STATE OF RAJASTHAN versus LEELA RAM @ LEELA DHAR
[2018] 13 S.C.R. 621, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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STATE OF RAJASTHAN
v.
LEELA RAM @ LEELA DHAR
(Criminal Appeal No. 1441 of  2013)
DECEMBER 13, 2018
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Penal Code, 1860: s.304 Part II – Conviction of respondent
under s.302 IPC – High Court modified his conviction to one under
s.304 Part II – Prosecution case was that three persons including
the respondent attacked the victim-deceased and caused serious
injuries to him – Respondent inflicted an axe injury on the skull of
the deceased which caused his death – Accused persons were tried
for murder – Trial court  convicted the respondent on the basis of
depositions of PW-1 to PW-4, the medical evidence and recovery of
blood stained axe at the behest of respondent, while acquitted the
other two persons – High Court allowed the appeal of respondent
in part and convicted him of an offence under s.304 Part II – State’s
appeal – Held:  Evidence of prosecution witnesses was to the effect
that the respondent was the author of the injury and wielded the
axe, as a result of which death was the immediate and natural
cause – PW-4 was an injured eye-witness and, therefore, his
presence was established beyond all reasonable doubt – The injury
which was caused to the deceased was [within the meaning of s.300
(fourthly)] of a nature that the person committing the act knew that
it was so imminently dangerous that it must in all probability cause
death or such bodily injury as is likely to cause death – In such
circumstances,
the judgment of High Court was manifestly perverse
and totally contrary to the evidence on the record – Conviction of
respondent by trial court under s.302 is restored.
Allowing the appeal, the Court
HELD: 1.  PW-2, who is the complainant, has deposed to
the genesis of the incident.  According to him, the deceased was
seized upon by the respondent (together with the two co-accused).
The respondent, inflicted an axe blow on the skull of the deceased.
The evidence of PW-2 on the involvement of the respondent found
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abundant corroboration in the deposition of PW-1, PW-2, PW-3
and PW-4.  PW-4 was an injured eye-witness. His presence was
thus established in any event beyond all reasonable doubt. From
the evidence of these witnesses coupled with the medical
evidence, it emerged that the respondent inflicted an axe blow in
the centre of the skull of the deceased.  The evidence of PW-5
was clear in indicating that the injury was caused with the help of
a sharp edged weapon.  PW-5 also stated that the cranium and
spinal cord and the parietal bone was fractured. The injury on the
skull, led to coma and was the cause of death.  Coupled with
these circumstances was the recovery of the weapon of offence
which was found to be blood stained. [Para 11] [626-G-H;
627-A-B]
2. The High Court proceeded entirely on the basis of
surmise in opining that the death was caused without pre-
meditation and on the spur of the moment.  In arriving at that
inference, the High Court has evidently ignored the evidence,
bearing upon the nature of the incident, the consistent account
that it was the respondent who had inflicted the blow, the weapon
of offence and the vital part of the body on which the injury was
inflicted. The fact that the co-accused were acquitted by the Trial
Court, was no reason to doubt the testimony of all the eye-
witnesses which implicated the respondent. The death was
attributable to the assault by the respondent on the deceased,
during the course of the incident. Having regard to the facts and
circumstances of the case, it is evident that the injury which was
caused to the deceased was [within the meaning of Section 300
(Fourthly)] of a nature that the person committing the act knew
that it was so imminently dangerous that it must in all probability
cause death or such bodily injury as is likely to cause death.  Under
Exception 4, culpable homicide is not murder if the stipulations
contained in that provision are fulfilled. They are: (i) that the act
was committed without pre-meditation; (ii) that there was a
sudden fight; (iii) the act must be in the heat of passion upon a
sudden quarrel; and (iv) the offender should not have taken undue
advantage or acted in a cruel or unusual manner.  The deceased
was unarmed when he was seized upon and assaulted by the
respondent.  In these circumstances, the judgment of the High
Court was manifestly perverse and was totally contrary to the
evidence on the record. The conviction of the respondent by the
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trial court under section 302 of the Penal Code is restored.
