# [1968] 2 S.C.R. 246

- **Citation:** [1968] 2 S.C.R. 246
- **Court:** Supreme Court of India
- **Decided:** 1968
- **Case number:** Criminal Appeal No. 21 of 1965
- **Bench:** S. M. S!KR! Al'OD J. M. SHELAT. JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1968-2-s-c-r-246-4313
- **Pages:** 6

## Headnote

Indian PeMI Code, s. 302 and 1. 304-Murder and culpable
licml·
cid~lngredients of ~ence of murder.
A
B
The appellant was convicted by the Sessions Judge under s. 302 of the
Indian Penal Code and the conviction was upheld by the High Court.
According to the prosecution evidence the appellant was trying to assault
one D when the latter's brother K intervened. The appellant took out a
C
knife and caused an injury on K's thigh which cut an artery and resulted
in his death.
In appeal, by special leave, before this Court it "'as urged
that in the circumstances of the ·Case the intention and knowJedge requisite
for an offence under s. 302 I.P.C .. had not been "'tablishcd.
HELD: (i l The arncllant had not used lhe knife \\-·hile he wa~ engaged in the fight with D. It was only when he felt that the deceased also
came up against him that he whipoed out ·the knife. The deceased wa<
I>
at that time in a crouching positioL. In these circumstances it could not
he said that the appellant intended to cause the injury in the thigh knowing that it would cut the artery. It was, therefore, not pos.<ible to apply
cl. 1 of s. 300 to the act of the accused, and he wa< not
guilty of
murder. [250 G-Hl
Virsa Singli '" .\'tote of Punjab. [I 958] S.C.R. 1495. applied.
(ii) However, when the aP!lellant struck the deceased with the knife.
he must have known that the deceased then being in a bent position. the
blow would land in the abdomen or near it-a vulnerable part of the
human body-and that such a blow was likelv to result in his death. In
these circumstances it would be quite legitimate to hold mat he struck
the deceased "ith the knife with the intention to cause an injury likelv
to cause death. The offence. therefore. clearlv fell
under s. 304 Part I.
[251 B.Cl
CRIMINAL
APPELLATE
JURISDICTION
Criminal
Appeal
No. 21 of 1965.
Appeal by special leave from the judgment and order dated
May 19, 1964 of the Punjab High Coun. Circuit Bench at Delhi
in Criminal Appeal No. 7-D of 1963.
A. S. R. Chari. C. L. Sareen and R. L. Kohli, for the appellant.
R. R. L. frenger. S. P. Nayar for R. N. Sachthey. for the
r~spondent.

