On Judicial Accountability To Law

“A judge is a law student who marks his own examination papers.”-----H. L. Mencken

It is often said that an independent, impartial, honest and competent judiciary is integral for upholding the rule of law.[1]The administration of criminal justice system becomes a fiasco when the criminal courts fail to return its’ verdicts that are candid enough to hold the guilty punished and the innocent exculpated. The strength and sanctity of the judgments lies in its’ reasoning and the capability to convince the reader, especially the litigants concerned. Democracy stands on the accountability of the administrators for their actions. Judges’ accountability is a heavy topic of debate across the globe. The word accountable means completely responsible for what one does and be able to give a satisfactory reason for it. Judiciary, being an indispensable part of democracy, is also accountable, the judges for their judgments. Here the accountability does not mean executive accountability or executive scrutiny of the judgments. Lord Phillips, the Chief Justice of England and Wales spoke, “[T]he duty to give reasons and the appellate system is the way that judges should be accountable for their decisions …. The duty to give reasons for all decisions is a clear example of “explanatory” accountability, which not only facilitates appeals but assists transparency and scrutiny by the other branches of State and the public.”1

The main difference between the accountability of the other functionaries of the State and that of the judiciary is that the latter is, practically and technically, not answerable before anybody, but they are answerable to their inner self. The accountability of the judges, ergo, is not before any authority, but it is to the rule of law itself.

Two decisions of the Division Bench (DB, for short) of the Hon’ble High Court of Kerala in Sanil vs. State of Kerala[2] and Baby Joseph @ Baby V State of Kerala[3] may cause to think of the Courts’ accountability to law and of the judicial interpretation of the meaning of culpable homicide not amounting to murder and murder defined in Indian Penal Code (IPC), I believe. (The section numbers hereinafter refers to IPC sections).

Facts Proved in Sanil’s

The facts proved (as accepted by the trial court as well as the High Court) in Sanil’s Case are as follows. An incident of homicide, due to political rivalry, happened on 19.07.2007 at 3.30 p.m. somewhere in Kollam District, as the accused themselves formed into an unlawful assembly with the common object to do away with the victim, attacked him with deadly weapons like iron rods and screwdrivers. There were 6 accused and out of them 4 used iron pipes and 2 used screwdrivers. Moreover one of them also used a shawl and twisted around the neck of the victim and pulled his body towards opposite direction by grounding his hip with his foot. The victim died the next day in a hospital.

There were 64 different types of ante mortem injuries on almost all body parts of the victim. The doctor formed an opinion that the death was due to multiple injuries. Out of the injuries the 1^st one being Atlanto occipital joint dislocation found to be fatal. All other injuries were, though not fatal individually, some were serious and others minors.

Decision by the Court in Sanil’s

The DB has extensively discussed the evidence and summed it up as follows:

•  All the accused persons were found to be armed with weapons - iron rods andscrewdriverr.


•  The victim was unarmed at the time of alleged incident.


• The number of assailants comes to six in number. But, the victim was alone at the time of commission of offence.


•  A pre meditated commission of offence is well evident.


•  Accused No. 1 made an altercation that they are the workers of RSS and they would kill him presumably on the reason that he is an active worker of SFI - DYFI.


•  There were indiscriminate attack on the victim causing punctured wounds 8 in numbers (injury Nos. 10, 13, 30, 32, 38, 39, 40 and 62) having a depth ranging from 3.3cm to 13.2cm. All the punctured wounds having a depth of more than 7.5cm except injury Nos. 10 and 62. All these injuries were produced by using a screw driver.


•  Injury Nos. 1, 6 and 46 are sufficient to cause death in its ordinary course of nature. The accused No. 1 stretched his body by pulling the body of the victim by twisting around his neck with a shawl (MO5) and grounded his hip with his foot so as to stretch the body to the opposite direction to the maximum possible extent which has resulted in injury No. 1 causing dislocation to atlanto occipital joint backwards resulting oedematous brain. It would prima facie show the force applied while stretching his body to the opposite direction by twisting a shawl around his neck and holding the other end with his foot. A violent frantic attack soaked with anger and enmity is well evident. Injury No. 6 is the result of hit with iron pipe which is on the vital part of the victim (front of neck across the midline just 20cm below the lower border of jaw bone) having a measurement of 11 x 5cm. Flap dissection of neck revealed a horizontal linear tear of 9cm in left common carotid artery. Injury No. 46 is a both bone fracture to the left leg crushing the muscles. Expert opinion given through PW20, the Doctor who conducted autopsy on the body of deceased, is that these three injuries are sufficient to cause death in its ordinary course of nature.


