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‘  REPORTABLE’   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1772 OF 2008

Som Raj @ Soma … Appellant

Versus

State of H.P. … Respondent

J U D G M E N T

Jagdish Singh Khehar, J.

1. Consequent upon an intimation to the police, by Dr. B.M. Gupta  

(PW5),  Senior  Medical  Officer,  Community  Health  Centre,  Indora  

(hereinafter referred to as the CHC, Indora); the statement of Nek Ram,  

(PW1) was recorded at the CHC, Indora, on 29.7.2000; leading to the  

registration of First Information Report bearing no.123 of 2000 under  

Section 302 of the Indian Penal Code, 1860, at Police Station, Indora.  

The aforesaid statement was recorded by ASI Shiv Kanya (PW12).  In  

his statement, Nek Ram (PW1) asserted that there was a ‘bhandara’  

(feast for devotees, during a Hindu ceremonial congregation) following  

a  ‘yagya’  (Hindu  ritual  ceremony)  at  the  residence  of  Kishan  Singh  

(PW2)  at  village  Khanda  Saniyal  on  29.7.2000.   Nek  Ram  (PW1)  

disclosed, that he along with his brother Sardari Lal (since deceased)  

had been invited to the ‘bhandara’ and were present at the residence of

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Kishan Singh (PW2).  The complainant Nek Ram (PW1) affirmed, that  

he was helping in serving food at the ‘bhandara’.  Whilst he was in the  

kitchen at about 9.30 p.m., he (Nek Ram, PW1) was informed by his  

nephew Sohan (PW3) and Shamsher Singh (PW8) that the accused-

appellant Som Raj alias Soma was quarrelling with his brother Sardari  

Lal.  On being so informed, he had immediately reached the place of  

altercation, and had found the accused-appellant Som Raj assaulting  

his brother Sardari Lal.  He also pointed out, that he had seen Som Raj  

picking  up  a  ‘darat’  (a  traditional  agricultural  implement  used  by  

agriculturists in northern India, for cutting branches of trees.  It is also  

used by butches for beheading goats and sheep.  The implement has a  

handle  and  a  large  cutting  blade),  from the  house  of  Kishan  Singh  

(PW2) and giving his brother Sardari  Lal a blow with it,  on the back  

portion of his head.  After the first blow, the accused-appellant was in  

the process of giving a second blow when the complainant Nek Ram  

(PW1) along with others present at the place of occurrence, had caught  

hold of him.  The ‘darat’ was then snatched from his hands.  According  

to  Nek  Ram  (PW1),  blood  was  oozing  from  the  injury  suffered  by  

Sardari  Lal.   Accordingly,  Sardari  Lal  was  immediately  taken  to  the  

CHC, Indora.  Sardari Lal had reached the hospital at about 10.45 p.m.  

He was declared dead at about 11.15 p.m.

2. Consequence  upon the  registration  of  First  Information  Report  

no.123  of  2000  at  Police  Station,  Indora,  on  29.7.2000,  the  Police  

initiated investigation into the matter.  On completion of the same, the  

accused-appellant was sent to face trial for commission of the offence  

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under Section 302 of the Indian Penal Code.  During the course of the  

trial, the prosecution examined as many as 13 witnesses including six  

witnesses of occurrence (Nek Ram - PW1, Kishan Singh - PW2, Sohan  

- PW3, Mohinder Singh - PW6, Vakil Singh - PW7 and Shamsher Singh  

-  PW8).   The  prosecution  also  examined  two  doctors  who  had  

examined Sardari Lal when he was taken to the CHC, Indora.  One of  

them had treated Sardari Lal when he was brought to the CHC, Indora,  

whereas the other had conducted the post mortem examination.  The  

other witnesses were formal  police witnesses.   The prosecution also  

produced  various  exhibits  to  prove  the  charge  levelled  against  the  

accused-appellant.

3. The  statement  of  the  accused-appellant  was  recorded  under  

Section 313 of the Code of Criminal  Procedure after the prosecution  

had concluded its evidence.  In his statement under Section 313 of the  

Code of Criminal Procedure, the accused-appellant projected a different  

version of the incident.  According to the accused-appellant, there was  

an altercation between his brother Hari Singh (DW5) at the entrance of  

the residence of Kishan Singh (PW2) during which a “gorkha” (a Nepali  

living in India) named Rana gave a ‘darat’ blow to his elder brother Hari  

Singh  (DW5)  which  accidentally  hit  the  deceased  Sardari  Lal.   He  

further stated,  that information about  the occurrence (as narrated by  

him)  was  given  by  his  brother  Hari  Singh  (DW5)  to  the  Magistrate,  

Nurpur,  on  the  day  following  the  incident,  i.e.,  on  30.7.2000.   The  

accused-appellant  examined  five  witnesses  in  his  defence  including  

Hari  Singh  (DW5)  and  Dr.  V.K.  Singla  (DW2),  Medical  Officer,  

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Community  Health  Centre,  Choori,  who  had  examined  Hari  Singh  -  

DW5 and had recorded the injuries found on his person.

