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CASE NO.:

Appeal (crl.) 945 of 2004

PETITIONER:

Pulicherla Nagaraju @ Nagaraja Reddy

RESPONDENT:

State of A.P.

DATE OF JUDGMENT: 18/08/2006

BENCH:

G. P. Mathur & R. V. Raveendran

JUDGMENT:

J U D G M E N T

RAVEENDRAN, J.

This appeal by special leave is against the judgment dated

28.8.2003 of the Andhra Pradesh High Court in Criminal Appeal

No.1211 of 2001 reversing the judgment of acquittal dated 7.2.2000

passed by the First Addl. Sessions Judge, Chittoor in S.C. No.361 of

1999.

2. The prosecution case, in brief, is as under :

2.1) P. Narasimha Reddy (PW-2) and P. Govinda Reddy (Accused

No.1) are brothers. P. Dilli Babu Reddy (PW-1) and Purushotham

Reddy (deceased) are the sons of Narasimha Reddy. Ranamma

(Accused No.2) is the wife of Govinda Reddy. Nagaraja Reddy

(Accused No.3), Balakrishna Reddy @ 'Balu' and Chandrababu Reddy

@ 'Babu' are the sons of Govinda Reddy and Ranamma. (Balu and

Babu were juveniles at the relevant time). Both families were residents

of Bangareddipalli Diguva Indlu, a hamlet falling under the

Gangadhara Nellore Panchayat in Chittoor District. The house of

Narasimha Reddy and house of Govinda Reddy were separated by the

land of Chinnakka.

2.2) Narasimha Reddy, after his marriage, having differences with his

parents had shifted to his father-in-law's place and then to Madras.

Ultimately, he came back to his native village. In the meanwhile,

Govinda Reddy and two other brothers namely Krishna Reddy and

Venkateswarulu Reddy had continued to live with their father Bakki

Reddy. Bakki Reddy and Venkateswarulu Reddy had died and Krishna

Reddy was residing in a different town. Govinda Reddy was in

possession and enjoyment of the family properties. There were

disputes between the families of Narasimha Reddy and Govinda Reddy

in regard to property.

2.3) On 24.4.1999, Narasimha Reddy (PW-2) brought some plastic

pipes to his house in a hired tractor. Accused 1, 2 and 3 (Govinda

Reddy, his wife and son Nagaraja Reddy) came to the house of

Narasimha Reddy and raised a quarrel stating that the tractor

unauthorizedly passed through their land and threatened Narasimha

Reddy with dire consequences. This was the first incident.

2.4) On 25.4.1999 at about 6 p.m., Govinda Reddy with his wife (A2)

and sons (A3 and two juveniles) removed a part of the fence

surrounding Narasimha Reddy's property. When Narasimha Reddy and

his son Dilli Babu Reddy rushed to the place and questioned why they

were removing the fence, Accused 1, 2 and 3 started abusing them.

Govinda Reddy (A1) exhorted his wife and sons to kill Narasimha

Reddy and Dilli Babu Reddy. Nagaraja Reddy (A-3) dealt a blow on the

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right side of Dilli Babu Reddy's head with the upper side of a 'Barisa' (a

long dagger with a long handle). Then, Govinda Reddy (A1) dealt a

blow on the right middle finger of Narasimha Reddy with a sickle. Both

Narasimha and Dilli Babu Reddy sustained bleeding injuries. The

neighbouring land owners and others working in the adjoining fields

rushed and separated the two groups. This was the second incident.

2.5) Within about half an hour of the second incident, Purushotham

Reddy (first son of Narasimha Reddy) returned home. Narasimha

Reddy and Dilli Babu Reddy narrated to him what had happened.

