JUDGMENT 1. - Instant appeal is directed against impugned judgment & order dated 23.03.2007 passed by Special Judge, SC/ST (POA) Cases & Additional Sessions Judge, Sawaimadhopur in Sessions Case No. 81/2004 convicting accused appellant for offence U/s 302 IPC and sentenced to suffer imprisonment for life & to pay fine of Rs. 1000/-, in default of payment of fine to further undergo rigorous imprisonment for three months. 2. Taking brief facts of the case as unfolded by the prosecution are that Meetha Lal (PW4) lodged a written report (Ex.P15) at Police Station Malarna Doongar on 20.05.2004 alleging that on 19.05.2004 in the evening at about 6 pm when he was coming to village Bariyara after playing cricket in village Maanoli via village Didwada, on the way Dinesh S/o Rajaram fell down with fever and after taking cot from Manphool S/o Birbal Gujar of Didwada they were taking Dinesh to Badh-Bariyara on the cot, at that time four persons came from behind armed with 'Kulhadi'(axe) & 'lathis' and inflicted kulhadi blow at Kakad of Didwada & Aniyala, as result of which Munesh S/o Hanuman received serious injury on his head & was referred to SMS Hospital. It was further alleged that on account of fear Suresh (PW6) S/o Shambhu, and Vinod S/o Kanhaiya Lal, ran away from the spot and they narrated the story in the village then Rambilas S/o Gopi, Jairam S/o. Ramras, Ramesh S/o Gangaram & other persons, took Munesh in a tractor from the place of incident to Sawaimadhopur from the village in a jeep where his treatment is going on. 3. On receipt of written report, FIR-75/2004 for offences U/ss 341, 323, 307 IPC & Section 3 of SC/ST Act was registered and investigation commenced. 3. On receipt of written report, FIR-75/2004 for offences U/ss 341, 323, 307 IPC & Section 3 of SC/ST Act was registered and investigation commenced. However, during the course of investigation, Munesh succumbed to the injuries on 05.06.2004 after 18 days of the incident and Section 302 IPC was added and during the course of investigation, the accused appellant was arrested vide arrest memo Ex.P22 on 21.05.2004 and after completing the investigation, the police submitted charge-sheet on 17.08.2004 for offences U/ss 147, 148, 149, 307 & 302 IPC and U/s 3(ii) & 3(V) of SC/ST Act and charge was framed against the accused appellant for offences U/ss 148 & 302 IPC while against other co-accused Prem Raj, Thandi, Kalu @ Deshraj & Jagroop for offences U/Ss 148, 302/149 IPC who denied the charges and claimed to be tried. The prosecution produced as many as 25 witnesses and placed documents Ex.P1-Ex.P-47 in support of its case along with Article-1 to Article-12. The accused persons were examined U/s 313 Cr.P.C. and denied the allegation but didn't produce any witness in their defence and after hearing the parties, the learned trial Judge acquitted four other accused persons namely Premraj, Thandi, Kalu @ Deshraj & Jagroop from all the charges and also the present appellant for offence U/s 148 IPC but at the same time convicted & sentenced him vide impugned judgment & order dated 23.03.2007 for offence U/s 302 IPC and sentenced him for imprisonment, referred to supra. 4. Counsel for accused appellant submits that the incident had taken place on 19.05.2004 at about 6 pm, report for which came to be lodged on 20.05.2004 at 12:30 pm i.e. after almost 18 hours and there was no intention or malice against the appellant for inflicting axe blow on the vital part of the body of the deceased. 4. Counsel for accused appellant submits that the incident had taken place on 19.05.2004 at about 6 pm, report for which came to be lodged on 20.05.2004 at 12:30 pm i.e. after almost 18 hours and there was no intention or malice against the appellant for inflicting axe blow on the vital part of the body of the deceased. Munesh was taken to hospital immediately thereafter but the medical legal report was prepared on 22.05.2004 at about 9:30 am and as per medical legal report he sustained three injuries including two abrasions & one stitched wound on left parietal region and as per doctors' opinion, duration of the injuries was 2-3 days and as regards the stitched wound, no opinion in regard to the weapon which could possibly be used was opined and there was no explanation from the prosecution as to why the medical report of the injured was prepared on 22.05.2004, more so when he was admitted in the hospital on 20.05.2004 and under these facts & circumstances it could not be clearly stated that such injuries, in particular injury-3, which as alleged by the prosecution, was the cause of death, caused by the accused appellant by sharp edged weapon. 5. Counsel further submits that recovered articles have not been produced in court, in absence whereof no reliance could be placed upon such recoveries and even as per FSL report there was no blood stains on the axe and in view thereof it is doubtful whether the injury was caused by sharp or blunt weapon. 