BNS s. 103: Punishment for murder

Case

Criminal Appeal No. 90 of 1957

Bench

Vivian Bose, Syed Jaffer Imam, P.B. Gajendragadkar (judgment by Vivian Bose, J.)

Provisions

Indian Penal Code, 1860, s. 300 “thirdly” and s. 302 (now Bharatiya Nyaya Sanhita, 2023, s. 101(c) and s. 103(1))

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Headnote

Murder · IPC s. 300 thirdly (BNS s. 101(c)) · Intention to cause a bodily injury sufficient in the ordinary course of nature to cause death

The case, in the Court's words

The appellant Virsa Singh has been sentenced to imprisonment for life under s. 302 of the Indian Penal Code for the murder of one Khem Singh. He was granted special leave to appeal by this Court but the leave is limited to " the question that on the finding accepted by the Punjab High Court what offence is made out as having been committed by the petitioner." [SCR p. 1497]

Held

1. 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 particular 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 enquiry 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 death 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. [SCR pp. 1500-1501]
2. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. [...] It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. [SCR p. 1501]
3. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry [...] proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. [SCR p. 1500]
4. In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury. [SCR p. 1502]
5. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. [...] But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the 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 will be presumed unless the evidence or the circumstances warrant an opposite conclusion. [SCR p. 1503]

Result

The appeal is dismissed. [SCR p. 1504]

Editorial note: subsequent treatment

Applied in later Supreme Court decisions on the murder and culpable homicide distinction, including State of A.P. v. Rayavarapu Punnayya (1976) and Chunni Bai v. State of Chhattisgarh (2025).

Case

Criminal Appeal No. 214 of 1971

Bench

R.S. Sarkaria, S. Murtaza Fazal Ali (judgment by Sarkaria, J.)

Provisions

Indian Penal Code, 1860, ss. 299, 300 (clause 'thirdly'), 302 and 304 Part I/II (now Bharatiya Nyaya Sanhita, 2023, s. 100, s. 101, s. 103(1) and s. 105; verified against the BNS text)

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Headnote

Murder · Culpable homicide not amounting to murder · IPC s. 299 and s. 300 (BNS s. 100 and s. 101) · Intention to cause bodily injury sufficient in the ordinary course of nature to cause death

Held

1. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. [SCR p. 606]
2. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of ss. 299 and 300. [SCR p. 606]
3. The difference between cl. (b) of s. 299 and cl. (3) of s. 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. [SCR p. 607]
4. For cases to fall within cl. (3), it is not necessary that the offender intended to cause death, So long as death ensues from the intentional [...] bodily injury or injuries sufficient to cause death in the ordinary course of nature. [SCR p. 608]
5. The expression "bodily injury" in Clause 3rdly includes also its plural, so that the clause would cover a case where all the injuries intentionally, caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, [SCR p. 614]

Result

For all the foregoing reasons, we are of opinion that the High Court was in error in altering the conviction of the accused-respondent from one under s. 302, 302/34, to that under s. 304, Part II, Penal Code. Accordingly we allow this appeal and restore the order of the trial Court convicting the accused (Respondent 2 herein) for the offence of murder, with a sentence of imprisonment for life. [SCR p. 615]

Editorial note: subsequent treatment

Applied in Chunni Bai v. State of Chhattisgarh (2025 INSC 577, 28 April 2025), a two-judge bench decision that quotes the 'genus and species' passage and applies the practical tests of this judgment and of Rampal Singh v. State of U.P. (paras 18 and 59 of that judgment).