Immediately, Purushotham Reddy, followed by his father (PW-2) and

brother (PW-1), went towards the house of Govinda Reddy to question

them about their high-handed acts. When Purushotham Reddy entered

the land Chinnaka which was situated between the lands (houses) of

the two brothers, accused 1, 2, & 3 (Govinda Reddy, Ranamma and

Nagaraja Reddy) along with two juvenile sons of Accused No.1 (Balu

and Babu) came from their house. Govinda Reddy was armed with a

stick with nails, Ranamma was armed with stout stick, Nagaraja was

armed with a Barisa. Govinda Reddy exhorted his wife and sons to kill

Purushotham Reddy. Balu and Babu threw mud balls at Narasimha

Reddy and Dilli Babu Reddy, who were following Purushotham Reddy.

Govinda Reddy and Ranamma caught hold of Purushotham Reddy and

Nagaraja (A-3) stabbed Purushotham Reddy near his throat with the

Barisa. Purushotham Reddy collapsed. Govinda Reddy and his wife and

children ran away. This was the third incident. It occurred around 7.30

P.M. This incident was witnessed by Gurava Reddy (PW-3), Gungulu

Reddy (PW-4), Perumal's son Dilli Babu (PW-5) and P. Ravi (PW-6)

and Sarojamma. But they did not interfere.

2.6) Thereafter, Dilli Babu Reddy (PW-1) got a complaint (Ex.P-1)

written and presented it at the Gangadhara Nellore Police Station

(which was at a distance of about 4 km. from the place of incident)

around 9.00 P.M. The police sent Narasimha Reddy and Dilli Babu

Reddy for treatment to Primary Health Centre for examination and

treatment.

3. T. Sundaramurthy, Sub-Inspector of Gangadhara Nellore Police

Station (PW-15), received the complaint and registered the case in

Crime No.35 of 1999 under section 147, 148, 307 and 302 read with

section 149 IPC, prepared the FIR and recorded the statements of PW-

1 and PW-2. He also seized the blood-stained clothes of PW-1 from

him under a Mahazarnama. The next day, K. Srinivasa Gopal,

Inspector of Police, Chittoor Rural Circle (PW-16), took up the

investigation and recorded the statements of some other witnesses.

On 26.4.1999, at about 9.00 A.M., inquest was conducted over the

dead-body and it was sent for autopsy. He arrested accused 1 & 2 as

also their juvenile sons \026 Balu and Babu on 28.4.1999 at about 3 p.m.

in the presence of PW-9 (Pancha) and recorded their confession

statements and on the same day at 6.00 P.M. in pursuance of the

information, disclosed in the confession statement of Govinda Reddy,

recovered the Barisa (MO.1) from a sugarcane garden shown by

Govinda Reddy. PW-16 also arrested Nagaraja Reddy (A-3) on

1.5.1999 around 9 A.M. in the presence of Panchas (PW-10 and

another). Nagaraja Reddy made a confession statement (Ex. P-25) and

took them to the house of one Subha Reddy and produced a blood-

stained shirt (MO-8).

4. The IV Additional Judicial Magistrate, First Class, took the case

on file and committed accused 1, 2, & 3 to the Court of Sessions,

Chittoor. Balu and Babu, the juvenile sons of accused No.1 were

subjected to a separate proceeding before the Juvenile Court. In the

Sessions trial, the prosecution examined 15 witnesses. Dilli Babu

Reddy and his father Narasimha Reddy (PW-1 & PW-2) were the

injured eye-witnesses. PW-3 to PW-6 who were examined as eye-

witnesses turned hostile and stated that they did not know anything

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about the incident. PW-11 (Dr. S.Narasimhulu) examined Dilli Babu

Reddy (PW-1) and Narasimha Reddy (PW-2) at the Primary Health

Centre and issued certificates in regard to their injuries as per Ex.P-13

and P-14. Dr. P.Venkataswamy (PW-12), Civil Assistant Surgeon,

Government Head-Quarters Hospital, Chittoor, conducted the post-

mortem over the dead-body of Purushotham Reddy and issued a post-

mortem certificate as per Ex.P-15. PW-15 and PW-16 were the Police

Officers. PW-7 to PW-10, PW-13 and PW-14 were the witnesses to the

inquest, and the Mahazars relating to arrest and seizure. PWs.7, 9, 13

and 14 turned hostile.

