Babloo vs State Of U.P.
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Allahabad High Court

Babloo vs State Of U.P. on 9 January, 2025

Bench: Saumitra Dayal Singh, Gautam Chowdhary

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


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Neutral Citation No. - 2025:AHC:5056-DB
 
Court No. - 45
 

 
Case :- CRIMINAL APPEAL No. - 1308 of 2020
 

 
Appellant :- Babloo
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Bishram Tiwari,Preet Pal Singh Rathore,Rajeev Kumar Singh Parmar,Ritesh Singh,Shamsuddin Ahmad,Suresh Singh
 
Counsel for Respondent :- G.A.,Intekhab Alam Khan
 

 
Hon'ble Saumitra Dayal Singh,J.
 

Hon'ble Dr. Gautam Chowdhary,J.

1. Heard Sri Ritesh Singh along-with Sri R.N. Nigam, learned counsel for the appellant; Sri Vikas Goswami, Sri L.D. Rajbhar and Sri R.K. Srivastava, learned AGAs for the State, and Sri Intekhab Alam Khan, learned counsel for the informant.

2. Present criminal appeal arises from the judgement and order dated 11.02.2016, passed by Additional Sessions Judge, Court No.1, Badaun in Sessions Trial No.910 of 2013, (State versus Babloo and others), arising out of Case Crime No.462 of 2013, under Section 302/34, 307, 504 IPC, Police Station Ushait, District Basaun, whereby, the appellant has been convicted for the offence under Section 302 IPC and sentenced for life imprisonment with fine of Rs.25,000/- along-with default clause.

3. At the same time, it may be noted here itself that in the connected Sessions Trial No.912 of 2013, (State versus Babloo), arising from the same occurrence, the appellant has been acquitted under Section 25 of the Arms Act.

4. Again, the during trial and against the order of conviction, the appellant remained confined for nine years and eighteen days. Together with remission, he remained confined for eleven years and twenty four days. It is a fact, later the appellant was enlarged on bail by this Court.

5. According to the prosecution story, on 31.08.2013 the deceased was sitting outside his house (at some distance), when the appellant along-with Ramkishan, Greesh and Hosiyar were consuming liquor. All the accused persons were inebriated. At around 06:00 PM, they started using abusive / offensive language to which the deceased Arab Singh objected. A verbal quarrel erupted between the parties. At this, the informant Digamber Singh who is brother of the deceased along-with his father Badan Singh reached the place of occurrence and saw the present appellant drawing his firearm and shoot at the deceased. All accused are described to have escaped from the place of occurrence. The deceased was taken to hospital where he was declared brought dead. Later, firearm recovery is stated to have been made on the pointing out of appellant. It has been described as the weapon of assault, by the prosecution.

6. The above occurrence was reported to the police by means of First Information Report lodged on 31.08.2013 at about 06:00 PM by PW-1 Digamber Singh. Panchayatnama was prepared on 01.09.2013. Postmortem was conducted on the body of deceased and report was prepared on 01.09.2013 at about 01:40 PM. The postmortem corroborates firearm injury of 06 cm x 03 cm in the neck region. Another abrasion injury 03 cm x 01 cm was noted. Both injuries have been described by PW-3 Dr Amit Kumar and opined that such injuries were caused by firearm.

7. During investigation all other other formalities were completed. Report of the FSL was also obtained with respect to the recovered firearm. However, that report is inconclusive. Charge sheet was submitted on 22.11.2013 against all the accused persons. The appellant and other co-accused persons were put to trial.

8. At the trial, prosecution relied on ocular evidence of PW-1 Digamber Singh and PW-2 Badan Singh. Both witnesses supported the FIR narration of the occurrence. However, it is relevant to note that during examination-in-chief, PW-1 Digamber Singh who is brother of deceased deposed as below :-

"?? ???? ?? ???? ????? ? ????? ?? ?? ????? ?? ??? ????? ???? ??? ???? ???? ??? ????? ???? ??? ???"

