Sohan Singh vs State (Nct Of Delhi)
2005 Latest Caselaw 214 Del

JUDGMENT

Mukundakam Sharma, J.

1. The present appeal is directed against the judgment and order passed by the learned Additional Sessions Judge, Delhi in sessions case No.40/2000 convicting the accused/appellant Sohan Singh for an offence punishable under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and also to pay a fine of Rs.2,000/- and in default to undergo simple imprisonment for one year. By the same judgment, the accused Labh Singh was sentenced to undergo rigorous imprisonment for one year for an offence punishable under Section 323 IPC for causing simple hurt on the person of Balbir Kaur with blunt object. He was, however, given the benefit under Section 428 Cr.P.C. and was sentenced to the period undergone. This appeal is, however, filed only by Sohan Singh and, therefore, we are concerned in this appeal only with the part of the order of conviction and sentence passed against Sohan Singh.

2. The prosecution story in brief is that on 13.11.1991 while one Raman, minor son of the deceased, was bursting crackers outside his house, at about 11/11.30 a.m., some sparks of cracker touched the cloth of Sheela, the mother of the appellant, on which Sheela rebuked and slapped Raman. Balbir Kaur (PW-14), the wife of the deceased and mother of Raman allegedly asked Sheela as to why she did so and then brought her son inside. Further case of the prosecution is that at about 8.05 p.m. of the same day, Sheela (mother of the appellant), Labh Singh (father of the appellant) and Sohan Singh, the present appellant went to the house of Balbir Kaur (PW-14), abused her and caught hold of her by hair and then caused an injury on her person above her right eye and thereafter left the place. It is also the prosecution case that on the same day thereafter the deceased, who is the husband of Balbir Kaur (PW-14) came back to the house from his job and enquired from his wife, Balbir Kaur as to how the injury was caused above her right eye upon which she explained the whole incident to him. Thereafter her husband (the deceased) and her brother in law (devar) Surinder Singh accompanied by Balbir Kaur went to the house of the appellant at about 8.40 or 9.00 p.m. At that time, Labh Singh, Sohan Singh, Sheela and Surinder Singh were sitting on the cot when the deceased asked as to what had happened that they had to do that to his wife. At that stage, Labh Singh asked how they dare to come to their house to know the reason and they threatened to kill all the three of them and when the three of them including the deceased were coming out, Sohan Singh attacked the deceased with Kirpan, which hit him on the back right side and that Labh Singh hit with the backside of farsa which also hit the deceased at the back. The deceased fell down by the side of wall of a House, in front of the house of the accused persons. It is also alleged that Labh Singh slapped PW-14 and also gave fist blows to her.

3. On completion of the investigation, the police submitted a charge-sheet. Charge of the offence punishable under Sections 302 and 323 read with Section 34 IPC was framed against the three accused persons, namely, Labh Singh, Sohan Singh and Surinder Singh to which they pleaded not guilty and claimed for trial. To substantiate the charge, the prosecution examined 22 witnesses whereas the defense examined two witnesses. Dr. L.K. Barua, who conducted the postmortem examination on the dead body of Harmeet Singh on 14.11.1999, was examined as PW-1 and the autopsy report was proved as Ex.PW-1/A. However, Surinder Singh, the Devar could not be examined by the prosecution as he died in the meantime. After recording the evidence adduced by the parties, the learned trial court heard the arguments of the counsel appearing for the parties and thereafter by his judgment and order dated 29.3.2003 held that the prosecution has not been able to prove the case against Surinder Singh and Labh Singh for an offence punishable under Section 302/34 IPC and they were acquitted from the aforesaid charges. However, a case under Section 323 IPC was found to have been established against accused Labh Singh. The learned trial court also held the accused/appellant guilty of an offence under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life whereas the accused Labh Singh was found guilty of the offence of causing simple injury and he was given the benefit of Section 428 Cr.P.C.

