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2010 DIGILAW 221 (GAU)

Biren Tamuli v. State of Assam

2010-03-24

A.C.UPADHYAY, I.A.ANSARI

body2010
JUDGMENT A.C. Upadhyay, J. 1. This appeal is directed against the Judgment & Order dated 24.0.9.2008 delivered by learned Sessions Judge, Lakhimpur at North Lakhimpur in Sessions Case No. 71 (NL)/07, whereby the accused-appellant has been convicted under section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 5000/- (Rupees Five Thousand), and, in default, to undergo rigorous imprisonment for 1 (one) year. 2. Facts necessary for disposal of this appeal may be narrated, in brief, as follows. On 14.07.05, Sri Khagen Tamuli, (PW6) lodged an Ejahar stating therein that on 13.07.05, at about 8 p.m., his elder brother, Dambarudhar Tamuli (deceased), on being called by accused Gobin Tamuli, for some discussion, had gone to the house of the accused. In the house of the accused, during the course of discussion, accused Biren Tamuli stabbed Dambarudhahr Tamuli (deceased), on the stomach, by means of a dagger. At that time, Sri Gobin Tamuli and his other son, Kiran Tamuli, had resisted the injured Dambarudhar Tamuli's attempt to run away from the place of occurrence. 3. On receipt of the FIR (Ext.4), the Officer-in-Charge of Dholpur Police Outpost forwarded the FIR to the Bihpuria Police Station vide GD.E. No. 204, dt. 14.07.05. for registration of a case. Thus, a case Under Section 342/326/34 IPC was registered against the accused aforementioned. In the meanwhile, the injured Dambarudhar Tumuli, who was taken to the Civil Hospital for treatment, succumbed to his injuries and accordingly, Section 302 IPC was added to the aforesaid police case. During the course of investigation, the Investigating Officer prepared the inquest report and sent the dead body for post mortem examination to North Lakhimpur Civil Hospital. During the course of investigation, statements of Sri Dipak Tamuli (PW.3), Smt. Renu Tamuli (FW.4), son and wife of the deceased respectively, were recorded as per provisions of section 164 Code of Criminal Procedure. The I.O., on completion of the investigation, submitted charge sheet against accused Biren Tamuli, Gobin Tamuli and Kiran Tamuli under Section 302/34 IPC. 4. On receiving the charge sheet, against the accused above named, learned Chief Judicial Magistrate, Lakhimpur, North Lakhimpur, transferred the case to the Court of Judicial Magistrate First Class, Lakhimpur, who, in turn, committed the case to the Court of Sessions, North Lakhimpur, for trial. 5. 4. On receiving the charge sheet, against the accused above named, learned Chief Judicial Magistrate, Lakhimpur, North Lakhimpur, transferred the case to the Court of Judicial Magistrate First Class, Lakhimpur, who, in turn, committed the case to the Court of Sessions, North Lakhimpur, for trial. 5. During consideration of charge, the learned Sessions Judge, Lakhimpur, finding sufficient materials against the accused above named, framed c large under Section 302 read with Section34 PC against them. However, the accused above named pleaded not guilty to the charge so framed and claimed to be tried. 6. During the course of hearing, the prosecution side examined, in all, ten witnesses. All the prosecution witnesses were duly cross-examined by the defence. On conclusion of the prosecution evidence, the accused were individually examined as per provisions of Section 313 Code of Criminal Procedure, The accused persons, in their statements under Section 313 Code of Criminal Procedure, took the plea of total denial and in order to establish their plea of denial, the defence too adduced evidence by examining two witnesses. The learned Sessions Judge, on completion of the trial, acquitted Gobin Tamuli and Kiran Tamuli, but convicted accused Biren Tamuli. Aggrieved by his conviction and the sentence, passed against him, accused Biren Tamuly has preferred this appeal. 7. We have heard the arguments advanced by Mr. K. Sharma, learned Counsel for the accused appellant, and Mr. D. Das, learned Addl. Public Prosecutor, Assam. 8. In order to appreciate the grounds of appeal and the arguments advanced by the learned Counsel for the Appellant as well as the learned Public Prosecutor, it would be apposite to cull out the evidence on record including the testimony of the important witnesses of the prosecution and also of the defence. 9. Sri Khagen Tamuli (PW.6), who lodged the Ejahar (Ext.4), deposed that at the time of occurrence, he was at his store situated at a distance of one furlong from the place of occurrence. Upon hearing some uproar from the house of the accused, PW.6 reached the place of occurrence and found his brother, Dambarudhar, Tamuli (since deceased), lying on the ground with bleeding injuries on his stomach. PW.6 also noticed that Dipak (PW.3) and Renu (PW.4), son and wife of the injured (deceased) respectively, holding the injured at the place of occurrence. 