Sinesh, S/O.Govindan,C No.3960 vs State Of Kerala on 23 October, 2024

[Cites 10, Cited by 0]

Kerala High Court

Sinesh, S/O.Govindan,C No.3960 vs State Of Kerala on 23 October, 2024

The above appeal has been preferred by the accused in S.C.No.540 of 2016 on the file of the Additional Sessions Judge-II, N. Paravur. In the above case, the appellant faced indictment for having committed the offence punishable under Section 302 of the IPC. By judgment dated 25.01.2018, he was found guilty and was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.15,000/- and in default to undergo Rigorous Imprisonment for three months.

Prosecution Case in a nutshell

2. The appellant is a married man and he along with his wife and son are residing in the house bearing Door No. 19/27 of Pallippuram Panchayat. The deceased Santhosh was the elder brother of the appellant and he is unmarried. House No.19/27 originally belonged to the father of the appellant. Santhosh was working in a petrol pump and he used to come and reside in the family house. This was not liked by the appellant. As per the charge, on 16.12.2014, between 9.30 p.m. and 11.15 p.m., after a brief scuffle, the appellant fisted and kicked 2024:KER:78541 Crl.A. No.1127 of 2018 :3: Santhosh on his head and other parts of his body, in front of the courtyard of the building bearing No.19/27 with the intention of causing his death and thereby committed the offence of murder. Santhosh sustained diffuse subdural and subarachnoid hemorrhage, fracture of his ribs, and other injuries. He fell into a state of unconsciousness and blood came out of his nose and mouth. He was later rushed to the Government Hospital, North Paravur by Jolly (PW13) and Sreejith (PW9) in the autorickshaw of Arun (PW8). He was declared dead by the Doctor on examination.

Registration of the Crime and Investigation

3. Asokan (PW1), the brother-in-law of the accused, went to the police and set the law in motion by lodging Ext.P1 FI Statement at 3.30 a.m. on 17.12.2014, based on which Ext.P8 FIR was registered under Section 302 of the IPC arraying the appellant as the accused.

4. PW19 took over the investigation on 17.12.2014. He conducted the inquest over the body of the deceased and prepared Ext.P2 inquest report. He then went to the scene of the crime along with PW17 Scientific Assistant. The Scientific Assistant collected some hair from a towel found at the scene of the crime and took samples of stained soil and controlled soil and the same was handed over to PW19 who forwarded it to the Chemical Examiner's lab. He 2024:KER:78541 Crl.A. No.1127 of 2018 :4: prepared Ext.P6 scene mahazar and seized MO4 chappals and MO5 towel found at the scene of the crime. The steps were taken to conduct the autopsy. The sample blood, hair, etc. collected by the Police Surgeon at the time of autopsy were seized as per seizure Ext.P4 mahazar. The arrest of the accused was recorded at 7.00 p.m. on 17.12.2014 as per Ext.P9 arrest memo. The accused was sent for medical examination on 18.12.2014 and samples of blood, hair, and nail clippings were collected. A request was made for forwarding the seized items for scientific examination. He later completed the investigation and laid the final report before the Judicial Magistrate of the First Class, Njarakkal. The Committal and Framing of Charge

5. The learned Magistrate numbered the case as C.P.No.31 of 2015 and the case was committed to the Court of Session. The case was later made over to the Additional Sessions Judge. By following the procedure and after hearing both sides, the charge was framed. The Court charge reads as under:

"That on 13.12.2014 between 9.30 pm and 11.15 pm, in front of the courtyard of building bearing door No. 19/27, Pallippuram Panchayath named Padathumparambil house, you had caused death of your brother named Santhosh, aged 51 years, S/o. Govindan by injuring him by fisting on his head and other parts of the body with the intention of causing his death and you have thereby committed offence of murder punishable u/s. 302 of the IPC."

2024:KER:78541 Crl.A. No.1127 of 2018 :5: The accused pleaded not guilty to the charge and claimed to be tried. The evidence let in and the stand taken by the accused

6. On the side of the prosecution, 19 witnesses were examined as PWs 1 to 19 and through them, Exts.P1 to P16 were exhibited and marked. Material Objects 1 to 7 were produced and identified.

