witnesses P.W.2 and P.W.3 have totally supported the case of prosecution and stated that, the accused had shot them and the deceased Shivayogi. Their evidence is supported by the evidence of P.W.1 complainant.
34. The evidence of above witnesses must be read along with the evidence of P.W.20 -Nirmala Bhavikatti, who is the mother of the deceased Shivayogi Bhavikatti. In her evidence, she states that, about two years back at 2.30 A.M. in the night her son Shivayogi called her through phone and informed that Shrishail Ganiger has shot him with gun and he has fallen near the shop of Humbi near Madihal. He told her to come immediately to the spot. She went along with one Shivaraj in his Auto Rickshaw to Madihal and her son had fallen near the shop of Humbi on the road. She went there and asked him as to what happened. Shivayogi informed that, Shrishail Ganiger has fired him. She shifted her son in an Auto Rickshaw to the Civil Hospital. She seen that there was gunshot injury passing through the back and the bullet was in the chest of Shivayogi. On the way to the hospital, he was saying her that, he has been shot and he would be dead soon. After reaching the hospital, he could not speak anything and thereafter he was shifted to SDM Hospital, Dharwad by C.W.23. She was in the hospital till 5.00 A.M. and thereafter she went to home and at 6.00 A.M. she was informed that her son has succumbed to the injury. This witness has further stated that, while shifting her son to the hospital, he informed her that, Irappa - P.W.2 had gone to fight with accused Shrishail Ganiger for property and Irappa's mother told Sunil to pacify the same, Sunil took Shivayogi along with him. She later came to know that, Shrishail had shot her son, Sunil and Irappa Hebballi. She was treated as hostile and cross- examined by the learned Public Prosecutor and in the cross-examination, her entire statement was put-forth, which was admitted by her.
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR
35. There is one more witness P.W.21 - Muttavva Konannavar, who is the mother of P.W.3 - Sunil Konannavar. In her evidence, she says that, about 03 years back during Corona first phase she was at her house. At about 1.45 A.M. her son Sunil called her and told that, at Ganesh Nagar of Dharwad, Shrishail Ganiger has shot him and he requested her to come to the spot. She further says that, on that day Sunil was sleeping in the house of Irappa Hebballi. She immediately went to the house of Irappa Hebballi and came to know that, the accused has fired towards P.W.2 and her son and Shivayogi. Suvarna and Yallappa came tin a bike to the house of the accused. She came to the spot in another bike. When she reached the house of the accused, her son Sunil was fallen near the door, P.W.2 was fallen inside the house and Shivayogi also had fallen near Sunil. Her son had sustained gunshot injury on the right side of abdomen and all of them were struggling for life with heavy bleeding. When she enquired her son Sunil, he informed that the accused Shrishail Ganiger has caused gunshot injury to himself, Shivayogi and Irappa Hebballi. Thereafter, she along with P.W.1 - Suvarna and Yallappa shifted Sunil and Irappa in an Ambulance to Civil Hospital, Dharwad. At that time, the mother of Shivayogi has also reached with her brother and they shifted Shivayogi in an Auto Rickshaw to the hospital. She also stated that, as there was property dispute between C.W.1 and her father, this P.W.2 had been to the house of the accused to ask for share and this incident has occurred. She has further stated that, later she came to know about the property dispute between P.W.1, P.W.2 and the accused. She also stated about the incident as informed to her by Suvarna. She further stated that, Sunil had taken Shivayogi Bhavikatti to the house of Shrishail and this fact is informed to her by P.W.1.
36. P.W.19 - Shivaraj Bhavikatti is the brother of deceased Shivayogi Bhavikatti. He has given evidence that, about two years back while he was sleeping in his house, around 12.45 midnight one Deepak Shettar came to his house and informed that, Shivayogi Bhavikatti has been shot by gun and fallen near Madihal, Ganesh
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR Nagar cross. Immediately he informed this fact to P.W.20 Nirmala Bhavikatti and went in their Auto Rickshaw to Madihal, Ganesh Cross. He had seen Shivayogi Bhavikatti fallen near a Grocery shop. They also called Ravi Horaginamath, who reached to the spot, all of them shifted him in an Auto Rickshaw. He had seen gunshot injury to the back of this Shivayogi Bhavikatti. He also speaks about shifting him to the hospital. But, totally denied about asking Shivayogi Bhavikatti as to how the incident happened and who caused gunshot injury. Later Shivayogi died in the hospital. Thereafter, he came to know from C.W.1 / P.W.1 and P.W.2 that, Shrishail Ganiger had shot him. Apart from this, he has not supported the case of prosecution in his chief examination. He was treated as hostile and crossexamined by the learned Public Prosecutor wherein partially he has admitted some of the suggestions and denied many other suggestions.
37. Hence, these are the witnesses who have supported the case of the prosecution in their chief examination and categorically stated that, when P.W.3 and Shivayogi Bhavikatti went to the room of the accused to bring back Iranna, this incident has happened and the timing was about 1.30 A.M. In the light of this evidence, it is to be observed whether their chief examination has been shattered by way of cross-examination and whether any material contradictions are brought in their evidence. As already stated, P.W.1 states that, immediately after the incident she visited the spot and she along with Yallappa had shifted her son Irappa and Sunil to the hospital. Even though P.W.2 denied this aspect and stated that, only Yallappa came to the spot, the evidence of P.W.1 is supported by the evidence of P.W.3 - Sunil, P.W.20 - Nirmala Bhavikatti and P.W.21 - Muttavva Konannavar. All of them have stated that, P.W.1 reached the spot along with Yallappa and she was present while shifting them to the hospital. Hence, immediately after the incident, P.W.1 reached the spot along with Yallappa and shifted the injured to the hospital. She was informed by her son Iranna as well as Sunil that,
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR the accused has shot fired with his gun towards them and caused injury to all three of them.
38. At this stage, the defence of the accused has to be looked into. In the cross-examination, it is suggested by the Advocate for the accused to P.W.1, P.W.2, P.W.3 that, this incident has not happened as narrated by them, but it was an accidental fire in exercise of his right of private defence. In the evidence of P.W.2, it is brought out and suggested that, this Shivayogi Bhavikatti is a Rowdy Sheeter and he was called as Punch by all of them. This P.W.2, P.W.3 are close friends of Shivayogi Bhavikatti. It is admitted by P.W.1 that, prior to this incident, he had called several times to Ishwar R. Ganiger and spoke to him on the phone. P.W.2 also admits that, he was aware of the accused possessing licenced gun and carrying the same always with him. He also admits that, it was a very small house having 10X12 width where the accused was residing and the house had only one hall, bed room and a kitchen. There is a clear admission by P.W.2 that, the incident happened in the midnight of 04.07.2020 and 05.07.2020. It is also admitted that, it was a rainy season and Corona first phase was existing in that month. He further admits that, as per Government Notification no one was allowed to go out of the house except emergency. Till here the defence of accused looks probable. It was directly suggested to P.W.2 that, he along with Sunil, Shivayogi Bhavikatti one Prashanth Harogeri, Ishwar Ganiger had assembled in the cattle shed of Shivayogi Bhavikatti and consumed liquor, which is denied. P.W.2 admits having called the accused at about 11.00 P.M. But, denied that, he abused the accused in filthy language. It is suggested that, all these five persons went to the house of the accused together at about 1.00 A.M. It was suggested that, they banged the door of house of the accused and the accused did not open the door. Seeing them from window, accused told them to go back as all of them were drunken. It is suggested that, at that time the accused called the mother of this P.W.2 to inform that all these persons have come to his house and banging his door. It is suggested that, the
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR mother of P.W.2 told the accused that, it would be decided as to who is strong today. Thereafter, the accused opened the door and all of them entered the house. The accused searched for phone number of Police to call them and this Shivayogi Bhavikatti hit his hand with punch and the Mobile phone was thrown on the floor. Bleeding injury also caused to the hand of the accused by this punch used by Shivayogi. It is clearly suggested that, when the accused got fear that all of them would kill him, he went near the showcase to remove the Revolver. It is also suggested that, all of them caught hold of accused and tried to snatch the Revolver. In this scuffle Revolver chamber and trigger portion came to the hand of Shivayogi Bhavikatti and the accused only held the barrel. When they were trying to snatch the Revolver, same was fired and it hit the neck of P.W.2. All these suggestions were denied by P.W.2 saying that, it was not accidental fire, but the accused directly shot him with the Revolver. There is an attempt made in the evidence of P.W.2 that, immediately after the first shot to his neck, he lost conscious and he had not seen what happened thereafter, hence, he has not seen as to whether Shrishail shot Shivayogi Bhavikatti and Sunil. All these suggestions put in defence of accused are not admitted by eye- witnesses and injured. They also denied that, gunshot was fired accidentally by the accused. Hence, the suggestions made by advocate for accused to bring home the right of private defence in firing the P.W.2 and P.W.3 has failed at this stage itself. But incident is admitted.
39. Another witness who spoke about the gunshot injury was P.W.3, who was cross-examined in detail. The defence advocate has argued and cross-examined that, the presence of this witness in the house of P.W.1 on the date of incident itself looks doubtful, because, he is staying with his mother nearly 07 kilometers away from the house of the accused and nearly half kilometer distance from the house of the complainant. As already explained, it was a rainy season and peak time of Corona pandemic and movement of any person outside the house was restricted. At such time, leaving
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR behind his mother alone at house why this P.W.3 was staying in the house of P.W.1 also creates doubt and this supports the defence of the accused that, all of them had assembled in the house of P.W.1 for hatching a plan to kill the accused. Hence, he was cross- examined in this regard in detail. This P.W.3 admits that, this Shivayogi Bhavikatti is residing near Totager Oni and the house of this complainant is near Depot circle, Dharwad. Defence counsel argued that, it is highly impossible to believe that, P.W.1 informed Sunil at about 1.00 A.M. to go and bring back her son from the house of the accused and this Sunil went from his house to the house of Shivayogi Bhavikatti and from there he reached the house of the accused within 5 to 10 minutes. Upon careful reading of entire evidence of P.W.2, as already stated above, the distance between the house of the accused and the house of this witness is 07 kilometers. Same suggestion was put to P.W.3 about the defence of this accused and it was also suggested that, on 04.07.2020 the complainant, Irappa, this Sunil and Ishwar Ganiger had assembled in the house of P.W.1 and called Shivayogi Bhavikatti and made a contract with him to kill the accused for 5 lakhs supari. It was agreed that, he 10,00,000/-, but she has to relinquish her would be given two Acres of land if this plan is executed. It is suggested that, all these persons went to the house of the accused in a Maruti Omni van and this Prashanth Harogeri was left in the Van and only four of them went to the house of the accused. P.W.3 denied all these suggestions, but he admits that, when they went to the house of the accused, it was 1.00 A.M. in the midnight on 05.07.2020. He also admits that, the accused had called to Suvarna in the phone of Kavita and informed about the incident, but denied that it was after he reached the house of accused. Even though he says that, at that time he was sleeping in the house of P.W.1 and was not at the spot and denied all the suggestions made by the Advocate for the accused. There is one admission in page No.15 of cross- examination of this witness as under:
FgÀ¥Àà (¥Áæ¸Á 2), ²ªÀAiÉÆÃV ¨Á«PÀnÖ ºÁUÀÆ F±ÀégÀ UÁtÂUÃÉ gÀ DgÉÆæ PÉÊAiÀÄ°èzÀÝ - ¦¸ÀÆ® Û £ÀÄß QvÀÄÛPÉƼÀî®Ä ¥ÀæAiÀÄw߸ÀÄwÛzÁÝUÀ D
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR dUÁÎlzÀ°è jªÁ®ég¤ À AzÀ UÀÄAqÀÄ ¥Áæ¸Á 2 gÀªj À UÉ vÀUÀ°gÀÄvÀÛzÉ JAzÀgÉ ¸ÀļÀÄî. £Á£ÀÄ, ²ªÀAiÉÆÃV ¨Á«PÀnÖ ºÁUÀÆ F±ÀégÀ UÁtÂUÃÉ gÀ J®ègÀÆ ¸ÉÃj DgÉÆæUÉ ¦¸ÀÆÛ®£ÀÄß vÉUz É ÀÄPÉƼÀî®Ä ©qÀ°®è D UÀÄzÁÝlzÀ°è UÀÄAqÀÄ £À£Àß ºÉÆmÉÖUÉ vÀU° À gÀÄvÀz Û É JAzÀgÉ ¸ÀļÀÄî D QvÁÛlzÀ°è MAzÀÄ UÀÄAqÀÄ, ¨ÁV°UÉ §r¢gÀÄvÀÛzÉ JAzÀgÉ ¸ÀļÀÄî, D ¸ÀªÀÄAiÀÄzÀ°è DgÉÆæAiÀÄ£ÀÄß £ÁªÀÅ eÉÆÃgÁV dVÎzÀÝjAzÀ DgÉÆæ PɼU À É ©zÀÄÝ Nr ºÉÆÃUÀ®Ä ¥ÀæAiÀÄwß¹gÀÄvÁÛgÉ JAzÀgÉ ¤d. £ÁªÉ®g è ÀÆ DgÉÆæAiÀÄ£ÀÄß PÉÆ®ÄèvÉÃÛ ªÉ JAzÀÄ w½zÀÄ DgÉÆæ ªÀÄ£ÉAiÀÄ ºÉÆgÀUÉ Nr ºÉÆÃUÀ®Ä ¥ÀAæ iÀÄw߸ÀÄwÛzÁÝUÀ ²ªÀAiÉÆÃV ¨Á«PÀnÖ DgÉÆæAiÀÄ ±Àlð£À PÁ®gï »rAiÀÄ®Ä ºÉÆÃzÁUÀ DgÉÆæ £É®PÉÌ ªÀÄÄUÀÎj¹ ©zÁÝUÀ F±Àg é À UÁtÂUÃÉ gÀ C°èzÀÝ jªÁ®égÀ vÉUz É ÀÄPÉÆAqÀÄ DgÉÆæUÉ ºÉÆqÉAiÀĨÉÃPÉAzÀÄPÉÆAqÁUÀ UÀÄAqÀÄ £É®PÉÌ vÁVgÀÄvÀÛzÉ JAzÀgÉ ¸ÀļÀÄî. C°è ¸Àܼz À ° À è UÀÄAqÀÄ vÁVzÀÝjAzÀ mÉÊ®ì£À ªÉÄÃ¯É PÀ¯É DVvÀÄÛ JAzÀgÉ ¸ÀļÀÄî. DgÉÆæAiÀÄ£ÀÄß ²ªÀAiÉÆÃV »rzÀÄPÉƼÀî®Ä ºÉÆÃzÁUÀ F±ÀégÀ UÁtÂUÃÉ gÀ CªÀgÀ PÉÊAiÀÄ°èzÀÝ gÀªÁ®ég¢ À AzÀ DgÉÆæUÉ UÀÄAqÀÄ ºÁj¸ÀÄwÛzÁÝUÀ ²ªÀAiÉÆÃV ¨Á«PÀnÖ DgÉÆæAiÀÄ£ÀÄß §VÎ »rAiÀÄ®Ä ¥ÀAæ iÀÄwß¹zÁUÀ ¸Àzj À UÀÄAqÀÄ ²ªÀAiÉÆÃV ¨Á«PÀnÖ CªÀjUÉ vÀU° À gÀÄvÀzÛ É JAzÀgÉ ¸ÀļÀÄî.
