M.R. Shah, J
1. Leave granted.
2. This appeal arises from the Judgement and Order of a Division Bench of the High Court of Judicature for Rajasthan dated 23.05.2014 passed in
Criminal Appeal No.303 of 2009. The High Court, while allowing the appeal filed by the respondent, instead of Section 302 of the IPC. The High
Court sentenced the respondent to undergo 8 years RI and to pay a fine of Rs.1000/Â and in default 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 Dalip Kumar at Police Station Nimbaheda being FIR No.32/2008. It was alleged that on 26.01.2008,
when PWÂ5 â€" Ms. Kailashi was returning from the farm, in her presence, Kanhaiya Lal attacked Raju (deceased) on his head by an axe. As per
PWÂ5, Raju fell down and, on her cries, other persons reached the spot. The accused ran away. That Raju succumbed to the injuries. After
concluding the investigation, the Investigating Officer filed the chargeÂsheet against the accused for the offence punishable under Section 302 of the
IPC. That the accused pleaded not guilty and therefore he came to be tried by the learned Sessions Court for the offence punishable under Section
302 of the IPC. That the prosecution examined as many as 17 witnesses including PW1 Dr. K. Asif, who issued the Injury Report (Exhibit P1); PW5
Ms. Kailashi; PW15 Dr. Anees Ahmed, who performed the PostÂMortem Report of the deceased. Through the witnesses who were examined, the
prosecution brought on record the documentary evidence including the Injury Report (Exhibit P1) as well as the PostÂMortem Report. That
thereafter, the statement of accused under Section 313 of the CrPC was recorded, in which accused stated that he has been falsely implicated. No
evidence/witness was produced by the accused in defence. That thereafter, on appreciation of evidence, the learned Sessions Court held the accused
guilty for the offence punishable under Section 302 of the IPC and sentenced him to undergo life imprisonment with fine of Rs.1000/Â and in default
to pay the fine, to undergo further one month SI.
3.1 Feeling aggrieved and dissatisfied with the Judgment and Order of conviction and sentence passed by the learned Sessions Court, the
respondentÂoriginal accused preferred Appeal before the High Court being Criminal Appeal No.303 of 2009. By the impugned Judgment and Order,
the High Court has partly allowed the appeal preferred by the accused and has convicted the accused under Section 304 Part I of the IPC instead of
Section 302 of the IPC. Hence, the present appeal by the State against the impugned Judgment and Order passed by the High Court, converting the
conviction of the accused to Section 304 Part I of the IPC in place of conviction under Section 302 of the IPC.
4. Learned counsel appearing on behalf of the appellant the State of Rajasthan has vehemently submitted that in the facts and circumstances of the
case, the High Court has materially erred in altering the conviction of the accused from Section 302 of the IPC to Section 304 Part I of the IPC.
4.1 It is vehemently submitted by the learned Counsel appearing on behalf of the appellantÂState that the main reason given by the High Court while
converting the conviction from Section 302 of the IPC to Section 304 Part I is that the deceased died because of a single injury caused on his head. It
is submitted that however the High Court has not, at all, considered the fact that the accused gave the blow by an axe, a deadly 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 injury was sufficient to cause death in ordinary course
of nature. It is submitted that, therefore, the High Court is not justified in converting the conviction from Section 302 of the IPC to Section 304 Part I
of the IPC.
4.2 It is further submitted by learned Counsel appearing on behalf of the appellantÂState that another reason given by the High Court is that there was
an altercation between the accused and the deceased and so it can be said that in the circumstances of the case there was no intention to cause death
on the part of the accusedÂappellant. It is submitted that however the High Court has failed to consider and appreciate/reappreciate the fact that at
the time when the incident had taken place, there was no altercation at all and the altercation was before few hours and not at 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 case and the injuries
sustained by the deceased, it was a clear case of murder within the definition of Section 300 of the IPC and as such the learned Sessions Court rightly
convicted the accused for the offence under Section 302 of the IPC. It is submitted by the learned Counsel appearing on behalf of the appellantÂState
that the Judgment of the High Court is manifestly perverse and is totally contrary to the evidence on record and therefore the interference of this
Court is warranted.
4.4 Making the above submissions and relying upon the decisions of this Court in the case of Arun Raj v. Union of India (2010) 6 SCC 457;
Ashokkumar Magabhai Vankar v. State of Gujarat (2011) 10 SCC 604; Vijay Ramkrishan Gaikwad v. State of Maharashtra (2012) 11 SCC 592, and
a recent decision of this Court in the case of State of Rajasthan v. Leela Ram alias Leela Dhar dated 13.12.2018 in Criminal Appeal No.1441 of 2013,
it is prayed to allow the present appeal and set aside the impugned Judgment and Order passed by the High Court and to restore the Judgment and
Order of conviction and sentence passed by the learned Sessions Court.
5. Learned Counsel appearing on behalf of the respondentâ€"original accused, while opposing the present appeal, has vehemently submitted that while
converting the conviction of the accused from Section 302 of the IPC to Section 304 Part I of the IPC, the High Court has given cogent reasons and
has considered the relevant circumstances and thereafter has come to the conclusion that the intention of the accused cannot be said to be to cause
death of the deceased. It is submitted that the High Court has considered the relevant circumstances and thereafter has converted the conviction from
Section 302 of the IPC to Section 304 Part I of the IPC and therefore the same is not required to be interfered with by this Court.