Case

Criminal Appeal No. 273 of 1979, with Writ Petitions Nos. 564, 165, 179, 168, 434, 89, 754, 756 and 976 of 1979 and Special Leave Petition (Criminal) No. 1732 of 1979

Bench

Y.V. Chandrachud, A.C. Gupta, N.L. Untwalia, R.S. Sarkaria, P.N. Bhagwati (judgment by Sarkaria, J. (for himself, Chandrachud CJ, A.C. Gupta and N.L. Untwalia JJ.; Bhagwati J. dissenting))

Provisions

Indian Penal Code, 1860, s. 302 (now Bharatiya Nyaya Sanhita, 2023, s. 103(1))
Code of Criminal Procedure, 1973, s. 354(3) (now Bharatiya Nagarik Suraksha Sanhita, 2023, s. 393(3), owner-supplied equivalence) and s. 235(2)

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Headnote

Murder · Death sentence · IPC s. 302 (BNS s. 103(1)) · CrPC s. 354(3) special reasons · Rarest of rare · Mitigating and aggravating circumstances

Held

1. The expression "special reasons" in the context of this provision, obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal. Thus, the legislative policy now writ large and clear on the face of Section 354(3) is that on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases. [SCR p. 236]
2. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354 (3) and 235 (2), namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability; [SCR p. 250]
3. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and, therefore, all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist. [SCR p. 252]
4. No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to qualify for inclusion in the category of [...] circumstances found on the facts of a particular case, must evidence aggravation of an abnormal or special degree. [SCR p. 254]
5. Nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). [SCR p. 255]
6. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. [SCR p. 256]

Result

For all the foregoing reasons, we reject the challenge to the constitutionality of the impugned provisions contained in Sections 302, Penal Code, and 354(3) of the Code of Criminal Procedure, 1973. The writ petitions and the connected petitions can now be heard and disposed of, on their individual merits, in the light of the broad guidelines and principles enunciated in this judgment. [SCR p. 256]

Editorial note: subsequent treatment

The majority judgment (Sarkaria J.) was pronounced on 9 May 1980; the official PDF header prints 16-08-1982, the date of Bhagwati J.'s separate dissenting reasons, which are bound in the same report. In Chhannu Lal Verma v. State of Chhattisgarh (28-11-2018), para 19, a three-judge bench held that this Constitution Bench decision binds courts until it is duly revisited, while noting concern about inconsistent application. On 19-09-2022, in Suo Motu Writ Petition (Crl.) No. 1 of 2022, a three-judge bench referred to a five-judge bench the question of the separate hearing on sentence under s. 235(2) CrPC; the reference does not doubt the 'rarest of rare' test, and is yet to be decided.

Case

Criminal Appeals Nos. 78-79, 80-84, 85-86, 87 and 88-89 of 1981 and 419 of 1982

Bench

M.P. Thakkar, S. Murtaza Fazal Ali, A. Varadarajan (judgment by Thakkar, J.)

Provisions

Indian Penal Code, 1860, s. 302 (now Bharatiya Nyaya Sanhita, 2023, s. 103(1)); Code of Criminal Procedure, 1973, s. 354(3) (now Bharatiya Nagarik Suraksha Sanhita, 2023, s. 393(3), owner-supplied equivalence)

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Headnote

Sensitive matter. The underlying appeals concern killings that include children. The extracts use only the Court's statements of principle and the final order; no victim or child is named. Flagged for the owner's decision (the plan marked it not sensitive; the owner's rule treats matters involving minors as sensitive).

Murder · IPC s. 302 (BNS s. 103(1)) · Death sentence: rarest of rare cases · Aggravating and mitigating circumstances · Balance sheet of circumstances

The case, in the Court's words

In the present group of appeals we are now concerned with the death sentence imposed on appellants (i) Machhi Singh (ii) Kashmir Singh; (iii) Jagir Singh by the Sessions Court as confirmed by the High Court. [SCR p. 434]

Held

1. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. [SCR p. 431]
2. (i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) Before opting for the death penalty the circumstances of the ’offender’ also require to be taken into consideration alongwith the circumstances of the ’crime’. [SCR p. 433]
3. Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. [SCR p. 433]
4. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. [SCR p. 433]
5. (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? [...] (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ? [SCR p. 433]
6. In this background the guidelines indicated in Bachan Singh’s case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentences arises. [SCR p. 432]

Result

Appeals preferred by appellant Mohinder Singh being [...] Crl. Appeals Nos. Crl. 79/81 & 86 of 1981 are allowed. [...] In regard to the rest of the appeals by the rest of the appellants the orders of conviction and sentence passed by the lower courts are confirmed and all the appeals shall stand dismissed. [...] The death sentence imposed on the appellants named hereafter viz (i) Machhi Singh (ii) Kashmir Singh s/o Arjan Singh; (iii) Jagir Singh, having been confirmed, the sentence shall be executed in accordance with law. [SCR pp. 436-437]

Editorial note: subsequent treatment

Followed in Chhannu Lal Verma v. State of Chhattisgarh (28-11-2018), para 13, where the death sentence was set aside because the questions in this judgment were not answered.

