THE STATE OF RAJASTHANversusKANHAIYA LAL

                          [2019] 5 S.C.R. 569                            569


                  THE STATE OF RAJASTHAN                                 A
                                  v.
                         KANHAIYA LAL
                 (Criminal Appeal No. 645 of 2019)
                          APRIL 10, 2019                                 B
        [L. NAGESWARA RAO AND M. R. SHAH, JJ.]
       Penal Code, 1860: ss. 302 and 304 Part I – Murder – Victim
attacked by accused on his head by an axe, succumbed to his
injuries – Conviction and sentence of the accused for the offence
                                                                         C
punishable u/s. 302 by the trial court, however, altered by the High
Court to s. 304 Part I on the ground that the victim died of a single
injury caused on his head by the accused by an axe; that there was
no repeated injury; and that the victim and the accused had an
altercation and there was no intention for the accused – Interference
with – Held: Reasoning given by the High Court while converting          D
the conviction from s. 302 to s. 304 Part I, manifestly perverse and
totally contrary to the evidence on record – Doctor who conducted
post mortem stated that the said head injury was sufficient to cause
death in the ordinary course of nature – Single blow on the vital
part of the body like head and that too by deadly weapon-axe and
                                                                         E
used with force proved to be fatal, and was sufficient to hold that it
was a case of murder u/s. 300 – Merely because the altercation
might have taken place much earlier and not immediately prior to
and/or at the time of commission of the offence, it cannot be inferred
that there was no intention on the part of the accused to cause
death of the deceased – Thus, the High Court committed erred in          F
altering the conviction from s. 302 to s. 304 Part I – Judgment of
the High Court set aside and that of the trial court restored.
      Allowing the appeal, the Court
      HELD: 1.1 The main reason given by the High Court while
converting the conviction from Section 302 of the IPC to Section         G
304 Part I of the IPC is that it was a case of a single blow, the
deceased had died because of single injury caused on his head by
the accused by an axe. The said can hardly be a ground to convert
the conviction from Section 302 IPC to Section 304 Part I IPC.
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                                 569
570            SUPREME COURT REPORTS                      [2019] 5 S.C.R.


A     Applying the law laid down by this Court in the said decisions to
      the facts of the case on hand and the reasoning given by the High
      Court while converting the conviction from section 302 to Section
      304 Part I, the reasons stated in the impugned Judgment and
      Order, the judgment of the High Court is manifestly perverse
      and is totally contrary to the evidence on record. As per PW15, a
B
      fracture of 4 cm length was found in the parietal and occipital. He
      also stated that the said head injury was sufficient to cause death
      in the ordinary course of nature. Thus, the accused used a deadly
      weapon-axe on the vital part of the body-head, which proved to
      be fatal. [Para 6.2, 7] [575-E; 576-G-H; 577-B-C]
C           Arun Raj v. Union of India (2010) 6 SCC 457 : [2010]
            7 SCR 1; Ashokkumar Magabhai Vankar v. State of
            Gujarat (2011) 10 SCC 604 ; State of Rajasthan v. Leela
            Ram alias Leela Dhar 2019 (1) SCALE 544 – relied
            on.
D           Vijay Ramkrishan Gaikwad v. State of Maharashtra
            (2012) 11 SCC 592 – referred to.
             1.2 Another reason given by the High Court is that there
      was no repeated injury, can hardly be a ground to convert the
      conviction from section 302 to section 304 Part I IPC. A single
E     blow on the vital part of the body like head and that too by deadly
      weapon-axe and used with force which proved to be fatal, was
      sufficient to hold that it was a case of murder within the definition
      of Section 300 IPC. [Para 8][577-C-D]
             1.3 Another reason given by the High Court is that in the
F     morning on the day of the incident, there was an altercation
      between the accused and the deceased and so it can be said that
      in the circumstances of the case there was no intention to cause
      death on the part of the accused but the fact by which the death
      was caused appears to hold down that the intention of causing
G     such bodily injury as was likely to cause death. The said is contrary
      to the evidence on record. It is not a case on behalf of the accused
      that there was an altercation between the accused and the
      deceased at the time of commission of the offence. The altercation,
      if any, had taken place, in the morning and much earlier than the
      time of incident. Merely because the altercation might have taken
H     place much earlier and not immediately prior to and/or at the
       THE STATE OF RAJASTHAN v. KANHAIYA LAL                             571


