Judgment:
S.K. Chawla, J.
1. Accused Narayan Das challenges his conviction under Section 302 of the Indian Penal Code and sentence of imprisonment for life inflicted there under.
2. On the prosecution story, appellant Narayan Das, along with his father, Nathuram, on 25-7-1978, at about 5.00 p.m., was digging in an open land in front of his house in order to extend a platform (Chabutra). The deceased Ratan, living in a house close by, remonstrated with the appellant and his father, saying that their act would abridge his right of passage over the common land. It is the prosecution story that, at that time, appellant dealt a spade on the head of the deceased and the appellant's father exhorted the appellant to finish the deceased. The deceased got injured and met with instantaneous death at the spot. Learned Sessions Judge, Datia, by the impugned judgment convicted the appellant of the offence under Section 302, Indian Penal Code and the appellant's father Nathu under Section 302/34, Indian Penal Code. Both the accused filed the present appeal but the appellant's father died during the pendency of this appeal, leaving the appellant as the sole appellant.
3. The prosecution case rested on the eye-witness account given by the deceased's widow Parwati (P.W.2) and daughter Kishori (P.W.3). These witnesses had actually seen the deceased being struck with a spade by the appellant. The autopsy lent corroboration to the evidence about assault on the deceased's head by a hard and blunt object The following injuries were noted in the post mortem examination report (Ex.P-15):
(1) Lacerated wound 6 cm X 1 cm X bone deep, over right frontal parietal region.
(2) Lacerated wound 2 1/2, cm X 1 cm X bone deep, starting from the middle of the injury No. 1 going downward.
(3) Black eye, both lids of the right side and subconjuctival haemorrhage of the entire eye.
(4) Two contusions over right supra clavicular region.
(5) Swelling defused over the left side of the face and neck.
(6) Subcutaneous haemotoma in right parietal frontal region and right side of the neck.
The internal examination revealed fracture of the scalp starting from the right parietal bone moving forward in right frontal bone going down up to the roof of the orbit and subdural haemorrhage in an area of 8 c.m. X 6 c.m. over right fronto-parietal region.
Dr. Gupta (P.W.12), who conducted post mortem examination, opined that the internal injuries corresponded to external injuries Nos. 1 and 2, which were the result of infliction of hard and blunt object. The said injuries Nos. 1 and 2 were sufficient in the ordinary course of nature to cause death.
4. Shri J. P. Gupta, learned counsel for the appellant, did not seek to controvert the guilt of the appellant, which was even otherwise satisfactorily brought home to the appellant on the basis of prosecution evidence adduced in the case. The only point taken by Shri Gupta was that the offence brought home to the appellant was not the offence of murder but was, at the most, the offence of culpable homicide not amounting to murder, punishable under Section 304 (Part II), Indian Penal Code. He tried to underline the fact that a single blow by a spade was dealt by the appellant and in the facts and circumstances, the intention of the appellant could never be to kill the deceased. We were taken through the evidence of both the eye-witnesses, viz., deceased's widow Parwati (P.W.2) and deceased's daughter Kishori (P.W.3). We agree with him that it is not possible to hold on their evidence that the appellant dealt more than one blow on the head of the deceased with the spade being used by him for digging. True enough, deceased's widow Parwati (P.W.2) of all places in her cross-examination (apparently because of unwarranted questioning) for the first time stated that the appellant had dealt two blows on the head of the deceased, the first one, striking on the head of the deceased, whereafter, on exhortation by appellant's father Nathuram, a second blow was also dealt by the appellant, which struck at the back of the head of the deceased. It is difficult to accept this version about the second blow for two reasons. In the first place, it is belied by medical evidence, since no injury on the back of the head of the deceased was found; and, secondly, the version about two blows was contradicted by the police-statement of the witness, in which there was no mention about the second blow. The other witness Kishori (P.W.3) also came out with the story of two blows right from her examination-in-chief, but it is not possible to accept her version of two blows for the simple reason that contradiction was brought out from her police statement, wherein she had failed to mention about the second blow.