## Text

HARJINDER SINGH ALIAS RNDA
\',
DELHI ADMl~STRATIO!'i
No~·ember 14, 1967
[S. M. S!KR! Al'OD J. M. SHELAT. JJ,]
Indian PeMI Code, s. 302 and 1. 304-Murder and culpable
licml·
cid~lngredients of ~ence of murder.
A
B
The appellant was convicted by the Sessions Judge under s. 302 of the
Indian Penal Code and the conviction was upheld by the High Court.
According to the prosecution evidence the appellant was trying to assault
one D when the latter's brother K intervened. The appellant took out a
C
knife and caused an injury on K's thigh which cut an artery and resulted
in his death.
In appeal, by special leave, before this Court it "'as urged
that in the circumstances of the ·Case the intention and knowJedge requisite
for an offence under s. 302 I.P.C .. had not been "'tablishcd.
HELD: (i l The arncllant had not used lhe knife \\-·hile he wa~ engaged in the fight with D. It was only when he felt that the deceased also
came up against him that he whipoed out ·the knife. The deceased wa<
I>
at that time in a crouching positioL. In these circumstances it could not
he said that the appellant intended to cause the injury in the thigh knowing that it would cut the artery. It was, therefore, not pos.<ible to apply
cl. 1 of s. 300 to the act of the accused, and he wa< not
guilty of
murder. [250 G-Hl
Virsa Singli '" .\'tote of Punjab. [I 958] S.C.R. 1495. applied.
(ii) However, when the aP!lellant struck the deceased with the knife.
he must have known that the deceased then being in a bent position. the
blow would land in the abdomen or near it-a vulnerable part of the
human body-and that such a blow was likelv to result in his death. In
these circumstances it would be quite legitimate to hold mat he struck
the deceased "ith the knife with the intention to cause an injury likelv
to cause death. The offence. therefore. clearlv fell
under s. 304 Part I.
[251 B.Cl
CRIMINAL
APPELLATE
JURISDICTION
Criminal
Appeal
No. 21 of 1965.
Appeal by special leave from the judgment and order dated
May 19, 1964 of the Punjab High Coun. Circuit Bench at Delhi
in Criminal Appeal No. 7-D of 1963.
A. S. R. Chari. C. L. Sareen and R. L. Kohli, for the appellant.
R. R. L. frenger. S. P. Nayar for R. N. Sachthey. for the
r~spondent.
The Judgment of the Court was delivered by
Sikri, J.
This appeal by special leave was limited to the
question whether the case comes under s. 302 of the Indian Penal
C0de.
The case of the prosecution which has been accepted by
F
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HARJINDER V, DELHI ADMINISTRATION (Sikri, /.)
247
A
the learned Sessions Judge and the High Court was, in brief, as
follows :
8
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G
H
On January 31, 1962, at about 2.30 p.m., a fight took place
between Dalip Kumar, P.W. 12, and Harjinder Singh, appellant,
near the water tap in front of a tin factory in Zamirwali lane,
Delhi. Harjinder was apparently worsted in the fight and he then
left the place holding out a threat that he would teach a lesson
to Dalip Kumar. The appellant returned with his brother Amarjit
5ingh to the house of Dalip Kumar and shouted to Dalip Kumar
to come out.
Mst. Tejibai opened the door of the house and
asked the appellant and Amarjit Singh to go
away, but either
these two or the appellant pulled Dalip Kumar out of the house
into the lane and gave him beating near a lamp-post in the comer
of Zamirwali lane.
At that time the deceased Kewal Kumar,
who was the brother of Dalip Kumar, came and tried to intervene and rescue his brother. It is at this stage that the evidence
is conflicting as to what exactly happened.
According to one
version, Amarjit Singh accused caught hold of Kewal Kumar and
the appellant took out the knife and stabbed the deceased.
According to the other version, given by Mohd. Ali, P.W. 5,
this is what happened :
"Dalip Kumar's brother holding Jinda accused
asked him not to fight.
Jinda at that time toolj: out the
knife from his pocket and opened it with both his hands
and then gave a blow with it under the belly and the
upper portion of the left thigh. Amarjit Singh accused
did not do anything."
In cross-examination he stated :
"Jinda accused was holding Dalip Kumar from the
collar of his shirt by his left hand. At that time Kewal
Kl!mar was on right hand side of Jip.da accused. When
Jinda took out' the knife and opened it with both his
hands, Dalip Kumar and his brother Kewal were grappling with Jinda accused ...... Jinda accused· gave only
one knife blow to Kewal Kumar. Kewal Kumar was in
bent condition when he was stabbed only once."
After inflicting this injury the appellant ran away.
Dr. G. S. Mittal, P.W. 8, noted the following injuries on the
person of the deceased :
I. A stab wound l"xt"x? on left thigh upper and
below the inguinal ligament.
2. Abrasion l"Xlinear on back of left fore-arm middle.
He described the other features of the injuries as follows :
248
SUPREME COURT REPORTS
[1968) 2 S.C.R.
.. The direction of the stab wound was oblique and
was going medially.
Sartorius muscle was cut underneath along with femoral artery and vein.
Cut over
major part of their diameter.
There was effusion of
blood in the muscles and around the track O\'er left
thigh upper end ... "
He Jcposed that death was due tQ shock and haemorrhage from
injury to femoral vessels by stab wound of the thigh. He further
s1a1cd :
"It is correct that femoral artery and vein arc important main vessels of the body.
The cutting of these
vessels would result in great loss of blood. The cutting
injuries of these vessels could result in immediate death
or after short duration."
It was urged before the Sessions Judge on behalf of the
nppellant that, in the circumstances of the ca;e, the· offence, if
at all committed, would fall under s. 326, J.P.C.
The learned
Sessions Judge. relying. on Virsa Si11glr v. State of f'1111iab( 1).
hdd:
"In this case, the prosecurion has proved that th.!
bodily injury, the nalure of which has been described
above was present. This injury was caused wirh the pen
knife delibcrarcly.
It was not accidental or unintentional. Injury of any other kind was not intended. 'This
injury in the opinion o[ this docror was su!Iicicnt in the
ordinal)' course of nature to cause death.
This being
so the case 1958 S.C.R. 1495 would apply and the
offence which rhc accused Jinda has committed falls u/•
302 Indian Penal Code."
The High Court. un appeal. over-ruled a similar contention in
the rollowing words :
'"Lastly. the counsel has atte.npred to tah the case
out of the purview of the offence of murder.
It has
been contended that it was just a small knife with which