7. After the close of the prosecution evidence, the incriminating materials arising from the evidence were put to the accused under Section 313 of the Cr.P.C. He emphatically denied the circumstances pointing to his guilt. He stated that his parents had 10 children and he was the youngest. He got married about 12 years back and has been living in the Tarawad house along with his wife and child. While his father was alive, the share due to his siblings had been set apart and all issues had been settled. In spite of the above, PW1 Asokan approached him and demanded his wife's share. On 16.12.2014, at about 11 p.m., when he had come out to relieve himself, he found his brother lying in the courtyard. He immediately went to the house of Gopalakrishnan (PW5), who is his uncle. With the assistance of his uncle and others, Santhosh was shifted to the hospital. He then returned back to his house. At about 1:00 a.m., the police came to his house and he was taken to the Police Station. He stated that Ashokan had given a false complaint to the police, incriminating him.

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8. On finding that the accused could not be acquitted under Section 232 of the Cr.P.C., though he was called upon to enter on his defence, no evidence was adduced.

9. On the side of the accused, the Station House Officer, Munambam Police Station, was examined as DW1 and Ext.D1 was marked through him. Findings of the learned Sessions Judge

10. The learned Sessions Judge evaluated the evidence of Jibil (PW2), and Thambi (PW3), who had stated before the Court that they had seen that part of the incident, whereby, both the brothers entered into a scuffle and the accused was seen fisting and kicking the deceased. Asokan (PW1), the brother-in-law of the accused, Gopalakrishnan (PW5), the uncle of the accused, Sajeesh (PW6), the son of Gopalakrishnan, Sreejith (PW9), and Jolly (PW13), stated that they had gone to the house of the accused and saw Santhosh lying on the ground unconscious and bleeding from the nose and mouth. The accused was found nearby. Ext.P7 Autopsy report and the evidence of the Police Surgeon (PW14), who conducted the autopsy, was evaluated and it was concluded that injury No.1 noted in the autopsy report was sufficient in the ordinary course of nature to cause death. The inconsistencies pointed out by the accused relating to the registration of the crime, the absence of the name of PW1 in the GD Entry, 2024:KER:78541 Crl.A. No.1127 of 2018 :7: the explanation offered in his 313 Statement were all considered. It was held that the prosecution had successfully brought home the guilt of the accused and as a consequence, the finding of guilt was entered into. Contentions raised by the Appellant

11. Sri. P.S.Abdul Kareem, the learned counsel appearing for the appellant submitted that the prosecution witnesses had not stated the true facts before the Court. Admittedly, there was some exchange of words between the accused and the deceased at 9:00 p.m. However, there was no occasion for the appellant to cause injuries to the deceased in the manner alleged. Even the prosecution witnesses had no case that the appellant had caused any injuries on the head of the deceased. The genesis of the prosecution case itself is in doubt as when PW1 was examined, he had stated in unmistakable terms that he had gone back to his house after Santhosh was taken to the hospital and that he went to the Police Station only after lunch on 17.12.2014. This version of events goes against the prosecution records which say that the information was furnished at 3:30 a.m. on 17.12.2014. It is further submitted that the prosecution had not examined the doctor, who had examined Santhosh in the Govt. Hospital, North Paravur, and had declared him dead. Ext.P2 inquest was conducted by the Circle Inspector, only at 9:30 a.m. on 17.12.2014. As to what 2024:KER:78541 Crl.A. No.1127 of 2018 :8: had transpired from 11:30 p.m., when the deceased was found lying on the ground, till the inquest was held is still a mystery. The deceased could have met with an accident, while he was being shifted to the hospital. None of these aspects were considered by the learned Sessions Judge. It is further submitted by referring to Ext.P10 Inspection Memo that injuries were noted in the body of the accused when he was arrested. Furthermore, the incident had taken place in the courtyard of the house, wherein, he was residing with his family. The deceased was the aggressor and the appellant was merely defending himself and his family. Furthermore, the evidence reveals that both parties had exchanged blows. None of the witnesses stated that the appellant had used any weapon to inflict the injuries. The intention to cause that particular bodily injury, which caused the death of the deceased, cannot be attributed to the appellant. Submissions made by the learned Public Prosecutor

12. Sri. Neema T.V., the learned Public Prosecutor submitted that the witnesses who were examined by the prosecution have clearly stated the manner in which the injuries were inflicted by the appellant. According to the learned counsel, the intention to cause the death of his brother is clearly borne out from the manner in which the appellant had assaulted his brother. The doctor who conducted the autopsy has also stated in clear terms that Injury No. 1 inflicted 2024:KER:78541 Crl.A. No.1127 of 2018 :9: by the appellant was sufficient in the ordinary course of nature to cause death. Evaluation of the evidence

13. We have considered the submissions advanced by the learned counsel appearing for the appellant and the learned Public Prosecutor.