9. The said witness further deposed as below:-

"???? ?? ??? ??? ????????? ?? ????-???? ???? ???? ?? ????? ?? ???? ?? ????? ?? ????????? ?? ???? ???? ???? ???? ??? ??? ?? ???? ??? ???? ??? ?? ????-???? ???? ???? ??? ?? ???? ?? ????? ?? ??? ?? ??? ??? ???? ?? ????-???? ???? ???"

10. PW-2 Badan Singh has deposed as below :-

"???? ??????????? ?? ????? ?? ??? ?? ???? ?? ???? ???, ?? ??????? ????? ?? ???? ????? ??? ???? ?? ??? ?? ????? ?? ???? ?? ???? ??? ??? ???? ???? ????? ?? ??? ??? ????"

11. No other fact witness was examined.

12. PW3-Dr Amit Kumar has been examined and he proved the postmortem report. He also proved the situs of the injuries and their nature. In that, he further noted that the entry wound was inverted on the margins and there was blackening and tattooing. The cause of death was described as shock and excessive bleeding, caused by firearm injury suffered by the deceased.

13. In that light, it is worthwhile to note that according to PW-1, the deceased had been shot from a distance about 3 to 4 steps. At the same time, according to PW-2 the deceased was standing 3 to 4 steps away on an elevated ground (chabutra) and that he had been shot at by the appellant from that distance.

14. During cross examination, no inconsistency emerged in the essential prosecution story that the deceased had been shot at by the appellant. Only single firearm injury was suffered by the deceased. No other injury of any description was noted or set up or proved by the prosecution.

15. As to the motive, the prosecution tried to rely on an earlier occurrence wherein the fair price shop licence of the deceased was described to have been cancelled and allotted to the appellant. Be that as it may, that motive was also not proved inasmuch as in the first place the motive may have arisen if the appellant had succeeded to gain the licence earlier granted to the deceased. Even there, it was shown that fair price shop licence of the deceased though cancelled was allotted to a third party unrelated to the appellant. Thus it could not be established that that fair price shop licence was cancelled and allotted to the appellant or his relatives.

16. It is in such facts and circumstances that the learned court below has found the appellant guilty of the occurrence alleged. It has acquitted the other accused persons. As to conviction, the learned court below has found the appellant guilty of offence under Section 302 IPC. It is in respect to that, we have noted that appellant has remained confined for almost eleven years (in all).

17. Submission of learned counsel for the appellant is, even if the occurrence is believed to be true that the appellant had shot the deceased causing his death, the case may not involve ingredients of offence under Section 302 IPC. At most, the ingredients proven before the learned court below would remain confined to Section 304 IPC. He has placed reliance on Ruli Ram and another versus State of Haryana, AIR 2002 SC 3360; Rampal Singh versus State of U.P., 2012 (8) SCC 289 and a recent decision of the Supreme Court in Anbazhagan versus The State represented by the Inspector of Police, AIR Online 2023 SC 588 and also a recent decision in Devendra Shukla @ Mantu and another versus State of U.P., Criminal Appeal No.689 of 2019, (Neutral Citation No.2024:AHC:199464-DB) passed by a coordinate Bench of this Court to which one of us (Dr. Gautam Chowdhary,J.) was a member.

18. On the other hand, learned AGAs would contend that this is a pre-meditated murder. Parties had a quarrel before. Similar occurrence had taken place, wherein, the assailant party had been resisted while they were causing public nuisance at the place just outside the house of the deceased. For reason of that humiliation suffered, the appellant revisited the same spot and caused same public nuisance involving consumption of liquor and engaging in a needless unprovoked quarrel with the deceased. Using the quarrel as a ruse, the appellant opened fire at the deceased with a lethal weapon and caused fetal injury on vital and sensitive part i.e. the neck. Therefore, not only the appellant had knowledge that the injury being caused by him would cause death or may cause death but that it was clearly intended to cause such result. Therefore, intention to cause such bodily injury which in usual course of nature is sufficient to cause death is there. Referring to Anbazhagan (supra), it has been submitted, a clear distinction on fact exists in the present fact inasmuch as in Anbazhagan (supra), the single injury was caused by a non lethal weapon similar to an axe that too from the wrong side i.e. blunt side and not the blade. Specifically reference has been made to the following observations made in paragraph nos. 39, 45 and 50 of that report :-

39. "?????.. The word 'likely' in clause (b) of Section 299 of the IPC conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury ??.. sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.