time of commission of the offence, it cannot be inferred that there       A
was no intention on the part of the accused to cause death of the
deceased. Thus, the judgment of the High Court is manifestly
perverse and is totally contrary to the evidence on record. The
High Court committed a grave error in altering the conviction
from Section 302 IPC to Section 304 Part I IPC and therefore
                                                                          B
the interference of this Court is warranted to obviate a complete
failure of interest of justice. The impugned judgment of the High
Court is set aside and that of the trial court convicting the accused
under Section 302 IPC is restored. [Para 8.1, 9][577-E-H;
578-A-C]
                        Case Law Reference                                C
(2012) 11 SCC 592                referred to             Para 4.4
(2011) 10 SCC 604               relied on                Para 7
[2010] 7 SCR 1                  relied on                Para 7
2019 (1) SCALE 544              relied on                Para 7           D
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 645 of 2019
       From the Judgment and Order dated 23.05.2014 of the High Court
of Judicature for Rajasthan, at Jodhpur in D.B. Criminal Appeal No. 303
                                                                          E
of 2009.
     Ms. Jyoti Sharma, Ms. Prachi Agarwal, Jayant Bhatia and
Ms. Ruchi Kohli, Advs. for the Appellant.
     Rishabh Sancheti, Ms. Padma Priya, Anchit Bhandari and K. Paari
Vendhan, Advs. for the Respondent.                                        F
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
      1. Leave granted.
      2. This appeal arises from the Judgement and Order of a             G
Division Bench of the High Court of Judicature for Rajasthan
dated 23.05.2014 passed in Criminal Appeal No.303 of 2009. The High
Court, while allowing the appeal filed by the respondent, convicted
him under Section 304 Part I of the Indian Penal Code,instead of
Section 302 of the IPC. The High Court sentenced the respondent
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572            SUPREME COURT REPORTS                        [2019] 5 S.C.R.


A     to undergo 8 years RI and to pay a fine of Rs.1000/- and in
      default of payment of fine, to suffer one month simple imprisonment.
      The State preferred this appeal against the said decision.
            3. A First Information Report was lodged by one Dalip
      Kumar at Police Station Nimbaheda being FIR No.32/2008. It was
B     alleged that on 26.01.2008, when PW-5 – Ms. Kailashi was
      returning from the farm, in her presence, Kanhaiya Lal attacked
      Raju (deceased) on his head by an axe. As per PW-5, Raju fell
      down and, on her cries, other persons reached the spot. The
      accused ran away. That Raju succumbed to the injuries. After
      concluding the investigation, the Investigating Officer filed the
C     charge-sheet against the accused for the offence punishable
      under Section 302 of the IPC. That the accused pleaded not
      guilty and therefore he came to be tried by the learned Sessions
      Court for the offence punishable under Section 302 of the IPC.
      That the prosecution examined as many as 17 witnesses
D     including PW1 Dr. K. Asif, who issued the Injury Report (Exhibit
      P1); PW5 Ms. Kailashi; PW15 Dr. Anees Ahmed, who
      performedthe Post-Mortem Report of the deceased. Through the
      witnesses who were examined, the prosecution brought on
      record the documentary evidence including the Injury Report (Exhibit
      P1) as well as the Post-Mortem Report. That thereafter, the
E     statement of accused under Section 313 of the CrPC was recorded,
      in which accused       stated    that   he     has   been    falsely
      implicated. No evidence/witness was produced by the accused in
      defence. That thereafter, on appreciation of evidence, the
      learned Sessions Court held the accused guilty for the offence
F     punishable under Section 302 of the IPC and sentenced him to
      undergo life imprisonment with fine of Rs.1000/- and in default to
      pay the fine, to undergo further one month SI.
            3.1 Feeling aggrieved and dissatisfied with the Judgment and
      Order of conviction and sentence passed by the learned
G     Sessions Court, the respondent-original accused preferred Appeal before
      the High Court being Criminal Appeal No.303 of 2009. By the
      impugned Judgment and Order, the High Court has partly allowed
      the appeal preferred by the accused and has convicted the accused
      under Section 304 Part I of the IPC instead of Section 302
      of the IPC. Hence, the present appeal by the Stateagainst the
H
       THE STATE OF RAJASTHAN v. KANHAIYA LAL                             573
                    [M. R. SHAH, J.]

