Gian Kaur vs.

The State of Punjab

Brief facts & inferences:

In the instant case, Gian Kaur and her husband Harbans Singh, being the
appellants had committed the offence of abetment to suicide of their daughter-
in-law, Kulwant Kaur. For their action, the Trial Court convicted them both
under Section 306 of The Indian Penal Code. Henceforth, they were sentenced
to Rigorous imprisonment for a term of six years each and were liable to pay the
fine amount of Rs. 2,000/-, or, in default of paying the specified fine amount,
further Rigorous Imprisonment for nine months would be enforced.
Furthermore, the appellants made an appeal at the High Court, who reiterated
the Lower Court’s decision making the conviction of the appellants right.
However, the sentence of Gian Kaur alone has been reduced from six years to
Rigorous Imprisonment for three years. Through the Special Leave Petition, the
Appellants have approached the Supreme Court against their conviction
sentence under Section 306 of IPC.

Issues Raised:

 Whether Section 306 of the Indian Penal Code, 1860 is

constitutionally valid?
 Whether Section 309 of the Indian Penal Code, 1860 violates Article
14 and 21 of the Constitution?

Petitioners Contention:

 The Petitioners contended that the Lower Court’s judgment is erroneous in

nature. They strongly alleged that there was no abetment for attempt to
suicide by Kulwant Kaur.
 The appellant had approached the High Court wanting to get rid of the said
allegation.
 Their contention was that Section 306 of IPC must be held constitutionally
invalid with reference to the case of P. Rathinam v. Union of India, which
 declared Section 309 of Indian Penal Code, 1860 as unconstitutional as it is
violative of Article 21 of the Indian Constitution.
 It was held in P. Rathinam case that `right to die’ falls within the ambit of
Article 21 of the Constitution, and any person assisting the enforcement of
the `right to die’ is merely assisting the enforcement of  Article 21, which is
the fundamental right under Article 21 and it cannot be penal.
 Hence, it was contended by the Petitioners that Section 306 of IPC, which
makes that act punishable, therefore, is violative of Article 21.
 One of the counsels who appeared for the petitioners contended that Section
309 of IPC is unconstitutional since it is violative of Article 14 of the
Constitution on the grounds that the provision is discriminative, arbitrary,
barbaric and monstrous.

The prosecution referred to P. Rathinam’s case to justify their actions. They held
that criminalising commission or abetment of suicide (Secions 309 and 306 of IPC)
would be a cruel and unreasonable act.

A person who has committed suicide since he is suffering from a sever grievance
is made to further suffer if he fails in his attempt to do so. Beside, suicide is a
personal choice. It does not have any religious, moral or social consequences.

It does not affect another person’s liberty and does not cause harm to another
person. So there is no reason it must be declared illegal.

Moreover it was contended that since ‘freedom of speech and expression’ included
freedom not to speak or ‘freedom to carry out any business’ included freedom not
to do business, similarly ‘right to life’ under Article 21 of COI automatically
includes the right to die.

This implies that the provisions of Sections 306 and 309 are unconstitutional as
they deprive a person from exercising his constitutional right to die.

It was argued that the ambit of ‘right to live’ must be widened from including a
merely ‘animal existence’ to a ‘right to live with dignity’.
Respondents Contention:

The Respondents being the state, wanted the decision of the Trial Court and the
High Court to be upheld by the Apex Court.

They strongly contended that Section 306 of The Indian Penal Code, 1860
which talks about the abetment of attempt to suicide is an independent
provision, hence it does not rely on Section 309 of the same act. Moreover,
Section 306 is constitutionally valid and does not violate Article 21 of the
Constitution.

The Respondents also wanted the ruling of the case P. Rathinam v. Union of
India to be struck down since Section 309 of IPC is also constitutionally valid.

They contended that the ‘right to life’ is inherently inconsistent with the ‘right
to die’ and the right to die cannot fall within the ambit of Article 21.

The Respondents contended that there is no merit in the contention-based on

Article 14 of the Indian Constitution.

They distinguished between the ‘right to die’ and the ‘right to die with dignity’.
The former implies that the death is unnatural whereas the latter implies the right
to live with dignity until the natural span of one’s life.

Thus ‘right to life’ under Article 21 of COI does not include ‘right to die’. Sections
306 and 309 of the IPC are in tune with the constitution.

