Ramesh v. State — 1981 DIGILAW 993 (ALL)

Judgment H.N. Seth, J. 1. RAMESH has come up in appeal against the judgment of II Additional Sessions Judge, Bulandshahar dated 31st of March, 1980 convicting him for an offence punishable under Section 302 CPC and sentencing him to imprisonment for life. 2. ACCORDING to the prosecution, crime case No. 17/55 of 1979 under section 396 IPC had been registered at police out-post Ramghat, against Ramesh and several others. On 6th of May, 1979 at about 3.30 P. M. a police party headed by Sub- Inspector Harish Chandra Singh (PW 1) and, consisting of himself, head constable Omvir Singh, constables Dharampal, Virendra, Ratan Singh (deceased) and Horam, left the out-post in search of persons accused in crime case no. 17/55 of 1979. The police party reached the crossing near the house of Ramesh in village Jatni Nagala at about 4.15 p. m. On seeing the police party, Ramesh came out of his house carrying a gun and with a view to evade his arrest he ran towards the south. While Sub-Inspector Harish Chandra Singh and constables Virendra Singh and Ratan Singh chased Ramesh by running towards south-west Head Constable Omvir Singh and constable Dharampal Singh chased him by running on the rasta which lay towards the west of Ramesh's house. As constable Ratan Singh was about to overtake and apprehend Ramesh, Ramesh turned round and fired a gunshot at Ratan Singh, who, on receiving serious gunshot injury on his right thigh, fell down at the spot. Thereafter Ramesh succeeded in making good his escape. The said incident was, apart from members of the police party, also witnessed by the villagers, namely, Ganga Prasad and Satish Chandra. Immediately after the incident, constable Ratan Singh was carried on a bullock-cart to police out-post Ramghat where Sub-Inspector Harish Chandra Singh lodged a first information report under sections 332/307 IPC against Ramesh at 5.05 p. m. the same day. He also made arrangements for constables Dharampal Singh and Virendra Singh to carry constable Ratan Singh who was seriously injured to Debai hospital for treatment. Dr. S. C. Singh (PW 9) attended to constable Ratan Singh at Debai hospital. After examining constable Ratan Singh, Dr. He also made arrangements for constables Dharampal Singh and Virendra Singh to carry constable Ratan Singh who was seriously injured to Debai hospital for treatment. Dr. S. C. Singh (PW 9) attended to constable Ratan Singh at Debai hospital. After examining constable Ratan Singh, Dr. Singh prepared an injury report mentioning "Firearm wound 2 cm X 2 cm X depth not ascertained (because the wound was bleeding heavily) on the front of thigh upper part 8 cm below the inguinal ligament (groin) ; there was blackening and scorching alround." As Dr. Singh found the condition of Ratan Singh very-very serious, he in the presence of Dr. M. S. Yadav (PW 10) and Pradhaa Ram Babu of Ramghat recorded a dying declaration of Ratan Singh, wherein he named Ramesh as his assailant, at 6.40 p. m. and thereafter he referred the injured to District Hospital, Bulandshahar. Ratan Singh was admitted as an indoor patient in the: district hospital Bulandshahar by Dr. R. K. Mittal (CW 1) at 9 p. m., but he succumbed to his injuries ai 10.40 p. m. the same night, that is, on 6th of May, 1979. On receipt of information about the death of Ratan Singh at police out-post Ramghat, the case against Ramesh was converted into one under section 302 IPC. 3. POST mortem examination of the dead body of Ratan Singh was conducted by Dr. H. U. K Juberi (PW 8) at 10.10 a. m. on 7th of May, 1979. Dr. Juberi recovered 39 pellets and 5 wads from inside the 'wound of the deceased and opined that Ratan Singh had died because of haemorrhage and shock as a result of fire-arm injury received by him. 4. THE case was investigated by Station Officer, Narora, Sri R. P. Bakshi, who, after completing the investigation, submitted a charge-sheet against Ramesh and Ramesh was prosecuted and tried for committing an offence under section 302 IPC. Ramesh denied the prosecution case and claimed that he had been falsely implicated because of enmity. According to him one Vidya Ram had contested the election for village-Pradhan against his uncle Badan Singh and had lost the same. Said Vidya Ram had colluded with the police and had, after conspiring with some others, got him falsely implicated in the case. Ramesh denied the prosecution case and claimed that he had been falsely implicated because of enmity. According to him one Vidya Ram had contested the election for village-Pradhan against his uncle Badan Singh and had lost the same. Said Vidya Ram had colluded with the police and had, after conspiring with some others, got him falsely implicated in the case. In his defence Ramesh examined Sri Kishan Gupta, Ahalmad