•  Injury Nos. 2 and 3 are the result of hit with iron pipe. Injury No. 2 is on the right shoulder just 3.5cm outer to the root of neck and injury No. 3 is the fracture to second thoracic vertebrae oblique involving the body spinal cord underneath soften. These two injuries are sufficient to lead paralysis of lower limbs, according to the Doctor who conducted autopsy on the body of the deceased. It is really on a vital part of the victim, but expert opinion in that behalf was not brought out through the expert witness, PW20, by the prosecution.


• The number of ante mortem injuries comes to more than 64 as some of the injuries are grouped together in Exhibit P15 post mortem examination report, out of which 8 injuries are lacerated punctured wounds. Three other injuries reported are also sufficient to cause death in its ordinary course of nature. (Emphasis added)

The main discussion part of the judgment, which led to the decision:-

“In the instant case, except one injury all others are not on the vital part. The assailants, 6 in numbers, attacked the victim with iron pipes and screw driver. Except two injuries, all other punctured wounds are caused by the impact of screw driver having a depth of more than 7.5cm. Various bone fractures were reported. Injury No. 46 is on the left leg causing both bone fracture and crushing of muscles. Injury No. 1 is so serious as his body was stretched so as to cause brain oedematous due to the impact of dislocation of atlanto occipital joint. Intention to cause death or to cause such injury sufficient to cause death cannot be inferred in the absence of any injury to any vital part of the victim. All injuries inflicted, though some are very serious in nature including both bone fracture and punctured wounds, will not satisfy the intention to cause death or to cause such injuries sufficient to cause death except injury No. 1 and the alleged stretching of body. Injury No. 1 is the result of the alleged act of accused No. 3 by stretching the body of the victim to opposite direction by tying MO5 around his neck and grounding his hip with his foot. It may be the result of a frantic attack on the victim and it is too difficult to draw an inference that injury No. 1 was caused with the knowledge that it may cause death in its ordinary nature.” (Emphasis added)

And, therefore, based on its opinion, i.e. the act of the accused being devoid of any intention to cause death or to cause such injury sufficient to cause death, the DB affirmed the judgment of the trial court and punished the accused under s. 304 Part 1.

The Facts and the Decision in Baby Joseph’s

An untoward incident happened on the eve of 28.01.2008, and the next day 10 a.m. has witnessed the culpable homicide of the deceased at the hands of the appellant. The appellant, as revealed from the judgment of the DB, admitted the total prosecution story, but claimed the benefit of exception 2 to s. 300 as he was exercising his right of private defence. The DB accepted these facts, but came to a conclusion that exception 4 to s.300 applies and hence the offence comes under Part 2 of s. 304 as there was a scuffle between the appellant and the deceased. The reason stated by the Court is:-

“When a case which would fall under first or third clause to Section 300 IPC is found to be outside the purview of “murder” on account of any of the exceptions attached to it, it would attract liability under Part I of Section 304 IPC. But the cases which would fall under second and fourth clauses to Section 300 IPC once found to be outside the purview of “murder” on account of any of the exceptions, a conviction under Part II of Section 304 IPC is proper. Hence, the present case would fall under the category of Part II of Section 304 IPC.”

Law of Culpable Homicide and Murder under IPC.

The Supreme Court in State of U.P. vs. Virendra Prasad[4] observed that 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.

• Culpable Homicide.

Under the scheme of the IPC culpable homicide is the ‘genus’ and murder is the ‘specie’. Every murder is a culpable homicide and not the vice versa. Culpable homicide defined under s. 299 (having 3 parts) is causing death (of a human being by another human being) by doing an act (1) with the intention of causing death, or (2) with the intention of causing such bodily injury as is likely to cause death, or (3) with the knowledge that he is likely by such act to cause death. The 3 explanations to s. 299 explain the circumstances in which it can be said that one has caused the death of another. So, culpable homicide can be caused with or without intention of causing death. If such an intention is not attributable, the intention of the offender that he intended to cause such injury as is likely to cause death or his knowledge that by doing the act he was likely to cause the death, must be present. In the 1^st part the test is subjective as to the person who causes the death, to find whether he intended it. In the 2^nd part on the one side it is to be tested whether he intended to cause the bodily injury present (this is again subjective in terms of the offender), and on the other objectively it is to be tested if the injuries present are likely to cause death. And in the 3^rd part the enquiry must be subjective if he possessed the knowledge that he was likely to cause death, and this likeliness is purely an objective one.