10. Upon hearing some uproar from the house of the accused, PW.6 reached the place of occurrence and found his brother, Dambarudhar, Tamuli (since deceased), lying on the ground with bleeding injuries on his stomach. PW.6 also noticed that Dipak (PW.3) and Renu (PW.4), son and wife of the injured (deceased) respectively, holding the injured at the place of occurrence. 10. PW6, then, brought the injured to his house and from there, took him to Dholpur Hospital and, thereafter, to North Lakhimpur Civil Hospital for treatment. However, the injured breathed his last in the Civil Hospital. 11. PW.6, having come to know all about the incident from his sister-in-law i.e. Renu Tamuli (PW4), lodged the FIR 'Exhibit 4'. 12. PW. 6, who, in fact, reached the place of occurrence immediately, revealed that he found his brother, Dambarudhar Tamuli (deceased), lying in injured condition in the courtyard of the accused and his sister-in-law, "Renu (PW4) and her son, Dipak Tamuly (PW3), were holding the deceased. PW.6 explained that he could not lodge the Ejahar early, because he had to remain busy for the treatment of the deceased by carrying him from one hospital to the other. The explanation, given by PW.6, for failing to file the FIR, on the date of occurrence, appears to be reasonable and justified, because PW.6 had to accompany the deceased from one hospital to another for his treatment until he succumbed to his injuries. PW.6 also proved the inquest report (Exbt.5). 13. PW3 (Dipak Tamuli), was 10 years of age at the time of occurrence and, that's why, before recording his testimony, he was thoroughly examined by the learned trial Court to ascertain his competence to depose, in the Court, as a witness. The learned Sessions Judge, after having found that the child witness had understood the questions put to him and also having found that the child witness was giving rational answers, certified his competence as a witness. 14. PW.3, in his deposition, has stated that on the date of occurrence, at about 7.30 p.m., while he had been reading his lessons at his house, P.W.3 heard a commotion at the place of occurrence and, in the midst of it, he heard the voice of his father. Renu (PW.4), mother of PW.3, took him along to the house of the accused. Renu (PW.4), mother of PW.3, took him along to the house of the accused. On reaching the courtyard of the accused, he saw his younger paternal uncle, Kiran Tamuli, grabbing his father by pulling the hands of his father from behind. At that moment, he saw accused, Biren Tamuli, pressing a dagger in his father's stomach. On sustaining the injury, PW.3 saw his father falling down on the ground. In the meanwhile, other family members also gathered at the place of occurrence and took his injured father to his house and, from there, to the civil hospital, where his father succumbed to his injuries after three days. P.W.3 has clarified that he did not accompany his father to the hospitals. 15. Cross-examination of PW3 by the defence counsel could not elicit anything substantial to establish the defence stand. During cross-examination, PW3 admitted that he had not stated to the I.O. that he had seen accused Kiran Tamuli grabbing his father by pulling hands of his father from behind. PW.3 denied the suggestion of the defence that he had not stated before the police that he had seen accused Biren pressing the dagger on his father's abdomen after having pushed it in. 16. PW.4 (Smt. Renu Tamuli) is the widow of the deceased Dambarudhar Tamuly. In her deposition, PW.4 has stated that at around 8.00 P.M., on the date of occurrence, she was at home with her husband (deceased) and her son, Dipak (PW.3). Her daughter, Rita Tamuli, was not at home. The deceased, after taking tea, had gone to the house of Gobin Tamuli (i.e., her elder father-in-law's house), by telling her that Gobin Tamuli had called him. Thereafter, PW.4 came to the kitchen and her son, Dipak (PW.3), became busy with his school lessons. P.W.4 has deposed that the place of occurrence, (i.e. the house of her uncle in-law, Gobin), was situated, just on the other s de of the road, opposite to her house. About half-an-hour after her husband had gone to Gobin's house, she heard a commotion (hue and cry) at the place of occurrence. The commotion was due to loud altercation between her husband and the two sons of Gobin namely, accused Biren Tamuli and Kiran Tamuli. On hearing such loud altercations, she, along with her son, Dipak (PW.3), ran to the house of Gobin. 17. The commotion was due to loud altercation between her husband and the two sons of Gobin namely, accused Biren Tamuli and Kiran Tamuli. On hearing such loud altercations, she, along with her son, Dipak (PW.3), ran to the house of Gobin. 