of the court of Chief Judicial Magistrate, Bulandshahar, as a witness and relied upon five documents produced by him. 5. THE trial court, after going through the evidence produced in the case, believed the prosecution case. It did not find any merit in the defence suggestion either that the investigation of the case was tainted or that police had colluded with Vidya Ram in concocting a false case against Ramesh. It noticed the fact that in the opinion of Dr. H. U. K. Juberi (PW 8), who conducted the post-mortem examination of the dead body of Ratan Singh, the injury found on the person of Ratan Singh was sufficient in the ordinary course of nature to cause his death and concluded that, in the circumstances, Ramesh was guilty of an offence under section 302 IPC. 6. IN this appeal, learned counsel for the appellant urged that in the first place the prosecution evidence is not such 'which can be relied upon to connect Ramesh with the crime, and even if it is held that Ramesh was responsible for causing the fire-arm injury on the thigh of Ratan Singh (deceased) the offence made out against him would not be one under section 302 IPC but it would be one under second part of Section 304 IPC. The fact that on 6th of May, 1979 at about 3.30 p. m. Sub-Inspector Harish Chandra Singh left the police out-post Ramghat along with Head Constable Omvir Singh and constables Dharampal Singh, Virendra Singh, deceased Ratan Singh and Horam Singh in search of the accused of crime case no. 17/35 of 1979 is amply borne out by the evidence of Sub- inspector Harish Chandra Singh and stands fully corroborated by the report entered at serial No. 2 of the General Diary of that date, copy of which had been filed as Ext. Ka-1 in the case. 17/35 of 1979 is amply borne out by the evidence of Sub- inspector Harish Chandra Singh and stands fully corroborated by the report entered at serial No. 2 of the General Diary of that date, copy of which had been filed as Ext. Ka-1 in the case. Learned counsel for the appellant could not state one good reason for not relying upon this part of the prosecution case. It is also not now in controversy that Constable Ratan Singh received serious gunshot injury on his thigh at about 4.30 p. m, on 6th of May, 1979 as a result of which he died at the District Hospital, Bulandshahar the same night at about 10.40 p. m. There is thus no reason to doubt the prosecution case that Ratan Singh received fatal injury at about 4.30 p. m. on 6th of May, 1979 while the police party had gone to apprehend the persons involved in crime case No. 17/55 of 1979. The fact that the Investigating Officer recovered blood-stained earth from the field of Smt.Chiraunji, the place where according to the prosecution Ratan Singh had been shot at, corroborates the prosecution version in this regard. We have, therefore, no reason to doubt the prosecution case that Ratan Singh was shot at the place of incident by some person who was wanted in crime case No. 17/55 of 1979 in the circumstances alleged by the prosecution. However, the question that arises for consideration is whether the prosecution evidence showing that it was appellant Ramesh who was responsible for causing the injury to Constable Ratan Singh, can be believed 7. IN order to connect Ramesh with the crime the prosecution relied upon the evidence of Sub-INspector Harish Chandra Singh (PW I), Constable Dharam Pal Singh (PW 2) and Ganga Prasad (PW 5). It also relied upon the dying declaration of Ratan Singh said to have been recorded by Dr. S. C.Singh (PW 9) at Debai hospital. The trial court has not accepted the evidence of Ganga Prasad (PW 5), for purposes of connecting Ramesh with the crime.; we may also not take into consideration the evidence of this witness. So far as the evidenec of Sub-INspector Harish Chandra Singh (PW 1) and Dharampal Singh (PW 2) is concerned, we have no reason to doubt their presence at the time and place of the incident. So far as the evidenec of Sub-INspector Harish Chandra Singh (PW 1) and Dharampal Singh (PW 2) is concerned, we have no reason to doubt their presence at the time and place of the incident. Their case that they had gone out in search of the miscreants involved in crime case No. 17/55 of 1979 stands amply corroborated by the entry made in the general diary of the police-out-post, copy of which,has been filed as Ext. Ka-1. These two witnesses have absolutely no animus to falsely name Ramesh as the assailant of Constable Ratan Singh. There is absolutely no material on record to substantiate the defence suggestion that the police had colluded with Vidya Ram and has implicated Ramesh at his instance. It is true that the evidence produced in the case does show that there was contest between former Pradhan Vidya Ram and Ramesh's uncle Badan Singh for