http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (crl.)  547 of 2008

PETITIONER: Bavisetti Kameswara Rao @ Babai

RESPONDENT: State of A.P.Rep. by its Public Prosecutor High Court of A.P., Hyderabad

DATE OF JUDGMENT: 25/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 6903 of 2007)

V.S. SIRPURKAR, J.

        1.      Leave granted. 2.      The appellant,  Bavisetti Kameswara Rao original accused no. 1 (A- 1) has approached this Court challenging the judgment of the Andhra  Pradesh High Court, confirming his conviction (accused no. 1) for an  offence under Section 302 IPC.  3.       Initially, as many as eight persons were tried by the Additional  Sessions Judge (Fast Track Court) for various offences under Sections  147, 148 and 302 read with Section 149 etc.  The allegation is that all the  accused persons alongwith some others formed themselves into an  unlawful assembly and in pursuance of the common object of that  assembly, they committed murder of one Samudrala Pandu Rangarao @  Rayalam Rangadu.  According to the prosecution, on 28th July 2007, at  about 11 P.M., the deceased alongwith his friend Tamarapalli Subba Rao  had visited mini lorry supply office of the first accused and he wanted to  consume alcohol there.  The first accused refused to let him have the  alcohol there and on this, there was a wordy altercation in between the first  accused and the deceased, and they also had the physical altercation with  each other and in this melee, the first accused has sustained a wound on  his hand.  They were pacified by the people gathered there and at that  juncture, both the first accused as well as the deceased sworn towards  each other\022s life.  The prosecution alleged that in pursuance of this, the  first accused had a discussion with the second accused and with the other  seven accused persons and hatched up a plan to do away the deceased  and were waiting for an opportunity.  On 30th July 2000, all the accused  formed into an unlawful assembly in the mini lorry office of the first  accused at about 10 P.M. in pursuance of their pre-plan.  The first accused  was armed with the screw driver and the second accused had a pen knife.   At around 10.30 P.M. on that day, the deceased came there on his  Yamaha Motor cycle bearing registration no. AP-37 A-7569 and on seeing  the deceased, A-1 and A-2 abused him filthily.  When the deceased  questioned their behaviour, A-1 and A-2 in pursuance of their intention,  attacked the deceased with their weapons, wherein, the first accused  stabbed the deceased below the left side chest with screw driver causing  him a deep bleeding injury.  A-2 also attacked the deceased with his pen  knife, but the deceased tried to protect himself.  However, the deceased  suffered two incised wounds on his palm.   4.      It was the further case of the prosecution that the other accused  persons also attacked the deceased and assaulted him with hands.  The  deceased somehow or the other, escaped when he was given a hot chase  by all the accused.  The deceased straightaway went to Bhimavaram II  Town Police Station and reported the matter to the sub-inspector of police  on duty, Sh. K.V.N. Vara Prasad, LW.23.  Since the deceased required  immediate medical help, he was tried to be taken to Government Hospital,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

Bhimavaram.  However, in the way itself, the deceased breathed his last.   Accordingly, an offence under Section 302 read with Section 34 was  recorded vide Cr. No. 97/2000 by the LW.23.  The investigations started  and the accused came to be rounded up and on completion of the  investigations, a charge sheet was filed against as many as eight accused  persons, who were tried before the Additional Sessions Judge (Fast Track  Court), Bhimavaram.  The Additional Sessions Judge at Bhimavaram,  however, convicted only A-1 and A-2 and convicted both of them for the  offence under Section 302 while acquitting the rest of the accused  persons.  Both of them were sentenced to suffer rigorous imprisonment of  life and also to pay fine of Rs.4,000/- in default, to suffer a further  imprisonment for one year. 5.      On appeal, however, the conviction of appellant (herein) was  confirmed for an offence under Section 302 but A-2 was acquitted of that  offence and was convicted for an offence under Section 324 and his  sentence was brought down to the rigorous imprisonment for two years.  It  is this appellate judgment, which has been challenged before us.  This  Court, however, on 15th January 2008 issued a notice confined to the  question of sentence.  As the appeal was delayed, a notice was also sent  on delay. 6.      Considering the circumstances under which the appeal was filed, we  condone the delay. 7.      Insofar as the first accused-appellant Bavisetti Kameswara Rao is  concerned, the learned counsel urged before us that this was a case of  single injury that too, the weapon used was a screw driver which was in  the regular use of the accused as a tool,  the accused-appellant being a  motor mechanic.  It was but natural that he would use the said screw driver  in the regular course of his occupation and since he had not used any  other weapon, it could not be said that his intention was to cause death of  the deceased or also to cause such bodily injury as would be sufficient to  cause death of the deceased.  The learned counsel for the accused  submitted that it was only a single injury and, therefore, even if in the  knowledge of the accused that such injury was likely to cause the death of  the deceased, the offence at the most would be under Section 304 Part II  of the IPC.  As an alternative argument, the learned counsel contended  that at the most that this was a sudden quarrel and the altercation took  without a pre-plan, as such, the offence at the most could have been under  Section 304 Part I and, therefore, the High Court and the trial Court were  not justified in convicting the accused for an offence under Section 302  and sentencing him to suffer rigorous imprisonment for life.   8.      We have given very deep consideration to the contentions raised.  It  is found from the medical evidence that the deceased suffered the  following injuries at the hand of the accused.  The injuries have been  proved by PW.15 D. Varahalaraju, who was himself a Civil Surgeon.  He  had conducted the post-mortem and examination on the dead body of the  deceased and found the following injuries:

