REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 78 OF 2007

MOHD. ASIF         … APPELLANT

VERSUS

STATE OF UTTARANCHAL       … RESPONDENT

J U D G M E N T

S.B. Sinha, J.

1. Khatima is  a small  town in  the State of Uttaranchal.   In  a cinema

theatre known as ‘Sharda’ a movie ‘Akhri Insaf’ was being exhibited at the

relevant time.  On or about 15.2.1981, Mohd. Saeed, the deceased, and his

friend Shakeel Ahmad (PW 3) were watching the night  show of the said

movie in the  said theatre.   At about  10.30 p.m. Iqbal  Ahmad (Iqbal),  an

associate  of  the  appellant  went  inside  the  cinema  hall  and  asked  the

deceased to come out therefrom.  Meanwhile, the appellant waited outside.

The deceased followed Iqbal and came out of the cinema hall.  Iqbal and

appellant  started  quarreling  with  the  deceased.   There  was  some heated

exchange  of  words.   Both the  accused took out  knives  which  they were

carrying.  Iqbal caught hold the deceased and appellant struck a blow with

the  knife  on  the  back  of  the  deceased.   PW 1  –  Kanhaiya  Lal,  a  betel

shopkeeper in the said theatre, PW-2 Hem Raj, gate-keeper of the cinema

hall and PW-3 Shakeel Ahmad witnessed the said occurrence.  Hearing the

shouts  and  cries  for  help,  PW-4  Constable  Bachche  Singh  with  another

constable  Bhishma  Singh  also  reached  the  spot.    Appellant  was

apprehended  at  the  spot  whereas  Iqbal  succeeded in running away.  The

knife used by the appellant was also recovered from him.  The deceased was

taken to a nearby hospital.  He was referred to a hospital at Pilibhit.  He died

four days after the incident, i.e., on 20.2.1981.

2. A First  Information  Report  (FIR)  under  Section  307 of  the  Indian

Penal  Code  (IPC)  was  lodged  on  or  about  16.2.1981.  The  case  was

subsequently converted to one under Section 302 of the IPC.

3. A  dying  declaration  of  the  deceased  was  recorded  by  one  Javed

Usmani, Sub-Divisional Magistrate, Khatima on or about 15.2.1981, which

reads as under:

“About  1  –  1-1/2  hours  before,  I  was  watching night show of movie at Sharda Cinema, then Iqbal s/o unknown Asif s/o unknown asked me to come out of the cinema hall.  Iqbal had come to asked

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me to  come out.   I  came outside.   Iqbal  started getting  angry  upon  me,  I  said  do  not  get  angry upon me.  There was hand-scuffle between me and Iqbal, and Iqbal drew out the knife.   Asif was also scuffling with me and I was trying to keep myself away from them.  Asif also drew out the knife and then Asif struck the knife blow at my back.  Iqbal ran away from the spot after the knife blow was struck.   Asif  was  apprehended  by  Shakeel  s/o Farooq.   Shakeel  had  come  along  with  me  to watch the movie.  Beside Shakeel, there were two- three more persons who apprehended Asif, whom I do not know.  There was no past enmity between me  and  Iqbal  and  Asif.   Asif  used  to  live  at Mohalla  Gotia  near  the  Chakki  in  front  of  the house  of  Farooq  Master.   Iqbal  used  to  live  at Potters locality.   I  had  no  past  enmity  with  Asif  but  3  –  4  days before  there  was  some  altercation  between  Asif and me at Gotia Mohalla.  It may be possible that because of this, today’s incident took place.”

4. Appellant was put to trial.  He was found guilty of commission of an

offence punishable under Section 302/34 of the IPC and was sentenced to

undergo R.I. for life.  An appeal was preferred thereagainst, which has been

dismissed by reason of the impugned judgment.   However,  as during the

pendency of the said appeal  Iqbal  expired,  the appeal  filed by him stood

abated.  

5. Mr.  K.V. Viswanathan, learned counsel  appearing on behalf  of the

appellant would contend that the deceased having been given only a single

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blow and that too on a non vital part of the body, no offence can be said to

have been committed by him under Section 302 of the Code.  Drawing our

attention to the post-mortem report, the learned counsel would urge that the

deceased  having  died  of  pulmonary  embolism  and  furthermore  having

regard to the fact that before the purported attack a scuffle had taken place

and thus  there  being a sudden provocation,  the High Court  committed a

serious error in holding that the appellant had the intention to cause murder

of the deceased.  In a case of this nature, Mr. Viswanathan would contend,

the principle of causa causan should be applied.

