1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1441 OF 2013

STATE OF RAJASTHAN ... APPELLANT(S)

VS.

LEELA RAM @ LEELA DHAR ... RESPONDENT(S)

J U D G M E N T

DR DHANANJAYA Y CHANDRACHUD , J.

1 This appeal arises from a judgment of a Division Bench of the High Court of

Judicature for Rajasthan dated 13 August 2008. The High Court, while allowing the

appeal filed by the respondent, convicted him under Section 304 Part-II of the Indian

Penal Code ('Penal Code') instead of Section 302. The High Court sentenced the

respondent to the period which was already undergone, stated to have been

approximately five years and five months. The State is in appeal against the decision.

2 A First Information Report was lodged by Satya Narayan Swami (PW-2) at

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Singhana (Rajasthan), that at about 6.30 p.m. on 27 February 2003, the deceased-Ram

Kumwar Swami - was proceeding for some work at a chakki. While he was passing by

the hand pump near the house of Sriram Swami, three persons - Rajesh, Jagdish and

Leela Ram (the respondent herein) attacked the deceased and caused serious injuries

to him. The case of the prosecution is that the respondent inflicted an axe injury on the

skull of the deceased which was the cause of death. Rajesh, Jagdish and the

respondent were tried for offences under Sections 341, 323, 336 and 302, read with

Section 34 of the Penal Code. The case of the prosecution rested principally on the

evidence of PW-1 Basanti Devi, the complainant PW-2 Satya Narayan Swami, PW-3

Nathu Ram and PW-4 Gyarsi Lal. PW-1, PW-2, PW-3 and PW-4 were all eye-

witnesses to the incident. PW-4 is also an injured witness.

3 The cause of death, as deposed to by PW-5 Dr. Hari Singh Gothwal, was the

injury which was sustained on the skull by the deceased. While conducting the post-

mortem, PW-5 observed the following injury on the body of the deceased:

"Injury No.1 :- Crush injury 10 cm x 0.5 cm x depth of

bone in the middle of the skull. The left eye was closed

as an impact of this injury. The injury was caused with

the help of sharp edged weapon. The injury was caused

within the duration of six hours."

4 PW-4 Gyarsi Lal had also sustained the following injuries :

"(1) Contusion 5x3 cm in the lower region of

left thigh.

(2) Abrasion and deformity 1x0.5 cm in the

lower region of the right forearm."

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5 The Trial Court believed the depositions of PW-1, PW-2, PW-3 and PW-4.

Adverting to the evidence of PW-2, the Trial Court held that the accused had launched

an assault on his brother with an intention to grab the possession of his land. All the

above eye-witnesses stated that the respondent-Leela Ram had attacked the deceased

with an axe on the skull. PW-5 stated that the injury on the skull was the cause of

death and was sufficient to cause death in the ordinary course. Besides the ocular

evidence of PW-1 to PW-4, the medical evidence and the deposition of PW-5, the

prosecution relied on the recovery of a blood stained axe at the behest of the

respondent. The axe was recovered vide seizure memo Exh. P-18. The Trial Court

convicted Leela Ram for the offences under Sections 341, 323 and 302 of the Penal

Code. He was, however, acquitted of the offence under Section 336. Rajesh and

Jagdish were acquitted by the Trial Court.

6 Criminal Appeal No.580/2005 was filed by the respondent against the judgment

of conviction. A criminal revision, being Criminal Revision Petition No.958/2005, was

filed by the complainant against the acquittal of the two co-accused.

7 The High Court by its judgment dated 13 August 2008, allowed the appeal of the

respondent in part and convicted him of an offence under Section 304 Part-II of the

Penal Code. In coming to this conclusion, the High Court adverted to the following

circumstances, which in its view emerged from the evidence adduced by the

prosecution:

“(i) Prosecution is able to establish that appellant

inflicted injury with blunt object on the head of

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the deceased.

(ii) Injury on head attributed to appellant gets

corroboration from the post mortem report.

(iii) The death was caused without premeditation and

the appellant did not act in a cruel or unusual

manner. Incident appears to have occurred on a

spur of moment. Something sparked suddenly

and appellant inflicted single blow on the head of

Ram Kumar.

