BAVISETTI KAMESWARA RAO @ SABAIversusTHE STATE OF A.P. REP. BY ITS PUBLIC PROSECUTOR HIGH COURT OF A.P., HYDERABAD

                         [2008] 5 S.C.R. 408


A           BAVISETTI KAMESWARA RAO @ SABAi
                                 v.
    THE STATE OF A.P. REP. BY ITS PUBLIC PROSECUTOR
            HIGH COURT OF A.P., HYDERABAD
                                                                    •
             (Criminal Appeal No. 547 of 2008)
B                        MARCH 25, 2008
            (S.B. SINHA AND V.S. SIRPURKAR, JJ.)

        PENAL CODE, 1860:
c       ss. 300 'Thirdly' and 302 - Murder- Single injury causing
  dr;ath - Accused harbouring vengeance against deceased
  because of a previous quarrel - Accused along with his
  accomplice abusing deceased - Altercation taking place -
  Accused plunging a long sharp edged screw driver into
D abdomen of deceased causing 12cm deep injury cutting his
  liver and spleen- Other accused attacking deceased.with pen
  knife - Death of deceased soon thereafter - HELD: The act
  was done with intention of causing bodily injury and the injury
  intended to be inflicted was sufficient in ordinary course of
E nature to cause death covered by 'Thirdly' of s. 300 - Act of
  accused would clearly come within definition of 'murder' -
  flccused was rightly convicted by courts below u/s 302 -
  Conviction, and sentence of imprisonment for life affirmed.
        The appellant (A-1) along with eight others was
F prosecuted for committing murder of one 'SR'. According
  .·to the prosecution case, two days prior to the occurrence,
  . a physical altercation between A-1 and 'SR' took place
    wherein A-1 sustained some injury on his hand. Both were
    stated to have sworn towards each other's life. Later, A-1
G discussed the matter with A-2 and the other seven
    accused and they hatched up a plan to finish 'SR'. In the
    night of the occurrence at about 10.00 P.M. all the nine
   accused assembled in the office of A-1 as per their plan.
    A-1 was armed with a screw driver and A-2 with a pen knife.
H                               408
                     BAVISETTI KAMESWARA RAO@ BABAI v.                  409
                               THE STATE OF A.P.
     . .....
               At about 10.30 P.M. when 'SR' reached there, A-1 and A-2 A
               abused him and on his questioning their behaviour, A-1
               plunged the screw driver below left side of the chest of
               'SR' and A-2 attacked him with his pen knife. All the other
               accused were also said to have thrashed him. The victim
               was chased, but somehow he managed to escape and B
               reported the incident to the police. He died on his way to
               hospital. The trial court convicted A-1 and A-2 u/s 302 IPC
               and acquitted the other accused. On appeal, the High
               Court confirmed the conviction as also the sentence of
               life imprisonment of A-1, but convicted A-2 u/s 324 IPC c
               and sentenced him to rigorous imprisonment for 2 years.
                    In the instant appeal filed by A-1, it was contended
               that the appellant being a motor mechanic and screw
               driver being an usual tool in his hand in the course of his
               occupation, the single injury could not be said to have D
               been inflicted with the intention to cause death or to cause
               such bodily injury as would be sufficient to cause death.
               In the alternative it was contended that the incident
               occurred in heat of passion in a sudden quarrel. It was,
               therefore, submitted that the offence, if at all, would fall u/ E
               s 304 (part II) IPC or at the most u/s 304 (Part-I) IPC.
                    Dismissing the appeal, the Court
                    HELD: 1.1 It cannot be said that in a murder case if
               there is only a single injury, the offence would invariably F
               be covered under Section 304 Part II IPC. The nature of
               offence, in such a case could not be decided merely on
               the basis of a single injury and thus in a mechanical
               fashion. The nature of offence would certainly depend
               upon the other attendant circumstances which would help
                                                                           G
               the court to find out the intention on the part of the
               accused. Such attendant circumstances could be very
"{
       ~
               many, such as, (i) whether the act was pre-meditated; (ii)
               the nature of weapon used; (iii) the nature of assault on
               the accused. Besides, every case has to necessarily
                                                                              H
        410        SUPREME,COURT REPORTS               [2008] 5 S.C.R.