In the entire suggestion, he has only admitted about snatching the accused by them and he fell and tried to run out of the house. Only this stray admission supports the defence of the accused. Regarding all other suggestions, which are totally denied by P.W.1, P.W.2 and P.W.3. A stray admission in the cross- examination cannot be taken as washing away all the evidence given by prosecution witnesses in support of case.
40. The prosecution tried to prove and narrate the incident as seen by the neighbours and house owner and cited them as witnesses. Regarding the evidence of neighbours of the spot of incident, P.W.15 - Sachin C. Humbi is the owner of the house in which the accused was residing. He admits having heard gunshot sound while he was sleeping at about 3.00 A.M. in the morning. He says that, none of them came out of the house. At about 5.00 A.M. Police came to their house and enquired them about any shoot out. He spoke about only hearing the sound of gunshot, but shown his ignorance about any of the incident thereafter. He was treated as hostile and cross-examined by the learned Public Prosecutor, wherein it was suggested that, at about 1.30 A.M. he had heard the
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR gunshot on 05.07.2020. Only this aspect is admitted by him. Remaining all the suggestions like his father and himself came out of the house and saw that three persons had sustained injuries and fallen on the road is denied by him. He has totally denied having seen the injured after the incident. A detailed suggestion was made by the learned Public Prosecutor to him that, himself and his father went to the police station in the evening on 05.07.2020 and the accused explained him about the entire incident. The statement of this witness is marked as Ex.P.22, who has totally denied having given such statement before the Police. Advocate for the accused tried to suggest about his defence to the house owner, but the same was also denied by him. Except hearing one gunshot, he has denied all other aspects. Hence, the evidence of this witness is of no use to both prosecution as well as defence counsel.
41. P.W.16 - Namadev H. Kanakagiri is said to be another neighbour, residing in the same house of Chandrashekhar Humbi. He has totally denied having witnessed any incident near the house on the alleged date. He only says that, police came to his house at about 1.00 A.M. and asked him about any incident of gunshot near his house. He has totally shown his ignorance about the entire incident and in spite of cross-examination by the learned Public Prosecutor that, he had gone to the police station to see the accused and the accused had confessed with him about the entire incident. An effort of learned Public Prosecutor to bring out anything about the incident has failed as this witness did not support the case of prosecution.
42. P.W.18 - Jyoti N. Kanakagiri was also a tenant in the same building where the accused was residing. She has totally denied having heard the gunshot sound or seen any incident. She only says that the police visited her house and enquired, but she denied about any incident. She was treated as hostile and cross-examined by the learned Public Prosecutor, who had suggested that, she had seen the incident from her house window and came out of the house and saw the accused running from the house. She had also helped
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR in shifting the injured to Ambulance. She has totally denied that, she visited the police station and the accused confessed about the incident with her. She totally denied having given statement as per Ex.P.25.
43. Hence, the neighbours of the spot of incident, who are alleged to be eye witnesses to the incident immediately after the gunshot and examined as P.W.5 to P.W.15 have totally turned hostile to the case of prosecution and denied about entire incident. The prosecution could not prove the evidence of any of circumstantial witnesses to prove its case.
44. Regarding the evidence of Doctors, who gave First Aid and conducted surgery on P.W.2 and P.W.3 as well as first seen the deceased Shivayogi Bhavikatti also supports the case of prosecution. P.W.24-Dr. Balachandra P. Sanganal had conducted surgery to Iranna S. Hebballi and recovered bullet from his body. He says that, same was recovered by the police, packed and sealed in his presence. He has identified the bullet before the Court as M.O.No.24. He also states about the surgery of Sunil Konannavar and recovery of bullet as per Ex.P.25. He also says that, bullet had pierced on the left neck and had gone till right side shoulder of P.W.2-Iranna. The bullet hit to Sunil on the right side of abdomen was recovered from his stomach. He also speaks about dying declaration recorded by the Tahasildar Vijaykumar Kadakol (P.W.30) on 07.07.2020 as per Ex.P.38 and Ex.P.39. He has identified the photographs Ex.P.40 and Ex.P.41 taken in his presence.
45. P.W.25 - Dr. Fanim G. Kalaburgi is the Medical Officer of KIMS, Hubballi, who issued the Case Sheet of Irappa Sangappa Hebballi and Sunil Konannavar. He had furnished the Case Sheet of both of them along with the Wound Certificates as per Ex.P.31 and Ex.P.32.
46. P.W.26 - Dr. Mahammad Tahir M. Solapur has seen this Shivayogi Bhavikatti at the first instance at Government Hospital,
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR Dharwad. Said Shivayogi Bhavikatti was brought by Ravi Chandrashekhar Horaginamath with gunshot history. There was gunshot on the back of Shivayogi Bhavikatti. After giving first aid, he was immediately referred to KIMS Hospital as per Ex.P.33. He also spoke about shifting of Irappa and Sunil at 2.54 A.M. to Government Hospital, Dharwad in an Ambulance. Both of them had gun shot injury. After giving first aid, they were referred to KIMS Hospital as per Ex.P.34 reference.
47. P.W.30 - Vijaykumar Kadakol is the Tahasildar, who recorded the dying declaration of P.W.2 and P.W.3 as per the request of the Investigating Officer by visiting the hospital on 07.07.2020 and recorded their statement as per Ex.P.38 and Ex.P.39. All these witnesses support the version of prosecution regarding gunshot injury and recovery of bullet from the body of Shivayogi Bhavikatti and P.W.2 and P.W.3-injured. P.W.30 has spoken statement recorded by him in the hospital while P.W.2 and P.W.3 were in critical condition and in the verge of death. Their statement can be taken as dying declaration wherein they have stated the name of accused as he fired on them with his gun. Hence, the evidence of this witness is also relevant to prove the case of prosecution.
48. Regarding the spot mahazar, seizure of Revolver, seizure of clothes worn by the accused and deceased as well as injured, the evidence of P.W.4, one Ravi Chandrashekhar Horaginamath has given evidence about the inquest panchanama of Shivayogi Bhavikatti and identified his signature on Ex.P.5 and photograph Ex.P.6. The P.W.5- Nagaraj G. Badiger is said to be a Spot Mahazar witness. But, he has not supported the case of the prosecution regarding drawing up of Spot Mahazar as per their version. He has only identified his signature on Ex.P.2 and his photograph as per Ex.P.3 and Ex.P.4. He denied the recovery of Revolver pouch, dagger and a Mobile phone as M.O.Nos.5 to 7. P.W.6 - Girish B. Byali is also a Mahazar witness. He has stated that, the Police have visited the spot of house of Humbi where shoot out and murder has
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR taken place. He admits that, the accused was residing in that house. But, denied that, Mahazar was prepared in his presence. He has refused to identify any of the Material Objects except his photographs Ex.P.3 and Ex.P.4 and his signature on Ex.P.2 Spot Panchanama. Hence, all these witnesses have not supported the case of prosecution regarding seizure of any articles.
49. Regarding recovery of Revolver as per the say of the accused, the P.W.7 - Hanumantappa N. Katti and P.W.8 - Bhimshi S. Menasinakayi are Mahazar witnesses to recovery of Revolver at the instance of the accused as per prosecution case. This P.W.7 has stated that, when he was near Channabasaveshwar Temple, Police came to the spot along with the accused, they called this witness and all of them went behind the Temple, Police removed a Revolver from the pouch and gave it to the hand of the accused and thereafter they took his photograph and signature on a paper. C.W.7 was also present with him and thereafter they took them to a Motorcycle parked near the road. Police took photograph of them near the Motorcycle and also took signature on a paper. That Mahazar was marked as Ex.P.9 and Photographs are marked as Ex.P.10 to Ex.P.14. The Revolver is shown to the witness, which is not recognized by him. He was treated as hostile and cross- examined by the learned Public Prosecutor. In the cross- examination, he admitted some suggestions made by the learned Public Prosecutor. But, denied other suggestions. Again in the crossexamination of Advocate for the accused, this witness supports their version and says that, the Revolver was in the hand of Inspector who gave the same in the hand of the accused and took the photograph. He also admits that, none of the things seized at the spot and were packed and sealed by the Police. This witness even though supported the prosecution in cross-examination by the learned Public Prosecutor, he again deviated from his version and supported the accused in the crossexamination by the defence counsel. P.W.8 - Bhimshi S. Menasinakayi is also a Seizure Mahazar witness who spoke similar to P.W.7. He says that, Police came near Unkal pond near Channabasaveshwara Temple, they
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR were carrying one carry bag, they took them behind the Temple and removed a Revolver from the carry bag and gave the same in the hand of a person. They took photograph of these witnesses and thereafter their signatures were taken as per Ex.P.10 to Ex.P.14. He identified his signature on Ex.P.9. He was treated as hostile and cross-examined by the learned Public Prosecutor regarding the seizure of one Revolver, 05 cartridges, 01 live bullet and 01 empty cartridge from the possession of the accused. The witness has totally denied this aspect. The prosecution could not prove the recovery of Revolver from the possession of the accused as per Ex.P.9. Since the accused took a specific defence that, the Revolver belongs to him, it makes no difference as to the recovery by the Police.
50. At this stage, the learned Public Prosecutor has relied upon a reportable Judgment of The Hone'ble Supreme Court of India in Cri. App No.1910/2010 in the case of Balu Sudam Khalde and another Vs. The state of Maharashtra, wherein it is held as under:
26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principle enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at thetime and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by theevidence, it may be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reason exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of money with passage of time should be discarded.
27. In assessing the value of the evidence of the eye witnesses, two principal considerations are whether, in the circumstance of the case, it is possible to believe their presence at the scene of occurrence or in such situation as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.
This citation clearly explains what are the cautions to be taken by the Court while accepting the evidence of injured eye witnesses and the credibility to be given to their evidence while deciding the cases.
Another citation relied upon by the learned Public Prosecution is reported in 2023 AIAR (Criminal) 83 in the case of Gurmail Singh and another Vs. State of Uttar Pradesh and Another, wherein it is held as under:
C. Indian Penal Code,1860, Secs.302 and149- Offence of Murder and unlawful assembly-non-recovery of weapons Reliability of evidence of injured eye
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR witnesses-Evidence of injured witnesses cannot be disbelieved or brushed aside solely because they are sons of deceased-Thus, being relative of deceased is no reason to discredit their version-Their evidence regarding carrying of firearms and their use by the members of the unlawful assembly gets corroboration from the evidence.
D. Indian Penal Code,1860, Secs.302 and149- Alteration of conviction to one under Sec.304 of the IPC in place to the conviction under Sec.302 IPC-Held, there can be no doubt with respect to the position that in order to make culpable homicide as murder act by which death is caused should fall not only under any one or more of causes firstly to fourthly under Sec.300 IPC but they should also not fall under any of the five exceptions to Sec.300 IPC- Though appellant contended that conviction under Sec.302/149 is liable to be altered to one under Sec.304/149 it is fact that he failed to bring it within any of five exception to Sec.300 IPC- Thus, no question of considering contentions that offence of culpable homicide falls either under section 304(Part-i) or 304(part-ii). Hence, conviction and sentence confirmed.
Another citation relied upon by learned Public Prosecutor reported in 2010 Cri. L. J. 1659 in the case of Satyavir Singh Vs. State of U.P, wherein it is held as under;
(A) Penal Code (45 of 1860)m Sec.307 Criminal P.C. (2 of 1974), Sec. 374,378 Attempt to murder-benefit of doubt Cannot be given on basis of assumptions or presumptions of facts-Acquittal of accused on surmises and suspicion-
Setting aside of no interference.
On the other hand, Advocate for the accused has relied upon the decision reported in 2016 AIAR (Criminal ) 731, in the case of Indira Devi and others Vs. State of Minachal Pradesh, wherein it is held as under;
Witnesses- Injured witness-Testimony of - Credibility of- Testing of- Proposition of law that an injured witness is generally reliable is no doubt correct- But even an injured witness must be subjected to careful scrutiny if circumstances and materials available on record suggest
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR that he may have falsely implicated some innocent persons also an after thought on account of enmity and vendetta.
The citations relied upon by the learned Public Prosecutor are aptly applicable to the case in hand as all of them are regarding credibility of testimony of eye witness.
51. P.W.33- Shridhar Vasant Satare is the Investigating Officer who has conducted detailed investigation and filed the Charge sheet against the accused. It is suggested to this I.O. that, the accused has gone to the police station directly at 6.00 A.M. on 05.07.2020 and informed about the occurrence and also gave the Revolver to the police and informed him that it was fired to save himself. But, the I.O. has totally this aspect. On the suggestions made to this I.O. regarding entire investigation is denied by him and he has supported the case of prosecution.