Case

Criminal Appeal No. ______ of 2025 (arising out of Special Leave Petition (Crl.) No. 13119 of 2024) (appeal number blank as printed)

Bench

B.V. Nagarathna, Nongmeikapam Kotiswar Singh (judgment by Nongmeikapam Kotiswar Singh, J.)

Provisions

Indian Penal Code, 1860, ss. 299, 300, 302, 304 Part II and s. 84 (now Bharatiya Nyaya Sanhita, 2023, s. 100, s. 101, s. 103(1), s. 105 and s. 22; verified against the BNS text)
Indian Evidence Act, 1872, s. 105 (burden on accused for general exceptions) - BSA equivalent not checked

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Headnote

Murder · Culpable homicide not amounting to murder · Intention and mens rea · IPC s. 300 (BNS s. 101) · IPC s. 304 Part II (BNS s. 105)

The case, in the Court's words

In the case at hand, it can be said to have been proved beyond reasonable doubt that the appellant had caused the death of her two children and thus committed culpable homicide. [para 22]

The crucial question however is, whether she had the intention to cause death of her children or had the intention to cause such bodily injury which was likely to cause death or whether she had the conscious knowledge that it was imminently dangerous that in all probability, it would cause death, or such bodily injury as is likely to cause death and committed the act without any excuse for incurring the risk of causing death or such injury? [para 22]

Held

1. Once homicide is proved being committed by the appellant, the next consideration will be whether such homicide was “culpable homicide” within the meaning of Section 299 IPC. If it is found to be “culpable homicide”, further consideration will be whether it is “culpable homicide not amounting to murder” which is punishable under Section 304 IPC or “murder” as defined under Section 300 IPC, punishable under Section 302 IPC, under which the appellant has been convicted and punished by the Trial Court which was upheld by the High Court. [para 17]
2. From the above extracts, it can be understood that one of the criteria to determine, in any given case, as to whether the act amounts to “murder” or “culpable homicide not amounting to murder” is the presence or absence of intention of the offender. [para 21]
3. On the other hand, if the “intention” in causing the death or to causing such bodily injury is not so clear, the case will fall under the less stringent category of “culpable homicide not amounting to murder” as punishable under Section 304 IPC. [para 21]
4. When a person performs an act, he is attributed with the intention to cause the natural consequences that follows from the act performed. [...] However, it can be illusive when intention is not clearly spelt out or discernible, and the same has to be gathered from the surrounding facts and circumstances and the acts of the accused. [para 23]
5. This legal position is necessary for both the ingredients of “actus reus” and “mens rea”, though “mens rea” can sometimes be inferred from the nature of “actus reus”, and as far as “mens rea” is concerned, intention or guilty knowledge is certainly the most important facet. [para 25]
6. Under the circumstances, applying the practical tests elucidated in State of A.P. v. Rayavarapu Punnayya (supra) and Rampal Singh v. State of U.P. (supra) it can be said that the present case falls within the third category of “culpable homicide of the third degree” as the act was committed by the appellant without the intention of causing death, and the said culpable homicide would be covered under Part II of Section 304 IPC. [para 59]

Result

Accordingly, we convert the conviction of the appellant under Part II of Section 304 IPC from that of Section 302 IPC under which she was initially convicted and sentenced by the Trial Court which was upheld by the High Court. [...] Accordingly, she shall be entitled to be released forthwith, which we direct so. [paras 60-61]

Editorial note: subsequent treatment

Applies the practical tests of State of A.P. v. Rayavarapu Punnayya (1976) 4 SCC 382 and Rampal Singh v. State of U.P. (2012) 8 SCC 289 (para 59).