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1966 Supp SCR 230 : AIR 1966 SC 1874 : 1966 Cri LJ 1509

In the Supreme Court of India

(BEFORE M. HIDAYATULLAH AND V. RAMASWAMI (I), JJ.)

1. RAJWANT SINGH (IN CRA NO. 102 OF 1965)

2. KALARIMADATHIL UNNI (IN CR.A. NO. 103 OF 1965) …
Appellants;
Versus
STATE OF KERALA (IN BOTH THE APPEALS) … Respondent.
Criminal Appeals Nos. 102 and 103 of 1965* , decided on April 22, 1966
Advocates who appeared in this case :
Jai Gopal Sethi, Senior Advocate (C.L. Sareen and R.L. Kohli, Advocates, with him),
for the Appellant (In Cr A No. 102 of 1965);
Harbans Singh, Advocate (at State Expense), for the Appellant (In Cr A No. 103 of
1965);
A.S.R. Chari, Senior Advocate (V. Narayana Menon and M.R.K. Pillai, Advocates,
with him), for the Respondent (In both the Appeals).
The Judgment of the Court was delivered by
M. HIDAYATULLAH, J.— This judgment will also govern the disposal of Criminal
Appeal No. 102 of 1965 (Rajwant Singh v. State of Kerala). The appellants in these
two appeals have been convicted under Sections 302/34, 364, 392, 394 and 447 of
the Indian Penal Code. Unni (appellant in this appeal) has been sentenced to death
and Rajwant Singh (appellant in the other appeal) has been sentenced to
imprisonment for life. No separate sentences under the other sections have been
imposed on Unni but Rajwant Singh has been sentenced to four years' rigorous
imprisonment under Sections 392 and 394 of the Indian Penal Code with a direction
that the sentences shall run concurrently with the sentence of imprisonment for life.
The High Court of Kerala has dismissed their appeals and confirmed the sentence of
death on Unni. They now appeal by special leave of this Court.
2. These appellants were tried with three others, of whom two were acquitted. One
Taylor was also convicted of the same offences and was sentenced in the aggregate to
imprisonment for life. He has not appealed to this Court. We are not concerned with
them. The case relates to the death of one Lt. Commander Mendanha of the Naval
Base, I.N.S. Vendurthy, Willingdon Island, Cochin Harbour, on the night of March 30,
1963. Unni was attached as a rating to this Naval Base and at the time of the offence
was on leave. Taylor, who has not appealed was an ex-sailor and Rajwant Singh was
attached to I.N.S. Vikrant. The case of the prosecution was that these persons
conspired together to burgle the safe of the Base Supply Office on the eve of the pay-
day, when a large sum of money was usually kept there for distribution on the pay-
day. They collected various articles such as a Naval Officer's dress, a bottle of
chloroform, a hacksaw with spare blades, adhesive plaster, cotton wool and ropes. On
the night in question they decoyed the Lt. Commander from his house on the pretext
that he was wanted at the Naval Base, and in a lonely place caught hold of him. They
facts covered his mouth with the adhesive plaster and tied a handkerchief over the plaster
and plugged his nostrils with cotton wool soaked in chloroform. They tied his hands
and legs with rope and deposited him in a shallow drain with his own shirt put under
his head as a pillow. They then went up to the sentry, who was induced to part with
his rifle to one of the accused who had dressed himself as an officer, and attacked
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him. The sentry would have received the same treatment as his Lt. Commander but he
raised a hue and cry and attracted the attention of the watchman. Fearing detection
the assailants released the sentry and took to their heels. The sentry after escaping
informed the Officer-on-duty at the Base and stated that he had recognised Rajwant
Singh as one of his assailants. Next morning the dead body of the Lt. Commander was
discovered in the drain where he had been left by the assailants.
