and ‘knowledge’ of the accused are subjective and invisible states
of mind and their existence has to be gathered from the
circumstances, such as the weapon used, the ferocity of attack,
multiplicity of injuries and all other surrounding circumstances.
The framers of the Code designedly used the words ‘intention’ and
‘knowledge’ and it is accepted that the knowledge of the
consequences which may result in doing an act is not the same
thing as the intention that such consequences should ensue.
Firstly, when an act is done by a person, it is presumed that he
must have been aware that certain specified harmful consequences
would or could follow. But that knowledge is bare awareness and
not the same thing as intention that such consequences should
ensue. As compared to ‘knowledge’, ‘intention’ requires something
more than the mere foresight of the consequences, namely the
purposeful doing of a thing to achieve a particular end.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 46 OF 2016
NANKAUNOO V STATE OF U.P.
Citation;(2016) 3 SCC 317
R. BANUMATHI, J.
2. This appeal arises out of the judgment dated
16.05.2013 passed by the High Court of Judicature at Allahabad,
Lucknow Bench in Criminal Appeal No.775 of 1981, whereby the
High Court affirmed the conviction of the appellant-accused under
Section 302 IPC and also sentence of imprisonment for life imposed
on him.
3. Briefly stated case of the prosecution is as under:- DeceasedChhedi
Lal was running a barber shop in Kurari Khurd Market.
On 18.02.1981, the appellant visited the shop of Chhedi Lal and
asked for a haircut. An altercation took place between the two
when appellant insisted the deceased for haircut claiming
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preference over other customers; but the deceased-Chhedi Lal
declined his demand. The appellant felt insulted and left the
barber shop threatening the deceased. At around 5.00 p.m.,
deceased-Chhedi Lal closed the shop and went back home. Later
at 6.00 p.m., the deceased went towards the canal lying in the
western side of the village abadi to answer the nature’s call. When
the deceased reached near the eastern mend of the grove of
Ishwari, the appellant emerged from the northern side carrying a
pistol in his hand and threatened the deceased as he had insulted
the appellant in the market and that he would not spare him alive.
The deceased fled towards the west to save himself and appellant
fired from his pistol which hit the deceased on his left thigh and he
had fallen down. The incident was witnessed by Janoo-PW2,
Udan-PW3 and Muneshwar. Also father of the deceased namely
Kishore-PW1 and his son-Ram Pal saw the incident when they were
returning from their field. On the alarm raised by the deceased
and the witnesses, the appellant fled away from the scene. The
deceased was taken on a cot to his house and on the narration of
incident by Kishore-the father of the deceased, the complaint was
written by Shiv Pujan Singh. Thereafter, deceased was taken to
Police Station-Achal Ganj, where FIR (Ex. Ka-1) bearing Crime
2Page 3
No.37/81 dated 18.02.1981 was registered against the appellant
under Section 307 IPC. SI-Ravinder Prasad Yadav (PW-6) recorded
the statement of Chhedi Lal who was lying injured on the
kharkhara outside the Police Station and the deceased was sent to
Achal Ganj Hospital from where he was referred to District Hospital
Unnao; but the deceased died on the way to the hospital. FIR was
altered from Section 307 IPC to Section 302 IPC and further
investigation was taken up. After inquest by the police, post
mortem was conducted by Dr. J.N. Bajpai (PW-4) at District
Hospital Unnao on 19.02.1981 at 3.30 p.m. PW-4-Dr. Bajpai noted
a gunshot would of entry ½” x ½” on the back and inner part of left
thigh and six gunshot wounds of exit each 1/3” x 1/3” in size in
front and middle left thigh. Dr. J. N. Bajpai (PW-4) opined that the
death was due to shock and hemorrhage due to injuries of firearm.
After completion of investigation, chargesheet was filed against the
appellant under Section 302 IPC. After committal of the case to the
Sessions Court, charge was framed against the appellant under
Section 302 IPC.
4. To bring home the guilt of the accused-appellant,
prosecution has examined in all eight witnesses and exhibited the
material object on record. The incriminating evidence and
3Page 4
circumstances were put to the appellant under Section 313 Cr.P.C.
and the accused denied all of them and pleaded that he was falsely
implicated. Upon consideration of the evidence, the Sessions
Judge, Unnao found the appellant guilty of the offence under
Section 302 IPC and sentenced him to undergo imprisonment for
life. Being aggrieved, the appellant preferred appeal before the
High Court which was dismissed by the impugned judgment.
