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This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender PRE |
The ingredients of clause "thirdly" of S. 300 IPC were brought out by the illustrious Judge in his terse language as follows: "12 PRE |
To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 'thirdly'; 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 PRE |
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 PRE |
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 PRE |
The learned Judge explained the third ingredient in the following words "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 PRE |
If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved PRE |
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 PRE |
Whether he knew of its seriousness, or intended serious consequences, is neither here nor there PRE |
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 ... |
These observations of Vivian Bose, J. have become locus classicus PRE |
The test laid down by Virsa Singh case4 for the applicability of clause "thirdly" is now ingrained in our legal system and has become part of the rule of law PRE |
Under clause thirdly of S. 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in... |
It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz PRE |
that the injury found to be present was the injury that was intended to be inflicted PRE |
Thus, according to the rule laid down in Virsa Singh case4 even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder PRE |
Illustration (c) appended to S. 300 clearly brings out this point PRE |
c) of S. 299 and cl PRE |
4) of S. 300 both require knowledge of the probability of the act causing death PRE |
It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses PRE |
It will be sufficient to say that cl PRE |
4) of S. 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty PRE |
Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid PRE |
The above are only broad guidelines and not cast-iron imperatives PRE |
In most cases, their observance will facilitate the task of the court PRE |
But sometimes the facts are so intertwined and the second and the third stages so telescoped into each, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages PRE |
The aforesaid principles have been consistently followed by this Court in several decisions PRE |
Reference in this regard may be made to the decision of this Court in Ruli Ram v. State of Haryana, (2002) 7 SCC 691 2002 Indlaw SC 1927; Augustine Saldanha v. State of Karnataka, (2003) 10 SCC 472; 2003 Indlaw SC 674 State of U. P. v. Virendra Prasad, (2004) 9 SCC 37; 2004 Indlaw SC 60 Chacko v. State of Kerala, (2004... |
2009 Indlaw SC 859 PRE |
That being the well settled legal position, when we test the factual background of the present case on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the High Court Ratio |
As already noted, it is quite clear from the record that there was an altercation preceding the incident Ratio |
The place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon Ratio |
Initially the accused-appellant also did not have any weapon with him but during the course of the incident he went inside and got a knife with the help of which he stabbed the deceased Ratio |
PW-7 Ratio |
in his cross examination has categorically stated that death due to stab injury was in consequence of Injury No. 1 and all other injuries were superficial in nature Ratio |
So, it was only Injury No. 1 which was fatal in nature Ratio |
Factually therefore, there was only one main injury caused due to stabbing and that also was given on the back side of the deceased and therefore, it cannot be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness Ratio |
Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties ... |
There is, therefore, provocation and the incident happened at the spur of the moment Ratio |
That being the factual position, we are of the considered view that the present case cannot be said to be a case u/s Ratio |
but it is a case falling under S. 304 Part II IPC Ratio |
It is trite law that S. 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death Ratio |
Accordingly, we convict the appellant under Section 304, Part II of IPC and sentence him to undergo imprisonment for a period of 7 years RPC |
His bail bonds shall stand cancelled and the appellant shall surrender immediately to serve out the remaining period of sentence RPC |
If, however, the appellant does not surrender by himself, the State shall take necessary steps to rearrest him to undergo the remaining part of sentence RPC |
The appeal stands disposed of in terms of aforesaid order RPC |
Appeal disposed of RPC |
These three appeals by special leave are directed against the order dated September 9,2004 passed by Intellectual Property Appellate Board (for short,'IPAB') whereby it ordered the removal of appellant's mark 'Infosys' from the register of trade marks in respect of computer stationery,computer manuals,printed matter fo... |
The appellant is Infosys Technologies Limited FAC |
It was incorporated and registered under the Companies Act,1956 on July 2,1981 in the name of Infosys Consultants Private Limited FAC |
The appellant got the trade mark 'Infosys' registered in 1987 in classes 16 and 9 in connection with computer stationery,computer manuals,printed manual for computer instruction and teaching materials; computer hardwares,computer interface,computer peripherals,electronics telex interface and in 1988 in class 7 in conne... |
On April 21,1992,the name of the company Infosys Consultants Pvt FAC |
Limited was changed to Infosys Technologies Pvt FAC |
Ltd.and thereafter on June 2,1992,the name was changed to the present name,i.e FAC |
Infosys Technologies Limited FAC |
The first respondent is Jupiter Infosys Limited FAC |
The first respondent was incorporated and registered in September 1978 under the name of Jupiter Agencies Pvt FAC |
Limited FAC |
The name of the first respondent was changed to Jupiter Infosys (P) Limited in August,1995 and now since July,2003,the name is changed to Jupiter International Limited FAC |
On October 11,1996,the appellant instituted a suit in the Calcutta High Court for perpetual injunction,inter alia,restraining the first respondent from infringing the appellant's mark 'Infosys' by using the mark 'Infosys' by itself or in combination with other marks in course of its trade FAC |
