STALIN versus STATE REPRESENTED BY THE INSPECTOR OF POLICE

STALIN

STATE REPRESENTED BY THE INSPECTOR OF POLICE

(Criminal Appeal No. 577 of 2020)

SEPTEMBER 09, 2020

[ASHOK BHUSHAN, R. SUBHASH REDDY ANDM. R. SHAH, JJ.]

Penal Code, 1860 – s. 302, s. 304 and Exception IV to s.300– Appellant-accused was convicted and sentenced u/s. 302 IPC –Appellant contended that it was case of single injury, s. 302 IPCshall not be attracted and the case would fall u/s. 304-Part II IPC –Held: There is no hard and fast rule that in case of single injurys. 302 IPC would not be attracted – It depends upon the facts andcircumstances of each case – In the instant case, PW-3 deposedthat when the victim-deceased served extra beer to two personswho came from outside, the accused became angry and told thevictim why he was giving more beer to out-town people and notgiving to local people, thereafter problem started and in that scufflethe accused took out the knife and stabbed from behind – As perException IV to. s.300 IPC, culpable homicide is not murder if it iscommitted in sudden fight in the heat of passion – Consideringthe facts and circumstances and the manner in which the incidentstarted, s.302 IPC shall not be attracted – However, the accusedinflicted blow with weapon like knife and inflicted the injury onthe victim on vital part of the body, it is to be presumed that suchbodily injury was likely to cause death – Thus, the case would fallu/s. 304-Part-I and not u/s. 304-Part II of the IPC.

CDE

FGH283

Partly allowing the appeal, the Court

HELD: 1. There is no hard and fast rule that in case ofsingle injury Section 302 IPC would not be attracted. It dependsupon the facts and circumstances of each case. The nature ofinjury, the part of the body where it is caused, the weapon used incausing such injury are the indicators of the fact whether theaccused caused the death of the deceased with an intention ofcausing death or not. It cannot be laid down as rule of universalapplication that whenever the death occurs on account of single

Ablow, Section 302 IPC is ruled out. The fact situation has to beconsidered in each case, more particularly, under thecircumstances narrated hereinabove, the events which precedewill also have bearing on the issue whether the act by which thedeath was caused was done with an intention of causing death orknowledge that it is likely to cause death, but without intentionBto cause death. It is the totality of the circumstances which willdecide the nature of offence. [Para 7.2][296-D-F]

2. Applying the law laid down by this Court in various cases,more particularly the decisions on the single injury and the factson hand, it is required to be considered whether the case wouldCfall under Section 302 IPC or any other lesser offence. PW3, whois an eye-witness to the incident right from the beginning, deposedthat when the deceased served extra beer to two persons whocame from outside, the accused became angry and told thedeceased why he is giving more beer to out-town people and notDgiving to local people and thereafter the problem started and inthat scuffle the accused took out the knife and stabbed frombehind. [Para 9][297-E-F]

3. As per Exception IV to Section 300 IPC, culpablehomicide is not murder if it is committed without premeditationEin sudden fight in the heat of passion upon sudden quarrel andwithout the offender having taken undue advantage and not havingacted in cruel or unusual manner. In the present case, at theplace of incident the beer was being served; all of them whoparticipated in the beer party were friends; the starting of theincident is narrated by P.W.3, as stated hereinabove. Therefore,Fin the facts and circumstances, culpable homicide cannot be saidto be murder within the definition of Section 300 IPC and,therefore, in the facts and circumstances of the case narratedhereinabove and the manner in which the incident started in abeer party, this Court of the opinion that Section 302 IPC shallGnot be attracted. [Para 10][297-H; 298-A-B]4. Considering the totality of the facts and circumstancesof the case and more particularly that the accused inflicted theblow with weapon like knife and he inflicted the injury on thedeceased on the vital part of the body, it is to be presumed that

STALIN v. STATE REPRESENTED BY THEINSPECTOR OF POLICE

causing such bodily injury was likely to cause the death.Therefore, the case would fall under Section 304 Part I of theIPC and not under Section 304 Part II of the IPC. [Para 11][297-C-D]

Mahesh Balmiki v. State of M.P. (2000) 1 SCC 319;Dhirajbhai Gorakhbhai Nayak v. State of Gujarat(2003) 9 SCC 322 : [2003] 1 Suppl. SCR 754;Pulicherla Nagaraju v. State of A.P. (2006) 11 SCC444 : [2006] 4 Suppl. SCR 633; Singapagu Anjaiah v.State of A.P. (2010) 9 SCC 799 : [2010] 7 SCR 703;Bavisetti Kameswara Rao v. State of A.P. (2008) 15 SCC725 : [2008] 5 SCR 408; Jafel Biswas v. State of WestBengal (2019) 12 SCC 560 – relied on.

