JUDGMENT A.N. Jindal. J.:- Om Parkash (deceased) was murdered by his own brother Mahavir on 18.5.1995, in the area of village Naya Atela, Police Station Badhra, as a sequel of which, accused-appellant Mahavir (hereinafter referred to as ‘the accused’) was tried and convicted under Section 302 IPC. Consequently, he was sentenced to undergo rigorous imprisonment for life. 2. The facts as unfolded by the prosecution, in brief, are that Shyamo, mother of the accused, was first married to Amar Singh, out of whose loins Suraj Bhan and Chander Bhan were born. On the death of Amar Singh, she contracted karewa marriage with Dariya Singh, brother of Amar Singh, from whose loins, the accused Mahavir, Om Parkash (deceased), complainant Satbir Singh and three other sons were born. 3. The accused was residing illegally with Bala Devi wife of Phool Singh (brother of the accused), whereas Phool Singh was residing separately in his house. Om Parkash did not relish this act of accused and he used to advise him time and again that he was not doing proper. Om Parkash (deceased) and Satbir Singh were residing together in one house and other brothers used to reside separately. 4. The accused was begabound and was involved in number of cases under Excise Act. On the morning of 18.5.1995, at about 11.00 AM, the accused was quarrelling with Bala Devi and Rajesh son of Phool Singh, in the house of his brother Suraj Bhan regarding Tobacco crop. In the meanwhile, Om Parkash (deceased), his wife Roshni and Satbir Singh complainant reached the house of Suraj Bhan. On seeing Om Parkash, the accused exhorted that he would teach him a lesson for interfering in his affair time and again. Thereupon, he inflicted a Kulhari blow on the neck of Om Parkash. Resultantly, he fell down and the accused ran away with the Kulhari. In the process of shifting him to the hospital, he succumbed to the injuries. 5. On the aforesaid statement Ex.PK, made by Satbir Singh complainant before SI Rameshwar Dayal on 18.5.1995, at about 2.30 PM, a case FIR Ex.PK/2 was registered at Police Station Badhra at 3.05 PM and the special report reached the Duty Magistrate, Dadri on the same day at about 7.30 PM. 6. 5. On the aforesaid statement Ex.PK, made by Satbir Singh complainant before SI Rameshwar Dayal on 18.5.1995, at about 2.30 PM, a case FIR Ex.PK/2 was registered at Police Station Badhra at 3.05 PM and the special report reached the Duty Magistrate, Dadri on the same day at about 7.30 PM. 6. SI Rameshwar Dayal, proceeded to the village Naya Atela; prepared inquest report Ex.PH; got the dead body photographed; got conducted postmortem examination; took into possession the blood stained earth from the spot; blood stained hawai chappals; prepared the rough site plan Ex.PT. of the place of occurrence; and recorded statements of the witnesses. He also took into possession the clothes of the deceased vide recovery memo Ex.PU. On 28.6.1995, he arrested the accused. On 30.6.1995, he got recovered the Kulhari from the accused in pursuance to his disclosure statement. On completion of the investigation, the accused was challaned. 7. A formal charge under Section 302 IPC was framed against the accused, to which he pleaded not guilty and claimed trial. 8. In support of its case, the prosecution examined Vijay Kumar, Draftsman (PW1), Jiwan Ram, Photographer (PW2), HC Ram Singh (PW3), Constable Mainpal (PW4), Dr. Kundan Kumar (PW5), Satbir Singh complainant (PW6), Roshni (PW7), SI Rajender Singh (PW8) and SI Rameshwar Dayal (PW9). After tendering into evidence affidavits Ex.PC, Ex. PD, Ex.PE, Ex.PQ and Ex.PR of Constable Ram Dhari, Constable Gela Ram, MHC Mahender Singh, Constable Dara Singh and Constable Ram Dhari respectively, and after tendering into evidence reports of the Forensic Science Laboratory Ex.PO and Ex.PO/1, and after giving up Chater Singh and Rajesh as having been won over by the accused, and after giving up HC Dev Vrat, DSP Udey Shankar Sharma and Kitab Singh, being unnecessary, the prosecution closed its evidence. 9. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further pleaded that Satbir and Roshni were having illicit relations to which he objected and on that account Satbir and Roshni PWs were inimical towards him. He further stated that on 18.5.1995, he heard cries of Rajesh Kumar and when he rushed towards the house of Suraj Bhan, he saw that Satbir and Roshni were running towards their house, whereas Om Parkash was lying in an injured condition in the house of Suraj Bhan. He further stated that on 18.5.1995, he heard cries of Rajesh Kumar and when he rushed towards the house of Suraj Bhan, he saw that Satbir and Roshni were running towards their house, whereas Om Parkash was lying in an injured condition in the house of Suraj Bhan. He was falsely implicated at the instance of Satbir PW. Initially, he being innocent was let off by the police but on the intervention of the family members and other respectables he was again arrested on 27.6.1995 from his village and was implicated in this case. 10. Despite the opportunity, the accused did not lead any evidence in defence. 