4. Mr. Mahajan, appearing for the appellant, argued that the learned trial court found that there has been embellishment, exaggeration and improvement in the testimony of PW-14 and, therefore, acquitted the co-accused Surinder Singh and convicted Labh Singh only under Section 323 IPC for causing only simple injury to Balbir Kaur, the wife of the deceased. He submitted that the learned trial court should also have disbelieved the evidence of PW-14 Balbir Kaur so far it concerns the present appellant also and that if the said evidence is disbelieved, there is no testimony available on record for convicting the accused/appellant as PW-14 is the sole eye witness to the occurrence. It was submitted by him that the conviction and sentence of the appellant is based on the solitary evidence of PW-14 Balbir Kaur, whose testimony the trial court had disbelieved in material particulars and acquitted the co-accused on the basis of such exaggeration and improvement. He submitted that no such conviction could be based on solitary testimony of a witness particularly when one part of the testimony was not found reliable by the learned trial court. In other words, the submission of the counsel for the appellant was that since the learned trial court disbelieved a significant part of the testimony of said PW-14 and acquitted the two co-accused, namely, Surinder Singh and Labh Singh of the charge under Section 302 IPC because of such exaggeration and improvement made by her, therefore, her depositions qua appellant Sohan Singh was also not reliable and, therefore, the appellant is required to be acquitted. In support of the said contention, counsel appearing for the appellant relied upon the decisions in Anil Phukan v. State of Assam reported in 1993 SCC (Cri) 810; Kathi Odhabhai Bhimabhai and Ors. v. State of Gujrat reported in 1993 SCC (Cri) 1049 and State of Rajasthan v. Bhola Singh . He also submitted that conduct of the witness PW-14 (wife of the deceased) in not trying to save the deceased when attacked is also not in consonance with the ordinary human behavior and, therefore, the learned trial court should have held that she was not present at the scene of occurrence and on the basis thereof should have disbelieved her statement in toto. Alternatively, the counsel also submitted that without prejudice to the aforesaid submissions, the present case does not make out a case of Section 302 IPC but at best, it could be a case under the provisions of Section 304 part II IPC. He submitted that there are various factors present in this case which would clearly establish that the present case would be, if at all, covered by exception 4 to Section 300 IPC. It was submitted by him that even as per the prosecution case the deceased along with PW-14 and his brother Surinder Singh went to the house of the accused due to which a quarrel had ensued between the parties. It was also contended that it has clearly come in evidence that the accused party at about 8/8.05 had gone to the house of the deceased and if there would have been any intention to murder the deceased, they could have done so at the said place and time and the fact that it was not so done, clearly proves and spells out that there was no intention of the appellant to murder the deceased. It was submitted that the aforesaid quarrel took place at the house of the accused persons at the spur of the moment on the chance meeting without there being any premeditation and, therefore, exception 4 to Section 300 IPC is squarely applicable to the facts of this case. In support of the said contention the counsel relied upon the decision in Randhir Singh v. State of Punjab reported in 1982 Crl.L.J. 195; Virsa Singh v. State of Punjab , in Willie (William) Slaney v. State of Madhya Pradesh and in Ghanshyam and Ors. v. State, (2004) 111 DLT 10 (DB). The counsel has reiterated the said submissions in the written submissions submitted by him.

5. The learned Additional Public Prosecutor, appearing for the State, however, submitted that the evidence on record clearly proves and establishes the case of murder and, therefore, the conviction and sentence imposed by the learned trial court cannot be interfered with in the present case. In support of his contention, he relied upon the decisions in Virsa Singh's case (supra) and Sikander alias Mohd. Safiq v. State (Delhi Admn.) . The case of Jai Prakash v. State, is another decision which has relevance.

6. In the context of the aforesaid submissions of the counsel for the parties and the evidence on record, two issues fall for our consideration in the present appeal. The first issue is whether the conviction and sentence of the appellant herein is required to be set aside and he should be acquitted of the charge under Section 302 IPC on benefit of doubt after holding that PW-14, who is the sole eye witness examined, is not reliable and trustworthy witness. If the said issue is found and answered against the appellant, the next issue, which was urged and falls for our consideration, is whether the case proved by the prosecution is a case of 'murder' or is a case of 'culpable homicide not amounting to murder' and whether the appellant should be convicted under Section 302 IPC or under Section 304 Part II IPC.

