The main legal point established in the judgment is the determination of the nature of the offence and the intention of the accused based on the evidence and legal principles.

JUDGMENT :

Dhananjaya Y. Chandrachud, J.

1. This appeal arises from a judgment of a Division Bench of the High Court of Judicature for Rajasthan dated 13 August 2008. The High Court, while allowing the appeal filed by the respondent, convicted him under Section 304 Part-II of the Indian Penal Code ('Penal Code') instead of Section 302. The High Court sentenced the respondent to the period which was already undergone, stated to have been approximately five years and five months. The State is in appeal against the decision.

2. A First Information Report was lodged by Satya Narayan Swami (PW-2) at Singhana (Rajasthan), that at about 6.30 p.m. on 27 February 2003, the deceased-Ram Kumwar Swami - was proceeding for some work at a chakki. While he was passing by the hand pump near the house of Sriram Swami, three persons - Rajesh, Jagdish and Leela Ram (the respondent herein) attacked the deceased and caused serious injuries to him. The case of the prosecution is that the respondent inflicted an axe injury on the skull of the deceased which was the cause of death. Rajesh, Jagdish and the respondent were tried for offences under Sections 341, 323, 336 and 302, read with Section 34 of the Penal Code. The case of the prosecution rested principally on the evidence of PW-1 Basanti Devi, the complainant PW-2 Satya Narayan Swami, PW-3 Nathu Ram and PW-4 Gyarsi Lal. PW-1, PW-2, PW-3 and PW-4 were all eye-witnesses to the incident. PW-4 is also an injured witness.

3. The cause of death, as deposed to by PW-5 Dr. Hari Singh Gothwal, was the injury which was sustained on the skull by the deceased. While conducting the post-mortem, PW-5 observed the following injury on the body of the deceased:

“Injury No.1 :- Crush injury 10 cm x 0.5 cm x depth of bone in the middle of the skull. The left eye was closed as an impact of this injury. The injury was caused with the help of sharp edged weapon. The injury was caused within the duration of six hours.”

4. PW-4 Gyarsi Lal had also sustained the following injuries :

“(1) Contusion 5x3 cm in the lower region of left thigh.

(2) Abrasion and deformity 1x0.5 cm in the lower region of the right forearm.”

5. The Trial Court believed the depositions of PW-1, PW-2, PW-3 and PW-4. Adverting to the evidence of PW-2, the Trial Court held that the accused had launched an assault on his brother with an intention to grab the possession of his land. All the above eye-witnesses stated that the respondent-Leela Ram had attacked the deceased with an axe on the skull. PW-5 stated that the injury on the skull was the cause of death and was sufficient to cause death in the ordinary course. Besides the ocular evidence of PW-1 to PW-4, the medical evidence and the deposition of PW-5, the prosecution relied on the recovery of a blood stained axe at the behest of the respondent. The axe was recovered vide seizure memo Exh. P-18. The Trial Court convicted Leela Ram for the offences under Sections 341, 323 and 302 of the Penal Code. He was, however, acquitted of the offence under Section 336. Rajesh and Jagdish were acquitted by the Trial Court.

6. Criminal Appeal No.580/2005 was filed by the respondent against the judgment of conviction. A criminal revision, being Criminal Revision Petition No.958/2005, was filed by the complainant against the acquittal of the two co-accused.

7. The High Court by its judgment dated 13 August 2008, allowed the appeal of the respondent in part and convicted him of an offence under Section 304 Part-II of the Penal Code. In coming to this conclusion, the High Court adverted to the following circumstances, which in its view emerged from the evidence adduced by the prosecution:

“(i) Prosecution is able to establish that appellant inflicted injury with blunt object on the head of the deceased.

(ii) Injury on head attributed to appellant gets corroboration from the post mortem report.

(iii) The death was caused without premeditation and the appellant did not act in a cruel or unusual manner. Incident appears to have