Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 1280 (PNJ)

Kesar Singh v. State Of Haryana

2005-12-14

RAJIVE BHALLA

body2005
Judgment Rajive Bhalla, J. 1. By this judgment, two appeals, namely, Criminal Appeal Nos. 61-SB of 1993 (Kesar Singh and another v. State of Haryana) and 185-SB of 1993 (State of Haryana v. Kesar Singh and another) shall be disposed of. Criminal Appeal No. 51-SB of 1993 has been filed by Kesar Singh and Pala Ram, impugning the judgment and order of Additional Sessions Judge, Ambala, whereby they were convicted under Section 304 Part-I, read with Section 34 of the Indian Penal Code. Kesar Singh was sentenced to 8 years rigorous imprisonment and a fine of Rs. 500/-, in default whereof, he was directed to undergo a further rigorous imprisonment for a period of 2 months. Pala Ram was sentenced to undergo 5 years rigorous imprisonment and a fine of Rs. 500/-, in default, he was directed to undergo 2 months rigorous imprisonment. The sentences were ordered to run concurrently. Criminal Appeal No. 185-SB of 1993 has been filed by the State of Haryana, impugning the aforementioned judgment and order of acquitting the appellants under Sections 302 read with Section 34 of the Indian Penal Code (for short the "IPC"). 2. A factual narrative of the matter, in dispute, would be appropriate. 3. FIR No. 80, dated 30.4.1988, under Section 302 read with Section 34 of the IPC, Police Station Panchkula, was registered on the statement of PW1 Hardev Singh. In his statement before the Police, Hardev Singh alleges that he lives at Dera Bassi, where he is posted as a teacher. On 24.4.1988, he and Karam Chand came to village Budhanpur to meet his father Ujjagar Singh. A patch of Shamlat land exists in front of their house, which land is in possession of Pala Ram, Kesar Singh, sons of Kesar Singh and Binder alias Balwinder s/o Sadhu Ram and Mohna s/o Pala Ram Pala Ram etc. were laying a foundation on the aforementioned (land) and Ujjagar Singh, the complainants father, asked them to leave a passage, while laying the foundation, whereupon, Pala Ram, appellant No. 2 exhorted his co-accused to teach the old man a lesson, for otherwise he would trouble them. On hearing this noise, the complainant alongwith Karam Chand came out of their house and saw Kesar Singh inflicting a kassi (spade) blow, from its reverse side, on the head of Ujjagar Singh. Ujjagar Singh fell down. On hearing this noise, the complainant alongwith Karam Chand came out of their house and saw Kesar Singh inflicting a kassi (spade) blow, from its reverse side, on the head of Ujjagar Singh. Ujjagar Singh fell down. The complainant and Karam Chand rushed him to the Primary Health Centre, Panchkula, where the doctor conducted a medico-legal examination and after providing first aid, referred him to General Hospital, Sector 16, Chandigarh. On 30.4.1988, Ujjagar Singhs condition became serious and he was referred to Post Graduate Institute of Medical Sciences and Research, Chandigarh, where he succumbed to his injury on 1.5.1988. The matter was reported to the Police on 30.4.1988 at 6.00 p.m. leading to the lodging of the FIR, aforementioned. 4. Upon completion of the investigation, the final report under Section 173 of the Code of Criminal Procedure (for short the Cr.P.C.) was filed before the Illaqa Magistrate. The accused were committed to the Court of Sessions. The accused were charged under Section 302 read with Section 34 of the IPC, to which they pleaded not guilty and claimed trial. 5. In support of its case, the prosecution examined PW1 Hardev Singh, complainant, PW2 - Karam Chand, an eye witness, PW3 - Udey Bhan, who drafted the site plan, PW4 - Bhim Singh, Sub Inspector, who received the communication, Ex.PA and scribed the formal FIR Ex.PC., PW5 - Inspector Maheshwar Singh, 1st Battalion Haryana Armed Police, Panchkula; PW6 - Dr. Lalit Virmani; who medico-legally examined Ujjagar Singh (the deceased) s/o Basant Singh aged 65 years. This witness also proved a copy of the Medico- legal report Ex.PD, PW7 - Jasjit Singh witnessed to the recovery of the Kassi (spade) and who disclosed the statement of the accused Kesar Singh, Ex.PE; PW8 - Dr. U.S. Bansal S.M.O. General Hospital, Chandigarh, who conducted the post mortem. PW9 - Avtar Singh, ASI; PW10 - Dr. Uttam Tripathy, Senior Resident, Surgery, PGI, Chandigarh, who proved the death summary report, Ex.PK M.L.C. Ex.PL and the police information Ex.PM; PW11 - Som Nath, Sub Inspector, who partly investigated the case; PW12 - Inspector Prem Chand, State Vigilance Bureau, Investigating Officer of this case. 6. After closure of the prosecution case, the accused were examined under Section 313 of the Cr.P.C. and the evidence led by the prosecution put to them. 6. After closure of the