A       depend upon the evidence available. [para 12] [416-G; 417-
        A, B, C]
             Virsa Singh v. State of Punjab AIR 1958 SC 465; State
        of Karnataka v. Vedanayagam (1995) 1 SCC 326; and Jagrup
        Singh v. State of Haryana (1981) 3 SCC 616 - relied on.
B
              Tolan v. State of TN. (1984) 2 SCC 133 - referred to.
          1.2 In the instant case, a long screw driver having a
    sharp end was plunged into the abdomen of the deceased
    with such savage force that it caused 12 cm. deep injury
C cutting liver and spleen, which was sufficient to cause
    the death. This is apart from the fact that the deceased
    also suffered other injuries. Therefore, this was a case
    where the act was done with intention of causing bodily
    injury; and the bodily injury intended to be inflicted is
o • sufficient in the ordinary course of nature to cause death,
    covered by "Thirdly" of Section 300 IPC. It is clear that
    1




    the eye-witnesses have attributed this injury to appellant-
    A1; and there could be no other intention, excepting to
    cause death. There is hardly any cross-examination of the
E eye-witnesses to dispute the authorship of this particular
    injury. Under the circumstances, even if there was a single
    injury caused, it was with such a force and on such vital
    part of the body that it caused almost instantaneous
    death. Merely because the screw driver was an usual tool
    used by the accused in his business, it could not be as if
F its user would be innocuous. The act of the accused-
    appellant would, there~ore, clearly come within the
    definition of "murder" under Section 300 IPC. [para 9-
    12,14) [419-E, F; 416-B, C, D, E, F; 417-C]
G          1.3 The deceased was unarmed and there was a
      heated exchange of words before the incident. After the
    . incident also the deceased was chased. Therefore, this is
    • not the case where conviction could be for the offence
      committed under Section 304 (Part II) IPC. [para 14) [419-F, G]
H             2. As regards the plea of application of s. 304 (part I)
                  BAVISETTI KAMESWARA RAO @ BABAI v.                    411
                  THE STATE OF A.P. [V.S. SIRPURKAR, J.]
'    ~
            IPC on the strength of Exception I and Exception 4 to s. A
            300 IPC, the evidence available would not warrant the
            offence covered by Exception 1 as there was no such
            grave and sudden provocation on the part of the
            deceased. Similarly it was not a case of sudden fight in
            the heat of passion nor was it a case of sudden quarrel. B
            There is evidence on record to suggest that there was a
            previous altercation and the accused persons were
            seething in anger to take the revenge of that incident.
            Further, when the deceased came in front of the shop of
            the accused on his motorbike, first there was an exchange          c
            of abuses and it was then that the incident took place
            where not only the accused but even A-2 is proved to have
            attacked the deceased. This could not, therefore, be a
            case of a sudden fight. Therefore, the question of
            application of Section (304 part I) is also ruled out.
                                                                      D
            [para 15] [420-A, B, C, D]
                 3. Under the circumstances, the Courts below were
            right in convicting the appellant u/s 302 IPC. There is no
            reason to take any different view. The conviction and
            sentence are affirmed. [para 16] [420-E, F]                        E
                CRIMINAL APPELLATE JURISDICTION : Criminal
            Appeal No. 547 of 2008.
                  From the final Judgment and Order dated 26.02.2007 of
            the High Court of Judicature at Andhra Pradesh at Hyderabad        F
    ...._   in Criminal Appeal No. 567 of 2005 .
                 G.V.R. Choudary and K. Shivraj Chaudhuri for the Appellant.
                 D. Bharathi Reddy for the Respondent.
                 The Judgment of the Court was delivered by                    G

                 V.S. SIRPURKAR, J. 1. Leave granted.
                 2. The appellant, Bavisetti Kameswara Rao original
            accused no. 1 (A-1) has approached this Court challenging the
            judgment of the Andhra Pradesh High Court, confirming his          H
 '   412      SUPREME COURT REPORTS                   [2008] 5 S.C.R.


A,   conviction (accused no. 1) for an offence under Section 302         ...    ~




     IPC.

