THE STATE OF RAJASTHAN versus KANHAIYA LAL on 10 April 2019

1. Leave granted.

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2. This appeal arises from the Judgement and Order of aDivision Bench of the High Court of Judicature for Rajasthandated 23.05.2014 passed in Criminal Appeal No.303 of 2009. The HighCourt, while allowing the appeal filed by the respondent, convictedhim under Section 304 Part I of the Indian Penal Code,instead ofSection 302 of the IPC. The High Court sentenced the respondent H

Ato undergo 8 years RI and to pay a fine of Rs.1000/- and indefault of payment of fine, to suffer one month simple imprisonment.The State preferred this appeal against the said decision.

3. A First Information Report was lodged by one DalipKumar at Police Station Nimbaheda being FIR No.32/2008. It wasBalleged that on 26.01.2008, when PW-5 – Ms. Kailashi wasreturning from the farm, in her presence, Kanhaiya Lal attackedRaju (deceased) on his head by an axe. As per PW-5, Raju felldown and, on her cries, other persons reached the spot. Theaccused ran away. That Raju succumbed to the injuries. Afterconcluding the investigation, the Investigating Officer filed theCcharge-sheet against the accused for the offence punishableunder Section 302 of the IPC. That the accused pleaded notguilty and therefore he came to be tried by the learned SessionsCourt for the offence punishable under Section 302 of the IPC.That the prosecution examined as many as 17 witnessesDincluding PW1 Dr. K. Asif, who issued the Injury Report (ExhibitP1); PW5 Ms. Kailashi; PW15 Dr. Anees Ahmed, whoperformedthe Post-Mortem Report of the deceased. Through thewitnesses who were examined, the prosecution brought onrecord the documentary evidence including the Injury Report (ExhibitP1) as well as the Post-Mortem Report. That thereafter, theEstatement of accused under Section 313 of the CrPC was recorded,in which accused stated that he has been falselyimplicated. No evidence/witness was produced by the accused indefence. That thereafter, on appreciation of evidence, thelearned Sessions Court held the accused guilty for the offenceFpunishable under Section 302 of the IPC and sentenced him toundergo life imprisonment with fine of Rs.1000/- and in default topay the fine, to undergo further one month SI.

3.1 Feeling aggrieved and dissatisfied with the Judgment andOrder of conviction and sentence passed by the learnedGSessions Court, the respondent-original accused preferred Appeal beforethe High Court being Criminal Appeal No.303 of 2009. By theimpugned Judgment and Order, the High Court has partly allowedthe appeal preferred by the accused and has convicted the accusedunder Section 304 Part I of the IPC instead of Section 302of the IPC. Hence, the present appeal by the Stateagainst theH

impugned Judgment and Order passed by the High Court, convertingthe conviction of the accused to Section 304 Part I of the IPC inplace of conviction under Section 302 of the IPC.

4. Learned counsel appearing on behalf of the appellant- theState of Rajasthan has vehemently submitted that in the factsand circumstances of the case, the High Court has materially erred inaltering the conviction of the accused from Section 302 of the IPC toSection 304 Part I of the IPC.

4.1 It is vehemently submitted by the learned Counselappearing on behalf of the appellant-State that the main reasongiven by the High Court while converting the conviction fromSection 302 of the IPC to Section 304 Part I is that the deceaseddied because of a single injury caused on his head. It issubmitted that however the High Court has not, at all,considered the fact that the accused gave the blow by an axe, adeadly weapon and that too on the vital part of the body, i.e. head.It is submitted that as per the medical evidence, the head injurywas sufficient to cause death in ordinary course of nature. It issubmitted that, therefore, the High Court is not justified inconvertingthe conviction from Section 302 of the IPC to Section 304 Part I ofthe IPC.

4.2 It is further submitted by learned Counsel appearing onbehalf of the appellant-State that another reason given by the HighCourt is that there was an altercation between the accused and thedeceased and so it can be said that in the circumstances of thecase there was no intention to cause death on the part of theaccused-appellant. It is submitted that however the High Courthas failed to consider and appreciate/reappreciate the fact that atthe time when the incident had taken place, there was noaltercation at all and the altercation was before few hours and notat the time when the incident had taken place.