17. According to the evidence of PW4, both the sons of Gobin Tamuly, namely, Biren and Kiran, lived together in the same house. Accused Biren Tamuli, though he was married, used to live with his wife in the house of his father. On reaching the place of occurrence, she asked he r husband to leave the place to avoid altercations. However, the altercation continued in the courtyard of the accused. At that time, PW.4 saw that Kiran Tamuli had grabbed her husband by twisting the hands of her husband from behind and also saw the accused, Biren Tamuli, pushing a dagger in the abdomen of her husband. When P.W.4 raised alarm, accused Biren Tamuli and Kiran Tamuli fled away from the place of occurrence. Her husband fell down in the courtyard of 'the accused. On hearing her cries, people of the locality arrived at the place of occurrence. PW.4 stated, in her cross-examination, that in such situation, she became nervous, but, even then, she held her husband by pushing her hands under his chest and, thereafter, with the help of her brother-in-law, Khagen Tamuli (PW.6), brought her injured husband to her house. It is in the evidence of PW4 that her injured husband was taken to Dholpur P.H.C. and, on the advice of the Medical Officer at Dholpur P.H.C, he was taken to Lakhimpur Civil Hospital, where he died after three days. 18. PW.4 has explained, in her deposition, that there was delay in lodging the FIR as her brother-in-law (PW.6) had to remain busy in arranging the treatment of her husband in the hospital. PW.4 proved Mat. Ext. 'ka', a shirt, which was worn by the deceased at the time of occurrence. 19. Since PW.4 gave her statement under Section 164 Code of Criminal Procedure. After about 19/20 days of the date of occurrence, the learned trial Court asked her as to why she had not given her statement earlier. PW.4 proved Mat. Ext. 'ka', a shirt, which was worn by the deceased at the time of occurrence. 19. Since PW.4 gave her statement under Section 164 Code of Criminal Procedure. After about 19/20 days of the date of occurrence, the learned trial Court asked her as to why she had not given her statement earlier. In reply to this query, PW.4 replied that immediately after occurrence, though the police had asked her to go to the Court to give her statement, yet she could not attend the Court due to her inability to recover from the shock and distress of her husband's death. The explanation, given by P.w.4 in respect of delay in giving her statement Under Section 164 Code of Criminal Procedure, is acceptable in the facts and circumstances of the present case. On the other hand, from the cross-examination of P.W.4, the defence could not elicit anything to dislodge her straightforward account of the occurrence. 20. PW7 (Ranjit Tamuli) is the witness of the inquest report (i.e. Ext.5). PW.8 (Gautam Ch. Kumar) is the Sub-Inspector of police, who. on receiving the case diary, after completion of the investigation by P.W.9, submitted the charge sheet against Kiran Tamuli, Gobin Tamuli and the accused-appellant, Biren Tamuli, alleging commission of offence, under Section 302/34 IPC, by them. 21. PW.9 (Nitul Das), a Sub-Inspector of Police, who was working as In-charge of Dholpur Police Outpost on the day of occurrence, has proved the FIR lodged by PW.6 and also described the sequence of events of investigation of the case. In his cross-examination, he stated that PW.3 (Dipak Tamuli) had not stated before him that accused Biren Tamuli injured his father, on the stomach, by means of a knife; rather, he stated that while he, along with his mother, had entered into the house of the accused, he found accused Kiran Tamuli shouting by grabbing a knife from the wall threatening to kill his father and, thereafter, when his father and Biren came out to the courtyard, he heard scream of his father saying 'Morilu' (i.e., I am killed'). 22. The fact that the said deceased met homicidal death is not denied by the defence. However PW. 10 (Dr. 22. The fact that the said deceased met homicidal death is not denied by the defence. However PW. 10 (Dr. Dambarudhar Mili), who was working as Medical & Health Officer at North Lakhimpur Civil Hospital, on 17.07.2005, and who had performed the post-mortem examination upon the dead body of the said deceased, found the following injuries on the body of the deceased: Average built body, not emaciated and not decomposed. Rigor mortis present. Post operative case. Sign of laparotomy as described. On the abdomen : Post operative case, had abdominal laparatomy. Left pavamedian incision seen with 19 stitchcs( 6 inch, 3" down and 8" up from umbilicus. Drainage seen on both flanks. On exposure of abdoman, repaired wound on jejunum of small intestine five stitches seen wound health, repaired omentum of small intestine three stitches seen. Other organs found healthy. Ex.7 is the Post Mortem Report and 7(1) is my signature there. In the opinion of doctor, the deceased died due to shock and haemorrhage as a result of the abdominal injury, which was sufficient to cause death. 