         3. Initially, as many as eight persons were tried by the
  Additional Sessions Judge (Fast Track Court) for various
  offences under Sections 14 7, 148 and 302 read with Section
B 149 etc. The allegation is that all the accused persons alongwith
  some others formed themselves into an unlawful assembly and
  in pursuance of the common object of that assembly, they
  committed murder of one Samudrala Pandu Rangarao @
  Rayalam Rangadu. According to the prosecution, on 28th July
c 2007, at about 11 P.M., the deceased alongwith his friend
  Tamarapalli Subba Rao had visited mini lorry supply office of
  the first accused and he wanted to consume alcohol there. The
  first accused refused to let him have the alcohol there and on
  this, there was a wordy altercation in between the first accused
D and the deceased, and they also had the physical altercation
  with each other and in this melee, the first accused has sustained     f
  a wound on his hand. They were pacified by the people gathered
  there and at that juncture, both the first accused as well as the
  deceased sworn towards each other's life. The prosecution
E alleged that in pursuance of this, the first accused had a
  discussion with the second accused and with the other seven
  accused persons and hatched up a plan to do away the
  deceased and were waiting for an opportunity. On 30th July
  2000, all the accused formed into an unlawful assembly in the
p mini lorry office of the first accused at about 10 P.M. in pursuance
  of their pre-plan. The first accused was armed with the screw
                                                                         _...
  driver and the second accused had a pen knife. At around 10.30
  P.M. on that day, the deceased came there on his Yamaha Motor
  cycle bearing registration no. AP-37 A-7569 and on seeing the
G deceased, A-1 and A-2 abused him filthily. When the deceased
  questioned their behaviour, A-1 and A-2 in pursuance of their
  intention, attacked the deceased with their weapons, wherein,
  the first accused stabbed the deceased below the left side chest
  with screw driver causing him a deep bleeding injury. A-2 also
  attacked the deceased with his pen knife, but the deceased
H
                BAVISETTI KAMESWARA RAO @ SABAi v.                  413
                THE STATE OF A.P. [V.S. SIRPURKAR, J.]

          tried to protect himself. However, the deceased suffered two    A
          incised wounds on his palm.

                4. It was the further case of the prosecution that the other
          accused persons also attacked the deceased and assaulted
          him with hands. The deceased somehow or the other, escaped
          when he was given a hot chase by all the accused. The 8
          deceased straightaway went to Bhimavaram II Town Police
          Station and reported the matter to the sub-inspector of police
          on duty, Sh. K.V.N. Vara Prasad, LW.23. Since the deceased
          required immediate medical help, he was tried to be taken to
          Government Hospital, Bhimavaram. However, in the way itself, C
          the deceased breathed his last. Accordingly, an offence under
          Section 302 read with Section 34 was recorded vide Cr. No.
          9712000 by the LW.23. The investigations started and the
          accused came to be rounded up and on completion of the
          investigations, a charge sheet was filed against as many as D
          eight accused persons, who were tried before the Additional
          Sessions Judge (Fast Track Court), Bhimavaram. The Additional
          Sessions Judge at Bhimavaram, however, convicted only A-1
          and A-2 and convicted both of them for the offence under Section
          302 while acquitting the rest of the accused persons. Both of E
          them were sentenced to suffer rigorous imprisonment of life and
          also to pay fine of Rs.4,000/- in default, to suffer a further
          imprisonment for one year.
               5. On appeal, however, the conviction of appellant (herein)
          was confirmed for an offence under Section 302 but A-2 was F
.   )..
          acquitted of that offence and was convicted for an offence under
          Section 324 and his sentence was brought down to the rigorous
          imprisonment for two years. It is this appellate judgment, which
          has been challenged before us. This Court, however, on 15th
          January 2008 issued a notice confined to the question of G
          sentence. As the appeal was delayed, a notice was also sent
          on delay.
               6. Considering the circumstances under which the appeal
          was filed, we condone the delay.
                                                                          H
      414        SUPREME COURT REPORTS                 [2008] 5 S.C.R.


