Murder Clause Thirdly: An in-depth Analysis of Virsa Singh vs State of Punjab

Murder clause thirdly is one of the most problematic provisions under the family of section 300 of IPC. The reason this clause is so problematic because it punishes a person with the highest punishment for a crime which he did not intend, the complete consequence, in short, the clause punishes a person based on his actions and the after results even though the results are not completely intended or predicted. This provision is based on the common law principle that every man intends the natural consequence of his/her actions and punishes the accused, if proved, with life imprisonment in India and even with death punishment is some countries such as Singapore. This provision’s jurisprudential basis is based on the ‘principle of moral punishment’.

This concept of the so-called ‘moral punishment’ for unintended deaths is deviated from the French Penal Code, the Livingston Code of Louisiana, English law and even the Scots law, these are the main sources from where the Indian Penal Code is drafted[1]. The interpretation of this provision needs to be very carefully laid down so that only the most serious cases could be taken under it. This paper talks about one such interpretation, which is the main precedent on this provision. The case that is being discussed here is the Virsa Singh vs State of Punjab, 1958[2]. This paper argues that the Virsa Singh’s approach is flawed because it goes against the original provision in terms that it adds additional requirements which goes against the provision, and it also omits essential phrases and does not replace them with similar phrases and most importantly does not fix certain ambiguities of the provision. The author does this by citing the cases form both India and Singapore.

The essay goes in the following way, the total essay would be covered in three chapters. The first chapter is the introduction to the Virsa Singh’s approach. The second chapter would go into the various problems with the Virsa Singh’s approach and the main problems would be divided into four subparts and each would be explained in detail. The third chapter would be the conclusion.

The Virsa Singh’s Approach

In the case of Virsa Singh v. State of Punjab[3], the accused Virsa Singh gave a serious blow to the deceased on the torso and the victim succumbed. The accused claimed that he did not intend to cause death but only to do some bodily injury. The court ruled that this case falls under the provision of murder clause thirdly and laid down four provisions test for a person to be convicted under this provision. The test laid down as follows, 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 . 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[4]. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 “thirdly”[5].

The original provision reads as follows, Culpable homicide is murder-“If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death”[6].

Now let us analyse the provision that the Virsa Singh’s  approach differs from the original text in the sense that it includes new concepts, which deviate from the original text, and omits some important features of the section and it also fails to correct the ambiguities of the section.

 Problems With The Virsa Singh’s Approach

When Injuries are distinguishable

According to Justice Bose interpretation, in Virsa Singh’s approach, the third point states that the actual injury that was inflicted by the accused is the injury that was actually intended. Here the word ‘intended injury’ is not properly defined but it has three interpretation in a common-sensical way. The first, the accused inflicted the injury on the body part which is was intended, second, the accused inflicted the injury that was of ‘similar nature’ as intended, third, the injuries where the intended injury and the actual injury are conceptually distinct but not easily separable[7].

Let’s discuss each in detail, first interpretation limits the scope of section 300(3) because if the accused intended the injury on the head but inflicts it on the heart and the victim succumbs, in such a situation the accused would be acquitted because the injury was not on the same body part as intended. So this could be rejected. But this interpretation is taken because some other injury must not be there as per the Virsa Singh’s approach.

The second interpretation is where the accused, in the above situation, would be convicted as he intended the injury of a similar nature as the actual injury. Here similar injury would be something like to inflict a grievous injury. This interpretation has very high value due to the word ‘Similar Injury’ and this would cover a broad area and the accused cannot claim that the injury is not the same as intended. But there is a problem with this approach that is it is unclear how to set the boundaries of injuries of ‘similar nature’[8].

One such problem came in the case of Mohammad Yasin bin Hussin vs PP[9], in this case the accused while robbing the victim decided to rape her. In order to subdue the accused sat on her chest. The victim succumbed, but the cause of her death was that when the victim sat on the chest cardiac arrest resulted. Now the question is that could the accused be punished under section 300(3) because the accused never intended to cause injury by sitting on the chest but intended to cause injury by raping the victim. Here it can be seen that the nature of the injury is being considered as different. The Privy Council accepted the appeal and Lord Diplock stated  that “it was essential that the prosecution prove that in sitting on the victim he intended to inflict “some internal, as distinct from mere superficial injuries or temporary pain[10]”.

This ambiguity is caused due to the lack of a proper definition of the word ‘intended injury’ in the Virsa Singh’s approach. In fact, Lord Diplock’s conclusion is based on ‘failure on the part of prosecution to prove that the accused intended to cause the injury that in fact killed the victim[11]’. On the basis of the Virsa Singh’s approach this case would be sufficient to give an acquittal to the accused as the case could be put under the ‘accidental or unintentional’ injuries[12] and the accused never intended that ‘particular injury’.