• Murder

Coming to s. 300, it can be seen that every culpable homicide is murder if any one of the 4 conditions (clauses) to that section is attracted. Further there are 5 exceptions, and if any one of these exceptions has application, it is not murder. Therefore, to constitute murder the culpable homicide must be coupled with any one of these clauses. They are, ‘Firstly’, the act done by the offender is with the intention of causing death, ‘Secondly’, the offender does the act with the intention to cause such bodily injury as he knows to be likely to cause the death of the person to whom the harm is caused, ‘Thirdly’, 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, and ‘Fourthly’, 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. Thus, in culpable homicide as well as in murder the mens rea is innate in the form of the intention or of the knowledge.

First part of s. 299 (intention to cause death) and the ‘Firstly’ to s. 300 are same. ‘Secondly’ to s. 300 needs the knowledge of the offender coupled with his intention to cause certain injury. The knowledge is about the bodily condition of the victim, which would render a particular injury likely to cause the death. This much amount of injury may not be sufficient to cause death otherwise. When it is ‘likely’ the possibility of death is more probable and the possibility of survival is less than the possibility of death. When death is only a possibility and then it is not a case of culpable homicide though death occurs. It is not the knowledge of the offender that the victim is likely to die on account of the injury, but the knowledge of the offender that infliction of a particular injury is likely to cause death, and the intention to inflict that injury makes offence. So the thrust in this clause is on the intention, not on the knowledge. The clause ‘Thirdly’ also emanates from second part of s. 299, and the offender must intend to cause bodily injury sufficient to cause death in the ordinary course of nature. In all these situations intention that matters. But the gravity of injury, obviously, can be different and the difference lies in the degree.

What matters in ‘Thirdly’ is the injury intended to be inflicted. Here the test is subjective with respect to the intention whether he intended a particular injury, and the rest of the test is objective, i.e., whether the injury is sufficient for death in the ordinary course of nature. Death due to the sufficient injury in ordinary course of nature depends upon various facts, such as the bodily part it is caused, the depth or gravity of the injury, the advancement of medical science, the geographical territory where the victim happens to be etc. A particular bodily injury sufficient in the ordinary course of nature to cause death in 18^th century may not be sufficient in 21^st century. Such will be the case in relation to the incident happens in a deep forest or on high seas, and other planes.

In ‘Fourthly’, the offender should have knowledge that the act committed by him is imminently dangerous that it MUST in all probability cause death or such bodily injury as is likely to cause death. And the act was done without any excuse of incurring the risk of causing death or the bodily injury. E.g. A and B, in order to escape, jump with a single parachute from an aircraft, which is about to crash. A, knowing that it is not safe if both use single parachute, throws B, which results in his death. Here A has an excuse for incurring the risk of causing death. Hence, A’s offence is culpable homicide not amounting to murder.

Is the act an imminently dangerous one is a question of fact and the knowledge of the offender requires a subjective test.

1. Intention How Identified.

Intention to cause death is the foremost one to constitute both culpable homicide and murder. The proof for that intention may not directly be available in most of the cases. This is a subjective factor on the part of the offender; the court has to infer it from the available proved circumstances.

• Intention to Cause Death.

Some of the yardsticks to find the intention to cause death are explained by the Apex Court in Pulicherla Nagaraju vs. State of Andhra Pradesh[5]as hereunder:

“The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.”

As to ‘Thirdly’.

To attract ‘Thirdly’ there must be intention on the part of the accused not to cause death, but to cause a particular bodily injury. Whether or not the offender knew that the injury is sufficient to cause death in the ordinary course doesn’t matter, he need not have it, but the injury must be of that quality. So the 1^st part of ‘Thirdly’ is subjective of the offender and the 2^nd part of it is objective. Proof is required only to the extent that he had an intention to inflict the injury present, which is sufficient for death. This facet is discussed in Virsa Singh vs. The State of Punjab[6]. If the medical expert opines that the injury is capable of causing death in the ordinary course of nature, it will become the duty of the court to discover whether the accused bore the intention to inflict that injury.