prosecution case, the accused were examined under Section 313 of the Cr.P.C. and the evidence led by the prosecution put to them. They denied the correctness of the allegations against them, pleaded false implication and further pleaded that the labourers of complainant began removing bricks lyings in the bara of the accused, on which their labourers abused the labourers engaged by Ujjagar Singh. Resultantly an altercation ensued between the two groups. Ujjagar Singh came to the spot and sided with his labourers. In the altercation, he fell on the bricks and received injuries. They also pleaded that they were not present at the time of the alleged occurrence. The appellants, however, did not produce any evidence in defence. After appraisal of the entire evidence on record, the learned trial Court convicted and sentenced the appellants, as detailed hereinbefore. 7. Counsel for the appellants contends that the story as set up by the prosecution, merits rejection as the delay in the lodging of the FIR remains unexplained. The incident is alleged to have occurred on 24.4.1988, whereas the FIR was lodged on 30.4.1988. No explanation, whatsoever, is forthcoming for this inordinate delay. The learned trial Court, while considering this aspect, wrongly held that there was sufficient explanation for the delay. It is further contended that it is in-conceiveable that the complainant or the other eye-witnesses would not have informed the police for 6 days. This gap was utilised by the complainant and the police to fabricate the case. Thus, the case, as set out against the appellants, should be scrutinised with a great degree of care and caution. 8. The next contention pressed into service by counsel for the appellants is a document Ex.DA/1, which is a report filed under Section 107/151 of the Cr.P.C dated 24.4.1988, lodged by Balbir Singh, stated to be a son of Ujjagar Singh. On the basis of document Ex.DA/1, counsel for the appellants contends that the story, as set out in Ex.DA/1 is in stark contrast to the story that appears in the FIR and relied upon by the trial Court to convict and sentence them. It is contended that there is no explanation forthcoming for this document Ex.DA/1. The author of the document, namely, Balbir Singh s/o Ujjagar Singh, deceased, has been withheld by the prosecution. It is contended that there is no explanation forthcoming for this document Ex.DA/1. The author of the document, namely, Balbir Singh s/o Ujjagar Singh, deceased, has been withheld by the prosecution. Furthermore, the said document alleges that Pala Ram, accused No. 2, inflicted the kassi (spade) blow on the head of Ujjagar Singh while Binder and Mohana inflicted danda and fist blows on Ujjagar Singh. The narrative in Ex.DA/1, for which no explanation has been set forth by the prosecution, clearly nullifies the version, as unfolded, during the course of the trial. It is further contended that the learned trial, Court has not discussed the document Ex.DA/1 correctly. The learned trial Court could not have discarded the document by holding that it had not been proved, in accordance with law and that the said document had been concocted by the police, so as to provide a defence to the appellants. No such inference could have been drawn by the trial Court. 9. Another contention pressed into service by counsel for the appellants is that the very presence of the eye-witnesses, is in doubt. Both eye-witnesses are, admittedly, working as teachers at Dera Bassi, at a distance of 10 kms from the place of occurrence. Admittedly, both reside at Dera Bassi, and, therefore, their presence, at the place of occurrence, when coupled with the facts narrated in the document DA/1, and the fact that the deceased was taken to the hospital by Balbir Singh as per the medico-legal report makes their presence at the place of occurrence doubtful. 10. It is next argued that the prosecution has failed to explain a discrepancy as to the injury. As per the Medico-legal report prepared by PW6 Dr. Lalit Virmani, the injury was on the left frontal region of the head, whereas as per the Post Mortem Report, the injury was on the right tempo-parietal region of the head. This fact clearly casts a serious doubt on the veracity of the prosecution version. 11. Counsel for the appellants further contends that the only role attributed to Pala Ram is of exhorting his co-accused. As Pala Ram was empty handed, the alleged fight developed all of a sudden, thus, in the absence of any evidence of prior preparation or any previous enmity, no findings could be returned against the appellant. 