6. Counsel further submits that the learned trial Judge disbelieved the prosecution story as regards other four accused persons and while relying upon the same set of evidence convicted the accused appellant for offence U/s 302 IPC, without any corroboration from the independent witnesses. Counsel submits that it was not taken into consideration that the incident had taken place on 19.05.2004 at 6 pm and the injured Munesh expired on 05.06.2004 i.e. almost after 19 days of the incident and it was not the case of prosecution that accused appellant inflicted injuries repeatedly and there was any motive or intention to cause death of Munesh, in absence whereof conviction of the accused appellant for offence U/s 302 IPC is not sustainable. 7. 7. Counsel further submits that the prosecution failed to link genesis of the incident and the story put forth by the prosecution is ordinarily not believable at all, more so when the testimony of eye-witnesses on which strong reliance was placed by the learned trial Judge while convicting the accused appellant, namely PW5 (Shaukin) & PW10 (Vinod), both in their testimony deposed that accused appellant was not known to them and there was no previous enmity. Counsel submits that there could not be any remote possibility of a person with ordinary prudence to inflict injury which may cause death and it was also not the case of the prosecution that appellant had an intention of causing murder of the deceased or having knowledge that it was likely to cause death and under these facts & circumstances even on accepting the prosecution case, it is not possible that the accused appellant had an intention of causing murder of the deceased or was likely to cause death and as such the appellant didn't commit any offence U/s 302 IPC and at the best his act could have been considered under Part-II of Section 304 IPC. 8. Learned Public Prosecutor while supporting the findings recorded by the learned trial court in the impugned judgment submits that from the evidence recorded during trial, it was the appellant who inflicted the injury by sharp edged weapon on the body of the deceased by axe resulting into his death and as such intention & knowledge can be inferred from the nature of weapon being used to kill the deceased Munesh. Counsel submits that the injury caused on the body of the deceased and convicting the accused appellant for offence U/s is covered by clause-3 of Section 300 and he was rightly convicted for offence U/s 302 IPC and further submits that there may be single injury on the vital part of the body of the deceased but that if it is proved to be fatal and was the cause of death and even if the deceased succumbed to the injuries after about 19 days of the incident the testimony of the eye-witnesses deserves credence and the accused appellant has rightly been convicted U/s 302 IPC by the learned trial court and sentenced suitably. 9. We have considered the submissions on merits and minutely scanned the impugned judgment as well as record of the case. 10. 9. We have considered the submissions on merits and minutely scanned the impugned judgment as well as record of the case. 10. As per written report, Ex.P15, the incident took place on 19.05.2004 at about 6 pm and that came to be lodged by Meetha Lal (PW4) and the deceased when along with few of his other friends were returning back after playing cricket to their home one of their friend Dinesh became ill & was down with fever and as it was not possible for him to go on his feet, request was made to one Manphool S/o Birbal to provide them a cot and with his consent they took the cot, four of them held the cot and took their friend Dinesh along with them and while they were going to their home place, four of the assailants came from behind and other friends of the deceased Suresh & Vinod, they left away and one assailant inflicted injury on the body of Munesh by sharp edged weapon (axe) and who was admitted in the hospital and his medical legal report (MLR) (Ex.P47) was prepared on 22.05.2004 at about 7:15 pm. It will be appropriate to quote injuries sustained by him, which reads ad infra: 1. Abrasion 1x1cm with out Health bin Simple/blunt Lat. Part and Lt. Knee (i) Black till from below Lt. ear (on as region) (i) Skull AP Lat. Pt. Drawing duration 2-3 days pulse 90m BP 110/72 mmg. 2. Abrasion 1x0.8 cm with M/3 out Health be Lat part simple/blunt (2) Brown mole Lt Surfex Clavicle region 3. Stitched wound of each 7.6 cm/mm Scalp placed obliquely extending from region over parietal post aspect to the occipital region with sign of inflammation at the margin OR/Adv/exvding/weapon IP or 11. Drawing duration 2-3 days pulse 90m BP 110/72 mmg. 2. Abrasion 1x0.8 cm with M/3 out Health be Lat part simple/blunt (2) Brown mole Lt Surfex Clavicle region 3. Stitched wound of each 7.6 cm/mm Scalp placed obliquely extending from region over parietal post aspect to the occipital region with sign of inflammation at the margin