11. Ultimately, the trial ended in conviction. Hence this appeal. 12. We have heard Mr. R.N. Kush, learned counsel for the appellant, Mr. M.S. Sindhu, learned Deputy Advocate General, Haryana and have perused the records of this case with their able assistance. 13. Since the prosecution version was supported by Satbir complainant (PW6) and Roshni (PW7), both the eye witnesses of the occurrence, and their testimonies stood corroborated by the medical evidence, therefore, the accused had not much to assail the prosecution version. Even otherwise, on scrutiny of evidence, it comes out that the prosecution has been successful in proving its case. The occurrence took place at 11.00 AM on 18.5.1995, the statement of Satbir Singh Ex.PK was recorded by SI Rameshwar Dayal at the bus stand of village Naya Atela at 2.30 PM and the formal FIR was registered at Police Station Badhra on the same day at about 3.05 PM. The distance between the village Naya Atela and the Police Station Badhra is 18 kms. The special report reached the Duty Magistrate, Dadri on the same day at about 7.30 PM. The murder of Om Parkash was committed by none else but by his real brother (accused). The motive is duly proved on record that the accused was living illegally with Bala Devi wife of Phool Singh to which Om Parkash has been raising objections. The accused did not relish to the objections raised by Om Parkash, therefore, finding occasion he committed the murder. Though the accused took a parallel plea that Roshni and Satbir had developed illicit relations and they committed murder of Om Parkash but implicated him in this case, yet the same stands unsupported by any evidence. The accused did not relish to the objections raised by Om Parkash, therefore, finding occasion he committed the murder. Though the accused took a parallel plea that Roshni and Satbir had developed illicit relations and they committed murder of Om Parkash but implicated him in this case, yet the same stands unsupported by any evidence. None of the family members has come forward to support this plea. As such, no iota of doubt remains in our mind to accept the prosecution version. 14. Faced with the situation, learned counsel for the appellant, has made a submission that it is a case of single injury caused on the heat of moment on account of sudden quarrel, therefore, the offence, if any, committed by the accused, in the given circumstances of the case, falls within the purview of Section 304 Part-II IPC. 15. Before we determine the offence, we reiterate to examine the facts and circumstances emanating from the evidence on record. The evidence on record discloses that: (i) the accused having been armed with Kulhari, a sharp edged cutting instrument, was quarrelling with Bala Devi wife of Phool Singh, who was residing with the accused in those days and also with the son of Phool Singh at the house of Suraj Bhan; (ii) it is in evidence that the accused was residing with Phool Singh’s wife, whereas Phool Singh was residing separately; (iii) Om Parkash (deceased) was not relishing to this act of the accused and he used to advise the accused that it was not proper for him; (iv) the accused was taking ill of it; (v) on the day of occurrence, Om Parkash, on hearing quarrel between the accused on the one side and Bala Devi and his son Rajesh on the other side, went to intervene, but he was unarmed; (vi) Om Parkash did not even utter a word, whereas the accused took ill of the interference made by him and exhorted him to teach a lesson. Consequently, he inflicted a Kulhari blow which he was already carrying in his hand on the vital part of the body of Om Parkash i.e. neck with such a force that he fell down and collapsed within a minute; (vii) the accused had no regret or remorse; (viii) he did not try to save his brother, but fled away with the weapon of offence; and (ix) there was no grave or sudden provocation on the part of the deceased, rather the accused took undue advantage of the fact, situation and caused injuries to Om Parkash while expressing his grudge that why he was interfering in the acts of the accused time and again. 16. The pivotal question in order to determine whether the offence falls under Section 302 IPC or 304 Part II IPC, is the intention. The Apex Court while determining regarding intention of the accused, whether the act falls under Section 304 Part II IPC recommended to take into consideration , various factors which have been enumerated in case Pulicherla Nagaraju, alias Nagaraja Reddy vs. State of A.P.