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PETITIONER: MAHESH BALMIKI @ MUNNA

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       27/08/1999

BENCH: K.Vankataswami, Syed Shah Mohammed Quadri

JUDGMENT:

SYED SHAH MOHAMMED QUADRI, J.

     Leave  is granted limited to the question of nature of offence.   The appellant along with two others was tried for committing  murder of one Satish (hereinafter referred to as ’the deceased’) and causing injuries with knife to Harkishan and was convicted for offences punishable under Sections 302 and  324  I.P.C.   read  with  Section  34  I.P.C.   He  was sentenced  to  life  imprisonment and three  years  rigorous imprisonment for the said offences by learned Sessions Judge in  Sessions  Case  No.198  of 1981 on  July  17,  1982.   A Division  Bench  of the High Court of the Madhya Pradesh  at Gwalior  in  Criminal  Appeal No.171 of 1982  confirmed  his conviction  under Sections 302 and 324 I.P.C.  and  sentence for  the said offences and dismissed his appeal on April 30, 1998.   Against the judgment and order of the High Court, he is  in  appeal  before this  Court.   Dr.T.N.Singh,  learned senior  counsel  for the appellant, has urged that it  is  a case  falling under Exception 4 to Section 300 I.P.C and, in any  event,  as the appellant had given only a  single  blow with  knife,  he  ought  not to have  been  convicted  under Section  302  I.P.C.;   his conviction could only  be  under Section  304  I.P.C.   Mr.Anoop  Choudhary,  learned  senior counsel  appearing  for the State, argued that none  of  the requirements   of   Exception   4   are  present   and   the circumstances  clearly  suggest  that   the  appellant   had intention  to  kill the deceased, therefore, he was  rightly convicted under Section 302 I.P.C.  Apropos the contentions, we  have  perused the judgments of the Trial Court  and  the High  Court.  It appears that the appellant and three others snatched  the wrist watch of a boy known to the deceased and Harkishan.   At  the  request of that boy,  they  asked  the appellant  and  his  associates to return  the  watch.   The appellant  told  the deceased and Harkishan to come to  some specified  place.   On reaching there, they had exchange  of hot  words and then Naresh, Pappu and Laxman caught hold  of the  deceased  and  the appellant gave a knife blow  on  the chest  of  the deceased as a result of which he  fell  down. The   appellant  also  inflicted   injuries  with  knife  on Harkishan  who  rushed  to  save the  deceased.   While  the deceased was being taken to the police station, he succumbed to  the  injuries.   Dr.D.S.Badkur  (P.W.5),  who  conducted post-mortem  on  the  person  of  the  deceased,  found  the following injuries :

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     "Stab  wound  1.5  x  .5  cm.   vertical  situated  on interior  aspect  of chest on left border of sternum and  at the  stern costal joint of 6th and 7th rib, sternum cut  and fracture  in arms 9.2 area, truck of the wound going through and through and sternum, pericandium (pericardium), anterior and  posterior  well of rt.  vertical (It) dome of  disphram (diaphragm),  left  lobe  of liver cardiac  and  of  stomach perforated total depth of wound was 19 cm.  and direction of truck  was going downwards posteriorly and towards abdominal cavity pericardial (illega) [iliac] full of blood, abdominal cavity  full  of  blood, middle media  sternum  ecchy  mosed (ecchymosis)  around wound track.  Stomach contention coming out in peritoneum cavity."

     P.W.5  stated that the deceased died due to shock  and haemorrhage  resulting from the said wound which could  have been caused by a sharp- edged cutting weapon.  Now Exception 4 to Section 300 I.P.C, is in the following terms :

     "Exception  4.- Culpable homicide is not murder if  it is  committed without premeditation in a sudden fight in the heat  of  passion  upon  a sudden quarrel  and  without  the offender’s  having taken undue advantage or acted in a cruel or unusual manner.

     Explanation.-  It  is immaterial in such  cases  which party offers the provocation or commits the first assault."

     The  requirements of this exception are :  (a) without premeditation in a sudden fight;  (b) in the heat of passion upon a sudden quarrel;  (c) the offender has not taken undue advantage;  and (d) the offender has not acted in a cruel or unusual manner.

     Where  these  requirements   are  satisfied,  culpable homicide would not be murder.  On the facts of this case, it cannot  said  that  the fatal injury was  inflicted  without premeditation.   Indeed, the appellant asked the deceased to come  to  a particular place to receive the  watch.   There, three  associates  of  the  appellant  caught  hold  of  the deceased  and  the  appellant gave the fatal blow  with  the knife.   The  stab wound was given on the chest on the  left side  of the sternum between the costal joint of the 6th and 7th  rib and both the ribs have been fractured.  It  appears that   truck  of  the  wound   had  gone  through   sternum, pericardium  anterior  and posterior after passing the  ribs and thereafter entered the liver and perforated a portion of stomach.   Total  depth of wound was 19 cm and direction  of truck  was  going downwards posteriorly.  The impact of  the single  blow with knife has been disastrous.  Therefore,  it cannot  be  said  that  the appellant has  not  taken  undue advantage  or not acted in cruel or unusual manner.  In  our view,  Exception  4  has, therefore, no application  on  the facts of this case.  Adverting to the contention of a single blow,  it may be pointed out that there is no principle that in  all  cases  of single blow Section 302  I.P.C.   is  not attracted.    Single  blow  may,  in  some   cases,   entail conviction  under  Section 302 I.P.C., in some  cases  under Section  304 I.P.C and in some other cases under Section 326 I.P.C.   The  question with regard to the nature of  offence has  to be 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 part of the body, the weapon  used,

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the  circumstances  in  which the injury is caused  and  the manner  in  which the injury is inflicted are  all  relevant factors  which may go to determine the required intention or knowledge  of the offender and the offence committed by him. In  the instant case, the deceased was disabled from  saving himself  because  he  was  held by  the  associates  of  the appellant  who inflicted though a single yet a fatal blow of the  description noted above.  These facts clearly establish that  the appellant had intention to kill the deceased.   In any  event,  he can safely be attributed knowledge that  the knife  blow given by him is so imminently dangerous that  it must in all probability cause death or such bodily injury as is likely to cause death.  Dr.Singh invited our attention to the  following judgments of this Court in Tholan vs.   State of  Tamil  Nadu  [AIR 1984 SC 759],  Ranjitsinh  Chandrasinh Atodaria vs.  State of Gujarat [AIR 1994 SC 1060] and Balbir Singh  vs.   State of Punjab [1995 (3) Suppl.  SCC 472]  for altering  conviction from Section 302 I.P.C.  to Section 304 I.P.C.   A  perusal of these judgments shows that these  are instances  of application of the aforementioned  principles. We do not, therefore, consider it necessary to refer to them in  detail.  For the above reasons, we are of the view  that the appellant had rightly been convicted and sentenced under Sections 302 and 324 I.P.C.  by the Trial Court and the High Court.  We find no merit in this appeal which is accordingly dismissed.