STATE OF ANDHRA PRADESH versus RAYAVARAPU PUNNAYYA & ANOTHER

ST ATE OF ANDHRA PRADESH

RAYAVARAPU PUNNAYYA & ANOTHER

September 15. 1976

[R. S. SARKARIA AND S. MURTAZA FAZAL ALI, .IJ.J

Penal Code--Ss. 299 an4 300-Cu/pable homicide not amo1111ti11g to murder and Murder-Disti11ctio11-Tests to be applied in each case-s. 300, Thirdly i.P.C.-Scope of

Jn the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' 1'.ts specie. All 'murder' is 'culpable homicide' but not vice-versa. Speakinr .ienerally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable .homicide not amounting to murder'. For the purpose of fixing punishment, pro-portionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable ·homicide of the first degree. This is the gravest form of culpable homicide, ·which is defined in s_. 300 as 'murder'. The second may be termed as 'culpable .homicide of the second degree'. This is punishable under the Ist part of s. 304. Then there is 'culpable homicide of the third degree'. This is the lowest type .of culpable homicide and the punishment provided for it is, also, the lowest _among the punishments provided for the three grades. Culpable homicide of •his degree is punishable under the second Part of s. 304. [606B-D]

Clause (b) of s. 299 corresponds with ell. (2) and (3) of s. 300. The distinguishing feature of the mens rea requisite under clause (2) is the know-ledge possessed by the offender regarding the particular victim being in such peculiar condition or state of health that the intentional harm caused to him is )ikely to be fatal, notwithstanding the fact that such harm would not m the ordinary way of p.ature be sufficient to cause death of person in normal health -0r condition. The 'intention to cause death' is not an essential requirement of ~lause (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 s. 300.

[607C-DJ

Instances of cases falling under clause (2) of s. 300 can be where the· assailant causes death by first 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 oo result <1f 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 frnilty of the victim, nor an intention to cause death or bodily injury suffi-cient 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. Clause (b) of s. 299 does not postulate any such knowledge on the part of the offender. (607£-F]

In Clause (3) of s. 300, instead of the words 'likely to cause death' occur-ring tn the corresponding clause (b) of s. 299, the words "sufficient ia the ordinary course of nature" have been used. The distinction between bodily injury likely to cause death and bodily injury .sufficient in the. ordinary course of nature to cause death, is fine but real, &nd, if overlooked, may result in miscarriage of justice. The diffe-rence is one of the degree of probability of death resulting from the intend-ed bodily injury. The word "likely" in s. 299(b) conveys the sense of of 'probable' as distinguished from mere possibility. The words bodily injury ...... sufficient in the ordinary course of nature to cause death' mean th:it dcatb will be the 'most probable' result of the injury, having regard to the prdinary course of nature. [607G-HJ

. For cases to fall within clause (3 ), it is not necessary that the offender" !n!ended t? .ca~se deat~, so long as death ensues from the intentional bodily m1ury or m1unes sufficient to cause death in the ordinary course of nature. [608B]

Clause (c) of s. 299 and clause (4) of s. 300 both require knowledge of the probability of the act causing death. Clause ( 4) of s. 300 would be applica·ble where the knowledge of the offender as to the probability of death of person or persons in general-as distinguished from particular person or persons-being caused from his imminently dangerous act, approximates to practical certainity. 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. [608F-Gl

Whenever court is confronted with the question whether the vlfencc is 'murder' or 'culpable homicide not amounting to murder', on the facts of case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the ~ccuscd has done an a-ct by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death. leads to the second stage for considering whether that act of the ::iccused amounts to 'culpable homicide' as defined in s. 299. lf the answer to this question is prtma facie found in the affirmative, the stage for considering the operation of s. 300, Penal Code. is reached. This is the stage at which the Court should determine whether the fa-cts proved by the prosecution bring the case within the ambit of any of the four clauses of the Jefinition of 'murder' containd in s. 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punish-able under the first or the second part of s. 304, depending. respectively, 011 whether the second or the third clause of s. 299 is applicable. If this ques-tion is found in the positive, but the case comes within any of the Excep-tions enumerated in s. 300, the offence would still be 'culpable homicide not a-mounting to murder', punishable under the First Part of s. 304. Penal Code. [608H; 609A-C]

Rajwant and anr. v. Slate of Kera/a AlR 1966 SC 1874. Virsa Si111;/1. v. The State of Punjab [1958] SCR 1495 and Anda v. State of Raja.11/ian AIR 1966 S.C. 148 followed.

