Holding

The appellant cannot be held guilty of murder under Section 302 IPC; the conviction must be under Section 304 Part II.

Summary

The appellant Kailash and two associates entered the deceased Ramkishan’s house armed with an axe, lathi and musal over a land dispute. During a quarrel the deceased received a single blow; the prosecution alleged it was an incised wound caused by the sharp side of the axe, leading to a conviction under Section 302 IPC. The defence argued that the wound was produced by a blunt instrument, that only one injury was inflicted, and that the appellant acted in self‑defence, seeking acquittal or conviction under Section 304 Part II. The Supreme Court examined the conflicting medical (post‑mortem) and ocular testimonies, held that the evidence did not conclusively show a sharp‑cut wound and that the circumstances indicated a sudden quarrel without pre‑meditation. Consequently, the Court held that the facts supported culpable homicide not amounting to murder under Section 304 Part II, not murder under Section 302, and altered the conviction, imposing seven years’ rigorous imprisonment. The appeal was partly allowed.

Issues considered

Whether the evidence establishes an incised wound caused by a sharp weapon sufficient for conviction under Section 302 IPC.
Whether the injury was caused by a blunt instrument, warranting conviction under Section 304 Part II instead of Section 302.
Whether the appellant’s claim of private/self‑defence (Exception 4 to Section 300 IPC) is tenable.
How to reconcile inconsistent medical and ocular evidence in determining the nature of the weapon.
Whether the prosecution must explain injuries to the accused when a defence of private defence is raised.

Legislation cited

Indian Penal Code, 1860s. 100, s. 102, s. 300, s. 302, s. 304(Part II), s. 323, s. 324, s. 506, s. 96, s. 97, s. 98, s. 99

Subjects

murderculpable homicide not amounting to murderself-defenceprivate defencemedical evidenceweapon naturesingle blowconviction alterationIndian Penal CodeSection 302Section 304 Part II

Judgment

KAI LASH
A
v.
ST ATE OF M.P.

SEPTEMBER 29, 2006
B
[S.B. SINHA AND DAL VEER BHANDARI, JJ.]

Penai Code, 1860

Sections 300, 302 and 304 Part JI-Death caused by single blow-Plea C
of self-defence raised by accused-Quarrel between parties not disputed-
Oral evidence inconsistent with medical evidence-Oral evidence stating
that blow caused by sharp cutting weapon-Medical evidence stating that
blow caused by hard and blunt object-Trial Court and High Court recording
conviction under Section 302 proceeding on the basis that deceased suffered
an incised wound caused by sharp cutting weapon-Two out of three accused D
persons acquitted by trial court and their acquittal not challenged-injury
on body of one of the accused persons not explained by prosecution-Held,
there are sufficient materials on record to establish that deceased suffered
single blow at the hands of accused person on a sudden provocation and
without any pre-meditation-In the facts, conviction altered from Section E
302 to Section 304, Part JI.

Criminal Trial-Appreciation of evidence-Inconsistency between
medical and ocular evidence-Effect-Held, reliance upon one or the other
evidence would depend upon the facts and circumstances of each case and
no hard and fast rule can be laid down therefor. F
Prosecution alleged that accused-appellant along with Band P came to
the house of R armed with axe, lathi and musal and asked R not to construct
wall on their land and to do so on his own land and when R asserted that the
land belonged to him, appellant gave a blow by sharp side of axe on his head
and B gave a blow on his chest by musal. S - PW3, wife of R, rushed to save G
him but she was assaulted by P by inflicting lathi blow on her head and
shoulder. Case was instituted against accused persons under Sections 324
and 506 of Indian Penal Code, 1860 and upon death ofR, offence was altered
to Section 302 IPC. Post mortem examination revealed only one injury to have
793 ll
794 SUPREME COURT RCPORTS 12006] SUPP. 6 S.C.R.

A been suffered by deceased. Trial Court acquitted Band P holding that they
had no role to play in the commission of offence but convicted appellant for
commission of offence punishable under Section 302 IPC principally relying
upon the testimony ofS- PW3. State did not prefer any appeal against acquittal
of B and P. Appellant filed appeal challenging his conviction which was
B dismissed by the High Court. Hence this appeal.
Appellant contended tnat no case was made out against appellant under
Section 302 IPC as no cut injury was found on the body of deceased by doctor
conducting autopsy and also as PW-4 had given statement that B had inflicted
injury on the head of deceased ; and that since deceased suffered only one
C blow on his person in the course of quarrel as a result whereof both groups
suffered injuries, only a case under Section 304, Part H should have been
made out

Respondent contended that infliction of one injury by accused may be
sufficient to hold him guilty for commission of offence under Section 302
DIPC.