45. ?????. (6)???..The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death."

The aforesaid decision of this Court in Jagrup Singh (supra) has been strongly relied upon by the learned senior counsel appearing for the appellant.

50. In the case of Rajwant Singh (supra), after referring to the relevant clauses of Section 300 of the IPC, the following observations have been made:-

10. ???.. The mental attitude is thus made of two elements (a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death ????

11. ???. For the application of clause three it must first be established that the injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death, one test is satisfied. Then it must be proved that there was an intention to inflict that very Injury and not some other injury and that it was not accidental or unintentional.

If this is also held against the offender the offence of murder is established."

(Emphasis supplied)

19. Learned counsel for the informant has, in addition to the submissions advanced by learned AGA, also relied on two decisions of the Supreme Court in State of A.P. versus Rayavarapu Punnayya and another, (1976) 4 SCC 382 and State of Rajasthan versus Ram Kailash @ Ram Vilas, (2016) 4 SCC 590.

20. Having heard learned counsel for the parties and having perused the records, insofar as the fact occurrence is concerned, there is absolutely no doubt. The prosecution story remains wholly consistent to the FIR allegation to the extent it was clearly established beyond reasonable doubt that the deceased was sitting outside his residence in a 'Chaupal' area where the appellant and the other co-accused persons engaged him in a verbal quarrel and hurled abuses. On being resisted for their acts, the appellant drew his firearm namely a country made pistol and fired. Only a single shot was fired. It hit the deceased in his neck region. It caused the fatal injuries. It is also proven by the prosecution that the above occurrence was preceded by a similar verbal quarrel, a few days earlier. However, no assault was made in that occurrence. Besides that no other fact or prior occurrence as may be read as motive for the present occurrence was proven by the prosecution.

21. On the contrary, it has been asserted by the prosecution itself that the appellant and others were consuming liquor in the 'Chaupal' area and were in an inebriated state. It is not the defence of the appellant rather, it is the prosecution case itself. Then, it was also the prosecution's own case (in the shape of deposition made by PW-1) that the firearm was drawn and used by the appellant suddenly ('achanak'). No deposition was made that the appellant took aim to cause the assault on the deceased on any vital body part etc. No other deposition or evidence was led to establish the intention of the appellant to cause the death of the deceased.

22. In Virsa Singh Vs. State of Punjab, 1958 SCC OnLine SC 37, the three judge bench of the Supreme Court, speaking through Justice Vivian Bose laid down the fundamental governing principle to differentiate between Section 302 IPC and Section 304 IPC. The learned jurist observed as below :

"13. In 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 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, 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.

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

15. First, it must establish, quite objectively, that a bodily injury is present.

16. Secondly, the nature of the injury must be proved; These are purely objective investigations.

17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

18. Once these three elements are proved to be present, the enquiry proceeds further and.

19. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient 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.

20. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, orreasonably deduced, that the injury was accidental or otherwise unintentional.

21. We were referred to a decision of Lord Goddard in R. v. Steane (1947) 1 All ER 813, 816 where the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved. Of course it must, and of course it must be proved by the prosecution. The only question here is, what is the extent and nature of the intent that Section 300 "thirdly" requires, and how is it to be proved?

22. The learned counsel for the appellant next relied on a passage where the learned Chief Justice says that: "if, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury's satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted". We agree that that is also the law in India. But so is this. We quote a few sentences earlier from the same learned judgment: "No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged." That is exactly the position here. No evidence or explanation is given about why the appellant thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places. In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury.

