IMPORTANT POINT
It can not be held in every case of single injury would show absence of intention to will & type of weapon used & body part against which injury was caused would also be important aspects to be kept in view.

ORDER

The deceased has been killed as a result of single gun shot. According to the post mortem report the ante-mortem injury which the deceased suffered was as under:

"Gun shot wound of entry area 3/4" X 1.5" X cavity deep margins inverted lacerated blackening and tattooing present front of Abd. left 3/4" at 2 o clock to umbilicus & from left to right inward and backward."

2. The facts in brief are that the wife and son of the deceased informed him when he returned home at about 7:00/7:30 p.m., that the appellant had broken their cakes of cow dung in the afternoon between 11:00 to 1:00 p.m. The deceased went to the house of the appellant to complain about it. He was accompanied by his son Kishan Lal (PW2). There the accused abused the deceased and removed the gun that was handing on the door of his house. Seeing this the deceased with his son left the house of the appellant. The accused went after the deceased. Again there wa altercation on road. The accused was carrying the gun with him. He shot the deceased in the abodmen and ran thereafter. As a result of the gun shot injury the deceased died on the spot. The appellant was charged for the offence under section 302 IPC. He has been convicted by the trial court. His conviction has been upheld by the High Court.

3. Mr. A.K. Chitale, learned counsel for the appellant contends that it was an altercation on account of trivial matter of breaking of the cow dung cakes by the appellant. The submission is that over a trivial incident of this type a single gun shot was fired and it is not a case of pumping of the bullets by the appellant into the body of the deceased and thus it is evident that the appellant had no intention to kill the deceased. In this view, learned counsel contends that the conviction of teh appellant under section 302 IPC is not sustainable and it deserves to be converted into one under section 304 part II IPC.

4. In support of the contention learned counsel relies upon the decision of this Court in Addha v. State of A.P.1 2002 (9) SCC 488. That is a case of single lathi blow as a result of sudden quarrel between the two groups of people. The entire incident had taken place pursuant to a quallrel between the two groups of people and the appellant had no deliberate intention to cause the death and it was in the melee that the appellant used the lathi which caused injury to the deceased which ultimately resulted in his death and in this background the appellant was not held guilty of offence of murder. This Court held that the offence would only come under section 304 part II IPC. The decision has no applicability to the facts of the present case.

5. In the present case, it cannot be held on facts that it is a case of trival dispute over breaking cow dung cakes by the appellant. That is over simplification of the facts which is not warranted by the matrial on record. The present is a case where the land which earlier belonged to the appellant was used by the deceased for making of cow dung cakes. After the appellant was deprived of the use of the land, it vested in the goan sabha. The deceased was using the land for about 3/4 years for the aforesaid purpose. The use of the land by the deceased had earlier too resulted in dispute between the appellant and the deceaswed. It was thus a dipute over land and not a trivial dispute over breading of cakes of cow dung. Further the deceased and his son left the house of theappellant after altercation when they found that the appellant had taken in his hands the gun. The appellant followed them on the raod. Again altercation took place and at this stage the deceased was shot by the appellant.

6. Reliance has also been placed by learned counsel for the appellant on K. Ramakrishnan Unnithan v. State of Kerala2 JT 1999 (2) SC 235. In this decision too on facts it was held that the one knife blow given by the appellant to the decesaed, which was though severe but was not as a result of animosity against the deceased and the appellant wa