Kunhayippu v. State of Kerala (2000) 10 SCC 307;Musumsha Hasanasha Musalman v. State ofMaharashra (2000) 3 SCC 557 : [2000] 1 SCR 1155;Dhirajbhai Gorakhbhai Nayak v. State of Gujarat(2003) 9 SCC 322 : [2003] 1 Suppl. SCR 754;Pulicherla Nagaraju v. State of A.P. (2006) 11 SCC444 : [2006] 4 Suppl. SCR 633; Arun Raj v. Union ofIndia (2010) 6 SCC 457 : [2010] 7 SCR 1; SingapaguAnjaiah v. State of A.P. (2010) 9 SCC 799 : [2010] 7SCR 703; Ashokkumar Nagabhai Vankar v. State ofGujarat (2011) 10 SCC 604; Vijay RamkrishanGaikwad v. State of Maharashtra (2012) 11 SCC 592;Som Raj v. State of H.P. (2013) 14 SCC 246 : [2013] 4SCR 433; State of Madhya Pradesh v. Kalicharan(2019) 6 SCC 809; State of Rajasthan v. Leela Ram(2019) 13 SCC 131; Ananta Kamilya v. State of WestBengal (2020) 2 SCC 511; Sukhpal Singh v. State ofPunjab (2019) 15 SCC 622; State of Rajasthan v.Kanhaiya Lal (2019) 5 SCC 639 : [2019] 5 SCR 569– referred to.

Case Law Reference

(2000) 10 SCC 307referred toPara 4.2[2000] 1 SCR 1155referred toPara 4.2

[2020] 7 S.C.R.

FCRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 577 of 2020.

From the Judgment and Order dated 18.01.2017 of the MaduraiBench of Madras High Court in Crl. A. No. 122 of 2016.

GK. K. Mani, Ms. T. Archana, Advs. for the Appellant.

M. Yogesh Kanna, Adv. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 18.01.2017 passed by the Madurai Bench of the HighCourt of Judicature at Madras in Criminal Appeal (MD) No. 122 of2016 by which the High Court has dismissed the said appeal and hasconfirmed the Judgment and Order of conviction and sentence passedby the learned IV Additional District and Sessions Court, Tirunelveli inSessions Case No. 354 of 2012, convicting the appellant herein – theoriginal accused for the offence punishable under Section 302 IPC, theoriginal accused has preferred the present appeal.

3. At the outset, it is required to be noted that vide order dated01.04.2019, this Court has issued notice in the present appeal limited tothe extent as to whether the conviction ought to have been under Section304 Part II or Section 302 IPC. Therefore, this Court is required toconsider whether the appellant herein – the original accused has beenrightly convicted for the offence punishable under Section 302 IPC or isto be convicted for any other lesser offence, viz. Section 304 Part IIIPC.

4. Learned counsel appearing on behalf of the appellant – originalaccused has vehemently submitted that as it is case of single blow,Section 302 IPC shall not be attracted. It is submitted that even the so-called motive alleged for the incident is prior to four months of the incidentin question and, therefore, as such, the prosecution has failed to establishand prove the motive for the accused to kill the deceased.

4.1 It is submitted that, as such, the occurrence had taken placeout of sudden and grave provocation and therefore the offence wouldfall under Exception I to Section 300 IPC and, therefore, the appellanthas to be convicted for the lesser offence than Section 302 IPC.

4.2 Learned counsel appearing on behalf of the appellant – accusedhas heavily relied upon the decisions of this Court in the cases ofKunhayippu v. State of Kerala (2000) 10 SCC 307 and MusumshaHasanasha Musalman v. State of Maharashra (2000) 3 SCC 557 insupport of his submission that for causing single stab injury, Section302 IPC shall not be attracted.