Partly allowing the appeal, the Court

HELD :I. I. The medical evidence apparently evidently does not tally with
the ocular evidence. The post mortem examination on the dead body was
E conducted by PW-16. According to the said witness, the wound was caused by
striking with a hard, heavy and blunt object. PW-16 in his evidence
categorically stated that under no circumstances injury could be caused by a
sharp cutting weapon. He was definitely of the opinion that the injury was
caused by a hard and blunt substance. Two doctors, PW-11 and PW-12,
examined the deceased and treated him. According to PW-11, a fracture was
F found in the bone of left temple and such an injury may be caused due to fall
on or colliding with a solid object. PW-12 in his deposition stated that the
deceased suffered a cut injury. (800-E; 798-F-Gl

1.2. The place of injury was on the partial region. In certain situation,
G the wounds produced by a blunt instrument may simulate appearances of an
incised wound. The possibility of the deceased, thus, having been hit by a hard
and blunt weapon cannot be ruled out [800-F; 801-E-Fl

Shankaria v. State of Rajasthan, [1978( 4 SCC 453, referred to.

Medical Jurisprudence and Toxicology by Glaister and Rentoul,
H
KAI LASH v. STATE OF M.P. 795
referred to. A
1.3. A holistic view of the matter in a case of this nature was required
to be taken. Both the Sessions Judge and the High Court proceeded on the
...,.· basis that that the deceased suffered an incised wound. As a natural corollary
the offence is said to have been committed by the Appellant. When, however,
oral evidence is found to be inconsistent with the medical evidence, the question B
of relying upon one or the other would depend upon the facts and circumstances
of each case. No hard and fast rule can be laid down therefor. 1803-E-FI

2. A case in regard to exercise of right of private defence has not been
established. It is true that for bringing the case within Exception 4 to Section
300 of the Indian Penal Code, the Court has to arrive at a conclusion that the c
act was committed : (i) without premeditation ; (ii) in a sudden quarrel; (iii)
without the offender's having taken undue advantage ; or (iv) acted in a cruel
or unusual manner. 1803-D-EI

Pappu v. State of Madhya Pradesh, (2006) 7 Scale 24, Surendra & Anr.
D
v. State of Maharashtra, (2006) 8 Scale 469, Surendra Singh@ Bittu v. State
of Uttaranchal, (2006) 4 Scale 647; Siva Kumar v. State By Inspector of Police,
1200611SCC714, Hafiz v. State of U.P., 12005112 SCC 599, Dea Narain v.
The State of U.P., 119731 3 SCR 57 and Bishna Alias Bhiswadeb Mahato and
Ors. v. State of W.B., 12005112 SCC 657, referred to.
E
3.1. The fact that there had beeli a quarrel between the parties is not in
dispute. Evidently, there was no pre-meditation on the part of the appellant or
his associates. The quarrel must have erupted suddenly. Only one blow was
~
given. It might be with the blunt side of the axe. It may be true that only because
one blow was burled, the same by itself may not be a ground to arrive at a
conclusion that the injury inflicted was not sufficient to cause death but in a F
case of this nature the entire attending circumstances must be taken into
consideration for the purpose of finding out the nature of the actual offence
committed.1801-E-F; 802-A-BI

Virsa Singh v. The State of Punjab, 119581SCR1495, referred to.
G
.• 3.2. The importance of infliction of one injury in the case must be judged
on the touchstone of the following circumstances : (i) Admittedly, there had
been abuses from both sides followed by a quarrel ; (ii) According to the
defence, B had also suffered an injury and an FIR was lodged by him. The
H
796 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A injury on the person of 8 had not been explained by the prosecution. The
injuries on his person might have been simple but the same was required to
be explained keeping in view the fact that the appellant had raised a plea of
self-defence ; (iii) In a case of this nature, where one of the accused had
suffered an injury, the prosecution in all fairness should have brought on ....
record the materials found during investigation of both the cases ; (iv) It is
B not the case of the prosecution that there had been a pre-meditation ; (v) The
fact that 8 and P were not found guilty under Sections 302/34 of IPC goes to
show that they were not involved in the matter; (vi) Although the courts below
relied upon the evidence of S - PW3, injuries on her person had not been
proved All the accused persons have been acquitted of the charge of causing
C an injury on her ; (vii) If, thus, there exists a doubt in view of the deposition
of PW-11 that under no circumstances the injury could have been caused by
a sharp cutting weapon, the appellant must have hit the accused from the blunt
side of the axe. This itself goes a long way to judge as to whether the appellant
had any intention to cause the death of the deceased.
[802-A-B; 804-A, D; F-G; 805-A-q
D
4. There are sufficient materials on record to establish that the
deceased suffered a single blow at the hands of the Appellant on a sudden
provocation and without any pre-meditation. The Appellant cannot be held to
be guilty of commission of an offence under Section 302 of the Indian Penal
E Code but under Section 304, Part II of the Indian Penal Code. The Appellant
is, in the peculiar facts and circumstances of the case, sentenced to undergo
rigorous imprisonment for a period of seven years. (808-8-C; 810-E-Fl
Pulicherla Nagaraju@ Nagaraja Reddy v. State ofA.P., (2006) 8 Scale
133 and Rajinder v. State of Haryana, (2006) 6 SCJ 330, referred to.

F CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 238/
2006.
From the Judgment and Final Order dated 15.7.2004 of the High Court
of Madhya Pradesh, Jabalpur, Gwalior Bench, Gwalior in Criminal Appeal No.
29111989.
G
Uday Umesh Lalit and Jai Prakash Pandey for the Appellant.
Siddhartha Dave and Vibha Datta Makhija for the Respondent.
The Judgment of the Court was delivered by
H S.8. SINHA, J. The Appellant along with one Prakash and Babula! was
KAILASH v. STATE OF M.P. [SINHA, .1.J 797
prosecuted for commission of an offence under Section 302 of the Indian A
Penal Code. A First Information Report (FIR) was lodged by Nathuram (PW-
1). He was the elder brother of the deceased Ramkishan. In the FIR, it was
alleged that on 28.2.1986 at about 7.45 a.m. all the three accused persons
armed with axe, lathi and musal tame to their house. They asked the deceased
Ramkishan not to construct wall on their land and to do so on their own.
Ramkishan asserted that the land belonged to him whereupon the Appellant B
herein is said to have been given a blow by axe on his head. Babula( is said
to have given a blow on the deceased by his musal on his chest. Savitri, wife
ofNathuram (PW-3) allegedly rushed to save him. She allegedly was assaulted
by Prakash by inflicting lathi blow on her head and shoulder.

A case was instituted against the accused persons named in the F.1.R.
c
under Sections 324 and 506 of the Indian Penal Code. Ramkishan was taken
to Gwalior Hospital for further treatment. He died on 2"d March, 1986, whereupon
the offence was altered to one under Section 302 of the Indian Penal Code.

In the post mortem examination only one injury was found to have been D
suffered by the deceased. It was, therefore, opined by the Trial Court that
Prakash and Babula! had no role to play in the commission of the offence.
They were, thus, acquitted. The State did not prefer any appeal thereagainst.

The Appellant's appeal, however, before the High Court has been
dismissed by the impugned judgment. The Appellant is, thus, before us. E
Mr. Uday Umesh Lalit, learned senior counsel appearing on behalf of
the Appellant would contend that no cut injury having been found by the
doctor who conducted the autopsy and furthennore in view of the statement
of PW-4 that Babula! had inflicted the injury on the head of the deceased,
no case is said to have been made out for convicting the Appellant under F
Section 302 of the Indian Penal Code. In any event, having regard to the fact
that the deceased suffered only one blow on his person in the course of a
quarrel as a result whereof both the groups suffered injuries, only a case
under Section 304, Part II should be held to have been made out.

The case of the prosecution was involvement of not only the Appellant
G
herein but also Prakash and Babula!. The learned trial judge opined that there
was hardly any evidence against Prakash. Babula( who is said to have assaulted
the deceased on his chest by a musal, which is a hard and blunt substance
had since been acquitted by the learned Trial Judge as no such injury was
found on the person of the deceased. H
798 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A The Appellant allegedly assaulted the deceased by the sharp side of
the axe. It was so stated by PW-3 Savitri.

PW-I Nathuram and PW-2 Nandkishore were declared hostile. PW-4
Ramsakhe was also declared hostile when he deposed that Babula! had
caused head injury to the deceased by musal.
B
The learned Trial Judge as also the High Court principally relied on the
testimony of PW-3 Savitri. She was stated to have injuries. According to her,
there was hot exchange of words as regards construction of the wall. According
to her, after the assault by axe on the head of the Ramkishan allegedly caused •
by the Appellant, he although fell down, Babula! inflicted a musal blow on
C his chest due to which only he became unconscious. She further stated that
Prakash came from behind and inflicted lathi blows on his back as a result
whereof also he became unconscious. He allegedly started vomiting blood
and bleeding from his head also started. On her intervention as also that of
Ramsakhe, Nandkishore, Nathuram, Prakash is said to have inflicted a lathi
D blow on her head. She also in her cross-examination accepted that she had
not seen whether Prakash gave a lathi blow to the deceased or not.