4.3 Learned Counsel appearing on behalf of the appellant-State has submitted that in the facts and circumstances of the caseand the injuries sustained by the deceased, it was a clear case ofmurder within the definition of Section 300 of the IPC and as such thelearned Sessions Court rightly convicted the accused for the offenceunder Section 302 of the IPC. It is submitted by the learned A

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ACounsel appearing on behalf of the appellant-State that the Judgmentof the High Court is manifestly perverse and istotally contrary to theevidence on record and therefore the interference of this Court iswarranted.

4.4 Making the above submissions and relying upon theBdecisions of this Court in the case of Arun Raj v. Union of India(2010) 6 SCC 457; Ashokkumar Magabhai Vankar v. Stateof Gujarat (2011) 10 SCC 604; Vijay Ramkrishan Gaikwad v.State of Maharashtra (2012) 11 SCC 592, and a recent decisionof this Court in the case of State of Rajasthan v. Leela Ramalias Leela Dhar dated 13.12.2018 in Criminal Appeal No.1441 ofC2013, it is prayed to allow the present appeal and set aside theimpugned Judgment and Order passed by the High Court and to restorethe Judgment and Order of conviction and sentence passed by thelearned Sessions Court.

5. Learned Counsel appearing on behalf of theDrespondent–original accused, while opposing the present appeal, hasvehemently submitted that while converting the conviction of theaccused from Section 302 of the IPC to Section 304 Part I of theIPC, the High Court has given cogent reasons and hasconsidered the relevant circumstances and thereafter has come toEthe conclusion that the intention of the accused cannot be saidto be tocause death of the deceased. It is submitted that the High Courthas considered the relevant circumstances and thereafter hasconverted the conviction from Section 302 of the IPC to Section304 Part I of the IPC and therefore the same is not required to beinterfered with by this Court.F6. Heard the learned Advocates appearing for therespective parties at length.

6.1 We have considered in detail the Judgment and Orderpassed by learned Sessions Court as well as the impugnedGJudgment and Order passed by the High Court. The learnedSessions Court convicted the accused for the offence underSection 302 of the IPC. However, in an appeal preferred by theaccused, the High Court has converted the conviction fromSection 302 of the IPC to Section 304 Part I of the IPC. While doing so, the High Court has assigned the following reasons inparagraph 15:

“15. In the circumstances of the case, it is provedbeyond doubt that Rajmal had died because ofsingle injury caused on his head by accused-appellant Kanhaiya Lal by an axe. It is also anadmitted fact that there was no repeated injury andfurther more, it is also on record that in themorning of the day of the incident, there wasanaltercation between the accused and the deceasedand so it can be said that in the circumstances of thecase, that there was no intention to cause death on thepart of the accused-appellant but the act by which thedeath was caused appears to have done with theintention of causing such bodily injury as was likely tocause death and so his conviction deserves to bealtered from Section 302 of Indian Penal Code to Section 304 Part I of Indian Penal Code.”

6.2 Now so far as the main reason given by the High Courtwhile converting the conviction from Section 302 of the IPC toSection 304 Part I of the IPC i.e. it was a case of a single blowis concerned, it is required to be noted that the deceased had diedbecause of single injury caused on his head by the accused by an axe.The aforesaid can hardly be a ground to convert the convictionfrom Section 302 of the IPC to Section 304 Part I of the IPC.

6.3 In the case of Arun Raj (Supra) this Court observed andheld that there is no fixed rule that whenever a single blow is inflicted,Section 302 would not be attracted. It is observed and held bythis Court in the aforesaid decision that nature of weapon usedand vital part of the body where blow was struck, prove beyondreasonable doubt the intention of the accused tocause death ofdeceased. It is further observed and held by this Court that oncethese ingredients are proved, it is irrelevant whether there wasa single blow struck or multiple blows.

6.4 In the case of Ashokkumar Magabhai Vankar (Supra),the death was caused by single blow on head of the deceased with A

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Aa wooden pestle. It was found that the accused used pestle withsuch force that head of the deceased was broken into pieces. This Courtconsidered whether the case would fall under Section 302 orException 4 of Section 300 of the IPC. It is held by this Court thatthe injury sustained by deceased, not only exhibits intention ofaccused in causing death of victim, but also knowledge ofBaccused in that regard. It is further observed by this Court that suchattack could be none other than for causing death of victim. Itis observed that any reasonable person, with any stretch ofimagination can come to conclusion that such injury on such avital part of the body, with such a weapon, would cause death.