52. Upon going through the evidence of these two eye witnesses P.W.2 and P.W.3 and circumstantial witnesses P.W.1 as well as P.W.20 and P.W.21, who are Mothers of Iranna, Sunil and Shivayogi Bhavikatti, I am of the clear opinion that, these P.W.2, P.W.3 and Shivayogi Bhavikatti had gone to the room of the accused at about 1.00 A.M. midnight on 05.07.2020. It is clearly brought out in the evidence that, it was Corona pandemic time and movement of any persons outside the house was totally barred except medical emergency. It is also brought out by the defence that, there was a scuffle between the accused, P.W.2, P.W.3 and the deceased Shivayogi Bhavikatti. There is no doubt that, gunshots are fired from the licenced Revolver of the accused in this scuffle and P.W.2, P.W.3 and Shivayogi Bhavikatti have sustained gunshot injuries. The presence of these injured eye-witness at the time and place of the occurrence cannot be doubted as there are no material contradictions in their deposition. Unless, the defence established by the accused in his evidence, it may be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. The evidence of injured witness has greater evidentiary value and unless compelling reason exist, their
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR statements are not to be discarded lightly. The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. if there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of money with passage of time should be discarded. Hence, the prosecution has proved the intention of the accused to kill P.W.2, P.W.3 and Shivayogi Bhavikatti as per the motive stated by them when they entered his room in the midnight. The prosecution has succeeded in proving that the gunshot injuries were caused by the accused by firing with M.O.No.8-Revolver and Shivayogi Bhavikatti died due to injuries sustained in said gunshot. The prosecution has also proved that, the accused had the knowledge that by firing with M.O.No.8 Revolver he can cause death of all the three of them and in spite of this knowledge he has fired on P.W.2, P.W.3 and the deceased Shivayogi Bhavikatti. The accused could not prove his defence of accidental firing or act done in furtherance of private defence. The prosecution has brought home the intention on behalf of the accused to cause death of Shivayogi Bhavikattiand and causing gunshot injuries to the vital parts of P.W.2 and P.W.3 and threatening C.W.1 / P.W.1 over phone regarding dire consequences.
53. Regarding the charge of using the Revolver M.O.No.8 for commission of offence, the prosecution has stated that, the licence of the gun was expired on 31.12.2019 and same was not got renewed by the accused. But, during the evidence, P.W.31 - Jayapal A. Patil was the PSI of Navalgund police station, who replied to the question of the Investigating Officer about the licence of gun possessed by the accused. He has given reply as per Ex.P.48 and in his reply he has clearly stated that, the licence of said gun was expired on 31.12.2019 and the accused had given an application for renewal. When he issued Ex.P.48 information, the
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR renewal was given by the concerned authority. It is brought out from the mouth of Investigating Officer P.W.33 that, the accused had filed an application for renewal and the same was pending for sanction. Hence, the charge under Section 25 of Indian Arms Act is not proved by the prosecution. But, using of said Revolver M.O.No.8 for commission of offence is proved by the prosecution. With these observations, I have answered Point No.2 in Affirmative and Point No.3 Partly in Affirmative with regard to attempt to murder by the accused to P.W.2 and P.W.3.
54. POINT No.4: The defence of accused is that, it is culpable homicide, but not amounting to murder as in exercise of good faith of right of private defence, accused has exceeded the power given to him by law and caused death. The Advocate for accused has stated that, whether the motive attributed by the prosecution is so strong to kill Shivayogi Bhavikatti and injured P.W.2 and P.W.3 with the gun shot. He has argued that, the prosecution has totally failed to prove any motive and intention on behalf of the accused to commit such crime. It is argued that, the place, time, incident, injury are not disputed by the accused. The only disputed fact by the accused is that, the accused has shot Shivayogi Bhavikatti and P.W.2 and P.W.3. The Court has to look into who are the aggressors in this case. The circumstances such as going to the room of the accused at 1.30 A.M. in the midnight i.e. early morning of 05.07.2020 by P.W.2, P.W.3 and deceased Shivayogi Bhavikatti and secondly; it was a heavy rainy season in July and thirdly; it was a time when Covid-19 pandemic was at peak in the first phase and a curfew was imposed throughout the State for any movement of people during night time. No one was allowed to go out except in case of emergency. Then, whether the prosecution has given any motive to show that there was emergency for P.W.2, P.W.3 to go to the room of the accused in the midnight to seek partition in an ancestral property of the accused and P.W.1. Advocate for the accused has relied on Call Detail Records filed along with Charge sheet by the Investigating Officer and got marked as Ex.D.5 and he
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR has argued that, said Call Records supports his defence to show that, these Sunil, Irappa Hebballi, Suvarna and Ishwar Ganiger had several phone calls made between them prior to the incident and said fact is admitted by P.W.2. He has further highlighted that, regarding motive stated by the prosecution, if the details of ancestral family house of Channamma is taken, then Nagappa is the father of the complainant and Mallappa is the eldest son, who died long back, Madivalappa, who is third son, who is father of the accused, who died long back, Siddappa being the 4th son died after 8-9 months of said incident. The mother of the accused is also dead. All these brothers are still living together with their family members in a joint family property wherein partition has not taken place. This accused is not having any right to give any portion in the ancestral property to P.W.1 and there is no chance of this accused having any enemity against P.W.1 and P.W.2. There was no instance for this P.W.2 to go to the house of the accused in the midnight that too during curfew of Covid-19 to seek share of P.W.1 in the ancestral property. Hence, this circumstance itself is totally against the prosecution witnesses and they are the aggressors. The accused was not competent to give any share to P.W.1. Hence, motive itself looks doubtful. None of the persons in Shirur village are examined by the prosecution. It is alleged that, the accused had made phone call to P.W.1 and when she did not receive it, he had called Kavita to inform that P.W.2 is in his house. If the accused had any intention to kill P.W.2, why he has called Kavita and informed it before killing. It is also the case of prosecution that, this accused was staying in the house of P.W.1 Channamma for nearly two years prior to this incident and all of them knew about the accused possessing licenced gun with him. If the accused had any intention to kill P.W.2, he would have killed long back when he was staying at their house itself. It is further argued that, there was no reason for the accused to wait until Sunil and Shivayogi Bhavikatti comes to his house in order to fire gun shot to all three. This gives doubt as to story of the prosecution and its genuineness. It is the clear defence of the accused that, P.W.1, P.W.2, P.W.3 and one Ishwar Ganiger along with deceased
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR Shivayogi Bhavikatti had hatched a plan to kill this accused and on the date of incident, P.W.2-Irappa Hebballi, P.W.3-Sunil Konannavar along with deceased Shivayogi Bhavikatti and Ishwar Ganiger had gone to the house of the accused at about 1.00 to 1.30 A.M. in the midnight. They started to bang the door of the house of the accused, they were under the influence of liquor. The accused seeing them through window warned them to go back and come on the next day. When they continued to bang on the door, he opened it and all of them rushed inside the house and started to quarrel with him for share in the property for P.W.1. When he tried to pacify them, Shivayogi Bhavikatti assaulted him with punch and dagger. He had sustained simple injury on his left hand. He tried to call Police in this regard and it is his case that, he had called P.W.1 at that time and when she did not lift the call, he called Kavita and asked her to give phone to P.W.1. He explained about their presence in his house and told her to call them back. P.W.1 told him that, it would be decided as to who is strong today and she disconnected the phone. On this incident, the accused went near the showcase to pick up the Revolver for selfprotection. Seeing this, all the four of them caught hold of him and tried to snatch the Revolver and in that scuffle accidentally firing has taken place which hit to P.W.2 and P.W.3. The accused further took the defence that, he left Revolver and ran towards the door and fell near the door. Shivayogi Bhavikatti rushed to hold him and gun shot fired by Ishwar Ganiger to kill this accused has hit Shivayogi Bhavikatti on his back and he has sustained injuries. Same defence is explained by the accused in his 313 statement in a written note. The same defence is put-forth to P.W.1, P.W.2, P.W.3 and all the circumstantial witnesses throughout the case. It is the specific defence of the accused that, he is not an aggressor, but he has used right of self-defence to protect himself from the aggressors who entered his room at 1.30 A.M. in the night and tried to kill him. Hence, on the basis of all these aspects, Advocate for the accused has prayed that this is a case of culpable homicide not amounting to murder and it squarely falls in Explanation of Section 300 of IPC, wherein the accused has
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR used his right of self-defence to protect himself and committed crime.
55. He has relied upon the decision reported in 2001 (1) Kar. L.J. 255 (DB) in the case of State of Karnataka Vs. K. M. Kukkappa wherein it is held as under;
Indian Penal Code, 1860, Sections 99, 100 and 300- Indian Evidence Act, 1872, Section 3- Private defence Extent of- Where person has to face assailants who would reasonably be apprehended to cause grievous hurt to him, it is open to person to defend himself even by causing death of assailants- Tests of detached objectivity cannot be applied to determine whether accused had used more force than was necessary, as means or force that person under threat of danger may use to defend himself cannot be weighed in to fine a set of scales or golden scales-Where accused had seen near his house presence of persons who had on previous day assaulted and humiliated him, their presence would be held sufficient to cause apprehension in his mind that they had come there to assault him again, especially when they were armed and he was outnumbered- Use of firearms by accused in such circumstances to drive away assailants, is to be held in exercise of private defence- Once right to private defence is conceded to accused, no criminal liability can be fastened to accused for death of assailant.
Advocate for accused further relied upon citation reported in 1992 CRI. L. J 2845 in the case of Shivappa Laxman Savadi Vs. The State. Wherein it is held as under;
(A) Penal Code (1860), Sec. 96, 97- Right of private defence- plea of - Consideration by Court- Laying foundation for the plea at trial by cross-examination witnesses, by adverting to it in statement under Sec.313, Criminal P.C. C. Penal code (1860), Sec.96, 97- Right or private defence- Three able bodied persons belonging to well-to-do strata - one of them an acquit in murder case- visiting accused's house I response to beating given by accused to their servant-Accused belonging to inferior caste against which the community of injured bore grudge-apprehension of bodily injury would arise-accused striking with axe which he
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR carried in his hand- one of three killed and other two injured- held, accused did not exceed right of private defence.
Advocate for accused further relied upon citation reported in (2002) 9 Supreme court Cases 494 in the case of Moti Singh Vs. State of Maharashtra, wherein it is held as under;
Penal Code, 1860, Sec. 100, 102- Causing death in exercise of right of private defence of body-Benefit of the right can be given to accused even in absence of plea in that regard if evidence shows that accused persons were put under a situation where they cold reasonably have an apprehension of danger to the body of even one of them having regard to the place of occurrence and nature and situs of the injuries sustained by one of the accused, held on facts, a reasonable apprehension could be entertained that at least a grievous hurt would be caused to the accused persons unless aggression was thwarted- accordingly, accused entitled to benefit of right of private defence Advocate for accused further relied upon citation reported in (2006) 11 Supreme Court Cases 304 in the case of Krishnan Vs. State of Tamil Nadu, wherein it is held as under;
A. Penal Code 1860- Sec. 96 and 97- Plea of private defence-Burden of proof - Held, is on the accused but the burden is not as onerous as that which lies on the prosecution- While the prosecution is required to prove its case beyond reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability- Further held, such plea can be established either by letting in defence evidence or form the prosecution evidence itself, but cannot be based on mere speculation or surmises.
Advocate for accused further relied upon citation reported in (2008) 2 Kant. L. J. 525 in the case of S. Ganesh Vs. State of Karnataka by State Public Prosecutor wherein it is held as under;
Indian Penal Code, 1860- Section 304 Part II-Offence under
-Conviction and Sentence Appealed against- Right of self defence Plea of Acceptance of -Circumstances to be seen- Injuries caused without there being any intention but with a
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR knowledge that it is likely to cause death- Stabbing on the vital part of the body-Held, even assuming that there is threat to the accused since the deceased and two others were there on the one side and the accused was alone, the accused would have taken out a knife to protect himself, he should not have ventured to stab on the vital part of the body ie., the chest- further held, However the death has occurred due to the assault and it is either motivated nor with any premeditation- It is an act out of rage due to the scuffle- The sentence to undergo rigorous imprisonment for ten years appears to be on the higher side and the same is reduced to four years.
Advocate for accused further relied upon citation reported in (2008) 16 SCC 33 in the case of Raghbir Singh and Others Vs. State of Haryana, wherein it is held as under;
Penal Code, 1860(IPC) Sections 96 to 105Right of private defence- Whether in a particular set of circumstances, a person legitimately acted in exercise of right of private defence is a question of fact to be determined on facts and circumstances of each case- It is not necessary for accused to plead in so many words that he acted in self-defence- If circumstances show that right of private defence was legitimately exercised, it is open to court to consider such a plea- In a given case the Court can consider it even if the accused has not taken it, if same is available to be considered from material on record- Burden of proof is on accused, who set up the plea of self- defence, and in the absence of proof, it is not possible for Court to presume truth of plea of Self- defence- Court shall presume absence of such circumstances.
Advocate for accused further relied upon citation reported in (2009) 2 SCC (Cri) 110, in the case of Ranveer Singh Vs. State of M.P. wherein it is held as under;
Penal Code, 1860 (IPC)- Sections 96 to 106- Evidence Act, 1872- Section 105Right of private defence- it is not necessary for the accused to plead in so many words that he acted in self-defence- If the circumstances show that right of private defence was legitimately exercised, it is open to Court to consider such a plea- In a given case Court can consider it even if accused has not taken it, if same is
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR available to be considered from material on record- Burden of proof is on the accused, who sets up plea of self-defence- In the absence of proof, it is not possible for Court to presume truth of plea of self- defenceCourt shall presume absence of such circumstances- Burden of establishing plea of self- Defence is on accused- Burden stands discharged by showing preponderance of probabilities in favour of that plea on basis of material on record.