5. On considering the evidence, the trial court by judgment dated

7.2.2000 acquitted all the accused by extending them the benefit of

doubt. It held that the evidence was not trustworthy for the following

reasons :

a) All the four independent eye-witnesses (PW-3, 4, 5 & 6)

turned hostile and denied knowledge of the incident.

b) Four out of the six Mahazar witnesses (PWs. 7, 9, 13, and

14) also turned hostile and did not support the case of the

prosecution.

c) The evidence of the two eye-witnesses (PW-1 and PW-2)

could not be relied on as they were close relatives of the

deceased, having previous enmity and grudge against the

accused and who were interested in falsely implicating the

accused. Their evidence was also inconsistent with the

allegations in the complaint (Ex. P1) lodged by PW-1.

6. The said judgment was challenged by the State. The State's

appeal was allowed by the High Court. It held that the rejection of the

evidence of PW-1 and PW-2 by the trial court was unjustified and

perverse, for the following reasons :

a) The evidence of PWs. 1 and 2, who were eye-witnesses,

could not be rejected merely on the ground that they were

interested or partisan, as their evidence was otherwise

found to be credible.

b) The second incident which occurred at about 6.00 to 7.00

P.M. wherein PW-1 and PW-2 were attacked and injured

and the third incident within about half an hour thereof

when Purushotham Reddy was killed should be considered

as having occurred during the course of the same

transaction in the sense that the latter incident was a

continuation and consequence of the earlier incident.

Therefore, PW1 and PW2 were in the position of injured

eye-witnesses and not chance witnesses. Their presence at

the time and place of the incident was natural and properly

explained.

c) Nothing was elicited in the cross-examination of PW-1 and

PW-2 to disbelieve their evidence about the incidents, in

particular the manner in which they were attacked and

injured by accused 1 and 3 and the manner in which

Purushottam Reddy was killed by Nagaraja Reddy (A-3).

d) Though the incident took place at 7.30 P.M. and there

were no light, the evidence of PWs.1 and 2 that could see

the accused clearly in the moonlight ought to be accepted.

Being close relatives, they had no difficulty in identifying

the accused particularly as the accused had chased them

to some distance after killing the deceased.

e) There was no inconsistency between the testimony of

PWs.1 and 2 and the allegations in the complaint. (Ex. P1).

f) The evidence of PW-1 and PW-2 established that A-1 to A-

3 caught the deceased and A-3 stabbed him near the

throat with MO1 - Barisa (long dagger). The medical

evidence corroborated that the injury was caused of a

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weapon like MO1. The blood-stained shirt of A-3 (MO8)

was found and seized in pursuance of the confession

statement made by A-3 on his arrest before the

Investigating Officer which was corroborated by the

evidence of PW-10.

7. The High Court held that the evidence of PW-2 showed that A-1

and A-2 were not armed with any weapons when the deceased was

attacked and that they (A-1 and A-2) did not cause or attempt to

cause any injury to the deceased. It concluded that the killing of

Purushotham Reddy was not on account of any pre-planned attack by

accused 1 to 3 and that it appeared that A-3 had attacked the

deceased thinking that the deceased was coming to attack him. The

High Court also observed that if A-1 and A-2 had wanted to kill the

deceased, they would have also attacked the deceased, but they did

not do so, and that therefore, A-1 and A-2 did not share any common

intention with A-3. As a consequence, the High Court held that the

charge under section 302 was proved against A-3 and that the charge

under section 302 read with section 34 IPC was not proved against A1

and A2. The High Court also did not accept that A-1 and his family

members constituted an unlawful assembly and therefore, charge

under section 148 IPC was also not established. In regard to the

injuries caused to PW-1 and PW-2, the High Court held that the

prosecution had failed to prove the case against A-2 (Ranamma) but

had proved its case against A-1 and A-3 under section 324 IPC. Having

regard to the overall circumstances and the simple nature of injuries,

the High Court was of the view that the imposition of a fine in that

behalf would meet the ends of justice.