23. The accused-Appellant took the stand of total denial in his statement under Section 313 of Code of Criminal Procedure. The accused-appellant denied of any incident having taken place in his courtyard on the date of occurrence. In order to substantiate the defence stand, the defence side too examined two defence witnesses, namely, DW.1 (Smti. Ranu Tamuli), wife of accused-appellant, Biren Tamuli, and DW.2, who is a neighbour of both accused and the deceased. 24. DW.1 stated, in her deposition, that the occurrence took place at around 7 P.M. in the evening. At that time, she was at her residence and her father-in-law was in the 'Namghar'. Both her husband and her brother-in-law were at their house. About 7 P.M., the deceased, his wife and son, Dipak, came to their house and held talks. In the course of talks, deceased asked her husband as to why he had spread the canard that the deceased had illicit affairs with his own brother's wife. This resulted into an altercation. During the altercation, the deceased, Dambarudhar, rushed towards Kiran Tamuli in order to assault him. At that time, the wife of the deceased, Renu Tamuli (PW.4), took the deceased towards her house. DW.1 stated in her deposition that she scolded her husband and her brother-in-law for the occurrence. This resulted into an altercation. During the altercation, the deceased, Dambarudhar, rushed towards Kiran Tamuli in order to assault him. At that time, the wife of the deceased, Renu Tamuli (PW.4), took the deceased towards her house. DW.1 stated in her deposition that she scolded her husband and her brother-in-law for the occurrence. DW.1 deposed that about 20 minutes after their departure from their courtyard, PW.4 raised uproar saying that someone had stabbed Dambarudhar. However, D.W.1 did not go to the house of Dambarudhar. Further, D.W.1 confirmed that Dambarudhar later died in the hospital, she, of course, denied that her husband was the one, who had injured the deceased. 25. DW.2 (Jatin Hazarika) is a neighbour to both the deceased and the accused. According to his evidence, on the date of occurrence, after the evening had set in, DW.2 had gone to the house of accused-appellant, Biren, to get jackfruit. At that time, DW.2 met Dambarudhar (deceased), who told him that he had been searching for Biren and enquired from DW.2 if DW2 knew the whereabouts of Biren. DW.2 has tried to establish that the deceased was looking for accused Biren Tamuli, when DW2 met the deceased at the place of occurrence. 26. In the pre sent case, the evidence of DW. 1 supported the fact that the deceased had gone to the residence of the accused. The fact that Dipak (PW.3) and Renu (PW.4) were present at the time of occurrence is admitted by DW1. This apart, according to DW.1, the deceased, in the midst of discussions, asked her husband (i.e. accused-Appellant), as to why he had spread the canard (false rumor) that he deceased had illicit affairs with his own brother's wife and, according to DW.1, this accusation, made by the deceased, resulted into heated altercation and, in the midst of altercation, the deceased rushed towards her brother-in-law, Kiran, in order to beat him. The evidence of DW.1, which has excluded the accused-appellant from the incident of stabbing, is obviously expected of a defence witness, who had come to support the defence stand of total denial. However, on c ireful marshalling of the evidence of PW.3, PW.4 and DW.1, it becomes amply clear that the version of the occurrence, given by DW.1, exonerating the accused-Appellant, cannot be believed. However, on c ireful marshalling of the evidence of PW.3, PW.4 and DW.1, it becomes amply clear that the version of the occurrence, given by DW.1, exonerating the accused-Appellant, cannot be believed. In this context, the forthright and unassailed evidence of PW.4, who was, admittedly, present at the time of occurrence, as regards the fact as to how the occurrence had taken place, cannot be disputed. This apart, there is yet another aspect of the evidence of DW.1, which makes her evidence unbelievable inasmuch as DW1 claims that upon the deceased, being taken away by his wife (PW4) to the house of the said deceased, she (DW.1) heard PW4 crying that someone had stabbed Dambarudhar. There is no reason as to why DW1 did not, immediately, go to the house of Dambarudhar if she had really heard PW4 crying to the effect that her husband had been stabbed. This unnatural behaviour belies the evidence given by D W1 that the occurrence took place at the house of the deceased and not at the house of DW1. Had DW1 been an innocent witness, her natural reaction, as indicated hereinbefore, would have been to, immediately, rush, out of curiosity and concern, to the house of the deceased on hearing the wife of the deceased raising her cries by saying that her husband had been stabbed. 