(emphasis supplied)

23. That governing principle has been consistently applied in our jurisprudence in State of A.P. v. Thummala Anjaneyulu, (2010) 14 SCC 621. The intention to cause the very injury that led to the death could not be established. Consequently, the charge of murder was found not proven. Only culpable homicide not amounting to murder resulting in conviction under Section 304 IPC was proved. In that, it was observed as below :

"11. The learned counsel for the accused has, however, submitted that even assuming for a moment that the prosecution story was correct and the accused liable for conviction, it was not still a case of murder as there was no evidence to show that the accused had intended to cause the very injury which had been caused and had led to the death of the deceased and he was, therefore, liable only for a charge of manslaughter and not murder. The facts of the case undoubtedly support the argument of the learned counsel. As per the prosecution story, the deceased and the accused and the witnesses had gathered outside the house of PW 6 to organise a panchayat to settle a dispute between Kistaiah and Ramulu, who were not, in any manner, connected with either party and it was at that stage that the accused was apparently provoked by the remarks of the deceased that he should not cast an evil eye on PW 3 and Manemma on which he had suddenly taken out a knife which he was carrying and caused one injury in the chest.

12. We are of the opinion that there was no intention on the part of the accused to cause the very injury which he caused which ultimately led to the death of the deceased. The accused would thus be liable for conviction under Section 304 Part I IPC and not under Section 302 thereof. We, accordingly, allow this appeal, set aside the acquittal recorded by the High Court and convict the accused for an offence punishable under Section 304 Part I IPC and sentence him to 7 years' RI. The appeal is allowed to the above extent."

(emphasis supplied)

24. Again in Sankath Prasad v. State of U.P., (2020) 12 SCC 564, occasioned by the fact that the incident was caused at the spur of the moment and it was a fallout of an alteration, the charge under Section 302 IPC was converted to that under Section 304 Part I IPC. In that, it was observed as below :

"5. The facts, as they have emerged from the record, indicate that the incident had taken place on the spur of the moment and was a fallout of an altercation over the excavation of a mound by the brother of the appellant. This was objected to by the complainant Gaya Prasad (PW 1). The altercation resulted in the appellant going into his house and bringing out a country-made pistol. The son of the complainant ? deceased Uma Shanker intervened in the course of the altercation and was fired at, resulting in a single firearm injury leading to his death.

6. Having regard to the circumstances of the case, we are of the view that the conviction under Section 302 IPC should be converted to one under Section 304 Part I. We accordingly hold the appellant guilty of an offence under Section 304 Part I IPC and sentence him to imprisonment for a term of ten years."

(emphasis supplied)

25. Again in Shaikh Matin v. State of Maharashtra and another, (2020) 20 SCC 402, single blow suffered by the deceased caused by heavy wooden lock, the charge of murder under Section 302 IPC was converted to that under Section 304 Part I IPC. In that, Supreme Court observed as below :

"5. Taking into account the fact that the appellant-accused had delivered only a single blow but on a vital part of the body of the deceased i.e. head and that despite opportunities he had refrained/restrained himself from inflicting any further injury on the deceased we are of the view that the present is not a case under Section 302 IPC. Rather, according to us, it would be more appropriate to hold that the appellant-accused is liable for the offence under Section 304 Part I IPC. We, therefore, convert the conviction of the appellant-accused to one under Section 304 Part I IPC. As the appellant-accused admittedly has been in custody for nearly nine years now we are of the view that the ends of justice would be met if the sentence is converted to the period of custody already suffered."

26. In a recent decision of the Supreme Court in Anbazhagan Vs. The State, Represented by the Inspector of Police, 2023 SCC OnLine SC 857, the Supreme Court has again made analysis and the difference between murder and culpable homicide not amounting to murder. The Supreme Court summarized the principle as below:

"66.Few important principles of law discernible from the aforesaid discussion may be summed up thus:?

(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate:'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.

(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section300 of theIPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.

(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'.

(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.

(5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.

To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.

(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.

(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.

(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.

(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.

(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.

(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.

(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."

27. Clearly the facts proved by the prosecution may only bring out the ingredients of offence under Section 304 Part II IPC to the extent the appellant caused bodily injury as is likely to cause death. No element of motive or premeditation was established as may have qualified the occurrence to commit offence under Section 302 IPC. Seen in that light, the appellant has already remained confined for more than eleven years.

28. Accordingly, the appeal is partly allowed.

29. The appellant is found guilty of offence under Section 304 Part II IPC. The punishment, is modified to sentence undergone.

Order Date :- 9.1.2025

I.A.Siddiqui

(Dr. Gautam Chowdhary,J.) (S. D. Singh,J.)