Shankar Mahia Andher vs Union of India (UOI)

Shafi Parkar, J.—The appellant convicted u/s 302 of the Indian Penal Code and sentenced to life imprisonment by the judgment and order dated 12th August, 1994 delivered by the learned Sessions Judge, Dadra and Nagar Haveli, Silvassa, in Sessions Case No. 9 of 1993, has preferred this appeal impugning his conviction and sentence.

Originally, there were four accused who are interrelated. The accused No. 2 is the son of the accused No. 4 and the accused Nos. 1 and 3 are husband and wife. Accused No. 1 is the first cousin of accused No. 2 and nephew of accused No. 4. The date of the incident is 28.6.1993 when one Lallu Maria Andher, son of accused No. 4 and brother of accused No. 2, was murdered. Deceased Lallu was thus the first cousin of the appellant. The appellant (original accused No. 1) was charged for the offence of murder of deceased Lallu u/s 302 of the Indian Penal Code. The remaining accused, being accused Nos. 2, 3 and 4 were charged for offence u/s 302 read with Section 114 of the Indian Penal Code for having abetted and instigated the appellant for committing the murder of deceased Lallu. By the impugned judgment and order dated 12th August, 1994, the learned Sessions Judge had acquitted the accused Nos. 2, 3 and 4 and convicted the appellant original accused No. 1 for offence u/s 302 of the Indian Penal Code and sentenced him to life imprisonment.

The prosecution case which led to the conviction of the appellant, briefly narrated, is as follows :

The deceased and the accused who were interrelated, were residents of Silvassa in the Union Territory of Dadra and Nagar Haveli. The deceased, the accused No. 2 and their father, the accused No. 4, were cultivating their family land separately on different portions. There was dispute between the deceased on the one hand and his brother, the accused No. 2 and his father, the accused No. 4 on the other hand, in respect of their land. There was a mango tree in their land. The appellant Shankar had purchased mangoes from the said tree and the deceased claimed some amount in respect thereof towards his share. The appellant had also borrowed a sum of Rs. 700/- from the deceased Lallu and the latter was frequently making demands for the repayment of that amount. All the accused and the deceased were residing in the same locality. However, the accused Nos. 2 and 4 and the deceased Lallu were residing in the same house, though messing separately. On the date of the incident, there was quarrel about fertilizer between the deceased and the accused No. 2 at about 6 o''clock in the evening. Deceased Lallu demanded fertilizer from his brother accused No. 2 who told him that the same had been given to the appellant and, therefore, expressed his inability to offer the same to the deceased. When the quarrel was going on between the two brothers, deceased and the accused No. 2, in front of their house, the appellant Shankar who was staying nearby came with an wooden piece called "tippani" and assaulted the deceased Lallu with it. He gave blows on the head, neck and back of Lallu. At the time of the assault, accused Nos. 2, 3 and 4, Lalita the wife of deceased Lallu, who had lodged the F.I.R., since dead, P.W. 5 Champaben and P.W. 8 Premiben and others were present. At that time, many people from the locality including P.Ws. 3 to 8 had gathered. As the deceased fell down due to the assault made on his head by the appellant, he was taken to Cottage Hospital at Silvassa in an autorickshaw by P.W. 3 Raman and Lalita, the wife of the deceased, her brother Ashwin and his wife. In the hospital, Medical Officer P.W. 1 Dr. Magan Dhodia declared Lallu dead and intimated about the same to the police station, Silvassa. After the said intimation was received by the police, P.W. 11 Head Constable Prabhatsinh Parmar went to the hospital and recorded the complaint of Lalitaben, the wife of the deceased Lallu. The said complaint is First Information Report which is at exh. 26. On the basis of the said F.I.R., crime was registered under C.R. No. 143/93. After registering the offence, the investigation was entrusted to Sr. P.S.I. J. M. Rathod (P.W. 12) P.S.I. Rathod proceeded on the same night to the place of the incident and kept the police guard there and also made search for the accused. He also recorded the statements of various witnesses, including P.W. 3. On the following morning at 8 o''clock P.S.I. conducted the inquest on the dead body in the presence of panchas which is at exh. 21. The dead body of Lallu was referred to the Medical Officer for post-mortem examination. He then drew panchanama of the place of the incident in the presence of panchas. Bloodstains were seen on the ground at the place of the incident. Muddemal article No. 3, the wooden "tippani" was lying there. The said ''"tippani" was also bloodstained. Panchanama of the scene of offence was prepared which is at exh. 23 under which samples of earth and blood mixed earth were collected from the place of incident and the wooden "Lippani" was seized. He then recorded the statements of various witnesses, including P.W. 4 and P.W. 7. On that day at about 5 p.m., the appellant and accused No. 2 were arrested under the arrest panchanamas exhibits 30 and 31, respectively. At the time of his arrest, the shirt and pant (muddemal articles No. 6 and 7} were attached from the person of the appellant, which were found to be bloodstained. The shirt and pants from the person of the accused No. 2, being muddemal articles No. 8 and 9 were also attached. Both the accused were referred to the Medical Officer for collection of their samples of blood and hair.