[Paras 13, 15-18] [633-E-G; 634-B-F]
Mahesh Balmiki v. State of MP (2000) 1 SCC 319 ;
Hukam Chand v. State of Haryana (2002) 8 SCC 421 :
[2002] 3 Suppl. SCR 202 ; Dhirajbhai Gorakhbhai
Nayak v. State of Gujarat (2003) 9 SCC 322 : [2003] 1
Suppl. SCR 754 ; Pulicherla Nagaraju v. State of AP
(2006) 11 SCC 444 : [2006] 4 Suppl. SCR 633 ;
Singapagu Anjaiah v. State of A P (2010) 9 SCC 799 :
[2010] 7 SCR 703 ; Som Raj v. State of H P (2013) 14
SCC 246 : [2013] 4 SCR 433 – relied on
Case Law Reference
(2000) 1 SCC 319
relied on
Para 12
[2002] 3 Suppl. SCR 202  
relied on
Para 12
[2003] 1 Suppl. SCR 754
relied on
Para 12
[2006] 4  Suppl. SCR 633
relied on
Para 12
[2010] 7 SCR 703
relied on
Para 12
[2013] 4 SCR 433
relied on
Para 12
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1441 of 2013.
From the Judgment and Order dated 13.08.2008 of the High Court
of Rajasthan at Jaipur in D.B. Criminal Application No. 580 of 2005.
Ms. Ruchi Kohli, Amit Sharma, Ms. Nidhi Jaswal, Ms. Srishti
Mishra, Advs. for the Appellant.
Harsh Jain, Abhinav Gupta, Ms. Ankita Gupta, Abhinav Deshwal,
Shailender Sharma (for Ms. Pratibha Jain), Advs. for the Respondent.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. This appeal arises from a judgment of a Division Bench of the
High Court of Judicature for Rajasthan dated 13August 2008.  The High
Court, while allowing the appeal filed by the
respondent, convicted him
under Section 304 Part-II of the Indian Penal Code (‘Penal Code’) instead
of Section 302.  The High Court sentenced the respondent to the period
which was already undergone, stated to have been approximately five
years and five months. The State is in appeal against the decision.
STATE OF RAJASTHAN v. LEELA RAM @ LEELA DHAR
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2. A First Information Report was lodged by Satya NarayanSwami
(PW-2) at Singhana (Rajasthan),that at about 6.30 p.m. on 27 February
2003, the deceased-Ram Kumwar Swami - was proceeding for some
work at achakki.  While he was passing by the hand pump near the
house of Sriram Swami, three persons - Rajesh, Jagdish and Leela Ram
(the respondent herein) attacked the deceased and caused serious injuries
to him.  The case of the prosecution is that the respondent inflicted an
axe injury on the skull of the deceased which was the cause of death.
Rajesh, Jagdish and the respondent were tried for offences under Sections
341, 323, 336 and 302, read with Section 34 of the Penal Code.  The
case of the prosecution rested principally on the evidence of  PW-1
Basanti Devi, the complainant PW-2 Satya Narayan Swami, PW-3 Nathu
Ram and PW-4 GyarsiLal.  PW-1, PW-2, PW-3 and PW-4 were all eye-
witnesses to the incident.  PW-4 is also an injured witness.
3. The cause of death, as deposed to by PW-5 Dr. Hari Singh
Gothwal, was the injury which was sustained on the skull by the deceased.
While conducting the post-mortem, PW-5 observed the following injury
on the body of the deceased:
“Injury No.1 :- Crush injury 10 cm x 0.5 cm x depth of
bone in the middle of the skull.  The left eye was closed as
an impact of this injury.  The injury was caused with the
help of sharp edged weapon.  The injury was caused within
the duration of six hours.”
4. PW-4 GyarsiLal had also sustained the following injuries :
“(1) Contusion 5x3 cm in the lower region of
left thigh.
 (2) Abrasion and deformity 1x0.5 cm in the
lower region of the right forearm.”
