STATE OF RAJASTHANversusLEELA RAM @ LEELA DHAR

                        [2018] 13 S.C.R. 621                            621


                     STATE OF RAJASTHAN                                 A
                                 v.
                 LEELA RAM @ LEELA DHAR
                (Criminal Appeal No. 1441 of 2013)
                  DECEMBER 13, 2018                                     B
        [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
                                                                        C
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       D
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
                                                                        E
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    F
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                                    G
      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
                                                                        H
                                621
622            SUPREME COURT REPORTS                     [2018] 13 S.C.R.


A     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
B
      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
C     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
D     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-
E     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
F     (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
G     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
H     Court was manifestly perverse and was totally contrary to the
      evidence on the record. The conviction of the respondent by the
   STATE OF RAJASTHAN v. LEELA RAM @ LEELA DHAR                             623


trial court under section 302 of the Penal Code is restored.                A
[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                 B
      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
                                                                            C
                        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           D
[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.                                                           E
      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,         F
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
                                                                            G
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.         H
624            SUPREME COURT REPORTS                        [2018] 13 S.C.R.


A            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
B
      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
C     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.
D     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
E
            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.
F            (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
G     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
H     stained axe at the behest of the respondent. The axe was recovered
   STATE OF RAJASTHAN v. LEELA RAM @ LEELA DHAR                              625
        [DR. DHANANJAYA Y CHANDRACHUD, J.]

vide seizure memo Exh. P-18. The Trial Court convicted Leela Ram for         A
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      B
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,   C
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                       D
           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
                                                                             E
            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.
                                                                             F
      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     G
          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
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626             SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A           (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
B     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
C     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
D     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
E
      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.
F            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
G     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.
H
      STATE OF RAJASTHAN v. LEELA RAM @ LEELA DHAR                                 627
           [DR. DHANANJAYA Y CHANDRACHUD, J.]

PW-4, is an injured eye-witness. His presence is hence established in              A
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
                                                                                   B
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       C
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:                                     D
          “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
                                                                                   E
          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           F
          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
                                                                                   G
          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                                                               H
628                SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A            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
B               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
C               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
D               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…
E
                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
F               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
G               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
H     2
          (2002) 8 SCC 421
      STATE OF RAJASTHAN v. LEELA RAM @ LEELA DHAR                               629
           [DR. DHANANJAYA Y CHANDRACHUD, J.]

          Chand, the deceased, cannot be said to be inflicted as a matter of     A
          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
                                                                                 B
          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             C
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      D
          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
                                                                                 E
          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,        F
          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
                                                                                 G
          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                                                             H
630                SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A               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
B
                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
C               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
D
                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
E               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
F               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,
G
                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

H     4
          (2006) 11 SCC 444
      STATE OF RAJASTHAN v. LEELA RAM @ LEELA DHAR                                   631
           [DR. DHANANJAYA Y CHANDRACHUD, J.]

          avoid the penalty for murder by attempting to put forth a case that        A
          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
                                                                                     B
          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         C
          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
                                                                                     D
          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            E
          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              F
          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
                                                                                     G
          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                                                                 H
632                SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A           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
B               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
C               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
D               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
E               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
F               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
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                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
H         (2013) 14 SCC 246
   STATE OF RAJASTHAN v. LEELA RAM @ LEELA DHAR                               633
        [DR. DHANANJAYA Y CHANDRACHUD, J.]

      the culpability of the appellant-accused by assuming that he had        A
      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                 B
      “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      C
      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      D
      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           E
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       F
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      G
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 :
                                                                              H
634              SUPREME COURT REPORTS                         [2018] 13 S.C.R.


A            “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.”
B            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.
C
            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
D     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.
E            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
F     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.
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