BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 16/11/2012

CORAM

THE HONOURABLE MR.JUSTICE M.JAICHANDREN

AND

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRIMINAL APPEAL (MD).No.22 of 2011

Ganesan ... Appellant/

Accused No.1

Vs.

The State, rep by

Inspector of Police, ... Respondent

PRAYER

Appeal is filed under Section 374 of the Code of Criminal

Procedure against the conviction and sentence passed by the

Principal Sessions Court, Virudhunagar at Srivilliputhur,

Virudhunagar District made in S.C.No.186/2008.

!For Appellant ... Mr.G.Marimuthu

^For Respondent... Mr.K.S.Duraipandian

Additional Public Prosecutor

:JUDGMENT

(Judgment of the Court was delivered by

S.NAGAMUTHU, J.)

The appellant is the first accused in S.C.No.186 of 2008

on the file of the Principal Sessions Judge, Virudhunagar

District at Srivilliputhur. The second accused in the said case is

one Mr.Sivaraja. During the trial of the case, it was found that

the second accused was a juvenile, as on the date of

commission of the offence. Therefore, the trial Court had

separated the case against A2 and forwarded the same to the

Juvenile Justice Board for enquiry under the provisions of

Juvenile Justice (Care and Protection of Children) Act, 2000.

Thus, ultimately, it was this appellant, who alone faced the

complete trial. Finally, the trial Court by judgment dated

30.11.2010 convicted him under Sections 341, 302 and 326

IPC and sentenced him to undergo imprisonment for life for the

offence under Section 302 IPC (no fine was imposed); to

undergo a simple imprisonment for one month for the offence

under Section 341 IPC and to undergo rigorous imprisonment

for three years and to pay a fine of Rs.3,000/-, in default, to

undergo rigorous imprisonment for nine months for the offence

under Section 326 IPC. The sentences have been ordered to

run concurrently.

Challenging the said conviction and sentence, the appellant is

before this Court with this appeal.

2. The case of the prosecution in brief is as follows:

The deceased in this case was one Mr.Sivanantha Raja.

P.Ws.1,2 and 3 are the son, mother and another son

respectively of the deceased. All of them were residing in

"Kandiapuram Repatriate camp" in Virudhunagar District. Over

trivial matters, the deceased had frequent quarrels with these

two accused, who also belonged to the same place. On

16.11.2007, at about 7.00 a.m., the deceased and P.W.1 were

proceeding in a TVS motor cycle to the house of one

Mr.Ravikumar. When they were nearing the house of

Ravikumar, these two accused suddenly appeared at the scene

of occurrence; both armed with weapons. The first accused

was armed with aruval and the second accused (juvenile

accused) was armed with iron pipe. The TVS motor cycle was

driven by the deceased, whereas P.W.1 was travelling as pillion

rider. On intercepting the motorcycle, suddenly, the first

accused cut the deceased on the right hand with aruval. The

right hand was severed at the level of lower 1/3rd. Then, he

again cut the deceased with aruval on his left hand. P.W.1

tried to intervene with a view to save his father. The second

accused (juvenile accused) attacked him with iron pipe on his

left thigh, which resulted in a fracture. Then, both the accused

fled away from the scene of occurrence. P.W.2, the wife of the

deceased, was at that time at her house. She heard the hue

and cry from the place of occurrence. When she came out of

her house, she found the first accused armed with aruval and

the second accused armed with iron pipe. When she went to

the place of occurrence, she found the deceased as well as

P.W.1 with injuries. P.W.3 is yet another son of the deceased.

According to him, at the time of occurrence, he was at his

home. As a matter of fact, he was sleeping. On hearing the

hue and cry, he woke up and rushed to the place of

occurrence. He found these two accused armed with weapons.

He also found P.W.1 and the deceased with injuries.

Immediately, P.W.3 made arrangements to shift the deceased

as well as P.W.1 to the hospital. P.W.4 was then owning a

Tata Sumo car. At request, he rushed tothe place of

occurrence and in his Tata Sumo car, he shifted the deceased

and P.W.1 to the Government Hospital, at Sivakasi. The

amputated hand of the deceased was also taken.