4. Having  narrated  a  birds  eye  view,  of  the  accusation  levelled  

against  the  accused-appellant  as  also  his  defence,  it  is  considered  

expedient  to  summarily  narrate  the  assertions  made  by  witnesses  

produced  by  the  prosecution,  in  respect  of  the  occurrence  of  

29.7.2000 :

(i) Nek Ram, the complainant, was examined by the prosecution as  

PW1.  He affirmed that on 29.7.2000, he and his brother Sardari  

Lal,  had  gone  to  the  house  of  Kishan  Singh  (PW2),  for  a  

‘bhandara’.   He deposed that he (Nek Ram - PW1) along with  

Sohan (PW3), Mohinder Singh (PW6) and others were helping in  

serving food at the ‘bhandara’.  At about 8.00-8.30 p.m., Sohan  

(PW3) and Shamsher Singh (PW8) came to him while he was  

serving  meals to the guests, and told him about exchange of hot  

words  between  Sardari  Lal  (deceased)  and  Som  Raj  (the  

accused-appellant)  in  the  courtyard  of  Kishan  Singh  (PW2).  

Thereupon he asserted, that he had proceeded to the courtyard  

where he saw the accused-appellant Somraj giving a ‘darat’ blow  

to Sardari Lal (the deceased) which landed on the back portion of  

his head.  He pointed out, that when the accused-appellant made  

a second attempt for giving a second ‘darat’ blow to Sardari Lal,  

he  (Nek  Ram -  PW1),  Mohinder  Singh  (PW6),  Sohan  (PW3),  

Kishan Singh (PW2) and others overpowered Sardari  Lal.   He  

further asserted, that Mohinder Singh (PW6) had snatched the  

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‘darat’ from the hands of the accused-appellant Som Raj and had  

thrown it away.  He also testified, that having received the ‘darat’  

blow,  Sardari  Lal  had fallen on the ground,  and was bleeding  

profusely.  Sardari Lal was immediately taken to the CHC, Indora,  

where  he  succumbed  to  his  injuries.   He  confirmed,  that  the  

Police had reached the hospital and had recorded his statement.  

He also stated, that the accused-appellant Som Raj alias Soma  

was  his  uncle.   The  statement  of  Nek  Ram  (PW1)  was  in  

consonance  with  the  prosecution  version  of  the  occurrence.  

During the course of his cross-examination, Nek Ram (PW1) was  

confronted  with  the  version  of  the  incident  depicted  by  the  

accused-appellant  during the course of  his statement  recorded  

under Section 313 of the Code of Criminal Procedure.  Nek Ram  

(PW1), however, denied the correctness thereof.

(ii) Kishan  Singh,  at  whose  residence  the  ‘bhandara/yagna’  was  

held, was examined as PW2.  He reiterated the factual position of  

the occurrence,  in  identical  terms and in  consonance with the  

statement of Nek Ram (PW1).  While doing so, he also affirmed  

that the accused-appellant had tried to inflict a second blow with  

the ‘darat’ on Sardari Lal.  However, he was held by those at the  

spot, and the ‘darat’ was snatched from his hands by Mohinder  

Singh (PW6).  He also reiterated, that on receipt of the injury at  

the hands of the accused-appellant, Sardari Lal had fallen down  

and blood was oozing from his head.  He also deposed, that he  

had recovered the ‘darat’ used by Som Raj and had handed over  

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the same to the Police, during the course of investigation.  He  

also acknowledged, that the ‘darat’ produced in the court was the  

same  one  with  which  Sardari  Lal  had  been  assaulted  by  the  

accused-appellant.  As in the case of Nek Ram (PW1), Kishan  

Singh (PW2) was also confronted with the version of the incident  

narrated by the accused-appellant during the course of his cross-

examination.  He, however, denied the same.

(iii) Karnail  Singh was examined by the prosecution as PW3.  The  

statement of Karnail Singh (PW3) was on the same lines as those  

of  Nek  Ram  (PW1)  and  Kishan  Singh  (PW2).   He  too  was  

confronted  during  the  course  of  cross-examination  with  the  

version  of  the  accused-appellant,  namely,  that  the  injury  in  

question  had  been  caused  by  a  “gorkha”  named  Rana.   The  

aforesaid suggestion put to the witness, was denied by him.

(iv) Mohinder Singh appeared before the Trial Court and recorded his  

statement  as PW6.  He affirmed the quarrel  between the rival  

parties,  namely,  the  deceased  Sardari  Lal  and  the  accused-

appellant, Som Raj.  He also acknowledged, that Kishan Singh  

(PW2) and Nek Ram (PW1) had caught hold of the accused.  He  

admitted, that he had seen the accused-appellant with the ‘darat’  

in his hand.  He also admitted, that he had snatched the ‘darat’  

from the hands of the accused-appellant, and had thrown it away.  

