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PETITIONER: KIKAR SINGH

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT12/05/1993

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. ANAND, A.S. (J)

CITATION:  1993 AIR 2426            1993 SCR  (3) 696  1993 SCC  (4) 238        JT 1993 (3)   508  1993 SCALE  (2)917

ACT: Indian Penal Code, 1860: S. 300 cl. ’thirdly,’ Exception  4- Ingredients: Accused-Dangerously armed-Caused fatal blows on unharmed  man,  during an altercation-Injury  sufficient  to cause death in-ordinary course of nature-Held, accused  took undue   advantage   and  acted   cruelly-Exception   4   not applicable-Offence is one of murder-Conviction and  sentence tinder s. 302 awarded by trial court maintained.

HEADNOTE: The  accused-appellant  was prosecuted for  the  offence  of murder. The prosecution case was that during an altercation  between the  accused and his neighbour the former inflicted  a  blow with  a  Kassi (spade) on the head of the  latter  who  fell down; and thereafter the accused inflicted two more injuries on  the  victim;  out of the three injuries  the  third  one afflicted on the neck of the deceased was, according to  the postmortem report, sufficient to cause death in the ordinary course of nature. The  trial  court convicted the accused for the  offence  of murder  and sentenced him to imprisonment for life under  s. 302  I.P.C. The High Court confirmed the conviction and  the sentence. In  appeal to this Court, it was contended on behalf of  the accused  that the case fell under Exception 4 to s. 300  IPC inasmuch as the accused committed the offence on the spur of moment and inflicted the injuries during the quarrel in  the heat  of  passion without any premeditation and  he  had  no intention to cause particular injuries. Dismissing the appeal, this Court, HELD:1.  The  offence  committed by the accused  is  one  of murder  and the trial court rightly convicted and  sentenced him to imprisonment for life under s. 302 IPC. (703-D) 697 2. Culpable homicide by intentionally causing bodily  injury which  is found to be sufficient in the ordinary  course  of nature  to cause death attracts clause ’thirdly’ of  s.  300 I.P.C. It would be murder unless it is brought in any one of the exceptions. (700-E) 3.1 For application of Exception 4 to s. 300 I.P.C. all  the

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conditions  enumerated  therein must he satisfied:  the  act must.  be committed without premeditation in a sudden  fight in  the heat of passion, upon a sudden quarrel, without  the offender’s having taken undue advantage, and the accused had not acted in a cruel or unusual manner. (701 A, 700-H) 3.2  The accused used deadly weapon against the unarmed  man and  struck  him  a blow on the head.  He  had  taken  undue advantage He did not stop with the first blow, he  inflicted two more blows on the fallen man and the third one proved to be  fatal.  He acted crudely with no justification.  By  his conduct  the  appellant  denied himself of  the  benefit  of Exception 4 to s. 300 I.P.C. (702C) Panduranga  Narayan  Jawalekar  v. State  of  Maharashtra  : [1979] 1 SCC 132, relied on. 4.1 It is not necessary that death must be inevitable or  in all circumstances the injury inflicted must cause death.  If the  probability of death is very great the  requirement  of clause  third  of s. 300 I.P.C. is satisfied.  If  there  is probability in a lesser degree of death ensuing from the act committed  the  finding should be of culpable  homicide  not amounting  to  murder.  The emphasis is  on  sufficiency  of injury  to cause death.  The Judge must always try  to  find whether  the  bodily  injury inflicted was  that  which  the accused intended to inflict.  The intention must he gathered from   a   careful  examination  of  all  the   fact-.   and circumstances  in  a  given case.  The citus  at  which  the injury  was  inflicted, nature of the injury,  weapon  used, force with which it was used are all relevant facts. (703-B- C) 4.2  The  accused inflicted fatal blow, i.e.,  third  injury severing  the  neck  after the deceased had  fallen  on  the ground due to impact of the first injury on parietal region. The third injury is proved to be sufficient in the  ordinary course  of nature to cause death.  Even otherwise  death  is inevitable.  When the appellant inflicted two injuries on  a fallen  man,  he necessarily intended to inflict  those  two injuries,  though  the first injury may be assumed  to  have been inflicted during the course of altercation. (702-E-F) 698 Virsa Singh v. State of Punjab: AIR 1958 SC, 465 and Rajwant Singh v. State of Kerala: AIR 1966 SC 1844, relied on.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 437  of 1993. From the Judgment and Order dated 12.9.1990 of the Rajasthan High Court in D.B. Criminal Appeal No. 185 of 1984. C.V., Rappai, Amicus curiae for the Appellant. Aruneshwar Gupta for the Respondent. The Judgment of the Court was delivered by K. RAMASWAMY, J. Special leave granted. The  appellant  was  convicted  under  s.  302  I.P.C.   and sentenced  to undergo imprisonment for life for causing  the death  of Jeet Singh on May 22, 1983 at about 11,00 a.m.  in the  field  of  the  deceased.   The  Rajasthan  High  Court confirmed the conviction in Criminal Appeal No. 105 of 1984. The  case  of  the  prosecution in  nutshell  was  that  the deceased and the appellant are neighbouring owners of lands. There  was an altercation between them due to the  appellant throwing  soil  into the lands of the deceased  from  ’Dali’ (strip  of land dividing the two fields of the deceased  and the appellant).  Thereon the deceased went to the  appellant to  persuade him not to throw the soil into their field  and