election as a Pradhan. But then it has also come in evidence that at one stage on a report lodged by Badan Singh the police prosecuted Vidya Ram and his party- men for firing at Badan Singh. IN that case the prosecution succeeded in having Vidya Ram convicted. This fact certainly militates against the defence allegation that the police had been colluding with Vidya Ram and that it would falsely implicate the nephew of Badan Singh at the instance of Vidya Ram. 8. SO far as the dying declaration said to have been made by Ratan Singh is concerned, Dr. S. C. Singh (PW 9) deposed that he recorded the following dying declaration at 6.40 p. m. on 6th of May, 1979 :- Your name ? Ratan Singh. How did you receive the injury ? First stop the pain. My leg is paining. How did you receive the injury ? As accused Ramesh ran from his house, I chased him behind his house on the foot-path. Then ? He saw me. I ran after him. In the meantime Ramesh turned round and fired at me from his gun from a distance of 5-6 paces. What was the time ? About 4 or 4.30 in the after-noon. Was any body else present ? Constables Honam, Virendra and Dharampal and Head Constable and Sub-Inspector." Dr. Singh deposed that when he took down the dying declaration, Ratan Singh was fully conscious and in a position to make statement. What was the time ? About 4 or 4.30 in the after-noon. Was any body else present ? Constables Honam, Virendra and Dharampal and Head Constable and Sub-Inspector." Dr. Singh deposed that when he took down the dying declaration, Ratan Singh was fully conscious and in a position to make statement. He had recorded the said dying declaration in presence of Mahabir Singh Yadav (PW 10) who deposed that he was practising medicine at Ramghat and was a registered Medical Practitioner. He stated that on receiving information that a constable had been injured by fire-arm, he went to the police out-post and found that all necessary arrangements to carry the injured to the hospital had been made. He also accompanied the injured to Debai hospital. He corroborated the prosecution case that the aforementioned dying declaration of Ratan Singh was recorded at Debai hospital his presence. Nothing has been brought out in the cross-examination of this witness to show that he had any animus to give false evidence against Ramesh. We agree with the assessment made by the trial court that the evidence given by this witness is quite reliable. The evidence of Dr. S. C. Singh (PW 9) and Mahabir Singh Yadav (PW 10) goes to show that on 6th of May, 1979 at 6.40 p. m. Ratan Singh made a dying declaration at Debai hospital stating that it was Ramesh who had fired the gunshot at him. There is, in our opinion, no reason to suspect the evidence of these two witnesses with regard to the making of aforementioned dying declaration. This dying declaration fully supports the evidence of the two eye-witnesses of the incident, namely, Sub-Inspector Harish Chandra (PW 1) and Constable Dharam Pal Singh (PW 2). 9. IT appears that before the trial court some submissions were made to show that the version of the incident given by the witnesses suffers from certain improbabilities, omissions and contradictions as also that there have been certain lapses on the part of the Investigating Officer. The trial court has after considering these submissions, given good reasons not accepting the same. As learned counsel for the appellant has not been able to offer any valid criticism against the reasoning of the trial court, we do not consider it necessary to burden our judgment by repeating the same here. The trial court has after considering these submissions, given good reasons not accepting the same. As learned counsel for the appellant has not been able to offer any valid criticism against the reasoning of the trial court, we do not consider it necessary to burden our judgment by repeating the same here. Suffice it to say we find that the evidence given by the prosecution in this case conclusively establishes that it was Ramesh who had caused fatal injury to Ratan Singh (deceased) in the circumstances alleged by the prosecution. 