27. Learned Counsel for the Appellant submitted that the investigating officer (PW.9) proved the contradiction in the version of PW.3 (Dipak) regarding the fact of seeing accused, Biren Tamuli, causing injury to his father by a knife. The fact remains that DW.1, in her evidence, confirmed the presence of PW.3 and PW.4 at the time of occurrence. However, PW.9 clarified, in his cross-examination, that PW.3 had stated before him to have seen Kiran shouting to kill the deceased with a knife in his hand and, thereafter, PW.3 had seen accused-appellant, Biren, and his father in the courtyard and it was at that time that PW.3 heard his father crying, "Morilu"('I am killed'). PW.3 clearly deposed that he stated before the I.O. that he had seen accused Biren assaulting the deceased. Thus, the evidence of PW3 too cannot be disbelieved. 28. PW.3 clearly deposed that he stated before the I.O. that he had seen accused Biren assaulting the deceased. Thus, the evidence of PW3 too cannot be disbelieved. 28. In Laxman v. Slate of Maharashtra, (1974) 3 SCC 704 , the Supreme Court held that the effect of a particular omission in a previous statement on the testimony of the witness, at the trial, will depend upon the totality of proved facts and circumstances in which the omission might have taken place and it is often to be determined by the importance of what was omitted. The observations made by the Supreme Court read as follows: 11. It is not possible to lay down a general rule as to what effect a particular omission from a previous statement should have on the probative value of what was so omitted by a witness. The effect will depend upon the totality of proved facts and circumstances in which the omission might have taken place. It will often be determined by the importance of what was omitted. Our enacted law of evidence contains nothing more than Sections 3 and 114of the Evidence Act to indicate and illustrate the standards and methods employed in assessing the evidence. 29. On close examination of the sequence of events, it transpires that the omissions, sought to be established by the defence, in the version of PW3, are not major omissions warranting rejection of the prosecution story as a whole. The omissions, in the previous statement of PW3, cannot be taken to have shaken the core of his evidence as regards the fact that his father, (Dambarudhar), had been injured in the courtyard of the accused-appellant and it was the accused-appellant, who had been seen by him pushing a dagger into the stomach of Dambarudhar. 30. There is really no reason to outright reject the entire testimony of PW3. The principle of false in one thing is false in everything is not an acceptable principle of law in India. The Supreme Court, in yet another decision, in Section Sudershan Reddy v. State of A.P., (2006) 10 SCC 163, at page 169, held as follows: 17. Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by PW 3 to contend about the desirability to throw out the entire prosecution case. The Supreme Court, in yet another decision, in Section Sudershan Reddy v. State of A.P., (2006) 10 SCC 163, at page 169, held as follows: 17. Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by PW 3 to contend about the desirability to throw out the entire prosecution case. In essence the prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, conviction can be maintained. It is the duty of the court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence of some of the witnesses has been found to be deficient. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". See Nisar Ali v. State of U.P. Also see Sucha Singh v. State of Punjab. 31. Learned Counsel for the Appellant, referring to the depositions of the prosecution witnesses, contended that many people had gathered at the place of occurrence, but such witnesses, cited by the prosecution, were not examined, which creates a doubt as regards the veracity of the prosecution's case. As a matter of fact, Section 134 of the Evidence Act lays down, in clear terms, that no particular number of witnesses is necessary for proof or disproof of a fact. In reality, the testimony of a single witness, if believed, is sufficient to establish a fact. As a matter of fact, Section 134 of the Evidence Act lays down, in clear terms, that no particular number of witnesses is necessary for proof or disproof of a fact. In reality, the testimony of a single witness, if believed, is sufficient to establish a fact. Suction 134 follows the maxim that evidences is to be weighed and not counted. The Supreme Court, in Amar Singh v. Balindar Singh, 2003(2) SCC 518 , held that where the prosecution examined three eye witnesses, who were all injured witnesses, the mere fact that two of the injured witnesses were not examinee., no inference would be drawn that the prosecution was not justified in relying on the evidence of the injured witnesses, who were examined. As a matter of fact, law does not insist upon plurality of evidence. Evidence of one witness, who inspires confidence, is more than sufficient to maintain conviction. Therefore, there is no reason to doubt the forthright testimony of the two eyewitnesses, namely. PW4 and PW3, to the occurrence. Accordingly, the contention, put forward by the learned Counsel for the Appellant, aforesaid is not at all acceptable and satisfactory. 