7. We, therefore, proceed to record our decision on the first issue. The incident, which is proved and established in the present case, could be divided into three phases. The first phase is when Raman, the minor son of the deceased, was bursting crackers outside his house at about 11/11.30 a.m. when some sparks touched the cloths of Sheela, the mother of the appellant, upon which she rebuked and slapped Raman on his face. The second phase occurred at night. At about 8.05 p.m of the same day, Sheela (mother of the appellant), Labh Singh (father of the appellant) and Sohan Singh, the present appellant went to the house of Balbir Kaur (PW-14), abused her and caught hold of her by hair and then caused an injury on her person above her right eye and thereafter left the place. The third phase is when the deceased accompanied by his wife and Surinder Singh went to the house of the appellant at about 8.40/9.00 p.m. when the deceased was killed. It is clearly proved by the prosecution that on all the three occasions it is the deceased's family, who suffered at the hands of the family of the appellant. In the first incident, it is the mother of the appellant, who slapped the minor son of the deceased for bursting crackers, spark of which touched the cloths of the mother of the appellant. In the second phase of incident it is Balbir Kaur, who was abused and she received an injury at the hands of the family of the appellant and in the third incident, PW-14 lost her husband. The learned trial court has extensively considered the evidence of PW-14, the sole eye witness to the occurrence. The other eye witness Surinder Singh died during the pendency of the trial and, therefore, could not be examined as a witness. The learned trial court held that the evidence brought on the record is deficient to conclude conclusively that the accused Labh Singh had an intention to kill Harmeet Singh and with that intention he caused injuries on the person of Harmeet Singh and, therefore, the evidence adduced is insufficient to hold accused Labh Singh accountable for the charge of murder. He has also held that Smt. Balbir Kaur had been specific when she testified that accused Sohan Singh wielded Kirpan blow on the back of her husband as a result of which he sustained injuries. On consideration of the entire evidence on record, he was also of the considered opinion that the accused Sohan Singh gave a Kirpan blow on the deceased with such force that it caused extensive damage to the right lung and liver of the deceased. It was also held by him that the aforesaid Kirpan blow inflicted on the body of the deceased was sufficient in the ordinary course of nature to cause death.

8. In order to return a finding on the first issue, it would be necessary to discuss at some length the evidence adduced by the sole eye witness PW-14 and the doctor, who had performed autopsy and had submitted a report thereof. PW-1, who conducted the postmortem on the dead body found three external injuries. According to the doctor injury No.1 continues downward and inward and had cut the right lung on its lower lobe through and through and then it pierced the diagraph and then entered the superior surface of liver and right lung collapsed. The doctor had opined that all the injuries were ante mortem in nature and that the injury No.1 was caused by sharp edge weapon and was sufficient to cause death in ordinary course of nature. Counsel for the appellant declined to cross-examine the said witness. PW-14 had narrated all the three phases of the incident as stated herein above. She has stated that on 13.11.1999, her son Raman aged 6-7 years was playing with crackers outside her house at about 11/11.30 a.m. She stated that Sheela wife of the accused Labh Singh slapped her son. She also stated that at about 8.05 p.m. Sheela (mother of the appellant), Labh Singh (father of the appellant) and Sohan Singh, appellant herein came to her house and started abusing her and also caught hold of her by hair and after causing an injury above her right eye, they left. She also stated that she went to the house of her brother-in-law Surinder Singh, which is nearby and told him about the incident. By the same time her husband also came from his job and as she was having an injury above her right eye, her husband asked as to what had happed when she narrated the whole incident to him. It is also deposed by her that her husband and she along with her brother-in-law, namely, Surinder Singh went to the house of Labh Singh about 8.40/9.00 p.m. when they found Labh Singh, Sohan Singh, Sheela and Surinder Singh sitting on the cot. It is clearly stated by her that her husband asked as to what had happened for which they had to do that to his wife whereupon Labh Singh asked how dare they come to their house to know the reasons and he threatened to kill all three of them. When they were wanting to coming out, Sohan Singh, who was wearing a Kirpan on his neck gave a blow on the deceased on his backside and Labh Singh taking out a farsa from the backside of his door hit with the back/blunt side of the farsa on the back of the deceased Harmeet Singh.