He admitted having seen the injury on the head of Sardari Lal,  

who had fallen to the ground, and was in a pool of blood.  He  

however denied in his examination-in-chief, that he had actually  

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seen the  incident  by  asserting,  that  he did  not  know how the  

deceased  Sardari  Lal  had  received  the  injury.   Based  on  the  

aforesaid  statement  made  by  Mohinder  Singh  (PW6),  he  was  

declared hostile, and was permitted to be cross-examined by the  

Public Prosecutor.  During the course of his cross-examination,  

he again acknowledged having seen the ‘darat’ in the hands of  

the  accused-appellant  Som  Raj,  and  additionally,  that  the  

accused-appellant who had inflicted the first blow with the ‘darat’  

on  the  person  of  Sardari  lal.   He  further  confirmed  that  the  

accused-appellant had also tried to inflict another blow on Sardari  

Lal,  but was prevented by him and others from doing so.  He  

testified, that he had caught the hands of the accused-appellant,  

and had thereby stopped him from inflicting the second blow.  He  

also reiterated, that he had forcibly snatched the ‘darat’ from the  

hands  of  the  accused-appellant,  and  had  thrown  it  away.  

Mohinder Singh (PW6) was cross-examined on the same lines as  

the previous three witnesses referred to above, but he reiterated  

the factual position recorded by him in his examination-in-chief,  

as also during the course of his cross-examination by the Public  

Prosecutor.

(v) The prosecution then produced Vakil Singh as PW7.  Vakil Singh  

affirmed before the Trial Court, that he had seen the deceased  

Sardari Lal lying in an injured condition, and he was informed that  

the injuries on Sardari Lal were caused by the accused-appellant  

Som Raj with a ‘darat’.   He asserted,  that when he had seen  

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Sardari  Lal  in  the injured  condition  during  which  he  could  not  

speak  anything.   People  who  had  gathered  at  the  place  of  

occurrence, had informed him that the accused-appellant had run  

away from the spot after inflicting injuries on Sardari Lal.  Based  

on the fact that Vakil Singh (PW7) was denying of having himself  

witnessed the incident, he was declared hostile.  Thereupon, the  

Public Prosecutor  was permitted to cross-examine him.  When  

confronted with the statement made to the Police, he reiterated  

that his statement had not been recorded correctly.  He stated,  

that he had not seen the accused Som Raj inflicting injuries on  

the person of the deceased Sardari  lal.   He however deposed  

that the people who had gathered at the place of the occurrence  

had  informed  him,  that  the  accused-appellant  Som  Raj  had  

inflicted injuries on the person of the deceased Sardari Lal with a  

‘darat’.  He also denied the version of the accused pertaining to  

the “gorkha’ named Rana.

(vi) Shamsher  Singh  (PW8)  was  the  last  of  the  witnesses  of  

occurrence.   He fully supported the prosecution version of  the  

incident.   He deposed on the same lines as Nek Ram (PW1),  

Kishan Singh (PW2), Karnail Singh (PW3) and Mohinder Singh  

(PW6).   He also endorsed the fact,  that the accused-appellant  

Som Raj had tried to inflict a second blow with the ‘darat’, but had  

not  succeeded  in  doing  so  because  Nek  Ram (PW1),  Kishan  

Singh (PW2) and Mohinder Singh (PW6) had caught hold of him.  

He also denied the version narrated by the accused-appellant.

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5. In so far as the accused-appellant is concerned, after recording  

his statement under Section 313 of the Code of Criminal Procedure, he  

examined five witnesses in his defence.  The statement of Dr. Deepak  

Sharma, Block Medical Officer Gangath was recorded as DW1.  DW1  

affirmed that on 30.7.2007, he had examined Hari  Singh (DW5) and  

had found bruises over his lower jaw and also found three shaky teeth.  

During the course of his cross-examination, he acknowledged that no  

application was filed by Hari Singh (DW5) before him, requiring him to  

conduct  his  medical  examination.   He  denied  as  incorrect,  the  

suggestion that  he had prepared the medico-legal  certificate (Exhibit  

D3) in connivance with Hari Singh (DW5).  He also acknowledged, that  

the injuries suffered by Hari Singh, could result from falling on a hard  

surface.  Dr. V.K. Singla, Medical officer CHC, Choori, was examined  

as  DW2.   DW2  stated  that  on  31.7.2000  (two  days  after  the  

occurrence),  he  had examined  Hari  Singh in  his  capacity  as  Dental  

Surgeon, Gangath, and had given his opinion as at Exhibit D1.  Harnam  

Singh, Havaldar Head Constable, Police Station Nurpur, appeared as  

DW3.  He confirmed that a rapat roznamacha (entry in the Daily Diary  

of the Police Station) was recorded at Police Station Nurpur, in respect  

of the injuries suffered by Hari Singh.  He pointed out, that no action  

had been taken in the matter, as the incident in question was within the  

jurisdiction  of  Police  Station,  Indora.   The  statement  of  Dev  Raj,  

Hawaldar  Head  Constable,  Police  Station,  Indora,  was  recorded  as  

DW4.   He merely produced the original  ‘rapat roznamcha’ of Police  

Station, Indora, to affirm the factual position depicted by Harnam Singh,  

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Havaldar Head Constable (DW3).  The statement of Hari  Singh was  