It is also to be noted that there is no standard level as to the injury to be inflicted, or certain amount of or on certain part of body of the victim the injury to be inflicted to attract the qualification that it is sufficient to in the ordinary course of nature to cause death.

“If the numerous injuries found on the body of …. had been inflicted in the manner deposed to by the prosecution witnesses, there can be little doubt that the assailants intended to cause his death. Furthermore, even if none of the injuries by themselves was sufficient in the ordinary course of nature to cause Ram Prasad's death, cumulatively they were certainly sufficient in the ordinary course of nature to cause his death, which in fact took place soon after the assault.” (Brij Bhukhan and Ors. vs. The State of Uttar Pradesh)[7]

In its circumstances, it was so held in State of Karnataka vs. Shivalingaiah[8] that ‘Thirdly’ to s. 300 would not apply where the instantaneous death occurred as a result of squeezing the testicles of the victim by the offender.

Intention to Cause Bodily Injury Sufficient to Cause Death.

In Arun Nivalaji More vs. State of Maharashtra[9], the Supreme Court expressed the following observation.

“In order to ascertain that "there was an intention to inflict that particular bodily injury" the enquiry should not be directed to find out whether the offender had intention to cause those very injuries to the internal organs of the body which were actually found to be there in medical examination. The intention has to be gathered from host of circumstances like the seat of injury, viz., the place or portion of the body where the injury has been caused, the nature of the weapon, its size and dimension or other attributes and the force applied in inflicting the injury. Being a question of fact it is difficult to lay down exhaustive tests to ascertain as to whether the offender intended to inflict that particular injury which is found on the body of the deceased but the features enumerated above will certainly play a vital role in arriving at a correct conclusion on the said issue.”

Regarding Nature of Weapon.

In Arun Nivalaji More vs. State of Maharashtra (supra)the Supreme Court also observed that:

“The mere fact that a dangerous or deadly weapon was not used ……. may not necessarily take out the offence from the clutches of clause Thirdly of Section 300 IPC. Death may take place on account of large number of blows given by a blunt weapon like lathi on hands and legs causing fractures. Though the injuries may not be on a vital part of the body as the said term is generally understood, but if the medical evidence shows that they were sufficient in the ordinary course of nature to cause death, the offence would fall in clause Thirdly of Section 300 IPC.”

Therefore user of a particular weapon like sharp one or a firearm is not always necessary to cause the death.

As to Knowledge that the Act is Imminently Dangerous….

To attract ‘Fourthly’ of s. 300, the offender must be having the knowledge that the act is so dangerous and in all probabilities, it must result in death or he must have the knowledge that the act must result in injury that is likely to cause death. The most illustrative case on this aspect is Emperor vs. Mt. Dhirajia[10]by the Allahabad High Court. A young lady, after a quarrel with her husband, fearing of beating by him, jumped into a well holding her 6 month old baby resulting in the death of the child and her survival, was tried for murder and committing attempt to suicide. The High Court sagaciously examined various clauses of s. 300 and finally coming to this clause, observed that she must have known that what she did must in all probability cause the death of her baby. But this is qualified by the further requirement that "such act" must be "without any excuse for incurring the risk of causing death...." It is not possible to say that she, in jumping into this well did so without excuse. She feared her husband and she had reason to fear her husband. She was endeavouring to escape from him at dawn and in the panic into which she was thrown when she saw him behind her she jumped into the well. The offence was held not to be murder.

Duty of the Court.

Hence, if a person does an act by which another dies, unless the act comes under any of the 3 limbs of s. 299, the act is not at all an offence u/s 301, 302 or 304, and it may come under any other provisions of law or even be not an offence. Rupinder Singh Sandhu vs. State of Punjab[11] is an example for this, wherein the conviction entered by the High Court u/s 304 Part 2 was altered into s. 325 by the Apex Court. Another example is State of Karnataka vs. Shivalingaiah (supra).

Thus, at first, it is imperative on the part of the court deciding an offence alleging culpable homicide, to find out whether the act comes under s. 299. If the parameters to test this are satisfactory, then see whether any of the clauses to s. 300 is attracted. If no clause is attracted it remains to be culpable homicide not amounting to murder. If any of the clause/s has positive application, it becomes murder. The next step to travel is to find out any of the exception/s is/are attracted. If the facts are exposed to exception/s, the offence will revert back to culpable homicide not amounting to murder. If the offence is culpable homicide not amounting to murder, again another duty is cast upon the court, to find out which Part of s. 304 the offence relates to.