Judgment:

The High Court upheld the judgement of the Trial Court and thereby
rejected the appeal. Since the act of committing suicide is itself illegal,
the act of abetting suicide is also automatically a punishable offence.
Thus GianKaur and her husband were sentenced to six years’
imprisonment and fine of Rs. 2000 each.
The five-judge Constitutional Bench had held that “Right to Life” under
Article 21 of Indian Constitution does not include the “Right to Die” or “right
to be killed”. The Apex Court asserts that ‘Right to life” also includes the right
to a dignified life till one reaches the point of death, including a dignified
procedure of death, thus it includes the right of a dying man to also die with
dignity when his life is ebbing out.

The Court ensured that the “Right to die” with dignity at the end of an
individual’s life must not be misunderstood with the “Right to die” in an
unnatural manner of death. It was mentioned that accelerating the process of
natural death of an individual which by god’s creation are imminent in nature,
under such circumstances permitting termination of life is not available for
interpretation under Article 21 to therein include the right to curtail an
individual’s natural span of life. Henceforth, the contention of the Appellants
on making Section 309 of The Indian Penal Code to be unconstitutional,
since they violated Article 21 of the Constitution cannot be accepted.
Moreover, the Court rejected the petitioner’s contention of challenging the
constitutional validity of Section 309 based on Article 14.

The second issue of whether Section 306 of The Indian Penal Code is
constitutional or not was also answered by the Hon’ble Court. The Court
affirmed that assisted attempt to commit suicide and assisted suicide are made
punishable for cogent reasons in the interest of society. The objective of such a
provision is to prevent the inherent danger in the absence of such a penal
provision. Abetment of suicide is a distinct offence that is found enacted even in
the law of countries where attempted suicide is not made punishable. Section
306 enacts a distinct offence that can survive independent of Section 309 of
IPC. As of which, the Court makes it clear that the arguments made to support
the plea for not punishing the person who attempts to commit suicide do not
avail for the benefit of another person assisting in the commission of suicide or
in the attempt of it. Thus, the decision made in the ruling of P. Rathinam v.
Union of India was struck down, making Section 306 and Section 309 of
Indian Penal Code constitutionally valid and making the accused
punishable for abetment of suicide.
Ratio Decidendi:

The Court stated that attempt to commit suicide and any person who abets the
attempt to commission of suicide does not violate Article 14 or Article 21 of the
Constitution. The Court had overruled the previous decision in the case of P.
Rathinam v. Union of India, thereby making Section 306 and Section 309 of
Indian Penal Code constitutionally valid.

Whether provisions of Section 306 of the IPC are in violation of the COI and
whether the provisions of Article 309 are in violation of Articles 14 and 21 of the
COI.

Rationale in arriving at the Judgment:

It was contended by the Petitioners that on certain judgments which widen the
ambit of Article 21, the term life’ does not mean ‘mere animal existence’ but
right to live with human dignity’ embracing the quality of life.

Thus, it was interpreted as if, a person having the “Right to live” he/she would
correspondingly include right not to live, i.e., right to die or to terminate one’s
life. The Court reiterates that life is defined as the right to live with human
dignity, which means the dead shall also happen in a dignified procedure.
Henceforth, a person leading a life with human dignity shall not end his life
in an undignified manner, by killing himself. The Court intended to ensure
that no person ends their life as a right to die, and thus it happens to be a
landmark judgment for “Right to die” is not constitutionally valid.  

Statutes & provisions of law involved/ Statute:

 The Indian Penal Code, 1860

 Constitution of India
Provisions Involved:

 Section 306 and Section 309 of Indian Penal Code,1860

 Article 14 and Article 21 of the Constitution.

Conclusion:

Prior to this case, the Court gave a misconception that the fundamental right to
life infers an individual’s right to end his life, thus including the right to die.

With the help of this instant case, the Apex Court makes it clear that the “Right
to Life” denotes the right to lead a life with dignity.

The word “Life” in Article 21 does not refer to the mere existence on earth, but
it mainly emphasizes the right to live with human dignity and personal liberty.
Hence, it must be construed as such.

Any facet of life that makes it dignified may be read into Article 21, but not that
which extinguishes it. It may be argued that death is a natural process and there
should be no laws to prevent it.

However, taking one’s life on his own is prima facie, not a natural process.
Moreover, it can be construed that India being a welfare state is more
concentrated and ambitious to protect the lives of its citizens. Making a statute
that promotes dead of its citizens is against the framework of the nation. Thus,
whatever the decision of the judiciary, it is for the welfare of the nation and to
the orderly living of its citizens. Henceforth, the instant case signifies the
importance of an individual’s life and emphasis more about leading a life in
a dignified manner, and most importantly validating Section 309 of The
Indian Penal Code.