5. Learned counsel for the appellant Mr. Kapil Arora
submitted that the prosecution could not have relied on the
testimony of PWs 1, 2 and 3 as PW-1-Kishore, father of the
deceased, is an interested witness and PWs 2 and 3 are the
inimical interested witnesses and the trial court was not right in
basing the conviction of the appellant on the testimony PWs 1 to 3
and the High Court erred in confirming the conviction. It was
further contended that the courts below failed to take note of the
fact that the alleged weapon of murder ‘countrymade pistol’ was
never recovered by the investigating officer and in the absence of
clear connection of the weapon used for crime and resultant injury,
the prosecution cannot be said to have proved its case beyond
reasonable doubt.
4Page 5
6. Per contra, learned counsel for the respondent-State
Ms. Pragati Neekhra submitted that witnesses have consistently
deposed that the appellant threatened the deceased that he would
not be spared alive and thereafter fired shot from his loaded pistol
and medical evidence amply corroborates the version of the eye
witnesses and the courts below rightly convicted the appellant
under Section 302 IPC.
7. We have carefully considered the rival contentions and
perused the impugned judgment and the material on record.
8. PW-1 Kishore, PW-2 Janoo and PW-3 Udan have given
consistent version about the occurrence that the appellant fired at
the deceased-Chhedi Lal with ‘countrymade pistol’ which he was
carrying in his hand. Despite the searching cross-examination,
nothing substantial was elicited from the witnesses to discredit
their testimony. In the context of unimpeachable oral evidence
coupled with the medical evidence that deceased-Chhedi Lal met
with homicidal death due to gunshot injuries, trial court rightly
held that the appellant was responsible for the death of Chhedi Lal.
High Court rightly agreed with the finding of the trial court that
PWs 1 to 3 were reliable witnesses. Having heard the learned
counsel for the parties and on going through the record, we do not
5Page 6
find any reason to disbelieve the evidence of eye witnesses-PWs 2
and 3.
9. Learned counsel for the appellant contended that the
courts below failed to take note of the fact that the alleged weapon
‘countrymade pistol’ was never recovered by the investigating
officer and in the absence of any clear connection between the
weapon used for crime and ballistic report and resultant injury, the
prosecution cannot be said to have established the guilt of the
appellant. In the light of unimpeachable oral evidence which is
amply corroborated by the medical evidence, non-recovery of
‘countrymade pistol’ does not materially affect the case of the
prosecution. In a case of this nature, any omission on the part of
the investigating officer cannot go against the prosecution case.
Story of the prosecution is to be examined dehors such omission by
the investigating agency. Otherwise, it would shake the confidence
of the people not merely in the law enforcing agency but also in the
administration of justice.
10. Learned counsel for the appellant then contended that
the gunshot injury was on the lower part of the left thigh which is a
non-vital organ and it cannot be said that the appellant intended to
cause the death of the deceased and therefore the conviction of the
6Page 7
appellant under Section 302 IPC is not sustainable. In the light of
the above contention, the question falling for consideration is
whether the conviction of the appellant under Section 302 IPC is
sustainable.
11. Intention is different from motive. It is the intention
with which the act is done that makes a difference in arriving at a
conclusion whether the offence is culpable homicide or murder.
The third clause of Section 300 IPC consists of two parts. Under
the first part it must be proved that there was an intention to inflict
the injury that is present and under the second part it must be
proved that the injury was sufficient in the ordinary course of
nature to cause death. Considering the clause thirdly of Section
300 IPC and reiterating the principles in Virsa Singh’s case, in Jai
Prakash v. State (Delhi Administration) (1991) 2 SCC 32, para (12),
this Court held as under:-
“12. Referring to these observations, Division Bench of this Court
in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC p.
620, para 7)
“These observations of Vivian Bose, J. have become
locus classicus. The test laid down in Virsa Singh case,
AIR 1958 SC 465 for the applicability of Clause Thirdly
is now ingrained in our legal system and has become
part of the rule of law.”