28th July, 1998.

The dead body was sent for post-mortem which was conducted by P.W. 1 Dr. Maganbhai on 29.6.1993 between 9.15 a.m. and 10.10 a.m. The post-mortem examination report is at exh. 10. After the postmortem examination, the dead-body and the clothes of the deceased were handed over to the head constable. The clothes of the deceased (muddemal articles No. 4 and 5) were attached under panchanama (exh. 27). The statements of ten more witnesses were recorded by Investigating Officer, Rathod on 30th June, 1993. The statement of P.W. 6 was recorded on 1st July, 1993. The accused No. 4 was arrested on 8.7.1993 while the accused No. 3 was arrested on 9.7.1993. On 29.7.1993 the muddemal articles and blood samples of the deceased and all the accused were forwarded to the Director of Forensic Science Laboratory at Ahmedabad along with forwarding letter at exh. 32. On 21st September, 1993, the post-mortem report was received by the I.O. and on 24th September, 1993 charge-sheet had been filed in the Court of the Chief Judicial Magistrate at Silvassa. The report from the Director of Forensic Science Laboratory (exh. 33) was received on 24.12.1993. As the offence was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court on 17.10.1993.

At the time of the trial, the complainant Lalita, the wife of the deceased, was not available for giving evidence as she had died on 15.8.1993, within a short time after the murder of her husband. On behalf of the prosecution, a number of witnesses, including six eyewitnesses were examined. Out of them, four witnesses P.Ws. Nos. 3, 4, 6 and 7 had turned hostile and did not support prosecution case in the Court about assault on the deceased by the appellant accused No. 1. Only P.Ws. 5 and 8 supported the prosecution case as eye-witnesses. The other witnesses are P.W. 1 Medical Officer who conducted the postmortem; P.W. 11 is head constable Parmar who recorded the F.I.R. and registered the offence. P.W. 12 is P.S.I. Rathod who had investigated the offence. The other witnesses are the panchas to the various panchanamas and P.W. 2 is the Circle Officer from the Revenue Department who drew the map of the scene of offence.

The defence of the accused was of total denial. According to him, he had been falsely implicated due to enmity on account of land dispute. The Sessions Court, after considering the evidence led by the prosecution and the defence of the accused, convicted the appellant accused No. 1 for offence u/s 302 and sentenced him to suffer life imprisonment. The rest of the accused were acquitted.