In the instant case the prosecution i:·lleged that in furtherance of political feuds of the village the accused followed the deceased in the bus when he went tn neighbouring place, chased him when he got off the bus, an<l indis-criminately nnunded the legs and arms of the deceased, who was 55 years ol<l, with heavy sticks. The deceased succumbed to his injuries on the follow-ing n1orning.

The trial court held that the ca>e was covered by clause 'thirdly' of '· 300 and convicted them under s. 302 and s. 302 read with s. 34. Indian Pcm1l Code. In appeal, the High Court altered the conviction. to. one. under s. 304 Pait II, on the grounds that (i) there was no premedttnl!'?n m the attack; (ii) injuries were not on any vital part of the body; (111) there WZ.'3 no compound fracture resulting in heavy haemorrhage; (iv) death occurred due to shock and not due to haemorrhage and (v) though the accused had kf'.ow-ledge while inflicting injuries that they were likely to cause death, they might not have had the knowledge that they were so imminently d~n~erous that in all probability their acts would result in such injuries as are likely to cause the death.

In appeal to this Court the appellant-State contended that t~e case fell unde; s. 300(3) I.P.C., while the accused sought to support the 1udgmcnt of the High Court.

Allowing the apper..f.

HELD : ( l) It. is not corre~t to say that the attack was not premeditated or pre-planned. The High Court itself .found that the injuries were caused in furtherance of the common intention of the respondents, and that there-fore section 34 was applicable. [61 !B] (2) The High Court may be right in its finding that since the injuries ware not on vital p<:.·rts, the accused had no intention to cause death but that finding-assuming it to be correct---Ooes not necessarily take the case out of the definition of 'murder'. The crux of the matter is whether the facts established bring the case within clause 'thirdly' of s. 300. This ques-tion further narrows down into consideration of the two-fold issue; (i) whether the bodily injuries found on the deceased were intentionally inflicted by the accused ? and (ii) If so, were they sufficient to cause death in the ordinary course of nature ? If both these elements are satisfactorily estab-.Jished, the offence will be 'murder', irrespective of the fact whether an mten-tion on the part of the accused to cause death, had or had not been proved. [612 C-E]

Jn the instant case, the formidable weapons used by the accused in the beating the savage ma-nner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, the callous conduct of the accused in persisting in th() assault even against the protest of feeling bystanders-all, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion tha.t the injuries caused by the accused to the deceased were intentionally inflicted, and were not accidental. Thus the presence of the first element of clause 'thirdly' of s. 300 had been cogently aMd convincingly established. [613 B-C]

(3) The medical evidence shows that there were compound fractures and that there was heavy haemorrha-ge requiring blood transfusion. Such injuries a•e ordinarily danl!erous. f613Dl (4) The medical evidence clearly establishes that the c3use of death was shock and haemorrhage due to multiple injuries which were cumulatviely sufficient to c&use d""th in the ordinary course of nature. [612B-Cj

(5) The mere fact that the beating was designedly confined by the assail-ants to the legs and arms or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death, will not exclude the applica.tion of clause 'thirdly' of s. 300. The expression 'bodily injury' in clause 'thirdly' includes also its plural, so that the clause would cover case where all the injuries intentionally caused by the accused are c11mulatively sufficient to cause the death in the ordinary course of na.ture, even if no"e of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall under clause 'thirdly' ef s. 300. All the conditions which are pre-requisite for the applicability ef this clause have been established a.nd the offence committed by accused in the instant case was 'murder'. [614G-HJ

There is no escape from the conclusion that the offence committed by the acc>1sed was murder notwithstanding the fact that the intention of the accused to cause death has not been shown beyond doubt. [613F]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 214 of 1971.