OWN VIEWS:

Abetment of suicide should definitely be made punishable without exception.

It is a highly immoral act and almost amounts to murder. In this matter I support
the judgement entirely and my views are in consonance with Section 306 of the
IPC. But I differ in my views when it comes to criminalising the attempt to suicide.
The person who has resorted to such an act was obviously suffering from
something grave and unbearable. Instead of being so harsh on him, they key is to
sympathise with him. Instead of throwing him behind bars, he should be sent to
counselling so that he is mentally cured of his depression. Rehabilitating him will
prove more effective than simply punishing him.

Author: ShrankhalaParwar, School of law, DAVV, Indore.

K.M Nanavati v. State of Maharashtra(1961): Case Comment

Court: The Supreme Court of India 

Bench: Subbarao, K.Das, S.K DayalRaghubar 

Decided On: 24.11.1961 

Citation: AIR 1962 SC 605, 1962 SCR Supl.(1) 567 

* The 2016 Bollywood film Rustom, starring Akshay Kumar, is a fictionalized account of the KM
Nanavati case.

FACTS 

● The accused, Nanavati, at the time of the alleged murder, was second in command of the Indian Naval
Ship “Mys[]tore”. He married Sylvia in 1949 and had three children. 

● Since the time of marriage, the couple was living in different places, Finally, they shifted to Bombay. 

● In the same city the deceased Ahuja was doing business in automobiles and in the year 1956, Agniks,
who were common friends of Nanavati’s and Ahujas, introduced Ahuja and his sister to Nanavati’s. Ahuja
was unmarried and was about 34 years of age at the time of his death. 

● Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship, leaving his wife and
children in Bombay. 

● Gradually, the friendship developed between Ahuja and Sylvia, which culminated in illicit intimacy
between them. 

● On April 27, 1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja. 

● Enraged at the conduct of Ahuja, Nanavati went to his ship, took from the stores of the ship a semi-
automatic revolver and six cartridges on a false pretext, loaded the same, went to the flat of Ahuja entered
his bedroom and shot him dead. 
● Thereafter, the accused surrendered himself to the police. He was put under arrest and in due course, he
was committed to the Sessions for facing a charge under s. 302 of the Indian Penal code. 

● Thereafter, he drove his wife, two of his children and a neighbor’s child in his car to a cinema, dropped
them there and promised to come and pick them up at 6 P.M. when the show ended. He represented to the
authorities in the ship, that he wanted to draw a revolver and six rounds from the stores of the ship as he
was going to drive alone to Ahmednagar by night, though the real purpose was to shoot himself. 

● On receiving the revolver and six cartridges, and put it inside a brown envelope. Then he drove his car to
Ahuja’s office, and not finding him there, he drove to Ahuja’s flat, rang the doorbell, and, when it was
opened by a servant, walked to Ahuja’s bed-room, went into the bedroom and shut the door behind him. 

● He also carried with him the envelope containing the revolver. The accused saw the deceased inside the
bed-room, called him a filthy swine and asked him whether he would marry Sylvia and look after the
children. The deceased retorted, “Am I to marry every woman I sleep with?” The accused became enraged,
put the envelope containing the revolver on a cabinet nearby, and threatened to thrash the deceased. 

● The deceased made a sudden move to grasp at the envelope when the accused whipped out his revolver
and told him to get back. A struggle ensued between the two and during that struggle two shots went off
accidentally and hit Ahuja resulting in his death. After the shooting, the accused went back to his car and
drove it to the police station where he surrendered himself. 

● The trial court convicted under S.304 A of IPC and in appeal, the high court convert it into S.302 of IPC.

● So the accuse made an appeal before the SC and at the same time, he made an application to the
governor under Art. 161.

ISSUES RAISED 

● Whether SLP(Special leave petition) can be entertained without fulfilling the order under Art.
142?

● Whether the pardoning power of governor and SLP(Special leave petition) can be moved
together? 

Answer to issue 1: The SLP was dismissed by the supreme court, by the majority, holding that the
appellant’s SLP could not be lisited for hearing unless he surrenders under Art. 142 (as per the judgment of
HC). 

