1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 48 of 2020

Judgment Reserved On : 14.09.2023

Judgment Delivered On : 27.09.2023

•Manav Pandey S/o Om Prakash Pandey Aged About 29 Years R/o

Sarthi Chowk, Lakhanpur, P. S. Azad Chowk, Raipur Chhattisgarh

---- Appellant

Versus

•State Of Chhattisgarh Through Police Station Azad Chowk, Raipur

Chhattisgarh

---- Respondent

CRA No. 191 of 2020

•Ritesh Ragde @ Nitesh Kumar Ragde S/o Shri Amit Ragde Aged

About 18 Years R/o Jai Kali Chouck, Bhoi Para Police Station-

Azad Chouck, District Raipur, Chhattisgarh.

---- Appellant

Versus

•State Of Chhattisgarh Through The Police Station- Azad Chouck,

District Raipur, Chhattisgarh.

---- Respondent

For Respective Appellants : Shri Rahil Arun Kochar and Miss Saumya

Sharma, Advocates.

For Respondent : Shri Praveen Shrivastava, PL.

Hon'ble Shri Goutam Bhaduri &

Hon'ble Shri Deepak Kumar Tiwari, JJ

C A V JUDGMENT

The following judgment of the Court was passed by Deepak Kumar 2023:CGHC:23929-DB

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Tiwari, J.

1.The aforesaid Appeals are being disposed of by this common

judgment, as they arise out of the same incident.

2.The appellants have been convicted for commission of offence

under Section 302 read with Section 34 of the IPC and sentenced to

undergo RI for life and to pay a fine of Rs.20,000/- each, in default

of payment of fine, each of the appellant was directed to undergo SI

for one year, vide judgment dated 3

rd

December, 2019 passed by the

2

nd

Additional Judge to the Court of 1

st

Additional Sessions Judge,

Raipur in ST No.25/2019.

3.Prosecution case, in brief, is that complainant Mohd. Sharif has

lodged an FIR with the PS Azad Chowk on 21.9.2018 stating that

on 20.9.2018 at about 10 pm after taking dinner he went to his room

for sleeping and his son Mohd. Siraj went outside the home with his

friends for taking stroll. Next day morning, one Sheikh Alam came

to his house and informed him that accused Manav Pandey and his

two friends have assaulted his son Mohd. Siraj with knife and sticks

and he is lying unconscious at Jai Kali Chowk, Bhoipara. After

receiving the information, the complainant went to the spot where

he came to know that on account of old enmity, accused Manav

Pandey and his two friends have assaulted his son. It is stated that

accused Manav Pandey has caused grievous injuries by giving knife

blow on his abdomen. His friends Prashant Patel and Aman

Bhargav took him to Yashwant Hospital for treatment from where 2023:CGHC:23929-DB

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on the advise of the doctors, he was taken to Ramkrishna Care

Hospital for treatment where he was declared brought dead. On

receiving information, Dehati Merg intimation (Ex.-P/1) and

Dehati First Information Report (Ex.-P/2) were recorded and

subsequently, FIR (Ex.-P/21) was registered.

4.During investigation, statements of the witnesses were recorded.

Statements of the accused persons were also recorded. Pursuant to

memorandum statement of accused Manav Pandey, one knife was

recovered vide Ex.-P/12 and in pursuance of the memorandum

statement of accused Ritesh, one club was recovered vide Ex.-P/13.

Spot map was prepared vide Ex.-P/4. Postmortem on the dead

body of the deceased was conducted by Dr. M. Nirala (PW-6), who

submitted his report vide Ex.-P/17, wherein he opined that the cause

of death is haemorrhage and shock, and the death is homicidal in

nature.

5.After completion of investigation, charge sheet was filed against the

appellants for offence under Sections 302/34 of the IPC. On the date

of the incident, since one juvenile conflict with law ‘A’ was involved,

his trial was conducted at the Juvenile Justice Board, Raipur. The

charges were read over and explained to the appellants, however,

the appellants denied the same and claimed to be tried. The trial

Court after hearing learned counsel for the parties and on the basis

of material available on record, convicted and sentenced the

appellants as mentioned in para-1 of this judgment. 2023:CGHC:23929-DB

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6.In order to prove its case, the prosecution has examined as many as

12 witnesses and exhibited 25 documents. Statements of the accused

persons were recorded under Section 313 of the CrPC wherein the

accused pleaded innocence and false implication.