The third interpretation, the injuries where the intended injury and the actual injury are conceptually distinct but not easily separable[13], for example, the accused intended to inflict an injury on the hand and does it but it cuts an artery and death is resulted from it. By following the original interpretation of the provision the accused could be punished with life imprisonment and death, in India and Singapore respectively. But such a punishment looks absurd as there is no connection between  the punishment and the moral culpability of a victim. For example, A murdered B and is running away and at the same time C came to stop him. A was so cautious in murdering another person and inflicts an injury on the hand to escape and in this situation an artery in C’s hand was cut due to the injury and C dies. Now if followed the Virsa Singh’s approach A would be liable for the death of C even though he intended a different injury and could not appreciate the actual injury.

This problem can be solved by considering the seriousness on the intended injury but this was not brought up in the Virsa Singh’s approach. In fact, the Virsa Singh’s approach rejects considering the seriousness of the injury and explicitly states so[14]. Lets discuss this point in further detail in the later parts.

The court recognised the difference between the intended injury and the actual injury on the same body part in the case of Laxman Kalu Nikalje v the State of Maharashtra[15], where the accused inflected a superficial injury on the chest of the victim, thereby severing an artery and caused death to the victim. Chief Justice Hidayatulla, stated that the intended injury did not include severance of the artery[16].

Now let’s come to the problems of the Virsa Singh’s approach in struggle cases[17]– In struggle cases, in some situations, the accused ended up inflicting a fatal injury in the course of the struggle, even though he did intend a totally different one. The Virsa Singh’s approach did not provide a good solution for this problem and the courts have gone as far as removing some key ingredients of the provision and also adding some superfluous words also.

In the case of Tan Joo Cheng vs PP[18] the court ruled that it is unnecessary to inquire whether if the intended injury is actually inflicted or not but only whether it is inflicted and it was not accidental. The court removed the important clause of intended injury, this could mean that the accused would be liable for even for minor injuries.

The Virsa Singh’s approach excludes cases where the bodily injury intended is not the same as the bodily injury actually inflicted, but this is not what the provision requires. As a result these cases are most likely lead to injustice under section 300(3)[19].

The problems to deal with the intended intention in struggle cases could be dealt with by considering the seriousness of the intended injury and this is done in the case of PP vs Ow Ah Cheng[20]. We must not forget that the Virsa Singh’s approach openly rejected considering the seriousness of the intended injury[21] this lays down a broad approach instead of a desirable narrow approach.

The Virsa Singh’s approach follows an objective approach

The approach laid down by justice Bose in Virsa Singh lays down an objective approach for the second clause of section 300(3)[22]. Which means once the intention to inflict a bodily injury is present the offender’s mental state is not considered. Now there are problems with this type of an approach one is already discussed above in the form of the Virsa Singh’s approach in cases where the intended injury is different from the actual injury.

The next problem of the objective approach is that the objective approach brings in the concept of ‘Luck’ in convicting the accused. Consider the following examples,

1. A inflicts an injury on B’s leg with the intention only to inflict a minor injury but a vein gets cut in B’s leg and he dies and this injury that he inflicted is sufficient in the ordinary course of nature to cause death.
2. C inflicts an injury on D’s leg with the intention only to inflict a minor injury and does so by missing a vein by 2 millimetres.

Now by assuming that both A and C do not know the human autonomy of their victims and A kills B purely by bad luck but not by any perfect planning to cut the vein. Now in these situations, if the Virsa Singh’s approach is followed, A would be given punished for life imprisonment and C would be punished with something considerably less[23]. Even a common man could find it easy that the punishment is unfair. This type of awarding punishment is completely against a criminal justice system which punishes offenders based on their moral culpability. Not only does the principle of moral culpability gets offended by this type of punishment but also the principle of fair labelling gets offended.

In the case of PP v. Lim Poh Lye[24], the accused stabbed the victim on the thigh with the intention to not let the accused escape, but an artery was cut in the thigh from which death resulted to the victim. The crucial question is whether the accused intended to cause that injury. If the Virsa Singh was followed the answer would definitely be “yes”[25], but the court did not follow the Virsa Singh’s approach and acquitted the victim as his intention was only to prevent the victim from escaping and not kill.

The same happened in the case of Harjinder Singh v Delhi Administration[26] , in this case the accused stabbed the victim on the thigh and the victim succumbed as an artery was cut in the leg, which resulted in the loss of blood of the victim and subsequently suffered death. The sessions court completely relied on the Virsa Singh’s approach and held that “In this case, the prosecution has proved that the bodily injury, the nature of which has been described above was present. This injury was caused with the pen knife deliberately. It was not accidental or unintentional. Injury of any other kind was not intended. This injury in the opinion of this doctor was sufficient in the ordinary course of nature to cause death. This being so the case 1958 SCR 1495 would apply and the offence which the accused, Jinda has committed falls under Section 302 of the Indian Penal Code”[27]. This is the clear cut problem of the Virsa Singh’s approach.