Answer to issue 2: The appellant has made SLP and an application of pardoning power to the governor.
The governor reduced his sentence. The SC held that SLP and pardoning power cannot operate together
both are different. If SLP is filed then the power of the governor in such condition will be ceased. 

● The further court held that the Art.142 and 161 are different in nature. The two Articles are reconcilable
and should be reconciled. The rule of statutory coexistence stated that it is sometimes found that the 2
statute conflict, as their objective is different and language of each is restricted to its own object or subject,
so they run parallel and never meet. 

SUBJECT: 
Ø Indian Penal Code 

LAW APPLIED: 

Code of Criminal Procedure(Act, 5 of 1898), 88. 307, 410, 417, 418 (1), 423(2), 297,155 (1), 162 

Indian Penal Code, 1860 (Act 45 of 1860), 88. 302, 300, Exception I 

Indian Evidence Act,1872 (1 of 1872), 8. 105. 

ARGUMENTS IN FAVOUR OF PETITIONER 

● The accused, at the time of the alleged murder, was second in command of the Indian Naval Ship
“Mysore”. He married Sylvia in 1949 in the registry office at Portsmouth, England. They have three
children by the marriage, a boy aged 9 and 1/2 years, a girl aged 5 and 1/2 years and another boy aged 3
years. Since the time of marriage, the couple was living at different places having regard to the exigencies
of service of Nanavati. 

● Finally, they shifted to Bombay. In the same city, the deceased Ahuja was doing business in automobiles
and was residing, along with his sister, in a building called “Shreyas” till 1957 and thereafter in another
building called “JivanJyot” in Setalvad Road. In the year 1956, Agniks, who were common friends of
Nanavati’s and Ahujas, introduced Ahuja and his sister to Nanavati’s. 

● Ahuja was unmarried and was about 34 years of age at the time of his death, Nanavati, as a Naval
Officer, was frequently going away from Bombay in his ship, leaving his wife and children in Bombay.
Gradually, a friendship developed between Ahuja and Sylvia, which culminated in illicit intimacy between
them. 

● On April 27, 1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja. Enraged at the
conduct of Ahuja, Nanavati went to his ship, took from the stores of the ship a semi-automatic revolver
and six cartridges on a false pretext, loaded the same, went to the flat of Ahuja entered his bedroom and
shot him dead. Thereafter, the accused surrendered himself to the police. He was put under arrest and in
due course, he was committed to the Sessions for facing a charge under 302 of the Indian Penal Code. 

ARGUMENTS IN FAVOUR OF DEFENDANT 

As disclosed in the Statement made by the accused before the Sessions Court under s. 342 of the Code of
Criminal Procedure and his deposition in the said Court: 5 

● The accused was away with his ship from April 6, 1959, to April 18, 1959. Immediately after returning
to Bombay, he and his wife went to Ahmednagar for about three days in the company of his younger
brother and his wife. Thereafter, they returned to Bombay and after a few days, his brother and his wife
left them. 

● After they had left, the accused noticed that his wife was behaving strangely and was not responsive or
affectionate to him. When questioned, she used to evade the issue. At noon on April 27, 1959, when they
were sitting in the sitting-room for the lunch to be served, the accused put his arm around his wife
affectionately, when she seemed to go tense and unresponsive. After lunch, when he questioned her about
her fidelity, she shook her head to indicate that she was unfaithful to him. He guessed that her paramour
was Ahuja. 
● As she did not even indicate clearly whether Ahuja would marry her and look after the children, he
decided to settle the matter with him. Sylvia pleaded with him not go to Ahuja’s house, as he might shoot
him. 

● Thereafter, he drove his wife, two of his children and a neighbor’s child in his car to a cinema, dropped
them there and promised to come and pick them up at 6 P.M. when the show ended. He then drove his car
to his ship, as he wanted to get medicine for his sick dog, he represented to the authorities in the ship, that
he wanted to draw a revolver and six rounds from the stores of the ship as he was going to drive alone to
Ahmednagar by night, though the real purpose was to shoot himself. 

● On receiving the revolver and six cartridges, and put it inside a brown envelope. Then he drove his car to
Ahuja’s office, and not finding him there, he drove to Ahuja’s flat, rang the doorbell, and, when it was
opened by a servant, walked to Ahuja’s bed-room, went into the bedroom and shut the door behind him.
He also carried with him the envelope containing the revolver. 