OR/Adv/exvding/weapon IP or 11. It is pertinent to note that the general condition was quite under control and his blood pressure & pulse rate was normal and after the injured Munesh was referred to SMS Hospital, he was admitted in neuro surgery ward and operation was conducted by the doctor (PW20) on 27.05.2004 and after he succumbed to the injuries on 05.06.2004, autopsy on his body was conducted & prepared report vide Ex.P42, relevant part of postmortem report whereof reads ad infra : Post opened stitched wound of size 24 cm semi circular in shape placed at B/L parieto occipital region of skull with swelling in fresh disorder of skull & brain Skull-missing of bone size 12x14 cm B/L Parito occipital region on skull in done surgically # (Rt) side post cranias fossa membrance found stitched with brain matter Bulging out as fresh tissue of blue-sever brain olding part with pus and slight forte at site of operation with suffering of brain multiple content at palm of B/L parito temporal region of skull. Remarks By Medical Officer "The cause of death is shock as a result of antemortem injury to skull and brain and sufficient to cause of death in ordinary course of nature." Sd/- 5.6.04 Dr.N.L." 12. There were in all three injuries on the body of the deceased as opined by Dr. P.K. Saini (PW25) who appeared in support of MLR (Ex.P47)and who conducted autopsy on the body of the deceased namely Dr. N.L. Disania (PW19), in his statement also deposed that injury no. 3 was the cause of death and there was single injury on the vital part of the body of the deceased on skull and brain, which in the ordinary course of nature was sufficient to cause death. However, it was deposed by Dr. N.L. Disania (PW19), in his statement also deposed that injury no. 3 was the cause of death and there was single injury on the vital part of the body of the deceased on skull and brain, which in the ordinary course of nature was sufficient to cause death. However, it was deposed by Dr. N.L Disania (PW19) in cross-examination that it was not possible to opine regarding the weapon used for inflicting injury and the deceased carried infection and post operative apsus which can be for various reasons including the medicine not available or failed in taking proper medicine and swelling on the head may be on account of infection. The prosecution in the present case examined 25 witnesses including PW8 (Dinesh), PW5 (Shaukin), PW6 (Suresh) & PW10 (Vinod) and the learned trial court primarily placed reliance upon the statement of PW5(Shaukin) & PW10 (Vinod) while convicting the appellant U/s 302 IPC. 13. We have considered their testimony minutely. PW5 (Shaukin S/o of Shambhu Meena) in his testimony clearly deposed that while he was returning back after playing cricket along with deceased Munesh, Suresh, Manoj, Mahesh, Dinesh & Vinod at about 4-4:30 pm from Manoli while on the way one of their friend Dinesh felt ill & was down with fever and they were taking him on their shoulders and when they reached to Didwada, with the consent of Manphool they took cot from him and took Dinesh on the cot with them and while they reached at place Kakad they found that five persons were coming from behind having 'lathis' & 'karwari', immediately when those assailant persons were noticed three of them Manoj, Suresh & Mahesh, they left the cot & ran away but all the five surrounded Munesh and the appellant inflicted injury on his head by karwari. However, in cross-examination, he stated that the accused persons were not known to them and they had no previous enmity. At the same time, PW6 (Suresh) also in his testimony deposed that when it was noticed that they are being chased by 4-5 persons he ran away leaving aside the cot on which they were taking one of their friend Dinesh who was not feeling well. However, in cross-examination deposed that they had no previous enmity with the accused persons and were not known to them. However, in cross-examination deposed that they had no previous enmity with the accused persons and were not known to them. PW10 (Vinod) also in his testimony stated that while they were returning back after playing cricket at about 4-4:30 pm along with Suresh, Manoj, Munesh, Shaukin, Dinesh & Mahesh on the way their friend Dinesh felt ill & they took cot with consent and appellant along with other four co-accused chased them and the appellant inflicted 'kulhari' blow on Munesh and he started bleeding. However, PW8 (Dinesh) who was nine years of age at the relevant point of time in his testimony deposed that as they took the cot, on account thereof some altercation took place & appellant gave a blow on the head of Munesh by sharp edged weapon and he started bleeding. However, he admitted in his cross-examination that there was no previous enmity with the accused persons and they are not known to them. PW25(Dr. P.K. Saini) who prepared the medical legal report (Ex.P47) in his testimony deposed that injury-1 & 2 were simple bruises which can be caused while being shifted into vehicle and as regards injury-3 being on vital part of the body of the deceased was the cause of death but at that time his pulse & blood pressure were normal. PW19(Dr. N.L. Disania) who prepared PMR on the body of the deceased vide Ex.P42, opined that on the back side of skull there was stitch wound & injury-3 on his head could be sufficient in the ordinary course of nature to cause death. 