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                   IN THE SUPREME COURT OF INDIA

                  CRIMINAL       APPELLATE JURISDICTION

             CRIMINAL APPEAL NO.           OF 2008             [Arising out of S.L.P.(Crl.) No.2154 of 2007]

Rahimbux                                                         Appellant

                                    Versus

State of M.P.                                                    Respondent

                             J U D G M E N T

A.K. MATHUR, J.

1.   Leave granted.

2.   This      appeal   is    directed       against     the     order          dated

2.9.2005    passed      by    the        Division    Bench     of    the     Madhya

Pradesh High Court whereby the Division Bench of the High

Court has affirmed the conviction of the                    accused-appellant

under    Section    302      of    the   Indian     Penal    Code     and       under

Section 323 of the Indian Penal Code (hereinafter to be

referred to as ‘I.P.C’) read with Section 25 of the Arms

Act and sentence imprisonment               for life and payment of fine

of Rs.500/- in default to suffer further imprisonment for a

period of two months under Section 302 of the I.P.C., and

simple   imprisonment        for     a   period     of   three      months      under

Section 323, I.P.C. and Section 25 of the Arms Act on each

count    and    directed          that    both    the    sentences         to     run

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concurrently.       Aggrieved    against       this       order    the    present

appeal was filed by the accused. Notice was given on the

limited question of the offence.

3.           Brief facts which are necessary for disposal of

this appeal are that Aslam Khan, P.W.1 lodged a report to

the   effect   that      on     8.6.1998      at    about     4.00       P.M.   the

appellant      was     quarrelling         with       his      father-in-law.

Therefore,     he     tried     to   intervene         by     persuading        the

appellant not to beat the old person. Being annoyed, the

appellant inflicted injury on him by piece of brick. After

receiving    this    injury,     P.W.1   ran       away     from   that    place.

Thereafter, the appellant went to his house and came out

with a sword and chased him to cut him with the sword but

somehow he escaped and did not come within his reach. His

brother, Rehman Khan who was standing in front of the house

was attacked by the appellant with the sword which caused

abdominal injury with intestine coming out of the wound.

The deceased Rehman Khan was immediately shifted to the

Hospital     along    with      Aslam    Khan.       Dr.     M.P.    Garg,          on

examination found an incised wound in the abdominal region

of Rehman Khan and the doctor immediately shifted him to

the operation theatre for treatment by surgical specialist.

Aslam Khan was also treated for his injuries sustained by

the   brick.    Subsequently,        Rehman     Khan       succumbed      to    his

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injuries. A panchnama was made and the dead body was sent

for post-mortem. It was found that the deceased had incised

wound 1     ="     X3/4"X    cavity    deep     on    abdominal     region     near

umbilical cord. Subsequently, during the investigation                         the

sword in which the deceased was attacked was recovered.

After completion of the investigation, challan was filed

against      the      accused.        Learned        Sessions      Judge      after

conclusion       of   the    trial    convicted       the    accused-appellant

under Section 302, I.P.C., Section 323, I.P.C. and Section

25    of   the   Arms   Act     and    sentenced       him    as      aforesaid.

Thereafter, an appeal was preferred before the High Court.

The    Division       Bench     of    the     High     Court       affirmed     the

conviction of the accused- appellant. Hence, the present

appeal. The limited question to be examined is with regard

to the nature of offence.

4.           Learned        counsel    for    the     appellant      strenuously

urged before us that there is only one injury caused to the

deceased. Therefore, it does not fall under Section 302,

I.P.C. but at best it would fall under Section 304-I or

Section 304-II of the I.P.C. as the accused did not inflict

any second injury and           secondly, the accused did not intend

to cause any injury to the deceased so as to cause his

death. The accused in fact wanted to attack                     Aslam Khan but

since Aslam Khan was out of reach, therefore, he inflicted

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the injury to his brother, Rehman Khan who was standing

there.     The accused- appellant        did not intend to cause

death     to the deceased and as such the case does not fall

within the parameters of Section 302,I.P.C. and at best it

can be     under   Section   304-II,   I.P.C.   In   support   of   this

contention, learned counsel cited the following decisions

of this Court.

    i)     (1981) 4 SCC 245             Kulwant Rai v. State of Punjab.

    ii)    (1981) 4 SCC 489             Randhir Singh alias Dhire v. State of Punjab.

    iii) (1983) 2 SCC 342           Jagtar Singh v. State of Punjab

    iv)    (1981) 3 S.C.R 658             Gokul Parashram Patil v. State of Maharashtra

    v)     2004 (2) SCALE 217             Chowa Mandal & Anr.         V.   State    of   Bihar    (Now             Jharkhand)

    vi)    (2004) 12 SCC 250             Ramu v. State of U.P.

    vii) 1995 Supp.(3) SCC 472           Balbir Singh v. State of Punjab.

    viii)[1958]S.C.R. 1495           Virsa Singh v. The State of Punjab.