10. NEXT question that now arises for consideration is as to what offence has been made out against the appellant. The evidence produced by the prosecution indicates that when Ramesh saw the police party coming to apprehend him, he tried to make good his escape. When he was chased and was about to be apprehended by Constable Ratan Singh, he fired a gunshot at Ratan Singh which hit him in the upper part of his thigh. The medical evidence reveals blackening and scorching around the wound which indicates that the gunshot had been fired at the thigh of constable Ratan Singh from a very close range. In such circumstances it can be presumed that Ramesh had deliberately aimed the fire arm precisely at the place where it hit Ratan Singh and not at any vital part. This indicates that the gun shot was fired not with the intention of killing Ratan Singh but with a view to injur him on his thigh so that Ramesh may succeed in evading his arrest. This indicates that the gun shot was fired not with the intention of killing Ratan Singh but with a view to injur him on his thigh so that Ramesh may succeed in evading his arrest. As laid down in Section 300 of the Indian Penal Code, action of Ramesh would amount to murder only if it can be shown that : (i) it was done with the intention of causing death ; or (2) it was 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 (3) if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or (4) 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. As already stated, in the instant case when Ramesh aimed the gun at the thigh and not at any vital part of Ratan Singh, he certainly did not have an intention to cause Ratan Singh's death. There is also nothing in the evidence to indicate that Ramesh knew that by injuring Ratan Singh his thigh he was likely to cause Ratan Singh's death. Accordingly, the first two conditions in which the action of Ramesh could amount to murder are not made out. It can also not be said that action of Ramesh in firing the gunshot at the thigh of Ratan Singh was, to his knowledge so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause Ratan Singh's death. Accordingly, the fourth condition to bring the action of Ramesh within the ambit of Section 300 of Indian Penal Code is also not made out. Accordingly, the fourth condition to bring the action of Ramesh within the ambit of Section 300 of Indian Penal Code is also not made out. The main controversy between the party is whether the third condition, namely, whether the firing by Ramesh was done with the intention of causing him bodily injury and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause his death, is made out, so as to bring the action of Ramesh within the ambit of Section 300 IPC. Whereas the submission of learned counsel appearing for the prosecution is that the action of Ramesh in firing the gunshot at Ratan Singh amounted to murder under the third clause of Section 300 IPC inasmuch as by firing the gunshot he did intend io inflict the injury found on the thigh of the deceased but the said injury as disclosed by the medical evidence was sufficient in the ordinary course of 'nature to cause Ratan Singh's death ; the submission made on behalf of the appellant, is that the circumstances clearly indicated that the gunshot had been deliberately aimed by Ramesh at non-vital part of the body of Ratan Singh. It could not be said that Ramesh while aiming that shot at Ratan Singh knew that it would necessarily rupture certain vital arteries and veins, leading to Ratan Singh's death. In the circumstances it cannot be said that Ramesh intended to cause injuries rupturing vital veins and arteries of Ratan Singh (which eventually was found sufficient in the ordinary course of nature to cause his death). In the circumstances, it cannot be said that injury intended to be inflicted by Ramesh on Ratan Singh was such as was sufficient to cause his death. According to him, it was rather an accident that vital veins and arteries in the thigh of Ratan Singh got ruptured and the case would not be covered by the third clause of section 300 IPC either. 11. According to him, it was rather an accident that vital veins and arteries in the thigh of Ratan Singh got ruptured and the case would not be covered by the third clause of section 300 IPC either. 11. THE question with regard to scope and ambit of Section 300 (thirdly) came/up for consideration before a three-Judge Bench of the Supreme Court in the case of Virsa Singh v. State of Punjab, AIR 1958 SC 465 wherein it was urged that the onimus contemplated by the third clause of Section 300 had to 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." THE Supreme Court while repelling the aforesaid submission observed that 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 third clause would be unnecessary because the act would fall under the first part of Section 300, namely, "if the act by which the death is caused is done with the intention of causing death." It opined that the two parts of the third clause were disjunctive and separate. THE first part, namely, "if it is done with the intention of causing bodily injury to any person" was, of course, subjective to the offender. It then went on to observe that 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. 