It, however, appears that Babula! had also suffered an injury. A case
was registered in relation thereto. The injury on the person of the Babula) has
not been explained by the prosecution. The fact that there had been quarrel
E between the parties is accepted. Although the accused persons were charged
for commission of an offence under Section 323 of the Indian Penal Code for
causing injury on Savitri, they were acquitted of the said charge.

Two doctors examined the deceased and treated him. According to Dr.
C.M. Tripathi PW-11, a fracture was found in the bone of left temple of
F Ramkishan as was evident from the X-ray taken for that purpose. According
to him, such an injury may be caused due to fall on or colliding with a solid
object. PW-12 is Dr. H.P. Jain. He, however, in his deposition stated that the
deceased suffered a cut injury. He found the following injuries on the body
of the deceased Ramkishan:
G '"(I) Incised wound: - 3" x I" x 1/2 over the left parietal region of the
scalp.

(2) Bleeding from both the nostrils present and his general condition
was very poor. He was referred to district hospitaL Shivpuri."

H The post mortem examination on the dead body was conducted by Dr.
KAILASH v. STATE OF M.P. [SINHA. J.) 799
B.K. Diwan PW-16. According to the said witness, the wound was caused by A
striking with a hard, heavy and blunt object. In his cross-examination, he
stated:

- ~
"The said wound may occur due to falling on heavy object. It may
cause also due to falling on lying Phawara or heavy stone. The said
internal injury was found by opening the four stitches of 4 c.m. long B :
wound under the same wound. No question arise that the said injury
is cut injury. There was 99% chance of saving the deceased if operation
of the said injury had been conducted on the same day. I can't say
why the operation of the wound not be conducted before that. Any
way this/patient was admitted in our hospital on 1/3/86, and looking C
his serious conditions operation would not have been conducted. It
is written itself in the marg on 5/3/86 that the said patient is referred
to Gwalior Hospital from Shivpuri Hospital. I don't know that the marg
is written in whose hand."

He could not give a definite opinion as to whether the injury was D
crushed injury or stitched injury. He, thus, made a positive statement.

PW- I although attributed overt act on the part of the Appellant and
Babula) but did not attribute any overt act on the part of Prakash. According
to him, Prakash came after the incident took place. He could not, therefore,
say what role Prakash had to play in the incident. E
PW-2 is Nandkishore. He categorically stated that the Appellant had
given one blow from Kulahari from its sharp side on the left skull of Ramkishan
and Babula! gave one musal blow on his chest. He also testified that Prakash
had also assaulted the deceased.
F
The house in which the deceased was residing, admittedly belonged to
PW2. He sold the same to Ramkishan. He also categorically stated that
Prakash did not do anything. At that he was declared hostile. He, however,
admitted that the dispute between the parties had been going on for more
than a week before the construction of the wall took place.
G
It is also interesting to note that, according to Ramkishan, as stated by
·' the prosecution witness that had such objection been taken before actual
construction of the wall had taken place, he might not have done so but
having raised the construction upto a height of four feet it would not be
possible for him to remove the same. PW-2, however, accepted that Babula! H
800 SUPREME COURT REPORTS (2006] SUPP. 6 S.C.R.

A had reached the police station before them. He, according to the said witness,
had been going ahead of them when the deceased was being taken to the
police station.

B
In the First Information Report lodged by Nathuram, it was alleged:

"... Kailash said to Ramkisan that you construct the wall of the room,
which you are constructing, by one hand back. Then Ramkisan replied
that you have nothing to do in that wall then why are you telling for
-
,..

removing. If you had told earlier then I would have removed it but
now it has been constructed. How I shall demolish it ... "

C The learned Trial Judge in his judgment although noticed that Babulal
suffered simple injuries on his person and the prosecution had not explained
the same but did not proceed to consider the legal implication thereof. He also
came to the conclusion that it was the Appellant who inflicted an axe blow
on the head of the deceased. PW-4 although was declared hostile, in his
D examination-in-chief which has not been disputed, stated that prior to the
actual incident, abuses were being hurled by the parties.

The medical evidence apparently evidently does not tally with the
ocular evidence. PW-16 in his evidence, as noticed hereinbefore, categorically
stated that under no circumstances injury could be caused by a sharp cutting
E weapon. He was definitely of the opinion that the injury was caused by a hard
and blunt substance.

It may be true that Dr. H.P. Jain (PW-12) found an incised wound.