 A        7. Insofar as the first accused-appellant Bavisetti
   Kameswara Rao is concerned, the learned counsel urged
   before us that this was a case of single injury that too, the weapon
   used was a screw driver which was in the regular use of the
   accused as a tool, the accused-appellant being a motor
 8 mechanic. It was but natural that he would use the said screw
   driver in the regular course of his occupation and since he had
   not used any other weapon, it could not be said that his intention
   was to cause death of the deceased or also to cause such bodily
   injury as would be sufficient to cause death of the deceased.
 C The learned counsel for the accused submitted that it was only
   a single injury and, therefore, even if in the knowledge of the
   accused that such injury was likely to cause the death of the
   deceased, the offence at the most would be under Section 304
   Part II of the IPC. As an alternative argument, the learned counsel
   contended that at the most that this was a sudden quarrel and
 0
   the altercation took without a pre-plan, as such, the offence at
   the most could have been under Section 304 Part I and,
   therefore, the High Court and the trial Court were not justified in
   convicting the accused for an offence under Section 302 and
   sentencing him to suffer rigorous imprisonment for life.
 E
            8. We have given very deep consideration to the
      contentions raised. It is found from the medical evidence that
      the deceased suffered the following injuries at the hand of the
      accused. The injuries have been proved by PW.15 D.
 F    Varahalaraju, who was himself a Civil Surgeon. He had
      conducted the post-mortem and examination on the dead body          A   •

      of the deceased and found the following injuries:
            1.   An inside wound on lateral aspect of left palm 2cm
                 x Yicm x 2 cm, black in colour.
. G
            2.   An inside wound above wound no. 1 on lateral aspect
                 of left palm, 2cm x Yicm x 2 cm, black in colour.
            3.   An incised wound on epigastria region of abdomen
                 just below xiphi sternum 2cm x 1cm x 12cm (length,
 H               breadth, depth respectively).
             BAVISETTI KAMESWARA RAO@ BASAi v.                      415
             THE STATE OF AP. [V.S. SIRPURKAR, J.]

            4.   An abrasion on from of right upper arm above elbow A
                 joint 5 x 4cm, black in colour.
            5.   An abrasion on medical aspect of left leg, 2cm x
                 Y:zcm, black in colour.
            6.   Another abrasion on front of left leg, 1cm x Y:zcm,       B
                 black in colour.
           Internal Examination:
           Head: Brain pale, neck, hyoid bone intact, thyroid cartilage-
      NAD. Thorax: Lungs-both jungs pale. Hert: chambers empty,            c
      palce. Abdomen: liver- an incised wound on left lobe of liver
      3cm x 2cm x 3 cm pale.
           Spleen: an incised wound on medial aspect of spleen, 3cm
      x 2cm x 2cm pale.
                                                                           D
           Kidneys: both kidneys pale.
           Stomach: empty.
           Bladder: above 200 ml of urine present in bladder, above
      900 ml of fluid blood present in abdominal cavity.
                                                                        E
             9. According to the Doctor, the post-mortem was done on
      31 51 July2000 and was completed on that day at 3.15 P.M. He
      gave opinion that the deceased had died of hemorrhagic shock
      due to injuries to liver and spleen. A glance at these injuries
      would suggest that it was injury no. 3 Which was fatal injury and F
,._   it was in the region of abdomen which was a vital part of the
      body of the deceased. The injury was 1cm x 1cm x 12cm (length,
      breadth and depth respectively). In the internal examination, it
      was found that there was an incised wound on liver as well as
      spleen. The incised would on liver was 3cm x 2cm x 3cm in G
      measurement, while on the spleen, the measure of the injury
      was 3cm x 2cm x 2cm. There is hardly any cross-examination
      of this Doctor excepting that injuries no. 5 and 6 could be
      possible by a fall, however, the seriousness of injury no. 3 was
      not and could not be questioned in the cross-examination. We H
    416       SUPREME COURT REPORTS                    [2008] 5 S.C.R.