5. The Trial Court believed the depositions of PW-1, PW-2, PW-
3 and PW-4.  Adverting to the evidence of PW-2, the Trial Court held
that the accused had launched an assault on his brother with an intention
to grab the possession of his land.  All the above eye-witnesses stated
that the respondent-Leela Ram had attacked the deceased with an axe
on the skull.  PW-5 stated that the injury on the skull was the cause of
death and was sufficient to cause death in the ordinary course. Besides
the ocular evidence of PW-1 to PW-4, the medical evidence andthe
deposition of PW-5, the prosecution relied on the recovery of a blood
stained axe at the behest of the respondent.  The axe was recovered
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vide seizure memo Exh. P-18.  The Trial Court convicted Leela Ram for
the offences under Sections 341, 323 and 302 of the Penal Code.  He
was, however, acquitted of the offence under Section 336.  Rajesh and
Jagdish were acquitted by the Trial Court.
6. Criminal Appeal No.580/2005 was filed by the respondent
against the judgment of conviction.  A criminal revision, being Criminal
Revision Petition No.958/2005, was filed by the complainant against the
acquittal of the two co-accused.
7. The High Court by its judgment dated 13 August 2008, allowed
the appeal of the respondent in part and convicted him of an offence
under Section 304 Part-II of the Penal Code.  In coming to this conclusion,
the High Court adverted to the following circumstances, which in its
view emerged from the evidence adduced by the prosecution:
“(i) Prosecution is able to establish that appellant inflicted
injury with blunt object on the head of the deceased.
(ii)
Injury on head attributed to appellant gets
corroboration from the post mortem report.
(iii) The death was caused without premeditation and the
appellant did not act in a cruel or unusual manner.
Incident appears to have  occurred on a spur of
moment.  Something sparked suddenly and appellant
inflicted single blow on the head of Ram Kumar.
(iv) There is no trustworthy evidence on record to prove
that co-accused Rajesh Kumar and Jagdish Prasad had
shared common intention with the appellant.”
8. The revision filed by the
complainant was dismissed.
9. Assailing the judgment of the High Court, learned counsel
appearing on behalf of the State of Rajasthan submits that :
(i)
The consistent account of four eye-witnesses - PW-1,
PW-2, PW-3 and PW-4 indicates that it was the respondent
who had inflicted an injury with an axe on a vital part of the
body of the deceased, namely, his skull;
(ii) The medical evidence in the form of the post-mortem report
and the deposition of PW-5 establishes beyond doubt that the
death was caused as a result of the injury sustained because
of a sharp-edged weapon; and
STATE OF RAJASTHAN v. LEELA RAM @ LEELA DHAR
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(iii) The fact that the injury was caused by the axe is also
corroborated by its recovery vide seizure memo Exh.P-18
and by the FSL report which reported blood stains on the
axe.
Learned counsel submits that the finding of the High Court that
anincident took place without pre-meditation, so as to bring the case
within the Exception 4 of Section 300 of the Penal Code, is based on no
evidence whatsoever.  On the contrary, the evidence clearly establishes
that the respondent was armed with a lethal weapon which was used to
inflict a serious injury on a vital part of the body of the deceased.Learned
counsel submits that the mere fact that there was a single blow, is not a
circumstance which would warrant the conviction under Section 302
being altered to one under Section 304 Part-II.  On the contrary, learned
counsel submitted that the case would fall under Section 300 (Fourthly)
since the act of the respondent was so imminently dangerous that it
must in all probability cause death or such bodily injury as is likely to
cause death.
10. On the other hand, learned counsel appearing on behalf of the
respondent submitted that the case of the prosecution has been
disbelieved by the Trial Court in regard to the two co-accused - Rajesh
and Jagdish.  According to this submission, the prosecution had sought
to adduce evidence to the effect that a lathi had been used in the course
of the incident by the two co-accused.  This was
not accepted by the
Trial Court.  Hence, emphasis was placed on the evidence of PW-5 that
the injury could have been caused due to a blunt object.  The judgment
of the High Court convicting the respondent under 304 Part-II, it was
urged, ought not to be disturbed.