recorded  as  DW5.   In  his  statement,  he  acknowledged,  that  the  

accused-appellant was his younger brother and the deceased Sardari  

Lal  was his  nephew.   He also acknowledged,  that  he  alongwith  his  

family members, attended the ‘yagya’ held by Kishan Singh (PW2) at  

his residence on 29.7.2000.  During the course of his deposition, he  

attempted to provide an alibi to the accused-appellant by asserting, that  

the accused-appellant Som Raj had gone to Chintpurni on the date of  

occurrence.   He further stated, that Som Raj was visiting their  other  

younger  brother  who  lived  at  Chintpurni.   He  also  endeavoured  to  

substantiate the factual position asserted by the accused-appellant in  

his statement under Section 313 of the Code of Criminal Procedure.  In  

this behalf he deposed, that a ‘gorkha’ named Rana had an altercation  

with  him  outside  the  house  of  Kishan  Singh  (PW2).   During  the  

aforesaid altercation, Rana had given him a blow on his mouth, which  

had resulted  in one broken tooth.   He further  stated,  that  when the  

aforesaid Rana attempted a second blow with a ‘darat’ at him, he had  

ducked, whereupon the blow had landed on the deceased Sardari Lal,  

which resulted in the death of Sardari Lal.  Hari Singh (DW5) further  

testified, that he had lodged a report with the police.  He deposed, that  

he had also gone to the Civil Hospital, Nurpur for treatment, whereupon  

he was referred to the Dental Surgeon at Gangath.  Hari Singh (DW5)  

deposed further, that having noted down his complaint, the same was  

forwarded by Police Station, Nurpur, to the Police Station, Indora.

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6. Based on the statements of witnesses noticed hereinabove, we  

shall endeavour to answer the legal issues canvassed at the hands of  

the learned counsel for the accused-appellant.  Suffice it to state, that  

almost  all  the  witnesses,  whose  statements  have  been  noticed  

hereinabove including the deceased, as well as, the accused-appellant,  

are cousins, nephews or uncles.  Consequently, it is apparent, that a  

large  number  of  relations  have  collectively  deposed  against  the  

accused-appellant, whereas, only the brother of the accused-appellant  

Hari  Singh (DW5) has deposed in his  favour.   On merits,  there can  

hardly be any doubt about the fact, that the accused-appellant inflicted  

the fatal blow with a ‘darat’ on the back of the head of the deceased  

Sardari Lal.  The said singular blow proved to be fatal.  The affirmation,  

that  the  aforesaid  blow had  been  inflicted  by  the  accused-appellant  

emerges from the statements of Nek Ram (PW1), Kishan Singh (PW2),  

Sohan (PW3), Mohinder Singh (PW6) and Shamsher Singh (PW8).  All  

the aforesaid witnesses were present at the place of occurrence.  All  

the aforesaid witnesses were related to the deceased Sardari Lal, as  

also  the  accused-appellant  Som Raj.   There  is  no  reason  for  us  to  

doubt the veracity of their statements.  In order to set up an alternative  

version,  the  accused-appellant  has  narrated  his  own  version  of  the  

incident,  wherein  he  acknowledges  his  presence  at  the  

‘bhandara/yagna’  held  at  the  residence  of  Kishan  Singh  (PW2)  on  

29.7.2000, when the occurrence in question took place.  The statement  

of Hari Singh (DW5), in our considered view, is insufficient to overturn  

the statements of  the prosecution witnesses.  The statement  of  Hari  

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Singh  (DW5),  to  our  mind,  does  not  inspire  any  confidence.   The  

statement of Hari Singh (DW5), in our considered view, was recorded at  

the behest of the accused-appellant, who is his real brother.  We would  

describe  it  as untrustworthy.   In  view of  the overwhelming evidence  

produced by the prosecution, we have no doubt in our mind, that the  

fatal ‘darat’ blow was inflicted by the accused-appellant Som Raj on the  

back of the head of the deceased Sardari Lal.  We, therefore, affirm the  

aforesaid conclusion drawn by the Trial Court, as well as, by the High  

Court.

7. It  would  be  relevant  to  mention,  that  learned  counsel  for  the  

accused-appellant vehemently contended that even if the singular fatal  

blow is taken to have been inflicted by the accused-appellant Som Raj,  

he could only be punished for the offence under Section 304 Part-II of  

the Indian Penal Code, and not for the offence of murder under Section  

302.  In this behalf, it was the submission of the learned counsel, that  

there  was  no  premeditation  to  commit  the  offence  on  the  date  of  

occurrence.  It was also pointed out, that the evidence produced by the  

prosecution,  does not  reveal  any prior  enmity  between the accused-

appellant and the deceased.  Therefore, according to learned counsel,  

the action should be treated as ‘culpable homicide not amounting to  

murder’.  It was sought to be explained, that the action attributed to the  

accused-appellant, did not include any ingredient of intention of causing  

such bodily injury as is likely to cause death.  To support his aforesaid  

submission,  it  was  vehemently  contended,  that  all  the  prosecution  

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witnesses had stated in unison, that the accused-appellant had inflicted  

a singular blow on the deceased Sardari Lal.