On appeal the High court made the same mistake by contending that the accused actions fall under the clause thirdly as the learned council were in the opinion that all the ingredients of the Virsa Singh’s approach are satisfied and the punishment under section 302 is valid.

On appeal the Supreme Court ruled that the first part of section 300(3) is not proved and this case would not fall under section 300(3). The effect of such decision is to stop the unnecessary reliance on objectivity by stating the subjectivity provided under the first part of section 300(3).

The reason for the sessions and high court error is that over reliance on the objectivity of Virsa Singh’s approach on one hand and the lack of a proper definition for the word ‘intended injury’ in the Virsa Singh’s judgement.

The Virsa Singh approach ignores seriousness of the injury

 The Virsa Singh approach does not consider the seriousness of the intended injury[28] or the serious of the injury in deciding the culpability of the accused. Any punishment should aim at bridging the act of gap between the moral culpability and actual injury. For doing this the accused’s mens rea should correspond with the actual injury, that is there should be an guilty mind or intention. One of the ways of identifying the intention of the offender is by considering the seriousness of the injury. Seriousness of the intended injury could be used to bridge the gap or break the gap between the punishment and moral culpability and this was rejected in the Virsa Singh judgement. In the Virsa Singh approach, when the learned counsel pointed towards the case of Emperor vs Sardar khan Jaridkhan[29], the court stated that connecting seriousness of the injury is not to be considered as it is not mentioned in the section.

The court stated that “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[30]. The court further stated that “Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. It further commented that “Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question[31]”. With all due respect the seriousness of the injury is being used to identify the seriousness of the intended injury, which is a mirror of the intention of the offender and not as a separate entity which ignores intention.

By rejecting the seriousness of the injury the court further narrowed the objective inquiry and widened the gap between the moral culpability and the actual injury.

In the case PP vs Ow Ah Cheng[32], the accused while stealing some items from the deceased house got caught by the deceased. In the struggle to stop her from screaming the accused covered her face with a pillow and caught her throat and the deceased succumbed. The court in convicting the accused under section 300(3) felt that the harm used would have to be extreme as to be consistent only with an intent to do serious harm.[33] It can be seen the court appreciated the value of intent to do serious harm, moving to a more subjective approach, as opposed to a more strict objective interpretation of Virsa Singh.

This approach certainly help in bridging the gap between the moral culpability and the injury inflicted. By taking seriousness of the intended injury, in cases where the intended injury and the actual injury  are different the conviction could be set if the former corresponds with the intention to inflict a serious injury.

The Virsa Singh’s approach in limits the scope of section 300(3), emphasises focus on certain wrongful factors such as giving emphasis to finding whether the accused intended the actual injury and ,the other factor, it searches on the seriousness of the actual injury this factor is wrong as to achieve moral culpability the focus should be on the severity of the intended injury and it is worth remembering that this might not be the same as the actual injury[34]. The Virsa Singh’s approach, thus, acquits accused persons, when they inflicted a more serious or equally serious injury where intended injury is different from the actual injury[35].

One more thing to remember is that seriousness of the injury is considered subtly ever though it is not explicitly mentioned. For example, a person intends to smash another on the head but smashes on the heart and the victim dies. Now while awarding sentencing under section 300(3) the nature of the injury is taken into consideration but if we look keenly, is the seriousness of the intended injury not taken while awarding the punishment? The truth is that it is embedded in the considering the nature of the injury.

The Virsa Singh’s approach does not correspond with the Illustration b of section 300

The Illustration (b) of section 300 reads as follows: “(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death”[36].

In the above illustration it can be seen that the although A intended an injury which is not fatal to an ordinary person but is fatal to Z, he would nevertheless be liable as he intends to cause death to Z. This liability of A is attributed to the severity of the intended injury, which corresponds to the severity of the actual injury even through it is a non-fatal injury. It can be said that, Illustration (b) shows that the focus of the inquiry of section 300(3) is on the mens rea, i.e., the severity of the intended injury regardless of whether this is the same as the actual injury[37]. The Virsa Singh’s approach is in direct contradiction with this section is the sense that it does not take into consideration of cases where there is a difference between the intended injury and the actual injury and acquits the accused, where illustration(b) mandates conviction.

It can be said that illustration(b) corresponds to section 300(2) but it also sheds light on the scope of section 300(1) and section 300(3)[38].