Advocate for accused further relied upon citation reported in 2016 AIAR (Criminal ) 731, in the case of Indira Devi and others Vs. State of Minachal Pradesh, wherein it is held as under;
Witnesses- Injured witness-Testimony of Credibility of- Testing of- Proposition of law that an injured witness is generally reliable is no doubt correct- But even an injured witness must be subjected to careful scrutiny if circumstances and materials available on record suggest that he may have falsely implicated some innocent persons also an after thought on account of enmity and vendetta.
56. On the other hand, the learned Public Prosecutor has argued that, the defence of right of self-defence taken by the accused is not substantiated by any evidence. When there are clear evidence of injured persons who sustained gun shot injury, why there evidence should be brushed aside by the Court and the defence of the accused should be considered?. He has further brought to the notice of this Court about the report of Ballistic Expert and his evidence, wherein it is clearly stated that, in Ex.P.61 a Blue Colour T-Shirt is examined and there are GSR detected on Article No.6, which is marked as M.O.No.9, on the chest portion. This GSR can be detected on the chest portion only if the gun is hold by the accused and if he directly fires towards the injured / deceased. Hence, the defence is defeated by this aspect. He has also highlighted the evidence of P.W.3, who says that, there was no enemity between P.W.3 and the accused. Hence, there was no threat by P.W.3 to this accused. The evidence of P.W.1 cannot be brushed aside only on the single statement of P.W.2 that his mother did not come to the spot. If the case of the accused is to be believed, then the phone
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR call made by the accused at 11.00 P.M. to P.W.1 does not tally with the defence of the accused. If he had called to P.W.1 at 11.00 P.M. stating that, her son is at his house, then the story of defence that P.W.2, P.W.3 along with Shivayogi Bhavikatti and one Ishwar Ganiger came to his house at 1.30 A.M. cannot be believed. The accused must show in his defence that, to protect himself he himself fired towards the injured and deceased. He cannot take defence that, in the scuffle someone else fired and caused injury. He cannot totally deny that gun shot was not fired by him. Hence, based on the evidence of Doctor, Ballistic Expert and on the evidence of injured P.W.2 and P.W.3 corroborated by the evidence of P.W.1, the prosecution prays that, plea of self-defence taken by the accused should not be considered and it is a clear case of murder with knowledge and intention and he must be convicted for the said offence. He has relied upon a reportable Judgment of The Hone'ble Supreme Court of India in Cri. App No.1910/2010 in the case of Balu Sudam Khalde and another Vs. The state of Maharashtra, wherein it is held as under:
57. Thus, the sine qua non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder. We must, therefore, assume that this would be a case of murder and it is for the accused to show the applicability of the exception. Exception 4 reads as under:
"Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
58. A perusal of the provision would reveal thatfour conditions must be satisfied to bring the matter within Exception4:
(i) It was a sudden fight;
(ii) there was no premeditation;
(iii) the act was done in the heat of passion; and; that (iv) the assailant had not taken any undue advantage or acted in a cruel manner.
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR
59. On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found.
57. Hence, based on both these arguments and citations, in order to appreciate this defence, it is necessary to refer the definition of murder as provided under Section 300 of IPC, which reads as under:
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1: When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR Exception 2: Culpable Homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
The accused has to show the same materials in the evidence of all the witnesses that the act of murder was committed without premeditation he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. In the present case, there is no such evidence coming-forth to show that, the deceased had done any act to inflict the grave and sudden provocation to the accused so that such act of murder was committed by accused in his self-defence. Nothing comes in the evidence of accused to show that, he himself has directly shot the deceased and P.W.2 and P.W.3 to protect himself from them causing any injury to him. The defence of the accused is of accidental firing in the scuffle and he does not admit that he himself has fired towards deceased and P.W.2 and P.W.3 in right of self-defence. There are sufficient materials in the prosecution evidence to disbelieve this version and I am of the opinion that, the accused has failed to put-forth his defence and prove the same. If at all the accused had admitted that the injuries were caused by him while trying to protect himself, then this right of private defence would be applicable. But, in the present case, the effort of accused to shift this on Ishwar Ganiger and deceased himself looks more doubtful. The accused had all the knowledge of consequences of his act while firing 05 bullets and knowingly that it was a small room of 10X12 feet and P.W.2, P.W.3 and deceased Shivayogi Bhavikatti were present in said room and by such firing there are chances of causing death of them. Even the injuries to P.W.2 and P.W.3 as well as deceased Shivayogi Bhavikatti is on vital parts. For all these reasons, it does not come under Exception (2)
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR of Section 300 of IPC and I am of the opinion that, this Court has to decline the argument of Advocate for the accused and accept the argument of learned Public Prosecutor, which supports that it is a case of murder under Section 300 of IPC and does not come under any Exceptions of Section 300 of IPC. With these observations, this Court comes to the conclusion that, the act of the accused in causing the death of Shivayogi Bhavikatti and causing fatal injuries to P.W.2 and P.W.3 is a culpable homicide amounting to murder and I have answered this Point accordingly.
58. Upon discussions made above in detail, I am of the opinion that the prosecution has proved all the charges alleged against the accused except Section 25 of Indian Arms Act. The accused is found guilty for having committed the offences punishable under Sections 302, 307 and 506 of I.P.C. and I proceed to pass the following, ORDER Acting under the powers conferred under section 235(2) of Cr.P.C. the accused is hereby found guilty for having committed offences punishable under section 302, 307 and 506 of Indian Penal Code."
13. Upon reconsideration, re-evaluation and re-appreciation of the entire material on record, we are of the considered opinion that the said findings recorded by the Trial Court that the appellant was guilty of the alleged offences cannot be said to suffer from any illegality or infirmity nor can the same be said to be capricious or perverse or contrary to law or facts warranting interference by this Court in the present appeal.
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14. The next question that arise for consideration is that as to whether the appellant was guilty of committing the offence of murder under Section 300 of IPC punishable under Sections 302 of IPC or as to whether he is guilty of committing the offence culpable homicide not amounting to murder as contemplated under Section 299 r/w Exceptions Nos.1 and 4 to Section 300 IPC punishable under Section 304 Part-I or Part-II of IPC. In the instant case, the material on record indicates that the evidence of PW1, PW2, PW3 and other witnesses will indicate that the same is categorical and consistent with the fact that during the incident which took place at 01.30 A.M. on 05.07.2020, a fight / quarrel / scuffle broke out between the deceased, accused and PW2 and PW3, who quarreled and argued with each other leading to the demise of the deceased. In fact, the evidence also reveals that before the appellant used the subject revolver to shoot the deceased and injure PW2 and PW3 they had attempted to assault him and cause him bodily harm and heated arguments and quarrel took place between them at that time.
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15. Upon careful consideration of the entire material on record, it would indicate that the circumstances of the case do not satisfy the ingredients of 'murder' as defined under Section 300 IPC. It is noticed that when a scuffle broke out between the accused, the deceased, and the injured witnesses - PW2 and PW3, who quarreled with each other, which ultimately led to the demise of the deceased. The evidence further establishes that it was the accused who shot the deceased with gun, however, the accused had taken a contradictory stand by pleading private defence while simultaneously asserting that he had not fired the gun. In the absence of any material suggesting premeditation or prior planning, it cannot safely be inferred that the accused had the intention to cause death or such bodily injury as would attract the rigours of Section 300 IPC. At the same time, by using a gun in the course of the scuffle, the accused must necessarily be attributed with the knowledge that such an act was likely to cause death. The act of the accused therefore falls within the ambit of culpable homicide as defined under Section 299 IPC, where the element of knowledge is established but intention to cause death is not proved. Consequently, the conviction under Section 302 IPC is
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR liable to be altered to one under Section 304 Part II IPC, and insofar as the injuries caused to PW2 and PW3 are concerned, the offence would appropriately fall under Section 308 IPC instead of Section 307 IPC.
16. The question as to whether the appellant would be guilty of the alleged offences punishable under Sections 302 and 307 IPC or whether he would be guilty of offence of culpable homicide punishable under Section 304 Part-II of IPC and the offence of attempting to commit culpable homicide not amounting to murder under Section 308 IPC came up for consideration before this Court in the case of Shamshuddin and another Vs. State of Karnataka
- Crl.A.No.100217/2022 dated 24.09.2025, in which this Court referred to the earlier judgments of the Apex Court and this Court and held as under:
15. The question as to whether an accused would be guilty of an offence of murder punishable under Section 302 IPC or whether he could be convicted for offence of culpable homicide not amounting to murder and punishable under Section 304 IPC has been the subject matter of various judgments of the Apex Court, this Court and other High Courts. In the case of Uday Singh vs. State of U.P. - (2002) 7 SCC 79, the Apex Court held as under:
"5. After having concluded in the manner as aforesaid, the trial court held them guilty under Section
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR 302 read with Section 34 IPC. The High Court, on appeal after reappraisal of the evidence, observed that the presence of contusion around the neck of the deceased Shishupal Singh is enough indication of use of force by hand and considering that the nature of injury and the pressure put by the appellant and Gainda Singh was so severe that internal bleeding had also taken place inasmuch as the hyoid bone had been fractured, and thus the intention of the appellant and Gainda Singh to cause the death of Shishupal Singh was proved beyond all reasonable doubt. The High Court concluded that the appellant and Gainda Singh had been rightly convicted under Section 302 read with Section 34 IPC.
6. From the findings recorded by the trial court as well as the High Court, it is clear that the fight between the two parties started all of a sudden as a result of obstruction caused in digging of the foundation and there is no evidence to show that the accused attacked the deceased with deadly or dangerous arms (or weapons). It was only in a fight, hand to fist, that both Gainda Singh and the appellant had held the neck of the deceased, Shishupal Singh with such force as to ultimately result in strangulation and his death. It is very difficult to conceive as to how much pressure was applied either by Gainda Singh or the appellant on the deceased's neck so as to cause death. It would be reasonable to hold that the injuries were caused by the appellant on the deceased in a sudden fight where no arms (or weapons) were used and that fight took place in the heat of passion and no common intention to kill the deceased could be inferred. We cannot definitely conclude who actually inflicted the fatal injury as the evidence on record discloses that Gainda Singh and the appellant both strangled the deceased, which action is part of the sudden unarmed fight nor can we conclude that the appellant had an
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR intention to cause death or cause such bodily injury as is likely to cause death, though we attribute to him knowledge that such act is likely to cause death. Thus the appellant and Gainda Singh are guilty of culpable homicide not amounting to murder.
7. In the circumstances, we set aside the conviction recorded by the trial court as affirmed by the High Court under Section 302 read with Section 34 and instead convict him under Section 304 Part II and reduce the sentence to imprisonment for a period of seven years. The bail granted earlier shall stand cancelled and the appellant shall surrender before the trial court and be committed to prison to serve out the remaining part of the sentence."
16. In the case of Chhidamilal vs. State of M.P. - (2002) 9 SCC 369, it was held as under:
"5. Our independent analysis of the evidence on the record shows that the appellants had formed an unlawful assembly with the object of taking forcible possession of the land and if necessary, to give beating to the complainant party to achieve their object. During this fight, Narain, belonging to the accused party received a fatal blow at the hands of Gajraj Singh, the deceased, whereafter the complainant party was assaulted and Gajraj Singh received injuries to which he later on succumbed.
6. Looking to the manner in which the assault took place over the land, which was in the possession of the complainant party, it appears to us that the appellants did not intend to cause the murder of deceased Gajraj Singh. The offence committed by the appellants in the established facts and circumstances of the case, resulting in the death of Gajraj Singh was only culpable homicide not amounting to murder. The appellants can definitely be clothed with the knowledge that the injuries caused by them were likely to cause death or
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR such bodily injury as was likely to cause the death of Gajraj Singh. The offence under the circumstances, would fall under Sections 304 (Part II)/149 IPC and not under Sections 302/149 IPC. We, therefore, accept these three appeals partly and hold that the offence committed by the 13 appellants is not one under Sections 302/149 IPC but one under Sections 304 (Part II)/149 IPC. So far as the offence under Section 148 IPC is concerned, that has been proved to have been committed by the appellants beyond any reasonable doubt and we maintain the conviction and sentence of the 13 appellants on that count."
17. In the case of Mankeram vs. state of Haryana - 2003 11 SCC 238, it was held as under:
"6. Having perused the material on record and considering the arguments of the parties, we are inclined to agree with the argument addressed on behalf of the appellant. There is no doubt that Suraj Mal met a homicidal death on 17- 11-1993 at Sangatpura Police Outpost consequent to gunshots fired by the appellant. The question, for our consideration, is whether this action of the appellant which caused the death of Suraj Mal would amount to murder or culpable homicide not amounting to murder. It is an admitted fact that there was no enmity between the appellant and the deceased and a few days before the incident in question the appellant was promoted to the rank of Assistant Sub-Inspector of Police and he was put in charge of Sangatpura Police Station wherein the deceased was also posted as head constable. It is also the case of the prosecution itself that on the fatal day when the appellant came back from the duty to his quarters he invited the deceased to his room to have a drink which was accepted by the deceased and both of them were drinking in the room of the appellant. It is at that point of time PW 5 who happened to be the nephew of the deceased came into the room and interrupted their drinking session by
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR asking his uncle to get up and join him for dinner which was obviously not liked by the appellant who being offended by the said interruption started abusing in a language which was not to the liking of the deceased who protested against such abuses. It is also the prosecution case that it is sequel to this interruption of PW 5, a physical fight started between the appellant and the deceased in which, of course, the appellant used his service revolver causing fatal injuries. While PW 5 states that there was no physical fight between the deceased and the appellant, the appellant contends that there was such physical fight in which he was sought to be strangulated by the deceased because of which he used the service revolver to protect himself. The fact that there was a physical fight between the deceased and the appellant, though not admitted by PW 5, the same cannot be denied because it has come in the evidence of PWs 6 and 9 that when they came to the spot the appellant and the deceased were grappling outside the room and they overpowered the accused and snatched the weapon. In such circumstances, we will have to examine the prosecution evidence whether the appellant had taken an undue advantage or acted in a cruel or unusual manner so as to deprive him of the benefit of Exception 4 to Section 300. As noted above, there is no motive for killing the deceased. The drinking session in the room of the appellant was by mutual consent and admittedly the fight started because of the intervention of PW 5. From these circumstances, it can be very clearly held that the incident in question took place in a sudden fight in the heat of passion. The next question, therefore, for our consideration, is whether the appellant did take an undue advantage of the said fight or acted in a cruel or unusual manner. Keeping in mind the fact that both the appellant and the deceased had consumed considerable amount of alcohol which is established from the evidence of the doctor and the service revolver being next to the place where the fight took place and was not kept there by a
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR planned act by the appellant, it cannot be altogether ruled out that the shots were fired not with an intention of taking any undue advantage by the appellant. It is probable that in an inebriated condition the appellant used the service revolver because of the physical fight between the two. We do not think the two courts below have properly appreciated this aspect of the prosecution case when it found the appellant guilty of murder and punished him under Section 302 IPC. Having considered the material on record, we are of the opinion that the appellant could only be found guilty of an offence punishable under Section 304 Part II.