7.Learned counsel for appellants would submit that the trial Court

has not appreciated the evidence in its proper perspective. Sheikh

Alam (PW2), Aman Bhargav (PW-4), Prashant Patel (PW-10) and

Mohammad Aarif (PW-12) are related to the deceased, therefore,

they are interested witnesses. There are various contradictions and

omissions in their evidence and therefore their evidence is not

credible. Though the incident happened in a crowded place, but the

prosecution has failed to examine any witness. They would further

submit that the offence under Section 302 of the IPC would not be

attracted and the case would squarely fall under Section 304 part-I

of the IPC. Learned counsel appearing on behalf of appellant

Manav Pandey has placed reliance on the judgments in the matters

of Arjun and Another Vs. State of Chhattisgarh

1

and Gurmukh

Singh Vs. State of Haryana

2

.

8.Miss Saumya Sharma, learned counsel would submit that no test

identification parade was conducted and the name of accused

Ritesh is also not mentioned in the FIR and hence non-conduction

of TIP is fatal. She would further submit that even in the diary

statement recorded under section 161 of the Cr.P.C, no eyewitness

has named the appellant and from appellant Ritesh Ragde, only one

1 (2017) 3 SCC 247

2 (2009) 15 SCC 635 2023:CGHC:23929-DB

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club has been recovered which was also not sent to the FSL for

examination, therefore, there is no evidence against him and he is

entitled for benefit of doubt as his name has come for the first time

before the Court.

9.On the other hand, learned counsel for the State supports the

impugned judgment and submits that the incident has been

witnessed by more than one eyewitnesses and there is no dent in

their testimonies, therefore, the judgment is well-merited and does

not call for any interference.

10.We have heard learned counsel for the parties at length and

minutely perused the entire record.

11.The first question for consideration is whether the death of deceased

Mohd. Siraj was homicidal in nature?

12.Learned trial Court has recorded an affirmative finding in this

regard on the basis of medical opinion of Dr. M. Nirala (P.W.-6) as

well as postmortem report (Ex. P/17) wherein the following injuries

were found on the body of the deceased:

“1. Stab wound present on left side middle quadrant

of abdomen 1x 0.5 cm. Blood oozing out from

incised wound.

2. Abrasion present on left knee 1x1 cm and

medially from left knee 1 0.5 cm.

×

3. Grazed Abrasion present on left toe medially 3 1

×

cm and on right side toe medially 3.5 1 and 1 x 0.5

×

cm.”

13.The doctor has opined that Injury No.1 (intestinal injury) was

caused with hard, sharp and pointed object. Injuries No. 2 & 3 were 2023:CGHC:23929-DB

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caused by hard and blunt object. Duration of the injuries within 24

hours prior to death and sufficient to cause death and death was

homicidal in nature. He has categorically denied in his cross-

examination that if any person is dashed against any trident or falls

on any sharp object, such injuries could be caused. Taking into

consideration the entire evidence available on record and looking to

the injuries sustained by the deceased and relying upon the medical

opinion of Dr. M. Nirala (P.W.6) as well as postmortem report (Ex.

P/17), we are of the considered opinion that learned trial Court has

rightly held the death of deceased Mohd. Siraj to be homicidal in

nature. Moreover, the fact that death of the deceased was

homicidal in nature has not even been seriously disputed by learned

counsel for the appellants. As such, we hereby affirm the said

finding recorded by the trial Court that the death of deceased

Mohd. Siraj is homicidal in nature.

14.The next question for consideration is whether the appellants are

the perpetrators of the crime in question?