The place of injury was on the parital region. In certain situation, the
F wounds produced by a blunt instrument may simulate appearances of an
incised wound. It was so stated in Glaister and Rentou 's Medical
Jurisprudence and Toxicology in the following terms:

"Under certain circumstances, and in certain situations on the body,
wounds produced by a blunt instrument may simulate the appearances
G of an incised wound. These wounds are usually found over bone
which is thinly covered with tissue, in the regions of the head,
forehead, eyebrow, cheek, and lower jaw, among others. When such
a wound exposes hair-bulbs at its edges, it is possible by examining
these carefully to decide whether they have been cut or crushed and
thus establish whether the wound was caused by a sharp or blunt
H instrument. As a rule, especially in the living subject, a wound
KAILASH v. STATE OF M.P. [SINHA, J.] 801
produced by a blunt instrument will disclose some degree of bruising A
and swelling of the edges and the deeper tissues will be less cleanly
severed than when divided by a sharp-cutting instrument."

In Shankaria v. State of Rajasthan, (1978] 4 SCC 453, this Court opined:

"After a careful examination of the statements of the Doctors, the B
learned Judges of the High Court came to the conclusion that the
injuries found on Swaran Singh and Jarnail Singh could be caused
with the Ghota (Article I). The injuries on the victims were located on
the head. The scalp over the head is taut. Even an injury caused with
a blunt weapon on the head, ordinarily produces a gaping wound, the
edges of which if not carefully examined under a magnifying lense, C
can be mistaken for these of an "incised" wound. This was the.
mistake committed by Dr Jaswant Singh and he had courage enough
to admit and correct it in further examination before the High Court.
Thus considered, there was no contradiction between the confessional
statement and the medical testimony in regard to the nature of the D
inflicting weapon. Rather, the medical evidence taken as whole,
including the statement of Dr Jaswant Singh be fore the High Court,
lends valuable support to the confession (Ex. P-39) inasmuch as it is
stated therein that the injuries to the victims were caused with the
Ghota (Article !)."
E
The possibility of the deceased, thus, having been hit by a hard and
blunt weapon cannot be totally ruled out. PW-I I in his statement opined that
such an injury is also possible to be caused when a person falls on a solid
object. The fact that there had been a quarrel between the parties is not in
dispute. The dispute between the parties was over the construction of a wall.
If PW-2 is to be believed, quarrel in regard thereto had been going on for F
about a week. According to the prosecution witnesses, labourers were engaged
to construct the wall. Both the deceased and PW-3 were helping the labourers
in regard thereto. If the con.struction of the wall was being carried out at the
time of or just before the incident and the construction had reached upto a
height of four feet, the same must have been started early in the morning. It G
is only thereafter the accused persons came and protested. Abuses had been
hurled by both sides. Babula!, as noticed hereinbefore, had suffered injury.
The genesis of the occurrence, thus, cannot be said to have been proved. All
prosecution witnesses attributed specific overt acts on Babulal as well Prakash.
Except PW-3 nobody supported the prosecution case in regard to the alleged
overt act on the part of Prakash. The Trial Judge did not also find Babula! H
802 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A to be guilty of commission of offence. Although the courts below relied upon
the evidence of Savitri, injuries on her person had not been proved. All the
accused persons have been acquitted of the charge of causing an injury on
her. Evidently, there was no pre-meditation on the part of the appellant or his
associates. The quarrel must have erupted suddenly. Only one blow was
given. It might be with the blunt side of the axe. It may be true that only
B because one blow was hurled, the same by itself may not be a ground to
arrive at a conclusion that the injury inflicted was not sufficient to cause
death but in a case of this nature the entire attending circumstances must be
taken into consideration for the purpose of finding out the nature of the
actual offence committed.
c The learned counsel for the Respondent has relied upon a decision of
this Court in Virsa Singh v. The State of Punjab. [1958) SCR 1495 wherein
Vivian Bose, J. opined that infliction of one injury by accused may be sufficient
to hold him guil1y for commission of an offence under Section 302 of the
Indian Penal Code stating:
D
"Jn considering whether the intention was to inflict the injury found
to have been inflicted, the enquiry necessarily proceeds on broad
lines as, for example. whether there was an intention to strike at a vital
or a dangerous spot, and whether with sufficient force to cause the
kind of injury found to have been inflicted. It is, of course, not
E necessary to enquire into every last detail as, for instance, whether
the prisoner intended to have the bowels fall out, or whether he
intended to penetrate the liver or the kidneys or the heart. Otherwise,
a man who has no knowledge of anatomy could never be convicted,
for, if he does not know that there is a heart or a kidney or bowels,
F he cannot be said to have intended to injure them. Of course, that is
not the kind of enquiry. It is broad-based and simple and based on
commonsense: the kind of enquiry that "twelve good men and true"
could readily appreciate and understand.