Culpable Homicide Not Amounting To Murder.

Culpable homicide not amounting to murder is of two types. S. 304 Parts 1 and 2. It is always a vexing question which Part of s. 304 it comes to, if it is primarily proved to be an offence u/s 304.  It is not on the basis as to which of the exceptions to s. 300 apply it is decided to which Part of s. 304 the culpable homicide not amounting to murder comes. It is decided purely on the basis whether the offender did posses intention or only knowledge while committing the culpable homicide.

Offences Come Under Part 1 of S. 304.

Let’s see how an offence comes under this Part. This Part has two elements. (1) It relates to causing death with intention of causing death and (2) causing death with the intention of causing such bodily injury as is likely to cause death. Albeit s. 304 is considered a punishment section, a substantive element is inherent in it. The following are considered to be the offences under s. 304 Part 1.

1. Offences coming under 1^st and 2^nd parts of s. 299 (of course, if no clauses to s. 300 are applicable).


2. Culpable homicide attracting ‘Firstly’ to s. 300 with any of the exceptions. The reason is that unless the exception is applied the offence is murder and the element of intention required to attract this Part is underlying.


3. Offences attracting ‘Secondly’ to s. 300 with exception/s. The reason is that, to make an offence of s. 299 a murder, as per this clause, though no intention to cause death or intention to cause such bodily injury as is likely to cause death is required the offender knows that the act done is likely to cause death as he knows the particular bodily condition of the victim. Hence, the knowledge apart, he has the intention to cause such bodily injury as is likely to cause death as far as the victim is concerned. Hence the offence pivots on the intention to cause a particular injury, not on the knowledge. This view is fortified by the opinions in Rahman Samail v Emperor[12] Inder Singh vs. Emperor[13], Jagat Narain vs. Emperor[14] and In Re: Thankaraju[15]. But an equal and strong argument against this view is possible. S. 304 Part 1 requires either the intention to cause death or the intention to cause such bodily injury as is likely to cause death, and as these conditions are specifically omitted in s. 304 Part 2, the provision being a penal provision, we can neither attribute intention in a case of ‘Secondly’ to s. 300 nor add or delete words not provided by the legislature. So the offence of s. 300 ‘Secondly’ with exception would be an offence under s. 304 Part 2. Judicial pronouncement on this line is not noted yet.


4. Culpable homicide attracting ‘Thirdly’ to s. 300 with exceptions. The reason is that the offence is done with the intention of causing such bodily injury and that intended injury was sufficient in the ordinary course to cause death. 2^nd element of s. 304 Part 1 plays role here. Though it needs intention to cause such bodily injury as is likely to cause death, the intention to cause sufficient injury in the ordinary course of nature (in ‘Thirdly’) is of same magnitude with some difference in degree. E.g. Arun Nivalaji More vs. State of Maharashtra[16]

Offences Come Under S. 304 Part 2.

Second category of offences under s. 304 has only one element with 2 segments. The offender should have the knowledge that his act is likely to cause death, but (1) he should not have any intention to cause death AND (2) he should not have any intention to cause such bodily injury as is likely to cause death. The following offences may be regarded as the offences under s. 304 Part 2.

1. Plainly the offences coming under 3^rd part of s. 299, which don’t have any bearing on any of the clauses to s. 300, would come under this Part.


2. The offences come under ‘Fourthly’ to s. 300 with exceptions. The reason is that only the knowledge of the offender that matters here (to become it a murder) and the same is done without having any excuse for incurring the risk of causing the death or causing the injury. The imminently dangerous situation, however grave it is, and though he knows that it must lead to the death, would not be enough to attribute intention to cause death or intention to cause such bodily injury as is likely to cause death. E.g. Mohinder Pal Jolly vs. State of Punjab[17].

In this regard there are divergent opinions by the Supreme Court. In Harendra Nath Mandal vs. State of Bihar[18], it was opined that if the act of the accused falls within any of the clauses 1, 2 and 3 of s. 300 but is covered by any of the five exceptions it will be punishable under the Part 1 of s. 304, and if the act comes under clause 4 of s. 300, it will be punishable under the Part 2 thereof, whereas in State of A P vs. Rayavarapu Punnayya[19], a different opinion was made out that if the question testing the murder (the tests covered vide clauses 1 to 4) is found in the positive, but the case comes, within any of the exceptions enumerated in s. 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the Part 1 of s. 304.