15.Aman Bhargav (PW-4) and Prashant Patel (PW-10) have

categorically deposed that on the date of the incident, they along

with deceased Md. Siraj had gone to see Moharram Procession and

they were watching the said procession from near Kankali Mata

Mandir, and at that time, Appellant Manav Pandey caused stab

injury to the deceased. They further stated that other co-accused has

also assaulted the deceased by using club. They both had also taken 2023:CGHC:23929-DB

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the deceased after the incident to Yashwant Hospital wherefrom

they took to him to Ramkrishna Hospital where he was declared

brought dead.

16.Sheikh Alam (PW-2) has also witnessed the incident and deposed

that Aman Bhargav (PW-4) and one Kitu took the deceased to the

hospital and he had gone to inform the father of the deceased,

Mohd. Sarif (PW-1). The father of the deceased has stated that on

getting information from these witnesses that his son was assaulted

by Appellant Manav Pandey and his two friends by using knife and

club and the deceased was lying in injured condition at Jai Kali

Chowk, he reached there, where he got information that Aman

(PW-4) and Prashant (PW-10 ) already took him to the hospital,

firstly he reached Yashwant Hospital and then reached Ramkrishna

Hospital. The doctor has declared his son brought dead. He has

lodged the Dehati (Zero) Merg intimation (Ex.P-1) and Dehati

(Zero) F.I.R vide (Ex.P-2) on same day of the incident i.e.

21.09.2018 at 8.20 hours. He had reported the incident which took

place on 21.09.2018 at 4.10 hours and on the basis of the same

F.I.R (Ex. P-21) and Merg intimation (Ex.P-22) were recorded by

D. D. Verma, A.S.I. (PW-9). In the said reports, the name of only

Appellant Manav Pandey was mentioned that he assaulted the

deceased on his abdomen by using knife and at that time one of his

friends had caught hold of the deceased, and one another friend had

assaulted him by using club. 2023:CGHC:23929-DB

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17.During investigation, no test identification parade was conducted as

the names of other two friends were not mentioned in the FIR (Ex.

P-21). Even eyewitnesses namely, Aman Bhargava (P.W.4) in his

statement recorded under Section 161 Cr.P.C. (Ex.D-1), Prashant

Patel @ Kitu (PW-10) in Ex.D-3, Mohsin Khan (PW-11) in Ex. D-4

and Mohd. Aarif (PW-12) in Ex. P-25, have not named other co-

accused Ritesh Ragde @ Nitesh Kumar Ragde.

18.Krishna Kumar Sahu (PW-7), Sub Inspector, has recorded

Memorandum Statement (Ex. P-10) of Appellant Manav Pandey,

and Appellant Ritesh vide Ex. P-11 at the same time on 21.09.2018

at 15.00 hours at Police Station Azad Chowk, Raipur, in pursuance

of which from accused Manav Pandey, a blood stained knife vide

seizure memo Ex. P-12, and from Ritesh Ragde one club vide Ex. P-

12 were recovered in the presence of Shayan Das (PW-3), who

corroborated the said fact.

19.Dr. M. Nirala (PW-6) has proved his report (Ex. P-18). He has

stated that he examined the blood stained knife which was allegedly

recovered from Appellant Manav Pandey and opined that the

injury which was caused to the deceased on his stomach could be

inflicted from the said knife. He had sealed the knife and sent the

same to the FSL to confirm human blood stain on it. In the F.S.L.

report (Ex. P-24), the soil which was collected from the spot (Art.-

A), clothes of the deceased Art. C-1 & C-2, his underwear C-3 and

on the knife Art. -D blood was found and the same was 2023:CGHC:23929-DB

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disintegrated on these articles, so the origin and blood group could

not be ascertained, as the sample was not sufficient for further

examination.

20.From the above evidence, it is explicit that accused Ritesh Ragde

has not been named in the F.I.R. and also the eyewitnesses have

also not named him in their diary statement, and further no test

identification parade was done, and the name of this accused came

for the first time before the Court and the same cannot be acted

upon safely. When the name of other assailant was not known

during the investigation and TIP was also not done, appellant

Ritesh was roped only on the basis of Memorandum Statement (Ex.