11. In assessing the rival submissions, it would be necessary to
advert to the evidence of the four eye-witnesses who have been believed,
both by the Trial Court and by the High Court, insofar as the complicity
of the respondent is concerned.  PW-2, who is the complainant, has
deposed to the genesis of the incident.  According to him, when the
deceased was passing by the house of Sri Ram Swamy, he was seized
upon by the respondent (together with the two co-accused).  Leela Ram,
the respondent, inflicted an axe blow on the skull of the deceased.  The
evidence of PW-2 on the involvement of the respondent finds abundant
corroboration in the deposition of PW-1 Basanti Devi, the complainant
PW-2 Satya Narayan Swami, PW-3 Nathu Ram and PW-4 Gyarsi Lal.
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PW-4, is an injured eye-witness.  His presence is hence established in
any event beyond all reasonable doubt.  From the evidence of these
witnesses coupled with the medical evidence, it has emerged that the
respondent inflicted an axe blow in the centreof the skull of the deceased.
The evidence of PW-5 was clear in indicating that the injury was caused
with the help of a sharp edged weapon.  PW-5 also stated that the
cranium and spinal cord and the parietal bone had been fractured.  The
injury on the skull, lead to coma and was the cause of death.Coupled
with these circumstances is the recovery of the weapon of offence which
was found to be blood stained.  On the basis of this unimpeachable
evidence, it is clear that : (i) death was caused as a result of the injury
inflicted upon the skull of the deceased by the use of the axe; and (ii) the
respondent was the author of the injury and wielded the axe, as a result
of which death was the immediate and natural cause.
12. In Mahesh Balmikiv State of MP1, this Court while deciding
the question of whether a single blow with a knife on the chest of the
deceased would attract Section 302, held thus:
“9. … there is no principle that in all cases of a single blow Section
302 IPC is not attracted. A single blow may, in some cases, entail
conviction under Section 302 IPC, in some cases under Section
304 IPC and in some other cases under Section 326 IPC. 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, 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 the
intention to kill the deceased. In any event, he can safely be
attributed the knowledge that the knife-blow given by him was so
imminently dangerous that it must in all probability cause death or
such bodily injury as is likely to cause death.”
1(2000) 1 SCC 319
STATE OF RAJASTHAN v. LEELA RAM @ LEELA DHAR
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In Hukam Chand v State of Haryana2, this Court while dealing
with the question of whether a blow on the skull with a pharsa would
attract a conviction under Section 302, held thus :
“15. Coming back to the issue raised as regards the invocation of
Section 304 Part II IPC, strong reliance was placed on a decision
of this Court in Pularu v. State of M.P.[1993 SCC (Cri) 1023 :
AIR 1993 SC 1487] , wherein K. Jayachandra Reddy, J., as His
Lordship then was, speaking for the Bench in para 7 of the Report
stated: [SCC (Cri) p. 1025, para 7]
“7. That takes us to the nature of the offence. All the three
eyewitnesses have spoken that the appellant dealt only one blow
with the agricultural implement. Having regard to the time and
the surrounding circumstances it is difficult to hold that he intended
to cause the death of the deceased particularly, when he was not
armed with any deadly weapon as such. As an agriculturist he
must have been having a tabbal in his hands and if in those
circumstances he dealt a single blow it is difficult to convict him
by invoking clause 1stly or 3rdly of Section 300 IPC. It cannot be
said that he intended to cause that particular injury which
unfortunately resulted in the fracture of bones. Therefore, the
offence committed by him would be one amounting to culpable
homicide punishable under Section 304 Part II IPC…
16. While it is true that there was only one blow but the medical
evidence on record
definitely indicates that the severity of the
blow was such that it was sufficient for causing death. In Pularu
[1993 SCC (Cri) 1023 : AIR 1993 SC 1487] the appellant dealt
only one blow with an agricultural implement. This Court having
regard to the fact that Pularu was an agriculturist came to a
conclusion that question of there being any intent to cause death
of the deceased would not arise since he was not armed with any
deadly weapon as such. Presently, however, the situation is slightly
different. Hukam Chand was in the house. He was called in and
he arrived at the scene and place of occurrence with a pharsa
which by all means is a deadly weapon and it is this pharsa which
was used to hit the deceased at his head resulting in his immediate
collapse and subsequent death. The story set up by the appellant,
as noticed hereinbefore belies the incident and cannot but be
ascribed to be a totally fabricated one. Injuries suffered by Udai
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Chand, the deceased, cannot be said to be inflicted as a matter of
chance while grappling with each other. The nature of the injuries,
as noticed hereinbefore, depicts it otherwise. If that be the case
which stands to reason that there was in fact a deliberate pharsa-
blow on the deceased, then and in that event, a simple question by
itself would negate the plea of the accused, namely, as to the
reason why Hukam Chand arrived at the place of occurrence
with a pharsa in his hand. The factum of bringing in the pharsa at
the place of occurrence from his house when he was sent for
cannot be ignored. It definitely indicates the intent to use it and
thereby cause death.”