a blow was given and rhat it was not on the vital part
of the body and, therefore. the appellant should not be
held guilty of murder. Jn my opinion, the contention is
wholly unsustainable.
The deceased, a boy of about
16 years of age had merely come to hclμ his broth~r.
when the appellant. who had deliberately come armed
with knife from his house. stabbed the deceased with
that ·knife on vulnerable pafl. i do not sec how the
(ll [1958] S.C.R. 1495.
A
•
B
c
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D
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,
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HARJINDER V. DELHI ADMINISTRATION (Sikri, J,)
249
offence can be considered not to fall within the purview
of murder."
Later, the High Court observed :
"It is futile to contend that he did not intend to kill
the deceased. The injury and the weapon are quite eloquent in this respect."
'fhe learned counsel for the appdlant, _Mr. Chari, contends
that on the facts established in this case no offence under s. 302
has been committed and the appellant should have been convicted under s. 326 or at the most under s. 304, part two.
The
learned counsel for the respondent strongly relies on the decision
of this Coult in Virsa Singh v. Slate of Punjab(') and he says
that all the ingredients laid down in that case by this Court are
present in this case and, therefore, the High Court was correct in
confirming the conviction of the appellant under s. 302, LP.C.
It seems to us that all the ingredients which were laid down
by this Court in that case have not been established in this case,
Bose. J., speaking for the Court observed :
"To put it shortly, the prosecution must prove the
following facts before it can bring a case under s. 300,
"3rdly";
First, it must establish, quite objectively, _·that a
bodily injury is present;
Secondly, the nature of the injury must be
proved.
These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that palticular bodily injury, that is to say,
that it was not accidental or unintentional, or that some
other kind of injury was intended.
Once these three elements are proved to be present,
the enqui.ry proceeds further ·and.
·
Fourthly, it must be proved that the injury of the
type just described made up of the three elements set
out above is sufficient to cause qeath in the ·ordinary
course of nature.
This part of the enquiry is purely
objective and inferential and has nothing to do with
the intention of the offender."
The learned Judge further explained the third ingredient at p. 1503
in the following words :
"The question is not whether the prisoner intended
to inflict a serious injury or a trivial one but whether he
(I) (1958) 'S.C.R. 1495.
250
SUPREME COURT REPORTS
(1968] 2S.CR
intended to inflict the injury that is proved to be present.
If he can show that he did not, or if the totality of the
circumstances justify such an inference, then, of course,
the intent that the section requires is not proved. But
if there is nothing beyond the injury and the fact that
the appellant inflicted it, the only possible inference is
tha: he intended to inflict it.
Whether he knew of its
seriousness, or intended serious consequence.,, is neither
here nor there. The question, so far as th<! intention is
concerned, is not ·whether he intended to kill, or to inflict
an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and
once the existence of the injury is proved the intention
to cause it wilt be presumed unless the evidence or the
circumstances warrant an opposite conclusion."
Jn Rajll'anr Sin~h v. Stare of KcNila(' ), !-lida)atull.1h, J.,
'<'frrring to Virsa Singh v. State of Punjab('), observed :
A
8
(
"As was l;1i<l down in Vina Si1111h v. State of Punjab
D
.... for the application of this clause it must be first
established that an injury is caused, next it must be
established objectively what the nature of that injury
in the ordinary course of nature is.
If the injury is
found to be sufficient to causo death one test is satisfied.
Then it must be proved that there was an intention to
E
inflict that very injury and not some other injury and
that it was not accidental or unintentional. If this is
;1lso held against the offender the offence of murder is
satisfied."
It seems to us that the High Coun has not considered whether
1hc third ingredient laid down by Bose, J., in Virsa Singh v. State
-of Punjab(') has been proved in this case or not. In our opinion
the circumstances justify the inference that the accused did not
intend to cause an injury on this particular portion of the thigh.
The evidence indicates that while the appellant was trying to
:issault Dalip Kumar and the deceased intervened, the appellant
finding himself one against two took out the knife and stabbed
the deceased.
It also indicates that the deceased at that stage
was in a crouching position presumably to intervene and separate
the two. It cannot, therefore, be said with any definiteness that
the appellant aimed the blow at this particular part of the ihigh
knowing that it would cut the artery.
It may be observed that
the appellant had not used the knife while he was engaged in the
fight with Dalip Kumar.
It was only when he felt that the
deceased also came up against him that he whipped out the knife.
(I) A.l.R. 1966 S.C. t874, 1878.
0) (1958) S.C.R.1495
F
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If
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HARJINDER V. DELHI ADMINISTRATION (Sikri, J.)
251
A
Jn these circumstances it cannot be said that it has been proved
that it was the intention of the appellant to inflict this particular
in.iury on this particular place.
lt is, therefore, not possible to
apj11y cl. 3 of s. 300 to the act of the accused.
B
c
ll
Nevertheless, the deceased was in a crouching position when
the appellant struck him with the knife.
Though the knife was
5'" to 6" in length including the handle it was nonetheless a dangerous weapon.
When the appellant struck the deceased with
the knife, he must have known that the deceased then r ~ing in
" bent position the blow would land in the abdomen or near ita vulnerable part of the human body and that such a blow was
Jih:Jy to result in his death. In these circumstances it would be
quite legitimate to hold that he struck the deceased with the knife
with the intention to cause an injury likely to cause death.
We
are, therefore, of• the opinion that the offence falls under s. 304
P~rt I.
The appeal is allowed and the conviction is altered from one
under s. 302 to s. 304 Part I and the appellant is sentenced to
'even years rigorous imprisonment.
G.C.
Appeal allowed.