Conclusion

From the above points we can see that the Virsa Singh’s approach is inconsistent with the original reading of section 300(3) as it does not consider cases where the injuries are distinguishable from the original actual.  The problem arises when the interpretation of ‘intended injury’ is not proper and this leaves the crucial problem. One more thing is that the Virsa Singh’s approach does not correct the inherent ambiguities, which were existing during the 1860’s times where the times are different. One of the important factor is considering the serious intended injury, which can very much help in bridging the gap between the moral culpability and actus reus. Apart from making such ambiguous approaches, the Virsa Singh’s approach goes against the original provisions as it does not acknowledge the gist of Illustration(b) of section 300 and goes against the said illustration and further widens the gap ambiguity. And for these very reasons we can say that the Virsa Singhs’ approach is in complete distance with section 300(3).

As Prof. Victor V Ramraj argued in “Murder without intention to kill” a qualified subjective approach would be feasible for convicting or acquitting the accused as this approach would consider the seriousness of the intended injury while giving judgements and apart from this the approach would also hold that the accused although did not intend the original injury should have some subjective thought that the injury may kill a person[39].

The history of section 300(3) can be linked with the theory of deterrence but the effectiveness of its deterrence is not accurate as the offender is not required to intend the consequences and also does not need to foresee the fatality[40]. The Virsa Singh’s approach does not seem to correct these issues but instead abides with the ongoing practises.

The Virsa Singh’s approach goes against the principle of fair labelling. The principle states that the crimes should be marked according to the type and the degrees of wrongdoing and should be according to the nature and seriousness of the crime[41].

By ignoring these important principles the Virsa Singh’s approach does not form as a good interpretation of section 300(3).

About the Author: Sayaboyena Nikhil Sai Krishna is a first year student at National Law University, Delhi.

Note: The views in this article are personal only.

References 

[1] Nathan R, “Moralizing Section 300(c) of the Singapore and Indian Penal Code : A Conceptual Analysis” [2010] EBC 146.

[2] 1958 AIR  465

[3] Ibid

[4] Supra note at 2.

[5] Supra note at 2.

[6] Section 300(3) Of IPC

[7] Alan Khee Jin Tan, ‘Revisiting Section 300(c) Murder in Singapore’ (2005) 17 SAcLJ 693.

[8] Tan Kah Wai, ‘Going beyond Lim Poh Lye: Examining AFR and Its Impact on Section 300(C) of the Penal Code’ (2018-2019) 36 Sing L Rev 75, in this article the author questions the extent to which there must be the difference between the intended injury and the actual injury to convict or acquit the victim.

[9] [1975-1977] SLR 34 (“Mohamed Yasin”), taken from murder without the intention to kivic

[10] Supra note at 8

[11] ibid

[12] Ibid

[13] Supra note at 7

[14] Supra note at 2

[15] [1968] 3 SCR 685 taken from “The definition of murder under the penal code by M.Sornarajah”.

[16] ibid

[17] Supra note at 7

[18] [1992] 1 SLR 620 taken from revisiting section 300(3) in Singapore.

[19] McBride M, “SECTION 300(C) OF THE INDIAN PENAL CODE: FROM FIRST PRINCIPLES” (2014) 26 Naitonal Law School of India Review 77

[20] [1992] 1 SLR 797

[21] Supra note at 2.

[22] Ramraj Vv, “Murder without an Intention to Kil” [2000] Singapore journal of legal studies 560 <https://www.jstor.org/stable/24868151> accessed 2022.

[23] Section 321 of IPC- Voluntary causing hurt.

[24] [2005] 2 SLR 130 taken from managing mens rea in Singapore by Michael Hor.

[25] Supra note at 23.

[26] [1968] 2 SCR 246

[27] Ibid.

[28] Hor M, “Managing Mens Rea in Singapore” [2006] EBC 315.

[29] (1917) ILR 41 Bom 27, 29.

[30] Supra note at 2.

[31] Supra note at 2

[32] [1992] 1 SLR 797 taken from revisiting s 300(c) murder in Singapore by Victor V Ramraj.

[33] [1992] 1 SLR 797 taken from murder without intention to kill.

[34] Zhengxian JT, “MURDER MISUNDERSTOOD: FUNDAMENTAL ERRORS IN SINGAPORE, MALAYSIA AND INDIA’S ‘LOCUS CLASSICUS’ ON SECTION 300(C) MURDER” [2012] Singapore Journal of Legal Studies 112 <https://www.jstor.org/stable/24871207> accessed 2022.

[35] Ibid.

[36] Illustration b section 300 of IPC

[37] Supra note at 32.

[38] Supra note at 25.

[39] Supra note at 21.

[40] Supra note at 1

[41] Supra note at 1.