11. Counsel for the appellants further contends that the only role attributed to Pala Ram is of exhorting his co-accused. As Pala Ram was empty handed, the alleged fight developed all of a sudden, thus, in the absence of any evidence of prior preparation or any previous enmity, no findings could be returned against the appellant. As there was no common intention on the part of the Pala Ram, learned trial Court wrongly invoked Section 34 of the IPC, while convicting him. The very presence of Pala Ram is doubtful, as would be apparent from a perusal of the evidence on record. It is further contended that another significant circumstance is the failure of the prosecution to lift any blood from the site of the occurrence and the absence of any blood on the kassi (spade). 12. The last contention raised by the counsel for the appellants is that no offence under Section 304-I of the IPC is made out. The alleged occurrence, was the result of a sudden fight, the deceased received the single injury, though to his head, and in the absence of any evidence of previous preparation or previous enmity, the intention to kill which is an essential ingredient of an offence under Section 304-I was missing and, therefore, the offence, if any, would fall the provisions of Section 304-II of the IPC. The fact that Kesar Singh used the kassi (spade) from its reverse side, is clearly indicative of the fact that Kesar Singh-appellant had no intention to kill the deceased. 13. Insofar as the appeal filed by the State of Haryana, praying that the conviction and sentence be enhanced to one under Section 302 of the IPC, counsel for the appellants contends that even sentencing the appellants under Section 304 Part-I is incorrect. The offence, if any, is made out under Section 304-II and, therefore, cannot be covered by the definition of culpable homicide, which amounts to murder, as contained in Section 300 of the IPC. 14. Counsel for the respondent, on the other hand, contends that the learned trial Court rightly held that the appellants were fully responsible for the demise of Ujjagar Singh. The delay in lodging of the FIR, was, in the circumstances of the present case, natural. 14. Counsel for the respondent, on the other hand, contends that the learned trial Court rightly held that the appellants were fully responsible for the demise of Ujjagar Singh. The delay in lodging of the FIR, was, in the circumstances of the present case, natural. The deceased, who was seriously injured, was taken first to a Hospital at Panchkula, thereafter to the General Hospital, Sector 16, Chandigarh, and subsequently referred to the PGI, Chandigarh, where he passed away. In these circumstances, to expect the appellants to pursue the police for lodging of a report, would be highly improbable. Even otherwise, it was the duty of the hospital authorities to inform the police and their failure to do so cannot detract from the veracity of the prosecution version. It is further contended that the delay, per se, is not fatal to the prosecution evidence. It is unexplained delay, which is fatal and then also if the Court arrives at a conclusion that the facts have been tailored with the object of falsely implicating the accused. In the present case, there is no fact that could be stated to have been tailored with the object of implicating the appellants. 15. Insofar as the document Ex.DA/1, counsel for the State of Haryana contends that the learned trial Court rightly declined to place reliance thereon. It rightly held that as the author of the document Balbir Singh had not stepped into the witness box, the document had not been proved, in accordance with law. Mere tendering the document in evidence was insufficient to place reliance thereon. The learned trial Court rightly held, from the perusal of the original record of the proceedings under Sections 107/151, of the Code of Criminal Procedure, initiated pursuant to Ex.DA/1 that the appellants cannot be permitted to take any advantage of Ex.DA/1 as its author is unknown and that any person could have signed as Balbir Singh s/o Ujjagar Singh, so as to create evidence in favour of the accused. 16. It is further argued that the two eye-witnesses, i.e., PW1 and PW2 have deposed in clear and categoric terms about the presence of the appellant at the scene of the occurrence. Merely because they are residents of Dera Bassi and are teachers there, would not rule out their presence at the place of occurrence. 16. It is further argued that the two eye-witnesses, i.e., PW1 and PW2 have deposed in clear and categoric terms about the presence of the appellant at the scene of the occurrence. Merely because they are residents of Dera Bassi and are teachers there, would not rule out their presence at the place of occurrence. On the absence of any blood-stained earth lifted from the spot, counsel for the State contends that this circumstance is irrelevant as there is other evidence, sufficient to implicate the appellants. Similar is the argument as regards the absence of blood on the Kassi (spade). The alleged discrepancy between the site of the injury in the Medico-legal report and the post mortem report, is sought to be explained by urging that there was an apparent error in the post mortem report. It is not the case of the appellants that no injury was suffered by the deceased on his head. A mere error in the post mortem report, would not detract from the correctness of the prosecution version. 