In Dhirajbhai Gorakhbhai Nayak v State of Gujarat3,this Court
while discussing the ingredients of the Exception 4 of Section 300 IPC,
held thus:
“11. The fourth exception of Section 300 IPC covers acts done in
a sudden fight. The said Exception deals with a case of prosecution
(sic provocation) not covered by the first exception, after which
its place would have been more appropriate. The Exception is
founded upon the same principle, for in both there is absence of
premeditation. But, while in the case of Exception 1 there is total
deprivation of self-control, in case of Exception 4, there is only
that heat of passion which clouds men’s sober reason and urges
them to deeds which they would not otherwise do. There is
provocation in Exception 4 as in Exception 1, but the injury done
is not the
direct consequence of that provocation. In fact,
Exception 4 deals with cases in which notwithstanding that a blow
may have been struck, or some provocation given in the origin of
the dispute or in whatever way the quarrel may have originated,
yet the subsequent conduct of both parties puts them in respect of
guilt upon an equal footing. A “sudden fight” implies mutual
provocation and blows on each side. The homicide committed is
then clearly not traceable to unilateral provocation, nor could in
such cases the whole blame be placed on one side. For if it were
so, the Exception more appropriately applicable would be
Exception 1. There is no previous deliberation or determination to
fight. A fight suddenly takes place, for which both parties are
more or less to be blamed. It may be that one of them starts it, but
if the other had not aggravated it by his own conduct it would not
3(2003) 9 SCC 322
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have taken the serious turn it did. There is then mutual provocation
and aggravation, and it is difficult to apportion the share of blame
which attaches to each fighter. The help of Exception 4 can be
invoked if death is caused (a) without premeditation, (b) in a sudden
fight, (c) without the offenders having taken undue advantage or
acted in a cruel or unusual manner, and (d) the fight must have
been with the person killed. To bring a case within Exception 4 all
the ingredients mentioned in it must be found. It is to be noted that
the “fight” occurring in Exception 4 to Section 300 IPC is not
defined in IPC. It takes two to make a fight. Heat of passion
requires that there must be no time for the passions to cool down
and in this case, the parties had worked themselves into a fury on
account of the verbal altercation in the beginning. A fight is a
combat between two and more persons whether with or without
weapons. It is not possible to enunciate any general rule as to
what shall be deemed to be a sudden quarrel. It is a question of
fact and whether a quarrel is sudden or not must necessarily depend
upon the proved facts of each case. For the application of Exception
4, it is not sufficient to show that there was a sudden quarrel and
there was no premeditation. It must further be shown that the
offender has not taken undue advantage or acted in a cruel or
unusual manner. The expression “undue advantage” as used in
the provision means “unfair advantage”.”