The appellant also prayed for an interim order in the suit FAC |
On November 22,1996,the Calcutta High Court by an ad-interim order restrained the first respondent from using the word 'Infosys' in any manner in relation to the goods for the time being FAC |
The ad-interim order was confirmed on November 29,1996 FAC |
The appellant having come to know of several instances of misuse of mark 'Infosys' also filed a writ petition (being writ petition no.14214 of 2000) before the Calcutta High Court,inter alia,praying that the Registrar of Companies be restrained from registering the companies bearing the name 'Infosys'.On September 13,2... |
In January 2001,the appellant filed yet another suit before the High Court of Judicature at Madras for permanent injunction restraining the first respondent from offering shares to the public as claimed in the Initial Public Offer (IPO) using 'Infosys'.The Single Judge of the Madras High Court passed an interim restrai... |
The said order was confirmed on May 22,2001 to remain operative till disposal of suit FAC |
The first respondent then filed three separate applications before the Madras High Court,inter alia,under Sections 46 and 56 of the Trade and Merchandise Marks Act,1958 FAC |
the 1958 Act').In O.P.No.764 of 2001,the first respondent prayed for the removal/rectification of the entry in the register of trade mark in respect of trade mark No.475269 in Class 16 while in the other two applications being O.P.No.765 of 2001 and O.P.No.766 of 2001,the first respondent prayed for removal/rectificati... |
The appellant opposed these applications on diverse grounds by filing counter affidavits FAC |
On August 12,2003,the Madras High Court framed the following issues: FAC |
a) Whether the mark applied for registration was used in respect of the goods for which the mark was registered FAC |
b) Whether the respondent had a bonafide intention to use the mark applied for under section 18 of the Trade and Merchandise Marks Act FAC |
c)Whether the mark registered in favour of the respondent is a service mark FAC |
d)Whether there is a non use of registered trade mark by the respondent for a period of over 5 years and 1 month FAC |
e)Whether the registered trade mark is disentitled for protection in a Court of Law under Section 11(e) of the Trade and Merchandise Marks Act FAC |
f)Whether the registered trade mark has lost its distinctiveness and is liable to be removed under section 32(c FAC |
g) Whether the respondent has committed fraud while obtaining registration of the mark And FAC |
h)To what further relief FAC |
The 1958 Act was repealed by the Trade Marks Act,1999 (for short,'the 1999 Act').In terms of Section 100 of the 1999 Act,the three petitions filed by the first respondent before the Madras High Court for rectification/removal of registered trade mark Nos.475269,475267 and 484837 were transferred to the IPAB FAC |
Some more facts may be noticed FAC |
The appellant filed yet another suit (being suit no.2115 of 2002) before Delhi High Court for infringement of trade mark and passing off against the first respondent FAC |
In that suit,the appellant also made an application for grant of temporary injunction FAC |
The vacation Judge of the Delhi High Court,on December 27,2002 passed an order of temporary injunction against the first respondent as follows: "Notice for 24th March,2003 before the Joint Registrar FAC |
Heard FAC |
Perused the averments made in the suit and application which are duly supported by documents on record FAC |
I am of the opinion that in case ex-parte ad-interim orders are not granted,the relief claimed itself may be rendered infructuous FAC |
Accordingly it is directed that pending further consideration of the matter after notice for the next date of hearing,the defendants are restrained by themselves,their directors,employees,agents and/or others acting on its behalf,from using the trade mark/corporate name INFOSYS or any other mark/name deceptively simila... |
Compliance of Order XXXIX Rule 3 CPC within three days FAC |
The said suit was transferred to the Court of the Additional District Judge,Tis Hazari Court,Delhi FAC |
In that suit,an affidavit came to be filed by the first respondent wherein it was stated that the name of the company has been changed from Jupiter Infosys Limited to Jupiter International Limited and a certificate to that effect has been issued by the Registrar of Companies,Kolkata under the Companies Act,1956 and no ... |
The relevant statement made in the affidavit dated July 14,2003 (we were informed that the date of the affidavit is July 14,2004) reads as follows: " That in the meantime the defendant has already changed the Trade Mark namely "Jupiter International Ltd." in place of "Jupiter Infosys Ltd FAC |
The copy of the incorporation on change of name which was issued by the registrar of the Companies are being marked and annexed herewith as Annexure A FAC |
That now there is no dispute between the plaintiff and defendant under the Trade Mark FAC |
Based on this affidavit,the suit was partially decreed in favour of the appellant on November 10,2004 FAC |
In 2007,however,the first respondent filed a suit in the Court of Additional District Judge,Delhi for setting aside the decree dated November 10,2004.That suit is said to be pending FAC |
The IPAB proceeded with the matter in light of the issues that were already framed by the High Court and heard the parties FAC |
The IPAB in the impugned order while dealing with the plea of limitation raised by the appellant held that the first respondent was the appropriate aggrieved party in the matter in view of the fresh cause of action having arisen to the first respondent on filing of Civil Suit No.71 of 2001 by the appellant before the M... |
The IPAB in the impugned order held that the trade mark Nos.475269,475267 and 484837 have not been used by the appellant for more than a period of five years and one month and the appellant also failed to make out that it had been in manufacturing or trading of the goods for which it had taken Registration Nos.475269,4... |
We heard Mr FAC |
Akhil Sibal,learned counsel for the appellant and Mr FAC |
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