6. Mr.  S.S.  Shamshery,  learned  counsel  appearing  on  behalf  of  the

respondent, on the other hand, would support the impugned judgment.  

7. Indisputably, the deceased was watching a movie on that fatal night

with his friend Shakeel (PW-3).  Appellant and Iqbal knew thereabout.  The

fact that there existed a dispute between the appellant and the deceased is

neither  denied  nor  disputed.   Iqbal  was  sent  by the  appellant  to  ask  the

deceased to come out of the cinema hall.  As soon as he came out, appellant

along with Iqbal started quarreling with him.  There was no cause therefor.

It was not a case of sudden provocation.  Both the accused were armed with

knives.  During the said quarrel, both of them took out their weapons.  Iqbal

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caught  hold  of  the  deceased whereas  appellant  inflicted  the  injury.   The

injury might have been inflicted on the back side of the lowermost part.  The

depth of the wound could not be ascertained immediately.  As per the injury

report prepared by Dr. L.D. Khatri (P.W.9), the stab wound was of the size

of about    2 cm x 1 cm x depth.  .  Edges of wound were found clean cut.

Both ends were pointed.  Profused bleeding from the wound was noticed.

Even the sub coetaneous  tissue  was visible.   As per  the said  doctor,  the

injury was caused by a sharp edged weapon like a knife.  The deceased had

to be operated upon.  He, however, could not survive.   

The post-mortem examination on the person of the deceased was held

on  21.2.1981  by  Dr.  A.K.  Mehrotra.  He,  in  his  report,  stated  that  the

deceased suffered the following ante-mortem injuries:

“i) Stitched wound 15 cm long, oblique 26 cm below  the  auxiliary  pit  left  side,  drainage put in.

ii) Stitched wound 2 cm long in lumbar region back of the left side of abdomen 5 cm from injury no. 1.

iii) Cut open wounds on both legs on medical mellows 1 cm x 0.5 cm x muscle deep.”

Whereas the first and third injuries were operational ones, injury No.2

was caused during the incident.  

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Dr.  A.K.  Mehrotra,  in  his  deposition  before  the  court,  inter  alia,

stated:

“Left lung was infract and collapsed.  There was a big  blood  clot  in  the  left  pulmonary  artery. Peritoneum was stitched below the wound caused by  operation.   The  stomach  was  empty.   Left kidney was stitched at cortex.

In my opinion the cause of death was pulmonary embolism.”

It was furthermore stated:

“It is possible that the kidney of the deceased was ruptured because of the injury no. 2.  And it is also possible that the pulmonary embolism was due to injury no. 2.  The abovementioned injury no.2 was sufficient  to  cause  death  in  ordinary  course  of nature.  The above mentioned injuries no. 1 and 3 are likely to be related with the operation.”

To a question as to whether the stab wound of the size of about 2 cm

x 1 cm x depth  would  correspond to  injury no.2  mentioned in  the  post-

mortem examination  report,  he  answered in the affirmative.  In his  cross-

examination, he stated:

“Pulmonary  embolism  occurred  due  to  the blockage in the pulmonary artery. The pulmonary embolism in  the  body was  caused  due  to  blood clot.  The said blood clot happens some times after the operation.  I cannot say definitely that the said blood clot was caused because of injury no. 2”

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8. The  term  ‘Pulmonary’,  it  must  be  noted,  refers  to  the  lungs.

‘Pulmonary Embolism’ is described in Medical Dictionary, 2nd Edition, by

P.H. Collin as under:

“blockage of a pulmonary artery by a blood clot”

Further, it must be noted that pulmonary arteries take deoxygenated

blood from the heart to the lungs for oxygenation.   