(Appeal by Special Leave from the judgment and Order dated 27-7· 1970 of the Andhra Pradesh High Court in Criminal Appeals Nos. 26 and 27 /69). 7 -1234SCI/76

P. Plirmeswara Rao and G. Narayana Rao for the Appel'lant.

A. Subba Rao for the Respondents.

The Judgment of the Court was delivered by

SARKARIA, J. This appeal by special leave is directed against judgment of the High Court of Andhra Pradesh. It arises out of these facts.

l n Rompicherla village, there were factions belonging to three major communities viz., Reddys, Kammas and Bhatrajus. Rayavarapu (Respondent No. 1 herein) was the leader of Karnma faction, w~ile Chopparapu Subbareddi was the leader of the Reddys. In politics, the Reddys were supporting the Congress Party, while Kammas were sup-porters of Swataatra Party. There was bad blood between the two factions which were proceeded against under s. 107, Cr. P. C. In the Panchyat elections of 1954, clash took place between the two parties. member of the Kamma faction was murdered. Consequently, nine persons belonging to the Reddy faction were prosecuted for that mur-der. Other incidents also took place in which these warring factions were involved. So much so, punitive police force was stationed in this village to keep the peace during the period from March 1966 to September 1967. Sarikonda Kotamrajn, the deceased person in the instant case, was the leader of Bhatrajus. In order to devise protec-tive measures against the onslaughts of their opponents, the Bhatrajus held meeting at the house of the deceased, wherein they resolved to defend themselves against the aggressive actions of the respondents· and their party-men. PW 1, ·member of Bhatrajus faction has cattle shed. · The passage to this cattle-shed was blocked by the other party. The deceased took PW 1 to Police Station Nekarikal and got report lodged there. On July 22, 1968, the Sub-Inspector of Police came to the village and inspected the disputed wall in the presence of the parties. The Sub-Inspector went away directing both the parties to come to the Police Station on the following morning so that com-promise might be effected ..

Another case arising out of report made to the police by one Kallam Kotireddi against Accused 2 and 3 and another in respect of offences under ss. 324, 323 and 325, Penal Code was pending before Magistrate at Narasaraopet and the neJ(t date for hearing fixed in that case was July 23, 1968.

On the morning of July 23, 1968, at about 6-30 a.m., PWs 1, 2 and the dece•ased boarded Bus No. AP 22607 at Rompicherla for going to Nekarikal. Some minutes later, Accused 1 to 5 (hereinafter referred to as A-1, A2, A3, A4 and AS) also got into the same bus. The accused had obtained tickets for proceeding to Narasaraopet. When the bus stopped at Nekarikal Cross Roads, at about 7-30 a.m., the deceased and his companions al\ghted for going to the Police Station. The five accused also got down. The deceased and PW 1 went towards Choultry run by PW 4, While PW 2 went to the road-H side to ease himself. A-1 and A2 went towards the Coffee Hotel situate near the Choultry. From there, they picked up heavy sticks and went after the deceased into the Choultrv. On seeing the accus-ed, PW 1 ran away towards hut nearby. -The deceased stood up.

.. [r ]

}fe was an old man of 55 years. He was not allowed to run. Des-pite the entreaties made by the deceased with folded hands, A-1 and -2 indiscriminately pounded the legs and arms of the deceased . . One of the by-standers, PW 6, asked the assailants as to why they were mercilessly beating human being, as if he were buffalo. The assai-·1ants angrily retorted that the witness was nobody to question them and continued the beating till the deceased became unconscious. Tho accused then threw their sticks at the spot, boarded another vehicle, and went away. The occurrence was witnessed by PWs 1 to 7. The victim was removed by PW 8 to Narasaraopet Hospital in tempo-rar. There, at about 8.45 a.m., Doctor Konda Reddy examined him .;md found 19 injuries, out of which, no less than 9 were (internally) .found to be grievous. They were :

1. Dislocation of distal end of proximal phalanx of left 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. Fracturn 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.