17. Insofar as the conviction of Pala Ram with the aid of Section 34 of the IPC, counsel for the State of Haryana contends that aforementioned finding does not suffer from any infirmity. Pala Ram exhorted his co-accused to teach the deceased a lesson and as a result. 18. Kesar Singh-appellant inflicted a Kassi (spade) blow. This is sufficient to infer common intention. It is not necessary that common intention arises by a prior plan. Common intention can arise, and in the present case did arise, at the spot and, therefore, the learned trial Court rightly invoked the provisions of Section 34 of the IPC. It is, however, argued that the learned trial Court erred in convicting the appellants under Section 302 of the IPC and holding that the offence made out was one under Section 302 Part-I of the IPC. The blow inflicted by the appellants, the ferocity thereof, the site of the injury, namely, the head and the resultant demise, is sufficient to place the offending act as one defined under Section 300 of the IPC. The learned trial Court was not justified in convicting the appellants for an offence under Section 304-I of the IPC, on the ground that the fight was a sudden, without preparation and a single blow was inflicted. The learned trial Court was not justified in convicting the appellants for an offence under Section 304-I of the IPC, on the ground that the fight was a sudden, without preparation and a single blow was inflicted. This course adopted by the learned trial Court is inherently flawed and, therefore, the appeal filed by the appellants be dismissed and the appeal filed by the State of Haryana for enhancing of sentences be allowed. 19. I have heard learned counsel for the parties and have perused the record. 20. While impugning the veracity of a prosecution case, delay, by itself, is not a circumstance, that could enure to the benefit of an accused. It is only unexplained and unwarranted delay coupled with the likelihood of tailoring the evidence to suit the prosecution case, that could enure to the benefit of an accused. There is no binding precedent or rule of law that the prosecution evidence has to be discarded on account of delay. The factum of delay, requires a Court to scrutinise the evidence, adduced with a greater degree of care and caution. The learned trial Court, in my considered view, rightly discarded the contention raised by the appellants that delay in lodging of the FIR, had been occasioned as the complainant and his family members were perfecting their story and tailoring it to implicate the appellants. The occurrence allegedly took place on 24.4.1988 at Village Budhanpur. Ujjagar Singh was immediately transported to the Primary Health Centre, Panchkula. On that very date after providing first aid and recording the medico-legal report, Ujjagar Singh was referred to General Hospital, Sector 16, Chandigarh, where he was provided treatment. As his condition worsened, he was referred to the PGI, Chandigarh, on 30.4.1988. The matter was reported to the police on 30.4.1088 and the FIR was lodged, by PW1 - Hardev Singh. PW6 Dr. Lalit Virmani, who attended Ujjagar Singh, at the Primary Health Centre, Panchkula, has noted in the document Ex.PE that he examined Ujjagar Singh at 3.20 a.m. on 24.4.1988 and referred him to General Hospital, Sector 16, Chandigarh, after preparation of the medico-legal report. He goes on to write that it was not his duty to inform the police and even otherwise, as he did not have any class IV staff, he could not inform the police. The doctor at General Hospital, Sector 16, Chandigarh, also failed to inform the police. He goes on to write that it was not his duty to inform the police and even otherwise, as he did not have any class IV staff, he could not inform the police. The doctor at General Hospital, Sector 16, Chandigarh, also failed to inform the police. The complainant was busy in trying to save the deceaseds life and to expect him to rush to the Police Station, to lodge his version of the event in my considered opinion, would be putting premium on the negligence of the doctors at the Primary Health Centre, Panchkula and those who attended to Ujjagar Singh at Civil Hospital, Sector 16, Chandigarh. These doctors were duty bound to have reported the matter to the police. Thus, in my considered opinion, though the lodging of the FIR suffers from delay, it is not such delay, as would warrant the setting aside of the appellants conviction and sentence. Delay was occasioned, by the causal attitude of the doctors at Panchkula and Chandigarh. The doctors, as has been held by the learned trial Court, failed to perform their duty. In this view of the matter, the contention raised by the counsel for the appellants that the delay of more than 6 days would be fatal to the prosecution, in my considered opinion, does not merit acceptance. 