P-11) through which only one club was recovered vide Ex. P-12 and

the same is also not sufficient to connect him with the crime in

question. Further the said memorandum and recovery was also

recorded at the same time when the memorandum of main assailant

Manav Pandey, who had used the knife, was recorded, though

noone has disclosed the name of Appellant Ritesh that he had also

participated in the said crime during the investigation.

21.For the foregoing, the aforesaid infirmities in the evidence available

on record and the role attributed to appellant Ritesh, does not, in

our opinion, establish that he had shared the common intention

with main accused Manav Pandey who caused stab wound to the

deceased by using knife and, therefore, he is entitled for the benefit

of doubt. Hence the conviction of Appellant Ritesh Ragde 2023:CGHC:23929-DB

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under Section 302 read with Section 34 IPC is not sustainable.

22.It is well settled that motive is insignificant where the eyewitnesses

are available. In the instant case, right from the beginning, the case

of prosecution is consistent that appellant Manav Pandey had

played prominent role in the said crime by using the knife, which

was also seen by eyewitnesses namely, Aman Bhargav (PW-4), &

Prashant Patel (PW-10) and they had also taken him to the hospital,

and other witness Sheikh Alam (PW-2), immediately after the

incident, informed the father Mohd. Sharif (PW-1), who had

promptly lodged the merg intimation and F.I.R, in which the name

of Appellant Manav Pandey and his role was mentioned and the

same was also proved, and there was nothing to disbelieve the same.

23.Now the only question arises whether his act attracts Section 302 of

the IPC or any lesser offences in the proved facts and circumstances

of the case.

24.In the matter of Stalin v. State represented by the Inspector of

Police

3

, it was observed that when single injury was caused by the

accused, offence under Section 302 IPC would be attracted or not,

depends on facts and circumstances of each case and there is no

principle that in all cases of a single blow Section 302 IPC is not

attracted. Legal position was summarised and the relevant paras

read as under :

“7.1.1. In Mahesh Balmiki v. State of M.P.

[Mahesh Balmiki v. State of M.P., (2000) 1

SCC 319: 2000 SCC (Cri) 178], this Court while

3 (2020) 9 SCC 524 2023:CGHC:23929-DB

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deciding the question of whether a single blow

with a knife on the chest of the deceased would

attract Section 302 IPC, held thus: (SCC pp.

322-23, para 9)

“9. … there is no principle that in all

cases of a single blow Section 302 IPC is not

attracted. A single blow may, in some cases,

entail conviction under Section 302 IPC, in

some cases under Section 304 IPC and in some

other cases under Section 326 IPC. The

question with regard to the nature of offence

has to be determined on the facts and in the

circumstances of each case. The nature of the

injury, whether it is on the vital or non-vital

part of the body, the weapon used, the

circumstances in which the injury is caused and

the manner in which the injury is inflicted are

all relevant factors which may go to determine

the required intention or knowledge of the

offender and the offence committed by him. In

the instant case, the deceased was disabled

from saving himself because he was held by the

associates of the appellant who inflicted though

a single yet a fatal blow of the description

noted above. These facts clearly establish that

the appellant had the intention to kill the

deceased. In any event, he can safely be

attributed the knowledge that the knife-blow

given by him was so imminently dangerous that

it must in all probability cause death or such

bodily injury as is likely to cause death.”

7.1.2. In Dhirajbhai Gorakhbhai Nayak v.

State of Gujarat [Dhirajbhai Gorakhbhai

Nayak v. State of Gujarat, (2003) 9 SCC 322:

2003 SCC (Cri) 1809], this Court while

discussing the ingredients of Exception 4 of

Section 300 IPC, held thus: (SCC pp. 327-28,

para 11)

“11. The fourth exception of Section

300 IPC covers acts done in a sudden fight. The

said Exception deals with a case of prosecution

(sic provocation) not covered by the first

exception, after which its place would have

been more appropriate. The Exception is

founded upon the same principle, for in both

there is absence of premeditation. But, while in 2023:CGHC:23929-DB

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the case of Exception 1 there is total

deprivation of self-control, in case of Exception

4, there is only that heat of passion which

clouds men's sober reason and urges them to

deeds which they would not otherwise do.