14. The fact that Santhosh had died of homicide is not seriously disputed. However, as we are required to re-appreciate the evidence to uphold, reverse, or modify the finding of guilt, conviction, or sentence, we shall carry out such an exercise. We find that in order to prove the incident and the manner in which it took place, the prosecution examined Jibil (PW2) and Thampi (PW3). PW2 stated that the accused was residing in the north of his house. On 16.12.2014, he heard some screams and noises from the house of the appellant at about 9:30 p.m. He found the accused and deceased engaged in a scuffle. The deceased fell down and he witnessed the accused stamping on his chest. He stated that Thambi (PW3) was also with him, and they witnessed the incident while standing on the boundary of the property of the accused. He stated that even on previous occasions, the accused as well as the deceased used to fight with each other. He then went back to his house. Later, Sajeev came to his house and called him. When he went to the spot, Gopalakrishnan (PW5), Sajeesh (PW6), Jolly (PW13), and Sreejith (PW9), were already there. Santhosh 2024:KER:78541 Crl.A. No.1127 of 2018 :10: was lying still on the ground. He was taken in an autorickshaw to the Govt. Hospital, North Paravur. PW2 followed the autorickshaw on a bike. Santhosh was seen by the Doctor, who pronounced him dead. Though the witness was cross-examined, he stood his ground and reiterated what he had seen. He stated that at 9:30 p.m., he had stood outside the property and had witnessed the fight for about 15 minutes.

15. Thambi (PW3) stated that he is acquainted with both the accused and the deceased. He is an immediate neighbor of the accused. He corroborated what PW2 had stated. According to him, he witnessed the deceased being beaten up and kicked by the accused. At 11:00 p.m., PW1, PW5, and others came to the spot. Santhosh was lying on the ground and blood was oozing out from his nose. The injured was shifted to the hospital. He also stated that the fight between the brothers was a usual occurrence.

16. Asokan (PW1), Gopalakrishnan (PW5), Sreejith (PW9), and Jolly (PW13) had all reached the place of occurrence at 11:15 p.m. PW1 stated that he is the brother-in-law of the accused. On 16.12.2014, Gopalakrishnan, who is his near relative came to his residence and told him that the appellant and the deceased were fighting with each other. They both went to the Tharavadu house, which is about 1 km away from his house. The accused was standing on 2024:KER:78541 Crl.A. No.1127 of 2018 :11: the boundary of his property. When asked as to what had happened, the accused is alleged to have told him that whatever happens, he shall deal with it. He found Santhosh lying on the ground in an unconscious state and in a supine position. He was bleeding from his nose. While they were standing there, Jibil (PW2), Thampi (PW3), and certain others reached the spot. They summoned an autorickshaw and rushed Santhosh to the Paravur Government Hospital. The injured was examined by the Doctor at 11.30 p.m. and he was declared dead. He found that there was soil on the face of Santhosh and according to him, it was consequent to the fight between the accused and the deceased that Santhosh had died. He stated that the accused was not happy with Santhosh coming to his house and they used to fight very often. Initially, he stated that information was furnished to the police and the crime was registered after lunch. He later corrected when he was recalled and re-examined and stated that the information was furnished at 3.30 a.m.

17. Gopalakrishnan (PW5) stated that the accused and the deceased were related to him. At about 11:00 p.m. on 16.12.2014, the accused knocked on his door and he was informed that there was a fight between the brothers and the deceased was lying still. Gopalakrishnan contacted PW1, and they went to the house of the accused. They found Santhosh lying in the courtyard and the 2024:KER:78541 Crl.A. No.1127 of 2018 :12: neighbors had all assembled. He stated that the on-lookers after his arrival shifted the deceased to the hospital. PW6, the son of the accused, spoke in the same lines as PW5.