7. Therefore, we allow this appeal to that extent and set aside the judgment and conviction imposed by the courts below on the appellant under Section 302 IPC and alter the same to one under Section 304 Part II IPC and award a sentence of 5 years' RI. We maintain the fine of Rs 2000 imposed on the appellant by the trial court, as also the conviction and sentence awarded on the appellant for an offence punishable under Section 27 of the Arms Act. The sentence of imprisonment under both the counts shall run concurrently. The appellant shall be entitled to remission of the period of sentence already undergone. The appeal stands allowed to the extent mentioned above."
18. In the case of Shankarnarayan Bhadolkar Vs. State of Maharashtra - AIR 2004 SC 1966 it was held as under:
"23. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of IPC culpable homicide is the 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
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognises 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 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.
24. 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 abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:
Section 299 Section 300
A person commits Subject to certain
culpable homicide if the exceptions culpable
act by which the death is homicide is murder if the
caused is done-- act by which the death is
caused is done--
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INTENTION
(a) with the intention of (1) with the intention of
causing death; or causing death; or
(b) with the (2) with the intention of
intention of causing such bodily
causing such injury as the offender
bodily injury as is knows to be likely to
likely to cause cause the death of the
death; or 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
is sufficient in the ordinary course
of nature to cause death; or
KNOWLEDGE
(c) with the (4) with the
knowledge that knowledge that the
the act is likely to act is so imminently
cause death. dangerous that it 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.
25. 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 would not in the ordinary way of nature be
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR 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 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.
26. 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 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 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 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 sense of
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR 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.
27. 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 Singh v. State of Kerala is an apt illustration of this point.
28. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 :
1958 Cri LJ 818] 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. Firstly, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or 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 purely objective and inferential and has nothing to do with the intention of the offender.
29. The ingredients of clause "thirdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows : (AIR p. 467, para 12) "12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 'thirdly';
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular 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, 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."
30. The learned Judge explained the third ingredient in the following words (at AIR p. 468, para 16):
"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 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 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 intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."
31. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR 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 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.
32. Thus, according to the rule laid down in Virsa Singh case, even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.
33. Clause (c) of Section 299 and clause (4) of Section 300, both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would 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 committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
34. The above are only broad guidelines and not cast- iron imperatives. In most cases, their observance will facilitate
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR the task of the court. But sometimes 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.
35. The position was illuminatingly highlighted by this Court in State of A.P. v. Rayavarapu Punnayya and in Abdul Waheed Khan v. State of A.P.
36. Looking at the scenario as described by PWs 2 and 3 and evidence of ballistic report, in our considered view the offence committed by the accused is covered by Section 304 Part II.
(emphasis supplied)
19. In the case of Daya Nand Vs. State of Haryana - 2008 Cri.L.J. 2975, it was held as under:
10. The crucial question is as to which was the appropriate provision to be applied. In the scheme of 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 of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognises 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,
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR 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.
(emphasis supplied)
11. 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 abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:
Section 299 Section 300
A person commits Subject to certain
culpable homicide exceptions culpable
if the act by which homicide is murder if the
the death is act by which the death is
caused is done-- caused is done--
Intention
(a) with the (1) with the intention of
intention of causing death; or
causing death; or
(b) with the (2) with the intention of
intention of causing such bodily injury
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causing such as the offender knows to
bodily injury as is be likely to cause the death
likely to cause of the person to whom the
death; or harm is caused; or
(3) with the intention of
causing bodily injury to any
person and the bodily injury
intended to be inflicted is
sufficient in the ordinary
course of nature to cause
death; or
Knowledge
(c) with the (4) with the knowledge
knowledge that the that the act is so
act is likely to imminently dangerous
cause death. that it 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.
12. 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 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
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR 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. 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 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 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 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 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 sense of probability as distinguished from a mere possibility. The words 'bodily injury ...
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR 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.
14. 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 Singh v. State of Kerala is an apt illustration of this point.
15. In Virsa Singh v. State of Punjab 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'. Firstly, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or 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 purely objective and inferential and has nothing to do with the intention of the offender.
16. The ingredients of clause 'Thirdly' of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows :
To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 'Thirdly'.
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR First, it must establish, quite objectively, that a bodily injury is present.
Secondly, the nature of the injury must be proved. These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular 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, 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.'
17. 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 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 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 intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.''
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18. 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 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.
19. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would 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
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR 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.
21. 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 into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages."
22. The position was illuminatingly highlighted by this Court in State of A.P. v. Rayavarapu Punnayya (1976) 4 SCC
382), Abdul Waheed Khan v. State of Andra Pradesh (2002 (7) SCC 175), Augustine Saldanha v. State of Karnataka 2003 (10) SCC 472), Thangaiya v. State of T.N. (2005 (9) SCC 650) and in Rajinder v. State of Haryana (2006 (5) SCC 425).
23. Considering the evidence on record in the background of the principles of law, the inevitable conclusion is that the appropriate conviction would be under Section 304 Part II IPC. The conviction is accordingly altered.
24. Undisputedly, the accused has suffered custody of nearly 8½ years. The sentence is restricted, therefore, to the period already undergone. The appeal is allowed to that extent. The accused person be set at liberty forthwith unless required in custody in any other case.
20. In the case of Saravanan Vs. State of Pondicherry - (2004) 13 SCC 238, it was held as under:
9. Section 34 IPC enacts that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons, is liable for that act in the same
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR manner as if it were done by him alone. The section thus lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is found in the existence of "common intention" animating the accused leading to the doing of a criminal act in furtherance of such intention. The section is intended to meet a case in which it is difficult to distinguish between the act of individual members of a party and to prove exactly what part was played by each of them. It, therefore, enacts that once it is found that a criminal act has been committed by several persons in furtherance of the common intention of all, each of such persons is liable for the criminal act as if it were done by him alone. It is thus an exception to the general rule of criminal jurisprudence that it is the primary responsibility of the person who actually commits a crime and only that person can be held guilty and punished in accordance with law for his individual act.
10. In the leading case of Barendra Kumar Ghosh v. King Emperor the appellant was charged under Section 302 read with Section 34 IPC for the murder of a Postmaster. The evidence disclosed that while the Postmaster was in the office counting the money, three persons of whom the appellant was one, fired pistols at him asking him to hand over the cash. The trial Judge directed the jury that if they were satisfied that the Postmaster was killed in furtherance of the common intention of all the three, the appellant could be held guilty of murder whether or not he had fired the fatal shot. The appellant was accordingly convicted. Being aggrieved by such conviction, the appellant approached the Privy Council. It was contended on behalf of the prisoner that he was outside the room. He was in the courtyard and was frightened. He did not participate in the crime and hence, he could not have been convicted for an offence punishable under Section 302 IPC by invoking Section 34 IPC. The contention was, however, negatived. It was held that once it is established that an act was committed in furtherance of the common intention of all,
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR Section 34 could be attracted and all could be held liable irrespective of their individual act.
11. The Judicial Committee observed that the distinction between two types of offenders (i) principals in the first degree, that is, who actually commit the crime; and (ii) principals in the second degree, that is, who aid in commission of the crime, as found in English law has not been strictly adhered to in India. In the circumstances, according to Their Lordships, Section 34 would be attracted provided that it is proved that the criminal act was done by several persons in furtherance of the common intention of all.
12. Dealing with the argument on behalf of the appellant that he had not fired any shot, the Judicial Committee observed that if two men tie a rope around the neck of third man and pull opposite ends of the rope till he is dead, each can be held liable for the ultimate act i.e. death of the victim. If the contention on behalf of the appellant would be upheld that each should be held liable for his act only, each can successfully contend that the prosecution had not discharged the onus inasmuch as nothing more was proved against each of them, than an attempt to kill which might or might not have succeeded. "Thus both will be acquitted of murder, and will only be convicted of an attempt, although the victim is and remains a murdered man." Referring to Sections 33, 34, 37 and 38 IPC, it was held that even if the appellant did nothing as he stood outside the door, he could be held liable. It is to be remembered that in crimes as in other things "they also serve who only stand and wait".
13. The principle in Barendra Kumar Ghosh had been reiterated by Indian courts including this Court in several cases. In Gurdatta Mal v. State of U.P. it was observed by this Court that Section 34 IPC contemplates the doing of an act by several persons in furtherance of
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR common intention. The constructive liability under this provision would arise if the following two conditions are fulfilled:
(1) There must be common intention to commit a criminal act; and (2) There must be participation of all the persons in doing of such act in furtherance of that intention.
If these two ingredients are established, all the accused would be liable for the offence which has been committed.
14. In Afrahim Sheikh v. State of W.B. this Court stated that no doubt a person is only responsible ordinarily for what he does and Section 38 IPC ensures that. But the law in Section 34 as also in Section 35 IPC declares that if the criminal act is the result of the common intention, then every person who did the criminal act with such intention would be responsible for the total offence irrespective of the share which he had in its perpetration.
15. It is thus clear that the criminal act referred to in Section 34 IPC is the result of the concerted action of more than one person if the said result was reached in furtherance of the common intention and each person must be held liable for the ultimate result as if he had done it himself.
16. We have, therefore, to see whether the death of deceased Nadamuni had been caused by the appellants in furtherance of a common intention to kill him. If it is so, the appellants cannot escape the liability contending that Section 34 IPC had no application as no injury had been caused by the appellants to deceased Nadamuni or they had not intended to cause death of deceased Nadamuni. As observed hereinabove and believed by the trial court as well as by the
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR High Court, the present appellants (A-3 and A-4) came on cycle from Cuddalore Road and took up a quarrel with PW 1, PW 2 and deceased Nadamuni. Though the deceased and PW 1 and PW 2 ignored the assault and proceeded further, the appellants chased them towards the west on Pondy- Villianur Road and took up a quarrel again. A-1 came there along with others and used violence and injuries were caused to deceased Nadamuni due to which he ultimately died. It was thus a clear case of doing of a criminal act in furtherance of the common intention. It was in the evidence of Dr. Balaraman that Injury 5 was sufficient in the ordinary course of nature to cause death. Taking into consideration the concession by the learned Public Prosecutor that the case would not be covered by Section 302 IPC, Accused 1, 3 and 4 were convicted by the trial court for an offence punishable under Section 304 Part II read with Section 34 IPC. In our opinion, by applying Section 34 IPC and convicting the appellants for an offence under Section 304 Part II read with Section 34 IPC, no error of law has been committed either by the trial court or by the High Court.
21. In the case of Sellappan Vs. State of Tamil Nadu
- 2007 Cri. L.J 1442, it was held as under:
24. The crucial question is as to which was the appropriate provision to be applied. In the scheme of IPC culpable homicide is the 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 punishment, proportionate to the gravity of the generic offence, IPC practically recognizes three degrees of culpable homicide. The first is, what may be called,
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR '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 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.
25. 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 abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:
Section 299 Section 300
A person commits Subject to certain exceptions
culpable homicide if the culpable homicide is murder if the
act by which the death is act by which the death is caused is
caused is done-- done--
INTENTION
(a) with the intention of (1) with the intention of causing
causing death; or death; or
(b) with the intention of (2) with the intention of causing
causing such bodily injury such bodily injury as the offender
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CRL.A No. 100616 of 2024
HC-KAR
as is likely to cause knows to be likely to cause the
death; or 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 is
sufficient in the ordinary course
of nature to cause death; or
KNOWLEDGE
(c) with the (4) with the knowledge that the
knowledge that the act is so imminently dangerous that
act is likely to cause it must in all probability cause death
death. or such bodily injury as is likely to
cause death, and commits such
acts without any excuse for
incurring the risk of causing death
or such injury as is mentioned
above.
26. 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 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 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.
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27. 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 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 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 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 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
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR nature to cause death' mean that death will be the 'most probable' result of the injury, having regard to the ordinary course of nature.
28. 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 v. State of Kerala (AIR 1966 SC 1874) is an apt illustration of this point.
29. 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 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 purely objective and inferential and has nothing to do with the intention of the offender.
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30. The ingredients of clause 'Thirdly' of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows :
"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.
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, 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."
31. The learned Judge explained the third ingredient in the following words (at p. 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 totality of the circumstances justify such an inference, then, of course, the
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR 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, 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 intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."
32. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh's case 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 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.
33. Thus, according to the rule laid down in Virsa Singh's case even if the intention of the 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
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR would be murder. Illustration (c) appended to Section 300 clearly brings out this point.
34. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would 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 committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
35. 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 into each [other], that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.
36. The position was illuminatingly highlighted by this Court in State of Andra Pradesh v. Rayavarapu Punnayya and Anr. (1976 (4) SCC 382), Abdul Waheed Khan @ Waheed and Ors. v. State of Andra Pradesh (2002 (7) SCC 175), Augustine Saldanha v. State of
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR Karnataka (2003 (10) SCC 472) and Thangaiya v. State of T.N. (2005 (9) SCC 650).