A4.3 Making the above submissions and relying upon the abovedecisions of this Court, it is prayed to convert the conviction from Section302 IPC to Section 304 Part II IPC.

5. Learned counsel appearing on behalf of the State has vehementlysubmitted that in the facts and circumstances of the case and onBappreciation of the entire evidence on record, both - the learned TrialCourt as well as the High Court have rightly convicted the accused forthe offence punishable under Section 302 IPC. It is vehemently submittedthat the accused caused the injury by knife blow on the vital part of thebody – Lever. It is submitted that considering the fact that the accusedwas having knife; the injury inflicted by the accused was on the vitalCpart of the body; and that there was no any grave and sudden provocationestablished and proved, it is submitted that both the Courts below haverightly convicted the accused for the offence punishable under Section302 IPC.

5.1 Learned counsel appearing on behalf of the State hasDvehemently submitted that there is no absolute proposition of law laiddown by this Court in any of the decisions that in case of single blow,Section 302 IPC shall not be attracted. It is submitted that it is held bythis Court in catena of decisions that number of injuries is irrelevant; it isnot always the determining factor for ascertaining the intention. It issubmitted that as held by this Court, it is the nature of injury; the part ofEbody where it is caused; the weapon used in causing such injury whichare the indicators of the fact whether the accused caused the death ofthe deceased with an intention of causing death or not. Learned counselappearing on behalf of the State has relied upon the following decisionsof this Court on the single injury and, in such case, whether Section302 IPC would be attracted or not:F

(i)Mahesh Balmiki v. State of M.P. (2000) 1 SCC 319;(ii)Dhirajbhai Gorakhbhai Nayak v. State of Gujarat(2003)9 SCC 322;

(iii)Pulicherla Nagaraju v. State of A.P. (2006) 11 SCC 444;(iv)Bavisetti Kameswara Rao v. State of A.P.(2008) 15 SCC725;

(v)Arun Raj v. Union of India. (2010) 6 SCC 457;

(vi)Singapagu Anjaiah v. State of A.P. (2010) 9 SCC 799;

(vii)Ashokkumar Nagabhai Vankar v. State of Gujarat (2011)A10 SCC 604;

(viii) Vijay Ramkrishan Gaikwad v. State of Maharashtra(2012) 11 SCC 592;

(ix)Som Raj v. State of H.P. (2013) 14 SCC 246;

B(x)State of Madhya Pradesh v. Kalicharan (2019) 6 SCC809;

(xi)State of Rajasthan v. Leela Ram (2019) 13 SCC 131;

(xii)Ananta Kamilya v. State of West Bengal (2020) 2 SCC511

6. Now, so far as the submission on behalf of the accused that theprosecution has failed to establish and prove the motive and/or that themotive alleged of the incident is prior to four months of the incident inquestion, learned counsel appearing on behalf of the State has vehementlysubmitted that, as rightly observed by the High Court, in case wherethe eye-witnesses are available, the motive becomes insignificant. It issubmitted that, in the present case, PWs 1, 2 and 3 are the eye-witnessesto the incident and therefore, the motive is insignificant in the presentcase. Heavy reliance is placed on the decision of this Court in the caseof Sukhpal Singh v. State of Punjab (2019) 15 SCC 622.

7. Heard learned counsel on behalf of the respective parties atlength. As observed hereinabove, the only aspect which is required to beconsidered in the present appeal is whether the appellant – accused hascommitted an offence punishable under Section 302 IPC or any otherlesser offence, more particularly, Section 304 Part II IPC?

7.1 It is the case on behalf of the appellant – accused that as it isa case of single injury, Section 302 IPC shall not be attracted and thecase would fall under Section 304 Part II IPC. While considering theaforesaid submission, few decisions of this Court on whether in caseof single injury, Section 302 IPC would be attracted or not are requiredto be referred to:

7.1.1 In Mahesh Balmiki v. State of M.P., (2000) 1 SCC 319,this Court while deciding the question of whether single blow with aknife on the chest of the deceased would attract Section 302 IPC, heldthus: (SCC pp. 322-23, para 9)

“9. … there is no principle that in all cases of single blowSection 302 IPC is not attracted. single blow may, in some