Finding the condition of the injured serious, the Doctor sent information to the Judicial Magistrate for getting his dying declaration -recorded. On Dr. K. Reddy's advice, the deceased was immediately :-removed to the Guntur Hospital where he was examined and given medical aid by Dr. Sastri. His dying declaration, Ex. P-5, was also recorded there by Magistrate (PW 10) at about 8.05 p.m. The .deceased, however, succumbed to his injuries at about 4.40 a.m. on July 24, 1968, despite medical aid.

The autopsy was conducted by Dr. P. S. Sarojini (PW 12) in -whose opinion, the injuries found on the deceased were cummulatively sufficient to cause death in the ordinary course of nature. The cause .of death, according to the Doctor, was· shock and haemorrhage result-.jng from multiple injuries.

The trial iudge convicted A-1 and A-2 under s. 302 as well as under s. 302 read with s .. 34, Penal Code arid sentenced each of them ·to imprisonment for life.

On appeal by the convicts, the High Court altered their conviction --to one under s. 304, Pt. II, Penal Code and reduced their sentence to 'five years rigorous imprisonment, each.

Aggrieved by the judgment of the High Court, the State has come in appeal to this. Court after obtaining special leave.

A-1, Rayavarappu Punnayya (Respondent 1) has, as reported by ·his Counsel, died during the pendency of this appeal. This informa--tion is not contradicted by the Counsel appearing for the State. This

appeal therefore, in so far as it relates to A-1, abates. against A-2 (Respondent 2), however, survives for decision.

The appeal

The principal question that falls to be considered in this appeal is, whether the offence disclosed by the facts and circumstances establish-ed by the prosecution against the respondent, is 'murder' or 'culpable homicide not amounting to murder'.

In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-vcrsa. Speaking generally, 'culpable homicide' sans 'special charac-teristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degress of cul-pable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined ins. 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the 1 gt part of s. 304. Then, there is 'culpable homicide of the third .degree.' This is the lowest type of culpable homicide and the punishment pro-vided for it is, also, the lowest among the punishme;its provided for the three grades. Culpable homicide of this degree is punishable under the second Part of s. 304.

The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than cen-tury. 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 minutae abstractions. The safest way of approach to the interpretation and application of these provi-sions seems to be to keep in focus the key words used in the various clauses of ss. 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

KNOWLEDGE

Clause (b) of s. 299 corresponds with els. (2) and (3) of s. 300. The distinguishing feature of the mens rea requisite under cl. (2) is the knowledge possessed by the offender regarding the particular victim being in such peculiar condition or state of health that the intentional !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 person jn normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of cl. (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 cl. (2) is b01•11e out by illustra-tion (b) appended to s. 300.

Clause (b) of s. 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under cl. (2) of ·s. 300 can be where the assailant causes death by fist blow inten-tionally 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 result of the rupture of the liver, or spleen or the failure of the he•art, 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 wilJ not be murder, even if the injury which caused the death, was intentionally :given.

In clause (3) of s. 300, instead of the words 'likely to cause death' occurring in the corresponding cl. (b) of s. 299, the words "sufficient in the ordinary course of nature" have been used. Obvious-ly, the distinction lies between bodily injury likely to cause death :and 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 of1 justice. The difference between cl. (b) of s. 299 and cl. (3) of s. 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it \s the degree of probability of death which determines whether culpa-ble homicide is of the gravest, medium or the lowest degree. The word "likely" in cl. (b) of s. 299 conveys the sense of 'probable' as ,distinguished from mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean that

'likely to cause 299, the words to cause death of nature to cause

death w!ll be the "most probable" result of the injury having regard to· the ordmary course of nature.

. For cases to fall within cl. ( 3), it is not necessary that the offender-mtended to cause death, so long as death ensues from the intentional.. bodily injury or injurie's sufficient to cause death in the ordinary course. of nature. Rajwant and anr. v. State of Kera/a(') is an apt illustra-· tion of this point.