 3. P.W.5 was an Assistant Surgeon attached to the

Government Hospital at Sivakasi. On 16.11.2007, at 8.45

a.m., P.W.1 was brought to him for treatment. P.W.1 told him

that he was attacked by two known persons with iron rod and

aruval. P.W.1 was conscious. On examination, on the body of

the P.W.1, he found the following injuries:-

(i) Incised wound in left forearm 20 x 10 x bone depth

about 500 gms blood clot present in the next wound. Skin flap

present.

(ii) Cut injury in left thigh 5 x 1 x + cm.

(iii) Movement in left thigh. Fracture left (nc).

4. After initial treatment at Government Hospital at

Sivakasi, for better treatment, P.W.1 was shifted to a private

hospital known as 'Graham hospital' at Sivakasi. P.W.6 was

the Doctor in the said hospital. He examined P.W.1 and found

the injuries as noted down in the accident register recorded in

the Government hospital by P.W.5. He gave treatment to

P.W.1. On examination, he found fracture in the femur of the

left leg. He conducted surgery on him to correct the same.

Ex.P.6 is the certificate issued by him. The injured was

discharged from the hospital on 19.12.2007. According to him,

the injury No.2 is grievous in nature.

 5. On examining the deceased, the Doctor opined that he

was dead. Therefore, the body was sent to mortuary.

6. P.W.10 was a Head Constable attached to Alangulam

Police Station. On 16.11.2007, at about 7.45 a.m., he heard a

message from unknown source about the occurrence. He

immediately informed P.W.11 about the same. P.W.11 was yet

another Head Constable attached to Alangulam Police Station.

On 16.11.2007, at about 8.00 a.m., he received a message

from P.W.10, who was in the repatriate camp about the

occurrence. Then, he rushed to Graham hospital at Sivakasi

and recorded the statement of P.W.1 and returned to the

police station at 10.30 a.m. He registered a case in Crime

No.136 of 2007 under Sections 341, 326 and 302 IPC. Ex.P1

is the complaint and Ex.P.15 is the First Information Report.

He forwarded Exs.P1 and P.15 to the jurisdictional Magistrate

and then handed over the case files to P.W.13 for

investigation.

7. Taking up the case for investigation on 16.11.2007,

P.W.13, the Inspector of Police attached to Alangulam Police

Station proceeded to the place of occurrence at 11.00 a.m. At

11.30 a.m., he prepared an observation mahazar (Ex.P9)

showing the place of occurrence in the presence of P.W.8 and

another witness. He also prepared rough sketch (Ex.P16) in

the presence of the same witnesses. Then, he recovered

bloodstained earth and sample earth from the place of

occurrence as well as TVS motorcycle bearing registration

No.TN69W4451 (M.O.1) from the place of occurrence under

Ex.P10 mahazar in the presence of witnesses. The said TVS

motorcycle has been identified by P.W.1 as the one used by

the deceased. On the same day, between 1 a.m. to 2.30 p.m.,

P.W.13 conducted inquest on the body of the deceased in the

presence of panchayatdars. During the same, he examined

P.Ws.1 to 3 and few more witnesses and recorded the

statements. Ex.P17 is the inquest report. Then, he forwarded

the body for postmortem.

8. P.W.5 Dr.Ayyanar, conducted postmortem on the body

of the deceased on 16.11.2007. He found the following

injuries:

External injuries:

(1) Right upper limb amputated at the level of lower 1/3

of arm and amputated upper limb seen separately with cut

injury. Clean cut injury at lower 1/3rd of arm.

 (2)Fracture of (nc) right forearm close to wrist.

(3)incised wound in left forearm 10 x 5 x 1 cm.

Trachea - Normal, No rib fracture. Heart empty, lungs pale.

Liver, spleen, congested. GB-partially full, stomach contains

about 200 ml partially digested food material.

Intestine: distended with gas & pale. Kidney congested.

Spine, cranium - normal.

Opinion as to cause to death- the deceased would appear to

have died of shock due to blood loss due to injury of right

upper limb.

9. Continuing the investigation, P.W.13, arrested both the

accused on 17.11.2007 at 12.30 p.m. On such arrest, the

appellant/accused gave a voluntary confession, in which, he

had disclosed the place, where he had hidden the aruval.