Acases, entail conviction under Section 302 IPC, in some casesunder Section 304 IPC and in some other cases under Section326 IPC. The question with regard to the nature of offence has tobe determined on the facts and in the circumstances of each case.The nature of the injury, whether it is on the vital or non-vital partof the body, the weapon used, the circumstances in which theBinjury is caused and the manner in which the injury is inflicted areall relevant factors which may go to determine the required intentionor knowledge of the offender and the offence committed by him.In the instant case, the deceased was disabled from saving himselfbecause he was held by the associates of the appellant whoCinflicted though single yet fatal blow of the description notedabove. These facts clearly establish that the appellant had theintention to kill the deceased. In any event, he can safely beattributed the knowledge that the knife-blow given by him was soimminently dangerous that it must in all probability cause death orsuch bodily injury as is likely to cause death.”D

7.1.2 In Dhirajbhai Gorakhbhai Nayak v. State ofGujarat (2003) 9 SCC 322, this Court while discussing the ingredientsof Exception 4 of Section 300 IPC, held thus: (SCC pp. 327-28, para 11)

“11. The fourth exception of Section 300 IPC covers actsdone in sudden fight. The said Exception deals with case ofEprosecution (sic provocation) not covered by the first exception,after which its place would have been more appropriate. TheException is founded upon the same principle, for in both there isabsence of premeditation. But, while in the case of Exception 1there is total deprivation of self-control, in case of Exception 4,Fthere is only that heat of passion which clouds men’s sober reasonand urges them to deeds which they would not otherwise do.There is provocation in Exception 4 as in Exception 1, but theinjury done is not the direct consequence of that provocation. Infact, Exception 4 deals with cases in which notwithstanding that ablow may have been struck, or some provocation given in theGorigin of the dispute or in whatever way the quarrel may haveoriginated, yet the subsequent conduct of both parties puts themin respect of guilt upon an equal footing. “sudden fight” impliesmutual provocation and blows on each side. The homicidecommitted is then clearly not traceable to unilateral provocation,

nor could in such cases the whole blame be placed on one side.For if it were so, the Exception more appropriately applicablewould be Exception 1. There is no previous deliberation ordetermination to fight. fight suddenly takes place, for whichboth parties are more or less to be blamed. It may be that one ofthem starts it, but if the other had not aggravated it by his ownconduct it would not have taken the serious turn it did. There isthen mutual provocation and aggravation, and it is difficult toapportion the share of blame which attaches to each fighter. Thehelp of Exception 4 can be invoked if death is caused (a) withoutpremeditation, (b) in sudden fight, (c) without the offendershaving taken undue advantage or acted in cruel or unusualmanner, and (d) the fight must have been with the person killed.To bring case within Exception 4 all the ingredients mentionedin it must be found. It is to be noted that the “fight” occurring inException 4 to Section 300 IPC is not defined in IPC. It takes twoto make fight. Heat of passion requires that there must be notime for the passions to cool down and in this case, the parties hadworked themselves into fury on account of the verbal altercationin the beginning. fight is combat between two and more personswhether with or without weapons. It is not possible to enunciateany general rule as to what shall be deemed to be sudden quarrel.It is question of fact and whether quarrel is sudden or notmust necessarily depend upon the proved facts of each case. Forthe application of Exception 4, it is not sufficient to show thatthere was sudden quarrel and there was no premeditation. Itmust further be shown that the offender has not taken undueadvantage or acted in cruel or unusual manner. The expression“undue advantage” as used in the provision means “unfairadvantage”.”

7.1.3 In Pulicherla Nagaraju v. State of A.P. (2006) 11 SCC444, this Court while deciding whether case falls under Section 302 or304 Part I or 304 Part II IPC, held thus: (SCC pp. 457-58, para 29):

“29. Therefore, the court should proceed to decide thepivotal question of intention, with care and caution, as that willdecide whether the case falls under Section 302 or 304 Part I or304 Part II. Many petty or insignificant matters — plucking of afruit, straying of cattle, quarrel of children, utterance of rude