8. In order to support his aforesaid contention, learned counsel for  

the appellant, in the first instance, placed reliance on the judgment of  

this Court in Jagrup Singh Vs. State of Haryana, (1981) 3 SCC 616,  

wherein this Court held as under:-

“5. In  assailing  the  conviction,  learned  Counsel  for  the  appellant  contends  that  the  appellant  having  struck  a  solitary blow on the head of the deceased with the blunt  side of the gandhala, can be attributed with the knowledge  that  it  would  cause  an  injury  which  was  likely  to  cause  death and not with any intention to cause the death of the  deceased.  The  offence  committed  by  the  appellant,  therefore, amounted to culpable homicide not amounting to  murder, punishable under Section 304, Part II of the Code.  He further contends, in the alternative, that there could be  no doubt that the appellant acted in the heat of the moment  when he hit the deceased and is, therefore, entitled to the  benefit of Exception 4 of Section 300 of the Code. On the  other hand, learned Counsel for the State contends that the  matter squarely falls within clause Thirdly of Section 300 of  the Code. He submits that merely because the appellant  rendered a solitary blow with the blunt side of the gandhala  on the head would not necessarily imply that the offence  amounted to culpable homicide not  amounting to murder  punishable under Section 304, Part II of the Code.

6. 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.

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   xxx xxx     xxx xxx         xxx

9. Looking  at  the  totality  of  the  evidence,  it  would  not  be  possible to come to the conclusion that when the appellant  struck the deceased with the blunt side of the gandhala, he  intended to cause such bodily injury as was sufficient in the  ordinary course of nature to cause death. A gandhala is a  common  agricultural  implement  consisting  of  a  flat,  rectangular  iron  strip,  three  sides  of  which  are  blunt,  embedded in a wooden handle. The length of the iron strip  is in continuation of the wooden handle and the end portion  is sharp, which is used to dig holes in the earth to set up  fencing on embankments in the field. If a man is hit with the  blunt side on the head with sufficient force, it is bound to  cause, as here, death. There can be no doubt that it was  used  with  certain  amount  of  force  because  there  was  cerebral compression. But that by itself is not sufficient to  raise  an  inference  that  the  appellant  intended  to  cause  such  bodily  injury  as  was  sufficient  to  cause  death.  He  could  only  be  attributed  with  the  knowledge  that  it  was  likely  to  cause  an  injury  which  was  likely  to  cause  the  death.  The  matter,  therefore,  does  not  fall  within  clause  Thirdly of Section 300 of the Code.”

Reliance was also placed on the decision rendered by this  Court  in  

Jagtar Singh Vs. State of Punjab, (1983) 2 SCC 342, wherein it has  

been held as under:-

“5. The only question that we are called upon to examine in  the  facts  and circumstances  of  this  case is  whether  the  appellant  could  be  said  to  have  committed  murder  of  deceased Narinder Singh punishable under Section 302 of  the Indian Penal Code.

6. A  quarrel  took  place  on  the  spur  of  the  moment.  The  appellant never expected to meet the deceased. When the  deceased was just passing by the road in front of the house  of the appellant, his forehead dashed with the  parnala of  the house of the appellant which provoked the deceased to  remonstrate the appellant. It is in evidence that there was  exchange of abuses and at that time appellant gave a blow  with a knife which landed on the chest of the deceased.

7. Undoubtedly, PW 2 Dr H.S. Gill opined that the blow on the  chest pierced deep inside the chest cavity resulting in the  injury  to  the  heart  and  this  injury  was  sufficient  in  the  ordinary course of nature to cause death. The question is  whether in the circumstances in which the appellant gave a  

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blow with a knife on the chest, he could be said to have  intended  to  cause  death  or  he  could  be  imputed  the  intention to cause that particular injury which has proved  fatal?  The  circumstances  in  which  the  incident  occurred  would clearly negative any suggestion of premeditation. It  was in a sudden quarrel to some extent provoked by the  deceased, that the appellant gave one blow with a knife.  Could it be said that para 3 of Section 300 is attracted. We  have considerable doubt about the conclusion reached by  the  High  Court.  We  cannot  confidently  say  that  the  appellant intended to cause that particular injury which is  shown to have caused death. There was no premeditation.  There was no malice. The meeting was a chance meeting.  The cause of quarrel though trivial was just sudden and in  this background the appellant, a very young man gave one  blow. He could not be imputed with the intention to cause  death or the intention to cause that particular injury which  has proved fatal. Neither para 1 nor para 3 of Section 300  would  be  attracted.  We are  fortified  in  this  view  by  the  decision of this Court in Jagrup Singh v. State of Haryana,   (1981) 3 SCC 616. It was subsequently followed in Randhir   Singh v. State of Punjab, (1981) 4 SCC 484, and Kulwant  Rai v.  State of Punjab, (1981) 4 SCC 245.  Following the  ratio of the aforementioned decisions, we are of the opinion  that  the  appellant  could  not  be  convicted  for  having  committed  murder  of  the  deceased  Narinder  Singh.  His  conviction  for  an  offence  under  Section  302,  IPC  and  sentence of imprisonment for life are liable to be set aside.

8. The next question is what offence the appellant is shown to  have committed? In a trivial quarrel the appellant wielded a  weapon  like  a  knife.  The  incident  occurred  around  1.45  noon. The quarrel was of a trivial nature and even in such a  trivial quarrel the appellant wielded a weapon like a knife  and landed a blow in the chest. In these circumstances, it is  a permissible inference that the appellant at least could be  imputed with a knowledge that he was likely to cause an  injury  which  was  likely  to  cause  death.  Therefore,  the  appellant  is  shown to  have committed  an  offence  under  Section  304  Part  II  of  the  IPC  and  a  sentence  of  imprisonment for five years will meet the ends of justice.