(iv) There is no trustworthy evidence on record to

prove that co-accused Rajesh Kumar and

Jagdish Prasad had shared common intention

with the appellant."

8 The revision filed by the complainant was dismissed.

9 Assailing the judgment of the High Court, learned counsel appearing on behalf of

the State of Rajasthan submits that :

(i) The consistent account of four eye-witnesses - PW-1, PW-2, PW-3 and PW-4

indicates that it was the respondent who had inflicted an injury with an axe on a

vital part of the body of the deceased, namely, his skull;

(ii) The medical evidence in the form of the post-mortem report and the deposition of

PW-5 establishes beyond doubt that the death was caused as a result of the

injury sustained because of a sharp-edged weapon; and

(iii) The fact that the injury was caused by the axe is also corroborated by its

recovery vide seizure memo Exh.P-18 and by the FSL report which reported

blood stains on the axe.

Learned counsel submits that the finding of the High Court that an incident took place

without pre-meditation, so as to bring the case within the Exception 4 of Section 300 of

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the Penal Code, is based on no evidence whatsoever. On the contrary, the evidence

clearly establishes that the respondent was armed with a lethal weapon which was

used to inflict a serious injury on a vital part of the body of the deceased. Learned

counsel submits that the mere fact that there was a single blow, is not a circumstance

which would warrant the conviction under Section 302 being altered to one under

Section 304 Part-II. On the contrary, learned counsel submitted that the case would fall

under Section 300 (Fourthly) since the act of the respondent was so imminently

dangerous that it must in all probability cause death or such bodily injury as is likely to

cause death.

10 On the other hand, learned counsel appearing on behalf of the respondent

submitted that the case of the prosecution has been disbelieved by the Trial Court in

regard to the two co-accused - Rajesh and Jagdish. According to this submission, the

prosecution had sought to adduce evidence to the effect that a lathi had been used in

the course of the incident by the two co-accused. This was not accepted by the Trial

Court. Hence, emphasis was placed on the evidence of PW-5 that the injury could

have been caused due to a blunt object. The judgment of the High Court convicting the

respondent under 304 Part-II, it was urged, ought not to be disturbed.

11 In assessing the rival submissions, it would be necessary to advert to the

evidence of the four eye-witnesses who have been believed, both by the Trial Court and

by the High Court, insofar as the complicity of the respondent is concerned. PW-2, who

is the complainant, has deposed to the genesis of the incident. According to him, when

the deceased was passing by the house of Sri Ram Swamy, he was seized upon by the

respondent (together with the two co-accused). Leela Ram, the respondent, inflicted an

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axe blow on the skull of the deceased. The evidence of PW-2 on the involvement of the

respondent finds abundant corroboration in the deposition of PW-1 Basanti Devi, the

complainant PW-2 Satya Narayan Swami, PW-3 Nathu Ram and PW-4 Gyarsi Lal.

PW-4, is an injured eye-witness. His presence is hence established in any event

beyond all reasonable doubt. From the evidence of these witnesses coupled with the

medical evidence, it has emerged that the respondent inflicted an axe blow in the centre

of the skull of the deceased. The evidence of PW-5 was clear in indicating that the

injury was caused with the help of a sharp edged weapon. PW-5 also stated that the

cranium and spinal cord and the parietal bone had been fractured. The injury on the

skull, lead to coma and was the cause of death. Coupled with these circumstances is

the recovery of the weapon of offence which was found to be blood stained. On the

basis of this unimpeachable evidence, it is clear that : (i) death was caused as a result

of the injury inflicted upon the skull of the deceased by the use of the axe; and (ii) the

respondent was the author of the injury and wielded the axe, as a result of which death

was the immediate and natural cause.

12 In Mahesh Balmiki v State of M P

1

, this Court while deciding the question of

whether a single blow with a knife on the chest of the deceased would attract Section

302, held thus:

“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

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(2000) 1 SCC 319

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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.”

In Hukam Chand v State of Haryana

2

, this Court while dealing with the question of

whether a blow on the skull with a pharsa would attract a conviction under Section 302,

held thus :

“15. Coming back to the issue raised as regards the

invocation of Section 304 Part II IPC, strong reliance was

placed on a decision of this Court in Pularu v. State of

M.P.[1993 SCC (Cri) 1023 : AIR 1993 SC 1487] , wherein K.