1.      An inside wound on lateral aspect of left palm 2cm x =cm x 2  cm, black in colour.

2.      An inside wound above wound no. 1 on lateral aspect of left  palm, 2cm x =cm x 2 cm, black in colour.

3.      An incised wound on epigastria region of abdomen just below  xiphi sternum 2cm x 1cm x 12cm (length, breadth, depth  respectively).

4.      An abrasion on from of right upper arm above elbow joint 5 x  4cm, black in colour.

5.      An abrasion on medical aspect of left leg, 2cm x =cm, black in  colour.

6.      Another abrasion on front of left leg, 1cm x =cm, black in  colour.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

Internal Examination: Head: Brain pale, neck, hyoid bone intact, thyroid cartilage-NAD.   Thorax: Lungs-both jungs pale.  Hert: chambers empty, palce.   Abdomen: liver- an incised wound on left lobe of liver 3cm x 2cm x 3  cm pale.

Spleen:  an incised wound on medial aspect of spleen, 3cm x 2cm x  2cm pale.

Kidneys: both kidneys pale. Stomach: empty. Bladder:  above 200 ml of urine present in bladder, above 900 ml of  fluid blood present in abdominal cavity.

9.      According to the Doctor, the post-mortem was done on 31st July  2000 and was completed on that day at 3.15 P.M.  He gave opinion that  the deceased had died of hemorrhagic shock due to injuries to liver and  spleen.  A glance at these injuries would suggest that it was injury no. 3  which was fatal injury and it was in the region of abdomen which was a  vital part of the body of the deceased.  The injury was 1cm x 1cm x 12cm  (length, breadth and depth respectively).  In the internal examination, it  was found that there was an incised wound on liver as well as spleen.  The  incised would on liver was 3cm x 2cm x 3cm in measurement, while on the  spleen, the measure of the injury was 3cm x 2cm x 2cm.  There is hardly  any cross-examination of this Doctor excepting that injuries no. 5 and 6  could be possible by a fall, however, the seriousness of injury no. 3 was  not and could not be questioned in the cross-examination.  We have,  therefore, no doubt that this injury with depth of 12 cm which was sufficient  to cause the death.  We also cannot ignore that the screw driver used had  the sharp end and the sufficient length to cause the injury having the depth  of 12cm.  It was, therefore, clear that the eye-witnesses have attributed  this injury to the first accused-appellant and there could be no other  intention, excepting to cause death. 10.       When the screw driver was plunged into the vital part of the body of  the deceased, it cut his liver and spleen.  Therefore, this was a case where  the act was done with intention of causing bodily injury and the body injury  intended to be inflicted is sufficient in the ordinary course of nature to  cause death, covered by \023Thirdly\024 of Section 300 of \023Indian Penal Code\024.   The act of the accused-appellant would, therefore, clearly come within the  definition of \023murder\024 under Section 300 of the \023Indian Penal Code\024.   11.     We cannot forget that when the deceased came up to the office of  the accused, there was exchange of abuses and then, he was thrashed by  the accused persons.  There is hardly any cross-examination of the eye- witnesses to dispute the authorship of this particular injury.  We have  scanned the evidence very closely only to find that the authorship of the  injury could not be disputed and nor the manner in which the single injury  was inflicted.  Therefore, under the circumstances, even if there was a  single injury caused, it was with such a force and on such vital part of the  body that it caused almost instantaneous death.  The deceased, after he  was injured went up to the police station and before he could be reached  to the hospital, breathed his last.  12.     It is seen that where in the murder case there is only a single injury,  there is always a tendency to advance an argument that the offence would  invariably be covered under Section 304 Part II IPC.  The nature of offence  where there is a single injury could not be decided merely on the basis of a  single injury and thus in a mechanical fashion.  The nature of the offence  would certainly depend upon the other attendant circumstances which  would help the court to find definitely about the intention on the part of the  accused. Such attendant circumstances could be very many, they being (i)  whether the act was pre-meditated; (ii) the nature of weapon used; (iii) the  nature of assault on the accused.  This is certainly not exhaustive list and  every case has to necessarily depend upon the evidence available.  As  regards the user of screw driver, the learned counsel urged that it was only