9. When the aforesaid evidence of PW-14 is read very carefully along with evidence of PW-1, the doctor, who had performed the postmortem examination, it is proved that injury No.1 was caused by the appellant whereas the injury No.3 was caused by Labh Singh, father of the appellant. She also stated that the deceased fell down by the side of wall of House No.321 which is the house in front of the house of accused persons. Labh Singh, it is stated by her, also gave fist blows. She was extensively cross-examined on behalf of the appellant. In the cross-examination also she has reiterated the same statements that when she asked Sheela as to why she has slapped her son, she told her that she did so because her son was firing crackers and that spark came on her dupatta. She also stated in her cross-examination that Labh Singh (father of the appellant), Sheela (mother of the appellant) and Sohan Singh (appellant herein) came to her house, hurled abuses and beat her and went away. She also stated in her cross-examination that she and her husband (the deceased) and her brother-in-law (Surinder Singh) had gone to the house of the appellant to find out why they behaved like that, why they came, hurled abuses and beat her up. She also clearly stated that they had come out of the house of the appellant when they were attacked. She has stated that she did not show her injury on the day of the incident but on the 15th as she was more concerned about her husband at that time. It is also stated that none of the accused persons got any injury as they had not gone there to fight with them. It is, therefore, established that although there could be some embellishment and exaggeration on the role of the other two accused but she was categorical and steadfast in her deposition regarding the role of the present appellant. It is a case where grain could be cleared from the chaff as there could be intention of roping in more persons than was necessary by ascribing major roles to all the three persons. However, when the grain is taken out from the chaff, it is proved and established by the prosecution that it is the appellant who had given the Kirpan blow on the deceased as a result of which the deceased died. It is also established from the record that the said blow was sufficient in the ordinary course of nature to cause death of a person. Therefore, the first issue, which was framed, is to be answered against the appellant and in favor of the prosecution. It is, therefore, held that the case of the prosecution that it is the appellant who gave the fatal and deadly blow to the deceased is proved and established and, therefore, he is guilty. We also find no reason to disbelieve the depositions of PW-14 and PW-1 in that regard.

10. Having decided the said first issue in the aforesaid manner, we may now proceed to decide the second issue, which was raised before us by the counsel for the appellant that at best this could be a case of Section 304 para II IPC and not a case of Section 302 IPC.

11. Therefore, we are required to examine as to whether or not the prosecution could establish against the appellant a case of murder or only a case of culpable homicide not amounting to murder is made out.

12. By now, it is well established that 'murder' is an aggravated form of 'culpable homicide'. Section 299 IPC defines the offence of culpable homicide and Section 300 IPC deals with murder. Section 299 explains 'culpable homicide' and sets out the circumstances when culpable homicide amounts to murder and when it does not amount to murder. In terms of the provisions of Section 300, existence of one of the four conditions, enumerated therein, upon which a culpable homicide could be said to amount to murder while the three exceptions therein reduce the offence of murder to culpable homicide not amounting to murder. In this connection, we may appropriately refer to the decision in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. wherein the Supreme Court has held that in the scheme of Penal Code, "culpable homicide" is genus and "murder" is specie. All "murders" are "culpable homicide" but not vice versa. In the said decision, the Supreme Court has held that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", it would be convenient to approach the problem in three stages. The first stage, which is enumerated, is whether the accused had done an act by doing which he had caused the death of another meaning thereby that proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to the aforesaid question is, prima facie, found in the affirmative, the stage for considering the operation of Section 300 IPC is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of definition of "murder" contained in Section 300. It is held in the said decision that if the answer to the aforesaid question is in the negative, the offence "would be culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending respectively, on whether the second or third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304 IPC. However, the court reiterated that the aforesaid were only broad principles and if applied, would facilitate the task of the Court but in some cases the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and the third stages.

13. Both the counsel appearing for the parties referred to the celebrated judgment of the Supreme Court in Virsa Singh (supra). In the said decision, scope of Section 300 IPC was examined and explained by the Supreme Court. Their Lordships of the Supreme Court said that before the prosecution can bring a case under Section 300 'thirdly', the prosecution must prove the following facts:

"First it must establish, quite objectively, that a bodily injury is present;

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

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.

Once these three elements are proved to be present, the inquiry proceeds further and,

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 inquiry is purely objective and inferential and has nothing to do with the intention of the offender.

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 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 inquiry is purely objective and the only question is whether, as a mater of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death."

As to how the intention is to be inferred even in a case of single injury, it was so stated in the same judgment:

"The question so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law."