The decision in Harendra Nath Mandal appears to be correct.

When and if there is intent and knowledge then the same would be a case of s. 304 Part 1 and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part 2. -Jagriti Devi vs. State of H.P.[20]

Transfer of Malice.

301 makes the wrong doer punishable, even if he causes the death of a person, either by intending to cause death or with the knowledge that he is likely to cause the death of a different person by doing the act attracting any of the 3 limbs of s. 299. Inviting culpability in this situation is called ‘transferred intent’ or ‘transfer of malice’. Illustrative case on this is State of Rajasthan vs. Ram Kailash[21]. Here the offender is punishable as if he has caused the death of the person he intended or to whom he intended to cause the bodily injury. The offence committed by him (whether culpable homicide not amounting to murder or murder) is to be determined by going through all the tests which are necessary to identify the offence as in any other case.

Of Punishments.

Punishment for murder is provided under s. 302, which is death or imprisonment for life and fine. S. 304 provides for punishment for culpable homicide not amounting to murder. Quantum of punishment varies in relation to Part to which the offence relates to. Part 1 is punishable with life imprisonment or up to ten years and fine. Part 2 is punishable with imprisonment up to 10 years or with fine, or with both.

Mistakes in Sanil’s Case Judgment.

It appears that there are some mistakes in Sanil’s Case Judgment. The DB, it seems, has simply come to the conclusion that the intention to cause death or to cause such injury sufficient to cause death cannot be inferred in the absence of any injury to any vital part of the victim.

Regarding Motive and Intention.

Evidently there was political rivalry, which would constitute motive and there was no evidence of any altercations with the victim during the attack. Of course, motive is different from intention and the former would play a good role in leading the accused to the latter. The appreciation of evidence by the Court in this regard is fine.

As to the Injury.

Very rarely the patient with the Atlanto occipital joint dislocation survives as the ligamentous separation of the spinal column from the skull base occurs. This will cause oedema in brain. The DB opined that intention to cause death or to cause such injury sufficient to cause death cannot be inferred in the absence of any injury to any vital part of the victim. At the same time it has quoted the opinion of the doctor that [I]njury No. 6 and injury No. 46, besides injury No. 1 are sufficient in its ordinary nature to cause death[22].The way in which the injury No. 1 was caused would suggest that the accused intended to inflict that injury. In the opinion part also the Court observed that [T]he opinion given by the Doctor that the punctured wounds and contusions are collectively sufficient in the ordinary course of nature to cause death would be relevant when there is indiscriminate attack with a screw driver, though not on the vital part, causing several deep punctured wounds all over his body.2 Once the opinion of the doctor, i.e., a particular injury is sufficient in the ordinary course to cause death, is found to be true, (unless the court finds that there was no intention to inflict that injury), it attracts ‘Thirdly’ to s. 300. In finding the intention to inflict injury sufficient to cause death in the ordinary course, it is not that important whether the injury was on any vital part or not (in certain cases it might be relevant in coming to such a conclusion). In Arun Nivalaji More vs. State of Maharashtra (supra) it was observed by the Apex Court that [T]he mere fact that ….. the injuries were not caused on vital part of the body may not necessarily take out the offence from the clutches of clause Thirdly of Section 300 IPC. Also see para 9 of Anda vs. The State of Rajasthan.[23], a Four Judges Bench decision.

Hence, it can be concluded that, once it is established that the injury was sufficient then the words of Vivian Bose, J (speaking for the Three Judges Bench) come to play:-

“It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death.

No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.”[24]

In Sanil’s Case the Court has not made any distinction with respect to the above aspect, it did not find that there was no intention to inflict injury No. 1, rather the Court concluded the intention matter based on the vital part theory. The DB didn’t rule out that the accused had intention to cause injury No. 1. Also the Court further observed that [I]t may be the result of a frantic attack on the victim and it is too difficult to draw an inference that injury No. 1 was caused with the knowledge that it may cause death in its ordinary nature[25]. What is required to be identified is (to see if it attracts ‘Thirdly’ to s. 300) not only whether the injury is sufficient in the ordinary course of nature to cause death but also whether the accused intended to inflict that injury, and not whether he had knowledge that it may cause death in the ordinary course.