3. Investigation followed and five persons were placed on trial before the Session
Judge, Ernakulam Division, who convicted three and sentenced them as stated above
and acquitted the other two. The appeals of these persons before the High Court
failed. In these appeals the complicity of the appellants in the offence is not
challenged but it is argued that the evidence for the prosecution does not establish the
offence of murder but of causing grievous hurt or of culpable homicide not amounting
to murder. It is also contended that Section 34 of the Indian Penal Code could not be
used against any of the accused. Unni has also contended that the sentence of death
was not proper as the case against him was indistinguishable from that of the other
two. We shall deal with these arguments.
4. Our attention has been drawn to the inquest and postmortem reports to establish
what was actually done to the Lt. Commander. From these, it is established that the
legs of the victim were tied with rope and his arms were tied behind his back. A large
adhesive plaster was stuck over his mouth and completely sealed it. A handkerchief
was next tied firmly over the adhesive plaster to secure it in position. The nostrils were
plugged with cotton soaked in chloroform. Counsel for the appellants submit that all
this shows that the assailants did not intend to kill the Lt. Commander but to render
him unconscious. It is admitted that the closing of the mouth with the adhesive
plaster and the handkerchief was complete and that it must have been impossible for
the Lt. Commander to breathe through his mouth. The description, however, shows
that the nostrils were also plugged with cotton wool soaked in chloroform. This was
clearly stated in the inquest report and also in the postmortem report and was
established not only by the witnesses proving the inquest report but also by the doctor
who performed the autopsy. In addition the prosecution has exhibited and proved
numerous photographs of the dead body from various angles and these things are
cause of clearly seen in the photographs. According to the doctor death was due to
death asphyxiation.
5. In addition to the other evidence establishing the connection of Unni and
Rajwant Singh with this crime there is a confession by Rajwant Singh before the Sub-
Magistrate, Cochin in which he graphically describes the part played by him and Unni.
Rajwant Singh also stated that they only wanted the Lt. Commander and the sentry to
remain unconscious while they rifled the safe and took away the money. It is
contended that we must accept the confession as a whole and must hold on its basis
that the intention was not to kill, and that the offence of murder is therefore not
established. As this is the most important point in the case we shall consider it first.
6. This point was argued by Mr J.G. Sethi on behalf of Rajwant Singh and his
arguments were adopted by Mr Harbans Singh on behalf of Unni. Mr Sethi argued that
the offence was one of causing grievous hurt or at the worst of culpable homicide not
amounting to murder and punishable under Section 304 (second part) of the Indian
Penal Code. It is quite plain that the acts of the appellants resulted in the death of the
victim and the offence cannot be placed lower than culpable homicide because the
appellants must have known that what they were doing was likely to kill. The short
question, therefore, is whether the offence was murder or culpable homicide.
7. Mr Sethi submits that of the three clauses of Section 299, which define the
offence of culpable homicide, the first deals with intentional killing and the second
with injuries which are intentionally caused and are likely to cause death. He submits
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that these two clauses form the basis of the offence of murder and culpable homicide
punishable under the first part of Section 304 and the third clause, which involves the
causing of death with the knowledge that by his act the offender is likely to cause
death, is the foundation of offence of culpable homicide not amounting to murder
punishable under the second part of Section 304. He submits that the appellants did
not intend causing the death of the Lt. Commander but took action to keep him
immobilised and silent while they rifled the safe. To achieve their purpose they tied
the victim and closed his mouth and plugged the nostrils with cotton soaked in
chloroform. Each of these acts denoted a desire to keep the Lt. Commander out of the
way for the time being but not to kill him. Nor can the acts be described as done with
the intention of causing such bodily injury as was likely to kill. At the most, says he, it
can be said that the death was caused with the knowledge on the part of the
appellants that by their acts they were likely to cause death and that brings the
matter within Section 304 II IPC.
8. The argument requires close examination. Two offences involve the killing of a
person. They are the offence of culpable homicide and the more henious offence of
murder. What distinguishes these two offences is the presence of a special mens rea
which consists of four mental attitudes in the presence of any of which the lesser
offence becomes greater. These four mental attitudes are stated in Section 300 IPC as
distinguishing murder from culpable homicide. Unless the offence can be said to
involve at least one such mental attitude it cannot be murder. We shall consider the
acts of the appellants in relation to each of the clauses of Section 300.