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, namely, 2 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 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, namely, "and the bodily injury intended to be inflicted" is merely descriptive. All it 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 or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention. THE Court further went on to observe that 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 inquire into every last detail as, for instance, whether prisoner intended to have that 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 injur them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense : the kind of enquiry that "twelve good men and true" could readily appreciate and understand. A particular injury to a victim can be said to have been intended if the offender has caused it at the place where he causes it and has deliberately used the force with which it has been caused. If these two aspects are present then it would be immaterial to further enquire whether the offender actually intended to penetrate a particular organ of the human anatomy 'and the entire injury caused by the action of the offender can be said to have been an injury intended to have been caused by him. Where, however, a blow aimed at one part of the body strikes another part of body where a person intends to use comparatively smaller force in inflicting the injury, but, due to certain reasons beyond his control, much graver injury is caused, it can be said that such injury was accidental and was not actually intended by the offender. Where, however, a blow aimed at one part of the body strikes another part of body where a person intends to use comparatively smaller force in inflicting the injury, but, due to certain reasons beyond his control, much graver injury is caused, it can be said that such injury was accidental and was not actually intended by the offender. In Virsa Singh's case (supra) the Supreme Court summed up the position with regard to third clause of Section 300 IPC thus :- "To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 "thirdly" ; First, it must establish, quite objectively, that 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 unitentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceed 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 liikely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of 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. Once the intention to cause the bodily injury actually found to be present is proved, the rest of 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 consequnces; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unitentional. 12. WHILE considering the question whether a particular injury was intended to be caused as contemplated by third clause of section 300 the Supreme Court considered the following observation made by Beaman, J., in the case of Emperor. v. Sardarkhan Jaridkhan, ILR 41 Bom. 27 at page 29 =(AIR 1916 Bom. 191 at page 192) :- "Where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended." observed thus:- "With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury and that, as we have shown is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap. The question is not whether the prisoner intended to inflict a serious injury on a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. It is true that in given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guess-work and fanciful conjecture." In the case of Rajwant Singh v. State of Kerala, AIR 1966 SC 1874 the accused persons had conspired together to burgle the safe of the Naval Base Supply Office and with that end in view they decoyed the victim from his house and brought him to a lonely place. It is not one for guess-work and fanciful conjecture." In the case of Rajwant Singh v. State of Kerala, AIR 1966 SC 1874 the accused persons had conspired together to burgle the safe of the Naval Base Supply Office and with that end in view they decoyed the victim from his house and brought him to a lonely place. They covered his mouth with the adhesive plaster and tied a handkerchief over the plaster and plugged his nostrils with cotton wool soaked in chloroform. After tying his hands and legs with rope and depositing him in shallow drain they visited the Naval Establishment to commit burglary, but due to certain reasons they had to run away from that place. Next morning the dead body of the Officer who had been decoyed was discovered from the drain. The Supreme Court found that the act by which the death of the concerned Officer had been caused was not done with the intention of causing death or with the intention of causing such bodily injury as the offender knew to be likely to cause the death of the person to whom the harm was caused. In the circumstances neither the first nor the second clause of Section 300 IPC applied. There was a controversy with regard to application of the third