REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 645 OF 2019 (ARISING OUT OF SLP (CRL.) NO.626 OF 2015)

The State of Rajasthan     ..Appellant

            Versus

Kanhaiya Lal                              ..Respondents

J U D G M E N T

M.R. SHAH, J.

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,

convicted him under Section 304 Part I of the Indian Penal Code,

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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/­

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 PW­5 – Ms. Kailashi was

returning from the farm, in her presence, Kanhaiya Lal attacked

Raju (deceased) on his head by an axe. As per PW­5, 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

charge­sheet 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

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the Post­Mortem 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 Post­Mortem 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/­ 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 respondent­original 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

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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 appellant­State 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

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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 appellant­State 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 accused­appellant. 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 appellant­State

that the Judgment of the High Court is manifestly perverse and is

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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

respondent–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

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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 accused­ 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

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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 accused­appellant 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.”

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

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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

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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. ”  

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

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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.”  

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 weapon­axe

on the vital part of the body­head, 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 weapon­axe 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

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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

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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.   

……………………………….J. [L. NAGESWARA RAO]

New Delhi; ……………………………….J. April 10, 2019. [M.R. SHAH]    

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