Similarly, the second accused also gave a voluntary

confession, in which, he had disclosed the place where he had

hidden the iron rod.

10. In pursuance of the same, in the presence of P.W.9

and another witness, the accused took P.W.13 to the said place

and the appellant produced aruval, which was recovered under

Ex.P18 mahazar. The second accused produced M.O.3 iron

rod, which was recovered under Ex.P13 mahazar. Then, he

examined few more witnesses including the Doctor. He

collected the medical certificates. He made a request to the

Magistrate to forward the material objects for chemical

examination. P.W.7 conducted examination of the material

objects and submitted a report under Ex.P.7. Ex.P8 is the

serology report. He found human blood on the shirt recovered

from the first accused, the bloodstained earth and the aruval.

The bloodstain found on the aruval is of human origin, but the

grouping test was inconclusive.

11. On completing the investigation, P.W.13 filed final

report enclosing the details of the accused. In the final report,

P.W.13 had mentioned that A2 was an adult. Therefore, the

trial Court, based on the above materials, framed charges

against both the accused. The first charge is under section

341 IPC against both the accused. Second charge is under

Section 302 IPC as against the appellant for having caused the

death of the deceased. The third charge is against both the

accused under Section 326 IPC and the fourth charge is under

Section 302 IPC read with 34 IPC against the second accused.

Both the accused were tried by the lower court. During the
trial, on the side of the prosecution as many as 13 witnesses

were examined and 19 documents were exhibited.

12. In respect of the incriminating evidences, both the

accused were questioned under Section 313 Cr.P.C. They

denied the same as false. Thereafter, during the course of

further proceedings, a plea was taken by the second accused

that he was a juvenile as on the date of the occurrence. The

trial Court found substance in the same. Finally, the trial court

held that the second accused was a juvenile and therefore, the

case against him was split up and the same was forwarded to

the Juvenile Justice Board for enquiry.

13. So far as the appellant/first accused is concerned, he

did not choose to examine any witness on his side. Having

considered the above materials, the trial Court found the

appellant/accused guilty under Section 341, 326 and 302 IPC

and accordingly, punished as detailed in the first paragraph of

the judgment. That is how, the appellant is before this Court

with this appeal.

14. We have heard the learned counsel for the appellant

and the learned Additional Public Prosecutor for the state.

 15. The learned counsel for the appellant would submit

that the entire case of the prosecution has been fabricated. He

would contend that the original First Information Report has

been suppressed and in its place, Ex.P1 has been substituted.

On this ground, according to the learned counsel, the entire

case of the prosecution should be doubted and rejected.

16. Nextly, the learned counsel would submit that since

P.W.1 happened to be an interested person, his evidence

should be disbelieved. He would further state that P.Ws.2 and

3 would not have seen the occurrence. Lastly, he would

submit that P.W.1 would not have been in a conscious position

to make any statement and hence, Ex.P1 cannot be believed.

In any event, according to the learned counsel, the offence

said to have been committed by the appellant would not fall

under Section 302 IPC and the same would fall only under

Section 304

(ii) IPC.

17. The learned Additional Public Prosecutor would,

however, stoutly oppose this appeal. According to him, there

is no delay in the First Information Report so as to create any

doubt in the prosecution case. He would submit that P.W.1 is

an injured eye witness and therefore, there is no reason to

reject his evidence. He would further submit that though

P.W.3 has stated that the complaint was given when P.W.1

was in the government hospital that by itself would not make

any serious doubt in the case of the prosecution, so as to

reject the same. The learned counsel would further submit

that the offence would squarely fall under Section 302 IPC and

therefore, the accused was charged under Sections 302, 326

and 341 IPC. Thus, according to the learned counsel, there are

no grounds to interfere with the judgment of the lower Court.

18. We have considered the above submissions.

19. The first ground raised by the learned counsel is that,

according to P.W.3, when P.W.1 was in the Government

hospital, P.W.11 came to the hospital and obtained a

statement. That statement, according to the counsel, is the

earliest information to the police. However, according to the

present version of the prosecution, the complaint was obtained

by P.W.11 from P.W.1 only in Graham Hospital. From this, the

learned counsel would contend that the earliest information

has been suppressed. In our considered opinion, the evidence

of P.W.3 in this regard need not be given undue weightage of.

