There must be either certainty or probability of death, say judges

A person cannot be convicted under Section 302 (murder) of Indian Penal Code (IPC) if the overt act committed by him only had the possibility and not certainty or probability of causing the death of the victim, the Madras High Court Bench here has held.

A Division Bench of Justice M. Jaichandren and Justice S. Nagamuthu passed the ruling while modifying the conviction of a youth from Section 302 to Section 304 (culpable homicide not amounting to murder). The youngster had severed the forearm of an individual and it led to the latter’s death.

Disagreeing with the prosecution’s contention that severing the forearm was sufficient to cause death in the ordinary course, the Bench said that the act committed by the convict was neither sufficient to cause death nor was it likely to cause death.

The words ‘sufficient to cause death’ found in Section 299 of IPC mean more than a mere likelihood of death being caused. They mean almost a certainty. Similarly, the words ‘likely to cause death’ found in Section 300 do not mean a mere possibility. The expression ‘likely’ conveys a sense of probability, the judges said.

Writing the judgement, Mr. Justice Nagamuthu said: “When chances of death are more than that of survival, one may say that death is a probability. Where chances of death and survival are equally possible, one may say that death is a possibility, but not a probability. It is possible that death may result when a forearm is amputated. But chances for survival are more than the chance for death. Thus, the death is neither certain nor probable but only possible. In the present case, the doctor who conducted autopsy had not opined that the injuries on the victim’s body were either sufficient or likely to cause death.”

The judges went on to state that killing of a human being by another human being is homicide. It could be sub-divided into lawful homicide or unlawful homicide (culpable homicide).

Some culpable homicides are murders and others are culpable homicides not amounting to murder.

Culpable homicide is the genus and murder is the species. Thus, every murder is a culpable homicide but not vice-versa. Though the act committed by the convict in the present case certainly amounted to culpable homicide, it could not be termed murder as there was no intention to cause death.

‘Intention’ is different from ‘motive’ or ‘ignorance’ or ‘negligence.’ Intention required something more than mere foresight of the consequences.

Intention was a conscious state in which mental faculties were aroused into activity and summoned into action for the purpose of achieving the conceived end.

Thus, in the case of intention, mental faculties were projected in a set of direction. On the other hand, ‘knowledge’ was a bare awareness of the likely consequences. Whether in a given case, the accused had the ‘intention’ or ‘knowledge’ was a question of fact which could be inferred from various other circumstances.

The gravity of the motive behind the crime, the gravity of the injuries, the number of injuries, the location of the injuries, the force used and the weapon used could be some of the issues that could help in inferring the intention behind the offence.

In the present case, the convict had not attacked the victim either on his head or other vital parts despite having a chance as well as enough time to do away with the latter once for all. He had consciously chosen to sever the arm alone before fleeing away from the scene of crime.

It was also not the prosecution case that the convict actually tried to attack the victim elsewhere and ended up severing the arm alone when the victim tried to ward off the attack. Therefore, he was entitled only to a much lesser sentence than life imprisonment imposed by the trial court, the judges said.

Considering the fact that the convict S. Ganesan, a former inmate of a refugees’ camp at Kanmayapuram in Sivakasi taluk of Virudhunagar district, was only 22 years old at the time of severing the hand of his co-inhabitant Sivanantha Raja on November 16, 2007, the judges chose to sentence him to six years of rigorous imprisonment.