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6.5 A similar view is taken by this Court in the recentdecision in the case of Leela Ram alias Leela Dhar (Supra) andafter considering catena of decisions of this Court on the issue onhandi.e. in case of a single blow, whether a case falls under section 302or section 304 Part I or section 304 Part II, this Court reversed theDjudgment of the High Court (in that case also the judgmentimpugned was from the Rajasthan High Court) and convictedthe accused for the offence under section 302 of the IPC. In thesame decision, this Court also considered Exception 4 of Section 300of the IPC and observed in paragraph 21 as under :

E“21. Under Exception 4, culpable homicide is notmurder if the stipulations contained in thatprovision are fulfilled. They are : (i) that the act wascommitted without premeditation; (ii) that there was asudden fight; (iii) the act must be in the heat ofpassion upon a sudden quarrel; and (iv) the offender shouldFnot have taken undue advantage or acted in a cruel orunusual manner. “

7. Applying the law laid down by this Court in theaforesaid decisions to the facts of the case on hand and thereasoning given by the High Court while converting the conviction fromGsection 302 to Section 304 Part I, the reasons stated in paragraph15 of the impugned Judgement and Order, we are firmly ofthe view that the judgment of the High Court is manifestlyperverse and is totally contrary to the evidence onrecord. As H

per the deposition of PW1 Dr. K Asif, the deceased sustainedfollowing injuries :

“1.Incised wound 7 cm x 0.5 cm skin deep and bonevisible on the middle part of the head.

2. abrasion 1 cm x 0.5 cm on the middle portion ofright leg.”

As per PW15 Dr. Anees Ahmed, a fracture of 4 cm lengthwas found in the parietal and occipital. He also stated that the saidhead injury was sufficient to cause death in the ordinary course ofnature. Thus, the accused used a deadly weapon-axe on the vitalpart of the body-head, which proved to be fatal.

8. Another reason given by the High Court is that there wasno repeated injury. Aforesaid can hardly be a ground toconvert the conviction from section 302 to section 304 Part I ofthe IPC. A single blow on the vital part of the body like head andthat too by deadly weapon-axe and used with force which provedto be fatal, was sufficient to hold that it was a case of murderwithin the definition of Section 300 of the IPC.

8.1 Another reason given by the High Court is that in themorning on the day of the incident, there was an altercationbetween the accused and the deceased and so it can be saidthatin the circumstances of the case there was no intention tocause death on the part of the accused but the fact by which thedeath was caused appears to hold down that the intention ofcausing such bodily injury as was likely to cause death. Theaforesaid is contrary to the evidence on record. It is required to benoted that it is not a case on behalf of the accused that therewas an altercation between the accused and the deceased at thetime of commission of the offence. The altercation, if any, hadtaken place, in the morning and much earlier than the time ofincident. Merely because the altercation might have taken placemuch earlier and not immediately prior to and/or at the timeof commission of the offence, it cannot be inferred that there was nointention on the part of the accused to cause death of thedeceased. Therefore, on the aforesaid ground, the High Court hascommitted a grave error in converting/altering the conviction A

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Afrom Section 302 of the IPC to Section 304 Part I of the IPC.Thus, we are of the view that the judgement of the High Courtis manifestly perverse and is totally contrary to the evidenceon record. The High Court has committed a grave error in alteringthe conviction from Section 302 of the IPC to section 304 Part I oftheIPC and therefore the interference of this Court is warranted toBobviate a complete failure of interest of justice.

9. In view of the above and for the reasons stated above, weallow this appeal, Set aside the impugned Judgement of the HighCourt and restore the judgment of the Trial Court convicting the accusedunder Section 302 of the IPC. The respondent- accused isCsentenced to suffer imprisonment for life as per the Judgement ofthe learned Trial Court. If the accused is already released afterundergoing the sentence as per the impugned Judgment andOrder passed by the High Court, the respondent- accused shallsurrender forthwith to serve his sentence.

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10. A copy of this order shall be forwarded by the Registryto the Chief Judicial Magistrate of the area concerned to seekcompliance.

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Nidhi Jain

Appeal allowed.

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