6. Heard the learned Advocates appearing for the respective parties at length.
6.1 We have considered in detail the Judgment and Order passed by learned Sessions Court as well as the impugned Judgment and Order passed by
the High Court. The learned Sessions Court convicted the accused for the offence under Section 302 of the IPC. However, in an appeal preferred by
the accused, the High Court has converted the conviction from Section 302 of the IPC to Section 304 Part I of the IPC. While doing so, the High
Court has assigned the following reasons in paragraph 15:
“15. In the circumstances of the case, it is proved beyond doubt that Rajmal had died because of single injury caused on his head by accusedÂ‐
appellant Kanhaiya Lal by an axe. It is also an admitted fact that there was no repeated injury and further more, it is also on record that in the morning
of the day of the incident, there was an altercation between the accused and the deceased and so it can be said that in the circumstances of the case,
that there was no intention to cause death on the part of the accusedÂappellant but the act by which the death was caused appears to have done with
the intention of causing such bodily injury as was likely to cause death and so his conviction deserves to be altered from Section 302 of Indian Penal
Code to Section 304 Part I of Indian Penal Code.â€
6.2 Now so far as the main reason given by the High Court while converting the conviction from Section 302 of the IPC to Section 304 Part I of the
IPC i.e. it was a case of a single blow is concerned, it is required to be noted that the deceased had died because of single injury caused on his head
by the accused by an axe. The aforesaid can hardly be a ground to convert the conviction from 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 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 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.
6.4 In the case of Ashokkumar Magabhai Vankar (Supra), 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 of Section 300 of the IPC. It is held by this Court that the injury sustained by deceased, not only exhibits
intention of accused in causing death of victim, but also knowledge of 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.
6.5 A similar view is taken by this Court in the recent decision in the case of Leela Ram alias Leela Dhar (Supra) and after considering 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 Court reversed the judgment of the High Court (in that case also the judgment impugned was from the Rajasthan High Court) and
convicted the accused for the offence under section 302 of the IPC. In the same decision, this Court also considered Exception 4 of Section 300 of the
IPC and observed in paragraph 21 as under :
“21. 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. â€
7. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the reasoning given by the High Court while
converting the conviction from section 302 to Section 304 Part I, the reasons stated in paragraph 15 of the impugned Judgement and Order, we are
firmly of the view that the judgment of the High Court is manifestly perverse and is totally contrary to the evidence on record. As per the deposition of
PW1 Dr. K Asif, the deceased sustained following injuries :
“1.Incised wound 7 cm x 0.5 cm skin deep and bone visible on the middle part of the head.
2. abrasion 1 cm x 0.5 cm on the middle portion of right leg.â€
As per PW15 Dr. Anees Ahmed, a fracture of 4 cm length was found in the parietal and occipital. He also stated that the said head injury was
sufficient to cause death in the ordinary course of nature. Thus, the accused used a deadly weaponÂaxe on the vital part of the bodyÂhead, which
proved to be fatal.
8. Another reason given by the High Court is that there was no repeated injury. Aforesaid can hardly be a ground to convert the conviction from
section 302 to section 304 Part I of the IPC. A single blow on the vital part of the body like head and that too by deadly weaponÂaxe and used with
force which proved to be fatal, was sufficient to hold that it was a case of murder within the definition of Section 300 of the IPC.
8.1 Another reason given by the High Court is that in the morning on the day of the incident, there was an altercation between the accused and the
deceased and so it can be said that in the circumstances of the case there was no intention to cause death on the part of the accused but the fact by
which the death was caused appears to hold down that the intention of causing such bodily injury as was likely to cause death. The aforesaid is
contrary to the evidence on record. It is required to be noted that it is not a case on behalf of the accused that there was an altercation between the
accused and the deceased at the time of commission of the offence. The altercation, if any, had taken place, in the morning and much earlier than the
time of incident. Merely because the altercation might have taken place much earlier and not immediately prior to and/or at the time of commission of
the offence, it cannot be inferred that there was no intention on the part of the accused to cause death of the deceased. Therefore, on the aforesaid
ground, the High Court has committed a grave error in converting/altering the conviction from 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 Court is manifestly perverse and is totally contrary to the evidence on record. The High
Court has committed a grave error in altering the conviction from Section 302 of the IPC to section 304 Part I of the IPC and therefore the
interference of this Court is warranted to obviate a complete failure of interest of justice.
9. In view of the above and for the reasons stated above, we allow this appeal, Set aside the impugned Judgement of the High Court and restore the
judgment of the Trial Court convicting the accused under Section 302 of the IPC. The respondent accused is sentenced to suffer imprisonment for
life as per the Judgement of the learned Trial Court. If the accused is already released after undergoing the sentence as per the impugned Judgment
and Order passed by the High Court, the respondent accused shall surrender forthwith to serve his sentence.
10. A copy of this order shall be forwarded by the Registry to the Chief Judicial Magistrate of the area concerned to seek compliance.