impugned Judgment and Order passed by the High Court, converting          A
the conviction of the accused to Section 304 Part I of the IPC in
place of conviction under Section 302 of the IPC.
       4. Learned counsel appearing on behalf of the appellant- the
State of Rajasthan has vehemently submitted that in the facts
and circumstances of the case, the High Court has materially erred in     B
altering the conviction of the accused from Section 302 of the IPC to
Section 304 Part I of the IPC.
       4.1 It is vehemently submitted by the learned Counsel
appearing on behalf of the appellant-State that the main reason
given by the High Court while converting the conviction from              C
Section 302 of the IPC to Section 304 Part I is that the deceased
died because of a single injury caused on his head. It is
submitted that however the High Court has not, at all,
considered the fact that the accused gave the blow by an axe, a
deadly weapon and that too on the vital part of the body, i.e. head.
It is submitted that as per the medical evidence, the head injury         D
was sufficient to cause death in ordinary course of nature. It is
submitted that, therefore, the High Court is not justified inconverting
the conviction from Section 302 of the IPC to Section 304 Part I of
the IPC.
       4.2 It is further submitted by learned Counsel appearing on        E
behalf of the appellant-State that another reason given by the High
Court is that there was an altercation between the accused and the
deceased and so it can be said that in the circumstances of the
case there was no intention to cause death on the part of the
accused-appellant. It is submitted that however the High Court            F
has failed to consider and appreciate/reappreciate the fact that at
the time when the incident had taken place, there was no
altercation at all and the altercation was before few hours and not
at the time when the incident had taken place.
      4.3 Learned Counsel appearing on behalf of the appellant-           G
State has submitted that in the facts and circumstances of the case
and the injuries sustained by the deceased, it was a clear case of
murder within the definition of Section 300 of the IPC and as such the
learned Sessions Court rightly convicted the accused for the offence
under Section 302 of the IPC. It is submitted by the learned
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574            SUPREME COURT REPORTS                        [2019] 5 S.C.R.