8. Accordingly, the High Court convicted A-3 under section 302 IPC

and sentenced him to undergo imprisonment for life and pay a fine of

Rs.1,000/-. It convicted A-1 and A-3 under section 324 IPC for causing

injuries to PW-1 and PW-2 and sentenced each of them to pay a fine of

Rs.5,000/- and in default, to undergo simple imprisonment of six

months.

9. The said judgment of the High Court reversing the acquittal by

the trial court is challenged by A-3 in this appeal by special leave. The

learned counsel for the appellant urged the following contentions

before us :

(a) The High Court should not have interfered with the

judgment of acquittal by the Sessions Court merely

because another view was possible on re-appreciation

of the evidence. High Court wrongly relied on the

evidence of PW-1 and PW-2 who were partisan

witnesses interested in falsely implicating the accused.

(b) The evidence of PW-1 and PW-2 were inconsistent with

the allegations in the FIR based on the complaint (Ex.

P1) given by PW-1 within one and half hours of the

incident. In Ex.P-1, it was stated that five members,

that is Govinda Reddy, Ranamma, Nagaraja Reddy,

Balu and Babu attacked Purushotham Reddy with

sticks, knives and daggers, and Nagaraja Reddy

murdered Purushotham Reddy by stabbing him with a

dagger on his throat. If the five of them had really

attacked Purushotham Reddy with sticks, knives and

daggers, there should be corresponding injuries on the

body of the deceased. But the post-mortem report and

the evidence of Dr. Venkataswamy (PW-12) show that

the deceased had sustained only one incised injury

over the right clavicle. The Doctor (PW-12) clearly

stated that except the said injury, he did not find any

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injury on any other part of the body of the deceased.

When there was only one injury which corresponded

to the dagger attack by Nagaraja Reddy, the allegation

in the complaint that Govinda Reddy, Ranamma,

Nagaraja Reddy, Balu and Babu together attacked the

deceased with sticks, knives and daggers is obviously

false. This demonstrated that PW-1 had tried to falsely

implicate the entire family of Govinda Reddy (five

members) on account of the previous enmity between

the two families. The case of the prosecution based on

the said complaint was therefore liable to be rejected.

(c) At all events, as the High Court having recorded a

finding that "It is not a case of pre-planned attack by

the accused. It appears that the thinking that the

deceased was coming to attack in, A-3 attacked him",

ought to have held that the act was a culpable

homicide not amounting to murder punishable under

section 304 Part II IPC.

Re : Contention (i) :

10. It is now well settled that the power of the High Court in an

appeal from acquittal is no different from its power in an appeal from

conviction. It can review and consider the entire evidence and come to

its own conclusions by either accepting the evidence rejected by the

trial court or rejecting the evidence accepted by the trial court.

However, if the High Court decided to depart from the conclusions

reached by the trial court, it should pay due attention to the grounds

on which acquittal was based and state the reasons as to why it finds

the conclusions leading to the acquittal, unacceptable. It should also

bear in mind that (i) the presumption of innocence in favour of the

accused is fortified by the findings of the trial court; (ii) the accused is

entitled to benefit of any doubt; and (iii) the trial court had the

advantage of examining the demeanour of the witnesses. The crux of

the matter, however, is whether the High Court is able to give clear

reasons to dispel the doubt raised, and reject the reasons given by the

trial court [See : Sher Singh vs. State of U.P. \026 AIR 1967 SC 1412;

Dargahs vs. State of U.P. \026 AIR 1973 SC 2695; Ravinder Singh vs.

State of Haryana \026 AIR 1975 SC 856; and Labh Singh vs. State of

Punjab \026 AIR 1976 SC 83].