There is provocation in Exception 4 as in

Exception 1, but the injury done is not the

direct consequence of that provocation. In fact,

Exception 4 deals with cases in which

notwithstanding that a blow may have been

struck, or some provocation given in the origin

of the dispute or in whatever way the quarrel

may have originated, yet the subsequent

conduct of both parties puts them in respect of

guilt upon an equal footing. A “sudden fight”

implies mutual provocation and blows on each

side. The homicide committed is then clearly

not traceable to unilateral provocation, nor

could in such cases the whole blame be placed

on one side. For if it were so, the Exception

more appropriately applicable would be

Exception 1. There is no previous deliberation

or determination to fight. A fight suddenly

takes place, for which both parties are more or

less to be blamed. It may be that one of them

starts it, but if the other had not aggravated it

by his own conduct it would not have taken the

serious turn it did. There is then mutual

provocation and aggravation, and it is difficult

to apportion the share of blame which attaches

to each fighter. The help of Exception 4 can be

invoked if death is caused (a) without

premeditation, (b) in a sudden fight, (c)

without the offenders having taken undue

advantage or acted in a cruel or unusual

manner, and (d) the fight must have been with

the person killed. To bring a case within

Exception 4 all the ingredients mentioned in it

must be found. It is to be noted that the “fight”

occurring in Exception 4 to Section 300 IPC is

not defined in IPC. It takes two to make a

fight. Heat of passion requires that there must

be no time for the passions to cool down and in

this case, the parties had worked themselves

into a fury on account of the verbal altercation

in the beginning. A fight is a combat between

two and more persons whether with or without

weapons. It is not possible to enunciate any

general rule as to what shall be deemed to be a 2023:CGHC:23929-DB

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sudden quarrel. It is a question of fact and

whether a quarrel is sudden or not must

necessarily depend upon the proved facts of

each case. For the application of Exception 4,

it is not sufficient to show that there was a

sudden quarrel and there was no

premeditation. It must further be shown that

the offender has not taken undue advantage or

acted in a cruel or unusual manner. The

expression “undue advantage” as used in the

provision means “unfair advantage”.”

7.1.3. In Pulicherla Nagaraju v. State of A.P.

[Pulicherla Nagaraju v. State of A.P., (2006) 11

SCC 444: (2007) 1 SCC (Cri) 500], this Court

while deciding whether a case falls under

Section 302 or 304 Part I or 304 Part II IPC,

held thus: (SCC pp. 457-58, para 29)

“29.Therefore, the Court should

proceed to decide the pivotal question of

intention, with care and caution, as that will

decide whether the case falls under Section 302

or 304 Part I or 304 Part II. Many petty or

insignificant matters — plucking of a fruit,

straying of cattle, quarrel of children, utterance

of a rude word or even an objectionable glance,

may lead to altercations and group clashes

culminating in deaths. Usual motives like

revenge, greed, jealousy or suspicion may be

totally absent in such cases. There may be no

intention. There may be no premeditation. In

fact, there may not even be criminality. At the

other end of the spectrum, there may be cases

of murder where the accused attempts to avoid

the penalty for murder by attempting to put

forth a case that there was no intention to

cause death. It is for the courts to ensure that

the cases of murder punishable under Section

302, are not converted into offences punishable

under Section 304 Part I/II, or cases of culpable

homicide not amounting to murder, are treated

as murder punishable under Section 302. The

intention to cause death can be gathered

generally from a combination of a few or

several of the following, among other,

circumstances: (i) nature of the weapon used;

(ii) whether the weapon was carried by the

accused or was picked up from the spot; 2023:CGHC:23929-DB

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(iii) whether the blow is aimed at a vital part of

the body; (iv) the amount of force employed in

causing injury; (v) whether the act was in the

course of sudden quarrel or sudden fight or

free for all fight; (vi) whether the incident

occurs by chance or whether there was any

premeditation; (vii) whether there was any

prior enmity or whether the deceased was a

stranger; (viii) whether there was any grave and

sudden provocation, and if so, the cause for

such provocation; (ix) whether it was in the

heat of passion; (x) whether the person

inflicting the injury has taken undue advantage

or has acted in a cruel and unusual manner;

(xi) whether the accused dealt a single blow or

several blows. The above list of circumstances

is, of course, not exhaustive and there may be

several other special circumstances with

reference to individual cases which may throw

light on the question of intention. Be that as it

may.”