Nextly, Fracture of 2^nd thoracic vertebra was caused to the victim. Thoracic vertebra is a strong bone, and its fracture requires exertion of high energy. Fracture inflicted to this bone leads to the inference toward the extent of force used by the accused. Sufficient injury does not mean visibly enough to consider it as sufficient in the eye of an ordinary person. Shock and hemorrhage resulting from multiple injuries may also, sometimes be sufficient. (State of A P vs. Rayavarapu Punnayya)[26]

In considering the above two serious and dangerous injuries, besides the multiple injuries all over the body, the court would have asserted whether the accused had intention to inflict those injuries, which were found to be sufficient to cause death in the ordinary course of nature.

As to the Law Applied.

The DB had found that the offence is a culpable homicide. When such a conclusion was arrived at, it had to explain does it comes blatantly u/s 299 sans attracting clause/s to s. 300 or the one attracting any such clause/s. If so it had to test further to find any of the exceptions to s. 300 is attracted. The court did not follow this course. What is more perplexing is that the court found that the accused is to be convicted u/s 304 Part 1 in the absence of any finding as to whether the offence comes either u/s 299 part 1 or 2 or under clause/s ‘Firstly’, ‘Secondly’ or ‘Thirdly’ to s. 300 (with any of the exceptions). The court opined that there was no evidence to infer that there was intention on the part of the accused to cause death or to cause such injury sufficient for death. If so (in terms of the opinion of the DB), the conviction under Part 2 of s. 304 and not the one under Part 1 thereof were proper. And, had the opinion of the Court been that there were no evidence to infer that there was intention on the part of the accused to cause death but there was evidence to infer that the injury caused were likely to cause death (s. 299, 2^nd part) the conviction would be proper.

Precedents Placed Wrongly.    

In Sanil’s Case some precedents are relied upon. One is State of A.P. v. Rayavarapu Punnayya (supra) in which the following were the injuries caused to the victim.

1. Dislocation of distal end of proximal phalanx of le,ft middle finger.


2. Fracture of right radius in its middle.


3. Dislocation of lower end of right ulna.


4. Fracture of lower end of right femur.


5. Fracture of medial malleolus of right tibia.


6. Fracture of lower 1/3 of right fibula.


7. Dislocation of lower end of left ulna.


8. Fracture of upper end of left tibia.


9. Fracture of right patella.

The DB referred to Rayavarapu Punnayya’s case as the one, wherein the Apex Court considered a similar situation that of Sanil’s Case. In that case the legal impact of condition when there is no fatal injury to the vital part of the victim was the issue. The Apex Court placing reliance on ‘Thirdly’ to s. 300 held therein that the High Court was in error in altering the conviction of the accused-respondent from one under s. 302, 302/34, to that under s. 304, Part 2. Hence, I think, the reliance placed on Rayavarapu Punnayya’s case is not balancing.

Another decision relied on by the DB and characterized as a case where the Apex Court had converted the conviction under s. 302 into s. 304 Part I, reducing the sentence of life imprisonment to rigorous imprisonment for ten years following the proposition laid down in Rayavarapu Punnayya's case (supra), is State of M P v. Goloo Raikwar[27]. This observation is absolutely far away from the truth. In Goloo Raikwar’s case the Apex Court followed the proposition in Rayavarapu Punnayya’s case for reversing the decision of the High Court of conversion of conviction of the accused from s. 302 to s. 304 Part 1.

Next decision relied on by the DB is Dilip Kumar Mondal vs. State of West Bengal[28] wherein the Apex Court converted the conviction of the accused from 302 to 304 Part 1 as exception 4 to s. 300 had application. It is nobody’s case that such an exception would apply in Sanil’s Case, rather the Court determined that no case of sudden fight or provocation for the offence was brought out[29].