11. In this case, we find that the trial court had rejected the

evidence of PW-1 and PW-2 merely because they were interested

witnesses being the brother and father of the deceased. But it is well

settled that evidence of a witness cannot be discarded merely on the

ground that he is either partisan or interested or closely related to the

deceased, if it is otherwise found to be trustworthy and credible. It

only requires scrutiny with more care and caution, so that neither the

guilty escape nor the innocent wrongly convicted. If on such careful

scrutiny, the evidence is found to be reliable and probable, it can be

acted upon. If it is found to be improbable or suspicious, it ought to be

rejected. Where the witness has a motive to falsely implicate the

accused, his testimony should have corroboration in regard to material

particulars before it is accepted. [vide Hari Obula Reddi v. State of

Andhra Pradesh \026 1981 (3) SCC 675, Ashok Kumar Pandey vs. State of

Delhi \026 2002 (4) SCC 76 and Bijoy Singh vs. State of Bihar \026 2002 (9)

SCC 147]. Nothing had been elicited in the cross-examination of PW-1

and PW-2 to discredit their evidence. Their evidence finds

corroboration in Ex.P-1 and the evidence of the Doctors (PW-11 and

PW-12) and the MOs seized on the disclosures made by A-1 and A-3.

Therefore, the High Court rightly held that the evidence of PW-1 and 2

could not be rejected, even though they were closely related to the

deceased and inimically disposed towards the accused. There is no

infirmity in the decision of the High Court by re-appreciating the

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evidence and reaching independent conclusions.

Re : Contention (ii) :

12. This contention is based on the assumption that in his complaint

(Ex.P-1), PW-1 had stated that accused No. 1 and his four family

members attacked the deceased with sticks, knives and daggers. The

learned counsel for the State submitted that the words 'attacked with

sticks, knives and daggers' in the English translation of Ex.P1 is

incorrect and that the complaint (Ex.P1) in Telugu uses the word

'dourjanyam' which is wrongly translated as 'attacked'. The use of the

word 'dourjanyam' in the complaint does not refer to physical assault

but action which is intended to intimidate, threaten and frighten

anyone. We are, therefore, satisfied that the complaint does not allege

that Govinda Reddy, his wife and three children physically assaulted

the deceased with sticks, knives and daggers, but only alleges that

accused and his family members approached the deceased

Purushotham Reddy with sticks, knives and daggers in an intimidating

and threatening manner. Therefore, the absence of any other injury

except the dagger injury caused by Nagaraja Reddy (A-3) is consistent

with allegations in Ex. P-1.

Re : Contention No.(iii)

13. The third contention relates to the question whether the offence

is a murder punishable under Section 302, or culpable homicide not

amounting to murder, punishable under Section 304 Part II. The

evidence shows that there was a long standing enmity between the

families of the two brothers (A-1 and PW-2). There was a quarrel on

24.4.1999 in respect of PW-2 taking a tractor through the land of A-1.

There was another quarrel when A-1 allegedly removed the fence and

PW-1 and PW-1 questioned A-1 as to why he removed fencing, which

led to an altercation between A-1 and A-3 on the one hand and PW-1

and PW-2 on the other about half an hour before the stabbing of the

deceased, which resulted in injuries to PW-1 and PW-2.

After the second incident, Purushotham Reddy followed by PW-1 and

PW-2 was going towards A-1's house to protest against A-1 and the

appellant causing injuries to PW-1 and PW-2. Neither Purushottam

Reddy nor PW-1 and PW-2 were armed with any weapon. There was

no indication that they intended to cause any physical harm to the

accused, or that they intended to retaliate for the earlier incident. The

nature and size of the weapon used by the appellant (barisa, which is

a big size dagger), the force with which the weapon was used, the part

of the body where the injury was caused \026 just below the neck, a vital

part of the body, the nature of the injury \026 stab wound measuring 3

cm x 5 cm x 12 cm, resulting in instantaneous collapse leading to

death, leave no room to doubt that the intention of the appellant was

to cause the death or, at all events, cause bodily injury, which is

sufficient in the ordinary course of nature to cause death.

