IMPORTANT POINT
When the intention to murder is clearly evident, conviction and sentence under section 302 is justified.

JUDGMENT

A.K. Mathur, J. —

1. Leave granted.

2. This appeal is directed against the order dated 2.9.2005 passed by the Division Bench of the Madhya Pradesh High Court whereby the Division Bench of the High Court has affirmed the conviction of the accused-appellant under Section 302 of the Indian Penal Code and under Section 323 of the Indian Penal Code (hereinafter to be referred to as ‘I.P.C’) read with Section 25 of the Arms Act and sentence imprisonment for life and payment of fine of Rs.500/- in default to suffer further imprisonment for a period of two months under Section 302 of the I.P.C., and simple imprisonment for a period of three months under Section 323, I.P.C. and Section 25 of the Arms Act on each count and directed that both the sentences to run concurrently. Aggrieved against this order the present appeal was filed by the accused. Notice was given on the limited question of the offence.

3. Brief facts which are necessary for disposal of this appeal are that Aslam Khan, P.W.1 lodged a report to the effect that on 8.6.1998 at about 4.00 P.M. the appellant was quarrelling with his father-in-law. Therefore, he tried to intervene by persuading the appellant not to beat the old person. Being annoyed, the appellant inflicted injury on him by piece of brick. After receiving this injury, P.W.1 ran away from that place. Thereafter, the appellant went to his house and came out with a sword and chased him to cut him with the sword but somehow he escaped and did not come within his reach. His brother, Rehman Khan who was standing in front of the house was attacked by the appellant with the sword which caused abdominal injury with intestine coming out of the wound. The deceased Rehman Khan was immediately shifted to the Hospital along with Aslam Khan. Dr. M.P. Garg, on examination found an incised wound in the abdominal region of Rehman Khan and the doctor immediately shifted him to the operation theatre for treatment by surgical specialist. Aslam Khan was also treated for his injuries sustained by the brick. Subsequently, Rehman Khan succumbed to his injuries. A panchnama was made and the dead body was sent for post-mortem. It was found that the deceased had incised wound 1 =” X3/4"X cavity deep on abdominal region near umbilical cord. Subsequently, during the investigation the sword in which the deceased was attacked was recovered. After completion of the investigation, challan was filed against the accused. Learned Sessions Judge after conclusion of the trial convicted the accused-appellant under Section 302, I.P.C., Section 323, I.P.C. and Section 25 of the Arms Act and sentenced him as aforesaid. Thereafter, an appeal was preferred before the High Court. The Division Bench of the High Court affirmed the conviction of the accused- appellant. Hence, the present appeal. The limited question to be examined is with regard to the nature of offence.

4. Learned counsel for the appellant strenuously urged before us that there is only one injury caused to the deceased. Therefore, it does not fall under Section 302, I.P.C. but at best it would fall under Section 304-I or Section 304-II of the I.P.C. as the accused did not inflict any second injury and secondly, the accused did not intend to cause any injury to the deceased so as to cause his death. The accused in fact wanted to attack Aslam Khan but since Aslam Khan was out of reach, therefore, he inflicted the injury to his brother, Rehman Khan who was standing there. The accused- appellant did not intend to cause death to the deceased and as such the case does not fall within the parameters of Section 302,I.P.C. and at best it can be under Section 304-II, I.P.C. In support of this contention, learned counsel cited the following decisions of this Court.

i) (1981) 4 SCC 245 Kulwant Rai v. State of Punjab,1.

ii) (1981) 4 SCC 489 Randhir Singh alias Dhire v. State of Punjab,2.

iii) (1983) 2 SCC 342 Jagtar Singh v. State of Punjab,3.

iv) (1981) 3 S.C.R 658 Gokul Parashram Patil v.