18. Sreejith (PW9) and Jolly (PW13) corroborated the testimonies of PW5 and PW6. Upon evaluating the evidence presented by the eyewitnesses, as well as the testimonies of the neighbors who arrived at the scene, we find no reason to doubt their version of events. Their accounts clearly establish that the relationship between the accused and the deceased was strained, that the accused was unhappy with the deceased's presence in his house, and that they frequently argued. On the night of 16.12.2014, at approximately 9:00 p.m., a quarrel erupted between the accused and the deceased, during which the accused brutally assaulted the deceased by punching and kicking him, resulting in a refracture and hemorrhage. The minor discrepancies pointed out by the defence counsel in the testimonies of the witnesses are inconsequential. In our view, the prosecution has successfully proven the sequence of events through the examination of witnesses. While it is true that none of the witnesses specifically stated that the accused struck the deceased on the head, causing the hemorrhage, it is important to note that PWs 2 and 3 witnessed the fight at around 9:30 p.m. After observing the situation for about 15 minutes, they left 2024:KER:78541 Crl.A. No.1127 of 2018 :13: the scene. Given that the incident occurred late at night, it would be unreasonable to expect the witnesses to recall the exact part of the body where the accused struck the deceased. Both the postmortem report and the inquest report reveal that the deceased was only 5 feet tall and weighed 65 kg. All the witnesses consistently testified that when they saw the deceased at 11:00 p.m., he was lying unconscious with blood flowing from his nose and mouth. The medical evidence, as provided by the Doctor, confirmed that the blood vessels in the deceased's brain had ruptured, leading to significant bleeding in the brain. Thus, we can safely conclude that it was consequent to the injuries inflicted by the appellant on his brother that he had suffered the fatal injuries. The offence made out

19. The next question is whether the finding of the learned Sessions Judge that the offence proved is murder punishable under Section 302 of the IPC can be sustained. To evaluate the said contention, it would be appropriate to refer to the evidence tendered by Dr. Biju James (PW14), who conducted the autopsy. The following ante-mortem injuries were found:

1. The inner aspect of scalp showed numerous contusions (23 cm x 23 cm) all around. The skull bone was intact. There was diffuse subdural and subarachnoid hemorrhage.

2. Contusion 6 x 6 cm on the right side of the forehead, 4 cm above 2024:KER:78541 Crl.A. No.1127 of 2018 :14: the middle of the right eyebrow. There was a blood clot underneath.

3. The right eye was black.

4. Two oblique lacerated wounds (4 x 2 x 1 cm) parallel to each other on the inner aspect of the lower lip extending from the right angle of mouth to the midline.

5. Vertical grazed abrasions 15 x 3 cm on the front of the abdomen, the lower end was 4 cm above the umbilicus and 2cm to the left of the midline.

6. Three linear and parallel nail scratch marks on the front of the left chest 4cm inner to the left nipple.

7. Abraded contusion 10 x 5 cm on the left side of the lower chest and upper abdomen 10 cm below the left armpit. Underneath the left 8th and 9th ribs were fractured at the angle.

8. The right 8th and 9th ribs were fractured at their angle. There was 250 ml of blood in the right chest cavity. The right lung surface was lacerated at two places in its middle part.

9. Contusion top of right shoulder 6 x 6 cm.

10. Abraded contusion 10 x 6 cm outer aspect of right forearm in its middle part.

11. Abraded contusion 7 x 2 cm over the left shin in its upper part.

12. Contusion 4 x 4 cm inner aspect of left arm 5 cm below left armpit.

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20. PW14, the Doctor who conducted the autopsy, stated that injury No. 1 sustained by the deceased was reasonably sufficient in the ordinary course of nature to cause death. The question is whether the entire facts and circumstances make out a case for murder or any other offence.

21. We shall now make an endeavor to decide as to whether the learned Sessions Judge was justified in holding that the offense committed by the accused was indeed murder punishable under Section 302 of the IPC. Before proceeding further, it would be appropriate to extract Section 299 of the IPC.

"299. Culpable Homicide. -- 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 offence of culpable homicide."

22. The offence involves the doing of an act (which term includes illegal omissions) (a) with the intention of causing 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 death is caused in any of these three circumstances, the offence of culpable homicide is said to be committed. The existence of the three circumstances (a), (b), and (c) distinguishes homicide which is culpable from homicides that are lesser offences or which are excusable 2024:KER:78541 Crl.A. No.1127 of 2018 :16: altogether. Intent and knowledge in the ingredients of the section postulate the existence of a positive mental attitude and this mental condition is the special mens rea necessary for the offence. The guilty intention in the first 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 likelihood of the death of the person.

23. Section 300 of the IPC says when the offence is murder and when it is culpable homicide not amounting to murder. Section 300 begins by setting out the circumstances when culpable homicide turns into murder which is punishable under Section 302 and the exceptions in the same section tell us when the offence is not murder but culpable homicide not amounting to murder punishable under Section 304. Murder is an aggravated form of culpable homicide. The existence of one of four conditions turns culpable homicide into murder while the special exceptions reduce the offence of murder again to culpable homicide not amounting to murder. We are not concerned with the exceptions at this stage and we need not refer to them. We now refer to the circumstances which turn culpable homicide into murder. They read:

"300. Murder.-- Except in the cases hereinafter excepted culpable 2024:KER:78541 Crl.A. No.1127 of 2018 :17: 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 cause 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."