To put it shortly, the prosecution must prove the following facts
G before it can bring a case under Section 300 "thirdly";

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.

H Thirdly, it must be proved that there was an intention to inflict that
KAILA SH v. STATE OF M.P. [SINHA, J.] 803
particular bodily injury, that is to say, that it was not accidental or A
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 B
made up of the three elements set out above is s~fficient to cause
death in the ordinary course of nature. This part of the enquiry is
purely objective and inferential and has nothing to do with the
intention of the offender."

The learned Judge opined that it would not matter if there was an C
intention to cause death or the injury was sufficient to cause death in the
ordinary course of nature. The said observations, however, would be subject
to the objective findings of the statutory pre-requisites; intention to cause the
bodily injury being one of them.

Each case has to be considered on its own facts. It is true that for D
bringing the case within Exception 4 to Section 300 of the Indian Penal Code,
the court has to arrive at a conclusion that the act was committed : (i) without
pre-meditation; (ii) in a sudden quarrel; (iii) without the offender's having
taken undue advantage; or (iv) acted in a cruel or unusual manner,

A holistic view of the matter in a case of this nature, in our. opinion,
E
was required to be taken. The learned Sessions Judge and the High Court
proceeded on the basis that the deceased suffered an incised wound. As a
logical corollary the offence is said to have been committed by the Appellant.
When, however, oral evidence is found to be inconsistent with the medical
evidence, the question of relying upon one or the other would depend upon F
the facts and circumstances of each case. No hard and fast rule can be laid
. down therefor.

A major portion of the story has been discarded by the learned Trial
Judge, i.e., in regard to the part played by Prakash and Babula!. Prosecution
witnesses have given up their story that Prakash had any role to play. It will G
bear repetition to state that Babula! was exonerated on the ground that no
hard and blunt injury was suffered by the deceased on his chest. Even if we
' do not accept the statements of PW-4 that it was Babula! who caused the
head injury with his musal, in view of the statements of other prosecution
witnesses it is possible to arrive at a finding that the said injury was caused H
804 SUPREME COURT REPORTS (2006] SUPP. 6 S.C.R.

A not from the sharp end but from the blunt side of the axe.
The importance of infliction of one injury in this case must be judged
on the touchstone of the following circumstances:

(i) For all intent and purport, the deceased appeared to have
B accepted, as would appear from the evidence of PW-2, that the
wall was being constructed on the land of the Appellant.
(ii) Despite quarrel having been going on between the parties for
about a week, construction of the wall commenced early in the
morning and by the time the accused came to know thereof, wall
C to the height of four feet had already been raised.
(iii) The deceased, if PWs 2 and 3 are to be believed, put forth a
contention that as construction had already been raised, he was
not in a position to demolish the same.
(iv) Admittedly, there had been abuses from both sides followed by
D a quarrel.
(v) Ur.der what circumstances, injuries were caused on Babula( is
not known.
(vi) Despite such grievous injuries having been found on the person
E of the deceased by all the accused, they were not apprehended.
(vii) Babulal was allowed to go ahead of the prosecution witnesses
to police station.
(viii) A First Information Report was lodged by him.
F (ix) According to the defence, Babulal had also suffered injury. The
injury on the person of the Babula! had not been explained. The
injuries on his person might have been simple but the same was
required to be explained keeping in view of the fact that the
Appellant had raised a plea of self-defence.
G (x) In a case of this nature, where one of the accused had suffered
an injury, the prosecution in all fairness should have brought on
records the materials found during investigation of both the
cases.
(XI) It is not the case of the prosecution that there had been a
H premeditation.
KAI LASH v. ST ATE OF M.P. [SINHA, .l.] 805
(xii) Babulal and Prakash, ifthe prosecution case was to be believed, A
also could have been convicted under Section 302/34 of the
Indian Penal Code. The fact that they were not found guilty
under the aforementioned provisions goes to show that they
were not involved in the matter.
(xiii) If; thus, there exists a doubt in view of the deposition of PW- B
11 that under no circumstances the injury could have been
caused by a sharp cutting weapon, the Appellant must have hit
the accused from the blunt side of the axe.