In Virsa Singh v. The State of Punjab, (2) Vivian Bose J. speaking for this Court, explained the meaning· and scope of Clause (3), thus (at p. 1500) :

"The prosecution must prove the following facts before· it can bring case under s. 300, 3rdly'. First, it must esta-blish, quite objectively, that bodily injury 1s present;. secondly the nature of the injury must be proved. These are purely objective investigations. 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 fur-ther, 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 thd intention of the offender." Thus according to the rule laid down in Virsa Sing Ii' s case (supra) even if the intention of accused was limited to the infliction of bodily injury sufficient to cau'se death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be murder. Illustration ( c) appended to s. 300 clearly brings out this point.

Clause ( c) of s. 299 and cl. ( 4) of s. 300 both require knowledge of the probability of the 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 cl. ( 4) of s. 300 would be applicable where the knowledge of the offender as to the probability of death of person or persons in general-as distinguished from particular person or persons-being caused from his imminently daflgerous act, approximates to practical certainty. Such lmow-ledge on the part of the offender must be of the highest degree of proba. bility, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

From the above conspectus, it emerges that whenever court is confronted with the question whether the offence is 'murder' or 'culpa-ble homicide not amounting to murder,' on 1the facts of case, it will'

(I) A.l.R. 1966 S.C. 1874.

(2) [1958) S.C.R. 1495.

·"'\...

be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as 9efined in s. 299. If the answer to thi~ question is prim acie found 111 the affinnative, the stage for considering the operation of s. 300, Penal Code is reached. This is ~he stage at which the Court should d}!t$'.rrnip£ wh~th~r the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' contained in s. 300. If the answer to this question is in the negative the offence would be 'culpab:e homiCide not amounting to murder', punishable under the first or the second part of .s .. 304, depen-ding, respectively, on whether the second or the third Clause of s. 299 is applicable. If this question 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 First Part of s. 304, Penal Code. .

The. above are only broad guidelines and hot cast-iron imperatives. In m.ost , cases, their observance will facilitate the task of the court. But sometimes the facts are so inter-twined and the second and the third stages i;o telescoped into each other, that it may not be conve-nient ·to give separate treatment to the matters involved in the second and third stages.

Now let us consider the problem before us in the light of the above enunciation.

It is not disputed that the death of the deceased was caused by the accused, there being direct causal connection between the beating administered by Ac 1 and A-2 to the deceased and his death. The accused confined the beating to the legs and arms of the deceased, and therefore, it can be said that they perhaps had no "intention to cause death" within the contemplation clause (a) of s. 299 or cl. ( 1) of s. 300. It is nobody's case that the instant case falls within cl. ( 4) of s. 300. This clause, as already noticed, is designed for that class of cases where the act of the offender is not directed against any particu-lar individual but there is in his act that recklessness and risk of immi-nent danger, knowingly and unjustifiably incurred, which is directed against the man in general, and places the lives of many in jeopardy. Indeed, in all fairness, Counsel for the appellant has not contended that the case would f::ill under cl. ( 4) of s. 300. His sole contention is that. even if the accused had no intention to cause death, the facts established fully bring the case within the purview of cl. (3) of 5. 300 and as such the offence committed is murder and nothing less. Jn support of this contention reference has been made to Anda v. State .of Rajasthan(') and Rajwani Singh v. State of Kera/a (supra).

As against this, Counsel for the respondent subJpits that since the accused 'selected only non-vital parts of the body· of the deceased, for 0) A.J.R. 1966 S.C. 148.

inflicting the injuries, they could not be attributed the mens rea requi-site for bringing the case under clause (3) of s. 300; at the most, it could be said· that they had knowledge that the injuries inflicted by them were likely to cause death and as such the case falls within the third clause of s. 299, and the offence committed was only "culpable homicide not amounting to murder", punishable under s. 304, Part II. Couns~I has thus tried to support the reasonin·g of the High Colll1.