Mr. Manudhane, learned Counsel appearing for the appellant, initially tried to challenge the conviction of the appellant. He submitted that four out of the six eye-witnesses had turned hostile and did not support the prosecution case with regard to the assault alleged to have been made by the appellant on the deceased. He further submitted that out of the two eye-witnesses who had supported the prosecution case, P.W. 8 Premiben Vesta Varli is the wife of the elder brother of the deceased and, therefore, was an interested witness and no credence should be given to her testimony. He also tried to point out minor discrepancy about time between the evidence of the eye-witnesses and the F.I.R. lodged by the wife of the deceased. Whereas F.I.R. mentions the time of offence as about 6.30 p.m., the eye-witnesses P.W. 5 and P.W. 8 state the offence having taken place at about 6 p.m. We do not think this discrepancy would affect the truthfulness of prosecution case. The F.I.R. in this case was lodged by the wife of the deceased Lalita who, as per the evidence of P.W. 11 head constable Prabhatsinh Parmar died on 15th August, 1993 i.e. about one-and-a-half month after the incident and, therefore, could not be examined on behalf of the prosecution. The immediate F.I.R. filed by the wife was a detailed one and we find no material discrepancy in the F.I.R. vis-a-vis the testimonies of two eye-witnesses P.W. 5 Champaben and P.W. 8 Premiben except that the F.I.R. is given in more detail. It is, however, well-settled that F.I.R. is not a substantive piece of evidence and can be used only for the purpose of corroboration or contradicting the deposition of the maker thereof. In the case of Dharma Rama Bhagare Vs. The State of Maharashtra, the Supreme Court has in para 7 of the judgment clearly laid down that by no means the F.I.R. can be utilized for contradicting or discarding other witnesses who could not have any desire to spare the real culprit and to falsely implicate an innocent person.

We have been taken through the evidence of P.W. 5 Champaben. This witness is not related to the deceased but stays in the neighbourhood of the accused persons where the incident had taken place. In her evidence, she states that when she returned from the field and went to the boring pump for drawing water at about 6 p.m., she saw the deceased Lallu and his brother Shailesh (accused No. 2) quarrelling. She further states that when the two were quarrelling, the appellant Shankar came there and assaulted Lallu with "tippani" (article No. 3, a heavy piece of wood weighing one-and-a-half kg.) generally used for levelling the agricultural field. She further states that the appellant had assaulted the deceased with the said weapon on his head and as a result of which the deceased fell down. No omission or contradiction has been pointed out in the testimony of this witness. In cross-examination, she has categorically denied the suggestion put to her on behalf of the other accused that the said weapon was brought by the deceased Lallu. This witness corroborated the other eye-witness P.W. 8 Premiben, who is the wife of Vestabhai Varli, the elder brother of the deceased and the accused No. 2.

The presence of this witness P.W. 8 also cannot be doubted. She was residing in a house which is adjacent to the house of the deceased, the accused No. 2 and their father. She has also stated that at about 6 p.m. on the date of the incident when the deceased was about to go to the petrol pump, his father (accused No. 4) called Shankar, the appellant, from his house. Seeing the deceased coming out of his house, the appellant came running with the wooden "tippani" in his hand and assaulted on the head and neck of the deceased. When the deceased fell down, the accused Nos. 1 to 3 ran away. When she asked the accused No. 4 as to why he had done so, he threatened to kill her. She has further stated that the weapon "tippani" was thrown at the place of the incident by the accused No. 1 before he ran away. She along with the complainant, the wife of the deceased, tried to give water to the deceased but he could not drink. Thereafter, P.W. 3 Raman and Ashwin removed the injured to the hospital. A question was put to her in the cross-examination whether she learnt about the assault on the deceased after she went near the deceased to which she answered saying that after going there, she herself had seen the assault. Mr. Manudhane tried to discredit her testimony by pointing out that in her cross-examination, she stated that she did not see the actual assault by "tippani" on the head. This, in our view, cannot be used to belie her testimony. She has affirmed that she saw the assault by the appellant with the weapon. What she had said in cross-examination was that she did not see the assault on the head.

The evidence of these two eye-witnesses, in our view, cannot be disbelieved as they are the natural witnesses and had no enmity with or grudge against the appellant to falsely implicate him. The testimony of these two witnesses is not in conflict with the F.I.R. immediately lodged by the wife of the deceased. Their testimony is corroborated by the medical evidence of Dr. Maganbhai (P.W. 1) who had performed the post-mortem examination on the dead body. According to P.W. 1, the Medical Officer attached to Cottage Hospital at Silvassa, he found multiple abrasions on right side of neck of the deceased below his right ear. On internal examination, he found following injuries :

(i) CLW over left parietal and occipital bone with 3 cms. x 5 cms. in dimension;

(ii) fracture of left parietal and left occipital bone ; and

(iii) brain haematoma in brain substance at the side of fractured bone.

