IMPORTANT POINT
When only one blow was given in the dark night with a stick in the forest surroundings of the area, it could not reasonably be stated with any certainty that the accused chose that vital part of the body to inflict the injury, the conviction was altered from one u/s 302 IPC to that u/s 304-II, IPC.

Headnote:Indian Penal Code, 1860-Sections 229, 300, 302, 304-II- Murder and Culpable homicide not amounting to murder -Distinction-Accused A and R along with H assaulted deceased in dark night between 10.00 to 10.30 p.m.-Accused were armed with sticks-Single blow given to deceased with a stick in a pitch dark night in forest surroundings-Deceased died and PW1 received grievous injuries-Clause Thirdly of Section 300 cannot be applied-Conviction of appellant altered from Section 302 IPC to Section 304 Part II-Sentence of eight years imprisonment would meet ends of justice-Accused R rightly convicted u/s 324 IPC-High Court was justified in convicting accused by setting aside acquittal as recorded by trial Court.
       Held : The High Court has analysed the evidence in great detail, and concluded that trial Court s conclusions were fallacious and based on magnification of trifle and unimportant materials, which in no way affected credibility of prosecution version. We find no deficiency in view taken by High Court. The High Court was, therefore, justified in holding that Augustine Saldanha and Rocky Saldanha were responsible for the death and injury to the deceased and PW1 respectively. (Paras 7 & 8)
       Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. (Para 20)
       Undisputedly the incident took place in a dark night when visibility was poor but identification was possible because the victims of the assailants were known to each other. Therefore, there is nothing wrong in PW1 identifying the accused persons. The fact remains that in the dark night obviously one cannot move without a torch or some other lighted object. In fact, in Exhibit P-1 also there is mention of a torch. It needs to be noted that only one blow was given in the dark night. Though it cannot be said as a rule of universal application that whenever one blow is given application of Section 302 IPC will be ruled out and that even a single blow delivered with a heavy or dangerous weapon on a vital part of the body would make the offence a murder. On the peculiar facts found in the present case, we feel that clause Thirdly of Section 300 cannot be applied. The blow was said to have been delivered with a stick and in a pitch dark night of time in the forest surroundings of the area where it occurred. It could not reasonably be stated with any certainty that the accused chose that vital part of the body to inflict the injury and that the blow was aimed without any of such specific intention could have landed on the head due to so many other circumstances, than due to any positive intention also. We, therefore, alter the conviction of appellant Augustine Saldanha from Section 302 IPC to Section 304 Part II. Custodial sentence of eight years would meet ends of justice. (Paras 23 & 24)

JUDGMENT

Arijit Pasayat, J.-These two appeals relate to the common judgment of Karnataka High Court whereby the judgment of acquittal passed by the Trial Court was set aside. Augustine Saldanha-appellant in Criminal appeal No. 854/1996 was held guilty of offence punishable under Section 302 of Indian Penal Code, 1860 (in short IPC ) and sentenced to undergo imprisonment for life. Rocky Saldanha-appellant in Criminal appeal no. 1734/1996 was found guilty for offences punishable under Section 324 IPC and sentenced to undergo imprisonment for one year. They were also sentenced to pay fine of Rs. 5,000/- and Rs. 1,000/- respectively with default stipulation of six months SI and one month SI respectively. Accusations which formed foundation of prosecution version are essentially as follows:

2. On 17-5-1989 Paul Saldanha (hereinafter referred to as the deceased ) and Felix Saldanha (PW1) were returning to their houses after viewing a movie. When they reached near the house of the appellants, accused Augustine and Rocky along with Henry Saldanha (acquitted) assaulted the deceased. They were armed with sticks. As a result of the assaults the deceased breathed his last while PW1 suffered grievous injuries. The incident took place between 10.00 to 10.30 p.m. On next day morning around 5.15, PW8 ASI, of Mulki Police Station received information from an unknown person of Kumeri that two bodies were lying at Shadguri of Aikala village. Though he could not ask the name and address of the informant, he made entries in the General Diary and proceeded to the spot along with other police personnel. At the spot he found dead body of the deceased and PW1 in injured condition. They were taken to hospital and complaint (Exhibit P-1) was recorded. PW8 registered the FIR after coming to the police station, and dispatched the same to the Magistrate at Mulki which was received at about 11.15 a.m. Investigation was undertaken on the basis of the report of PW1, and after completion thereof charge-sheet was placed. It needs to be noted that on the basis of information given by the accused while in custody recoveries were made. In the complaint (Exhibit P-1) the informant PW1 had stated that he could see assailants by focussing a torch. He had lost consciousness temporarily, but when he was in sense, could hear that PWs 3 and 4 i.e. two taxi drivers were asked by the accused to shift him and deceased to different places; but they refused to do so. In Court, apart from the evidence of PW1 the evidence of PWs 3 and 4 were also tendered and pressed into service to substantiate the accusations. The Additional Sessions Judge of Dakshina Kannada, Mangalore found the evidence of PW1 to be not believable and directed acquittal, and the circumstances which weighed with him are as follows:

3. Credibility of the report (Exhibit P-1) was doubted because the injury sustained by PW1 was so serious that he was given treatment in the emergency room and it was highly improbable that he would have been in a position to give statement (Exhibit P-1). While PW8 stated that he had recorded the complaint, handwriting therein was similar to those in which Exhibits P-8 to P-10 (Panchnamas) were written. Prosecution version was also doubted because PW2 stated at one place that PW1 had been taken out of the hospital at the time of spot inspection, he stated subsequently that PW1 was not taken out. The evidence of PW1 was also discarded on the ground that there were exaggerations and improvements and there was no specific mention about identification by torch and moonlight in Exhibit P-1 as was stated in Court. Only in the first information report, it was mentioned that witness was holding a torch. He also found that the recovery of the torch from the spot was doubtful. It was also noted that the torch was broken and PW1 did not say as to how the torch was broken. The Trial Court doubted the version of PW1 because no explanation was given as to how his shirt was torn and this indicate

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2003 Supreme(SC) 805

Cases Referred (4)