24. Taking the four clauses one by one, we find that under the first clause of Section 300 of the IPC culpable homicide is murder when the act by which death is caused is done with the intention of causing death. This clause reproduces the first part of Section 299. An intentional killing is always murder unless it comes within one of the special exceptions in Section 300. If an exception applies, it is culpable homicide not amounting to murder. It is the presence of a special exception in a given case which reduces the offence of murder to culpable homicide not amounting to murder when the act by which death is caused is done with the intention of causing death.

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25. The 2ndly in Section 300 mentions one special circumstance which renders culpable homicide into murder. Putting aside the exceptions in Section 300 which reduce the offence of murder to culpable homicide not amounting to murder, culpable homicide is again murder if the offender does the act with the intention of causing such bodily injury which he knows to be likely to cause the death of the person to whom the harm is caused. This knowledge must be in relation to the person harmed and the offence is murder even if the injury may not be generally fatal but is so only in his special case, provided the knowledge exists in relation to the particular person. If the element of knowledge be wanting the offence would not be murder but only culpable homicide not amounting to murder or even a lesser offence. Illustration (b) appended to this clause very clearly brings out the point. It reads:

"(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury, Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death or such bodily injury as in the ordinary course of nature would cause death."

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26. The third clause views the matter from a general standpoint. 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 of death in the ordinary way of nature 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 in the ordinary course of nature. If the intended injury cannot be said to be sufficient in the ordinary course of nature 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."

27. The sufficiency of an intentional injury to cause death in the ordinary way of nature is the gist of the clause irrespective of an intention to 2024:KER:78541 Crl.A. No.1127 of 2018 :20: cause death. Here again, the exceptions may bring down the offence to culpable homicide not amounting to murder.

28. The clause fourthly comprehends generally the commission of imminently dangerous acts which must in all probability cause death or cause such bodily injury as is likely to cause death. When such an act is committed with the knowledge that death might be the probable result and without any excuse for incurring the risk of causing death or injury as is likely to cause death, the offence is murder. This clause, speaking generally, covers cases in which there is no intention to cause the death of anyone in particular. Illustration (d) appended to this clause reads:

"(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premediated design to kill any particular individual."

29. The learned Sessions Judge, after evaluating the entire aspects, came to the conclusion that the act committed by the appellant would be murder under Clause 3rdly of Section 300 of the IPC.

30. Having evaluated the sequence of events, the circumstances preceding the incident and the injuries noted by the Doctor, it is evident that there was a mutual fight between the accused and the deceased, without the 2024:KER:78541 Crl.A. No.1127 of 2018 :21: use of weapons. Prosecution witnesses PWs 2 and 3, who are the ocular witnesses cited by the prosecution, stated that the brothers frequently quarreled and shared a strained relationship. On the day of the incident, the deceased had come to the house where the appellant was residing with his family, and a scuffle ensued. Both exchanged blows and the appellant, being stronger, overpowered his brother. The witnesses stated that they had seen the appellant stamping on the deceased and exchanging blows; however, none of them saw the appellant striking the deceased on the head with his fists. Since the incident took place between 9 p.m. and 11 p.m., it can be inferred that some blows from the appellant's fists may have landed on the scalp of the deceased causing internal injuries or the same might have been sustained by a fall on the ground with that part of the body striking a hard object. The doctor who conducted the autopsy did not record any injuries to the scalp. However, he did observe contusions on the forehead, blackening of the right eye, a minor lacerated wound on the lip, abrasions, contusions, and fractures of the 8th and 9th ribs. Ext. P10, the inspection memo, also notes that the accused sustained minor injuries on his body.

31. It is also to be noted that the appellant lived in the family home with his family, while the deceased, though in his 40s, remained unmarried.

2024:KER:78541 Crl.A. No.1127 of 2018 :22: Some witnesses have deposed that the deceased was known to consume alcohol. The appellant was displeased with the prospect of the deceased staying overnight in his home, which has always been a source of friction between them. They were also known to indulge in fisticuffs whenever the deceased, after completing his work at the petrol pump where he was employed, visited the appellant's residence. The incident on 16.12.2014 was but one in a series of such altercations that had been occurring over the years.