In Taylor’s  Principles  and  Practice  of  Medical  Jurisprudence,  it  is

stated:

“Pulmonary  embolism  is  a  condition  in  which thrombi are formed on the walls of the pelvic and leg  veins  and  such  thrombi  break  away  and embolise to the lungs.  The veins themselves are usually normal and the condition is referred to as phlebothrombosis  in  contradistinction  to thrombophlebitis  where  thrombosis  occurs  in  a vein which is already inflamed. In this latter case embolism  is  much  less  likely  to  occur  as  the inflammation anchors the thrombus to the vessel wall.   Although  the  thrombosis  is  the  primary event the embolus itself usually consists of a tube of thrombus with a central core of clotted blood. When it reaches the lung its effects depend on its size.  Small ones are carried to the periphery of the lung  where  they  cause  pulmonary  infarcts  but large  ones  straddle  the  bifurcation  of  the pulmonary  artery  completely  blocking  the  blood circulation.   Spasm  of  the  pulmonary  arteries around the thrombus only helps to make matters worse.  The cause of the thrombosis is thought to be  damage to  the  vessel  wall  by slowing  of  the blood  flow  and  pulmonary  embolism  frequently causes  death in people who are confined to bed,

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particularly in the postoperative period. It has even been observed in people confined to an aeroplane seat  on  long  journeys  such  as  the  flight  to America.”

Pulmonary embolism is, thus, caused by reason of the blockage in the

lungs,  a clot  may form on any part  of the body and then travel  upto the

lungs.   Pulmonary  embolism is  an  extremely  common  and  highly  lethal

condition that is a leading cause of death in all age groups.  It may arise

from anywhere in the body.  It may be caused even during long air travels as

commonly it arises from the calf veins.  It is not a disease by itself.  It has

been argued by the learned counsel for the appellant that the death of the

deceased occurred due to pulmonary embolism as a result of the operation

that he had to undergo after the incident and not due to the injury caused to

him at the time of the scuffle.  This argument has been rightly pointed out

by the lower court is misconceived.  

Dying declaration in this case has been held to be reliable.  The level

of reliance to be placed on a dying declaration by a court has now come to

be well settled. If it is trustworthy, a judgment of conviction can be based

thereupon.

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In Ranjit Singh & ors. vs. State of Punjab [(2006) 13 SCC 130], this

Court held:

“13. It is now well settled that conviction can be recorded on the basis of a dying declaration alone, if  the  same  is  wholly  reliable,  but  in  the  event there exists any suspicion as regards correctness or otherwise of the said dying declaration, the Courts in arriving at the judgment of conviction shall look for  some corroborating  evidence.  It  is  also  well known that in a case where inconsistencies in the dying  declarations,  in  relation  to  the  active  role played by one or the other accused persons, exist, the Court shall lean more towards the first dying declaration than the second one.”

In Shakuntala (Smt.) vs.  State of Haryana [(2007) 10 SCC 168], this

Court held:

“11. This is a case where the basis of conviction of  the  accused  is  the  dying  declaration.  The situation in which a person is  on deathbed is  so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to  accept  veracity  of  his  statement.  It  is  for  this reason  the  requirements  of  oath  and  cross- examination  are  dispensed  with.  Besides,  should the dying declaration be excluded it will result in miscarriage  of  justice  because  the  victim  being generally the only eye-witness in a serious crime, the  exclusion  of  the  statement  would  leave  the Court without a scrap of evidence.  

12. Though  a  dying  declaration  is  entitled  to great  weight,  it  is  worthwhile  to  note  that  the accused has no power of cross- examination. Such a  power  is  essential  for  eliciting  the  truth  as  an

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obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear  opportunity  to  observe  and  identify  the assailant.  Once  the  Court  is  satisfied  that  the declaration was true and voluntary, undoubtedly, it can  base  its  conviction  without  any  further corroboration.  It  cannot  be  laid  down  as  an absolute  rule  of  law  that  the  dying  declaration cannot form the sole basis of conviction unless it is  corroborated.  The  rule  requiring corroboration is merely a rule of prudence. This Court has laid down  in  several  judgments  the  principles governing  dying  declaration,  which  could  be summed up as under as indicated in Smt. Paniben v.  State  of  Gujarat [(1992)  2  SCC  474]:  (SCC pp.480-81, paras 18-19)

(i) There is neither rule of law nor of prudence that  dying  declaration  cannot  be  acted  upon without corroboration. [See Munnu Raja and Anr. v.  The  State  of  Madhya  Pradesh  (1976)  3  SCC 104]

(ii) If  the  Court  is  satisfied  that  the  dying declaration  is  true  and  voluntary  it  can  base conviction on it, without corroboration. [See State of  Uttar  Pradesh v.  Ram Sagar  Yadav  and  Ors. (1985) 1 SCC 552, and Ramavati Devi v. State of Bihar (1983) 1 SCC 211]

(iii) The  Court  has  to  scrutinize  the  dying declaration  carefully  and  must  ensure  that  the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity

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to observe and identify the assailants and was in a fit  state  to  make  the  declaration.  [See  K. Ramachandra  Reddy  and  Anr. v.  The  Public Prosecutor (1976) 3 SCC 618]

(iv) Where  dying  declaration  is  suspicious,  it should  not  be  acted  upon  without  corroborative evidence.  [See  Rasheed Beg v.  State  of  Madhya Pradesh (1974) 4 SCC 264]

(v) Where  the  deceased  was  unconscious  and could  never  make  any  dying  declaration  the evidence with regard to it  is  to be rejected.  [See Kake Singh v. State of M.P. , 1981 Supp. SCC 25]

(vi) A  dying  declaration  which  suffers  from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors. v.  State of U.P. (1981) 2 SCC 654]

(vii) Merely  because  a  dying  declaration  does contain the details as to the occurrence, it is not to be  rejected.  [See  State  of  Maharashtra v. Krishnamurthi Laxmipati Naidu, 1980 Supp. SCC 455]

(viii) Equally,  merely  because  it  is  a  brief statement,  it  is  not  to  be  discarded.  On  the contrary,  the  shortness  of  the  statement  itself guarantees truth.  [See  Surajdeo Ojha and Ors. v. State of Bihar, 1980 Supp. SCC 769].

(ix) Normally  the  Court  in  order  to  satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye- witness said that the deceased was in a fit and conscious state to make

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the dying declaration, the medical opinion cannot prevail.  [See  Nanhau  Ram and  Anr. v.  State  of Madhya Pradesh, 1988 Supp SCC 152].

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See  State of U.P. v.  Madan Mohan and Ors. (1989) 3 SCC 390].

(xi)  Where there are more than one statement in the nature of dying declaration, one first in point of  time  must  be  preferred.  Of  course,  if  the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal  Gangaram  Gehani v.  State  of Maharashtra (1982) 1 SCC 700]”

In State of Rajasthan vs. Parthu [(2007) 12 SCC 754], this Court held:

“13. It is now a well settled principles of law that a judgment of conviction can be recorded on the basis  of  the  dying  declaration  alone  subject  of course  to  the  satisfaction  of  the  Court  that  the same was true and voluntary. For the purpose of ascertaining  truth  or  voluntariness  of  the  dying declaration,  the  Court  may  look  to  the  other circumstances….”

We do not see any reason to differ with the ratio laid down therein.

{See  also  Samadhan  Dhudaka  Koli  vs.  State  of  Maharashtra  [(2008)  16

SCALE 66]}

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9. It is not a case where the death of the deceased had nothing to do with

the  injury  inflicted.   The utterances  on  the  part  of  the  appellant  that  he

would not leave the deceased alive indicate the state of mind on the part of

the appellant.  The doctors tried their best to save his life.  They could not

do it.   

10. Section 299 of the IPC reads as under:

“299. Culpable homicide.- 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.”

Explanation-2 appended thereto may also be noticed:

“Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall  be  deemed  to  have  caused  the  death, although  by  resorting  to  proper  remedies  and skilful  treatment  the  death  might  have  been prevented.”

The operation of the deceased was necessitated because of the injury

inflicted upon him at the time of the incident and there would have been no

question of subjecting him to such an operation had he not been so seriously

injured in the incident.  The operation of the deceased became necessary on

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account of the injury.  It can hardly be argued that his death did not take

place due to the aforesaid injury.  

11. The question which now arises for consideration is as to whether a

case for converting the sentence from Section 300 IPC to Section 304 IPC

has been made out.   

Section 300 of the IPC reads as under:

“300.  Murder.-  Except  in  the  cases  hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

Secondly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

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, or--

Fourthly.- If the person committing the act knows that it  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 as aforesaid.”

Exception 4 thereof reads as under:

“Exception 4. -  Culpable homicide is not murder if  it  is  committed  without  premeditation  in  a

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sudden fight in the heat of passion upon a sudden quarrel  and  without  the  offender  having  taken undue  advantage  or  acted  in  a  cruel  or  unusual manner.

Exception 4 of Section 300 in this case would not arise.  

12. Indisputably,  commission  of  offence  has  been  proved  by  the

witnesses Kanhaiya Lal (PW-1), Hem Raj (PW-2) and Shakeel Ahmad (PW-

3).   The facts do not disclose any sudden provocation.  