21. The next point urged by the counsel for the appellants, is based upon Ex.DA/1, dated 24.4.1988, exhibited in the statement of PW6, the Inspector. It is no doubt true that the Ex.DA/1 recounts a different version of the occurrence, to the one narrated by the prosecution witnesses. However, the authenticity of Ex.DA/1 is in serious doubt. The author of Ex.DA/1, is alleged to be one Balbir Singh s/o Ujjagar Singh. In order to establish its authenticity and to prove that it had been lodged by Balbir Singh, the appellants should have produced Balbir Singh. Merely because a document stands exhibited, would not prove its authenticity. An exhibited document does not prevent the Court from considering its validity, in accordance with law. The learned trial Court, upon a perusal of Ex.DA/1 and the record, which was retained in original, rightly arrived at a conclusion that reliance could not be placed thereon, as it appeared to have been manufactured with the object of preparing a defence for the appellants. The learned trial Court, upon a perusal of Ex.DA/1 and the record, which was retained in original, rightly arrived at a conclusion that reliance could not be placed thereon, as it appeared to have been manufactured with the object of preparing a defence for the appellants. I find no illegality or infirmity in the findings returned by the trial Court and consequently hold that document Ex.DA/1 was rightly rejected by the trial Court and, therefore, contentions of counsel for the appellants based upon the document Ex.DA/1 merit outright rejection. 22. Another contention, pressed into service, namely, that no blood-stained of earth was recovered from the spot and no blood was found on the spot, in my considered opinion, in the facts of the present case, do not merit acceptance. The recovery of the weapon of offence was made from an open space, at the instance of the accused. The witnesses of recovery and the disclosure statement have been examined. The two eyewitnesses have clearly and categorically deposed that the weapon of offence was a kassi (spade). There is nothing on record to establish that kassi was not used in the offence. The mere fact that no blood was found on the kassi (spade) or that no blood was lifted from the spot, would not confer any benefit upon the appellants. It would be appropriate to note here that the offence came to the notice of the police after 6 days and, therefore, it can logically be presumed that no blood-stained earth was available to be recovered and that the Kassi (spade) would also not reveal any traces of human blood. In this view of the matter, the above contention is without merit. 23. The contention for the counsel for the appellants as to a discrepancy as to the site of the injury, in the medico-legal report and the post mortem report, in my considered opinion is inconsequential. It is not the appellants case that the deceased did not succumb to a head injury. The medico-legal report, as also the post mortem report, reveals a head injury to the deceased, which injury is stated to be the cause of death. A slight difference in the site of injury, in my considered opinion, would make no difference to the facts of the case and error made by one of the doctors cannot be utilised to claim acquittal. 24. A slight difference in the site of injury, in my considered opinion, would make no difference to the facts of the case and error made by one of the doctors cannot be utilised to claim acquittal. 24. Insofar as the conviction of Pala Ram with the aid of Section 34 of the IPC, counsel for the appellants has vehemently contended that as the incident occurred suddenly, without premeditation or prior preparation, and as no over tact has been attributed to Pala Ram, Section 34 should not have been invoked. 25. Common intention is an act performed by several individuals in furtherance of their common intention. For an inference of common intention it is not necessary that all persons must inflict an injury. It is not necessary that common intention must be the result of a prior pre-mediated plan to commit an offence. Meeting of minds, in furtherance of common intention, can develop at the spot or during the course of commission of an offence. Common intention, thus, can be formed prior to, during the course of the occurrence or even at the spur of a moment. It is a question of fact, to be established and proved by the prosecution on the facts and circumstances of each case. As to the nature of "common intention" reliance can be placed upon a judgment of Honble Supreme Court reported as Suresh and another v. State of U.P., 2001(2) R.C.R.