In Pulicherla Nagaraju v State of A P4 , this Court while deciding
whether a case falls under Section 302 or 304 Part I of 304 Part II, held
thus :
“29. Therefore, the court should proceed to decide the pivotal
question of intention, with care and caution, as that will decide
whether the case falls under Section 302 or 304 Part I or 304 Part
II. Many petty or insignificant matters — plucking of a fruit,
straying of cattle, quarrel of children, utterance of a rude word or
even an objectionable glance, may lead to altercations and group
clashes culminating in deaths. Usual motives like revenge, greed,
jealousy or suspicion may be totally absent in such cases. There
may be no intention. There may be no premeditation. In fact,
there may not even be criminality. At the other end of the spectrum,
there may be cases of murder where the accused attempts to
4(2006) 11 SCC 444
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avoid the penalty for murder by attempting to put forth a case that
there was no intention to cause death. It is for the courts to ensure
that the cases of murder punishable under Section 302, are not
converted into offences punishable under Section 304 Part I/II, or
cases of culpable homicide not amounting to murder, are treated
as murder punishable under Section 302. The intention to cause
death can be gathered generally from a combination of a few or
several of the following, among other, circumstances: (i) nature
of the weapon used; (ii) whether the weapon was carried by the
accused or was picked up from the spot; (iii) whether the blow is
aimed at a vital part of the body; (iv) the amount of force employed
in causing injury; (v) whether the act was in the course of sudden
quarrel or sudden fight or free for all fight; (vi) whether the incident
occurs by chance or whether there was any premeditation; (vii)
whether there was any prior enmity or whether the deceased
was a stranger; (viii) whether there was any grave and sudden
provocation, and if so, the cause for such provocation; (ix) whether
it was in the heat of passion; (x) whether the person inflicting the
injury has taken undue advantage or has acted in a cruel and
unusual manner; (xi) whether the accused dealt a single blow or
several blows. The above list of circumstances is, of course, not
exhaustive and there may be several other special circumstances
with reference to individual cases which
may throw light on the
question of intention. Be that as it may.”
In Singapag Anjaiah v State of A P5, this Court while deciding
the question of whether a blow on the skull of the deceased with a
crowbar would attract Section 302, held thus :
“16. In our opinion, as nobody can enter into the mind of the
accused, his intention has to be gathered from the weapon used,
the part of the body chosen for the assault and the nature of the
injuries caused. Here, the appellant had chosen a crowbar as the
weapon of offence. He has further chosen a vital part of the body
i.e. the head for causing the injury which had caused multiple
fractures of skull. This clearly shows the force with which the
appellant had used the weapon. The cumulative effect of all these
factors irresistibly leads to one and the only conclusion that the
appellant intended to cause death of the deceased.”
5(2010) 9 SCC 799
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In Som Raj v State of H P6, this Court while deciding the question
of whether a single blow on the skull with a darat would attract conviction
under Section 302, held thus :
“16.2. From the statements of Dr SumanSaxena (PW 4) and Dr
B.M. Gupta (PW 5), the nature of injuries caused to the deceased
has been brought out. A perusal thereof would leave no room for
doubt that the appellant-accused had chosen the sharp side of
the darat and not the blunt side. The ferocity with which the
aforesaid blow was struck clearly emerges from the fact that the
blow resulted in cutting through the skull of the deceased and
caused a hole therein, resulting in exposing the brain tissue. When
a blow with a deadly weapon is struck with ferocity, it is apparent
that the assailant intends to cause bodily injury of a nature which
he knows is so imminently dangerous, that it must in all probability
cause death.
16.3. The place where the blow was struck (at the back of the
head of the deceased) by the appellant-accused, also leads to the
same inference.
16.4. It is not the case of the appellant-accused that the occurrence
arose out of a sudden quarrel. It is also not his case that the blow
was struck in the heat of the moment. It is not even his case that
he had retaliated as a consequence of provocation at the hands of
the deceased. He has therefore no excuse for such an extreme
act.
16.5. Another material fact is the relationship between
the parties.
The appellant-accused was an uncle to the deceased. In such
circumstances, there is hardly any cause to doubt the intent and
knowledge of the appellant-accused.