This itself goes a long way to judge as to whether the Appellant had
any intention to cause the death of the deceased. C
Recently in Pappu v. State of Madhya Pradesh, (2006) 7 SCALE 24, a
Division Bench of this Court opined:

" ... A 'sudden fight' implies mutual provocation and blows on each
side. The homicide committed is then clearly not traceable to unilateral D
provocation, nor in such cases could the whole blame be placed on
one side. For if it were so, the Exception more appropriately applicable
would be Exception I. 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 E
other had not aggravated it by his own conduct it would not 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 offender's having taken undue advantage or acted in a F
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 ..."

In Surendra & Anr. v. State of Maharashtra, (2006) 8 SCALE 469,
wherein a plea of self-defence was raised, this Court observed: G
"We are not unmindful of the fact that in all circumstances injuries
on the person of the accused need not be explained but a different
standard would be applied in a case where a specific plea of right of
private defence has been raised. It may be true that in the event H
prosecution discharges its primary burden of proof, the onus would
806 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A shift on the accused but the same would not mean that the burden
can be discharged only by examining defence witnesses.

The learned courts below committed a manifest error of law in
opining that the Appellants had not discharged the initial burden
which is cast on them. Even such a plea need not be specifically
B raised. The Courts may only see as to whether the plea of exercise of
private defence was probable in the facts and circumstances of the
case."

It was further observed:

c "The defence of the Appellants, therefore, could not have been
wished away. In a case of this nature, it was necessary on the part
of the prosecution to explain the injuries on the part of the accused.
,
The investigation of the entire cases and particularly in regard to the ....
fact that there were cross cases, a fair investigation was expected. The
possibility of PW-3 and the deceased being the aggressors cannot be
D ruled out. It would bear repetition to state that they had been bearing
grudge against Appellant No. 1."

[See also Surendra Singh @ Bittu v. State of Uttarancha/, (2006) 4
SCALE 647, Siva K11mar v. State by Inspector of Police, (2006] 1SCC714 and
E Hafiz v. State of U.P., (2005] 12 SCC 599.

In Deo Narain v. The State of U.P., (1973] 3 SCR 57, this Court stated:

"... What the High Court really seems to have missed is the provision
of law embodied in Sectio'I 102 of the IPC. According to that section
F the right of private defence of the body commences as soon as a
reasonable apprehension of danger to the body arises from an attempt
or threat to commit the offence, though the offence may not have
been committed, and such right continues so long as such
apprehension of danger to the body continues. The threat, however,
must reasonably give rise to the present and imminent. and not remote
G or distant danger. This right rests on the general principle that where
a crime is endeavoured to be committed by force, it is lawful to repel
~.,.
that force in self-defence. To say that the appellant could only claim
the right to use force after he had sustained a serious injury by an
aggressive wrongful assault is a complete misunderstanding of the
H law embodied in the above section. The right of private defence is
available for protection against apprehended unlawful aggression and
KAI LASH v. STA TE OF M.P. [SINHA, J.) 807
not for punishing the aggressor for the offence committed by him. It A
is a preventive and not punitive right. The right to _punish for the
commission of offences vests in the State (which has a duty to
maintain law and order) and not in private individuals. If after sustaining
a serious injury there is no apprehension of further danger to the
body then obviously the right of private defence would not be
available. In our view, therefore, as soon as the appellant reasonably B
apprehended danger to his body even from a real threat on the part
of the party of the complainant to assault him for the purpose of
forcibly taking possession of the plots in dispute or of obstructing
their cultivation, he got the right of private defence and to use adequate
force against the wrongful aggressor in exercise of that right..." C
In Bishna Alias Bhiswadeb Mahala and Ors. v. State of WB., [2005) 12
sec 657, it was stated:
"Right of private defence" is not defined. Nothing is an offence in
terms of Section 96 of the Penal Code, if it is done in exercise of the D
right of private defence. Section 97 deals with the subject-matter of
private defence. The plea of right of private defence comprises the
body or property. It, however, extends not only to the person exercising
the right; but to any other person. The right may be exercised in the
case of any offence against the body and in the case of offences of
theft, robbery, mischief or criminal trespass and attempts at such E
offences in relation to property. Sections 96 and 98 confer a right of
private defence against certain offences and acts. Section 99 lays
down the limit therefor. The right conferred upon a person in terms
of Sections 96 to 98 and I00 to I06 is controlled by Section 99. In
terms of Section 99 of the Penal Code, the right of private defence, F
in no case, extends to inflicting of more harm than it is necessary to
inflict for the purpose of defence. Section I 00 provides that the right
of private defence of the body extends under the restrictions mentioned
in the last preceding section to the voluntary causing of death or of
any other harm to the assailant if the offence which occasions the
exercise of the right be of any of the descriptions enumerated therein, G
namely, "First - Such an assault, as may reasonably cause the
apprehension that death will otherwise be the consequence of such
assault; Secondly - Such an assault as may reasonably cause the
apprehension that grievous hurt will otherwise be the consequence of
such assault". To claim a right of private defence extending to voluntary H
808 SUPREME COURT REPORTS (2006] SUPP. 6 S.C.R.