ABC

Aword or even an objectionable glance, may lead to altercationsand group clashes culminating in deaths. Usual motives likerevenge, greed, jealousy or suspicion may be totally absent in suchcases. There may be no intention. There may be no premeditation.In fact, there may not even be criminality. At the other end of thespectrum, there may be cases of murder where the accusedBattempts to avoid the penalty for murder by attempting to putforth case that there was no intention to cause death. It is forthe courts to ensure that the cases of murder punishable underSection 302, are not converted into offences punishable underSection 304 Part I/II, or cases of culpable homicide not amountingCto murder, are treated as murder punishable under Section 302.The intention to cause death can be gathered generally from acombination of few or several of the following, among other,circumstances: (i) nature of the weapon used; (ii) whether theweapon was carried by the accused or was picked up from thespot; (iii) whether the blow is aimed at vital part of the body;D(iv) the amount of force employed in causing injury; (v) whetherthe act was in the course of sudden quarrel or sudden fight orfree for all fight; (vi) whether the incident occurs by chance orwhether there was any premeditation; (vii) whether there wasany prior enmity or whether the deceased was stranger; (viii)Ewhether there was any grave and sudden provocation, and if so,the cause for such provocation; (ix) whether it was in the heat ofpassion; (x) whether the person inflicting the injury has taken undueadvantage or has acted in cruel and unusual manner; (xi) whetherthe accused dealt single blow or several blows. The above listof circumstances is, of course, not exhaustive and there may beFseveral other special circumstances with reference to individualcases which may throw light on the question of intention. Be thatas it may.”

7.1.4 In Singapagu Anjaiah v. State of A.P. (2010) 9 SCC 799,this Court while deciding the question whether blow on the skull of theGdeceased with crowbar would attract Section 302 IPC, held thus, (SCCp. 803, para 16):

“16. In our opinion, as nobody can enter into the mind ofthe accused, his intention has to be gathered from the weaponused, the part of the body chosen for the assault and the nature of

the injuries caused. Here, the appellant had chosen crowbar asthe weapon of offence. He has further chosen vital part of thebody i.e. the head for causing the injury which had caused multiplefractures of skull. This clearly shows the force with which theappellant had used the weapon. The cumulative effect of all thesefactors irresistibly leads to one and the only conclusion that theappellant intended to cause death of the deceased.”

7.1.5 In State of Rajasthan v. Kanhaiya Lal (2019) 5 SCC 639this Court in paragraphs 7.3, 7.4 and 7.5 held as follows:

“7.3. In Arun Raj [Arun Raj v. Union of India, (2010) 6SCC 457 : (2010) 3 SCC (Cri) 155] this Court observed and heldthat there is no fixed rule that whenever single blow is inflicted,Section 302 would not be attracted. It is observed and held by thisCourt in the aforesaid decision that nature of weapon used andvital part of the body where blow was struck, prove beyondreasonable doubt the intention of the accused to cause death ofthe deceased. It is further observed and held by this Court thatonce these ingredients are proved, it is irrelevant whether therewas single blow struck or multiple blows.7.4. In Ashokkumar Magabhai Vankar [AshokkumarMagabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 :(2012) 1 SCC (Cri) 397] , the death was caused by single blow onhead of the deceased with wooden pestle. It was found that theaccused used pestle with such force that head of the deceasedwas broken into pieces. This Court considered whether the casewould fall under Section 302 or Exception 4 to Section 300 IPC.It is held by this Court that the injury sustained by the deceased,not only exhibits intention of the accused in causing death of victim,but also knowledge of the accused in that regard. It is furtherobserved by this Court that such attack could be none other thanfor causing death of victim. It is observed that any reasonableperson, with any stretch of imagination can come to conclusionthat such injury on such vital part of the body, with such aweapon, would cause death.

7.5. similar view is taken by this Court in the recentdecision in Leela Ram (supra) and after considering catena ofdecisions of this Court on the issue on hand i.e. in case of single

blow, whether case falls under Section 302 or Section 304 Part Ior Section 304 Part II, this Court reversed the judgment andconvicted the accused for the offence under Section 302 IPC. Inthe same decision, this Court also considered Exception 4 of Section300 IPC and observed in para 21 as under: (SCC para 21)

“21. Under Exception 4, culpable homicide is notmurder if the stipulations contained in that provision arefulfilled. They are: (i) that the act was committed withoutpremeditation; (ii) that there was sudden fight; (iii) theact must be in the heat of passion upon sudden quarrel;and (iv) the offender should not have taken undue advantageor acted in cruel or unusual manner.”