9. Accordingly this appeal is partly allowed. The conviction of  the appellant  for an offence under Section 302, IPC and  sentence of imprisonment for life are set aside. Appellant is  convicted for having committed an offence under Section  304 Part II of the Indian Penal Code and he is sentenced to  suffer RI for five years. Conviction of the appellant for an  offence under Section 304 and the sentence imposed for  

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the same are confirmed.  Both the substantive sentences  are directed to run concurrently.”

9. In order to controvert the aforenoticed submission advanced at  

the hands of the learned counsel for the accused-appellant, it was the  

vehement assertion of  the learned counsel  for the respondent State,  

that  the  weapon  of  offence  would  constitute  a  material  basis  for  

determining the purely legal contention advanced at the hands of the  

learned counsel for the appellant.  It was pointed out, that a ‘darat’ had  

been  used  by  the  accused-appellant  for  inflicting  the  blow  on  the  

deceased  Sardari  Lal.   It  was  submitted,  that  a  ‘darat’  is  used  by  

agriculturalists for cutting branches and trees.  It was also submitted,  

that butchers use a ‘darat’ for beheading goats and sheeps.  Based on  

the aforesaid factual position it was submitted, that the very nature of  

the weapon of offence is sufficient to infer, that the accused-appellant  

had the  intention  of  causing  such bodily  injury  as  is  likely  to  cause  

death.   It  was  also  the  contention  of  the  learned  counsel  for  the  

respondent State, that it  would be wrongful to adjudicate the present  

controversy  under  the  assumption,  that  the  accused-appellant  had  

caused a singular  injury.   As a matter  of  fact,  it  was the vehement  

contention of  the learned counsel  for  the respondent  State,  that  the  

accused-appellant was in the process of inflicting a second ‘darat’ blow  

on the deceased Sardari Lal, but was prevented from doing so by those  

present at the place of occurrence.  Insofar as the instant aspect of the  

matter is concerned, learned counsel for the respondent State placed  

reliance on the statements of Nek Ram (PW1), Kishan Singh (PW2),  

Sohan (PW3), Mohinder Singh (PW6) and Shamsher Singh (PW8), who  

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unequivocally  stated,  that  they  had  caught  hold  of  the  accused-

appellant when he was in the process of inflicting a second ‘darat’ blow  

on the deceased.  They all affirmed, that the ‘darat’ was snatched away  

from the accused-appellant by Mohinder Singh (PW6).  Accordingly, it  

was contended, that left to himself, the accused-appellant would have  

inflicted a second blow,  and probably  still  further  blows,  had he not  

been restrained by those present at the place of occurrence.  Besides  

the aforesaid, there is a third reason highlighted by the learned counsel  

for  the  respondent  State,  namely,  the  place  on  the  body  of  the  

deceased and the nature of injury caused to the deceased.  Insofar as  

the instant aspect of the matter is concerned, it was submitted, that the  

injury in question was inflicted on the head of the deceased Sardari Lal.  

Learned counsel invited our attention to the statements of Dr. Suman  

Saxena (PW4) and Dr. B.M. Gupta (PW5).  Having examined Sardari  

Lal, they had deposed, that the deceased bore an incised wound 6 cm  

x 4 cm brain deep, cutting parts of the underlying bone.  The injury  

under reference was caused just lateral to the midline on the left side of  

the  occipital  bone.   The  underlying  brain  tissue,  according  to  these  

witnesses, could be seen and felt  through a hole at the place of the  

wound.  The size of the hole in the occipital bone was 3 cm x 2 cm.  

The underlying brain membranes were found to have been torn off, and  

brain tissues were found lacerated.  It was accordingly his submission,  

that the fact that the accused-appellant had aimed the ‘darat’ blow on  

the head of the deceased with such force, that it caused a hole in the  

occipital  bone and exposed the brain,  was sufficient  to arrive at  the  

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conclusion, that the same was inflicted with the intention, that it would  

cause death of the person hit.

10. In order to support his contention, that the offence committed by  

the  accused-appellant  constitutes  ‘culpable  homicide  amounting  to  

murder’,  reliance  was  placed  by  the  learned  State  counsel  on  the  

decision  rendered  by  this  Court  in  State  of  Andhra  Pradesh  Vs.  

Rayavarapu Punnayya & Anr., (1976) 4 SCC 382, wherein it has been  

held as under:-

“13. The academic  distinction between ‘murder’  and ‘culpable  homicide not amounting to murder’ has vexed the courts for  more  than a century.  The confusion  is  caused,  if  courts  losing sight of  the true scope and meaning of  the terms  used by the legislature in these sections, allow themselves  to be drawn into minutae abstractions. The safest way of  approach  to  the  interpretation  and  application  of  these  provisions seems to be to keep in focus the keywords used  in  the  various  clauses  of  Sections  299  and  300.  The  following comparative table will  be helpful  in appreciating  the points of distinction between the two offences.