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to have the matter settled amicably through negotiations and if  need  be by measuring the lands, yet the  appellant  was annoyed with the conduct of the deceased and his sons PW-  1 and PW-2 and son-in-law PW-3.  At the instigation of his son by  name  Pappu (who was a juvenile offender and  was  dealt with separately), the appellant inflicted with Kassi (spade, sharp edged cutting instrument) on the head of the  deceased and with its impact the deceased fell down.  Thereafter  the appellant  inflected  two more injuries.  When PW-  1  to  3 raised  alarm, the accused ran away.  PWs- 1 to 3 went  near Jeet  Singh  and found him dead with  bleeding  injuries  on head,  neck  and  back.PW-1 went and  lodge  at  the  police station the report Ex.  P-1 narrating the entire prosecution case.   At  the trial PWs- 1 to 3 were  examined  as  direct witnesses  whose  evidence was believed by both  the  courts below  as natural witnesses and the appellant was  convicted for the offence of murder.  We found no infirmity in the 699 assessment  of  the  evidence, though the  counsel  for  the appellant  attempted  to  argue the  case  in  that  behalf. However,  notice was issued to the State oil the  nature  of the offence and the State has appeared. We have heard the counsel on both sides.  During post-mortem the  doctor  found the following thee injuries on  the  dead body               1.  Incised wound 11 cm x 2-1/2 cm x 5  cm  on               the   right  pariete  occipital  area.    Bone               fractured ura matter was seen from the wound.               2.  Incised  wound 15 cm x 6 cm x 5  cmon  the               right scapular area bone fractured.               3. Incised wound 13 cm x 10 cm x 12 cm on  the               right side of neck.  All vessels of the  right               side neck were cut cervical vertebrae 4 and  5               along with the spinal cord was cut through and               Larynx and right side of mandible cut. The witnesses have stated that when the appellant caused the first  injury  on  the  head, the  deceased  fell  down  and thereafter  the appellant inflicted the other  two  injuries while  the  deceased was lying on the ground.   The  incised injury on the parieto occipital region was the first injury. The doctor found that by the third injury on the right  side of the neck, the vessels on the right side of the neck, were completely  cut,  cervical vertebra along with  spinal  cord were  cut  through larynx and also right side  of  mandible. According  to him, the third injury was sufficient to  cause death in the ordinary course of nature. The contention of the learned counsel is that the  appellant committed  the  offence on the spur of moment  when  quarrel ensued  between  the appellant and the  deceased,  when  the appellant was prevented to spread the soil in his field.  So in  heat  of  passion  and on the  spur  of  moment  without premeditation  the  appellant  inflicted  injuries  on   the deceased.  He had no intention to cause-particular injuries, thou  oh  later  on proved to be fatal.   Since  he  had  no intention  to  cause such injury as is likely to  cause  the death and there was no premeditation, nor intention to kill, the  case  would fall under Exception (4) to s.  300  I.P.C. Even  otherwise  no  offence of murder has  been  made  out. Therefore,  it  is only culpable homicide not  amounting  to murder  punishable under s. 3(A Part 11 I.P.C. Having  given our anxious consideration and the facts and circumstances do indicate  that  there are no merits in  either  contentions. Even if we assume that the appellant committed 700 the  offence during the course of a verbal  quarrel  between