The trial Court, 'JS already noticed, had convicted the respondent of the offence of murder. It applied the rule in Virsa Singlt's ca'c (supra). and the ratio of Anda v. State and held that the case was clearly covered by clause Thirdly of s. 300. The High Court has dis-agreed with the trail Court and held that the offence was not murder but one under s. 304, Pt. IL

The High Co.mt reached this conclusion on the following reason-.ing :

(a) "There was no premeditation in the attack. It was almost an impulsive act". ( b) "Though there were 21 injuries, they were all on the arms and legs and not on the head or other vital parts of the body." ( c) "There was no compound fracture to result in heavy haemorrhage; there must have been some bleeding". (which) "according to PWI might have stoppl:d with in about half an hour to one hour." ( d) "Death that had occurred 21 hours later, could have been only due to shock and not due to haemorrhage al3o, as stated by PW 12. . . who conducted the autopsy. This reference is strengthened by the evi-dence of PW 26 who says that the patient was under shock and he was treating him for shock by sending fluids through his vein. From the injuries inflicted the accused therefore could not have intended to cause death."

( e) "A I and A2 had beaten the deceased with heavy sticks. These beatings had resulted in fracture of the right radius, right femur, right tibia, right fibula, right patalla and left tibia and dislocation of .... , there-G fore considerable force must have been used white inflicting the blows. Accused l and 2 should have therefore inflicted these injuries with the knowled.ge that they are likely, by so beating, to cause the death of the deceased, though they might not have had the knowled11:e that they were so imminently dangerous ·that in all probability their acts would result in such injuries as are likely to cause the death. The offence ... is therefore culpable homicide falling under .... s. 299, I.P.C. punishable under s. 304 Part II and not murder."

With respect, we are unable to appreciate and accept thi.s reas:m~ng. Jt .appears to us to be inconsistent, erroneous and largely specuiatlve.

To say that the attack was not premeditated or preplann~d is ~ot '°1ily factually incorrect but also at war with High Court's own findmg :that the injuries were caused to the deceased in furtherance of the ,common intention of A-1 and A-2 and therefore, s. 34, I.P.C. was .applicable. Further, the finding that there was no compound fractur~, .no heavy haemorrhage and the cause of the death was shock, only, 1s .not in accord with the evidence on the record. The best person to speak about haemorrhage and the cause of the death was Dr. P. S . . Sarojini (PW 12) who had conducted the autopsy. She testified that :the cause of death of the deceased was "shock and haemorrhage due to multiple injuries". This categorical opinion of the Doctor was not assailed in cross-examination. In the post-mortem examination report Ex. P-8, the Doctor noted that the heart of the deceased was found full of dotted blood. Again in injury No. 6, which also was an internal fracture, the bone was visible through the wound. Dr. D. A. Sastri, PW 26, had testified that he was treating Kotamraju injured of shock, not only by sending fluids through his vein, but also blood. This part ,of his statement wherein he spoke about the giving of blood transfusion ito the deceased, appears to have been overlooked by the High Court. Dr. Kondareddy, PW 11, who was the first Medical Officer to examine the injuries_ of the deceased, had noted that there was bleedi11g and swelling around injury No. 6 which was located on the left leg 3 inches above the ankle. Dr. Sarojini, PW 12, found fracture of the left tibia underneath this injury. There could therefore, be no doubt that this was compound fracture. P.W. 11 found bleeding from the other .-abraded injuries, a.Jso. He however found the condition of the injured grave and immediately sent an information to the Magistrate for recording his dying declaration. PW l l also advised immediate re-moval of the deceased to the bigger Hospital at Guntur. There, also, Dr. Sastri finding that life in the patient was ebbing fast, took imme-diate two-fold action. First, he put the patient on blood transfusion. Second, he sent an intimation for recording his dying declaration. Magistrate (PW 10) came there and recorded the statement. These are all tell-tale circumstances which unerring by show that there was substantial haemorrhage from some of the injuries involving compound fractures. This being the case, there was absolutely no reason to doubt the sworn word of the Doctor, (PW 12) that the c:rnse of the death was shock and haemorrhage.

Although the learned Judges of the High Court have not specifi-cally referred to the quotation from page 289, of Modi's book on Medical ?.U!i~prudence an~ T<?xicology (1961 Edn.) which was put to Dr. SaroJ!ru m cross-exammat10n, they appear to have derived support from the s•ame for the argument that fractures of such bones "are not ordinarily dangerous"; therefore, the accused could not have intended to cause death but had only knowledge that they were likely by such beating to cause the death of the deceased.