37. When the factual scenario in the case is set aside on the touchstone of principles set out above, it becomes clear that the appellant is responsible for causing the death of the deceased. However, the application of Section 304 Part II IPC would be applicable and not Section 302 IPC. The conviction is accordingly altered. Ten years' custodial sentence would meet the ends of justice. The appeal is allowed to the aforesaid extent.
38. Appeal is allowed to the aforesaid extent.
Order accordingly".
22. In the case of Dharam Pal Vs. State of U.P. - 2008 Cri.L.J. 1016 it was held as under:
13. In the light of the aforesaid discussions, let us now see whether the High Court was justified, in the facts and circumstances of the present case, to convert the offence from Sections 302/34 IPC to Section 304 Part II IPC. In this regard, we may again note the findings recorded by the High Court, as noted herein earlier, in Clauses 11 and
12. The High Court observed that the accused did not have any intention of causing the death of Rajpal nor were the injuries caused with the intention of causing such bodily injuries as the accused knew were likely to cause death. The High Court further observed that the knowledge that death was likely to be caused could be inferred as the accused gave the blow on the head. Let us
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR now see whether the aforesaid act would warrant a punishment under Section 302 or 304 IPC. In our view, the facts disclose that there was no premeditation and the fight resulted on drinking of water from the hand pipe after an exchange of abuses. There appeared no intention on the part of the appellants to cause the death of the deceased Rajpal. Therefore, the offence committed by the appellants, in our view, is culpable homicide not amounting to murder because, in our view, it falls within Exception 4 to Section 300 which reads as under:
"Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."
Section 304 IPC lays down the punishment for culpable homicide not amounting to murder and reads as under:
"Whoever commits culpable homicide not amounting to murder, shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR intention to cause death, or to cause such bodily injury as is likely to cause death."
We have already gone through the evidence and the other materials on record. From the evidence on record, we cannot find any ground to discard the finding of the High Court that it cannot be said that the accused had any intention of causing the death of Rajpal, the deceased, nor were the injuries caused with the intention of causing such bodily injuries as the accused knew were likely to cause death. Therefore, in the absence of any intention of causing the death of the deceased Rajpal, we are in agreement with the High Court that the accused must be convicted of the offence under Section 304 Part II IPC and not under Section 302 IPC.
14. For the reasons aforesaid, we do not find any cogent reason to interfere with the judgment of the High Court converting the offence to Section 304 Part II IPC from Section 302 IPC. Accordingly, the appeal fails and is dismissed with no order as to costs.
23. In the case of Anbazhagan Vs. State, - AIR 2023 SC 3660, it was held as under:
"ANALYSIS
17. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the conviction of the appellant herein for the offence punishable under Section 304 Part I of the IPC should be further altered to Section 304 Part II of the IPC.
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR
18. We have given more than a fair idea as regards the genesis of the occurrence and the role attributed to the appellant herein. Dr. Karthikeyan (PW-15) was examined by the prosecution in his capacity as the Medical Officer who performed the post mortem of the deceased. In the post mortem report, the doctor has noted three injuries, (i) cut injury over 4 x 2 cm on the left eye, (ii) cut injury 4 x 3 cm on the left forehead, and (iii) 4 x 2 cm contusion around the left eye. The cause of death assigned in the post mortem report appears to be shock and haemorrhage due to head injury.
19. As the only argument canvassed before us is that the case does not travel beyond culpable homicide as the same falls within the third part of Section 299 of the IPC, the accused could only be said to have knowledge that he is likely by his act to cause death and not the intention to kill the deceased, we must explain the fine distinction between the terms 'intent' and 'knowledge'.
INTENT AND KNOWLEDGE :-
20. The word "intent" is derived from the word archery or aim. The "act" attempted to must be with "intention" of killing a man.
21. Intention, which is a state of mind, can never be precisely proved by direct evidence as a fact; it can only be deduced or inferred from other facts which are proved. The intention may be proved by res gestae, by acts or events previous or subsequent to the incident or occurrence, on admission. Intention of a person cannot be proved by direct evidence but is to be deduced from the facts and circumstances of a case. There are various relevant
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR circumstances from which the intention can be gathered. Some relevant considerations are the following:-
a. The nature of the weapon used.
b. The place where the injuries were inflicted.
c. The nature of the injuries caused.
d. The opportunity available which the accused gets.
22. In the case of Smt. Mathri v. State of Punjab, AIR 1964 SC 986, at page 990, Das Gupta J. has explained the concept of the word 'intent'. The relevant observations are made by referring to the observations made by Batty J. in the decision Bhagwant v. Kedari, I.L.R. 25 Bombay 202. They are as under:-
"The word "intent" by its etymology, seems to have metaphorical allusion to archery, and implies "aim" and thus connotes not a casual or merely possible result- foreseen perhaps as a not improbable incident, but not desired-but rather connotes the one object for which the effort is made-and thus has reference to what has been called the dominant motive, without which, the action would not have been taken."
(Emphasis supplied)
23. In the case of Basdev v. State of Pepsu, AIR 1956 SC 488, at page 490, the following observations have been made by Chadrasekhara Aiyar J.:-
"6. ... Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this had led to a certain amount of confusion."
(Emphasis supplied)
24. In para 9 of the judgment, at page 490, the observations made by Coleridge J. in Reg. v. Monkhouse, (1849) 4 COX CC 55(C), have been referred to. They can be referred to, with advantage at this stage, as they are very illuminating:-
"The inquiry as to intent is far less simple than that as to whether an act has been committed, because you cannot look into a man's mind to see what was passing there at any given time. What he intends can only be judged of by what he does or says, and if he says nothing, then his act alone must guide you to your decision. It is a general rule in criminal law, and one founded on common sense, that juries are to presume a man to do what is the natural consequence of his act. The consequence is sometimes so apparent as to leave no doubt of the intention. A man could not put a pistol which he knew to be loaded to another's head, and ftre it off, without intending to kill him; but even there the state of mind of the party is most material to be considered. For instance, if such an act were done by a born idiot, the intent to kill could not be inferred from the act. So if the defendant is proved to have been intoxicated, the question becomes a more subtle one; but it is of the same kind, namely; was he rendered by intoxication entirely incapable of forming the intent charged?"
(Emphasis supplied)
25. Bearing in mind the test suggested in the aforesaid decision and also bearing in mind that our legislature has used two different terminologies 'intent' and 'knowledge' and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be proper to hold that 'intent' and 'knowledge' cannot be equated with each other. They connote different things. Sometimes, if the consequence is so apparent, it may happen that from the knowledge, intent may be presumed. But it will not mean that 'intent' and 'knowledge' are the same. 'Knowledge' will be only one of the circumstances to be taken into consideration while determining or inferring the requisite intent.
26. In the case In re Kudumula Mahanandi Reddi, AIR 1960 AP 141, also the distinction between 'knowledge' and 'intention' is aptly explained. It is as under:-
"Knowledge and intention must not be confused.
17.... Every person is presumed to intend the natural and probable consequences of his act until the contrary is proved. It is therefore necessary in order to arrive at a decision, as to an offender's intention to inquire what the - natural and probable consequences of his acts would be. Once there is evidence that a deceased person, sustained injuries which were sufficient in the ordinary course of nature to cause death, the person who inflicted them could be presumed to have intended those natural and probable consequences. His offence would fall under the third head of sec. 300, I.P.C.
18.... A man's intention has to be inferred from what he does. But there are cases in which death is caused and the intention which can safely be imputed to the offender is less grave. The degree of guilt depends upon intention and the intention to be inferred must be gathered from the facts proved. Sometimes an act is committed which would not in an ordinary case inflict injury sufficient in the ordinary course of nature to cause death, but which the - offender knows is likely to cause the death. Proof of such knowledge throws light upon his intention.
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19....Under sec. 299 there need be no proof of knowledge, that the bodily injury intended was likely to cause death. Before deciding that a case of culpable homicide amounts to murder, there must be proof of intention sufficient to bring it under Sec.300. Where the injury deliberately inflicted is more than merely 'likely to cause death' but sufficient in the ordinary course of nature to cause death, the higher degree of guilt is presumed."
(Emphasis supplied) It has been further observed therein as under:-
"26. ...Where the evidence does not disclose that there was any intention, to cause death of the deceased but it was clear that the accused had the knowledge that their acts were likely to cause death the accused can be held guilty under the second part of sec. 304, I.P.C. The contention that in order to bring the case under the second part of sec. 304, I.P.C. it must be brought within one of the exceptions to sec 300, I.P.C. is not acceptable."
(Emphasis supplied)
27. Thus, while defining the offence of culpable homicide and murder, the framers of the IPC laid down that the requisite intention or knowledge must be imputed to the accused when he committed the act which caused the death in order to hold him guilty for the offence of culpable homicide or murder as the case may be. The framers of the IPC designedly used the two words 'intention' and 'knowledge', and it must be taken that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he "must have been aware that
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR certain specified harmful consequences would or could follow." (Russell on Crime, Twelfth Edition, Volume 1 at page 40).
28. This awareness is termed as knowledge. But the knowledge that specified consequences would result or could result by doing an act is not the same thing as the intention that such consequences should ensue. If an act is done by a man with the knowledge that certain consequences may follow or will follow, it does not necessarily mean that he intended such consequences and acted with such intention. Intention requires something more than a mere foresight of the consequences. It requires a purposeful doing of a thing to achieve a particular end. This we may make it clear by referring to two passages from leading text-books on the subject. Kenny in his Outlines of Criminal Law, Seventeenth Edition at page 31 has observed:-
"To intend is to have in mind a fixed purpose to reach a desired objective; the noun 'intention' in the present connexion is used to denote the state of mind o fa man who not only foresees but also desires the possible consequences of his conduct........ It will be noted that there cannot be intention unless there is also foresight, since a man must decide to his own satisfaction, and accordingly must foresee, that to which his express purpose is directed......... Again, a man cannot intend to do a thing unless he desires to do it."
(Emphasis supplied)
29. Russell on Crime, Twelfth Edition, 1st Volume at page 41 has observed:-
"In the present analysis of the mental element in crime the word "intention" is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so. He shapes his line of conduct so as to achieve a particular end at which he aims............ Differing from intention, yet closely resembling it, there are two other attitudes ofmind, either ofwhich is sufficient to attract legal
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR sanctions for harm resulting from action taken in obedience to its stimulus, but both of which can be denoted by the word "recklessness". In each of these the man adopts a line of conduct with the intention of thereby attaining an end which he does desire, but at the same time realises that this conduct may also produce another result which he does not desire. In this case he acts with full knowledge that he is taking the chance that this secondary result will follow. Here, again, if this secondary result is one forbidden by law, then he will be criminally responsible for it if it occurs. His precise mental attitude will be one of two kinds-(a) he would prefer that the harmful result should not occur, or (b) he is indifferent as to whether it does or does not occur."
(Emphasis supplied)
30. The phraseology of Sections 299 and 300 respectively of the IPC leaves no manner of doubt that under these Sections when it is said that a particular act in order to be punishable be done with such intention, the requisite intention must be proved by the prosecution. It must be proved that the accused aimed or desired that his act should lead to such and such consequences. For example, when under Section 299 it is said "whoever causes death by doing an act with the intention of causing death" it must be proved that the accused by doing the act, intended to bring about the particular consequence, that is, causing of death. Similarly, when it is said that "whoever causes death bydoing an act with the intention of causing such bodily injury as is likely to cause death" it must be proved that the accused had the aim of causing such bodily injury as was likely to cause death.
31. Thus, in order that the requirements of law with regard to intention may be satisfied for holding an offence of culpable homicide proved, it is necessary that any of the two specific intentions must be proved. But, even when such intention is not proved, the offence will be culpable homicide if
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR the doer of the act causes the death with the knowledge that he is likely by his such act to cause death, that is, with the knowledge that the result of his doing his act may be such as may result in death.
32. The important question which has engaged our careful attention in this case is, whether on the facts and in the circumstances of the case we should maintain the conviction of the appellant herein for the offence under Section 304 Part I or we should further alter it to Section 304 Part II of the IPC?
SECTIONS 299 AND 300 OF THE IPC:-
33. Sections 299 and 300 of the IPC deal with the definition of 'culpable homicide' and 'murder', respectively. In terms of Section 299, 'culpable homicide' is described as an act of causing death (i) with the intention of causing death or
(ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from a reading of this provision, the former part of it emphasises on the expression 'intention' while the latter upon 'knowledge'. Both these are positive mental attitudes, however, of different degrees. The mental element in 'culpable homicide', that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted-above, it would be 'culpable homicide'. Section 300 of the IPC, however, deals with 'murder', although there is no clear definition of 'murder' in Section 300 of the IPC. As has been repeatedly held by this Court, 'culpable homicide' is the genus and 'murder' is its species and all 'murders' are 'culpable homicides' but all 'culpable homicides' are not 'murders'. (see Rampal Singh v. State ofU.P., (2012) 8 SCC 289)
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34. In the case of State of Andhra Pradesh v.
Rayavarapu Punnayya, (1976) 4 SCC 382, this Court, while clarifying the distinction between these two terms and their consequences, held as under:-
"12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' is species. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide not amounting to murder'. For the purpose of ftxing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The ftrst is what may be called 'culpable homicide of the ftrst degree'. This is the greatest form of culpable homicide, which is deftned in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the ftrst 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 ofSection
304."
(Emphasis supplied)
35. Section 300 of the IPC proceeds with reference to Section 299 of the IPC. 'Culpable homicide' may or may not amount to 'murder', in terms of Section 300 of the IPC. When a 'culpable homicide is murder', the punitive consequences shall follow in terms of Section 302 of the IPC, while in other cases, that is, where an offence is 'culpable homicide not amounting to murder', punishment would be dealt with under Section 304 of the IPC. Various judgments of this Court have dealt with the cases which fall in various classes of firstly, secondly, thirdly and fourthly, respectively, stated under Section 300 of the IPC. It would not be necessary for us to deal with that aspect of the case in any further detail.