Due to fading memory, P.W.3 would have stated so. But

nothing was asked to P.W.1, in this regard as to whether the

police obtained a complaint from the Government hospital.

Thus, hardly we find any reason to give weightage to the said

contradiction. In our considered opinion, on the basis of the

evidence of P.W.3, it cannot be held that the original complaint

was suppressed and in its place, Ex.P1 was substituted.

Therefore, we are inclined only to reject the argument of the

learned counsel in this reg ard.

20. Nextly, the learned counsel would submit that P.W.1

would not have been in a position to speak at all, at the time

when P.W.11 had gone to the hospital. Thus, according to the

counsel, Ex.P1 would not have been given by P.W.1. In this

regard, we may refer to the evidence of the Doctor, P.W.6.

During the cross examination, P.W.6 has stated that when

P.W.1 was undergoing treatment in the hospital, he was in a

position to answer the queries raised by him cogently. Thus, it

is crystal clear that P.W.1 was conscious and he was able to

speak and therefore, Ex.P1 would have been given only by

him.

20. The next argument of the learned counsel for the

appellant is that the weapons would not have been recovered

on the confession of the accused. In order to substantiate this

contention, the learned counsel is not in a position to point

out any infirmity in the evidence of the witnesses for the

prosecution who have clearly spoken to the confession made

by accused and the consequential recoveries of the material

objects. Therefore, we find no substance in this argument

also.

21. Coming to the evidence of P.W.1, admittedly, he is an

injured witness. He sustained injuries in the very same

occurrence, in which, the deceased also sustained injuries.

Therefore, his presence cannot be disputed at all. There are

no circumstances brought on record to doubt the credibility of

P.W.1 as well. As a matter of fact, though P.W.1 has been

cross examined at length, nothing has been elicited from him

to doubt the veracity of the evidence of P.W.1.

22. The learned counsel for the appellant would nextly

submit that P.Ws.2 and 3 would not have witnessed the

occurrence. Of course, it is true that they are not the eye

witnesses to the entire occurrence. It is not the case of the

prosecution itself that they saw the occurrence. But, they have

spoken to the fact that they found these two accused at the

place of occurrence armed with

weapons and also the deceased and P.W.1, with injuries.

These evidences of P.Ws.2 and 3 would go to corroborate the

evidence of P.W.1 and thus, from the evidences of P.Ws.2 and

3 also, it has been established that the deceased and P.W.1

were attacked only by these accused.

23. Nextly, P.Ws 2 and 3 only made arrangements,

through P.W.4 to take the deceased as well as P.W.1 to the

hospital. There is no delay in bringing P.W.1 to the hospital. At

the earliest, he made a statement to the Doctor that he was

attacked by two known persons; one armed with aruval and

the other armed with iron rod. This is the earliest information

passed on by P.W.1, which duly corroborates the evidence of

P.W.1.

Thus, there are enormous evidence available on record to

come to the safe conclusion that it was this accused along

with other, who cut the deceased as well as attacked P.W.1.

From the evidence of the Doctor, it has been established by

the prosecution that the death of the deceased was due to

shock due to loss of blood due to the injuries. Thus, it has

been established that the death of the deceased was caused by

the act of this appellant.

 24. Now the question is, what is the offence that the

appellant has committed by causing the death of the deceased.

It is the contention of the learned counsel for the appellant

that the offence would not fall under Section 302 IPC.

25. Let us now examine as to whether the accused has

committed murder of the deceased. Killing of a human being

by another human being is homicide. It may be a lawful

homicide (not culpable) falling under any one of the general

exceptions in Chapter IV of the Indian Penal Code. Culpable

homicide is an unlawful homicide. If the death of a human

being is caused by an "act" falling within the ambit of any one

of the three limbs of Section 299, it is culpable homicide. It is

a wrongful homicide done with culpable mental state. Some

culpable homicides are "murders" in terms of Section 300 of

I.P.C. and the others are "culpable homicides not amounting to

murder". Undoubtedly, culpable homicide is the genus and the

murder is the species. Thus, every murder is a culpable

homicide and not vice versa.