A causing of death, the accused must show that there were circumstances
giving rise to reasonable grounds for apprehending that either death
or grievous hurt would be caused to him. The burden in this behalf
is on the accused."

The case of Appellant does not satisfy the tests laid down therein.
B
Although a case in regard to exercise of right of private defence has not
been established, we are of the opinion that there are sufficient materials on
record to establish that the deceased suffered a single blow at the hands of
the Appellant on a sudden provocation and without any premeditation.

C We would be failing in our duty, if we do not take a couple of recent
decisions of this Court.

In Pulicherla Nagaraju @ Nagaraja Reddy v. State of A.P.. (2006) 8
SCALE 133, a Division Bench of this Court opined that only because a
solitary blow was given on a vital part of the body, the same by itself would
D not necessarily lead to the conclusion that the accused was guilty under
Section 304 Part II of the Indian Penal Code and not under Section 302
thereof. Therein, the court opined:

"Therefore, the court should proceed to decide the pivotal question
of intention, with care and caution, as that will decide whether the
E case falls under Section 302 or 304 Part I or 304 Part JI. Many petty
or insignificant matters - plucking of a fruit, straying of a 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
F be totally absent in such cases. There may be no intention. There may
be no pre-meditation. 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 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
G 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
H the weapon used; (ii) whether the weapon was carried by the accused
KAILASH v. STATE OF M.P. [SINHA, J.] 809
or was picked up from the spot; (iii) whether the blow is aimed at a A
vital part of the body; (iv) the amount offorce 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) B
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 C
circumstances with reference to individual cases which may throw
light on the question of intention. Be that as it may."

However, in Rajinder v. State of Harvana, (2006) 6 SCJ 330, another
Division Bench of this Court upon analyzing. the provisions of Section 300
of the Indian Penal Code and referring to the celebrated case of Virsa Singh D
v. State of Punjab, AIR (1958) SC 465 stated the law thus:

"These observations of Vivian Bose, J. have become locus
c/assicus. The test laid down by Virsa Singhs, case (supra) for the
applicability of clause "Thirdly" is now ingrained in our legal system
and has become part of the rule of law. Under clause thirdly of Section E
300 IPC, culpable homicide is murder, if both the following conditions
are satisfied: i.e. (a) that the act which causes death is done with the
intention of causing death or is done with the intention of causing a
bodily injury; and (b) that the injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death. It must be proved that F
there was an intention to inflict that particular bodily injury which, in
the ordinary course of nature, was sufficient to cause death, viz., that
the injury found to be present was the injury that was intended to be
inflicted.

Thus, according to the rule laid down in Virsa Singh 's case, even G
if the intention of accused was limited to the infliction of a bodily
injury sufficient to cause death in the ordinary course of nature, and
did not extend to the intention of causing death, the offence would
be murder. Illustration (c) appended to Section 300 clearly brings out
this point. •
H
810 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A Clause (c) of Section 299 and clause (4) of Section 300 both
require knowledge of the probability of the act causing death. It is not
necessary for the purpose of this case to dilate much on the distinction
between these corresponding clauses. It will be sufficient to say that
clause (4) of Section 300 would be applicable where the knowledge of
the offender as to the probability of death of a person or persons in
B general as distinguished from a particular person or persons - being
caused from his imminently dangerous act, approximates to a practical
certainty. Such knowledge on the part of the offender must be of the
highest degree of probability, the act having been committed by the
offender without any excuse for incurring the risk of causing death or
c such injury as aforesaid.

The above are only broad guidelines and not cast iron imperatives.
In most cases, their observance will facilitate the task of the Court.
But sometimes the facts are so intertwined and the second and the
third stages so telescoped into each other that it may not be convenient
D to give a separate treatment to the matters involved in the second and
third stages."

In that case, even applying the said principles, the conviction under
Section 304 Part II of the Indian Penal Code was only maintained.

E Applying the aforementioned principles of law, we are of the opinion
that the Appellant cannot be held to be guilty of commission of an offence
under Section 302 of the Indian Penal Code but under Section 304, Part II of
the Indian Penal Code. The Appellant is, in the peculiar facts and
circumstances of the case, sentenced to undergo rigorous imprisonment for
F a period of seven years. The appeal is allowed to the aforementioned extent.

A.K.T. Appeal partly allowed.