Section 299 Section 300 A  person  commits  culpable  homicide if the act by which the  death is caused is done –  

Subject  to  certain  exceptions  culpable homicide is murder if  the act by which the death is  caused is done -  

INTENTION (a)  with the intention of causing  death; or

(b)  with the intention of causing  such bodily injury as is  likely to  cause death; or

(1)   with  the  intention  of  causing death; or

(2)   with  the  intention  of  causing  such  bodily  injury  as  the offender knows to be likely  to  cause  the  death  of  the  person  to  whom the  harm  is  caused; or

(3)   with  the  intention  of  causing  bodily  injury  to  any  person  and  the  bodily  injury  intended  to  be  inflicted  is  sufficient  in  the  ordinary   course  of  nature to  cause  death; or

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KNOWLEDGE (c)  with the knowledge that the  act is likely to cause death

(4)   with  the  knowledge  that  the  act  is  so  imminently  dangerous  that  it  must  in  all   probability  cause  death or  such bodily injury as is likely to  cause death, and without any  excuse for incurring the risk of  causing  death  or  such  injury  as is mentioned above.

14. Clause (b) of Section 299 corresponds with clauses (2) and  (3) of Section 300. The distinguishing feature of the mens  rea requisite under clause (2) is the knowledge possessed  by the offender regarding the particular victim being in such  a peculiar condition or state of health that the internal harm  caused to him is likely to be fatal, notwithstanding the fact  that such harm would not in the ordinary way of nature be  sufficient to cause death of a person in normal health or  condition.  It  is  noteworthy  that  the  “intention  to  cause  death” is not an essential requirement of clause (2). Only  the intention of  causing the  bodily injury coupled with the  offender's  knowledge of  the  likelihood  of  such  injury  causing the death of  the particular  victim,  is sufficient  to  bring the killing within the ambit of this clause. This aspect  of  clause (2) is borne out by Illustration (b) appended to  Section 300.

15. Clause  (b)  of  Section  299  does  not  postulate  any  such  knowledge on the part of the offender. Instances of cases  falling under clause (2) of Section 300 can be where the  assailant  causes  death  by  a  fist  blow intentionally  given  knowing that the victim is suffering from an enlarged liver,  or  enlarged  spleen  or  diseased  heart  and  such  blow  is  likely to cause death of that particular person as a result of  the rupture of the liver, or spleen or the failure of the heart,  as  the  case  may  be.  If  the  assailant  had  no  such  knowledge about the disease or special frailty of the victim,  nor an intention to cause death or bodily injury sufficient in  the ordinary course of nature to cause death, the offence  will  not  be  murder,  even  if  the  injury  which  caused  the  death, was intentionally given.

16. In clause (3) of Section 300, instead of the words “likely to  cause death” occurring in the corresponding clause (b) of  Section 299, the words “sufficient in the ordinary course of  nature”  have  been  used.  Obviously,  the  distinction  lies  between a bodily injury  likely to cause death and a bodily  injury  sufficient in the ordinary course of nature to cause  death.  The distinction is fine but real,  and, if  overlooked,  may result in miscarriage of justice. The difference between  

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clause (b) of Section 299 and clause (3) of Section 300 is  one of the degree of probability of death resulting from the  intended  bodily  injury.  To  put  it  more  broadly,  it  is  the  degree of probability of death which determines whether a  culpable homicide is of the gravest, medium or the lowest  degree.  The  word  “likely”  in  clause  (b)  of  Section  299  conveys  the sense of  ‘probable’  as  distinguished from a  mere possibility. The words “bodily injury … sufficient in the  ordinary course of nature to cause death” mean that death  will  be  the  “most  probable”  result  of  the  injury,  having  regard to the ordinary course of nature.

17. For cases to fall within clause (3), it is not necessary that  the offender intended to cause death, so long as the death  ensues  from  the  intentional  bodily  injury  or  injuries  sufficient to cause death in the ordinary course of nature.  Rajwant v.  State of Kerala, AIR 1966 SC 1874,  is an apt  illustration of this point.

18. In Virsa Singh v. State of Punjab, AIR 1958 SC 465,  Vivian  Bose,  J.  speaking  for  this  Court,  explained  the meaning  and scope of clause (3), thus (at p. 1500):-

“The  prosecution  must  prove  the  following  facts  before  it  can  bring  a  case  under  Section  300,  “thirdly”. First, it must establish quite objectively, that  a bodily injury is present; secondly the nature of the  injury  must  be  proved.  These  are  purely  objective  investigations. It must be proved that there was an  intention to inflict that particular injury, that is to say,  that  it  was  not  accidental  or  unintentional  or  that  some other kind of injury was intended. Once these  three elements are proved to be present, the enquiry  proceeds further, and fourthly it must be proved that  the injury of the type just described made up of the  three elements set out above was sufficient to cause  death in the ordinary course of nature. This part of  the enquiry is purely objective and inferential and has  nothing to do with the intention of the offender.”

19. Thus according to the rule laid down in Virsa Singh case of  even if the intention of accused was limited to the infliction  of a bodily injury sufficient to cause death in the ordinary  course  of  nature,  and did  not  extend  to  the  intention  of  causing death,  the offence would be ‘murder’.  Illustration  (c) appended to Section 300 clearly brings out this point.

