IMPORTANT POINT
In the facts and circumstances of the case the order of conviction as confirmed by High Court under Sections 302 and 323 IPC cannot be said to be wholly unwarranted on the theory of causing them under self defence as deceased party was not proved to be aggressors. Nor conviction can be converted from Section 302 IPC to Section 304 Part-I IPC on ground that death was caused by single blow only.

Headnote:(i) Indian Penal Code, 1860-Sections 302 and 323-Conviction of appellant for offences under-Appeal to Supreme Court-Whether the order of conviction as confirmed by the High Court remains wholly unwarranted, since injuries inflicted on the deceased and his brother cannot but be termed to be in self-defence? (No).
       Held : Hereinbefore in this judgment the first issue pertains to a question as to whether the complainant party can be termed to be aggressors or not? The learned Sessions Judge negated it and so did the High Court. A bare perusal of the injury report of Hukam Chand as a matter of fact negates the theory of aggression, as introduced by the defence. No serious injuries have been shown to have been received by any of the accused persons and the pretended explanation as set up under Section 313 that Udai Chand received the fatal blow on his head from his own arms cannot but be termed to be otherwise not creditworthy neither acceptable. On the wake of the aforesaid the aggression theory completely fails and we answer the first issue thus in negative. (Para 12)
       (ii) Indian Penal Code, 1860-Sections 302 or 304 Part I-Nature of offence-Whether murder or culpable homicide not amounting to murder? Single blow by aggressive party on complainant party-Causing death-Whether covered by AIR 1993 SC 1487? (No, in this case)-Result-Appeal dismissed.
       Held : While it is true that there was only one blow but the medical evidence on record definitely indicates that the severity of the blow was such that it was sufficient for causing death. In Pularu (supra) the appellant dealt only one blow with an agricultural implement. This Court having regard to the fact that Pularu was an agriculturist came to a conclusion that question of there being any intent to cause death of the deceased would not arise since he was not armed with any deadly weapon as such. Presently, however, the situation is slightly different. Hukam Chand was in the house. He was called in and he arrived at the scene and place of occurrence with a Pharsa which by all means is a deadly weapon and it is this Pharsa which was used to hit the deceased at his head resulting in immediate collapse and subsequent death. The story set up by the appellant, as noticed hereinbefore belies the incident and cannot but be ascribed to be a totally fabricated one. Injuries suffered by Udai Chand, the deceased, cannot be said to be inflicted as a matter of chance while grabbling with each other. The nature of the injuries, as noticed hereinbefore, depicts it otherwise. If that be the case which stands to reason that there was in fact a deliberate Pharsa blow on the deceased, then and in that event, a simple question by itself would negate the plea of the accused, namely as to the reason why Hukam Chand arrived at the place of occurrence with a Pharsa in his hand. The factum of bringing in the Pharsa at the place of occurrence from his house when he was sent for cannot be ignored. It definitely indicates the intent to use it and thereby cause death. On the wake of the aforesaid, we are unable to record our concurrence on the second count as well, as addressed by the appellant. In that view of the matter, we do feel it expedient to record that judgment impugned does not warrant any interference. The appeal thus fails and is dismissed. (Paras 16, 17 & 18)

JUDGMENT

Banerjee, J.-The appellant by the grant of special leave of this Court is in appeal from the order of the Punjab and Haryana High Court affirming conviction for an offence under Section 302 IPC and sentence to undergo imprisonment for life and further to pay a fine of Rs.50,000/-. The appellant has further been convicted under Section 323 IPC and sentenced to imprisonment of six months and both the sentences, however, were directed to be concurrent.

2. Two principal issues stand canvassed for consideration in the appeal. Firstly, the order of conviction as confirmed by the High Court remains wholly unwarranted, since injuries inflicted on the deceased cannot but be termed to be in self-defence and secondly having credence on the entire prosecution story at the most the conviction should have been under Section 304 Part I and not under Section 302 IPC on the state of evidence available on record.

3. It is at this juncture, certain factual backdrop ought to be noticed. On 6th May, 1989, around 7.00 in the morning, PW.12 Kishori Lal son of Devi Sahai and his brother Udai Chand (since deceased) went to the fields of Chatur Bhuj, where a wheat thrasher had been installed for thrashing the wheat. A cart belonging to Kishori Lal was standing nearby from where Mani Ram and Tuhia @ Varinder picked up a Khes and started filling the fodder in the tractor trolley by laying the fodder on Khes. The complainant side asked them to return the Khes and there was by reason whereof some altercation between the two groups : whilst altercations, however, were on, Mani Ram asked his son Tuhia to inform his uncle so that he can come to lend support to Mani Ram s group. It is in pursuance of such a call that Hukam Chand arrived but armed with a Pharsa and it is this Pharsa by which Hukam Chand did inflict a blow on the head of Udai Chand and the latter on receipt of the same fell down. Whereas Mani Ram gave a Lathi blow on the head of Kishori Lal, Tuhia being the son of Mani Ram inflicted a Ballam blow on the right shoulder of Kishori Lal. The latter was also given a Ballam blow by Dayawati, wife of Hukam Chand and it is on the hue and cry that some other persons arrived on the spot and Udai Chand was removed to the Government Hospital, Mandkola and subsequently to B.K. Hospital, Faridabad and then to Safdajung Hospital in New Delhi.

4. The factual score further depicts that the Primary Health Centre sent a Ruqa to the local police station and ASI Rajinder Singh, upon a visit to the village Mandkola, came to know that the injured had been admitted in B.K. Hospital, Faridabad and subsequently to Safdarjung Hospital, New Delhi on 9.5.1989. The condition of Udai Chand, however, was rather serious, by reason wherefor no statement could be obtained but Kishori Lal s statement was recorded (Ex. PL). Subsequently, Udai Chand died on 12th May, 1989. Dr. A.K. Sharma (PW.2) conducted the post-mortem on the body of the deceased Udai Chand on 13.5.1989 and found a stitched wound of the length of 15 cm with 12 stitches placed anterio posteriorly above the middle of the head. Its anterior and being 6 cm above the root of the nose and posterior end was also 6 cm above the occipital protuberance. On opening the stitches, it was bone deep, margins were clean cut. The doctor also found that effusion of blood was present in whole of the scalp region. Cut fracture of the skull was present in the middle of the frontal bone and continued backwards all along the saggital suture, its anterior and continued in the floor of the skull in the right side of the anterior cranial fossa. It encloses two small depressed fractures one at the middle level of saggital suture as shown in the post mortem report and another just at the anterior end of the saggital suture. Anterior end of the cut fracture in the frontal bone also encloses small depressed fracture. Duramatter was cut anterio posteriorly just underneath the cut fracture. Extra dural haemotoma 0.3 cm in thickness and

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2002 Supreme(SC) 1045

Cases Referred (1)