14. Thus, as per the guidelines laid down in Virsa Singh's case (supra), which is an acclaimed judgment and is consistently followed, under clause 'thirdly' of Section 300 IPC, "culpable homicide" is murder if the following twin conditions are satisfied : (a) that the act which causes death is done with the intention of causing bodily injury, and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

15. In Sikander alias Mohd. Safiq (supra), the Supreme Court had occasion to analyze the scope of Exception 4 of Section 300 IPC. After analyising the said provision, it was held by the Supreme Court that in order to invoke the aforesaid exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The aforesaid decision was drawn by the Supreme Court on the basis of the earlier decision of the Supreme Court in Surinder Kumar v. Union Territory, Chandigarh . In the said decision it was also stated as follows:

"... The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner."

16. In the decision of Sikander alias Mohd. Safiq (supra), by following the earlier decisions of the Supreme Court, it was held that "fight" postulates a bilateral transaction in which blows are exchanged between the parties. The fact that the victims were totally unarmed, they had not caused any injury to the accused/appellant were also factors which were considered for coming to the conclusion that there was a sudden fight between the accused or the witness and the victims, even though the quarrel started suddenly.

17. Counsel for the appellant also relied upon on the decision in Randhir Singh v. state of Punjab (supra). We have examined the said decision. In the said case on the facts, it was held that the accused did not intend to cause that particular injury which proved fatal and was opined in the ordinary course of nature to be sufficient to cause death. The said findings were returned in view of the fact that in a small village upon a minor quarrel, the appellant a young boy aged 181/2 years studying in the engineering college and not shown to have been armed gave one blow by Kassi brought by his father, could it be said that he intended to cause that particular injury? Merely because the blow landed on a particular spot on the body divorced from the circumstances in which the blow was given it would be hazardous to say that the accused intended to cause that particular injury. In the said case the weapon was not handy and that he did not possess one and that altercation took place between the father and the deceased. The other case on which reliance was placed by the appellant was the decision in Willie (William) Slaney v. State of Madhya Pradesh (supra). The said decision was rendered as against the backdrop of facts that there was a heated exchange of words whereupon the accused slapped the deceased on the cheek. The accused lifted his fist. The accused snatched a hockey stick from his younger brother and gave one blow on his head with a hockey stick with the result that his skull was fractured. The deceased died at the hospital 10 days later. In the context of the said facts it was held that in the facts and circumstances of the case the offence fell under Section 304 part II IPC and not under Section 302 IPC. Admittedly there was no premeditation and there was a sudden fight. The nature of the injury was such that the accused could not be attributed with the special knowledge required by Section 300 IPC, nor was the injury sufficient in the ordinary course of nature to cause death. Another case on which reliance was placed by the counsel for the appellant was the decision of this Court in Ghanshyam & Ors. (supra). The said decision relies upon the cases of the State of Andhra Pradesh (supra) and Virsa Singh (supra) and applied the law laid down therein to the facts of the said case.

18. We may, therefore, examine the facts of the present case in the light of the aforesaid legal position propounded by the Supreme Court. The incident happened in three phases. The first phase was in the morning when the mother of the accused slapped the minor son of the deceased but at about 8.05 p.m. in the evening after a gap of about nine hours, the accused party including the mother and father went to the house of the deceased. After coming to the said house, the accused party caught hold of PW-14 by her hair, rebuked her and then caused an injury above her right eye. It is also deposed by PW-14, the sole eye witness in the case, that thereafter when her husband came back from his job and enquired from her as to how she had received the injury, she narrated the whole incident upon which her husband and brother-in-law, who was present in the house, along with her went to the house of the accused to enquire as to why PW-14 was injured in the manner it was done. It is also on record that the deceased and his wife and brother were asked to go out of the house whereupon they were coming out of the house when the aforesaid fatal blow was given from the back side as is established from the records. The deceased fell down by the side of a neighbouring house and he was hit at the back. The postmortem report clearly reveals that the blow was given from the back side with such tremendous force that it caused damage to the lung and the liver which were on the front side of the body. PW-14 had categorically stated even in the cross-examination that they had actually come out of the house and the deceased fell down in front of another house. It is also disclosed from the evidence on record that the deceased, his wife PW-14 and his brother did not carry any weapon or stick or anything in their hands. It is also established on record that none of the accused persons received any injury. Therefore, in our considered opinion there was neither any quarrel nor any fight. There could not have been a case of acting on heat of passion as the deceased along with his wife and brother was coming out of the house when the accused took the advantage and acted in a most cruel manner in giving the stab injury on the deceased by the Kirpan available with the appellant with such intense force that the said blow caused the injury No.1, which was sufficient in the ordinary course of nature to cause death. Therefore, it would be difficult to accept the contention that there was a sudden fight between the accused and the witness and the victim. In coming to the aforesaid conclusion, we are also influenced by the fact that neither the deceased nor PW-14 or her brother-in-law was armed and that they had not caused any injury to the appellant. The decision in Willie (William) Slaney v. State of Madhya Pradesh (supra) is clearly distinguishable on facts which are pointed out. The said case was rendered on the facts that there was a sudden fight and quarrel in the said case and because nature of the injury was such that the accused could not be attributed with the special knowledge required by Section 300, nor was the injury sufficient in the ordinary course of nature to cause death. The facts in the present case are, however, distinguishable from the said case. So far the case of Randhir Singh v. state of Punjab (supra) is concerned, facts of the said case are also clearly distinguishable as already delineated above. In the said case a young boy of 181/2 years was not armed and he gave a blow with a weapon, which was not handy with him and which he did not possess but which was brought by his father only. In the said case there is clear evidence of altercation between father and the deceased. In the present case there is no such convincing and clear evidence. In our considered opinion it cannot be said to be a case of Section 304 Part II IPC. None of the exceptions is attracted in the present case. The case clearly falls under Section 300 IPC.