26. In the scheme of the Code, the first limb of Section

299 I.P.C. corresponds to the first limb of Section 300 I.P.C.

the second limb of Section 299 I.P.C. corresponds to the

second and third limbs of Section 300 I.P.C. and the third limb

of Section 299 I.P.C. corresponds to the fourth limb of Section

300 I.P.C. For both under Section 299 and Section 300 I.P.C.

the foremost requirement is that the death should have

resulted, either directly by the act of the accused or from some

natural consequence of the said act.

27. In the case on hand, from the evidence of the Doctor

and from the other facts and circumstances, it can be

uncontrovertibly concluded that the death was the direct result

of the injuries caused by the accused and so, it is "culpable

homicide".

28. Now, we will examine as to whether the said act of

the accused falls under the first limb of Section 299 I.P.C. or

the first limb of Section 300 I.P.C. Both these limbs postulate

"intention to cause the death". Intention is different from

"motive" or "ignorance" or "negligence". Intention requires

something more than the mere foresight of the consequences.

Intention is a conscious state in which mental faculties are

aroused into activity and summoned into action for the purpose

of achieving the conceived end. Thus, in the case of intention

mental faculties are projected in a set of direction. But,

knowledge is a bare awareness of the likely consequences.

Whether, in a given case, the accused had the "intention" or

"knowledge" is a question of fact (vide. Jaiprakash Vs. State of

Delhi Administration - 1991 (2) SCC 32). Intention is a fact to

be inferred from various other facts and circumstances

involved in the given case, such as, the gravity of the motive,

the gravity of the injury/injuries, number of injuries, seat of

the injury/injuries, the force used, the weapon used, etc. In

this case, the accused caused one injury on the hand, in which

the forearm was severed. The second injury was a simple one

on the other forearm. It is not as though there was no further

opportunity for the accused to cause many more injuries on

the deceased so as to finish him off. Neither it is not the case

that there was no opportunity for him to cause injuries on the

vital parts, such as, head, chest, abdomen etc. There was no

other intervening circumstances. The motive is also very trivial

in nature. From these facts, it can reasonably be inferred that

the accused had no intention to cause the death of the

deceased. Thus, the act of the accused does not fall within the

first limb of Section 299 of the Code as well as the first limb of

Section 300 of the Code.

29. Now let us examine as to whether it falls under the

second limb of Section 299 or the second or third limb of

Section 300 I.P.C. In these provisions, the intention of the

accused should have been to cause bodily injury. But, what

makes the difference is the nature of the injury intended. In

the instant case, from the facts placed on record, it can be

safely concluded that the accused came to the spot, armed

with weapons with the intention of causing bodily injury to the

deceased. Here, the intention of the accused was to cause the

death or only to cause a bodily injury is a matter of inference

from the facts. We have already concluded supra that the

accused had no intention to cause the death. But, he had

intention to cause bodily injury. To bring it further within the

ambit of this limb (second limb of Section 299), in addition, it

should be proved that the intended injury was likely to cause

death. In the instant case we will discuss as to whether the

intended injury is likely to cause death or not later.

30. The second limb of Section 300 of the Code speaks of

intention of causing bodily injury and that the said bodily injury

is likely to cause the death of the person to whom the harm is

caused. In addition to that, the offender should also know the

state of health of the victim. Thus, this limb relates to the

knowledge possessed by the offender regarding the particular

victim, who has peculiar condition of the state of health that

the injury caused is likely to cause the death of the said victim.

In other words, the said injury may not even likely to cause
the death of a man, having ordinary health. Thus, this limb

refers to a particular individual, who has got a peculiar state of

health and because of the same, even a slightest harm caused

may be likely to cause the death. But, the offender should

have knowledge that such harm caused to him is likely to

cause the death, due to his bad health condition. In the instant

case, the deceased was not suffering from any disease and he

was maintaining ordinary health. Therefore, the second limb of

Section 300 of the Code is not applicable to the instant case.

31. It is the contention of the learned Additional Public

Prosecutor that the act of the accused, in the instant case,

squarely falls within the ambit of the third limb of Section 300

of the Code. As per this provision, the bodily injury so intended

to be inflicted should be sufficient in the ordinary course of

nature to cause the death. Here, one of the finest aspects of

this limb needs to be noted. Obviously, this limb does not

speak of the "injury resulted". Per contra, it speaks of the

injury "intended to be inflicted" (vide. the judgment of the

Hon'ble Supreme Court in Virsa Singh Vs. State of Punjab - AIR

1958 SC 465) . In a given case, the intended injury may result

by the act of the accused or a different injury may even result.