A have, therefore, no doubt that this injury with depth of 12 cm
  which was sufficient to cause the death. We also cannot ignore
  that the screw driver used had the sharp end and the sufficient
  length to cause the injury having the depth of 12cm. It was,
  therefore, clear that the eye-witnesses have attributed this injury
B to the first accused-appellant and there could be no other
  intention, excepting to cause death.
        10. When the screw driver was plunged into the vital part
  of the body of the deceased, it cut his liver and spleen. Therefore,
  this was a case where the act was done with intention of causing
C bodily injury and the body injury intended to be inflicted is
  sufficient in the ordinary course of nature to cause death, covered
  by "Thirdly" of Section 300 of "Indian Penal Code". The act of
  the accused-appellant would, therefore, clearly come within the
  definition of "murder" under Section 300 of the "Indian Penal
0 Code".
           11. We cannot forget that when the deceased came up to
    the office of the accused, there was exchange of abuses and
    then, he was thrashed by the accused persons. There is hardly
    any cross-examination of the eye-witnesses to dispute the
E au_thorship of this particular injury. We have scanned the evidence
    very closely only to find that the authorship of the injury could not
    be disputed and nor the manner in which the single injury was
    inflicted. Therefore, under the circumstances, even if there was
    a single injury caused, it was with such a force and on such vital
F part of the body that it caused almost instantaneous death. The
  . deceased, after he was injured went up to the police station            A
  . and before he could be reached to the hospital, breathed his
   ·last.
G         12. It is seen that where in the murder case there is only a
    single injury, there is always a tendency to advance an argument
    that the offence would invariably be covered under Section 304
    Part II IPC. The nature of offence where there is a single injury
    could not be decided merely on the basis of a single injury and
    thus in a mechanical fashion. The nature of the offence would
H
            BAVISETTI KAMESWARA RAO @ BABAI v.                     417
            THE STATE OF AP. [V.S. SIRPURKAR, J.]

     certainly depend upon the other attendant circumstances which        A
     would help the court to find definitely about the intention on the
     part of the accused. Such attendant circumstances could be
     very many, they being (i) whether the act was pre-meditated; (ii)
     the nature of weapon used; (iii) the nature of assault on the
     accused. This is certainly not exhaustive list and every case        B
     has to necessarily depend upon the evidence available. As
     regards the user of screw driver, the learned counsel urged that
     it was only the accidental use at the spur of the moment and,
     therefore, there could be no intention to either cause death or
     cause such bodily injury as would be sufficient to cause death.      c
     Merely because the screw driver was a usual tool used by the
     accused in his business, it could not be as if its user would be
     innocuous.
           13. In State of Karnataka v. Vedanayagam [(1995) 1
     sec 326] this Court considered the usual argument of a single D
'r   injury not being sufficient to invite a conviction under Section
     302 IPC. In that case the injury was caused by a knife. The
     medical evidence supported the version of the prosecution that
     the injury was sufficient, in the ordinary course of nature to cause
     death. The High Court had convicted the accused for the offence E
     under Section 304 Part II IPC relying on the fact that there is
     only a single injury. However, after the detailed discussion
     regarding the nature of injury, the part of the body chosen by the
     accused to inflict the same and other attendant circumstances
     and after discussing clause Thirdly of Section 300 IPC and further F
     relying on the reported decision in Virsa Singh v. State of
~
     Punjab [AIR 1958 SC 465], the court set aside the acquittal
     under Section 302 IPC and convicted the accused for that
     offence. The Court relied on the observation by Justice Bose in
     Virsa Singh's case to suggest that:
                                                                          G
          "With due respect to the learned Judge he has linked up
          the intent required with the seriousness of the injury, and
          that, as we have shown is not what the section requires.
          The two matters are quite separate and distinct, though
          the evidence about them may sometimes overlap."                 H
    418       SUPREME COURT REPORTS                      [2008] 5 S.C.R.