19. In our considered opinion, the ratio of the decision of the Supreme Court in Sikander alias Mohd. Safiq's case (supra) is squarely applicable to the facts of the present case. We may also at this stage notice the judgment of the Supreme Court in Jai Prakash v. State (supra). In the said case the Supreme Court noticed several of its earlier decisions including Virsa Singh (supra) and, thereafter, expressed the following opinion in paragraph 13:

"It can thus be seen that the 'knowledge' as contrasted with 'intention' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. On the other hand, 'intention' is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one's conduct so as to bring about a certain event. Therefore in the case of 'intention' mental faculties are projected in a set directions. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact. In Clause Thirdly the words "intended to be inflicted"are significant. As noted already, when a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. In such a situation the court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case."

It again went to say:

"However, as pointed out in Virsa Singh case the weapon used, the degree of force released in wielding it, the antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors."

Again in paragraph 18, it was observed as follows:

"We may point out that we are not concerned with the intention to cause death in which case it will be a murder simpliciter unless exception is attracted. We are concerned under Clause Thirdly with the intention to cause that particular injury which is a subjective inquiry and when once such intention is established and if the intended injury is found objectively to be sufficient in the ordinary course of nature to cause death, Clause Thirdly is attracted and it would be murder unless one of the exceptions to Section 300 is attracted."

The Supreme Court in paragraph 19 concluded thus:

"As observed in Virsa Singh case , in the absence of evidence or reasonable explanation to show that the appellant did not intend to stab in the chest with a kirpan with that degree of force sufficient to penetrate the heart, it would be perverse to conclude that he did not intend to inflict that injury that he did. When once the ingredient "intention" is established then the offence would be murder as the intended injury is found to be sufficient in the ordinary course of nature to cause death. Therefore, an offence of murder is made out."

20. We have carefully scrutinised the findings and the ratio of the aforesaid decision and we find that the said findings and ratio are close to the facts of the present case. In the present case, there is no evidence of fight or quarrel. The deceased received the fatal injury while he actually came out of the house of the accused as is proved from the statement made by PW-14 in her cross-examination that they had actually come out of the house of accused when they were attacked and the deceased fell down near the wall of a nearby house. The injury was caused by a deadly weapon from behind with tremendous and extreme force which is proved from the nature of the injury caused to the deceased. The entire evidence adduced in this case particularly the evidence of PW-14 and the doctor who performed the Post Mortem Examination clearly establish that the appellant had the clear intention of causing the said injury No.1 with the Kirpan, a deadly weapon, which proved fatal. Therefore, the concluding portion of the aforesaid judgment is clearly applicable in this case.

21. In the light of the aforesaid discussion we are of the considered opinion that the appellant had the intention of causing bodily injury to the victim and, therefore, this case is covered by the definition of "murder" in Section 300 IPC. At any rate this case cannot be said to be covered by any of the exceptions particularly Exception 4 of Section 300 IPC, as submitted by the counsel for the appellant.

22. In the result, the appeal fails and is dismissed accordingly. The appellant shall serve out the remaining period of sentence in accordance with law.