Learned counsel for the appellant has tried to seek support

on the aforesaid decisions to show that in fact the accused

in the present case did not intend to cause fatal injury to

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the deceased        and it was only a single blow            not intended

to   cause    the    death     but    intended   to   attack   the     other

brother, Aslam Khan who was out of reach. As against this,

learned counsel for the State supported the judgment of the

High Court.

5.           We have bestowed our best of consideration to the

facts of the present case. There is no two opinion that the

present injury was inflicted on the deceased as supported

by P.W.l and the testimony of P.Ws.2 & 3 and the medical

evidence corroborated by recovery of sword. Therefore, so

far as the voluntarily causing injury to the deceased by

the accused is concerned, there is no two opinion and the

same has been fully substantiated by the relevant evidence.

In fact, the only question is whether offence under Section

302, I.P.C. is made out of Section 304-I, or 304-II I.P.C.

is made out. It is a fact that the accused was chasing

Aslam Khan and when he was out of his reach, the accused

went to his house and brought out a sword to attack Aslam

Khan but somehow, Aslam Khan managed to escape from the

spot.      But unfortunately, his brother- the deceased was

standing     in   front   of    his   house   and   the   accused    on   his

failure to cause the serious harm to Aslam Khan                     gave the

murderous     blow   to   the    deceased     which   ultimately      became

fatal. So far as the intention of the accused is concerned,

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it is more than apparent that he went to his house and

brought a sword and wanted to chase Aslam Khan. Therefore,

the intention of the accused is apparent, he intended to

inflict serious injury to Aslam Khan but unfortunately on

his failure he made the deceased a victim. Therefore, from

this his intention is apparent. Nobody, chases                    person with

sword for      any   benevolent     purpose.        It    is    unfortunate,

instead of      causing     the   death   of    Aslam   Khan    the    accused

caused the death of his brother.               It is nothing but change

of malice from one brother            to another brother. From these

facts we are of opinion that           it is not a case in which the

benefit of Section 304-I, I.P.C.               or Section 304-II, I.P.C.

can be given to the accused. One has to see the intention

and the intention of the accused in the present case is

more than apparent that he chased Aslam Khan with sword and

on his failure to catch hold of Aslam Khan with sword he

caused       the death of an innocent bystander who has not

given any provocation to the accused for                       the murderous

act.     It is the intention which was predominantly present

in     his   mind    when   the    accused     chased     Aslam    Khan   and

therefore, this intention he satisfied by inflicting the

murderous blow on the deceased on his vital part of body.

Therefore,     under    these     circumstances,     we   are     of   opinion

that the conviction of the appellant under Section 302,

I.P.C. is well founded and there is no ground to interfere

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in this appeal.

6.            Learned counsel for the appellant has invited our

attention to the various decisions which have been cited

above. Each case depends on its facts and therefore, the

decisions cited above will not render any assistance to

learned counsel for the appellant. So far as converting the

case   from    Section    302,   I.P.C.    to    Section   304-I     or   304-

II,I.P.C. is concerned, each case has its peculiar facts

and justification for converting the offence from Section

302,I.P.C.     to   Section      304-I    or    Section    304-II,    I.P.C.

However, so far as the present case is concerned, we are

satisfied that the intention of the accused is more than

apparent when he chased Aslam Khan after taking out a sword

from his house and since he could not succeed to cause

injury on Aslam Khan he diverted his malice on his brother

an innocent person who was present & gave no cause to this

accused. Therefore, under these circumstances, we do not

find   any     merit     to   convert    the    offence    under     Section

302,I.P.C. to either Section 304-I, I.P.C. or Section 304-

II, I.P.C. Consequently, there is no merit in the present

appeal and the same is dismissed.

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                          .....................................J

               [A.K.MATHUR]

                                    .............................. ......J New Delhi,              [ALTAMAS KABIR] May 12, 2008.

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