9. The first clause says that culpable homicide is murder if the act by which death
is caused is done with the intention of causing death. An intention to kill a person
brings the matter so clearly within the general principle of mens rea as to cause no
difficulty. Once the intention to kill is proved, the offence is murder unless one of the
exceptions applies, in which case the offence is reduced to culpable homicide not
amounting to murder. As there is no question of any of the exceptions they need not
300(1) not be mentioned. But it is plain that the appellants did not contemplate killing the Lt.
applies Commander. No part of their preparations shows an intention to kill. Had they so
desired, they had ample time and opportunity to effectuate that purpose without going
to the trouble of using cotton soaked in chloroform to stuff the nostrils. They had only
to hold his nose closed for a few minutes. The confession to which we have referred
also shows that the news of the death of the Lt. Commander came to them with as
much surprise as shock. In these circumstances, the first clause of Section 300 cannot
apply.
10. The second clause deals with acts done with the intention of causing such
bodily injury as the offender knows to be likely to cause the death of the person to
whom harm is caused. The mental attitude here is two-fold. There is first the intention
to cause bodily harm and next there is the subjective knowledge that death will be the
likely consequence of the intended injury. English Common Law made no clear
distinction between intention and recklessness but in our law the foresight of the
death must be present. The mental attitude is thus made of two elements— (a)
causing an intentional injury and (b) which injury the offender has the foresight to
know would cause death. Here the injury or harm was intended. The appellants
intended tying up the victim, closing his mouth by sticking adhesive plaster and
plugging his nose with cotton wool soaked in chloroform. They intended that the Lt.
Commander should be rendered unconscious for some time but they did not intend to
do more harm than this. Can it be said that they had the subjective knowledge of the
300(2) not
fatal consequences of the bodily harm they were causing? We think that on the facts
applies the answer cannot be in the affirmative. To say that the act satisfied the test of
subjective knowledge would be really tantamount to saying that the appellants
intended to commit the murder of the Lt. Commander which, as said already, was not
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the case.
11. The third clause discards the test of subjective knowledge. It deals with acts
done with the intention of causing bodily injury to a person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death. In
this clause the result of the intentionally caused injury must be viewed objectively. If
the injury that the offender intends causing and does cause is sufficient to cause death
in the ordinary way of nature the offence is murder whether the offender intended
causing death or not and whether the offender had a subjective knowledge of the
consequences or not. As was laid down in Virsa Singh v. State of Punjab1 for the
application of this clause it must be first established that an injury is caused, next it
how 300(3) is must be established objectively what the nature of that injury in the ordinary course of
to be applied nature is. If the injury is found to be sufficient to cause death one test is satisfied.
in cases Then it must be proved that there was an intention to inflict that very injury and not
some other injury and that it was not accidental or unintentional. If this is also held
against the offender the offence of murder is established.
12. Applying these tests to the acts of the appellants we have to see first what
bodily injury has been established. The bodily injury consisted of tying up the hands
and feet of the victim, closing the mouth with adhesive plaster and plugging the
nostrils with cotton soaked in chloroform. All these acts were deliberate acts which had
been preplanned and they, therefore, satisfy the subjective test involved in the clause.
300(3)
The next question is whether these acts considered objectively were sufficient in the
does ordinary course of nature to cause death. In our judgment they were. The victim could
apply only possibly breathe through the nostrils but they were also closed with cotton wool
and in addition an asphyxiating agent was infused in the cotton. All in all it would
have been a miracle if the victim had escaped. Death of the victim took place as a
direct result of the acts of his assailants.
13. Mr Sethi suggested that the victim must have struggled to free himself and had
rolled into the drain and this must have pushed up the cotton further into the nostrils.
This is not correct. The victim was placed in the drain by his assailants because his
folded shirt was placed under his head and had obviously fainted by that time. No one
seems to have been aware of his presence otherwise discovery would have taken place
earlier. This leads to the only conclusion that there was no change in the
circumstances in which the victim was left by the assailants. The bodily injury proved
fatal in the ordinary course of nature. The ordinary course of nature was neither
interrupted nor interfered with by any intervening act of another and whatever
happened was the result of the acts of the assailants, and their acts alone.