If the resultant injury was the one intended and if that injury is

found to be sufficient in the ordinary course of nature to cause

the death, then, there can be no difficulty to hold that the act

of the accused falls within the ambit of this limb. In case, the

intended injury does not result, but a different injury results

and thus such resulted injury causes the death either directly

or indirectly, then, the nature of the resultant injury is not the

decisive factor, as the intended injury alone is the decisive

factor. This may be explained by means of easy illustrations.

Illustration (i): The accused intends to cause injury on

the neck with a formidable dangerous weapon. Accordingly, he

tries to execute the intention. When the blow was aimed

against the neck the deceased wards off. As a result, the blow

falls on the hand resulting in amputation of the hand. Because

of this injury, the deceased dies. But for the intervening

circumstance viz., warding off, the deceased would have been

beheaded.

32. Here, in this case, it may be held that the injury on

the hand, which has caused the death, may not be sufficient in

the ordinary course of nature to cause the death. But, this is

not a decisive factor. Here, the injury on the hand was not the

intended injury. The intended injury was on the neck. If the

intended injury had resulted, surely, the same would have

been sufficient in the ordinary course of nature to cause the

death. Therefore, in this illustration, the act of the accused

squarely falls within the ambit of Section 300 of the Code.

33. Illustration (ii): The accused had the intention to

cause bodily injury only on the hand and the intended injury is

caused. The said injury is held to be not sufficient in the

ordinary course of nature to cause the death. In this case, the

act of the accused would not fall under the third limb of Section

300 of the Code.

34. Thus, it is not the injury, which resulted eventually,

but the injury which was intended to be inflicted that matters.

In this regard we may usefully again refer to the judgment of

the Hon'ble Supreme Court in Jaiprakash Vs. State of Delhi

Administration reported in 1991 (2) SCC 32, wherein in para

13 the Court has held as follows:

"13.......In Clause Thirdly the words "intended to be

inflicted" are significant; As noted already, when a person

commits an act, he is presumed to expect the natural

consequences. But from the mere fact that the injury caused is

sufficient in the ordinary course of nature to cause death it

does not necessarily follow that the offender intended to cause

the injury of that nature. However, the presumption arises that

he intended to cause that particular injury. In such a situation

the Court has to ascertain whether the facts and circumstances

in the case are such as to rebut the presumption and such

facts and circumstances cannot be laid down in an abstract rule

and they will vary from case to case. However, as pointed out

in Virsa Singh's case the weapon used, the degree of force

released in wielding it, the antecedent relation of the parties,

the manner in which the attack was made that is to say sudden

or premeditated, whether the injury was inflicted during a

struggle or grappling, the number of injuries inflicted and their

nature and the part of the body where the injury was inflicted

are some of the relevant factors. These and other factors which

may arise in a case have to be considered and if on a totality

of these circumstances a doubt arises as to the nature of the

offence, the benefit has to go to the accused. In some cases,

an explanation may be there by the accused like exercise of

right of private defence or the circumstances also may indicate

the same. Likewise there may be circumstances in some cases

which attract the first exception. In such cases different

considerations arise and the Court has to decide whether the

accused is entitled to the benefit of the exception, though the

prosecution established that one or the other clauses of

Section 300 I.P.C. is attracted. In the present enquiry we need

not advert to that aspect since we are concerned only with

scope of clause Thirdly of Section 300 I.P.C." (Emphasis

added)

35. In the above case, the Hon'ble Supreme Court has

followed the principle reiterated in Randhir Singh Vs. State of

Punjab reported in 1981 (4) SCC 484, wherein in para 8, the

Court has earlier held as follows:

"8..........True it is that the injury proved fatal and was

opined in the ordinary course of nature to be sufficient to cause

death. We need not dilate upon this subject in view of a very

recent decision of this Court in Jagrup Singh v. The State of

Haryana. Decided on May 7, 1981 Sen, J. speaking for the

Court, after referring to various previous decisions on the

subject including the one relied upon in this case, Virsa Singh

v. State of Punjab 1958 S.C.R. 1495 observed that in order to

bring the case within Para III of Section 300, I.P.C., 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 case death. In other words, that the injury found

to be present was the injury that was intended to be inflicted.