A         The further observation in the above case were:
          'The question is not whether the prisoner intended to inflict
          a serious injury or a trivial one but whether he intended to
          inflict the injury that is proved to be present. If he can show
          that he did not, or if the totality of the circumstances justify
B         such an inference, then, of course the intent that the section
          requires is not proved. But if there is nothing beyond the
          injury and the fact that the appellant inflicted it, the only
          possible inference is that he intended to inflict it. Whether
          he knew of its seriousness, or intended serious
c         consequences, is neither here nor there. The question so
          far as the intention is concerned, is not whether he
          intended to kill, or to inflict an injury of a particular degree
          of seriousness, but whether he intended to inflict the injury
          in question, and once the existence of the injury is proved
D         the intention to cause it will be presumed unless the
          evidence or the circumstances warrant an opposite
          conclusion. But whether the intention is there 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
E         separate and distinct question and has nothing to do with
          the question whether the prisoner intended to inflict the
          injury in question.
          It is true that in a given case the enquiry may be linked up
          with the seriousness of the injury. For example, if it can be
F         proved, or if the totality of the circumstances justify an
          inference, that the prisoner only intended a superficial
          scratch and that by accident his victim stumbled and fell
          on the sword or spear that was used, then of course the
          offence is not murder. But that is not because the prisoner
G         did not intend the injury that he intended to inflict to be as
          serious as in turned out to be but because he did not
          intend to inflict the injury in question at all. His intention in
          such a case would be to inflict a totally different injury. The
          difference is not one of law but one of fact." (emphasis
H         supplied).
            BAVISETII KAMESWARA RAO @ BABAI v.                     419
            THE STATE OF A~P. [VS. SIRPURKAR, J.]
 ~
           Their Lordships then referred to the decision of this Court A
     in Jagrup Singh v. State of Haryana [(1981) 3 SCC 616]
     where this Court observed:
           "There is no justification for the assertion that the giving
           of a solitary blow on a vital part of the body resulting the
           death must always necessarily reduce the offence to            B
"·         culpable homicide not amounting to murder punishable
           under Section 304 Part II of the Code. If a man deliberately
          strikes another on the head with a heavy log of wood or an
          iron rod or even a lathi so as to cause a fracture of the
          skull, he must, in the absence of any circumstances             c
          negativing the presumption, be deemed to have intended
          to cause the death of the victim or such bodily injury as is
          sufficient to cause death. The whole thing depends upon
          the intention to cause death, and the case may be covered
          by either clause 1stly or clause 3rdly. The nature of D
 y        intention must be gathered from the kind of weapon used,
          the part of the body hit, the amount of force employed
          and the circumstances attendant upon the death."
          (Emphasis supplied).
          Their Lordships also referred the case of Tolan v. State        E
     of T.N. [(1984) 2 sec 133].
           14. In the present case we do not have any reason to take
     any different view of the matter. Here was the case where a
     long screw driver having a sharp end was plunged into the F
     abdomen of the deceased with such savage force that it caused
     injury which was 12 cm. deep cutting liver and spleen. This is
     apart from the fact that the deceased also suffered other injuries.
     The deceased was unarmed and there was a heated exchange
     of words before the incident. After the incident also the deceased
                                                                         G
     was chased. Therefore, we find that this is not the case where
     conviction could be for the offence committed under Section
     304 Part 11 IPC.
         15. We also do not accept the contention of the learned
     counsel for the defence which was raised only by way of a H
    420      SUPREME COURT REPORTS                  [2008) 5 S.C.R.


A desperate argument that the incident was sudden and it was
  without any pre-meditation, thereby the learned counsel wanted
  to bring the evidence under Section 304 Part I. In short the
  counsel aimed at Exception I of Section 300 IPC. Exception 4
  was also brought to be relied upon. We do not think the evidence
B available would warrant the offence covered by Exception 1 as
  there was no such grave and sudden provocation on the part of
  the deceased. Similarly it was not a case of sudden fight in the
  heat of passion nor was it a case of sudden quarrel when the
   offender having taken undue advantage or acted in a cruel or
C unusual manner. There is evidence on record to suggest that
   there was a previous altercation and the accused persons were
   seething in anger to take the revenge of the incident which had
   taken place on 27th of the same month. Further it was only after
   the deceased came in front of the shop of the accused on his
   motorbike, first there was an exchange of abuses· and it was
0
   then that the incident took place where not only the accused but
   even the second accused is proved to have attacked the
   deceased. This could not, therefore, be a case of a sudden
   fight. Therefore, the question of application of Section 304 Part
   I is also ruled out.
e
        16. Under the circumstances, we would be constrained to
  hold that the Courts below were right in convicting this accused-
  appellant for an offence under Section 302. We, therefore, find
  no reason to take any different view and confirm the conviction
F and sentence of this accused also.
         17. In the result, the appeal has no merits, and it is
    dismissed.
    R.P.                                        Appeal dismissed.