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the  appellant and the deceased one cannot escape  from  the conclusion that the offence is one of murder. Section  299  I.P.C. defines that whoever  causes  death  by doing  an act with the intention of causing death,  or  with the intention of causing such bodily injury as is likely  to cause death, or with the knowledge that he is likely by such act  to  cause  death,  commits  the  offence  of   culpable homicide.   Under  s.,300 except in  the  cases  hereinafter excepted, culpable homicide is murder........ thirdly if  it is  done 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. Exception  4 thereof provides that 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.  Under s. 302 whoever  commits murder  shall  be punished with death, or  imprisonment  for life,  and shall also be liable to fine.   Whoever  commits. Culpable homicide not amounting to murder, shall be punished with  imprisonment  for  life,  or  imprisonment  of  either description  for  a term which may extend to ten  years,  or with fine, or with both.  Under second part of s. 304 I.P.C. if  the act is done with the knowledge that it is likely  to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. It  is,  therefore, clear that culpable homicide  is  murder when  the  accused  causes death by doing an  act  with  the intention of causing death, or causing such bodily injury as is  likely to cause death, or with the knowledge that he  is likely  by  such  act  to  cause  death.   If  the   accused intentionally  causes  bodily injury which is  found  to  be sufficient  in the ordinary course of nature to cause  death if  would  attract clause thirdly of s. 300  I.P.C.  If  the accused  knows  that  the act he  causes  is  so  imminently dangerous  that it must, in all probability, cause death  or such bodily injury as is likely to cause death, and  commits such  act  without  any excuse for  incurring  the  risk  of causing  death  or  such  injury  it  would  attract  clause fourthly.   It would be murder unless it is brought  in  any one  of  the exceptions.  In a given case even if  the  case does  not  fall  in  any of the  exceptions,  still  if  the ingredients  of  clauses  1 to 4 of  Section  3(X)  are  not satisfied,  then it would be culpable homiest not  amounting to murder punishable under s. 304 either clause 1 or  clause 2.  It is, therefore, the duty of the prosecution  to  prove the offence of murder. The counsel attempted to bring the case within exception  4. For  its application all the conditions  enumerated  therein must  be  satisfied.   The act  must  be  committed  without premeditation in a sudden fight in the heat of passion;  (2) upon 701 a  sudden  quarrel; (3) without the offender  shaving  taken undue  advantage;  (4) and the accused had not  acted  in  a cruel or unusual manner.  Therefore, there must be a  mutual combat  or  exchanging  blows on each  other.   And  however slight  the  first blow, or provocation,  every  fresh  blow becomes a fresh provocation.  The blood is already heated or warms up at every subsequent stroke.  The voice of reason is heard on neither side in the heat of passion.  Therefore, it is difficult to apportion between them respective degrees of blame  with  reference  to  the  state  of  things  at   the commencement of the fray but it must occur as a  consequence of a sudden fight i.e. mutual combat and not one side track.

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It  matters  not what the cause of the quarrel  is,  whether real  or  imaginary,  or who draws or  strikes  first.   The strike of the blow must be without any intention to kill  or seriously  injure the other.  If two men start fighting  and one of them is unarmed while the other uses a deadly weapon, the  one who uses such weapon must be held to have taken  an undue advantage denying him the entitlement to exception  4. True  the  number  of wound is not the  criterion,  but  the position  of  the accused and the deceased  with  regard  to their  arms used, the manner of combat must be kept in  mind when  applying exception 4. When the deceased was not  armed but the accused was and caused injuries to the deceased with fatal  results, the exception 4 engrafted to Section 300  is excepted and the offences committed would be one of murder. The occasion for sudden quarrel must not only be sudden  but the party assaulted must be on an equal footing in point  of defence, at least at the onset.  This is specially so  where the  attack  is  made with  dangerous  weapons.   Where  the deceased  was  unarmed and did not cause any injury  to  the accused  even following a sudden quarrel if the accused  has inflicted  fatel blows on the deceased, exception 4  is  not attracted  and commission must be one of  murder  punishable under  s.  302.  Equally for attracting exception  4  it  is necessary that blows should be exchanged even if they do not all find their target.  Even if the fight is  unpremeditated and  sudden, yet if the instrument of manner of  retaliation be greatly disproportionate to the offence given, and  cruel and dangerous in its nature, the accused cannot be protected under  exception 4. In Pandurang Narayan Jawalekar v.  State of maharashtra [1979] 1 SCC 132, the facts proved were  that the  appellant gave a blow on the head of the  deceased  old man who was advising him not to quarrel.  The injury  caused to the brain from one end to the other resulted in  fracture as  could appear from the evidence of the doctor.  It  would show that the accused must have struck the blow on the  head of  the  deceased with an iron bar with  very  great  force. Accordingly  it  was held that exception 4  does  not  apply though  there was sudden quarrel and that the fight was  not premeditated  to  cause death.  It must be  shown  that  the injury caused is not cruel one.  The conviction for  offence under  s. 302 by the High Court reversing the  acquittal  by trial court was upheld. 702 If the weapon used or the manner of attack by the  assailant is  out  of  all  proportion  to  the  offence  given   that circumstance  must  be taken into  consideration  to  decide whether  undue  advantage has been taken.  Where  a  person, during the course of sudden fight, without premeditation and probably  in the heat of passion, took undue  advantage  and acted  in a cruel manner in using a deadly weapon there  was no  ground  to hold that his act did not amount  to  murder. Therefore, if the   appellant  used deadly  weapons  against the unarmed man and struck him a blow on the head it must be held  that  he inflicted the blows with the  knowledge  that they  would  likely to cause death and he  had  taken  undue advantage. He did not stop with the first blow, he inflicted two more blows on the fallen man and the third one proved to be  fatal.  He acted cruelly with no justification.  By  his conduct  the  appellant  denied himself of  the  benefit  of exception 4 to s. 300 I.P.C. In Virsa Singh v. State of Punjab AIR 1958 SC 465, a leading forerunner   on  the  point,  this  Court  held   that   the prosecution  must prove that bodily injury is  present.  The nature  of  the injury must be proved. Thirdly, it  must  he proved   that  there  was  an  intention  to  inflict   that