We find it difficult to hold in the circumstances herein set out

that such was the intention of the appellant." (Emphasis

added)
 36. In the case on hand, it is not as though the accused

intended to cause injury on any vital part of the body. When

the deceased was proceeding in the Motorcycle, the accused

caused two injuries on the hands. These injuries are not ward

off injuries. Thus, the injuries on the hands of the deceased

were actually the injuries intended to be inflicted by the

accused.

37. The learned Additional Public Prosecutor would,

however, contend that the injury to the right hand, severing

the forearm, is sufficient, in the ordinary course of nature, to

cause the death. We are unable to agree with the said

argument advanced by the learned Additional Public

Prosecutor. In our considered view the said injuries on the

deceased were neither sufficient to cause death in terms of the

third limb of Section 300 I.P.C., nor, was it likely to cause

death in terms of the second limb of Section 299 I.P.C. Our

reasons are as follows; Here, "sufficient to cause death" means

more than a mere likelihood of the death being caused. In

other words, it is almost a certainty. Likely to cause the death

means, not a mere possibility. The word, 'likely' conveys the

sense of 'probability'. Probable means, something more than

mere possibility. When chances of death are more than that of

survival, one may say that the death is a probability. Where

chances of death and survival are equally possible, one may

say that the death is a possibility, but not a probability. In this

regard, we may say that it is possible that the death may

result when the forearm is amputaed. But, chances for survival

are more than the chance for death. Thus, the death is neither

certain, nor probable, but only possible. In the instant case,

PW-5, the Doctor, Ayyanar, who conducted autopsy on the

body of the deceased, has not opined that the injuries found on

the deceased were either sufficient to cause the death or likely

to cause death of the deceased. Therefore, we are forced to

hold that the injuries found on the deceased are neither

sufficient to cause the death in the ordinary course of nature

nor likely to cause death.

38. The second limb of Section 299 of the Code speaks of

the act of the accused with an intention of causing such bodily

injury as is likely to cause the death. We have already

concluded that the injuries on the deceased, in the instant

case, are not likely to cause the death. The second limb of

Section 299 of the Code is relatable to the second and third

limbs of Section 300 of the Code, since in all these provisions,

the basic requirement is doing an act with the intention of

causing bodily injury. If the intended bodily injury falls within

the second or third limb of Section 300 of the Code

respectively, culpable homicide becomes murder. If it does not

fall either within the ambit of the second limb or third limb of

Section 300 of the Code and it falls only within the ambit of

second limb of Section 299 of the Code, then, the offence is

only a culpable homicide not amounting to murder. So far as

the nature of the injury in this case is concerned, the death as

a consequence of these injuries is only possible. We have

already highlighted the difference between a mere possibility

and probability of death as a consequence. If only the chance

of death is more than a mere possibility, in other words, if it is

not a probability, then, one can hold that the said injury is

neither likely to cause the death nor sufficient to cause death

in the ordinary course of nature. In view of the foregoing

discussions, we hold that the act of the accused does not fall

either within the ambit of the second limb of Section 299 I.P.C.

or the third limb of Section 300 I.P.C.

39. Now, turning to the third limb of Section 299 of the

Code and the fourth limb of Section 300 of the Code, these

provisions speak of knowledge. Though both the provisions

speak of the knowledge and both the provisions speak of the

bodily injury, which is likely to cause the death, the distinction

lies in the degree of the knowledge and the imminent

dangerous nature of the injury and the probability of the death

or bodily injury, which is likely to cause the death. The

accused, in this case, can be attributed certainly with ordinary

knowledge (less degree of knowledge) that his act is likely to

cause death. Here, we need to notice, it is not the knowledge

that the injury is likely to cause death, but it is the act of the

accused as a whole that is likely to cause death. Therefore,

the act of the accused, in the instant case, would fall under the

third limb of Section 299 of the code. As per Section 300, the

accused should be attributed with knowledge that his act is so

imminently dangerous that it must, in all probabilities, cause

the death or such bodily injury as is likely to cause the death.