Indisputably,  the  doctor  has  noticed  that  left  lung  was  infract  and

collapsed.  A big blood clot in the left pulmonary artery was also noticed.

There was thus no adequate blood supply.   

13. There may be a scuffle but it occurred because of the overt acts on the

part of the appellant and Iqbal.  We have noticed hereinbefore the manner in

which the assault had taken place as well as the manner in which the force

was applied in inflicting the assault is evident.   It ruptured the kidney.  The

wound was therefore deep. Profused bleeding was noticed.  And that is the

reason he had to be operated upon.   

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14. The question with regard to finding out the intention on the part of

the accused to  cause death depends  upon the facts  and circumstances  of

each case.  No hard and fast rule can be laid down therefor.  Section 300 of

the Code provides that subject to the exceptions contained therein culpable

homicide would be murder if the act by which the death is caused is done

with the intention of causing death.  Exception 1 thereto providing for a

situation when culpable homicide is not murder.  In terms of Exception 1,

culpable  homicide  is  not  murder  if  the  offender,  whilst  deprived  of  the

power of self-control by grave and sudden provocation, causes the death of

the person who gave the provocation or causes the death of any other person

by mistake  or  accident.   The  said  provision  is,  however,  subject  to  the

following:

“First  –  That  the  provocation  is  not  sought  or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.-  That  the  provocation  is  not  given  by anything  done  in  obedience  to  the  law,  or  by  a public servant in the lawful exercise of the powers of such public servant.

Thirdly.-  That  the  provocation  is  not  given  by anything done in the lawful exercise of the right of private defence.”

The Explanation appended thereto states that whether the provocation

was grave and sudden enough to prevent  the  offence from amounting to

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murder is a question of fact.  It is not a case of exercise of right of private

defence.  The provocation was not given by a thing done in obedience to the

law, or by a public servant  in the lawful  exercise of the powers of such

public servant.  The provocation, if any, was sought for by the offenders. In

this case, appellant and Iqbal must be held to have known that it  was so

imminently dangerous that it  must, in all probability, cause death or such

bodily injury as is likely to cause death.   

What is meant by ‘imminently  dangerous’ which, in all probability,

cause death or such bodily injury as is likely to cause death came up for

consideration  before  this  Court  in  Virsa  Singh vs.  State  of  Punjab [AIR

1958 SC 465], wherein it was held:

“(15).  ….We quote a few sentences  earlier  from the same learned judgment :  

"No doubt, if the prosecution prove and act the  natural  consequences  of  which  would  be  a certain  result  and  no  evidence  or  explanation  is given, then a jury may, on a proper direction, find that  the  prisoner  is  guilty  of  doing  the  act  with intent alleged."  

That is exactly the position here. No evidence or explanation  is  given  about  why  the  appellant thrust  a  spear  into  the  abdomen of  the  deceased with such force that if penetrated the bowels and three coils of the intestines came out of the would and that digested food oozed out from cuts in three places. In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with degree of force sufficient  to penetrate that far into the body, or to indicate that his  act  was  regrettable  accident  and  that  he

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intended  otherwise,  it  would  be  perverse  to conclude that he did not intend to inflict the injury that he did. Once that intend is established (and no other  conclusion  is  reasonably  possible  in  this case, and in any case it is a question of fact), the rest  is  a  matter  for  objective  determination  from the medical  and  other  evidence  about  the nature and seriousness of the injury.”

A bench of this Court in  Kesar Singh & Anr.   vs.  State of Haryana

[2008  (6)  SCALE 433]   applied  the  standard  laid  down  in  Virsa  Singh

(supra) to hold:

“To put it shortly, the prosecution must prove the following  facts  before  it  can  bring  a  case  under Section 300, "3rdly":

First,  it  must  establish,  quite  objectively,  that  a bodily injury is present;  

Secondly, the nature of the injury must be proved; These are purely objective investigations.  

Thirdly,  it  must  be  proved  that  there  was  an intention  to  inflict  that  particular  bodily  injury, that  is  to  say,  that  it  was  not  accidental  or unintentional,  or  that  some  other  kind  of  injury was  intended.  Once  these  three  elements  are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set  out  above is  sufficient  to  cause  death  in  the ordinary course of nature. This part of the enquiry

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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  (and,  indisputably,  the  burden  is  on the prosecution throughout) the offence is murder under Section 300, "3rdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter  that  there  is  no knowledge that  an act  of that kind will  be likely to cause death. Once the intention  to  cause  the  bodily  injury  is  actually found  to  be  proved,  the  rest  of  the  enquiry  is purely objective and the only question is whether, as a matter of purely objective inference, the injury is  sufficient  in  the  ordinary  course  of  nature  to cause death….”  