It wiJ!l be worthwhile to extract that quotation from Mody a.s reference to the same was made by Mr. Subba Rao before us,' also.

Mody a.s

According to Mody : "Fractures are not ordinarily dangerous unless. they are compound, when death may occur from foss of blood, if a. big vessel is wounded by the split end of fractured bone."

It may be noted, in the first place, that this opinion of the learned· author is couched in too general and wide language. Fractures of some vital bones. such as those of the skull and the vertebral column are generally ki1own to be dangerous to life. Secondly, even this general statement has been qualified by the learned author, by saying that compound fractures involving haemorrhage, are ordinarily dangerous. We have seen, that some of the fractures underneath the injuries oi the deceased, were compound fractures accompanied by substantial haemorrhage. In the face of this finding, Mady's opinion, far from advancing the contention of the defence, discounts it.

The High Court hus held that the accused had no intention to cause death because they deliberately avoided to hit any vital part of the body, and confined the beating to the legs and arms of the deceas-ed. There is much that can be said in support of this particular find-ing. But that finding-assuming it to be correct--does not necessarily take the case out of the definition of 'murder'.. The crux of the matter is, whether the facts established bring the case within Clans·e Thirdly of s. 300. This question further narrows down into consideration of the two-fold issue :

(i) Whether the bodily injuries found on the deceased were intentionally inflicted by the accused ?

(ii) If so, were they sufficient !lO cause death in the ordinary course of nature? If both these elements are satisfactorily established, the offence will be 'murder', irrespective of the fact whether an intention on the part of the accused to cause death, had or had not been proved.

In the instant case, the existence of both these elements was clearly established by the prosecution. There was bitter hostility between the warring factions to which the accused and the decea~ed belonged. Criminal litigation was going on between these factions since long. Both the factions had been proceeded against under s. 107, Cr. P.C. The accused had therefore motive to beat the deceased. The attack was premeditated and pre-planned, although the interval between the con-ception and execution of the plan was not very long; The accused had purchased tickets for going further to Narasaraopet, but on seeing the deceased, their bete noir, alighting at Nekarikal, they designedly got down there and trailed him. They selected heavy sticks about 3· inches in diameter, each, and with those lethal weapons, despite the entreaties of the deceased, mercilessly pounded his legs and arms causing no less than 19 or 20 injuries, smashing at least seven bones,. mostly major bones, and dislocating two more. The beating was administered in brutal and reckless manner. It was pressed home with an unusually fierce, cruel and sadistic determination. When the human conscience of one of the shocked bystanders spontaneously cried out in protest as to why the accused were beating human being as if he were buffalo, the only echo it could draw from the assailants,

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was 'rninacious retort, who callously continued their malevolent action, and did not stop the beating till the deceased became uncons-cious. May be, the intention of the accused was to cause death and they stopped the beating under the impression th~t the _dece~sed was dead. But this lone circumstance cannot take this poss1bl~ mference to the plane of positive proof. Nevertheless, the formidable weaI>ons ' used by the accused in the beating, the savage manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused the caHous conduct of the accused in persisting in the assault even ag;iinst the protest of feeling bystanders-all, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion that the injuries caused by the accused to the deceas-ed were intentionally inflicted, and were not' accidental. Thus the presence of the first element of Clause Thirdly of s. 300 had been cogently and convincingly established.