According to the Medical Officer, the cause of death was intracranial haemorrhage and shock. The Doctor has deposed that the injury No. (ii) above was responsible for causing the death of the deceased. According to him, the injuries were arise-mortem caused by assault with hard object on the head and the head injury in column 19-11 could be possible by wooden piece like muddemal article No. 3 before the Court which is called "tippani" in vernacular. In cross-examination, the Doctor has testified that the internal Injuries could be caused by a simple blow given by an object like "tippani", muddemal article No. 3. The medical evidence thus corroborates the ocular testimony.

The testimony of eye-witnesses is further corroborated by the circumstances which clinchingly point to the guilt of the appellant. Muddemal article No. 3 i.e. "tippani", which is said to have been used by the appellant to assault the deceased was found at the place of the offence and was attached under the spot panchanama. As per the deposition of P.W. 5 Champaben Patel, "tippani" was lying there after the assault. P.W. 8 Premiben Vestabhai Varli has stated that "tippani" was thrown at the place of the incident by the appellant after the assault. The incident had taken place around 6.30 p.m. and the I.O. had arrived at the scene after intimation was received in the police station from the hospital where the deceased was taken immediately after the incident. He went to the place of the incident immediately and had kept the police guard at the spot. On the following morning after drawing an inquest on the dead body and referring the dead body for post-mortem examination, the I.O. again went to the place of the incident and drew panchanama of the place of offence between 9 a.m. and 9.45 a.m. in the presence of two panchas. The said panchanama is at exh. 23. At the place of the offence, blood was seen on the ground and "tippani" (muddemal article No. 3) was lying there which was found bloodstained. The I.O. had collected the earth mixed with blood and seized the "tippani" and towel which were lying at the place of the offence under the spot panchanama. The said muddemal article "tippani" was sent for chemical analysis. As per the report of the Director of Forensic Science Laboratory, "tippani" was stained with blood group ''B'' which is that of the deceased.

As per the report of the Forensic Science Laboratory (exh. 33), the blood group of the deceased was ''B'' while that of the appellant was ''O''. Muddemal article No. 3 i.e. "tippani" as well as the shirt of the appellant, which was muddemal article No. 6 were also found stained with blood group ''B'' which is that of the deceased. His pant article No. 7 was stained with human blood, but the blood group was undecided. Thus, the blood on the clothes of the appellant is an incriminating circumstance against the appellant which sufficiently corroborates the ocular testimony and proves the involvement of the appellant in the murder of the deceased. It may be mentioned here that I.O. in para 3 of his deposition and the trial Judge in para 4 of his judgment have wrongly mentioned the clothes of the appellant as muddemal article Nos. 4 and 7 instead of 6 and 7. This position is evident from exh. 32, the letter forwarding muddemal articles to the Forensic Laboratory and is fairly conceded by both the counsel before us.

The finding of blood of group ''B'', which is that of the deceased, on "tippani" used for assault on him corroborates the ocular evidence, as regards the place of offence from where it was seized under spot panchanama ex. 23. According to P.W. 8, "tippani" was thrown there by the appellant when the deceased fell clown after the assault on him by the appellant and then the latter ran away. It is significant to point out that, according to C.A. report, blood group ''B'' was also detected on samples of earth mixed with blood collected from the place of offence under spot panchanama which is that of the deceased, thus corroborating the testimony of the eye-witnesses about the place of offence.

The prosecution has also brought on record the motive. In a case where there is evidence of eye-witnesses, motive is not at all necessary to be proved. Yet there is evidence on record to show that the appellant had enmity with the deceased because the latter was demanding repayment of loan of Rs. 700/- given by him to the appellant which annoyed the latter. Secondly, there was also dispute between the two as, against the wishes of the deceased, his father (accused No. 4) had sold mangoes of their tree to the appellant and the latter was not paying the share of the deceased.