14. It is not in dispute that on the same set of evidence all other co-accused persons who were charged for offence U/s 302/149 IPC were acquitted by the learned trial Judge vide impugned judgment. From the prosecution evidence which has come on record, it is at least manifest that the injury-3 was fatal and that was inflicted by none other than but by present accused appellant and on close scrutiny of the material and the statement of PW5 (Shaukin), PW10(Vinod) & PW6 (Suresh), we are satisfied that their testimony is worth reliable & can be relied upon. 15. 15. The question arises for consideration is as to whether the appellant is guilty of culpable homicide amounting to murder punishable U/s 302 IPC or is guilty of culpable homicide not amounting to murder and is entitled to get benefit of Exception-4 of Section 300 IPC ? 16. Section 299 defines culpable homicide while Section 300 IPC defines culpable homicide amounting to murder if the case is covered by any of the four clauses mentioned therein. Clause (b) of Section 299 corresponds to Clauses (2) & (3) of Section 300. In Clause (3) of Section 300, instead of the words likely to cause death occurring in the corresponding clause (b) of Section 299, the words sufficient in the ordinary course of nature have been used. Obviously, the distinction lies between bodily injury likely to cause death and an injury sufficient in the ordinary course of nature to cause death. To put it more broadly, it is the degree of probability of death which determines whether culpable homicide is the grievous, medium or the lowest degree. The word likely in Clause (b) of Section 299 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 the death will be the most probable result of the injury having regard to the ordinary course of nature. It is correct that by mere fact of a solitary blow on the vital part of the body resulting in the death of the victim does not always necessarily reduce the offence to culpable homicide not amounting to murder punishable U/s 304 Part-I or II IPC. Each case has to be decided on facts to determine whether the accused deliberately & intentionally gave the particular blow resulting in the death. To decide this aspect, all the facts & circumstances, namely the motive, the origin of the fight & the manner in which it took place have to be taken into consideration. If on facts & in the circumstances of the case, it cannot be definitely & pointedly held that the accused intended to cause that particular injury resulting in the death (sufficient in the ordinary course of nature to cause death) the offence shall not be covered by clause thirdly of Section 300 and it would be culpable homicide not amounting to murder punishable U/s 304 Part-II IPC. 17. 17. In Harjinder Singh v. Delhi Administration 1968 Cri LJ 1023 and Laxman Kalu Nikaley v. State of Maharashtra 1968 Cri LJ 1647 , the principle enunciated in Virsa Singh v. State of Punjab, AIR 1958 SC 465 was excluded because, the third ingredient laid down viz. the intention to cause the particular injury was likely to cause death, was not present. Similar views were expressed in Randhir Singh v. State of Punjab 1982 Cri LJ195 , Jagtar Singh v. State of Punjab 1983 Cri LJ 852 , and Khajan Pal v. State of U.P. (1990) 4 SCC 53 in Khajan Pal's case their lordships observed as order : "The evidence clearly established that the whole incident was a sudden development and that the appellant had acted at the spur of the moment and without any premeditation. There had been no ill-will or enmity between the two. A casual remark made by the appellant provoked the deceased and the altercation ensued which culminated in the stabbing with knife. The appellant used the knife only once and did not act in any cruel manner. It was the sudden quarrel in heat of passion that the appellant inflicted the injury on the deceased without any intention to cause death but having knowledge that such act was likely to cause the death of the deceased. In such circumstances, the act of the appellants falls under Exception 4 to Section 300, IPC and the appellant is liable to be convicted only under Section 304, Part II, IPC." 18. In Jagtar Singh's case (supra), the accused gave a knife blow on the chest of the deceased, Narendra Singh succumbed to the injury after some time. The incident preceded by exchange of abuses as deceased Narendra Singh was injured by the projecting 'Parnala' of the house of the appellant. The blow on the chest pierced deep inside the chest cavity resulting injury