● The accused saw the deceased inside the bed-room, called him a filthy swine and asked him whether he
would marry Sylvia and look after the children. The deceased retorted, “Am I to marry every woman I
sleep with?” 

● The accused became enraged, put the envelope containing the revolver on a cabinet nearby, and
threatened to thrash the deceased. The deceased made a sudden move to grasp at the envelope when the
accused whipped out his revolver and told him to get back. A struggle ensued between the two and during
that struggle two shots went off accidentally and hit Ahuja resulting in his death. After the shooting
the accused went back to his car and drove it to the police station where he surrendered himself. 

Judgment 

Proceedings at Sessions Court +Jury and High Court: 

● The appellant was charged under 302 as well as under s. 304, Part I, of the Indian Penal Code and was
tried by the Sessions Judge, Greater Bombay, with the aid of a special jury. The jury brought in a verdict of
“not guilty” by 8: 1 under both the sections; but the Sessions Judge did not agree with the verdict of the
jury, as in his view the majority verdict of the jury was such that no reasonable body of men could, having
regard to the evidence, bring in such a verdict. 

● The learned Sessions Judge submitted the case under 307 of the Code of Criminal Procedure to the
Bombay High Court after recording the grounds for his 6 opinion. The said reference was heard by a
division bench of the said High Court consisting of Shelat and Naik, JJ. The two learned Judges gave
separate judgments but agreed in holding that the accused was guilty of the offence of murder under s. 302
of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. 

Shelat, J., having held that there were misdirections to the jury, reviewed the entire evidence and came to
the conclusion that the accused was clearly guilty of the offence of murder, alternatively, he expressed the
view that the verdict of the jury was perverse, unreasonable and, in any event, contrary to the weight of
evidence. 

Naik, J., preferred to base his conclusion on the alternative ground, namely, that no reasonable body of
persons could have come to the conclusion arrived at by the jury. Both the learned Judges agreed that no
case had been made out to reduce the offence from murder to culpable homicide not amounting to murder. 

Thereafter, the appeal had been preferred against the said conviction and sentence 
PROCEEDINGS AT SUPREME COURT 

Arguments advanced by Defence Counsel: 

Mr. G. S Pathak, learned counsel for the accused, raised the following points: 

● Under 307 of the Code of Criminal Procedure, the High Court should decide whether a reference made
by a Sessions Judge was competent only on a perusal of the order of reference made to it and it had no
jurisdiction to consider the evidence and come to a conclusion whether the reference was competent or
not. 

● Under s. 307(3) of the said Code, the High Court had no power to set aside the verdict of a jury on the
ground that there were misdirections in the charge made by the Sessions Judge. 

I here was no misdirections at all in the charge made by the Sessions Judge, and indeed his charge was fair
to the prosecution as well to the accused. 

The verdict of the jury was not perverse and it was such that a reasonable body of persons could arrive at it
on the evidence placed before them. 

In any view, the accused shot at the deceased under grave and sudden provocation, and therefore even if he
had committed an offence, it would not be murder but only culpable homicide not amounting to murder. 

OBSERVATIONS OF SUPREME COURT 

● The deceased seduced the wife of the accused. She had confessed to him of her illicit intimacy with the
deceased. It was natural that the accused was enraged at the conduct of the deceased and had, therefore,
sufficient motive to do away with the deceased. 

● He deliberately secured the revolver on a false pretext from the ship, drove to the flat of Ahuja, entered
his bed-room unceremoniously with a loaded revolver in hand and in about a few seconds thereafter came
out with the revolver in his hand. 

● The deceased was found dead in his bathroom with bullet injuries on his body. It is not disputed that the
bullets that caused injuries to Ahuja emanated from the revolver that was in the hand of the accused. After
the shooting, until his trial in the Sessions Court, he did not tell anybody that he shot the deceased by
accident. Indeed, he confessed his guilt to the chowkidar Puransingh and practically admitted the same to
his colleague Samuel. 

● His description of the struggle in the bathroom is highly artificial and is devoid of all necessary
particulars. The injuries found on the body of the deceased are consistent with the intentional shooting and
the main injuries are wholly inconsistent with accidental shooting when the victim and the assailant were
in close grips. The other circumstances brought out in the evidence also established that there could not
have been any fight or struggle between the accused and the deceased. 