7.1.6 In the case of Bavisetti Kameswara Rao (supra), this Courthas observed in paragraphs 13 and 14 as under:

“13. It is seen that where in the murder case there is onlyDa single injury, there is always tendency to advance an argumentthat the offence would invariably be covered under Section 304Part II IPC. The nature of offence where there is single injurycould not be decided merely on the basis of the single injury andthus in mechanical fashion. The nature of the offence wouldcertainly depend upon the other attendant circumstances whichEwould help the court to find out definitely about the intention onthe part of the accused. Such attendant circumstances could bevery many, they being (i) whether the act was premeditated; (ii)the nature of weapon used; (iii) the nature of assault on theaccused. This is certainly not an exhaustive list and every caseFhas to necessarily depend upon the evidence available. As regardsthe user of screwdriver, the learned counsel urged that it wasonly an accidental use on the spur of the moment and, therefore,there could be no intention to either cause death or cause suchbodily injury as would be sufficient to cause death. Merely becausethe screwdriver was usual tool used by the accused in hisGbusiness, it could not be as if its user would be innocuous.

14. In State of Karnataka v. Vedanayagam [(1995) 1 SCC326 : 1995 SCC (Cri) 231] this Court considered the usual argumentof single injury not being sufficient to invite conviction underSection 302 IPC. In that case the injury was caused by knife.

The medical evidence supported the version of the prosecutionthat the injury was sufficient, in the ordinary course of nature tocause death. The High Court had convicted the accused for theoffence under Section 304 Part II IPC relying on the fact thatthere is only single injury. However, after detailed discussionregarding the nature of injury, the part of the body chosen by theaccused to inflict the same and other attendant circumstancesand after discussing clause Thirdly of Section 300 IPC and furtherrelying on the decision in Virsa Singh v. State of Punjab [AIR1958 SC 465] , the Court set aside the acquittal under Section 302IPC and convicted the accused for that offence. The Court(in Vedanayagam case [(1995) 1 SCC 326 : 1995 SCC (Cri) 231], SCC p. 330, para 4) relied on the observation by Bose, J. in VirsaSingh case [AIR 1958 SC 465] to suggest that: (Virsa Singhcase [AIR 1958 SC 465], AIR p. 468, para 16)

“16. … With due respect to the learned Judge hehas linked up the intent required with the seriousness of theinjury, and that, as we have shown, is not what the sectionrequires. The two matters are quite separate and distinct,though the evidence about them may sometimes overlap.”

The further observation in the above case were: (VirsaSingh case [AIR 1958 SC 465] , AIR p. 468, paras 16 & 17)

“16. … The question is not whether the prisoner intendedto inflict serious injury or trivial one but whether he intended toinflict the injury that is proved to be present. If he can show thathe did not, or if the totality of the circumstances justify such aninference, then, of course, the intent that the section requires isnot proved. But if there is nothing beyond the injury and the factthat the appellant inflicted it, the only possible inference is that heintended to inflict it. Whether he knew of its seriousness, orintended serious consequences, is neither here nor there. Thequestion, so far as the intention is concerned, is not whetherhe intended to kill, or to inflict an injury of particular degreeof seriousness, but whether he intended to inflict the injuryin question; and once the existence of the injury is provedthe intention to cause it will be presumed unless the evidenceor the circumstances warrant an opposite conclusion. Butwhether the intention is there or not is one of fact and not one of

law. Whether the wound is serious or otherwise, and if serious,how serious, is totally separate and distinct question and hasnothing to do with the question whether the prisoner intended toinflict the injury in question.

17. … It is true that in given case the enquiry may beBlinked up with the seriousness of the injury. For example, if it canbe proved, or if the totality of the circumstances justify an inference,that the prisoner only intended superficial scratch and that byaccident his victim stumbled and fell on the sword or spear thatwas used, then of course the offence is not murder. But that is notbecause the prisoner did not intend the injury that he intended toCinflict to be as serious as it turned out to be but because he did notintend to inflict the injury in question at all. His intention in such acase would be to inflict totally different injury. The difference isnot one of law but one of fact; …”

(emphasis supplied)”

7.2 From the above stated decisions, it emerges that there is nohard and fast rule that in case of single injury Section 302 IPC wouldnot be attracted. It depends upon the facts and circumstances of eachcase. The nature of injury, the part of the body where it is caused, theweapon used in causing such injury are the indicators of the fact whetherEthe accused caused the death of the deceased with an intention of causingdeath or not. It cannot be laid down as rule of universal application thatwhenever the death occurs on account of single blow, Section 302IPC is ruled out. The fact situation has to be considered in each case,more particularly, under the circumstances narrated hereinabove, theFevents which precede will also have bearing on the issue whether theact by which the death was caused was done with an intention of causingdeath or knowledge that it is likely to cause death, but without intentionto cause death. It is the totality of the circumstances which will decidethe nature of offence.