clause. In this connection Hidayatullah, J., who delivered the judgment for himself and for V. Ramaswami, J., observed thus :- "The third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to a person and the bodly injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In this clause the result of the intentionally caused injury must be viewed objectively. If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequence or not. As was laid down in Virsa Singh v. State of Punjab, 1958 SCR 1495 = AIR 1958 SC 465 for the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. As was laid down in Virsa Singh v. State of Punjab, 1958 SCR 1495 = AIR 1958 SC 465 for the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other unintentional. If this is also held against the offender the offence of murder is established. Applying these tests to the acts of the appellants we have to see first what bodily injury has been established. The bodily injury considered of tying up hands and feet of the victim, closing the mouth with adhesive plaster and plugging the nostrils with cotton soaked in chloroform. All these acts were deliberate acts which had been preplanned and they, therefore, satisfy the subjective test involved in the clause. The next question is whether these acts considered objectively were sufficient in the ordinary course of nature to cause death. In our judgment they were. The victim could only possibly breathe through the nostrils but they were also closed with cotton wool and in addition an asphyxiating agent was infused in the cotton. All in all it would have been a miracle if the victim had escaped. Death of the victim took place as a direct result of the acts of his assailants." 13. IN the case of Harjinder Singh v. Delhi Administration, AIR 1968 SC 867 a Division Bench of the Supreme Court consisting of Sikri and Shelat, JJ., fully accepted the ratio laid down in Virsa Singh's case, AIR 1958 SC 465 (supra) and in the case of Rajwant Singh, AIR 1966 SC page 1874 (supra), but eventually held that in that case, the case was not covered by the third clause of section 300 IPC inasmuch as the evidence indicated that while the accused was trying to assault another person, the victim intervened and the accused, finding himself against two, tool out a knife and stabbed the deceased. It also indicated that the deceased at that stage was in a crouching position presumbably to intervene and separate the two. It also indicated that the deceased at that stage was in a crouching position presumbably to intervene and separate the two. The Court observed that in the circumstances it could not be said with any definiteness that the appellant had aimed the blow at the particular part of the thigh knowing that it would cut the arteries. The accused had not used the knife while he was engaged in the fight with the first person. It was only when he felt that the deceased also came up against him that he whipped out the knife. It opined that in these circumstances it could not be said that it had been proved that it was the intention of the appellant to inflict the particular injury on the particular place and, therefore, it was not possible to apply clause third of Section 300 IPC to the act of the accused. It will thus be seen that the real reason in Harjinder Singh's case (supra), why the Supreme Court-felt that the case is not covered by the third clause of Section 300 was that in its opinion in all probability, the blow which caused the injury had landed at a place where the accused did not intend it to land, and in that sense the injury was an accidental or an unintentional injury. 14. THE scope and ambit of the third clause of Section 300 IPC again came up for consideration before a three Judge Bunch of the Supreme Court presided over by Hidayatuallah, Chief Justice in the case of Laxman Kalu Nikalje v. THE State of Maharashtra, AIR 1968 SC 1390 . In that case, it appears, the attention of the Court was not invited to its decisions in the cases of Virsa Singh, AIR 1958 SC 465 , Rajwant Singh, AIR 1966 SC 1874 and Harjinder Singh, AIR 1968 SC 687 and it laid down the law on the subject thus :- "That section requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts, the first part is a subjective one which indicates that the injury must be an intentional one and not an accidental one, the second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think that the first part is complied with, because the injury which was intended to be caused was the one which was found on the person of Ramrao. But the second part in our opinion is not fulfilled, because but for the fact that the injury caused the severing of artery, death might not have ensued. In other words, looking at the matter objectively, the injury which Laxman intended to