32. Despite the minor omissions, which exist between PW3 sevidence, given in the Court, and his previous statement, his evidence, coupled with the evidence of his mother (PW4). clearly proves that the accused-appellant was the one, who had stabbed into the stomach of Dambarudhar and, it is as a result of the stab-wound, so suffered by Dambarudhar, that he succumbed to the injury. 33. Despite the minor omission with which suffers the testimony of PW3, complicity of the accused-appellant in the commission of offence alleged has been proved by the prosecution beyond all reasonable doubts. 34. Learned Counsel for the Appellant submitted that as the occurrence had taken place without premeditation, in a sudden fight, in the heat of pass ion upon a sudden quarrel on a delicate personal matter, the Appellant is entitled to the benefit of Exception 4 of Section 300 of the Indian Penal Code. 35. Now, the moot question, which arises for consideration before us, is as to whether the act committed by the accused is a murder or a culpable homicide not amounting to murder. 35. Now, the moot question, which arises for consideration before us, is as to whether the act committed by the accused is a murder or a culpable homicide not amounting to murder. The learned counsel, appearing for the Appellant, has submitted that since the occurrence took place in a heat of passion, the accused does not deserve to be convicted under section 302 of IPC. 36. In Bhagwan Bahadure v. Slate of Maharashtra, (2007) 14 SCC 728 , the Supreme Court succinctly described, the difference between murder and culpable homicide not amounting to murder, in the following words: 15. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various Clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences: Section 299 Section 3001 A person commits Subject to certain exce- culpable homicide ptions culpable homicide if the act by which is murder if the act by the death is caused which the death is cau- is done- sed is done- INTENTION (a) with the intention (1) with the intention of of death; or causing death; or (b) with the inten- (2) with the intention or tion of causing causing such bodily such bodily injury injury as the offender as is likely to cause knows to be likely to death; or cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary cause of nature to cause death; or KNOWLEDGE (c) with the kno- (4) with the knowledge wledge that the act that the act is so immin- is likely to cause ently dangerous that it death. 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 is men- tioned above. 16. 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 is men- tioned above. 16. Clause (b) of Section 299 corresponds with Clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of Clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause. This aspect of Clause (2) is borne out by Illustration (b) appended to Section 300. 17. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under Clause (2) of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury, which caused the death, was intentionally given. In Clause (3) of Section300, instead of the words 'likely to cause death' occurring in the corresponding Clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. In Clause (3) of Section300, instead of the words 'likely to cause death' occurring in the corresponding Clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word likely' in Clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. 18. For cases to fall within Clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant Singh v. State of Kerala AIR 1966 SC 1874 is an apt illustration of this point. 19. In Virsa Singh v. State of Punjab, AIR 1958 SC 465 Vivian Bose J. speaking for the Court explained the meaning and scope of Clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 20. The ingredients of Clause "Thirdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows: (Virsa Singh case (supra) para 12 12. 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. 21. The learned Judge explained the third ingredient in the following words [(Virsa Singh case (supra), it AIR p. 468, para 16):] 16. ...The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the Appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here nor there. 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. 22. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh's case (supra) for the applicability of Clause 'Thirdly' is now ingrained in our legal system and has become part of the rule of law. Under Clause Thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied : i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz. that the injury found to be present was the injury that was intended to be inflicted. 23. Thus, according to the rule laid down in Virsa Singh's case even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary 1 course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point. 24. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. Illustration (c) appended to Section 300 clearly brings out this point. 24. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons--being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. 25. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. 37. The Supreme Court, in Bangaru Venkata Rao v. State of A.P., (2008) 9 SCC 707, explaining the applicability of Exception 4 to Section 300 IPC, held as follows: In Ramkishan v. State of Maharashtra, (2007) 3 SCC 89 : (2007) 2 SCC (Cri) 39 at para 8, it was observed as follows : (SCC p.91) 8. The assault undisputedly was made in the course of the sudden quarrel, without premeditation and without the accused taking any undue advantage. 7. The residuary plea [relates to the] applicability of Exception 4 to Section300 IPC. 8. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 9. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. 9. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. 38. A Division of this High Court, in Ripunjay Borgohain v. State of Assam Reported in 1998 (4) GLT 502 explained the difference between culpable homicide and murder as follows: 14. Culpable homicide and murder both involve causing of death of human being by another human being. Culpable homicide is genus where a murder is a species. All murder is culpable homicide but not vice versa. Presence of special mens rea is the distinguishing mark. It consists of four intellectual dispositions mentioned in Section 300 of the PC. (subject to the exceptions indicated). Punishment is to be inflicted proportionate to the gravity of the generic offence. Murder is first degree of culpable homicide cited in Section300, The second degree of culpable homicide is punishable under the first part of Section 304. The third degree of culpable homicide, in the reduced form is punishable under the second part of Section 304. Punishment is to be inflicted proportionate to the gravity of the generic offence. Murder is first degree of culpable homicide cited in Section300, The second degree of culpable homicide is punishable under the first part of Section 304. The third degree of culpable homicide, in the reduced form is punishable under the second part of Section 304. After a trial when the Court finds the causal connection between the act done by the accused and the death, the stage is set for considering to whether the act of the accused amounts culpable homicide within the meaning of Section 299, when the answer is in affirmative the next exercise is for the consideration of the operation of Section 300 of the IPC. This is the phase at which the court is to look into the facts to ascertain as to whether the prosecution has succeeded in bringing home the case within the sphere of any of tie four Clauses mentioned in Section 300 IPC. Culpable homicide is not murder when the case falls within five exceptions of Section 300 IPC. Even, when this exceptions indicated above is not pleaded nor prima-facie established on the evidence on record to prosecution must still required under the law to bring the case under any of the four Clauses of Section 300 IPC to sustain the charge of murder. Even the prosecution fails to discharge in establishing any one of the four Clauses of Section 300 I. P. C. the accused can not be convicted on the charge of murder and the case may be one of the culpable homicide not amounting to murder as contained in Section 299 of the I.P.C. 39. If the evidence on record is considered on the touchstone of the principles set out above, it reflects that there was altercation between the two, otherwise, peaceful neighbours, which led to the unfortunate death of the deceased. The sudden altercation between the accused and the deceased had taken place without premeditation. On the top of it, there is no account of previous animosity between the accused and the deceased on any issue whatsoever. In Sukhbir Singh v. State of Haryana, 2002 3 SCC 327 , the Supreme Court, discussing the meaning of sudden fight, observed as follows: 17. On the top of it, there is no account of previous animosity between the accused and the deceased on any issue whatsoever. In Sukhbir Singh v. State of Haryana, 2002 3 SCC 327 , the Supreme Court, discussing the meaning of sudden fight, observed as follows: 17. To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by the courts that a fight is not per se palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception. .... 21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid Appellant guilty of offence of murder punishable under Section302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304(Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5000. 5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year. 40. In AIR 1962 SC 605 K.M. Nanavati v. State of Maharashtra the Supreme Court has laid down, in the following words, the test of grave and sudden provocation: the test of "grave and sudden" provocation is whether reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. 