16.6. Besides the aforesaid factual position, it would be incorrect
to treat the instant incident as one wherein a single blow had been
inflicted by the accused. As many as five witnesses of the
occurrence have stated in unison, that the appellant-accused was
in the process of inflicting a second blow on the deceased, when
they caught hold of him, whereupon one of them (Mohinder Singh,
PW 6) snatched the darat from the appellant-accused, and threw
it away. In such a situation, it would be improper to treat/determine
6(2013) 14 SCC 246
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the culpability of the appellant-accused by assuming that he had
inflicted only one injury on the deceased.
16.7. Keeping in mind the parameters of the judgments referred
to by the learned counsel for the rival parties (which have been
extracted above), we have no doubt in our mind that the appellant-
accused must be deemed to have committed the offence of
“culpable homicide amounting to murder” under Section 302 of
the Penal Code, as the appellant-accused Som Raj had struck
the darat-blow with the intention of causing such bodily injury,
which he knew was so imminently dangerous, that it would in all
probability cause the death of SardariLal. Having recorded the
aforesaid conclusion, we are satisfied, that the appellant-accused
was justifiably convicted for the offence under Section 302 of the
Penal Code and sentenced to undergo rigorous imprisonment for
life, as also, to pay a fine of Rs 10,000 (and in default, to undergo
further simple imprisonment for a period of one year).
17. In view of our aforesaid conclusions, the instant appeal being
devoid of merit, is dismissed.”
13. The High Court has, in our view, proceeded entirely on the
basis of surmise in opining that the death was caused without pre-
meditation and on the spur of the moment.  In arriving at that inference,
the High Court has evidently ignored the evidence, bearing upon the
nature of the incident, the consistent account that it was the respondent
who had inflicted the blow, the weapon of
offence and the vital part of
the body on which the injury was inflicted.The fact that the co-accused,
Rajesh and Jagdish, have been acquitted by the Trial Court, is in our
view no reason to doubt the testimony of all the eye-witnesses which
implicated the respondent. The death was attributable to the assault by
the respondent on the deceased, during the course of the incident.  Having
regard to the above facts and circumstances of the case, it is evident
that the injury which was caused to the deceased was [within the meaning
of Section 300 (Fourthly)] of a nature that the person committing the act
knew that it was so imminently dangerous that it must in all probability
cause death or such bodily injury as is likely to cause death.
14. In seeking to place the facts of the present case within the
Exception 4, the High Court has dwelt on whether the incident took
place without pre-meditation.  Exception 4 is extracted below :
STATE OF RAJASTHAN v. LEELA RAM @ LEELA DHAR
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
634
SUPREME COURT REPORTS
[2018] 13 S.C.R.
“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 having taken undue advantage or acted in a cruel
or unusual manner.”
15. Under Exception 4, culpable homicide is not murder if the
stipulations contained in that provision are fulfilled.They are: (i) that the
act was committed without pre-meditation; (ii) that there was a sudden
fight; (iii) the act must be in the heat of passion upon a sudden quarrel;
and (iv) the offender should not have taken undue advantage or acted in
a cruel or unusual manner.
16. While learned counsel appearing on behalf of the respondent
sought to place reliance on the statement of the respondent under Section
313 of the Code of Criminal Procedure, 1973, that it was the deceased
who came to their house and started pelting stones, it is evident that this
defence has no basis in the evidence.Above all, the deceased was
unarmed when he was seized upon and assaulted by the respondent.
17. In the above circumstances, we are affirmatively of the view
that the judgment of the High Court is manifestly perverse and is totally
contrary to the evidence on the record.  The interference of this Court is
warranted to obviate a complete failure or miscarriage of justice.
18. We allow the appeal and while setting aside the judgment of
the High Court, restore the conviction of the
respondent by the Trial
Court under Section 302 of the Penal Code.  The respondent is sentenced
to suffer imprisonment for life.  The respondent shall forthwith surrender
to his sentence.  A copy of this order shall be forwarded by the Registry
to the Chief Judicial Magistrate of the area concerned to secure
compliance.
19. Pending application, if any, shall stand disposed of.
Devika Gujral
Appeal allowed.