A     Counsel appearing on behalf of the appellant-State that the Judgment
      of the High Court is manifestly perverse and istotally contrary to the
      evidence on record and therefore the interference of this Court is
      warranted.
             4.4 Making the above submissions and relying upon the
B     decisions of this Court in the case of Arun Raj v. Union of India
      (2010) 6 SCC 457; Ashokkumar Magabhai Vankar v. State
      of Gujarat (2011) 10 SCC 604; Vijay Ramkrishan Gaikwad v.
      State of Maharashtra (2012) 11 SCC 592, and a recent decision
      of this Court in the case of State of Rajasthan v. Leela Ram
      alias Leela Dhar dated 13.12.2018 in Criminal Appeal No.1441 of
C     2013, it is prayed to allow the present appeal and set aside the
      impugned Judgment and Order passed by the High Court and to restore
      the Judgment and Order of conviction and sentence passed by the
      learned Sessions Court.
             5. Learned Counsel appearing on behalf of the
D     respondent–original accused, while opposing the present appeal, has
      vehemently submitted that while converting the conviction of the
      accused from Section 302 of the IPC to Section 304 Part I of the
      IPC, the High Court has given cogent reasons and has
      considered the relevant circumstances and thereafter has come to
E     the conclusion that the intention of the accused cannot be saidto be to
      cause death of the deceased. It is submitted that the High Court
      has considered the relevant circumstances and thereafter has
      converted the conviction from Section 302 of the IPC to Section
      304 Part I of the IPC and therefore the same is not required to be
      interfered with by this Court.
F
            6. Heard the learned        Advocates     appearing    for   the
      respective parties at length.
            6.1 We have considered in detail the Judgment and Order
      passed by learned Sessions Court as well as the impugned
G     Judgment and Order passed by the High Court. The learned
      Sessions Court convicted the accused for the offence under
      Section 302 of the IPC. However, in an appeal preferred by the
      accused, the High Court has converted the conviction from
      Section 302 of the IPC to Section 304 Part I of the IPC. While

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        THE STATE OF RAJASTHAN v. KANHAIYA LAL                               575
                     [M. R. SHAH, J.]

doing so, the High Court has assigned the following reasons in               A
paragraph 15:
      “15. In the circumstances of the case, it is proved
      beyond doubt that Rajmal had died because of
      single injury caused on his head by accused-
      appellant Kanhaiya Lal by an axe. It is also an                        B
      admitted fact that there was no repeated injury and
      further more, it is also on record that in the
      morning of the day of the incident, there was
      analtercation between the accused and the deceased
      and so it can be said that in the circumstances of the
      case, that there was no intention to cause death on the                C
      part of the accused-appellant but the act by which the
      death was caused appears to have done with the
      intention of causing such bodily injury as was likely to
      cause death and so his conviction deserves to be
      altered from Section 302 of Indian Penal Code to                       D
      Section 304 Part I of Indian Penal Code.”
      6.2 Now so far as the main reason given by the High Court
while converting the conviction from Section 302 of the IPC to
Section 304 Part I of the IPC i.e. it was a case of a single blow
is concerned, it is required to be noted that the deceased had died          E
because of single injury caused on his head by the accused by an axe.
The aforesaid can hardly be a ground to convert the conviction
from Section 302 of the IPC to Section 304 Part I of the IPC.
       6.3 In the case of Arun Raj (Supra) this Court observed and
held that there is no fixed rule that whenever a single blow is inflicted,   F
Section 302 would not be attracted. It is observed and held by
this Court in the aforesaid decision that nature of weapon used
and vital part of the body where blow was struck, prove beyond
reasonable doubt the intention of the accused tocause death of
deceased. It is further observed and held by this Court that once
these ingredients are proved, it is irrelevant whether there was             G
a single blow struck or multiple blows.
      6.4 In the case of Ashokkumar Magabhai Vankar (Supra),
the death was caused by single blow on head of the deceased with

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576            SUPREME COURT REPORTS                        [2019] 5 S.C.R.


A     a wooden pestle. It was found that the accused used pestle with
      such force that head of the deceased was broken into pieces. This Court
      considered whether the case would fall under Section 302 or
      Exception 4 of Section 300 of the IPC. It is held by this Court that
      the injury sustained by deceased, not only exhibits intention of
      accused in causing death of victim, but also knowledge of
B
      accused in that regard. It is further observed by this Court that such
      attack could be none other than for causing death of victim. It
      is observed that any reasonable person, with any stretch of
      imagination can come to conclusion that such injury on such a
      vital part of the body, with such a weapon, would cause death.
C            6.5 A similar view is taken by this Court in the recent
      decision in the case of Leela Ram alias Leela Dhar (Supra) and
      after considering catena of decisions of this Court on the issue onhand
      i.e. in case of a single blow, whether a case falls under section 302
      or section 304 Part I or section 304 Part II, this Court reversed the
D     judgment of the High Court (in that case also the judgment
      impugned was from the Rajasthan High Court) and convicted
      the accused for the offence under section 302 of the IPC. In the
      same decision, this Court also considered Exception 4 of Section 300
      of the IPC and observed in paragraph 21 as under :
E           “21. 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 premeditation; (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
F           not have taken undue advantage or acted in a cruel or
            unusual manner. “
            7. Applying the law laid down by this Court in the
      aforesaid decisions to the facts of the case on hand and the
      reasoning given by the High Court while converting the conviction from
G     section 302 to Section 304 Part I, the reasons stated in paragraph
      15 of the impugned Judgement and Order, we are firmly of
      the view that the judgment of the High Court is manifestly
      perverse and is totally contrary to the evidence onrecord. As