20. Clause (c)  of  Section 299 and clause (4) of Section 300  both require knowledge of the probability of the act causing  death. It is not necessary for the purpose of this case to  

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dilate much on the distinction between these corresponding  clauses. It will be sufficient to say that clause (4) of Section  300  would  be  applicable  where  the  knowledge  of  the  offender  as  to  the  probability  of  death  of  a  person  or  persons  in  general  — as  distinguished  from a  particular  person  or  persons  — being  caused  from his  imminently  dangerous act, approximates to a practical certainty. Such  knowledge  on  the  part  of  the  offender  must  be  of  the  highest  degree  of  probability,  the  act  having  been  committed by the offender without any excuse for incurring  the risk of causing death or such injury as aforesaid.

21. From the above conspectus, it  emerges that whenever a  court is confronted with the question whether the offence is  ‘murder’ or ‘culpable homicide not amounting to murder’, on  the facts of a case, it will be convenient for it to approach  the problem in three stages. The question to be considered  at the first stage would be, whether the accused has done  an act by doing which he has caused the death of another.  Proof  of  such causal  connection  between  the  act  of  the  accused  and  the  death,  leads  to  the  second  stage  for  considering  whether  that  act  of  the accused amounts  to  “culpable  homicide”  as  defined  in  Section  299.  If  the  answer  to  this  question  is  prima  facie  found  in  the  affirmative,  the  stage  for  considering  the  operation  of  Section  300  of  the  Penal  Code,  is  reached.  This  is  the  stage  at  which  the  court  should  determine  whether  the  facts proved by the prosecution bring the case within the  ambit of any of the four clauses of the definition of ‘murder’  contained in Section 300. If the answer to this question is in  the negative the offence would be ‘culpable homicide not  amounting  to  murder’,  punishable  under  the  first or  the  second part  of  Section  304,  depending,  respectively,  on  whether the second or the third clause of Section 299 is  applicable. If this question is found in the positive, but the  case comes within  any of  the  exceptions  enumerated  in  Section 300, the offence would still be ‘culpable homicide  not amounting to murder’, punishable under the first part of  Section 304, of the Penal Code.

22. The  above  are  only  broad  guidelines  and  not  cast-iron  imperatives. In most cases, their observance will facilitate  the  task  of  the  court.  But  sometimes  the  facts  are  so  intertwined  and  the  second  and  the  third  stages  so  telescoped into each other, that it may not be convenient to  give a  separate treatment  to the matters  involved in the  second and third stages.”

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11. We shall now venture to apply the parameters laid down by this  

Court, to determine whether the accused-appellant herein can be stated  

to have intentionally caused such bodily injury to the deceased, as he  

knew was so imminently dangerous, that it would in all probability cause  

his death.  First and foremost, it is apparent from the factual narration of  

the witnesses produced by the prosecution, that the accused-appellant  

was not carrying the ‘darat’ but had picked up the same from the house  

of  Kishan Singh (PW2).   A ‘darat’,  as noticed above,  is a traditional  

agricultural implement used for cutting branches of trees.  It is also used  

by butchers for beheading goats and sheep.  A ‘darat’ has a handle and  

a large cutting blade.  Having picked up the ‘darat’ for committing an  

assault on the deceased, it is apparent that the accused-appellant was  

aware of the nature of injury he was likely to cause with the weapon of  

incident.   From the statements of Dr. Suman Saxena (PW4) and Dr.  

B.M. Gupta (PW5), the nature of injuries caused to the deceased has  

been brought out.  A perusal thereof would leave no room for doubt,  

that the accused-appellant 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.   The place where the blow was  

struck  (at  the  back  of  the  head  of  the  deceased)  by  the  accused-

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appellant, also leads to the same inference.  It is not the case of the  

accused-appellant, 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.  Another material fact is  

the relationship between the parties.   The accused-appellant  was an  

uncle  to  the  deceased.   In  such  circumstances,  there  is  hardly  any  

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

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 accused-appellant  was in  the  process  of  inflicting a  

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

whereupon one of them (Mohinder Singh – PW6) snatched the ‘darat’  

from the accused-appellant, and threw it away.  In such a situation, it  

would  improper  to  treat/determine  the  culpability  of  the  accused-

appellant  by  assuming,  that  he  had  inflicted  only  one  injury  on  the  

deceased.  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 accused-appellant must  

be  deemed  to  have  committed  the  offence  of  ‘culpable  homicide  

amounting to murder’ under Section 302 of the Indian Penal Code, as  

the accused-appellant  Som Raj had struck the ‘darat’  blow,  with the  

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

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imminently dangerous, that it would in all probability cause the death of  

Sardari Lal.  Having recorded the aforesaid conclusion, we are satisfied,  

that the accused-appellant was justifiably convicted of the offence under  

Section  302  of  the  Indian  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).

12. In  view of  our  aforesaid  conclusions,  the  instant  appeal  being  

devoid of merit, is dismissed.

   …………………………….J.     (P. Sathasivam)

   …………………………….J.     (Jagdish Singh Khehar)

New Delhi; February 22, 2013.

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