● The court held that the conduct of the accused clearly shows that the murder was a deliberate and
calculated one and the facts of the case do not attract the provisions of Exceptions 1 of Sec 300 of IPC as
the accused also failed to bring the case under General Exception of IPC by adducing evidence. As a result,
the conviction of the accused under section 302 of IPC and sentenced him to imprisonment for life. 
CASE LAW REFERRED 

● Mancini v. Director of Public Prosecutions,L.R. (1942) A.C. I, 

● Holmes v. Director of Public Prosecutions, L. R. (1946) A.C. 588 Duffy’s case, 

● [1949]1 All. E. R. 932 and R. v. Thomas, 

● (1837) 7C. & P. 817, considered. 

IMPACT 

● Abolition of Jury trials. 

● There was media scrutiny that brought about Nanavati as a victim of foul play, who even in worst hours
stood for honour and well being of his family. 

● Nanavati was pardoned by the then Governor Vijay Lakshmi Pandit, after spending 3 years in jail. 

COMMENT 

● According to me, here, the judgment of the Supreme Court is right as the version given by the accused
appears to be highly improbable. The story of his keeping the revolver on the cabinet is very unnatural. 

● The jury in the Greater Bombay sessions court pronounced Nanavati as not guilty under section
302 under which Nanavati was charged, with an 8–1 verdict. Mr. RatilalBhaichand Mehta (the sessions
judge) considered the acquittal as perverse and referred the case to the Bombay High Court. 

● The prosecution argued that the jury had been misled by the presiding judge on four crucial points: 

1. The onus of proving that it was an accident and not premeditated murder was on Nanavati.

2. Was Sylvia’s confession grave provocation for Nanavati, or any specific incident in Ahuja’s bedroom or
both? 

3. The judge wrongly told the jury that the provocation can also come from a third person.

4. The jury was not instructed that Nanavati’sdefense had to be proved, to the extent that there is no
reasonable doubt  in the mind of a reasonable person. 

● The weekly tabloid Blitz  , owned by R. K. Karanjia, a Parsi himself, publicized the story, published
exclusive cover stories and openly supported Nanavati. They portrayed him as a wronged husband and
upright officer, betrayed by a close friend. 

● Here, It was claimed that the jury had been influenced by media and was open to being misled, the
Government of India abolished jury trials soon after in most cases except for Parsis who still have Jury
Trials for their Matrimonial Disputes. 
● The aforementioned judgment was able to grab the attention of the nation owing to the fact that the
crime of adultery had given birth to the crime of murder not amounting to culpable homicide. 

● As per the defense case, the accused was thinking of the future of his wife and children which indicates
that he had not only regained his senses but also was planning for the future. 

● The time-lapse between the confession and murder was sufficient to regain his self-control. 

● The mere fact that before the shooting the accused abused the deceased and the abuse provoked an
equally abusive reply could not conceivably be a provocation for the murder. 

LANDMARK JUDGMENT OF VIRSA SINGH v. STATE OF

PUNJAB: FULL BENCH DECISION ON CLAUSE (3) OF
SECTION 300 IPC
 BY HARPREET KAUR ADVOCATE

Title: Virsa Singh v. State of Punjab

Bench: S.J. Imam, P.B. Gajendragadkar and Vivian Bose, JJ.

Case number: Criminal Appeal No. 90 of 1957.

Date of judgment: 11.3.1958

Citation: 1958 AIR (SC) 465, 1958 SCR 1495.

FACTS

The appellant Virsa Singh was sentenced to imprisonment for life under
Section 302 of the Indian Penal Code for the murder of one Khem Singh. He
was granted special leave of appeal by this Court but the leave was limited to

“the question that on the finding accepted by the Punjab High Court what
offence is made out as having been committed by the petitioner.”
The appellant was tried with five others under Sections 302/149, and 323/149
and 323/149, Indian Penal Code. He was also charged individually under
Section 302.

The others were acquitted of the murder charge by the first Court but were
convicted under Sections 326, 324 and 323 read with Section 149 Indian
Penal Code. On appeal to the High Court they were all acquitted.

The appellant was convicted by the first Court under Section 302 and his
conviction and sentence were upheld by the High Court.
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There was only one injury on Khem Singh and both Courts are agreed that
the appellant caused it. It was caused as the result of a spear thrust and the
doctor who examined Khem Singh, while he was still alive, said that it was

“a punctured wound 2″ x½” transverse in direction on the left side of the

abdominal wall in the lower part of the iliac region just above the inguinal
canal.”

He also said that

“Three coils of intestines were coming out of the wound.”

The doctor said that the injury was sufficient to cause death in the ordinary
course of nature.