G8. Now, so far as the submission on behalf of the accused that themotive alleged is of the incident prior to four months of the presentincident and that the prosecution has failed to establish and prove isconcerned, it is required to be noted that in the present case there arethree eye-witnesses believed by both the Courts below and we also donot doubt the credibility of PWs 1, 2 and 3. As held by this Court inH

catena of decisions, motive is not an explicit requirement under the PenalCode, though “motive” may be helpful in proving the case of theprosecution in case of circumstantial evidence. As observedhereinabove, there are three eye-witnesses to the incident and theprosecution has been successful in proving the case against the accusedby examining those three eye-witnesses and therefore, as rightly observedby the High Court, assuming that the alleged motive is the incident whichhad taken place prior to four months or the prosecution has failed toprove the motive beyond doubt, the same shall not be fatal to the case ofprosecution.

8.1 As observed and held by this Court in the case of Jafel Biswasv. State of West Bengal (2019) 12 SCC 560, the absence of motivedoes not disperse prosecution case if the prosecution succeed in provingthe same. The motive is always in the mind of person authoring theincident. Motive not being apparent or not being proved only requiresdeeper scrutiny of the evidence by the courts while coming to conclusion.When there are definite evidence proving an incident and eye-witnessaccount prove the role of accused, absence in proving of the motive byprosecution does not affect the prosecution case.

9. Applying the law laid down by this Court in the aforesaiddecisions, more particularly the decisions on the single injury and thefacts on hand, it is required to be considered whether the case would fallunder Section 302 IPC or any other lesser offence. PW3 – Nelson, whois an eye-witness to the incident right from the beginning, deposed thatwhen the deceased – Kalidas served extra beer to two persons whocame from outside, the accused became angry and told the deceasedwhy he is giving more beer to out-town people and not giving to localpeople and thereafter the problem started and in that scuffle the accusedtook out the knife and stabbed from behind. From the medical evidence,the deceased sustained the following injuries:

“External Injuries:

stab wound about 3 x 1.5 cm and 8 cm deep with cleanedges present over the back on the right side corresponding toD11 vertebera present. Wound edges swollen, read with adherentblood.”

10. As per Exception IV to Section 300 IPC, culpable homicide isnot murder if it is committed without premeditation in sudden fight in

Athe heat of passion upon sudden quarrel and without the offenderhaving taken undue advantage and not having acted in cruel or unusualmanner. In the present case, at the place of incident the beer was beingserved; all of them who participated in the beer party were friends; thestarting of the incident is narrated by P.W.3, as stated hereinabove.Therefore, in the facts and circumstances, culpable homicide cannot beBsaid to be murder within the definition of Section 300 IPC and, therefore,in the facts and circumstances of the case narrated hereinabove and themanner in which the incident started in beer party, we are of the opinionthat Section 302 IPC shall not be attracted.

11. Now, the next question which is posed for consideration ofCthis Court is whether the case would fall under Section 304 Part II IPC?Considering the totality of the facts and circumstances of the case andmore particularly that the accused inflicted the blow with weapon likeknife and he inflicted the injury on the deceased on the vital part of thebody, it is to be presumed that causing such bodily injury was likely to

Dcause the death. Therefore, the case would fall under Section 304 PartI of the IPC and not under Section 304 Part II of the IPC.

12. In view of the above and for the reasons stated above, theappeal is allowed in part. The impugned judgment and order passed bythe High Court confirming the conviction of the accused for the offenceEpunishable under Section 302 IPC is hereby modified from that of underSection 302 IPC to Section 304 Part I IPC. The accused is held guiltyfor the offence punishable under Section 304 Part I IPC and sentencedto undergo 8 years R.I. with fine of Rs.10,000/- and, in default, tofurther undergo one year R.I. The appeal is allowed to the aforesaidextent.F

Ankit Gyan

Appeal partly allowed.