IMPORTANT POINT
Absence of intention to cause the death coupled with the lack of knowledge that death would be inevitably caused on account of the injury would make the offence fall only under Section 304 Part-II, IPC, and not under Section 302, IPC.

Headnote:Indian Penal Code, 1860-Section 302-Murder-Conviction under Section 302-Alteration of conviction into Section 304 Part II-Legality of- Weapon used by accused was rukhani (an implement used by carpenters) - Two injuries on body of deceased - One injury serious-Sufficient to cause death in normal course-Positive motive neither attributed nor alleged nor proved-No clinching circumstance or evidence to establish culpability of accused for charge of murder-Absence of intention to cause death coupled with lack of knowledge that death would inevitably be caused-Offence fell under Section 304 Part II-High Court correct in altering conviction from Section 302 into one under Section 304, Part II.
Held : Except for certain inappropriate language used to express the conclusions of the High Court, the learned Judges could not be held to have committed any serious or grave error of law of great importance or that it could be legitimately contended for the appellant-State that in altering the conviction under Section 302, IPC, into one of Section 304 Part-II, on an appreciation of the evidence on record, any grave injustice has been caused. On the facts and circumstances of the case, we do agree with the claim on behalf of the appellant that there is no such thing as a regular or earmarked weapon for committing murder and that it would have been more proper to have used a better terminology and language to identify the weapon used by the accused, a Carpenter by profession himself, and the same being nothing but an implement used in carpentry, to be not really such a deadly weapon so as to cause, per se, any serious wound or a grievous hurt or injury to the victim. It is also not in dispute that of the two injuries found inflicted on the body of the victim, only one was found to be a serious one, which was considered in the normal course to be sufficient to cause death. Though the intrusion into the hut by the respondent in the early hours of the morning may be construed to be with a sinister intention or purpose, but from the type of the weapon he was carrying, it could not be either reasonably or legitimately postulated that it was with the intention of committing the murder of the victim or inflicting upon the victim such a grave/serious injury sufficient to cause her death, particularly when he would be fully aware of the fact that in the hut the father and the mother of the deceased would also be present at that time. If the observation of the Division Bench of the High Court is viewed in this context giving due allowance or lenience to the not too happy language used and consider the gravamen of the charge and sum and substance of the evidence placed on record, the inevitable consequence which follows should be that apart from any positive motive being either attributed in this case, or alleged or proved by the prosecution, there is no clinching circumstance or evidence to reasonably establish the culpability of the accused for a charge of murder. Absence of intention to cause the death coupled with the lack of knowledge that death would be inevitably caused on account of the injury would make the offence fall only under Section 304 Part-II, IPC, and not under Section 302, IPC. Consequently, in the absence of any motive or intention to kill and having regard to the type of weapon used and the number as well as the nature of injuries found inflicted, the case on hand could not appropriately be said to be one warranting the application of Section 302, IPC. The High Court has chosen to also impose the maximum punishment of ten years. That apart, we find no important principle of law is involved and no grave impropriety would result nor injustice would be caused in sustaining the judgment of the High Court. The High Court, therefore, in our view, was justified in converting the conviction of the respondent by altering the same into one under Section 304 Part-II, IPC, instead of Section 302, IPC. (Para 6)

JUDGMENT

Raju, J.- Special leave granted.

2. The State of Uttar Pradesh has come up in appeal against the judgment dated 13.2.98 of the Division Bench of the Allahabad High Court in Criminal Appeal No. 1299 of 1991 altering the conviction of the respondent from one under Sections 307 and 302, IPC, into one under Sections 302 and 304 Part-II substituting, as a consequence thereof, the sentence of five years R.I. and life imprisonment under Sections 307 and 302, IPC, respectively with five years R.I. and ten years R.I.

2. The case of the prosecution is that the respondent, a Carpenter by profession, at about 4 a.m. in the morning of 14.9.1988 entered the Jhopri (hut) of one Hori Lal, PW-2, who gave the first information with reference to the occurrence and is said to be the father of the deceased, and started assaulting Km. Phoolmati, the victim, with a rukhani (an implement normally used by the Carpenters). She raised an alarm on which PW-2 and Kalawati, PW-1, the mother of the victim, woke up and tried to intervene, but in the process the respondent gave some blows to them as well and after throwing away the rukhani he ran away from the place. The respondent was identified in the light of a burning lamp and on lodging a complaint at 5.15 a.m., the Police arrived at the scene of occurrence. The victim was taken to Ursala Hospital but was said to have succumbed to her injuries by the time she reached the Hospital. PWs-1 and 2 were also medically examined at 6.00 a.m. by PW-3, Dr. P.N. Bajpai, P.W-6, S.S.I., incharge of the Police Station at Juhi when the FIR was lodged, commenced investigation of the case and after examining in the course of the investigation and recording statements of PWs-1 and 2 in the Emergency Ward of the Hospital, took possession of the blood stained clothes of PW-1 and prepared its seizure memo. Thereafter, he visited the scene of occurrence also with PW-1 and thereupon prepared a site plan. He found blood lying on the spot and took plain and blood stained earth from the place of occurrence. An inquest on the body of the dead person was also held by Radhey Shyam Verma, who was deputed to hold the inquest on the body at the Hospital. A post-mortem was got conducted. Initially, the respondent was absconding resulting in the Report submitted for initiating proceedings under Sections 82 and 83, Cr.P.C. After completing the investigation, a charge sheet was filed in the Court and the Magistrate, who entertained the charge sheet, took cognisance of the offence and committed the case to the Court of Sessions.

3. The learned Sessions Judge, after framing the charges against the accused-respondent under Sections 307 and 302, I.P.C, who pleaded not guilty and claimed to be tried, examined the prosecution witnesses, nine in number, including two eye-witnesses, PWs-1 and 2. The respondent in his statement under Section 313, Cr.P.C., denied the case of prosecution and submitted that he had been falsely implicated on account of enmity and has not chosen to lead any evidence in support of his defence. The learned Sessions Judge believed the prosecution story and the version of the witnesses examined in support thereof and ultimately by his judgment dated 14.5.91 held that the prosecution has proved beyond reasonable doubt the guilt of the accused under Sections 302 and 307, IPC. After hearing on the point of sentence, the learned Sessions Judge imposed a punishment of five years R.I. under Section 307, IPC, and life imprisonment for the offence under Section 302, IPC. Both the sentences were to run concurrently.

4. Aggrieved, the accused respondent pursued the matter in appeal before the High Court and as noticed earlier, the High Court, while affirming the conviction of the accused under Section 307, IPC, chose to interfere in favour of the respondent by altering the conviction under Section 302, IPC, into one of Section 304 Part-II, IPC, by reducing also the life imprisonment to ten years R.I., while maintaining the sente

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2000 Supreme(SC) 1393

IMPORTANT POINTAbsence of intention to cause the death coupled with the lack of knowledge that death would be inevitably caused on account of the injury would make the offence fall only under Section 304 Part-II, IPC, and not under Section 302, IPC.

IMPORTANT POINT
Absence of intention to cause the death coupled with the lack of knowledge that death would be inevitably caused on account of the injury would make the offence fall only under Section 304 Part-II, IPC, and not under Section 302, IPC.