Jayachandra Reddy, J., as His Lordship then was, speaking

for the Bench in para 7 of the Report stated: [SCC (Cri) p.

1025, para 7]

“7. That takes us to the nature of the offence. All the three

eyewitnesses have spoken that the appellant dealt only one

blow with the agricultural implement. Having regard to the

time and the surrounding circumstances it is difficult to hold

that he intended to cause the death of the deceased

particularly, when he was not armed with any deadly weapon

as such. As an agriculturist he must have been having a

tabbal in his hands and if in those circumstances he dealt a

single blow it is difficult to convict him by invoking clause 1stly

or 3rdly of Section 300 IPC. It cannot be said that he intended

to cause that particular injury which unfortunately resulted in

the fracture of bones. Therefore, the offence committed by

him would be one amounting to culpable homicide punishable

under Section 304 Part II IPC…

16. While it is true that there was only one blow but the

medical evidence on record definitely indicates that the

severity of the blow was such that it was sufficient for causing

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(2002) 8 SCC 421

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death. In Pularu [1993 SCC (Cri) 1023 : AIR 1993 SC 1487]

the appellant dealt only one blow with an agricultural

implement. This Court having regard to the fact that Pularu

was an agriculturist came to a conclusion that question of

there being any intent to cause death of the deceased would

not arise since he was not armed with any deadly weapon as

such. Presently, however, the situation is slightly different.

Hukam Chand was in the house. He was called in and he

arrived at the scene and place of occurrence with a pharsa

which by all means is a deadly weapon and it is this pharsa

which was used to hit the deceased at his head resulting in

his immediate collapse and subsequent death. The story set

up by the appellant, as noticed hereinbefore belies the

incident and cannot but be ascribed to be a totally fabricated

one. Injuries suffered by Udai Chand, the deceased, cannot

be said to be inflicted as a matter of chance while grappling

with each other. The nature of the injuries, as noticed

hereinbefore, depicts it otherwise. If that be the case which

stands to reason that there was in fact a deliberate pharsa-

blow on the deceased, then and in that event, a simple

question by itself would negate the plea of the accused,

namely, as to the reason why Hukam Chand arrived at the

place of occurrence with a pharsa in his hand. The factum of

bringing in the pharsa at the place of occurrence from his

house when he was sent for cannot be ignored. It definitely

indicates the intent to use it and thereby cause death.”

In Dhirajbhai Gorakhbhai Nayak v State of Gujarat

3

, this Court while discussing the

ingredients of the Exception 4 of Section 300 IPC, held thus:

“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 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

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(2003) 9 SCC 322

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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 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”.”

In Pulicherla Nagaraju v State of A P

4

, this Court while deciding whether a case falls

under Section 302 or 304 Part I of 304 Part II, held thus :

“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

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(2006) 11 SCC 444

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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; (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.”

In Singapagu Anjaiah v State of A P

5

, this Court while deciding the question of

whether a blow on the skull of the deceased with a crowbar would attract Section 302,

held thus :

“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

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(2010) 9 SCC 799

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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.”

In Som Raj v State of H P

6

, this Court while deciding the question of whether a single

blow on the skull with a darat would attract conviction under Section 302, held thus :

“16.2. From the statements of Dr Suman Saxena (PW 4) and

Dr B.M. Gupta (PW 5), the nature of injuries caused to the

deceased has been brought out. A perusal thereof would

leave no room for doubt that the appellant-accused had

chosen the sharp side of the darat and not the blunt side. The

ferocity with which the aforesaid blow was struck clearly

emerges from the fact that the blow resulted in cutting

through the skull of the deceased and caused a hole therein,

resulting in exposing the brain tissue. When a blow with a

deadly weapon is struck with ferocity, it is apparent that the

assailant intends to cause bodily injury of a nature which he

knows is so imminently dangerous, that it must in all

probability cause death.

16.3. The place where the blow was struck (at the back of the

head of the deceased) by the appellant-accused, also leads

to the same inference.

16.4. It is not the case of the appellant-accused that the

occurrence arose out of a sudden quarrel. It is also not his

case that the blow was struck in the heat of the moment. It is

not even his case that he had retaliated as a consequence of

provocation at the hands of the deceased. He has therefore

no excuse for such an extreme act.