“7.1.4. In Singapagu Anjaiah v. State of A.P.

[Singapagu Anjaiah v. State of A.P., (2010) 9

SCC 799: (2010) 3 SCC (Cri) 1498], this Court

while deciding the question whether a blow on

the skull of the deceased with a crowbar would

attract Section 302 IPC, held thus: (SCC p.

803, para 16)

“16. In our opinion, as nobody can

enter into the mind of the accused, his intention

has to be gathered from the weapon used, the

part of the body chosen for the assault and the

nature of the injuries caused. Here, the

appellant had chosen a crowbar as the weapon

of offence. He has further chosen a vital part of

the body i.e. the head for causing the injury

which had caused multiple fractures of skull.

This clearly shows the force with which the

appellant had used the weapon. The

cumulative effect of all these factors irresistibly

leads to one and the only conclusion that the

appellant intended to cause death of the

deceased.”

7.1.5. In State of Rajasthan v. Kanhaiya Lal

[State of Rajasthan v. Kanhaiya Lal, (2019) 5

SCC 639: (2019) 2 SCC (Cri) 674] this Court in 2023:CGHC:23929-DB

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paras 7.3, 7.4 and 7.5 held as follows: (SCC pp.

643-44)

“7.3. In Arun Raj [Arun Raj v.

Union of India, (2010) 6 SCC 457 : (2010) 3

SCC (Cri) 155] this Court observed and held

that there is no fixed rule that whenever a

single blow is inflicted, Section 302 would not

be attracted. It is observed and held by this

Court in the aforesaid decision that nature of

weapon used and vital part of the body where

blow was struck, prove beyond reasonable

doubt the intention of the accused to cause

death of the deceased. It is further observed

and held by this Court that once these

ingredients are proved, it is irrelevant whether

there was a single blow struck or multiple

blows.

7.4. In Ashokkumar Magabhai

Vankar [Ashokkumar Magabhai Vankar v.

State of Gujarat, (2011) 10 SCC 604 : (2012) 1

SCC (Cri) 397], the death was caused by single

blow on head of the deceased with a wooden

pestle. It was found that the accused used

pestle with such force that head of the deceased

was broken into pieces. This Court considered

whether the case would fall under Section 302

or Exception 4 to Section 300 IPC. It is held by

this Court that the injury sustained by the

deceased, not only exhibits intention of the

accused in causing death of victim, but also

knowledge of the accused in that regard. It is

further observed by this Court that such attack

could be none other than for causing death of

victim. It is observed that any reasonable

person, with any stretch of imagination can

come to conclusion that such injury on such a

vital part of the body, with such a weapon,

would cause death.

7.5. A similar view is taken by this

Court in the recent decision in Leela Ram

[State of Rajasthan v. Leela Ram, (2019) 13

SCC 131 : (2019) 4 SCC (Cri) 528] and after

considering a catena of decisions of this Court

on the issue on hand i.e. in case of a single

blow, whether a case falls under Section 302 or

Section 304 Part I or Section 304 Part II, this 2023:CGHC:23929-DB

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Court reversed the judgment [Leela Ram v.

State of Rajasthan, 2008 SCC OnLine Raj 945]

and convicted the accused for the offence under

Section 302 IPC. In the same decision, this

Court also considered Exception 4 of Section

300 IPC and observed in para 19 as under:

(Leela Ram case [State of Rajasthan v. Leela

Ram, (2019) 13 SCC 131 : (2019) 4 SCC (Cri)

528], SCC pp. 140-41)

‘19. … Under Exception 4, culpable

homicide is not murder if the stipulations

contained in that provision are fulfilled. They

are: (i) that the act was committed without

premeditation; (ii) that there was a sudden

fight; (iii) the act must be in the heat of passion

upon a sudden quarrel; and (iv) the offender

should not have taken undue advantage or

acted in a cruel or unusual manner.’”