On the aforesaid facts brought on record by the prosecution, we have no manner of doubt that it is the appellant who was responsible for causing the death of the deceased in the manner deposed to by the eye-witnesses.

Mr. Manudhane then submitted that the offence fall under the provisions of Section 300 punishable u/s 302 of the Indian Penal Code. He contended that no intention can be attributed to the accused as required for the purpose of conviction for murder u/s 300 of the Indian Penal Code, According to him, at the most, the appellant could be said to possess the knowledge of the consequence of his act and, therefore, his case would be covered by or fall under the clause or part 3 of Section 299 of the Indian Penal Code and will be punishable under Part II of Section 304 of the Penal Code or maximum under Part I of Section 304 of the said Code, In support of his contention, he has cited some judgments of the Apex Court and of this Court which we will advert to hereinafter.

We do not agree with the submission of Mr. Manudhane that the offence against the appellant is covered by or falls under clause 3 of Section 299 punishable u/s 304 of the Indian Penal Code. Section 299 of the Indian Penal Code, as we read it, defines in general what is culpable homicide which may or may not amount to murder. Main Section 299 of the Indian Penal Code, without illustrations and explanations, Is as follows :

Culpable homicide whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

(Underlining supplied)

The said section is illustrated by three examples and provides three explanations. It is followed by Section 300 under the heading "murder" which contains four main clauses defining the offence of murder. The reading of Section 300 would show that if the offence falls under any one of those four clauses of Section 300, culpable homicide would amount to murder which is made punishable u/s 302 of the Indian Penal Code. Those clauses are again illustrated by four examples added to the section and contains five exceptions under the heading, "when culpable homicide is not murder". The five exceptional cases u/s 300 are further illustrated by examples and made subject to provisos and also contain explanations. As per the said exceptions, the culpable homicide will not amount to murder if the case falls under any one of those five exceptions mentioned in Section 300 of the Indian Penal Code. It is manifest from these two provisions of the Indian Penal Code i.e. Sections 299 and 300 that Section 299 defines only in general, what is culpable homicide. Culpable homicide is divided into two types u/s 300 of the Code for the purpose of punishment. If the case falls under any one of the main four clauses of Section 300 of the Indian Penal Code, which are virtually verbatim repetition of the three clauses of Section 299 of the Code, it becomes punishable u/s 302 of the Indian Penal Code. However, if the case is covered by any of the exceptions u/s 300, the offence will be punishable u/s 304 of the said Code. It is only after the offence is held to fall under any one or more of the five exceptions to Section 300 that the Court has to find out whether culpable homicide not amounting to murder was committed with the intention as referred to in the first part of Section 304 or with the knowledge that it is likely to cause death in which case it would be punishable under Part II of Section 304 of the Indian Penal Code. In other words, unless the offence of murder falls under any of the exceptions embodied in Section 300, it cannot be made punishable u/s 304 of IPC. The requisite intention or knowledge is not the factor which determines whether the offence is punishable u/s 302 or u/s 304 of the Code. The determining or the differentiating factor is the applicability or otherwise of any of the exceptions provided u/s 300 of the Penal Code. If this distinction is borne in mind, we have no manner of doubt that in the light of the aforesaid scheme of the Penal Code, the offence in question cannot be said to be punishable u/s 304 Part II or even under Part I of Section 304 of the Indian Penal Code as being covered under clause 3 of Section 299 as submitted by Mr. Manudhane. According to him, the appellant could only be said to have the knowledge that by his act he was likely to cause death and, hence it was an offence u/s 299 punishable u/s 304, In our view, the contention raised by the defence counsel is the result of misreading of the aforesaid provisions of the Penal Code, as there is no question of application of Section 304 ipso facto to any of the clauses of Section 299 of the Code.