to the heart and this injury was sufficient in the ordinary course of nature to cause death. Considering the nature of the offence it was observed : "The question is whether in the circumstances in which the appellant gave a blow with a knife on the chest, he could be said to have intended to cause death or he could be imputed the intention to cause that particular injury which has proved fatal ? Considering the nature of the offence it was observed : "The question is whether in the circumstances in which the appellant gave a blow with a knife on the chest, he could be said to have intended to cause death or he could be imputed the intention to cause that particular injury which has proved fatal ? The circumstances in which the incident occurred would clearly negative any suggestion of premeditation. It was in a sudden quarrel to some extent provoked by the deceased, that the appellant gave one blow with a knife. Could it be said that para 3 of Section 300 is attracted. We have considerable doubt about the conclusion reached by the High Court. We cannot confidently say that the appellant intended to cause that particular injury which is shown to have cause death. There was no premeditation. There was no malice. The meeting was a chance meeting. The cause of quarrel though trivial was just sudden and in this background the appellant, a very young man gave one blow. He could not be imputed with the intention to cause death or the intention to cause that particular injury which has proved fatal." 19. Following the ratio of aforementioned decisions, we now examine facts of the instant case to consider whether the offence committed by the appellant Dharm Singh is U/s 302 IPC or 304 Part-II IPC ?. 20. From the evidence on record it is clear that the appellant had no animosity against the deceased and the incident took place all of a sudden without premeditation and as stated by the eye-witness the appellant gave single blow on the deceased and it appears that the reason was that they took the cot without permission and after the accused appellant along with other co-accused chased the deceased & others, the incident occurred. This possibility cannot be ruled out that impression must have been gathered that the deceased has stolen their cot and the appellant with other co-accused chased them and at this stage oral altercation took place and whatever the weapon the appellant held, he gave a single blow and was by chance inflicted on the head of the deceased, which in itself was insufficient or too trivial for causing death and in these circumstances it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he can be said to have the requisite knowledge that the death would otherwise be the inevitable result. The appellant was a young boy almost of the same age group of that of the deceased and he along with other friends returned back after playing cricket on the fateful day on 19.05.2004 and solitary blow given by the appellant with no attempt to repeat another blow the incident had taken place after the appellant & other co-accused chased the deceased along with other friends at a far distance with no premeditation or intention to kill the deceased. 21. Taking into consideration the entire incident in totality of the facts and circumstances, it appears that the solitary blow was given by the appellant probably being provoked when some quarrel/altercation took place to know from the deceased, with whose permission he took the cot from their house and under these facts & circumstances, it cannot be held with certainty that he intended to cause the particular injury sustained by the deceased, though it landed on his vital part of the body resulting in his unfortunate death. 22. We therefore are of the confirmed view that conviction of the appellant U/s 302 IPC is not sustainable in the eye of law and it should be scaled down U/s 304 Part-II IPC. It has come on record that the appellant was arrested as is evident from the arrest memo initially on 21.05.2004 and was bailed out on 03.12.2005 and is in custody after passing of the impugned judgment dated 23.03.2007 and as such has suffered imprisonment for more than 7 years & 5 months. 23. Accordingly, we allow this appeal in part. Conviction & sentence of the appellant U/s 302 IPC is hereby set aside. 23. Accordingly, we allow this appeal in part. Conviction & sentence of the appellant U/s 302 IPC is hereby set aside. He is in jail since 23.03.2007 and remained in judicial custody for more than 7 years & 5 months of imprisonment. Therefore, in our view ends of justice will meet, if the imprisonment awarded which has been undergone by the appellant in custody, is awarded to him as punishment for offence U/s 304 Part-II IPC. The accused appellant who is in jail, be released forthwith if his custody is not required in any other case. The impugned judgment and order of the learned trial court is modified to the above extent.Appeal partly allowed. *******