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36. The principles stated in the case of Virsa Singh v. State of Punjab, AIR 1958 SC 465, are the broad guidelines for the courts to exercise their judicial discretion while considering the cases to determine as to which particular clause of Section 300 of the IPC they fall in. This Court has time and again deliberated upon the crucial question of distinction between Sections 299 and 300 of the IPC, i.e. 'culpable homicide' and 'murder' respectively. In Phulia Tudu v. State of Bihar, (2007) 14 SCC 588, this Court noticed that confusion may arise if the courts would lose sight of the true scope and meaning of the terms used by the legislature in these sections. This Court observed that the safest way of approach to the interpretation andapplication of these provisions seems to be to keep in focus the keywords used in the various clauses of these sections.
37. This Court in Phulia Tudu (supra) has observed that 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 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 of the IPC. The following comparative table will be helpful in appreciating the points of distinction between the two offences:-
Section 299 Section 300
A person commits Subject to certain exceptions culpable
culpable homicide if the homicide is murder if the act by which act by which the the death is caused is done-
death is caused is done-
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR INTENTION
(a) with the intention of (1) with the intention of causing death; or causing death; or with the intention of causing such bodily
(b) with the intention of injury as the offender knows to be likely causing such bodily to cause the death of the person to injury as is likely to cause whom the harm is caused; or death; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be infiicted is suffi cient in the ordinary course of nature to cause death; or KNOWLEDGE
(c) with the act is likely to (4) with the knowledge that the act is so cause death imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as mentioned above.
38. Clause (b) of Section 299 of the IPC corresponds with clauses (2) and (3) of Section 300 of the IPC. The distinguishing feature of the mens rea requisite under clause (2) is theknowledge 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. 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 clause (2) is borne out by illustration
(b) appended to Section 300 of the IPC.
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39. Clause (b) of Section 299 of the IPC does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 of the 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 cause death of that particular person as a result; of the ruptureof 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 intentionally given. In clause (3) of Section 300 of the IPC, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299 of the IPC, 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 difference between clause (b) of Section 299 of the IPC and clause (3) of Section 300 of the 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 of the 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 probable"
result of the injury, having regard to the ordinary course of nature.
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40. 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. The decision in the case of Rajwant Singh v. State of Kerala, AIR 1966 SC 1874, is an apt illustration of this point.
41. The scope of clause thirdly of Section 300 of the IPC has been the subject matter of various decisions of this Court. The decision in Virsa Singh (supra) has throughout been followed in a number of cases by this Court. In all these cases the approach has been to find out whether the ingredient namely the intention to cause the particular injury was present or not? If such an intention to cause that particular injury is made out and if the injury is found to be sufficient in the ordinary course of nature to cause death, then clause thirdly of Section 300 of the IPC is attracted. Analysing clause thirdly and as to what the prosecution must prove, it was held in Virsa Singh (supra) as under:-
"15. First, it must establish, quite objectively, that a bodily injury is present;
16. Secondly, the nature ofthe injury must be proved; These are purely objective investigations.
17. 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...
18. Once these three elements are proved to be present, the enquiry proceeds further and,
19. 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."
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR (Emphasis supplied) It was further observed as under:-
"20. ... If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."
(Emphasis supplied)
42. Thus, it is clear that the ingredient of clause thirdly is not the intention to cause death but on the other hand, the ingredient to be proved is the intention to cause the particular injury that was present. It is fallacious to contend that wherever there is a single injury only a case of culpable homicide is made out irrespective of other circumstances. In Emperor v. Sardarkhan Jaridkhan, AIR 1916 Bom 191, it was observed as under:-
"Where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended."
(Emphasis supplied)
43. Commenting upon the aforesaid observation of the Bombay High Court, Justice Bose, in Virsa Singh (supra), held thus:-
"23. ... With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap."
44. As to how the intention is to be inferred even in a case of single injury, Justice Bose further held as under:-
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR "23. ... 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 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, 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 intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one oflaw. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.
24. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one offact. ..."
(Emphasis supplied)
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45. This question was again considered in Jagrup Singh v. State of Haryana, (1981) 3 SCC 616, by a Bench of this Court consisting of Justice D.A. Desai and Justice A.P. Sen and following the ratio laid down in Virsa Singh (supra) it was held as under:-
"6. There is no justiftcation for the assertion that the giving of a solitary blow on a vital part of the body resulting the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304 Part II of the Code. If a man deliberately strikes another on the head with a heavy log ofwood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause Istly or clause 3rdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death."
The aforesaid decision of this Court in Jagrup Singh (supra) has been strongly relied upon by the learned senior counsel appearing for the appellant.
46. However, the learned senior counsel did not seek to rely on the observations made in para 6 referred to above in the case of Jagrup Singh (supra). The learned senior counsel relied on the observations which we shall refer to hereinafter, but after giving some factual background in the case of Jagrup Singh (supra). On the fateful evening, the marriage of one Tej Kaur was performed. Shortly thereafter, the appellant Jagrup Singh armed with a gandhala, his brothers Billaur Singh armed with a gandasa and Jarmail Singh and Waryam Singh
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR armed with lathies emerged suddenly and made a joint assault on the deceased Chanan Singh and the three eyewitnesses, Gurdev Singh, PW 10, Sukhdev Singh, PW 11 and Makhan Singh, PW 12. The deceased along with the three eyewitnesses was rushed to the Rural Dispensary, Rori where they were examined at 6 pm by Dr. Bishnoi, PW 3, who found that the deceased had a lacerated wound 9 cm × 11/2 cm bone deep on the right parietal region, 9 cm away from the tip of right pinna; margins of wound were red, irregular and were bleeding on touch; direction of wound was anterior-posterior. The deceased succumbed to the injuries. The Doctor who performed an autopsy on the dead body of the deceased deposed before the Trial Court that the death of the deceased was due to cerebral compression as a result of the head injury which was sufficient in the ordinary course of nature to cause death. In the background of this case, this Court held:-
"14. ... In our judgment, the High Court having held that it was more probable that the appellant Jagrup Singh had also attended the marriage as the collateral, but something happened on the spur of the moment which resulted in the infliction ofthe injury by Jagrup Singh on the person of the deceased Chanan Singh which resulted in his death, manifestly erred in applying Clause Thirdly of Section 300 of the Code. On the ftnding that the appellant when he struck the deceased with the blunt side of the gandhala in the heat of the moment, without pre-meditation and in a sudden ftght, the case was covered by Exception 4 to Section 300. It is not suggested that the appellant had taken undue advantage of the situation or had acted in a cruel or unusual manner. Thus, all the requirements of Exception 4 are clearly met. That being so, the conviction ofthe appellant Jagrup Singh, under Section 302 ofthe Code cannot be sustained.
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15. The result, therefore, is that the conviction of the appellant under Section 302 is altered to one under Section 304, Part II of the Indian Penal Code. For the altered conviction, the appellant is sentenced to suffer rigorous imprisonment for a period ofseven years."
(Emphasis supplied) We have noticed something in the aforesaid observations made by this Court which, in our opinion, creates some confusion. We have come across such observations in many other decisions of this Court over and above the case of Jagrup Singh (supra). What we are trying to highlight is that in Jagrup Singh (supra), although this Court altered the conviction from Section 302 to Section 304 Part II, it took shelter of Exception 4 to Section 300 of the IPC. The question is, was there any need for the Court to take recourse to Exception 4 to Section 300 of the IPC for the purpose of altering the conviction from Section 302 to Section 304 Part II of the IPC. We say so because there is fine difference between the two parts of Section 304 of the IPC. Under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
47. In Jawahar Lal v. State of Punjab, (1983) 4 SCC 159, also the accused hit the deceased with a knife blow in front of left side of his chest and as per the autopsy report the injuries were found sufficient in an ordinary course of nature to cause death. This Court took a view that the accused could be attributed the knowledge that he was likely to cause an injury
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR which was likely to cause death. The relevant paras of the said judgment is reproduced as under:
"17.......we should also not further dilate on this point in view of the decision of this Court in Jagrup Singh v. State ofHaryana : 1981 Cri LJ 1136. In that case after referring to the evidence, this Court held that the appellant gave one blow on the head of the deceased with the blunt side of the gandhala and this injury proved fatal. The Court then proceeded to examine as to the nature of the offence because the appellant in the case was convicted for an offence under Section 302. Undoubtedly, this Court said that there is no justiftcation for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304, Part II of the Code. The Court then proceeded to lay down the criteria for judging the nature of the offence. It may be extracted;
The whole thing depends upon the intention to cause death, and the case may be covered by either clause Firstly or clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstance attendant upon the death.
18. We may point out that decision in Jagrup Singh's Case 1981 Cri LJ 1136 was subsequently followed in Randhir Singh @ Dhire v. State of Punjab Decided on September 18, 1981 and in Kulwant Rai v. State of Punjab Decided on August 7, 1981 (Criminal Appeal No. 630 of1981).
19. Having kept this criteria under view, we are of the opinion that the offence committed by the 1st appellant would not be covered by clause Thirdly of Para 3 of Section 300 and therefore, the conviction under Section 302, I.P.C. cannot be sustained.
20. What then is the offence committed by the 1st appellant? Looking to the age ofthe 1st appellant at the time of the occurrence, the nature of the weapon used, the circumstances in which one blow was inflicted, the time of the day when the occurrence took place and the totality of other circumstances, namely, the previous trivial disputes between the
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR parties, we are of the opinion that the 1st appellant could be attributed the knowledge that he was likely to cause an injury which was likely to cause death. Accordingly, the 1st appellant is shown to have committed an offence under Section 304, Part II of the Indian Penal Code and he must be convicted for the same and sentenced to suffer rigorous imprisonment for five years maintaining the sentence often."
48. In Camilo Vaz v. State of Goa [(2000) 9 SCC 1 : 2000 SCC (Cri) 1128] the accused had hit the deceased with a danda during a premeditated gang-fight, resulting in the death of the victim. Both the trial court and the Bombay High Court convicted the appellant under Section 302 IPC. This Court, however, converted the conviction to one under Section 304 Part II IPC and observed:- (SCC p. 9, para 14) "14. ... When a person hits another with a danda on a vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation case will fall in Part II of Section 304 IPC as in the present case."
(Emphasis supplied)
49. In Jai Prakash v. State (Delhi Admin.), (1991) 2 SCC 32, this Court, after an exhaustive review of various decisions, more particularly, the principles laid down in Virsa Singh's case (supra), concluded as under:-
"18. In all these cases, injury by a single blow was found to be sufficient in the ordinary course of nature to cause death. The Supreme Court took into consideration the circumstances such as sudden quarrel, grappling etc. as mentioned above only to assess the state of mind namely whether the accused had the necessary intention to cause that particular injury i.e. to say that he desired expressly that such injury only should be the result. It is held in all these cases that there was no such intention to cause that particular injury as in those circumstances, the accused could have been barely aware i.e. only had
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR knowledge of the consequences. These circumstances under which the appellant happened to inflict the injury it is felt or at least a doubt arose that all his mental faculties could not have been roused as to form an intention to achieve the particular result. We may point out that we are not concerned with the intention to cause death in which case it will be a murder simplicitor unless exception is attracted. We are concerned under clause 3rdly with the intention to cause that particular injury which is a subjective inquiry and when once such intention is established and if the intended injury is found objectively to be sufficient in the ordinary course of nature to cause death, clause 3rdly is attracted and it would be murder, unless one of the exceptions to Section 300 is attracted. If on the other hand this ingredient of 'intention' is not established or if a reasonable doubt arises in this regard then only it would be reasonable to infer that clause 3rdly is not attracted and that the accused must be attributed knowledge that in inflicting the injury he was likely to cause death in which case it will be culpable homicide punishable under Section 304 Part II IPC."
(Emphasis supplied)
50. In the case of Rajwant Singh (supra), after referring to the relevant clauses of Section 300 of the IPC, the following observations have been made:-
"10. ... The mental attitude is thus made of two elements (a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death....
11. ... For the application of clause three it must ftrst be established that the injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death, one test is satisfted. Then it must be proved that there was an intention to inflict that very Injury and not some other
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is established."
(Emphasis supplied)
51. In the case of Anda v. State of Rajasthan, AIR 1966 SC 148, the two relevant Sections 299 and 300 respectively are brilliantly analysed and the relevant observations are made at page 151 in para 7. Before we refer to those observations, we would refer to certain observations made earlier. They are as under:-
"The offence ofculpable homicide involves the doing of an act (which term includes illegal omissions) (a) with the intention ofcausing death, or (b) with the intention of causing such bodily injury as is likely to cause death or
(c) with the knowledge that the act is likely to cause death. If the death is caused in any of these three circumstances, the offence of culpable homicide is said to be committed....... Intention and knowledge in the ingredients ofthe section postulate the existence ofa positive mental attitude and this mental condition is the special mens rea necessary for the offence. The guilty intention in the ftrst two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death.The knowledge in the third condition contemplates knowledge of the death of the person. Sec. 300 tells us when the offence is murder and when it is culpable homicide not amounting to murder. Sec. 300 begins by setting out the circumstances when culpable homicide turns out into murder which is punishable under sec.
302 and the exceptions in the same section tell us when offence is not murder but culpable homicide not amounting to murder punishable under sec. 304. Murder is an aggravated form ofculpable homicide. The existence ofone offour conditions turns culpable homicide into murder while the special exceptions reduce the offence of murder again to culpable homicide not amounting to murder."
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR (Emphasis supplied)
52. We will now refer to the relevant observations made in para 10 at page 151. They are as under:-
"The third clause views the matter from a general stand-point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability ofdeath in the ordinary way ofnature and when this exists and death ensues and the causing of such injury is intended the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death, that is to say, the probability of death is not so high, the offence does not fall within murder but within culpable homicide not amounting to murder or something less. The illustration appended to the clause 3rdly reads:
'(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death.' The sufficiency of an intentional injury to cause death in the ordinary way ofnature is the gist ofthe clause irrespective ofan intention to cause death. Here again, the exceptions may bring down the offence to culpable homicide not amounting to murder."