cause did not include specifically the cutting of the artery but to wound Ramrao in the neighbourhood of the clavicle. Therefore, we are of opinion that the thirdly of Section 300 does not cover the case." The learned Judges have elucidated the clause thirdly of Section 300 more or less in a manner identical to that what had been done in Virsa Singh's case, AIR 1958 SC 465 (supra). However, the learned Judges at one place observed that the injury found on the person of the deoeased was the one which was intended to be caused by the accused. But then subsequently they went on to observe that the accused in that case did not want to cause an injury intending severing of the artery that eventually resulted in the victim's death. Reading the observation made by the Supreme Court as a whole, it appears that the Court was of the view that the accused did not want to inflict a serious injury of that type found on the person of the............? Accordingly, on the facts of that case it came to the conclusion that the injury in question was not actually intended to be caused by the accused and as such the third clause of Section 300 did not apply to the facts of the case before them. 15. Accordingly, on the facts of that case it came to the conclusion that the injury in question was not actually intended to be caused by the accused and as such the third clause of Section 300 did not apply to the facts of the case before them. 15. WHATEVER doubt that might have been created by the observations made by Hidayatuallah, Chief Justice with regard to correctness of the proposition laid down by the Supreme Court in Virsa Singh's case (supra), was removed and set at rest by a latter three Judges Bench of the Supreme Court consisting of Shelat, Jaga- mohan Reddy and Khanna, JJ. in the case oi'Gudar Dusadh v. State of Bihar, AIR 1972 SC 952 . In that case the deceased died as a result of a single lathi blow given by the accused and the question was whether the case was covered by third clause of Section 300 IPC. While dealing with this question the learned Judges of the Supreme Court observed thus :-- "............The circumstances of the case thus show that the assault was premeditated and the blow on the head of Ramlal was not accidental. The fact that the appellant gave only one blow on the head would not mitigate the offence of the appellant and make him guilty of the offence of culpable homicide not amounting to murder. The blow on the head of Ramlal with lathi was plainly given with some force and resulted in a 3" long fracture of the left parietal bone. Ramlal deceased died instantaneously and as such, there arose no occasion for giving a second blow to him. As the injury on the head was deleberate and not accidental and as the injury was sufficient in the ordinary course of nature to cause death, the case against the appellant would fall squarely within the ambit of clause "3rdly" of Section 300, Indian Penal Code. According to that clause, culpable homicide is murder if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. Section 300 also provides for some exceptions but we are not concerned with them in this case. Clause "3rdly" consists of two parts. Section 300 also provides for some exceptions but we are not concerned with them in this case. Clause "3rdly" consists of two parts. Under the first part, it has not been shown that there was an intention on the part of the accused to inflict the particular injury which was found on the body of the deceased The second part requires that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. So far as the first part is concerned, the court has to see whether the injury which was found on the deceased was the one intended by the accused or whether it was accidental without his having intended to cause that bodily injury. Once it is found the injury was not accidental and that the accused intended to cause the injury which was actually inflicted and found on the body of the deceased, the first part shall be satisfied. The court would then go into the second part of the clause and find in the light of medical evidence as to whether the bodily injury was sufficient in the ordinary course of nature to cause death. If the court finds that the requirement of both the parts have been satisfied, the case shall be held to be covered by clause "3rdly" unless it falls within one of the exceptions. In the present case, both parts of the clause "3rdly" have been satisfied. As observed earlier, the injury which was inflicted by the accused on the head of Ramlal was not accidental. It is not the case of any one that the appellant aimed a blow on some other part of the body and because of some supervening cause like sudden intervention or movement of the deceased the lathi struck the head of the deceased. The