The incident occurred about 8 p.m. on July 13, 1955. Khem Singh died about
5 p.m. the following day.

The learned Sessions Judge found that the appellant was 21 or 22 years old
and said –

“When the common object of the assembly seems to have been to cause
grievous hurts only, I do not suppose Virsa Singh actually had the intention
to cause the death of Khem Singh, but by a rash and silly act he gave a rather
forceful blow, which ultimately caused his death. Peritonitis also supervened
and that hastened the death of Khem Singh. But for that Khem Singh may
perhaps not have died or may have lived a little longer.”
Basing on those facts, he said that the case fell under Section 300 “thirdly” so
he convicted Virsa Singh under Section 302, Indian Penal Code.

The learned High Court Judges considered that “the whole affair was sudden
and occurred on a chance meeting.” But they accepted the finding that the
appellant inflicted the injury on Khem Singh and accepted the medical
testimony that the blow was a fatal one.

ARGUMENTS

It was argued with much circumlocution that the facts set out above do not
disclose an offence of murder because 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. Section 300 “thirdly” was quoted
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“If it is done with the intention of causing bodily injury to any person and the
bodily injury to any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death.”

It was said that the intention that the section requires must be related, not
only to the bodily injury inflicted, but also to the clause, “and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to
cause death.”

OBSERVATIONS OF SUPREME COURT

Hon’ble Supreme Court observed that

This is a favourite argument in this kind of case but is fallacious. If there is

an intention to inflict an injury that is sufficient to cause death in the
ordinary course of nature, then the intention is to kill and in that event, the
“thirdly” would be unnecessary because the act would fall under the first
part of the section, namely –

“If the act by which the death is caused is done with the intention of causing
death.”

In our opinion, the two clauses are disjunctive and separate. The first is
subjective to the offender:
“If it is done with the intention of causing bodily injury to any person.

It must, of course, first be found that bodily injury was caused and the
nature of the injury must be established, that is to say, whether the injury is
on the leg or the arm or the stomach, how deep it penetrated, whether any
vital organs were cut and so forth. These are purely objective facts and
leave no room for inference or deduction; to that extent the enquiry is
objective; but when it comes to the question of intention, that is subjective
to the offender and it must be proved that he had an intention to cause the
bodily injury that is found to be present.

Once that is found, the enquiry shifts to the next clause :-

“and the bodily injury intended to be inflicted is sufficient in the ordinary

course of nature to cause death.”

The first part of this is descriptive of the earlier part of the section, namely,
the infliction of bodily injury with the intention to inflict it that is to say, if the
circumstances justify an inference that a man’s intention was only to inflict a
blow on the lower part of the leg, or some lesser blow, and it can be shown
that the blow landed in the region of the heart by accident, then, though an
injury to the heart by accident, then, though an injury to the heart is shown
to be present, the intention to inflict an injury in that region, or of that
nature, is not proved. In that case, the first part of the clause does not come
into play. But once it is proved that there was an intention to inflict the injury
that is found to be present, then the earlier part of the clause we are now
examining –

“and the bodily injury intended to be inflicted”

is merely descriptive. All the means is that it is not enough to prove that the
injury found to be present is sufficient to cause death in the ordinary
course of nature; it must in addition be shown that the injury is of the kind
that falls within the earlier clause, namely, that the injury found to be
present was the injury that was intended to be inflicted. Whether it was
sufficient to cause death in the ordinary course of nature is a matter of
inference of deduction from the proved facts about the nature of the injury
and has nothing to do with the question of intention.

In considering whether the intention was to inflict the injury found to have
been inflicted, the enquiry necessarily proceeds on broad lines as, for
example, whether there was an intention to strike at a vital or a dangerous
spot, and whether with sufficient force to cause the kind of injury found to
have been inflicted. It is, of course, not necessary to enquire into every last
detail as, for instance, whether the prisoner intended to have the bowels fall
out, or whether he intended to penetrate the liver or the kidneys or the heart.
Otherwise, a man who has no knowledge of anatomy could never be
convicted, for, if he does not know that there is a heart or a kidney or bowels,
he cannot be said to have intended to injure them. Of course, that is not the
kind of enquiry. It is broad-based and simple and based on common sense:
the kind of enquiry that “twelve good men and true” could readily
appreciate and understand.
REPORT THIS AD

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.

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
to cause death. 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.
DECISION

The appeal was dismissed