The Division Bench also further held that the decision in Virsa
Singh case AIR 1958 SC 465 has throughout been followed as
laying down the guiding principles. In both these cases it is clearly
laid down that the prosecution must prove (1) that the body injury
is present, (2) that the injury is sufficient in the ordinary course of
nature to cause death, (3) that the accused intended to inflict that
particular injury that is to say it was not accidental or
unintentional or that some other kind of injury was intended. In
other words Clause Thirdly consists of two parts. The first part is
that there was an intention to inflict the injury that is found to be
present and the second part that the said injury is sufficient to
cause death in the ordinary course of nature. Under the first part
the prosecution has to prove from the given facts and
circumstances that the intention of the accused was to cause that
particular injury. Whereas the second part whether it was
sufficient to cause death is an objective enquiry and it is a matter
of inference or deduction from the particulars of the injury. The
language of Clause Thirdly of Section 300 speaks of intention at
two places and in each the sequence is to be established by the
prosecution before the case can fall in that clause. The ‘intention’
and ‘knowledge’ of the accused are subjective and invisible states
of mind and their existence has to be gathered from the
circumstances, such as the weapon used, the ferocity of attack,
multiplicity of injuries and all other surrounding circumstances.
The framers of the Code designedly used the words ‘intention’ and
‘knowledge’ and it is accepted that the knowledge of the
consequences which may result in doing an act is not the same
thing as the intention that such consequences should ensue.
Firstly, when an act is done by a person, it is presumed that he
must have been aware that certain specified harmful consequences
would or could follow. But that knowledge is bare awareness and
not the same thing as intention that such consequences should
ensue. As compared to ‘knowledge’, ‘intention’ requires something
more than the mere foresight of the consequences, namely the
purposeful doing of a thing to achieve a particular end.”
12. The emphasis in clause three of Section 300 IPC is on
the sufficiency of the injury in the ordinary course of nature to
cause death. The sufficiency is the high probability of death in the
ordinary course of nature. When the sufficiency exists and death
follows, causing of such injury is intended and causing of such
offence is murder. For ascertaining the sufficiency of the injury,
sometimes the nature of the weapon used, sometimes the part of
the body on which the injury is caused and sometimes both are
8Page 9
relevant. Depending on the nature of weapon used and situs of the
injury, in some cases, the sufficiency of injury to cause death in the
ordinary course of nature must be proved and cannot be inferred
from the fact that death has, in fact, taken place.
13. Keeping in view the above principles, when we examine
the facts of the present case, the deceased sustained gunshot
wound of entry 1-1/2” x 1-1/2” on the back and inner part of left
thigh, six gunshot wounds of exit each 1/3” x 1/3” in size in front
and middle left thigh. Due to the occurrence in the morning at the
barber shop of the deceased, the appellant emerged from the
northern side of the grove carrying pistol in his hand and fired at
the deceased. The weapon used and the manner in which attack
was made and the injury was inflicted due to premeditation clearly
establish that the appellant intended to cause the injury. Once it
is established that the accused intentionally inflicted the injury,
then the offence would be murder, if it is sufficient in the ordinary
course of nature to cause the death. We find substance in the
contention of the learned counsel for the appellant the injury was
on the inner part of left thigh, which is the non-vital organ. Having
regard to the facts and circumstances of the case that the gunshot
injury was caused in the inner part of left thigh, the sufficiency of
9Page 10
injury to cause death must be proved and cannot be inferred from
the fact that death has taken place. But the prosecution has not
elicited from the doctors that the gunshot injury on the inner part
of left thigh caused rupture of any important blood vessel and that
it was sufficient in the ordinary course of nature to cause the
death. Keeping in view the situs and nature of injury and in the
absence of evidence elicited from the doctor that the said injury
was sufficient in the ordinary course of nature to cause death, we
are of the view that it is a fit case where the conviction of the
appellant under Section 302 IPC should be under Section 304 Part
1 IPC.
14. In the result, the conviction of the appellant under
Section 302 IPC is modified as conviction under Section 304 Part
1 IPC and the appellant is sentenced to undergo ten years rigorous
imprisonment and the appeal is partly allowed.
…………………….…CJI.
(T.S. THAKUR)
………………………….J.
(A.K. SIKRI)
..………………………..J.
(R. BANUMATHI)
New Delhi;
January 19, 2016
10
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