32. The learned Sessions Judge relied on the principles in Virsa Singh v. State of Punjab1 and was of the view that the case falls under clause thirdly of Section 300 of the IPC. It was concluded that the accused intended to cause such bodily injury which was sufficient in the ordinary cause of nature to cause death. As detailed by us earlier, the emphasis is on the sufficiency of the injury in the ordinary course of nature. To determine the above, one has to consider the nature of the weapon used, the part of the body on which the injury was inflicted, etc. If the intended injury cannot be said to be sufficient in the ordinary course of nature 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 than that. 1 [AIR 1958 SC 465] 2024:KER:78541 Crl.A. No.1127 of 2018 :23:

33. In Virsa Singh (supra), the legal quandary regarding the interpretation of clause thirdly of Section 300, which was till then considered to be a difficult and intricate issue by the courts, was settled by an authoritative pronouncement. In the said case, Virsa Singh was sentenced to imprisonment for life under Section 302 IPC. The only injury inflicted by the accused was as a result of the spear thrust and the doctor opined that the injury was sufficient in the ordinary course of nature to cause death. The trial court held that the incident was sudden and occurred at a chance meeting. Peritonitis also supervened which hastened the death of the deceased. It was contended that the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature and therefore, the offence was not one of murder. This contention was rejected. After analysing clause Thirdly of Section 300 of the IPC, the following observations were made in paragraph Nos.15 to 20 of the judgment. The Court held that the prosecution needs to establish the following aspects:

15. First, it must establish, quite objectively, that a bodily injury is present;

16. Secondly, the nature of the injury must be proved; These are purely objective investigations.

17. Thirdly, it must be proved that there was an intention to inflict that 2024:KER:78541 Crl.A. No.1127 of 2018 :24: 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."

20. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300, thirdly .... It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. 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."

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34. In Jai Prakash v. State (Delhi Admn.)2, the Apex Court after referring to the observations in Virsa Singh (supra) and in Jagrup Singh v. State of Haryana3 wherein the principles were reiterated had observed as under in paragraph 12 of the judgment:

12. Referring to these observations, Division Bench of this Court in Jagrup Singh v. State of Haryana's case [(1981) 3 SCC 616] observed thus:

"These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case [AIR 1958 SC 465] for the applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law."

The Division Bench also further held that the decision in Virsa Singh case [1958 SCR 1495] has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words Clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to 2 (1991) 2 SCC 32 3 [(1981) 3 SCC 616] 2024:KER:78541 Crl.A. No.1127 of 2018 :26: cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.

35. As held by the Apex Court, the 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of the attack, multiplicity of injuries and all other surrounding circumstances. After appreciating the facts in the light of the principles above, we are of the view that though the prosecution has proved that the bodily injury is present, it has failed to convincingly establish before us that the appellant had the intention to cause death, or that he had inflicted the blows with the intention of causing such bodily 2024:KER:78541 Crl.A. No.1127 of 2018 :27: injury which he knows to be likely to cause the death. The prosecution has also not established that the appellant had caused such bodily injury which is sufficient in the ordinary course of nature to cause death or that he was possessed with such knowledge that death might be the probable result and inspite of the same does the act without any excuse for incurring the risk of causing death or injury as is likely to cause death. We are of the view that only an offence under Section 325 of the IPC for causing grievous hurt would be attracted in the instant case. In that view of the matter, we deem it proper to alter the sentence imposed upon the appellant for the commission of the aforesaid crime. Having regard to the facts and circumstances of the case and the gravity of the offence, we are of the view that the appellant is liable to be sentenced to rigorous imprisonment for 5 years and a fine of Rs.25,000/- (Rupees Twenty-five thousand only) for the offence under Section 325 of the IPC.

Conclusion

36. In the result, the appeal stands allowed in part as follows:

(i) The conviction of the appellant for the offence under Section 302 IPC and the sentence imposed thereunder by the Trial Court are set aside.

2024:KER:78541 Crl.A. No.1127 of 2018 :28:

(ii) The appellant is found guilty for commission of offence under Section 325 of the IPC and convicted thereunder.

(iii) The appellant is sentenced to rigorous imprisonment for 5 years and a fine of Rs.25,000/- (Rupees Twenty-Five Thousand Only) under Section 325 of the IPC. In default of payment of fine, the appellant will undergo rigorous imprisonment for a further term of three months.

(iv) The appeal is disposed of in the above terms in modification of the order passed by the learned Sessions Judge.

sd/-

RAJA VIJAYARAGHAVAN V, JUDGE sd/-

G. GIRISH, JUDGE PS &APM/21/10/24

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