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particular  bodily injury, that is to say, that it  was  not accidental  or  an intentional,or that some  other  kind  of injury was intended. Once these three elements are proved to be present, the court must further proceed with the  enquiry and  find  that the prosecution has proved that  the  injury described  is  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. Once these  four  elements  are established by the prosecution the offence   of murder falls under  clause  thirdly of Section 300. It matters  not  that there  was no intention to cause death or that there was  no intention  even  to cause death in the  ordinary  course  of nature.  Once it is proved that the intention to  cause  the bodily injury actually found to be present, the rest of  the enquiry is purely objective to be deduced by inference.  But where  no  evidence or explanation is given  about  why  the accused thrust a spear into the abdomen of the decease  with such force that it penetrated the bowels and three coils  of the intestines came out of the wound and that digested  food oozed out from cuts in three places, it would be perverse to conclude  that he did not intend to inflict the injury  that he  did. The question whether there is intention 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 accused intended to  inflict  the injury  in  question.  It was held in  that  case  that  the offence  was one of murder falling under clause  thirdly  of Section 302. In Rajwant Singh v. State of kerala AIR  [1996] SC  1874, the bodily injury consisted of tying up the  hands and the feet of the victim, closing the mouth with  adhesive plaster  and  plugging the nostrils with  cotton  soaked  in chloroform. All these acts were 703 deliberate  acts which had been preplanned  and,  therefore, this Court held that the acts satisfied the objective  tests of clause 3 of s. 300 and were held to be sufficient in  the ordinary  course  to cause death.  Accordingly  it  was  one punishable under s. 302. It is not necessary that death must be inevitable or in  all circumstances the injury inflicted must cause death.  If the probability of death is very great the requirement of clause third  is  satisfied.  If there is prob ability  in  a  less degree  of death ensuing from the act committed the  finding should be of culpable homicide not amounting to murder.  The emphasis  is sufficiency of injury to cause death.  A  judge must always try to find whether the bodily injury  inflicted was  that  which  the  accused  intended  to  inflict.   The intention must be gathered from a careful examination of all the  facts and circumstances in a given case.  The citus  at which the injury was inflicted, nature of the injury, weapon used,  force with which it was used are all relevant  facts. We  find from the facts that the appellant  inflicted  fatal blow,  i.e. 3rd injury severing the neck after the  deceased had  fallen on the ground due to impact of the first  injury on  practical  region.   The third injury is  proved  to  he sufficient in the ordinary course of nature to cause  death. Even  otherwise  death is inevitable.   When  the  appellant inflicted two injuries on a fallen man, it must be held that he intended to inflict those two injuries, though the  first injury  may  be assumed to have been  inflicted  during  the course of altercation.  Thus we hold that the offence is one of  murder  and  the appellant  was  rightly  convicted  and sentenced to imprisonment for life under s. 302 I.P.C.

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The appeal is, therefore, dismissed. R. P.                  Appeal dismissed, 704