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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 46  OF  2016 (Arising out of SLP (Crl.) No.7437 of 2013)

NANKAUNOO         ….Appellant

Versus

STATE OF U.P.                              ...Respondent

J U D G M E N T

R. BANUMATHI, J.

Leave granted.  

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:- Deceased-

Chhedi 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  

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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  

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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.   

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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  

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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  

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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  

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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  

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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  

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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     

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