41. In Devku Bhikha v. State of Gujarat, (1996) 11 SCC 641 , the Supreme Court, analyzing circumstances of a given case, held as follows: Thus, from this analysis it becomes abundantly clear that the Appellant was driven to the crime which was not premeditated and the occasion had sprung up at the moment, gradually leading to the point when the Appellant lost his self-control, and due to grave and sudden provocation, inflicted the injuries on the deceased, successively within seconds. We think, therefore, that the offence made out against the Appellant is under Section 304 Part 1 IPC. 42. In fact, DW.1 supported the prosecution version to the extent that the accused and the deceased had heated exchange of words in connection with some rumour involving the deceased and his brother's wife and deceased had charged the accused-appellant by saying that the said rumour had been spread by the accused-appellant. The evidence on record leading to the occurrence discloses that the accused-Appellant and the deceased had heated altercation, when the deceased had alleged that the accused-appellant had spread rumour that the said deceased was involved in illicit affair with his brother's wife. There is nothing on record to show that the act of killing of the deceased by the accused-appellant was premeditated. Far from this, the deceased came to be stabbed by the accused-appellant following the altercation between them. In such circumstances, one can safely hold that the accused-appellant stabbed the deceased and caused his death on being deprived of the power of his self-control by grave and sudden provocation inasmuch as the deceased had alleged that the accused-appellant had spread a rumour saying that deceased had illicit relation with his brother's wife. Thus, the act of causing death by the present Appellant amounts to culpable homicide not amounting to murder and the accused-appellant could not have, therefore, been convicted under Section 302 IPC. Thus, the act of causing death by the present Appellant amounts to culpable homicide not amounting to murder and the accused-appellant could not have, therefore, been convicted under Section 302 IPC. 43. In the light of what have been concluded above, we have to, now, determine whether the said deceased was done to death by the accused-appellant with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death or was the act of injuring or killing the said deceased was with the knowledge that death was likely to be caused, but without the intention to cause death or to cause such bodily injury as is likely to cause death. When the facts and surrounding circumstances of the present case are dispassionately analysed, it becomes clear that the Appellant, deprived of his power of self-control as indicated above, stabbed the deceased into his stomach with the obvious intention of causing his death or with the intention of causing such bodily injury as was likely to cause death. This becomes evident from the fact that the injury caused to the stomach of the deceased was long and could not have been caused unless full force with firm intention of causing death was applied. Situated thus, there can be no escape from the conclusion that though the act of the accused-appellant amounted to culpable homicide not amounting to murder, the act of causing death was with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death. We, therefore, hold that the acts of the accused-appellant constitute an offence punishable under Section 304 (Part I) IPC. We, therefore, convert the conviction of the accused-appellant from one under Section 302 IPC to one under Section 304 (Part I) IPC. 44. In the facts and attending circumstances of the present case, we are also of the view that since there was only one stab wound, which was intended to cause death of Dambarudhar the sentence of imprisonment for life, though permissible in the case of an offence under Section 304 (Part I) IPC would not be a reasonable sentence. On the contrary, if the accused-appellant were sentenced to suffer rigorous imprisonment for a period of 10 (ten) years, such a sentence would meet the ends of justice. 45. On the contrary, if the accused-appellant were sentenced to suffer rigorous imprisonment for a period of 10 (ten) years, such a sentence would meet the ends of justice. 45. In the result and for the reasons discussed above, this appeal partly succeeds. While conviction of the accused-appellant from the one under Section 302 IPC is reduced to a conviction for an offence under Section 304 (Part I) IPC, he is sentenced to suffer rigorous imprisonment for a period of ten years with fine of Rs. 2,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of three months. 46. With the above observations and directions, this appeal shall stand disposed of. 47. Send back the LCR.