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       THE STATE OF RAJASTHAN v. KANHAIYA LAL                           577
                    [M. R. SHAH, J.]

per the deposition of PW1 Dr. K Asif, the deceased sustained            A
following injuries :
      “1.Incised wound 7 cm x 0.5 cm skin deep and bone
      visible on the middle part of the head.
      2. abrasion 1 cm x 0.5 cm on the middle portion of
      right leg.”                                                       B

       As per PW15 Dr. Anees Ahmed, a fracture of 4 cm length
was found in the parietal and occipital. He also stated that the said
head injury was sufficient to cause death in the ordinary course of
nature. Thus, the accused used a deadly weapon-axe on the vital
part of the body-head, which proved to be fatal.                        C

       8. Another reason given by the High Court is that there was
no repeated injury. Aforesaid can hardly be a ground to
convert the conviction from section 302 to section 304 Part I of
the IPC. A single blow on the vital part of the body like head and
that too by deadly weapon-axe and used with force which proved          D
to be fatal, was sufficient to hold that it was a case of murder
within the definition of Section 300 of the IPC.
       8.1 Another reason given by the High Court is that in the
morning on the day of the incident, there was an altercation
between the accused and the deceased and so it can be said              E
thatin the circumstances of the case there was no intention to
cause death on the part of the accused but the fact by which the
death was caused appears to hold down that the intention of
causing such bodily injury as was likely to cause death. The
aforesaid is contrary to the evidence on record. It is required to be   F
noted that it is not a case on behalf of the accused that there
was an altercation between the accused and the deceased at the
time of commission of the offence. The altercation, if any, had
taken place, in the morning and much earlier than the time of
incident. Merely because the altercation might have taken place
much earlier and not immediately prior to and/or at the time            G
of commission of the offence, it cannot be inferred that there was no
intention on the part of the accused to cause death of the
deceased. Therefore, on the aforesaid ground, the High Court has
committed a grave error in converting/altering the conviction
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578                SUPREME COURT REPORTS                     [2019] 5 S.C.R.


A     from Section 302 of the IPC to Section 304 Part I of the IPC.
      Thus, we are of the view that the judgement of the High Court
      is manifestly perverse and is totally contrary to the evidence
      on record. The High Court has committed a grave error in altering
      the conviction from Section 302 of the IPC to section 304 Part I ofthe
      IPC and therefore the interference of this Court is warranted to
B
      obviate a complete failure of interest of justice.
            9. In view of the above and for the reasons stated above, we
      allow this appeal, Set aside the impugned Judgement of the High
      Court and restore the judgment of the Trial Court convicting the accused
      under Section 302 of the IPC. The respondent- accused is
C     sentenced to suffer imprisonment for life as per the Judgement of
      the learned Trial Court. If the accused is already released after
      undergoing the sentence as per the impugned Judgment and
      Order passed by the High Court, the respondent- accused shall
      surrender forthwith to serve his sentence.
D           10. A copy of this order shall be forwarded by the Registry
      to the Chief Judicial Magistrate of the area concerned to seek
      compliance.

      Nidhi Jain                                                 Appeal allowed.
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