14. It is true that the High Court disbelieved the prosecution case

that A2 (mother of appellant) or the two juvenile brothers of the

appellant had participated in either of the incidents, though their

presence was not ruled out. But that will not assist the appellant to

contend that he was not guilty. Considerable reliance was placed by

the learned counsel for the appellant on the observation of the High

Court that the deceased was stabbed by the appellant, not in

pursuance of any pre-planned attack, but being under the impression

that the deceased was coming to attack him. But this observation was

made in the context of recording a finding that A-1 and A-2 did not

share any common intention with the appellant. The said observation

cannot be read out of context to make out a case that the appellant

acted in self defence. Such a plea is neither put forth in the statement

under Section 313 nor brought out in the cross examination of any of

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the prosecution witnesses.

15. Learned counsel for the appellant referred to the circumstance

that there was only one stab injury on the deceased, to contend that

there was no pre-meditation and the attack was 'in a sudden fight in

the heat of passion', and that the appellant had not acted in a cruel or

unusual manner or taken undue advantage of the situation. He

submitted that the High Court ought to have given benefit of Exception

4 to Section 300 to appellant and held him guilty under Section 304

Part II. He relied on the decisions of this Court in Laxman Kalu Nikalje

v. State of Maharashtra (AIR 1968 SC 1390), Randhir Singh v. State of

Punjab (AIR 1982 SC 55), Tholan Vs. State of Tamil Nadu (AIR 1984

SC 759), Bagdiram Vs. State of Madhya Pradesh [2004 (12) SCC 302]

in support of his contention.

16. We cannot accept the contention that whenever the death is on

account of a single blow, the offence is one under Section 304 and not

Section 302. We will briefly refer to the cases relied on by the

appellant.

16.1) In Laxman Kalu Nikalje (supra), the accused had gone to his

father-in-law's house to take his wife back to his house. His father-in-

law delayed the departure of his wife by a day. The delay upset the

accused and he was in a foul mood. When his brother-in-law made

some remark, he responded by whipping out his knife and giving a

blow on the chest of his brother-in-law. His brother-in-law died a few

hours later. This Court held that the case fell under the second part of

Section 304 as the accused gave only one blow and it was not on a

vital part of the chest and but for the fact that injury caused severed

an artery, death would not have ensued.

16.2) In Randhir Singh (supra), that there was an altercation between

the deceased and father of the accused. At that time, on the

exhortation of his father, the accused, a young college student, gave a

blow on the head of the deceased with a Kassi. The solitary injury

caused by the accused was sufficient in the ordinary course of nature

to cause death and the deceased died after six days. Taking note of

the circumstances, that the accused was not carrying the weapon in

advance, there was no pre-meditation, that he was a young college

boy, that there was some altercation between father of the accused

and deceased, and that the death occurred after six days, the

conviction was altered from Section 302 to 304 Part II.

16.3) In Tholan (supra), the accused stood in front of the house of

the deceased and used filthy language against some persons (who

were unconnected with the deceased). The deceased came out of his

house and told the accused that he should not use vulgar and filthy

language in front of ladies and asked him to go away. The accused

questioned the authority of the deceased to ask him to leave the

place. In the ensuing altercation, the accused gave one blow with a

knife which landed on the (right) chest of the deceased which proved

to be fatal. This Court came to the conclusion that the accused could

not be convicted under Section 302, but was guilty under Section 304

Part II. The circumstances which weighed with this Court were : (i)

there was no connection between the accused and the deceased and

the presence of the deceased at the time of the incident, was wholly

accidental; (ii) altercation with the deceased was on the spur of the

moment and the accused gave a single blow being enraged by the

deceased asking him to leave the place;(iii) requisite intention could

not be attributed to the accused as there was nothing to show that the

accused intended the blow to land on the right side of the chest which

proved to be fatal.

16.4) In Bagdiram (supra), there was an altercation between two

groups and brick-batting from both sides. When tempers were running

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high, in the heat of passion, upon sudden quarrel without any pre-

meditation, the accused assaulted the unarmed deceased. The

accused-appellant was not carrying any weapon, but he picked up a

pick axe lying at the place of incident and he landed only one blow

and did not repeat the blow. In these circumstances, it was held that

he did not intend to cause the death of the deceased and that the

appellant was guilty under Section 304 Part I IPC.