16.5. Another material fact is the relationship between the

parties. The appellant-accused was an uncle to the

deceased. In such circumstances, there is hardly any cause

to doubt the intent and knowledge of the appellant-accused.

16.6. Besides the aforesaid factual position, it would be

incorrect to treat the instant incident as one wherein a single

blow had been inflicted by the accused. As many as five

witnesses of the occurrence have stated in unison, that the

appellant-accused was in the process of inflicting a second

blow on the deceased, when they caught hold of him,

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(2013) 14 SCC 246

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whereupon one of them (Mohinder Singh, PW 6) snatched

the darat from the appellant-accused, and threw it away. In

such a situation, it would be improper to treat/determine the

culpability of the appellant-accused by assuming that he had

inflicted only one injury on the deceased.

16.7. Keeping in mind the parameters of the judgments

referred to by the learned counsel for the rival parties (which

have been extracted above), we have no doubt in our mind

that the appellant-accused must be deemed to have

committed the offence of “culpable homicide amounting to

murder” under Section 302 of the Penal Code, as the

appellant-accused Som Raj had struck the darat-blow with

the intention of causing such bodily injury, which he knew was

so imminently dangerous, that it would in all probability cause

the death of Sardari Lal. Having recorded the aforesaid

conclusion, we are satisfied, that the appellant-accused was

justifiably convicted for the offence under Section 302 of the

Penal Code and sentenced to undergo rigorous imprisonment

for life, as also, to pay a fine of Rs 10,000 (and in default, to

undergo further simple imprisonment for a period of one

year).

17. In view of our aforesaid conclusions, the instant appeal

being devoid of merit, is dismissed.”

13 The High Court has, in our view, proceeded entirely on the basis of surmise in

opining that the death was caused without pre-meditation and on the spur of the

moment. In arriving at that inference, the High Court has evidently ignored the

evidence, bearing upon the nature of the incident, the consistent account that it was the

respondent who had inflicted the blow, the weapon of offence and the vital part of the

body on which the injury was inflicted. The fact that the co-accused, Rajesh and

Jagdish, have been acquitted by the Trial Court, is in our view no reason to doubt the

testimony of all the eye-witnesses which implicated the respondent. The death was

attributable to the assault by the respondent on the deceased, during the course of the

incident. Having regard to the above facts and circumstances of the case, it is evident

that the injury which was caused to the deceased was [within the meaning of Section

300 (Fourthly)] of a nature that the person committing the act knew that it was so

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imminently dangerous that it must in all probability cause death or such bodily injury as

is likely to cause death.

14 In seeking to place the facts of the present case within the Exception 4, the High

Court has dwelt on whether the incident took place without pre-meditation. Exception 4

is extracted below :

"Exception 4.- Culpable homicide is not murder if it is

committed without premeditation in a sudden fight in the

heat of passion upon a sudden quarrel and without the

offender having taken undue advantage or acted in a

cruel or unusual manner."

15 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 pre-

meditation; (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.

16 While learned counsel appearing on behalf of the respondent sought to place

reliance on the statement of the respondent under Section 313 of the Code of Criminal

Procedure, 1973, that it was the deceased who came to their house and started pelting

stones, it is evident that this defence has no basis in the evidence. Above all, the

deceased was unarmed when he was seized upon and assaulted by the respondent.

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17 In the above circumstances, we are affirmatively of the view that the judgment of

the High Court is manifestly perverse and is totally contrary to the evidence on the

record. The interference of this Court is warranted to obviate a complete failure or

miscarriage of justice.

18 We allow the appeal and while setting aside the judgment of the High Court,

restore the conviction of the respondent by the Trial Court under Section 302 of the

Penal Code. The respondent is sentenced to suffer imprisonment for life. The

respondent shall forthwith surrender to his sentence. A copy of this order shall be

forwarded by the Registry to the Chief Judicial Magistrate of the area concerned to

secure compliance.

19 Pending application, if any, shall stand disposed of.

………..…………………….. ...........................J.

[DR DHANANJAYA Y CHANDRACHUD]

……………………………… ...........................J.

[M R SHAH]

New Delhi;

13th December, 2018.