Mistakes in Baby Joseph’s

The DB had found that the offender had the intention to cause such bodily injury as he knew to be likely to cause the death, as expressed from the following:-

“The nature of injury, the place wherein the injury was inflicted - on a vital part of the victim, the user of a sharp edged knife and the force applied cutting cartilage of ribs 5 to 8 penetrating up to the heart, causing injury to the right atrium of heart, would amply reveal the intention of causing such bodily injury with knowledge that it would likely to cause death would bring the matter within the purview of clause (2) of Section 300 IPC.” (Emphasis added)

When the intention to cause such bodily injury as the offender knows to be likely to cause death and the application of any of the exceptions are found then there is no escape from s. 304 Part 1. In this case, the DB has not given any opinion to this aspect. And the court, it seems that, mistakenly observed that this case would fall under clause ‘Secondly’ to s. 300. Obviously there is nothing to suggest that the offender knew that the injury was likely to cause death on account of any of the bodily infirmity of the victim to fall the case under ‘Secondly’. From the facts it feels that the matter would come under clause ‘Thirdly’ to s. 300.

As to the Legal Position Expounded.

The DB held that the cases which would fall under second and fourth clauses to Section 300 IPC once found to be outside the purview of “murder” on account of any of the exceptions, a conviction under Part II of Section 304 IPC is proper. Hence, the present case would fall under the category of Part II of Section 304 IPC. Had there been a clear finding that this case falls under s. 300 ‘Secondly’ on account of the intentional infliction of injury by the offender as is likely to cause death as he knew about any of the frailties of the victim this proposition would have been correct.

Regarding the Precedents Applied.

In Baby Joseph’s Case, the DB applied some precedents. Two of them are Satish Narayan Sawant vs. State of Goa^[30] and Murlidhar Shivram Patekar vs. State of Maharashtra^[31]. In both these cases the Apex Court found that the accused were entitled to the benefit of Part 2 of s. 304. The reason for doing so was the intention for causing death was conspicuously ruled out. The DB also cited the decision in Dilip Kumar Mondal vs. State of West Bengal[32], wherein the Apex Court converted the conviction of the accused from s. 302 to s. 304 Part 1 by applying exception 4 to s. 300. In this case though the Apex Court did not make any assertion as to the intention of the offender to cause death, the discussion of evidence reveals such and intention.

Hence, it gives the impression that the DB has overlooked certain precedents.

It is needless to say that the prosecutors concerned are also more or less liable for the mistakes.

Conclusion

The purpose of this write-up is not to form an opinion as to the nature of offences in both the above mentioned cases or to say whether the injuries caused by the accused on the victims would be enough to come to a conclusion that either the accused bore required intention of causing death or had the intention to inflict such injury sufficient to cause death. That responsibility goes to the next appellate court; also, obviously, I am not supposed to do so. What is intended here is to analyze whether the Court has taken the entire materials properly into account and was it correct in juxtaposing the proved facts with the law in its proper perspective in the settings of the law relating to the subject. And also to examine the correct procedure the courts have to adopt in a cases of culpable homicide.

For the reasons and assessments made above, it seems that the judgment in Sanil’s Case (supra) does not convey the correct course a court has to follow in deciding a case alleging culpable homicide, and the proposition of law as to the culpable homicide not amounting to murder made in Baby Joseph’s Case (supra) judgment is incorrect, humbly opine.

Abdul Khader Kunju S is an Asst. Public Prosecutor, Alappuzha.(Former Public Prosecutor to NIA)

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

[1]https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Speeches/lcj_kenya_clc_120907.pdf   accessed on 8/8/18

[2]  MANU/KE/1733/2018

[3]  2018 (3) KLT SN 61

[4] (2004) 9 SCC 37

[5]   (2006) 11 SCC 444

[6]   AIR 1958 SC 465

[7]   1957 Cri LJ 591

[8]   AIR 1988 SC 115

[9]   AIR 2006 SC 2886

[10]                    AIR 1940 All 486

[11]                    2018 Cri LJ 2935

[12] A.I.R. 1939 Lah. 245

^[13] AIR 1929 LAH 157

^[14] AIR 1945 Oudh 31

[15] 1981 LW (Crl) 227

[16]                    2007 Cri LJ 3281

[17]                    AIR 1979 SC 577

[18]                    1993 Cri LJ 2830

[19]                    (1976) 4 SCC 382

[20]      AIR 2009 SC 2869

[21]      AIR 2016 SC 634

[22] Para 15

[23] AIR 1966 SC 148

[24] Virsa Singh vs. The State of Punjab (AIR 1958 SC 465)

[25] Para 16

[26]  (1976) 4 SCC 382

[27]    (2016) 12 SCC 139

[28]     (2015) 3 SCC 433

[29]   Para 23

[30] (2009) 17 SCC 724

[31] 2015) 1 SCC 694

[32] (2015) 3 SCC 433