LexTHANGAIYA versus STATE OF TAMIL NADU
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A THANGAIYA v. STATE OF TAMIL NADU DECEMBER 8, 2004 B [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] Penal Code, 1860 : Sections 299, _ 300, 302 and 304 Part 1 "Murder" and "culpable homicide not amounting to murder"- C Distinction between-Accused gave one blow with a small stick to the deceased-The trial convicted the accused under S. 302-High Court upheld the conviction-Correctness of-Held : All 'murde1'' is 'culpable homicide' but not vice versa-'Culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'-It cannot be said D as a universal rule of application that whenever one blow is given S. 302 is ruled out-In the instant case one blow was given with a small stick- The place where assault took place was dimly lit-Hence, conviction altered to one under S. 304 Part l E Criminal Trial : "Chance witnesses "-Evidentiary value of-Held : Evidence of "chance witnesses" is not always suspicious and their presence at the scene doubtful-Murders are not committed with previous notice to witnesses, soliciting their presence-Their evidence cannot be brushed aside or viewed F with suspicion on the ground that they are mere "chance witnesses "-If the evidenece of a 'chance witness' is clear and cogent it cannot be discarded. According to the prosecution, the_ ~ppellant-accused used to make fun of girls/workers outside the factory of the deceased, which was G objected to by the deceased. On that score, there had been enmity between the deceased and the accused. On the fateful night, when the deceased was coming in a bicycle the appellant hit him with a small stick on his head. The deceased H sustained injuries and there was profuse bleeding. The deceased died in 786 THANGAIYA v. STATE 787 the hospital the next day. The trial court convicted the appellant under Section 302 of the Penal Code, 1860 holding that the evidence of eyewitnesses PWs 1, 2 and A 3 were cogent and credible. The High Court upheld the conviction rejecting the plea of the appellant that PWs 1 and 2 were interested B witnesses and that PW-3 was a "chance witness". Hence the appeal. Allowing the appeal in part, the Court HELD: l. In a murder trial by describing the independent witnesses as 'chance witnesses' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby c will be witnesses. Their evidence cannot be brushed aside or viewed with D suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyon~ must have an explanation for his presence elsewhere or in another man's castle. It is quite an unsuitable expression in a country where people are less formal E and more causal, at any rate in the mater explaining their presence. Therefore, there is no substance in the plea that PW-3's evidence, which is clear and cogent is to be discarded. (791-A, B, CJ 2. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. AH 'murder' is 'culpable homicide' but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to 'murder'. For the propose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degree 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 Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 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 for the three grades. Culpable homicide of this H F G 788 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R. A degree is punishable under the second part of Section 304. [791-D, E, F) 3. Section 299(c) and Section 300(4) both require knowledge of the probability of the act causing death. Section_, 300(4) w,ould be applicable where the knowled
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