Applying  the  aforementioned  principles,  we  have  no  doubt  in  our

mind that it is not a case which attracts the provisions of Section 304 Part II

of the IPC or Section 326 thereof  

15. Mr.  Viswanathan  relied  upon  a  decision  of  this  Court  in  Chowa

Mandal & anr.  vs.  State of Bihar (Now Jharkhand)  [(2004) 13 SCC 231].

In that case it was found that there was no motive, intention or knowledge

on the part  of the offenders as to their act which led to the death of the

deceased.  It was found that the incident had occurred on the spur of the

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moment without there being any intention of causing death or of causing

such injury as they knew was likely to cause death.   

In State of Rajasthan vs.  Jora Ram [(2005) 10 SCC 591] whereupon

again  Mr.  Viswanathan  placed reliance,  the  High Court  itself  found  that

medical  evidence  on  record  did  not  make  out  a  case  of  murder  as  it

disclosed that the injuries found on the person of the deceased were simple

injuries  and  furthermore  it  was  found  that  they  were  not  sufficient  in

ordinary course of nature to cause death as merely a bruise was found.  Even

that injury was not attributed to the respondent therein.  

In  Gokul  Parashram Patil  vs.  State  of  Maharashtra  [(1981) 3 SCC

331], relied upon by Mr. Viswanathan, distinguishing Virsa Singh (supra),

this Court held:

“...The  question  thus  is  whether  the  particular injury  which  was  found  to  be  sufficient  in  the ordinary course  of  nature  to  cause  death,  in  the present  case,  was  an  injury  intended  by  the appellant.  Our  answer  to  the  question  is  an emphatic  No.  The  solitary  blow  given  by  the appellant to the deceased was on the left clavicle-a non-vital part-and it would be too much to say that the  appellant  knew  that  the  superior  venacava would  be  cut  as  a  result  of  that  wound.  Even a medical  man perhaps may not  have been able to judge the location of the superior venacava with any  precision  of  that  type.  The  fact  that  the venacava was cut must, therefore, be ascribed to a non-intentional or accidental circumstance.”

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Such is not the case here.  

Reliance has also been placed by Mr. Viswanathan on Dashrath Singh

vs. State of U.P. [(2004) 7 SCC 408] wherein it was held:

“29.  The  medical  evidence  however  does  not establish  beyond  reasonable  doubt  that  the ultimate cause of death was the aforesaid injury. From the date of the surgery, the victim was alive for  23  days  and  undergoing  treatment  in  the hospital. He survived for 38 days after the injury was  received.  Not  a  word  has  been said  and no report or case-sheet has been filed to indicate the condition  of  the  patient  after  the  surgery.  No doubt,  there  was  no  crass  examination  of  the Doctor  (PW8)  on  this  aspect.  Yet,  it  was  the primary  duty  of  the  prosecution  to  adduce evidence in regard to the post-operative condition of the patient so that the scope for any intervening ailment unconnected with the injury is ruled out. This  becomes ail  the more important  because  of the long time lag and the omission to hold post- mortem.  Apparently,  there  was  a  callous indifference or lack of vigilance on the part of the Investigating Officer in failing to ensure the post- mortem examination in a case of this nature. PW 8 came forward with the explanation that the post- mortem is not absolutely necessary to ascertain the cause of death. But,  then, the prosecution has to establish  beyond  reasonable  doubt  that  the eventual  cause  of  death  was  only  the  injury inflicted by the appellant and nothing else, but it has failed to do so.”

The said decision also has no application in the present case.

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16. It is not a case where the intervening ailment was wholly unconnected

with  the  injury.    On the  other  hand,  in  Manubhai  Atabhai  vs.  State  of

Gujarat [(2007) 10 SCC 358], this court clearly held:

“Merely because a single blow was given that does not  automatically bring in application  of Section 304 Part I IPC.”

We, therefore, are of the opinion that the appellant has rightly been

found guilty of commission of an offence under Section 302 of the IPC.

17. For the reasons aforementioned, there is no merit in the appeal.  It is

dismissed accordingly.   

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Asok Kumar Ganguly]

New Delhi; MARCH 06, 2009

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