Coming to the facts of the instant case, the quarrel at the time of the incident had taken place between the accused No. 2 and the deceased on the question of manure or fertilizer. The deceased had demanded manure from his brother (accused No. 2), but he showed his inability on the ground that it was already sold to the appellant. It appears that the father of the deceased (accused No. 4) and his brother (accused No. 2) were not having cordial relations with the deceased and had dispute over selling of manure and the mangoes to the appellant. When the quarrel was going on between the two brothers, the appellant came out from his house with the wooden weapon called "tippani" in regional parlance and assaulted the deceased on his head. The force with which the assault was made becomes obvious from the injuries sustained by the deceased on his head resulting in fracture of the parietal and occipital bones causing haematoma on the brain. The wooden muddemal article No. 3 "tippani", as per the spot panchanama (exh. 23) was very heavy weapon made of teak wood. It was having four-and-a-half inch long round handle. The main portion of "tippani" is more than a feet long and the width is around 5 inches and three-and-a-half inches thick near the handle. It''s weight is shown to be one-and-a-half kg. We have ourselves seen this wooden weapon which is very heavy. The said weapon is used for levelling, ground in the agricultural field and, therefore, is required to be heavy and strong. The appellant is stated to have come out of his house with this weapon and though he himself was not party to the quarrel which was going on between the deceased and his brother (accused No. 2), the appellant assaulted the deceased with the above weapon on the head and back or neck.

Referring to the evidence of P.W. 5 Champaben to the effect that ''tippani" was lying there, Mr. Manudhane tried to argue that the appellant appears to have picked up the weapon which was lying there and had not come prepared armed with the said weapon. We cannot agree with the said argument. Another eye-witness P.W. 8 Premiben has stated in her evidence that the appellant came out running from his house with "tippani" In his hand and assaulted the deceased on his head and neck. She further stated that after assaulting the deceased, the appellant left the weapon at the place of the incident and ran away. The said weapon was lying at the place of the incident and was seized under the spot panchanama (exh. 23). Although the spot panchanama was drawn on the following morning, a constable was posted there to guard the place of offence for the whole of the previous night until the spot panchanama was drawn. The said weapon was also found stained with the blood group of the deceased which is ''B''. If we read the evidence of P.W. 5 Champaben when she stated that "tippani" was lying there, in the light of the above evidence, it becomes at once clear that what she meant was that after the incident "tippani" was lying there.

When the heavy weapon like "tippani" was used on the head of the deceased with such force that it resulted in the fracture of left parietal and occipital bone and causing brain haematoma and the victim instantly falling on the ground and could not even drink water which was offered to him immediately by his wife and P.W. 8 Premiben and was declared dead as soon as he was admitted to the hospital, the only inference that can be drawn, in the circumstances, is that the appellant had assaulted the deceased with the intention of causing his death or, in any event, the appellant had intended to cause such bodily injury on the head of the deceased which he knew to be likely to cause death or was sufficient in the ordinary course of nature to cause the death of the deceased or had the knowledge that his act was so imminently dangerous that it must, in all probability, cause death or such bodily injury as was likely to cause death, and therefore, would be covered by clauses secondly, thirdly and fourthly of Section 300 of the Indian Penal Code. In the facts and circumstances of this case, as discussed above, the offence cannot fall under any of the five exceptions mentioned in Section 300 of the Indian Penal Code.

Mr. Manudhane then submitted that this may be the case of culpable homicide not amounting to murder as the assault was made by the appellant without premeditation in a sudden fight in the heat of passion due to the quarrel. We cannot agree with the said submission. First of all, there was no fight between the deceased and the appellant nor was there any quarrel between the two at the time of the incident. The only quarrel which was spoken of by the witnesses is the one which took place between the accused No. 2 and the deceased who were real brothers. The appellant was not at all a party to this quarrel. Hearing the quarrel between these two brothers, the appellant who was his cousin and having grown a grudge against the deceased on account of the demand made for the repayment of the loan by the deceased and for the payment of his share in respect of mangoes purchased by the appellant from the tree of the family and owing to the land dispute referred to by the appellant himself in his 313 statement, comes out from his house, armed with a weapon like muddemal article No. 3 and hits on the vital part of the body i.e. the head of the deceased with such force that it resulted into the fracture of the parietal and occipital bones making the brain visible and causing haemorrhage to the brain. The only witness who referred to the appellant being party to the said quarrel was P.W. 3 Ramanbhai Patel. He was examined as an eyewitnesses but did not support prosecution case. He stated in his evidence that he saw quarrel going on between Lallu i.e. deceased and accused Nos. 1 and 2 but the Advocate for the appellant in the cross-examination of this witness proved the omission and the witness admitted that there was no mention in his police statement that he saw Shankar i.e. the appellant at the place of the incident. We, therefore, have no doubt that the offence committed by the appellant is squarely covered by the main clauses of Section 300 of the Indian Penal Code and does not fall under any of the five exceptions mentioned in the said section and, therefore, the appellant was rightly convicted and sentenced u/s 302 of the Indian Penal Code.