(2007) 1 Supreme Court Cases 500, while observing as under :­ “29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters-plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed; jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may. “ 17. From the aforesaid observations of the Apex Court, we are persuaded to hold that causing of single blow may be one of the circumstance to take out the offence from the purview of Section 302 IPC but the only blow given by the accused by itself would not mitigate to one culpable homicide not amounting to murder. We have following cases, where the single blow inflicted by the accused resulting in death, have been found to be sufficient for conviction of the accused under Section 302 IPC :­ 1. Virsa Singh vs. State of Punjab; AIR 1958 SC 465; 2. Gudar Dusadh vs. State of Bihar, 1972 SCC (Crl.) 438; 3. Vasanta vs. State of Maharashtra, 1983 SCC (Crl.) 535, and 4. Jai Parkash vs. State (Delhi Administration), 1991 SCC (Crl.) 299. 18. Virsa Singh vs. State of Punjab; AIR 1958 SC 465; 2. Gudar Dusadh vs. State of Bihar, 1972 SCC (Crl.) 438; 3. Vasanta vs. State of Maharashtra, 1983 SCC (Crl.) 535, and 4. Jai Parkash vs. State (Delhi Administration), 1991 SCC (Crl.) 299. 18. While elaborating the legal position regarding single blow injury, the Apex Court in case Jagrup Singh vs. State of Haryana, AIR 1981 SC 1552 observed as under:­ “6. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304 Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull. he must in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause firstly or clause thirdly. 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 “ 19. While discussing the judgments as referred to above, the Apex Court in Pulicherla Nagaraju alias Nagaraja Reddy vs. State of A.P. 2007 (1) SCC (Crl.) 500 case (supra) observed that the single blow having been given with great force, causing injury on the vital part of the body, was sufficient to bring out the case out of the Exception fourth of Section 300 and the accused could be convicted under Section 302 IPC. In the instant case also, the accused attacked the deceased when he has not caused any provocation and he was unarmed. He’ had not invited that quarrel but had just gone to see as to what had happened and as to why the accused was quarrelling. Om Parkash collapsed within a minute after receiving injury. Dr. Kundan Kumar (PW5) found the following injuries on the person of Om Parkash:­ “1. He’ had not invited that quarrel but had just gone to see as to what had happened and as to why the accused was quarrelling. Om Parkash collapsed within a minute after receiving injury. Dr. Kundan Kumar (PW5) found the following injuries on the person of Om Parkash:­ “1. There was incised wound on left of neck, obliquely placed, 10 x 5 cms and margins of wound were clean cut. Wound cutting upto blood vessels, muscles of neck (Wound mid line to upward on left). The esophagus was also cut. Thyroid cartilage and trachea was also cut. Extra-vasation of blood in tissue present. Hyoid bone was also cut on left side. Carotid and jugular vein of left side cut. Walls and cartilage healthy. Pleura, larynx, trachea, right lung and left lung were pale and both chambers of heart were empty. Peritoneum was pale. Esophagus cut in neck. Stomach contained semi digested food material. Small intestine, large intestine, liver, spleen, kidneys were pale and bladder was empty. Organs of generation were healthy.” He also opined that the injury was sufficient to cause death in the ordinary course of nature. Having considered the medical evidence and while analyzing the facts on the parameters as laid down by the Apex Court in Pulicherla Nagaraju alias Nagaraja Reddy’s case (supra), we could not convince our mind to hold that the single blow given by the accused, in the given circumstances of the case, particularly keeping in view the nature, size of weapon i.e. Kulhari, used by the appellant, the force in which the weapon was used, part of the body over which the injury was caused i.e just over the neck, a vital part of the body, the nature of the injury resulted in an instantaneous collapse leading to death, leaves no room to doubt that the intention of the accused was to cause death or to cause such bodily injury which was sufficient, in the ordinary course of nature, to cause death. For the foregoing reasons, we do not want to interfere with the judgment whereby the accused was held to have committed an offence under Section 302 IPC. Hence, the appeal being un-merited is dismissed. Chief Judicial Magistrate, Bhiwani to procure custody of the accused-appellant Mahavir for serving remaining part of his sentence. ——————————-