17. It would thus be seen that in all these cases, the accused

landing a single blow was only one of the several circumstances which

persuaded this Court to hold that the offence did not fall under Section

302 but fell under Section 304 Part I or Part II. The fact that the

accused gave only one blow, by itself, would not mitigate the offence

to one of culpable homicide not amounting to murder. There are

several cases where single blow inflicted by the accused, resulting in

death have been found to be sufficient for conviction under Section

302. We may refer to a few of them, namely, Virsa Singh v. State of

Punjab (AIR 1958 SC 465), Gudar Dusadh v. State of Bihar (AIR 1972

SC 952), Vasanta v. State of Maharashtra (1984 Supp. SCC 648), Jai

Prakash v. State (Delhi Administration) [1991 (2) SCC 32] and State

of Karnataka v. Vedanayagam [1995 (1) SCC 326].

17.1) In Virsa Singh (supra), this Court held that a culpable homicide

is a murder under Section 300 clause Thirdly, if the prosecution should

establish four elements \026 (i) the presence of a bodily injury, (ii) nature

of such bodily injury, (iii) intention on the part of the accused 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; and (iv)

the injury was sufficient to cause death in the ordinary course of

nature (this part of enquiry being purely objective and inferential,

nothing to do with the intention of the offender). Dealing with the

question, as to how intention is to be inferred, Vivian Bose, J.

succinctly stated :

"In considering whether the intention was to inflict

the injury found to have been inflicted, the enquiry

necessarily 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 x x x x 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 some 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\005."

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17.2) The following legal position regarding single blow injury, was

summed up in Jagrup Singh v. The State of Haryana (AIR 1981 SC

1552) thus :

"There is no justification for the assertion that the

giving of a solitary blow on a vital part of the body

resulting the death must always necessarily reduce

the offence to culpable homicide not amounting to

murder punishable under section 304, Part II of the

Code. If a man deliberately strikes another on the

head with a heavy log of wood or an iron rod or even

a lathi so as to cause a fracture of the skull, he

must, in the absence of any circumstances

negativing the presumption, be deemed to have

intended to cause the death of the victim or such

bodily injury as is sufficient to cause death. The

whole thing depends upon the intention to cause

death, and the case may be covered by either clause

Firstly or clause Thirdly. The nature of intention must

be gathered from the kind of weapon used, the part

of the body hit, the amount of force employed and

the circumstances attendant upon the death."

18. 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 \026 plucking of a fruit, straying of a

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 pre-meditation. 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;

(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 pre-

meditation; (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.

19. In this case, as noticed above, the appellant was carrying a

Barisa, a dangerous weapon. There was previous enmity. There was

an earlier incident, about half an hour earlier when the father and

brother of the deceased had been attacked by the appellant and his

father. The deceased was unarmed. There was no provocation, sudden

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quarrel or fight. There was no indication of any cause for an

apprehension on the part of the appellant that the deceased may

attack him. The stabbing was with great force, causing an injury on a

vital part of body, sufficient in the ordinary course of nature to cause

death. The description of the injury and cause for death given by

PW-11, who conducted the post mortem is telling :

"An incised injury 5 cm x 3 cm x 12 cm deep over

right supra clavicular fossa above the medial end of

right clavicle.. sub-clavian artery is severed\005 An

incised injury 4cm x 1cm x 2cm deep over the apex

of right lung \005 deceased would appear to have died

due to haemorrhage and shock due to injuries to

right sub-clavian artery and upper lobe of right

lung."

The intention to cause death or at all events intention of causing bodily

injury which is sufficient in the ordinary course of nature to cause

death was made out. The circumstances to bring the case under

Exception (4) to Section 300 do not exist.

20. We accordingly find no reason to interfere with the decision of

the High Court convicting the appellant. The appeal is dismissed.