This brings us to deal with the decisions of the Apex Court and of this Court cited and heavily relied upon by Mr. Manudhane. The first of the said decision is the judgment of the Apex Court in State of Haryana and others Vs. The Karnal Co-op. Farmers'' Society Limited, etc. etc. and others, . That was a case where the Apex Court had altered the conviction from Section 302 to one u/s 304 Part II where the incident of assault had taken place due to the quarrel between the deceased and the accused themselves. There was hot exchange of words between the two and the weapon which was used by the accused was only a stick and not a weapon as heavy and as strong weighing one-and-a-half kg., like "tippani" as in the instant case. In this case, as we have stated earlier, the quarrel was not between the appellant and the deceased.

(emphasis supplied )

Another judgment cited by Mr. Manudhane is in the case of Hardev Bhanji Joshi Vs. State of Gujarat, . In that case, the Sessions Court had acquitted the accused and the High Court setting aside the order of acquittal, convicted the accused u/s 302 of the Indian Penal Code. That was a case where blow was given on the head of the deceased from the blunt side of the axe when quarrel had taken place between the deceased and the accused in the field. As reported, there was a quarrel between the two and the assault had taken place in a sudden manner.

(emphasis supplied )

In those facts, the Supreme Court had altered the conviction from Section 300 to one u/s 304 Part II.

The next case cited by Mr. Manudhane is the decision in Ramaotar Vs. State of Madhya Pradesh, . In that case, the accused were father and son the father having been acquitted. The son who had given lathi blows on the deceased on the head and ribs was convicted for offence u/s 302 of the Indian Penal Code. It was found that the accused himself had received injuries on his hands.

(emphasis supplied )

The defence was of exercise of right of private defence which was not accepted. It was, in these circumstances, that the Apex Court altered the conviction from Section 302 of the Indian Penal Code to Section 304 Part II. Thus, the fact of that case bear no resemblance to the facts in the instant case.

Mr. Manudhane then relied upon the decision of the Supreme Court in Hem Raj Vs. The State (Delhi Administration), . It was found in that case that the accused had inflicted a single stab wound on the chest of the deceased. The occurrence took place on a spur of moment and in the heat of passion upon sudden quarrel without premeditation.

(emphasis supplied )

It was in those circumstances that the Apex Court altered the conviction from Section 302 to Section 304 Part II.

Mr. Manudhane lastly cited the decision of the Division Bench of this Court in Shankar Kondiba Gore Vs. State of Maharashtra, . That was a case where a stab wound was caused with knife in the abdomen of the deceased and as a result of which the right artery was punctured at ileum. The Bench holding that the offence would fall u/s 299 of the Indian Penal Code and not u/s 300 of the Indian Penal Code altered the conviction from Section 302 to one u/s 304 Part II. The Court held that the assailant could not have intended death on the ground that the assailant cannot be fastened with the intention of puncturing or cutting the artery in the abdomen and, therefore, the Division Bench of this Court convicted the accused u/s 304 Part II. The cases galore where the victims receiving knife injuries in the stomach or abdomen survive. In the instant case, requisite intention or knowledge can be inferred from the assault given with force on the head of the deceased.

Thus the above cases cited by Mr. Manudhane were decided on the peculiar facts of those cases and do not bear resemblance with the instant case.

In the result, we confirm the order of conviction and sentence recorded by the learned Sessions Judge and dismiss the appeal.