7.1.6. In Bavisetti Kameswara Rao [Bavisetti

Kameswara Rao v. State of A.P., (2008) 15

SCC 725 : (2009) 3 SCC (Cri) 175], this Court

has observed in paras 13 and 14 as under: (SCC

pp. 729-31)

“13. It is seen that where in the

murder case there is only a single injury, there

is always a tendency to advance an argument

that the offence would invariably be covered

under Section 304 Part II IPC. The nature of

offence where there is a single injury could not

be decided merely on the basis of the single

injury and thus in a mechanical fashion. The

nature of the offence would certainly depend

upon the other attendant circumstances which

would help the court to find out definitely

about the intention on the part of the accused.

Such attendant circumstances could be very

many, they being (i) whether the act was

premeditated; (ii) the nature of weapon used;

(iii) the nature of assault on the accused. This is

certainly not an exhaustive list and every case

has to necessarily depend upon the evidence

available. As regards the user of screwdriver,

the learned counsel urged that it was only an

accidental use on the spur of the moment and,

therefore, there could be no intention to either

cause death or cause such bodily injury as 2023:CGHC:23929-DB

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would be sufficient to cause death. Merely

because the screwdriver was a usual tool used

by the accused in his business, it could not be

as if its user would be innocuous.

14. In State of Karnataka v.

Vedanayagam [State of Karnataka v.

Vedanayagam, (1995) 1 SCC 326 : 1995 SCC

(Cri) 231] this Court considered the usual

argument of a single injury not being sufficient

to invite a conviction under Section 302 IPC.

In that case the injury was caused by a knife.

The medical evidence supported the version of

the prosecution that the injury was sufficient,

in the ordinary course of nature to cause death.

The High Court had convicted the accused for

the offence under Section 304 Part II IPC

relying on the fact that there is only a single

injury. However, after a detailed discussion

regarding the nature of injury, the part of the

body chosen by the accused to inflict the same

and other attendant circumstances and after

discussing clause Thirdly of Section 300 IPC

and further relying on the decision in Virsa

Singh v. State of Punjab [Virsa Singh v. State

of Punjab, AIR 1958 SC 465 : 1958 Cri LJ

818] , the Court set aside the acquittal under

Section 302 IPC and convicted the accused for

that offence. The Court (in Vedanayagam case

[State of Karnataka v. Vedanayagam, (1995) 1

SCC 326 : 1995 SCC (Cri) 231], SCC p. 330,

para 4) relied on the observation by Bose, J. in

Virsa Singh case [Virsa Singh v. State of

Punjab, AIR 1958 SC 465 : 1958 Cri LJ 818] to

suggest that: (Virsa Singh case [Virsa Singh v.

State of Punjab, AIR 1958 SC 465 : 1958 Cri

LJ 818], AIR p. 468, para 16)

‘16. … With due respect to the

learned Judge he has linked up the intent

required with the seriousness of the injury, and

that, as we have shown, is not what the section

requires. The two matters are quite separate

and distinct, though the evidence about them

may sometimes overlap.’

The further observations in the above case

were: (Virsa Singh case [Virsa Singh v. State of

Punjab, AIR 1958 SC 465: 1958 Cri LJ 818] , 2023:CGHC:23929-DB

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AIR p. 468, paras 16-17)

‘16. … 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. 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. 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. But whether

the intention is there or not is one of fact and

not one of law. 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.

17. It is true that in a given case the enquiry

may be linked up with the seriousness of the

injury. For example, if it can be proved, or if

the totality of the circumstances justify an

inference, that the prisoner only intended a

superficial scratch and that by accident his

victim stumbled and fell on the sword or spear

that was used, then of course the offence is not

murder. But that is not because the prisoner

did not intend the injury that he intended to

inflict to be as serious as it turned out to be but

because he did not intend to inflict the injury in

question at all. His intention in such a case

would be to inflict a totally different injury.

The difference is not one of law but one of fact;

….’”