(Criminal) 78 : 2001(2) All Indian Criminal Law Reporter 677, where, after taking into consideration a large number of judgments, on the question of Section 34 of the IPC, the Honble Supreme Court held as under : "Section 34 of the Indian Penal Code recognises the principles of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a concern intention pre-supposes prior concert, which requires a pre-arranged plan of the accused participating in an offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a concern intention pre-supposes prior concert, which requires a pre-arranged plan of the accused participating in an offence. Such a pre-concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. Dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as the Code) is the element of participation in absence resulting in the ultimate "criminal act". The "act" referred to in latter part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the "ultimate criminal act done" by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word act used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown to not have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown to not have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have pre-conceived result that ensured in furtherance of the common intention." 26. Examining the facts in the present case, in the light of the law, as enunciated by the Honble Supreme Court, I am of the considered opinion, that the learned trial Court did not commit any illegality in invoking Section 34 vis-a-vis Pala Ram. His exhortation led to appellant No. 1 pick up the kassi (spade) and inflict the fatal injury, on the head of the deceased. As has been held above, common intention being a question of fact, to be inferred from the circumstances of each case, I am of the considered opinion, that the learned trial Court did not commit any illegality while arriving at a inference that the appellants had acted in furtherance of their common intention to inflict an injury upon the deceased. The said finding, in my considered opinion, does not call for any interference. Merely because appellant No. 2 did not inflict any injury to the deceased and stood aside while Kesar Singh inflicted the injury or that the words used by him would not reflect a signal to Kesar Singh to inflict such an injury upon the deceased as would cause death would not be sufficient to discard the findings returned by the trial Court. 27. Counsel for the appellants further argued that the fact that the injury was inflicted by the reverse side of a spade and a single blow was inflicted, would place the offence within Section 304 Part-II of the IPC and not Section 304 Part-I of the IPC. Counsel for the State of Haryana, on the other hand, has contended that the offence is one under Section 302 and not under Section 304-I. 28. The two parts of section 304 operate in separate spheres. Intention and knowledge cannot be equated with one other. Knowledge may be presumed from intent but intent cannot be inferred from knowledge. Counsel for the State of Haryana, on the other hand, has contended that the offence is one under Section 302 and not under Section 304-I. 28. The two parts of section 304 operate in separate spheres. Intention and knowledge cannot be equated with one other. Knowledge may be presumed from intent but intent cannot be inferred from knowledge. There exists no hard and fast rule, nor can any such a rule be set down that by inflicting of a single blow the offence would not fall within the provisions of Section 300, and must always fall within Section 304-I or 304 Part-II. The totality of the circumstances, the weapon of offence, the intention of the assailants, the site and nature of the injury, the behaviour of the accused, before, during and after the offence and the motive, if any, are circumstances that would indicate whether the offence falls under Sections 300, 304-I or 304-II. The only ingredient, common to all, is death. For an offence falls under Section 300 of the IPC and to be then punishable under Section 302 IPC, it would be appropriate to refer to a judgment of Honble Supreme Court in Virsa Singh v. State of Punjab, AIR 1958 SC 465, while considering the ingredients of Section 300 IPC, held as follows : "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. 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." 