14. Mr Sethi argues that the sufficiency of the injury to cause death in the ordinary
course of nature is something which must be proved and cannot be inferred from the
fact that death has in fact taken place. This is true of some cases. If a blow is given by
reason of which death ensues, it may be necessary to prove whether it was necessarily
fatal or in the language of the Code sufficient in the ordinary course of nature to cause
death. In such a case it may not be open to argue backwards from the death to the
blow, to hold that the sufficiency is established because death did result. As death can
take place from other causes the sufficiency is required to be proved by other and
separate evidence. There are, however, cases and cases. Where the victim is either
helpless or rendered helpless and the offender does some act which leads to death in
the ordinary course and death takes place from the act of the offender and nothing
else, it is hardly necessary to prove more than the acts themselves and the causal
connection between the acts and the end result. Mr Sethi contends that the
concentration of chloroform, the quantity actually used and its effect on the victim
ought to have been proved. Alternatively he argues that the quantity of the cotton
wool used to plug the nostrils and the manner of plugging should have been
established before a finding can be given that the bodily injury was sufficient in the
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ordinary course of nature to cause death. This would, of course, have been necessary if
it could at all be thought that not the acts of the assailants but some other intervening
circumstance might have led to the death of the victim. But there was none. There
was no interference by anyone else. Death was due to asphyxiation whether caused by
the mechanical obstruction of the nostrils or by chloroform as an asphyxiating agent,
or both. Whichever way one looks at it, the injury which caused the death was the one
inflicted by the assailants. The sufficiency of the injury was objectively established by
the nature and quality of the acts taken with the consequence which was intimately
related to the acts. There was no need to establish more than this in the case. As was
pointed out in Anda v. State of Rajasthan2 “the emphasis in clause thirdly 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 way of nature and when this exists and
death ensues, and if the causing of the injury is intended, the offence is murder”. In
this case the acts of the appellants were covered by the third clause in Section 300.
15. As we are satisfied that this case falls within clause thirdly we need hardly
consider whether it falls also within the fourth clause or not. That clause comprehends,
generally, the commission of imminently dangerous acts which must in all probability
cause death. To tie a man so that he cannot help himself, to close his mouth
completely and plug his nostrils with cotton wool soaked in chloroform is an act
imminently dangerous to life, and it may well be said to satisfy the requirements of
the last clause also, although that clause is ordinarily applicable to cases in which
there is no intention to kill any one in particular. We need not, however, discuss the
point in this case. We accordingly hold that the offence was murder.
16. All the acts were done after deliberation by the appellants. They were of a type
which required more than one person to perpetrate. What was done had already been
discussed and the execution of the plan was carried out as contemplated. That there
was a common intention admits of no doubt and as clause 3 of Section 300 views the
consequence of the act objectively all those who shared the common intention of
causing the bodily injury which was sufficient to cause death in the ordinary course of
nature must be held responsible for the resulting offence. Even if the consequence was
different from what was actually intended, those who abetted (and the appellants were
either offenders principally or abetters) would be equally responsible under Section
113 of the Indian Penal Code provided they knew that the act which they were
abetting was likely to cause that effect. On the argument of the appellants that
Section 304 II applies, it is obvious that the above provision must be attracted. In our
judgment the appellants were rightly adjudged guilty under Sections 302/34 of the
Indian Penal Code.
17. As regards the sentence of death passed on Unni, we see no reason to interfere.
He was the master mind behind the whole affair and the sentence of death was,
therefore, appropriate. We see no force in either appeal. They will be dismissed.
———
*Appeals by Special Leave from the Judgments and Orders dated 12th October, 1964 of the Kerala High Court in
Criminal Appeal No. 80 of 1964, and Criminal Appeal No. 70 and Referred Trial No. 13 of 1964, respectively.
1 [1953] SCR 1495
2 AIR 1965 SC 148 at 1951
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