Here, we need to emphasize two phrases, viz., "so imminently

dangerous" and "in all probability". Here, the accused should

have been aware of the consequence of his act. The

consequence may be either imminently dangerous to life or a

bodily injury which is likely to cause the death. If only it can

be inferred from the facts and circumstances that the accused

would have been aware of either one of the above

consequences, then it can be held that the accused had the

requisite knowledge as postulated in this provision. Such

knowledge should be of highest degree. It is only the degree

of knowledge that makes the difference between the fourth

limb of Section 300 I.P.C. and the third limb of Section 299

I.P.C. To attract Section 300 I.P.C. the accused must be

attributed not only with the knowledge of a mere possibility,

but the knowledge that the act is imminently dangerous and

that in all probability, the act is likely to cause the death or

likely to cause such bodily injury as is likely to cause the death.

Here, in this case, in our considered opinion, such high degree

of knowledge that the injury caused to the hand is likely to

cause death or by all probability will result in death cannot be

attributed to the accused. Therefore, the fourth limb of Section

300 of the Code is not attracted.

40. To conclude, in view of the foregoing discussions, we

hold that the act of the accused, in the instant case, in causing

the death of the deceased, squarely falls within the ambit of

the third limb of Section 299 of the Code, and thus, it is

culpable homicide, not tantamounting to murder, and so, the

accused is liable to be punished under Section 304 of the

Indian Penal Code.

41. Now, turning to Section 304 of the Code, it contains

two parts. The first part provides for punishment of culpable

homicide, not amounting to murder, if the act, by which the

death is caused, is done with the intention of causing death or

such bodily injury as is likely to cause death. Thus, the

essential requirement is the intention. The second part deals

with culpable homicide, not amounting to murder, which

speaks of the knowledge that it is likely to cause the death.

 42. A close reading of these two provisions would make it

manifestly clear

that

(i). if the act of the accused is a culpable homicide, not

amounting to murder, falling within the first or second limb of

Section 299 of the Code, then, the offender is punishable

under Section 304(i) of the Code.

(ii). If the act of the accused is culpable homicide, not

amounting to murder, falling within the third limb of Section

299 of the Code, then, the offender is punishable under

Section 304(ii) of the Code.

(iii). Similarly, if the act of the accused falls within the

ambit of first, second or third limb of Section 300 of the Code,

and if the same falls under any one of the special exceptions to

Section 300 of the Code, the act of the accused is only a

culpable homicide not amounting to murder punishable under

Section 304(i) of the Code.

(iv). If the act of the accused falls within the fourth limb

of Section 300 of the Code and if any one of the special

exceptions to Section 300 of the Code is attracted, the said act

is only a culpable homicide, not amounting to murder, which is

punishable under Section 304(ii) of the Code.

 43. In the instant case, we have already concluded that

the act of the accused falls within the ambit of third limb of

Section 299 of the Code, and therefore, he is liable to be

punished under Section 304(ii) of the Code.

44. Now, coming to the quantum of sentence, the learned

counsel for the appellant would submit that at the time of

occurrence, the accused was hardly 22 years old and still, he is

a bachelor. He has got no bad antecedents. He would,

therefore, submit that a lesser punishment may be imposed on

him so as to enable him to reform himself and also to become

a useful member of the humanity. He would also bring to the

notice of this Court the family circumstances of the accused.

45. Having regard to the above, we are of the view that

imposing of a sentence of rigorous imprisonment for six years

with a fine of Rs.5,000/- will be the just punishment for him.

The conviction and sentence imposed on the appellant for

offences under Sections 326 and 341 of the Indian Penal Code

are liable to be confirmed.

46. In the result, the Criminal Appeal is partly allowed;

 (i) the conviction and sentence imposed on the appellant

under Sections 326 and 341 IPC are confirmed;

(ii) the conviction and sentence imposed on the appellant

for the offence 302 IPC is set aside and instead he is convicted

under Section 304(ii) IPC and sentenced to undergo rigorous

imprisonment for six years and to pay a fine of Rs.5,000/-

(Rupees five thousand only), in default, to undergo rigorous

imprisonment for three months. The sentences are ordered to

run concurrently.