fact that the appellant aimed a blow on the head of Ramlal with the lathi would go to show that it was the intention of the appellant to cause the precise injury which was found on the head of the deceased. The evidence of Dr. R. S. Singh who performed the postmortem examination shows that the above injury was sufficient in the ordinary course of nature to cause death and actually resulted in the death of the deceased. The evidence of Dr. R. S. Singh who performed the postmortem examination shows that the above injury was sufficient in the ordinary course of nature to cause death and actually resulted in the death of the deceased. The case of the appellant would thus be covered by clause "3rdly" of Section 300 and he would be guilty of the offence of murder." 16. APPLYING the aforementioned ratio Id the facts of the present case, we find that the injury received by the deceased on his thigh can not be said to be accidental in as much as the accused had deliberately aimed the gun at that part of the thigh at which the injury in question was received. It is not the case of the appellant that he had aimed the gun at some other part of Ratan Singh's body. Blackening and scorching around the injury indicates that the shot had been fired from a very close range in which there are no chances of a gunshot being aimed at one place and its hitting at the other. The fact that the appellant aimed the blow at the place where the shot struck the deceased would go to show that it was the intention of the appellant to cause the precise injury found on the deceased. This injury as deposed to by Dr. Juberi (P. W. 8) was sufficient in the ordinary course of nature to cause the death. The case of the appellant was, therefore, squarely covered by the provisions of Section 300 "thirdly" of the Indian Penal Code. Learned counsel for the appellant, however, cited before us a Division Bench decision of the Supreme Court in the case of Gokul Parashram Patil v. State of Maharashtra, AIR 1981 SC 1441 . In that case the accused had given knife blow above the left clavicle of the deceased causing a muscle deep incised wound having the dimensions of 11/4" x 1/3". The autopsy surgeon, while certifying the existence of that wound, also found that the superior venacava had been cut the damage so caused being sufficient in the ordinary course of nature to cause death. The autopsy surgeon, while certifying the existence of that wound, also found that the superior venacava had been cut the damage so caused being sufficient in the ordinary course of nature to cause death. In that case the learned Judges specifically approved the interpretation of third clause of Section 300 IPC as set out in Virsa Singh's case, AIR 1958 SC 465 , and Harjinder Singh's case, AIR 1968 SC 867 and in Laxman Kalu Nikalje's case, AIR 1968 SC 1390 and concluded that in the case before them accused in fact wanted to cause superficial injury, but it was by accident that venacava vein of the deceased had been cut. That is why it could be said that the injury found on the deceased in that case was not intentional and was merely accidental and as the accused did not intend to cause the actual injury found on the person of the deceased which resulted in his death. The case did not fall within the third clause of Section 300 IPC. 17. AS stated earlier, in the instant case the accused had fired a gunshot at the thigh of the deceased. While causing an injury by firing a gunshot it cannot be said that the accused merely intended to cause a superficial injury to the deceased. The facts of the instant case are, therefore, distinguishable from those of the case of Gokul Parashram Patil v. State of Maharashtra, AIR 1981 SC 1441 relied upon by the counsel for the appellant. AS laid down in the case of Virsa Singh v. State of Punjab, AIR 1958 SC 465 , so long as the injury found on the person of the deceased is intentional and is not accidental either in the sense that it was not intended to be caused by the accused with the amount of force with which it had been caused or that it was intended to be inflicted on some other part of the body of the victim, it would be no answer to say that while causing the injury the accused did not know about the existence of important veins and arteries at the place where the injury was caused and that he did not intend them to be severed. In the result, we are of opinion that the trial court was justified in coming to the conclusion that the case made out against the appellant falls under the third clause of Section 300 IPC and that he is guilty of committing murder of constable Ratan Singh. 18. IN the result, we find no merit in this appeal which fails and is dismissed. The appellant is in jail. He shall serve out the sentence imposed upon him. Appeal dismissed.