(emphasis in original) 2023:CGHC:23929-DB

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7.2. From the above stated decisions, it

emerges that there is no hard-and-fast rule that

in a case of single injury Section 302 IPC would

not be attracted. It depends upon the facts and

circumstances of each case. The nature of

injury, the part of the body where it is caused,

the weapon used in causing such injury are the

indicators of the fact whether the accused

caused the death of the deceased with an

intention of causing death or not. It cannot be

laid down as a rule of universal application

that whenever the death occurs on account of a

single blow, Section 302 IPC is ruled out. The

fact situation has to be considered in each case,

more particularly, under the circumstances

narrated herein above, the events which

precede will also have a bearing on the issue

whether the act by which the death was caused

was done with an intention of causing death or

knowledge that it is likely to cause death, but

without intention to cause death. It is the

totality of the circumstances which will decide

the nature of offence.”

25.Now reverting back to the facts of the present case, as regards the

submission on behalf of accused Manav Pandey that

the prosecution has failed to establish and prove the motive, it was

submitted that only in the memorandum Statement of the Appellant

Manav Pandey, it is recorded that Mohd Siraj was involved in

bullying (dadagiri) in school and for that reason he changed his

school and one year ago from date of the incident, Manav Pandey

also spat in the well and when he and his friends objected for the

same, Manav Pandey and his friends beat them. Except in the said

statement no witness had deposed about any enmity with Mohd.

Siraj. As on the date of incident, Moharram Procession was going

on, in which knives are usually waved, the accused persons did not 2023:CGHC:23929-DB

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20

meet in any pre-planned manner, instead it might had happened

that in a sudden quarrel and in heat of passion, the appellant

Manav Pandey inflicted the deceased with a knife and single knife

blow was caused. Therefore, section 302 of the IPC would not be

attracted.

26.In view of the aforesaid principles laid down by the Hon’ble

Surpeme Court, it is explicit that as per Exception IV to Section 300

IPC, culpable homicide is not murder if it is committed without

premeditation or in a sudden fight or in a heat of passion or upon a

sudden quarrel and without the offender having taken undue

advantage and not acted in a cruel or unusual manner. If we

examine the facts of the present case, the prosecution has not

proved any motive, and it is also proved that on the date of the

incident, Moharram Procession was going on and from the facts it

can be safely inferred that the appellant was not in search of the

deceased to commit his murder on such fateful day. Unfortunately,

they met suddenly and a quarrel took place and in the said quarrel,

out of sudden anger and in a heat of passion, appellant Manav

Pandey caused single stab injury to the deceased and no further

blow or assault was made when the deceased fell on the ground.

27.So, considering the facts and circumstances of the case and more

particularly that the accused inflicted the blow with a

weapon like knife and he inflicted the injury on the

vital part of the body, it can be presumed that by causing such 2023:CGHC:23929-DB

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bodily injury, the accused was likely to cause death of the deceased.

Therefore, the case would fall under Section 304 Part I of the IPC.

28.In view of the above stated reasons, CRA No.191/2020 preferred by

appellant Ritesh Ragde @ Nitesh Kumar Ragde is allowed.

Conviction and sentence imposed upon him under Section 302 read

with Section 34 of the IPC are set aside and he is acquitted of the

said charge. He be released forthwith, if not required in any other

case, on his executing a personal bond in sum of Rs.10,000/- to the

satisfaction of the concerned trial Court. The bail bond furnished

by the appellant shall remain in operation for a period of 6 months

from today in view of the provisions contained under Section 437-A

of the CrPC. The appellant shall appear before the higher Court as

and when directed.

29.CR.A. No.48/2020 preferred by appellant Manav Pandey is allowed

in part. Conviction and sentence imposed upon him vide impugned

judgment passed by the Additional Sessions Judge under Section

302 read with Section 34 of the IPC are set aside and instead thereof

he is convicted under Section 304 Part I of the IPC and sentenced to

undergo RI for 10 years with a fine of Rs.20,000/ and, in default of

payment of fine to further undergo RI for one year.

Sd/- Sd/-

(Goutam Bhaduri) (Deepak Kumar Tiwari)

Judge Judge

Barve 2023:CGHC:23929-DB

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