(Emphasis supplied)
53. This Court in Vineet Kumar Chauhan v. State of U.P., (2007) 14 SCC 660, noticed that theacademic distinction between 'murder' and 'culpable homicide not amounting to murder' had vividly been brought out by this Court in State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382, where it was observed as under:-
"...that the safest way of approach to the interpretation and application ofSections 299 and 300 of
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR the Code is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of sections 299 and 300 of the Code and the drawing support from the decisions of the court in Virsa Singh v. State of Punjab, (AIR 1958 SC 465 :
1958 Cri LJ 818) and Rajwant Singh v. State of Kerala, (AIR 1966 SC 1874 : 1966 Cri LJ 1509) speaking for the court, Justice RS Sarkaria, neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the court said that wherever the Court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it would be convenient for it to approach the problem in three stages. The question to be considered at the ftrst stage would be that the accused has done an act by doing which he has caused the death of another. Two, if such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as deftned in section 299. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, on whether this second or the third clause of Section 299 is applicable. If this question is found in the positive but the cases come within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the ftrst part of Section 304 of the Code. It was, however, clarifted that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative."
(Emphasis supplied)
54. In the case of Tholan v. State of Tamil Nadu, AIR 1984 SC 759, the accused stood in front of the house of the deceased and used filthy language against some persons who were unconnected with the deceased. The deceased came out of his house and told the accused that he should not use vulgar
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR and filthy language in front of ladies and asked him to go away. The accused questioned the authority of the deceased to ask him to leave the place. In the ensuing altercation, the accused gave one blow with a knife which landed on the (right) chest of the deceased which proved to be fatal. This Court came to the conclusion that the accused could not be convicted under Section 302, but was guilty under Section 304 Part II. The circumstances which weighed with this Court were : (i) there was no connection between the accused and the deceased and the presence of the deceased at the time of the incident, was wholly accidental; (ii) altercation with the deceased was on the spur of the moment and the accused gave a single blow being enraged by the deceased asking him to leave the place; (iii) the requisite intention could not be attributed to the accused as there was nothing to indicate that the accused intended the blow to land on the right side of the chest which proved to be fatal.
55. In Chamru, Son of Budhwa v. State of Madhya Pradesh, AIR 1954 SC 652, in somewhat similar circumstances, where there was exchange of abuses between the two parties both of whom were armed with lathis, they came to blows and in the course of the fight that ensued, the accused struck a lathi blow on the head of the deceased which caused a fracture of the skull resulting in the death. In view of the fact that the accused had given only one blow in the heat of the moment, it was held that all that can be said was that he had given the blow with the knowledge that it was likely to cause death and, therefore, the offence fell under Section 304, Part II of the IPC. In Willie (William) Slaney v. The State of Madhya Pradesh, AIR 1956 SC 116, there was, as here, a sudden quarrel leading to an exchange of abuses and in the heat of the moment a solitary blow with a hockey-stick had been given on the head. The Court held that the offence amounted to culpable homicide not amounting to murder punishable under Section 304, Part II.
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56. In Kulwant Rai v. State of Punjab, (1981) 4 SCC 245, the accused, without any prior enmity or premeditation, on a short quarrel gave a single blow with a dagger which later proved to be fatal. This Court observed that since there was no premeditation, Part 3 of Section 300 of the IPC could not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the facts and circumstances of that case, the conviction of the accused was altered from Section 302 to that under Section 304 Part II IPC and the accused was sentenced to suffer rigorous imprisonment for five years.
57. In Jagtar Singh v. State of Punjab, (1983) 2 SCC 342, the accused on the spur of the moment inflicted a knife-blow on the chest of the deceased. The injury proved to be fatal. The doctor opined that the injury was sufficient in the ordinary course of nature to cause death. This Court observed that: (SCC p. 344, para 8):-
"8. ... The quarrel was ofa trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. ..."
(Emphasis supplied) This Court altered the conviction of the appellant from Section 302 IPC to Section 304 Part II IPC and sentenced the accused to suffer rigorous imprisonment for five years.
58. In Hem Raj v. State (Delhi Admn.), 1990 Supp SCC 291, the accused inflicted single stab injury landing on the chest of the deceased. The occurrence admittedly had taken place on
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR the spur of the moment and in heat of passion upon a sudden quarrel. According to the doctor the injury was sufficient in the ordinary course of nature to cause death. This Court observed as under: (SCC p. 295, para 14)"-
"14. The question is whether the appellant could be said to have caused that particular injury with the intention of causing death of the deceased. As the totality of the established facts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without premeditation during the course ofwhich the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury; but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course ofnature was sufficient to cause death, neither clause I nor clause III of Section 300 IPC will be attracted."
(Emphasis supplied) This Court while setting aside the conviction under Section 302 convicted the accused under Section 304 Part II and sentenced him to undergo rigorous imprisonment for seven years.
59. We may lastly refer to the decision of this Court in Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500, wherein this Court enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused. This Court observed : (SCC pp. 457-58, para 29) "29. Therefore, the court should proceed to decide the pivotal question ofintention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR insigniftcant matters -- plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases ofmurder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases ofculpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course ofsudden quarrel or sudden ftght or free for all ftght; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and ifso, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows.The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."
(Emphasis supplied)
60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:-
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC.
Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'.
(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.
61. We once again recapitulate the facts of this case. On the fateful day of the incident, the father and son were working in their agricultural field early in the morning. They wanted to transport the crop, they had harvested and for that purpose they had called for a lorry. The lorry arrived, however, the deceased did not allow the driver of the lorry to use the disputed pathway. This led to a verbal altercation between the appellant and the deceased. After quite some time of the verbal altercation, the appellant hit a blow on the head of the deceased with the weapon of offence (weed axe) resulting in his death in the hospital.
62. Looking at the overall evidence on record, we find it difficult to come to the conclusion that when the appellant struck the deceased with the weapon of offence, he intended to cause such bodily injury as was sufficient in the ordinary course of
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR nature to cause death. The weapon of offence in the present case is a common agriculture tool. If a man is hit with a weed axe on the head with sufficient force, it is bound to cause, as here, death. It is true that the injuries shown in the post mortem report are fracture of the parietal bone as well as the temporal bone. The deceased died on account of the cerebral compression i.e. internal head injuries. However, the moot question is - whether that by itself is sufficient to draw an inference that the appellant intended to cause such bodily injury as was sufficient to cause death. We are of the view that the appellant could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause the death. It is in such circumstances that we are inclined to take the view that the case on hand does not fall within clause thirdly of Section 300 of the IPC.
63. In the aforesaid view of the matter and more particularly bearing the principles of law explained aforesaid, the present appeal is partly allowed. The conviction of the appellant under Section 304 Part I of the IPC is altered to one under Section 304 Part II of the IPC. For the altered conviction, the appellant is sentenced to undergo rigorous imprisonment for a period of five years.
Appeal partly allowed."
{{{
24. In the case of Valthepu Srinivas Vs. State of Andhra Pradesh - AIR 2024 SC 1050, it was held as under:
28. Even though, A-3 might not have had the common intention to commit the murder, nevertheless, his participation in the assault and the wielding of the stone certainly makes him culpable for the offence that he has
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR committed. While we acquit A-3 of the offence under Section 302 read with Section 34 of the IPC, he is liable for the offence under 304 Part II IPC. The law on Section 304 Part II has been succinctly laid down in Camilo Vaz v. State of Goa, (2000) 9 SCC 1, where it was held that:
14. This section is in two parts. If analysed, the section provides for two kinds of punishment to two different situations : (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here the important ingredient is the "intention"; (2) if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on a vital part of the body with such force that the person hit meets his death, knowledge has to be imputed to the accused....
29. In the past, this Court has considered factors such as lack of medical evidence to prove whether the act/injury was individually sufficient to cause death, a single blow on head with a hammer and lack of cogent evidence of the eye-witnesses that the accused shared a common intention to commit murder as some factors to commute a sentence from Section 302 to Section 304 Part II IPC.
30. Returning back to the facts of the case, there is certainly no escape from coming to the conclusion that A-3 should have had the knowledge that the use of a stone to hit the head of the deceased is likely to cause death.
However, as demonstrated before, the evidence is insufficient to deduce a conclusion that he shared a common intention with the other accused to commit the
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR murder of the deceased. Considering the role that A-3 has played, we hold him guilty of the offence under Section 304 Part II IPC.
31. The perusal of the evidence would reveal that it is not the case of the prosecution that A-3 was along with the other accused while the deceased was dragged to the house. The deposition would reveal that after the other accused assaulted the deceased with sword, A-3 came thereafter and assaulted the deceased with stone lying there. We, therefore, find that the prosecution has not been in a position to establish that A-3 shared the common intention with the other accused to cause the murder of the deceased.
32. For the reasons stated above, we uphold the conviction and sentence of A-1, A-2 and A-4 under Section 302 read with Section 34 IPC and dismiss their Criminal Appeal No. 2852 of 2023 against the judgment of the High Court of Telangana in Criminal Appeal No. 308 of 2005 dated 26.04.2022. We acquit A-3 of the conviction and sentence under Section 302 read with Section 34 and convict him under Section 304 Part II and sentence him to undergo imprisonment for 10 years. To this extent, the appeal of A-3 is allowed by altering the conviction under Section 302 to Section 304 Part II IPC.
(emphasis supplied)
25. In the case of Hussain Bai Asgarali Lokhandwala Vs. State of Gujarat, - AIR 2024 SC 3832 it was held as under:
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24. We are in agreement with the view taken by the High Court that the entire incident had occurred in the heat of the moment and that neither party could control their anger which ultimately resulted into the fateful incident.
25. That being the position and since the High Court had brought down the charge from Section 304 Part I IPC to Section 304 II IPC, we feel that it would be in the interest of justice if the sentence of the appellant Hussainbhai Asgarali Lokhandwala is further modified to the period of incarceration already undergone by him while maintaining the conviction.
26. Much water has flown down the river by this time.
The unfortunate incident leading to the loss of a precious life and sustaining of injuries by a couple of others had happened in a spur of the moment.
Therefore, while concurring with the impugned judgment of the High Court dated 06.05.2016 insofar alteration of the conviction is concerned, we are of the view that the sentence imposed upon the appellant should be altered to the period of incarceration already undergone by him. That being the position, it is not necessary to delve into and elaborate upon the other contentions raised at the Bar.
27. Consequently, Criminal Appeal No. 1691 of 2023 is partly allowed. While maintaining the conviction of the appellant Hussainbhai Asgarali Lokhandwala under Section 304 Part II IPC, his sentence is modified to the
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR period already undergone by him. All the other criminal appeals are, however, dismissed.
17. As stated supra, if the material on record are examined bearing in mind the principles enunciated in the aforesaid judgments, it is evident that the appellant - accused cannot be held to be guilty of the offence of murder within the meaning of Section 300 IPC or the offence of attempt to murder under Section 307 IPC. On the other hand, the appellant is clearly guilty of culpable homicide not amounting to murder as contemplated in Exception No.1 and / or Exception No.4 to Section 300 IPC and would be punishable under Section 304 Part-II of IPC as well as for attempt to commit culpable homicide not amounting to murder as contemplated in Section 308 IPC and the appellant would be liable to be sentenced appropriately.
18. Insofar as the impugned judgment passed by the Trial Court convicting the appellant for offence punishable under Section 506 IPC is concerned, having regard to the findings recorded by us hereinbefore, it would be just and appropriate to sentence the appellant by imposing a fine of Rs.10,000/- upon the appellant in this regard.
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19. It is a matter of record and an undisputed fact that that appellant has been in custody from the date of his arrest i.e., from 06.07.2020 till this day, which comes about Five (5) years Eight (8) months and Ten (10) days. Under these circumstances, we are of the considered opinion that the present appeal deserves to be partly allowed and the impugned judgment passed by the Trial Court deserves to be modified by convicting and sentencing the appellant - accused for offences of culpable homicide not amounting to murder by invoking Section 304 Part-II of IPC and Section 308 IPC and the period of custody / imprisonment of Five (5) years Eight (8) months and Ten (10) days already undergone by the appellant is set off towards the sentence to be imposed upon him by issuing certain directions in this regard.
20. In the result, we pass the following:
JUDGMENT
(i) Appeal is hereby partly allowed.
(ii) The impugned judgment of conviction and sentence dated 23.09.2024 passed in S.C.No.71/2020 by the IV Addl.
District & Sessions Judge, Dharwad, is hereby modified.
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(iii) The conviction and sentence of the appellant -
accused for offences punishable under Sections 302 and 307 IPC is hereby set aside and the appellant is convicted for offences punishable under Section 304 Part-II and 308 IPC and the appellant is sentenced to undergo rigorous imprisonment for a period of Five (5) years Eight (8) months and Ten (10) days for the aforesaid offences.
(iv) It is directed that the aforesaid period of Five (5) years Eight (8) months and Ten (10) days, during which the appellant has already undergone imprisonment and has been in custody from 06.07.2020 onwards is hereby set off as against the said period of sentence of five (5) years Eight (8) months and Ten (10) days imposed in the present order.
(v) The conviction and sentence of the appellant -
accused for an offence punishable under Section 506 IPC is hereby confirmed and the appellant is sentenced to pay a fine of Rs.25,000/- to the High Court Legal Services Committee / Authority, High Court of Karnataka, Dharwad Bench, within a period of four weeks from today, in default, to undergo simple imprisonment for a period of four weeks..
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NC: 2026:KHC-D:4097-DB CRL.A No. 100616 of 2024 HC-KAR
(vi) The respondent and the concerned jail authorities are hereby directed to release the appellant - accused from custody forthwith / immediately without any delay, if not already required in any other case.
(vii) Registry as well as the learned Addl.SPP are hereby directed to communicate this order to the respondent and concerned jail authorities for immediate compliance / action and to release the appellant - accused immediately as stated supra.
Sd/-
(S.R. KRISHNA KUMAR) JUDGE Sd/-
(C.M. POONACHA) JUDGE Sv/Srl.