Important Point
Where the accused did not really intend to give the fatal blow to the victim with whom he had no enimity and the dispute which occasioned the death was not such which could have prompted accused to cause death accused could be convicted only u/s 304, Part II and not u/s 302.

Judgment

Nanavati, J.-Aggrieved by the judgment and order of acquittal passed by the High Court of Rajasthan in Criminal appeal No. 368/81, the State has filed this appeal. The respondent was convicted by the trial Court for the offence punishable under Section 302 IPC and sentenced to suffer imprisonment for life.

2. The prosecution case was that relations between Satyanarayan-the accused and Bhima-his neighbour were not good as they had a dispute with respect to construction of a boundary wall and previously there was some litigation also between the parties. On the day of the inci­dent, that is, on 26.11.80 at about 7.00 a.m., Bhoridevi, wife of Bhima, was sweeping in front of her house. At that time, accused Satyanarayan was standing near the window on the first floor of his house and spate out water on Bhoridevi. That led to an exchange of words between her and the accused Satyanarayan. The accused came down and continued quarreling with her. By that time, other inmates of Bhima’s house also came out. The accused then attacked P.W. 2 Satyana­rayan @ Kaliya, a relation of Bhoridevi, with an iron pipe. He also injured Ram Gopal (P.W. 9) and Bhoridevi (P.W. 5) and then went back to his house. Kesar Lal-brother of Bhima, then went near the house of the accused and started questioning the accused as to why he was quarreling like that in the morning. Thereupon, the accused came out of his house with a knife and inflicted a blow on the abdomen of Kesar Lal as a result of which his intestines came out. The accused then ran away from that place. It was the prosecution case that as a result of that injury Kesar Lal died and that during the investigation that knife was discovered by the accused.

3. In order to prove its case, the prosecution had examined nine eye witnesses, out of whom four were injured during the incident. Out of the remaining eye witnesses-P.W. 1-Sitaram, P.W. 4-Kaluram and P.W. 12-Rajdevi were, the neighbours who had seen the incident. The trial Court accep­ted the evidence of the injured witnesses as they received corroboration from P.Ws. 1, 4 and 12 against whom nothing could be alleged by the defence. The house of the accused and Bhima were adjacent to each other and, therefore, presence of the injured witnesses was natural. As it was established that the accused had come out with a knife and given a blow to Kesar Lal the trial Court convicted him for the offence punishable under Section 302.

4. Aggrieved by the conviction and sentence, the appellant preferred an appeal to the Rajasthan High Court. Strangely, without discussing the prosecution evidence, the High Court held that the defence ver­sion, that the complainant and his family members had come to his house to attack him, that at that time P.W. 2-Satyanarayan had a knife, that when P.W. 2 tried to inflict a blow on him, he moved aside and it landed on Kesar Lal and that Kesar Lal was injured not by him but by his own son-P.W. 2-Satyanarayan, was more probable.

5. The High Court has neither discussed the prosecution evidence nor has it given reasons for disbelieving it and holding that the defence version was more probable. It was, therefore, submitted by the learned counsel for the appellant that the judgment of the High Court deserves to be set aside.

6. As observed earlier, the houses of Bhima and the accused were adjoining and the incident took place infront of their houses. That P.W. 2-Satyanarayan, P.W. 5- Bhoridevi, P.W. 9-Ram Gopal and P.W. 11 Phoolchand were injured during the incident, is proved by their evi­dence and the evidence of the Doctor who had examined them on that very day. The fact that they were injured ensures that they had seen the incident. They have stated that after causing injuries to them with an iron pipe, the accused had entered his house and closed the door. At that time, Kesar Lal had come there and started complaining as to why the accused was quarreling like that in the morning. The accused came out with a knife and inflic