29. In addition of the above judgment another judgment of the Honble Supreme Court merits (mention) where in Shankar Narayan Bhadolkar v. State of Maharashtra, 2004(2) R.C.R.(Criminal) 508 : 2004(2) Apex Criminal 648 : 2004(3) All India Criminal Law Reporter, 327, held as follows :- "These observations of Vivian Bose. J., have become locus classicus. The test laid down by Virsa Singhs case (supra) for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied, i.e., (a) that the act which causes death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted. Thus, according to the rule laid down in Virsa Singhs case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point." 30. Applying the principles of law, as noticed hereinbefore, I am of the considered opinion, that the offence committed by the appellants does not fall within the definition of Section 300 of the IPC, nor does it fall within the definition of offence, punishable under Section 304-II of the Indian Penal Code. In my considered opinion, the learned trial Court rightly held that the nature of the offence, falls within the definition of Section 304-I of the IPC. Section 304 deals with situations, where culpable homicide does not amount to murder, i.e., does not fall within the definition of murder, as contained in Section 300 of the IPC. Section 304 is sub-divided into two parts. Section 304 deals with situations, where culpable homicide does not amount to murder, i.e., does not fall within the definition of murder, as contained in Section 300 of the IPC. Section 304 is sub-divided into two parts. If an injury is inflicted with the knowledge and intention that it is likely to cause death, but with no intention to cause death the offence would fall within the definition of Section 304-I, however, if there is no intention to cause such an injury, but there is knowledge that such an injury can cause death, the offence would fall within the definition of Section 304-II. Thus, the essential difference between an offence under Section 304-I and 304-II, is intention. If intention to cause such an injury as is likely to cause death, is established, the offence would fall under Part-I but where no such intention is established and only knowledge that the injury is likely to cause death, is established, it would fall under Part-II. As has been noticed hereinbefore, there were two eye-witnesses to the occurrence, namely, PW1 Hardev Singh and PW2 Karam Chand. Both the witnesses have clearly and categorically supported the prosecution version. Both have clearly deposed that Pala Ram exhorted Kesar Singh, and as a result Kesar Singh picked the kassi (spade) and brought it down on the head of the deceased. Thus, the allegations with regard to the commission of offence have to be deposed by both the witnesses to the effect that the Kassi (spade) was brought down, on the head of the deceased from the reverse side. This fact, in my considered opinion, was rightly taken note of by the learned trial Court while holding that the offence would fall within the definition of Section 304-I and not Section 300 of the IPC punishable under Section 302 thereof. However, the nature of the injury, the weapon of offence, the intention and knowledge of the assailants, in my considered opinion, clearly places the offence as one under Section 304-I of the IPC. Appellant No. 1 inflicted the injury with knowledge and intention that the injury, if inflicted is likely to cause death, but with no intention to cause death. However, the nature of the injury, the weapon of offence, the intention and knowledge of the assailants, in my considered opinion, clearly places the offence as one under Section 304-I of the IPC. Appellant No. 1 inflicted the injury with knowledge and intention that the injury, if inflicted is likely to cause death, but with no intention to cause death. However, as from the facts and circumstances of the present case, and the fact that it was a sudden fight, a single blow, inflicted with the reverse side of a Kassi, it cannot be stated that he had an intention to, cause death, as required to make out an offence under Section 300 of the IPC. 31. In this view of the matter, the learned trial Court did not commit any illegality and consequently, the findings returned by the learned trial Court do not call for any interference, more so when the deposition made by the prosecution witnesses have remained consistent despite searching and detailed cross-examination. 32. In view of what has been stated above, I find no merit, in the present appeals and the same are dismissed. Bail bonds, submitted by the appellants in Criminal Appeal No. 61-SB of 1993, are cancelled and the appellants be taken into custody forthwith for undergoing remaining sentence.