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

the accidental use at the spur of the moment and, therefore, there could be  no intention to either cause death or cause such bodily injury as would be  sufficient to cause death.  Merely because the screw driver was a usual  tool used by the accused in his business, it could not be as if its user would  be innocuous.  13.     In State of Karnataka v. Vedanayagam [(1995) 1 SCC 326] this  Court considered the usual argument of a single injury not being sufficient  to invite a conviction under Section 302 IPC.  In that case the injury was  caused by a knife.  The medical evidence supported the version of the  prosecution that the injury was sufficient, in the ordinary course of nature  to cause death.  The High Court had convicted the accused for the offence  under Section 304 Part II IPC relying on the fact that there is only a single  injury.  However, after the detailed discussion regarding the nature of  injury, the part of the body chosen by the accused to inflict the same and  other attendant circumstances and after discussing clause Thirdly of  Section 300 IPC and further relying on the reported decision in Virsa  Singh v. State of Punjab [AIR 1958 SC 465], the court set aside the  acquittal under Section 302 IPC and convicted the accused for that  offence.  The Court relied on the observation by Justice Bose in Virsa  Singh\022s case to suggest that: \023With due respect to the learned Judge he has linked up the intent  required with the seriousness of the injury, and that, as we have  shown is not what the section requires.  The two matters are quite  separate and distinct, though the evidence about them may  sometimes overlap.\024

The further observation in the above case were: \023The question is not whether the prisoner intended to inflict a serious  injury or a trivial one but whether he intended to inflict the injury that  is proved to be present.  If he can show that he did not, or if the  totality of the circumstances justify such an inference, then, of  course the intent that the section requires is not proved.  But if there  is nothing beyond the injury and the fact that the appellant inflicted it,  the only possible inference is that he intended to inflict it.  Whether  he knew of its seriousness, or intended serious consequences, is  neither here nor there.  The question so far as the intention is  concerned, is not whether he intended to kill, or to inflict an injury of  a particular degree of seriousness, but whether he intended to inflict  the injury in question, and once the existence of the injury is proved  the intention to cause it will be presumed unless the evidence or the  circumstances warrant an opposite conclusion.  But whether 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 a  totally separate and distinct question and has nothing to do with the  question whether the prisoner intended to inflict the injury in  question.   It is true that in a given case the enquiry may be linked up with the  seriousness of the injury.  For example, if it can be proved, or if the  totality of the circumstances justify an inference, that the prisoner  only intended  a superficial scratch and that by accident his victim  stumbled and fell on the sword or spear that was used, then of  course the offence is not murder.  But that is not because the  prisoner did not intend the injury that he intended to inflict to be as  serious as in turned out to be but because he did not intend to inflict  the injury in question at all.  His intention in such a case would be to  inflict a totally different injury.  The difference is not one of law but  one of fact.\024  (emphasis supplied).

Their Lordships then referred to the decision of this Court in Jagrup Singh  v. State of Haryana [(1981) 3 SCC 616] where this Court observed: \023There 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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 1stly or clause 3rdly.  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.\024 (Emphasis supplied).

Their Lordships also referred the case of Tolan v. State of T.N. [(1984) 2  SCC 133].   14.     In the present case we do not have any reason to take any different  view of the matter.  Here was the case where a long screw driver having a  sharp end was plunged into the abdomen of the deceased with such  savage force that it caused injury which was 12 cm. deep cutting liver and  spleen.  This is apart from the fact that the deceased also suffered other  injuries.  The deceased was unarmed and there was a heated exchange of  words before the incident.  After the incident also the deceased was  chased.  Therefore, we find that this is not the case where conviction could  be for the offence committed under Section 304 Part II IPC.  15.     We also do not accept the contention of the learned counsel for the  defence which was raised only by way of a desperate argument that the  incident was sudden and it was without any pre-meditation, thereby the  learned counsel wanted to bring the evidence under Section 304 Part I.  In  short the counsel aimed at Exception I of Section 300 IPC.  Exception 4  was also brought to be relied upon.  We do not think the evidence  available would warrant the offence covered by Exception 1 as there was  no such grave and sudden provocation on the part of the deceased.   Similarly it was not a case of sudden fight in the heat of passion nor was it  a case of sudden quarrel when the offender having taken undue  advantage or acted in a cruel or unusual manner.  There is evidence on  record to suggest that there was a previous altercation and the accused  persons were seething in anger to take the revenge of the incident which  had taken place on 27th of the same month.  Further it was only after the  deceased came in front of the shop of the accused on his motorbike, first  there was an exchange of abuses and it was then that the incident took  place where not only the accused but even the second accused is proved  to have attacked the deceased.  This could not, therefore, be a case of a  sudden fight.  Therefore, the question of application of Section 304 Part I is  also ruled out. 16.     Under the circumstances, we would be constrained to hold that the  Courts below were right in convicting this accused-appellant for an offence  under Section 302.  We, therefore, find no reason to take any different  view and confirm the conviction and sentence of this accused also.   17.     In the result, the appeal has no merits, and it is dismissed.