This takes us to the second element of Clause ( 3). Dr. Sarojini, PW 12, testified that the injuries of the deceased were ctm1ulative1y wfficient in the ordinary course of nature to cause death. In her opinion-which we have found to be entirely trustworthy-the cause -of the death was shock and haemorrhage due to the multiple injuries. l)r. Sarojini had conducted the post-mortem examination of the dead-Jody of the deceased. She had dissected the body and examined the 111juries to the internal organs. She was therefore the best informed expert who could opine with authority as to the cause of the death and as to the sufficiency or otherwise of the injuries from which the death ensued. Dr. Sarojini's evidence on this point stood on better footing than that of the Doctors (PWs. 11 and 26) who had externally examined the deceased in, his life-time. Despite this position, the High Court has not specifically considered the evidence of Dr. Sarojini with regard to the sufficiency of the injuries to cause death in the ordinary course of nature. There is no reason why Dr. Sarojini's evidence with regard to the second element of Clause (3) of s. 300 be not accepted. Dr. Sarojini's evidence satisfactorily establishes the presence of the , second element of this, clause. There is therefore, no escape from the conclusion, that the offence committed by the accused was 'murder', notwithstanding the fact that the intention of the accused to cause death has not been shown bevond doubt. ·

In Anda v. State of Rajastlum (supra), this Court had to deal with very simifar situation. In that case, several accused beat the victim with sticks after dragging him into house and caused multiple injuries including 16 lacerated wounds on the arms and legs, hematoma on the forhead and bruise on the chest. Under these injuries to the arms. and legs lay fractures of the right and left ulnas, second and third metacarpal bones on the right hand and second metacarpal bone of the left hand, compound fractures of the right tibia and right fibula. There was loss of blood from the injuries. The Medical Officer who conducted the autopsy opined that the cause of the death was shock and syncope due to multiple .injuries; that all the injuries collectively could be sufficient to cause death in the ordinary course of nature, but individually none of them was so sufficient.

Question arose whether in such case when no significant injury had been inflicted on vital art of the body, and the weapons used were ordinary lathis, and the accused could not be said to have the intention of causing death, the offence would be 'murder' or merely 'culpable homicide not amounting to murder'. This Court speaking through Hidayatullah J. (as he then was), after explaining the com-parative scope of and the distinction between ss. 299 and 300, answer-ed the question in these terms :

"The injuries were not on vital part of the body and no weapon was used which can be described as specially dange-rous. Only lathis were used. It cannot, therefore, be said safely that there was an intention to cause the death of Bherun within the first clause of s. 300. At the same time, it is obvious that his hands and legs were smashed and numerous bruises and lacerated wounds were caused. The number of injuries shows that every one joined in beating him. Tt is also clear that the assailants aimed at breaking his arms and legs. Looking at the injuries caused to Bherun in furtherance of the common intention of all it is clear that the injuries intended to be caused were sufficient to cause death in the ordinary course of nature, even if it cannot be said that his death was intended. This is sufficient to bring the case within 3rdly of s. 300."

The ratio of Anda v. State of Rajasthan (supra) applies in full force to the facts of the present case. Here, direct causal connection between the act of the accused and the death was established. The injuries were the direct cause of the death. No secondary factor such as gangrene, tetanus etc., supervened. There. was no doubt whatever that the beating was premeditated and calculated. Just as in Anda's case, here also, the aim of the asailants was to smash the arms and legs ·of the deceased, and they succeeded in that design. causing no less than 19 injuries, including fractures of most of the bones of the legs and the arms. While in Anda's case, the sticks used by the assailants were not specially dangerous, in the instant case they were unusualJy -~F heavy, lethal weapons. All these acts of the accused were pre-planned and intentional, which, considered objectively in the light of the medical evidence, were sufficient in the ordinary course of nature to cause death. The mere fact that the beating was designedly confined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature tlil cause death, will not exclude the application of Clause 3rdly of s. 300. The expression "bodily injury" in Clause 3rdly includes also its plural, so that the clause would cover case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries i11divid1ully measures upto such sufficiency. The sufficiency spoken of in this clause, as already noticed, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall 1.t.lder Clause 3rdly of s. 300. All the conditions which are pre-requisite for the applicability of this clause have been established and the offence com-mitted by the accused in the instant case was 'murder'.

For all the foregoing reasons, we are of opinion 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 II, Penal Code. Accordingly we allow this appeal and restore the order of the trial Court convicting the accused (Respondent 2 herein) for the offence of murder, with sentence of imprisonment for life. Respondent 2, if he is not already in jail shaJ.I · be arrested and committed to prison to serve out the sentence inflicted on him.

Appeal allowed.