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NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1930 OF 2019

Ananta Kamilya .. Appellant

Versus

State of West Bengal           .. Respondent

J U D G M E N T

M. R. Shah, J.

Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 14.03.2017 passed by the High Court of

Calcutta in Criminal Appeal No. 8 of 2013, by which the High Court

has dismissed the said appeal preferred by the appellant­accused

and affirmed the conviction of the accused for the offence

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punishable under Section 302 of the Indian Penal Code (for short

‘the IPC’), the convicted accused has preferred the present appeal.

2. At the outset, it is required to be noted that this Court issued

limited notice in the present appeal so as to consider whether the

case would fall under Section 304 IPC.

3. Learned Counsel appearing on behalf of the accused has

vehemently submitted that there was no intention on the part of the

accused to cause the very injury which ultimately led to the death

of the deceased.

3.1 It is further submitted by the learned Counsel appearing on

behalf of the appellant that there was a single injury inflicted on the

deceased after some altercation.  It is submitted that there was no

premeditation or  intention to kill.   It is  submitted  that  even the

accused did not bring any weapon/lathi  and on the spur of the

moment and during the altercation,  he caused the injury on the

deceased by lathi which was lying there.   It is submitted that

therefore the offence committed does not amount to murder in view

of  Exception  4 to  Section  300 IPC.   It is further submitted by

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Learned Counsel appearing on behalf of the accused that even the

deceased was taken to different hospitals and he died after a period

of seven days.  Making above submissions it is prayed to set aside

the conviction  for  the offence punishable  under Section 304  IPC

and to convert the same into either Section 304 Part I or Section

304 Part II of the IPC.

4. Ms. Soumya Chakraborty, Learned Senior Advocate appearing

on behalf of the respondent­State while supporting the impugned

judgment and order passed by the High Court has vehemently

submitted that the injury caused by the accused has been proved to

be fatal.   It is submitted that even  in the case of a single blow,

considering the nature of the injury and if the single blow is caused

on the vital part of the body, it would be a case under Section 302

IPC considering Exception 4 to Section 300 IPC.   Therefore, it is

prayed to dismiss the appeal.

5. Heard learned counsel appearing on behalf of the respective

parties at length.  

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6. At the outset, it is required to be noted that the only question

which  is posed  for consideration of this Court  is  whether  in the

facts  and circumstances of the case, the case  would fall  under

Section 302 IPC or Section 304 of the IPC?  From the perusal of the

record and even the findings recorded by the learned Trial Court

and the High Court, it appears that the incident has taken place on

the spur of the moment.  It has also come on record that when the

accused came to the place of the incident, he did not carry any lathi

and/or any other weapon.  It was only after some altercation and on

the spur of the moment, the accused gave a lathi blow on the head

of the deceased and the deceased sustained the injury and there

was a fracture on his head.  Despite fracture injury on his head, the

deceased was conscious.  The deceased was first taken to the police

station.   Thereafter, he was taken to Patashpur Public Health

Center; thereafter he was taken to another hospital – Egra Hospital

for better treatment; thereafter he was transferred to  Midnapur

(Paschim) Hospital; thereafter he was shifted to P.G. Hospital,

Kolkata.  After a few days, he was removed to Ramchandra Bhanja

Medical College, Cuttack, Orissa and thereafter he died.

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6.1 The aforesaid shows the gravity of injury.   It is true that the

deceased died because of the injuries caused by the accused.

However, as observed above, the incident had taken place on the

spur of the moment and after some altercation the accused took the

lathi which was lying there and caused the injury on the head of the

deceased.   There does not appear any intention on the part of the

accused to cause the very injury which ultimately led to the death

of the deceased.  There does not appear to be any premeditation or

intention to kill the deceased.  The death resulted due to injury in

quarrel.  Therefore, the case would fall under Exception 4 to Section

300 IPC.   

6.2 Going by the injury  sustained by the  deceased and having

regard to the facts and circumstances of the case, in our opinion,

the offence committed by the appellant, at the most, comes under

Part I of Section 304 IPC.  The offence committed does not amount

to murder.

7. In view of  the reasons stated hereinabove, we set aside the

conviction of the appellant  under Section 302  IPC and  find him

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guilty under Section 304 Part I IPC and sentence him to undergo

imprisonment for 10 years.   The appellant shall undergo the

remaining period of sentence.

The appeal is partly allowed to the aforesaid extent.  

……..…………………..J. (ASHOK BHUSHAN)

…………………………..J. (M. R. SHAH)

New Delhi; January 7, 2020.