5. Both Parwati (P.W.2) and Kishori (P.W3) tried to suppress an important part of the story, when they denied contrary to their police statements that the deceased had actually caught hold of the spade held by the appellant, before the latter dealt the spade on the deceased. This would indicate that mere was a sort of scuffle between the deceased and the appellant, before the actual assault. The opinion evidence given by Dr. Gupta (P.W.12) that the two external injuries found on the head of the deceased could be result of two strokes of spade, standing by itself can hardly sustain a finding that two blows were dealt, when the direct evidence on that point has not been accepted. Moreover, the situation of the second injury on the head, which started from the middle of the first injury made it more likely that both the injuries were the result of a single blow. It was also the evidence of Dr. Gupta that injuries 5 and 6 mentioned in the post mortem report could be the result of injuries 1 and 2 over the head of the deceased. He further opined that injuries 3 and 4 could be caused by a fall on uneven surface. In this context, there was the evidence of eye-witnesses abovereferred to, that the deceased had fallen on the ground after the assault on his head, making it probable that injuries 3 and 4 were received on account of fall on the ground on uneven surface. The upshot of the entire discussion is that the extent of the prosecution story that was clearly established consisted of the fact that the appellant had dealt a single blow with a spade on the head of the deceased resulting in death.
6. The significant question that falls to be considered is, what offence was committed by the appellant. In cases where death of a victim results from a single blow by means of a weapon dealt by an accused, it is usually argued by the defence counsel, often with success, that the accused could not have an intention to kill the deceased and hence the case is not that of murder. It is not realised that Clause (1) to Section 300, Indian Penal Code does not exhaust all cases of murder and that cases may be murder also because the case attracts any of the Clauses (2), (3) or (4) of that section. In cases resulting in death of a normal healthy person on account of single blow by means of a weapon dealt by an accused, leaving aside for the moment a short minority of clear-cut cases of murder falling within Clause (1) to Section 300, Indian Penal Code, where the intention is to kill the victim, we are of the-opinion that proper approach of the Court should be to address itself the question whether the act of the accused falls within Clause 3rdly of Section 300, Indian Penal Code. If the act fells within the ambit of that Clause, then the offence would be murder, unless any of the exceptions given in Section 300, Indian Penal Code is attracted, in which case the offence would be culpable homicide not amounting to murder. On the other hand, if the act of the accused does not fall within the ambit of Clause 3rdly nor within the ambit of any other clauses of Section 300, then the offence committed would be culpable homicide not amounting to murder or even lesser offence of causing grievous or simple hurt.
7. For the applicability of the Clause 3rdly of Section 300, Indian Penal Code, there are two requirements. The first requirement is that the particular injury found on the deceased should have been 'intended' by the assailant. If this requirement is satisfied, then the second requirement is that objectively that injury should have been sufficient in the ordinary course of nature to clause death. The ingredient of 'intention' in the first requirement is important and that gives clue in a given case whether the offence involved was murder or not. In this regard distinction between 'knowledge' and 'intention' assumes great significance. This distinction has been beautifully explained in the decision Jai Prakash v. State, (1991) 2 SCC 32. 'Knowledge' is awareness of certain facts, in which human mind remains supine or inactive. On the other hand, 'intention' is a state in which mental faculties are summoned into action or aroused into activity for the purpose of achieving a conceived end. Intention may be said to be shaping of one's conduct so as to bring about a certain event Intention need not necessarily involve pre meditation. So also it is not necessary that in order that any injury may be intentional, the accused should have intended an -injury of a particular degree of seriousness. The question is not whether the accused intended to inflict a serious injury or a trivial one, but whether he intended to inflict that injury. Circumstances, such as the weapon used, the degree of force released in wielding it, the antecedent relations of the parties, the manner in which the attack was made, that is to say sudden or premeditated, whether the injury was inflicted during the scuffle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted may all have to be considered, while determining 'intention' in relation to infliction of injury.
8. Coming to the present case, there was lack of previous enmity between the parties, as was admitted by the deceased's widow Parwati (P.W.2). On the other hand, she went on to say that there was cordiality and love between the parties before the incident. In fact, the deceased was in some way also related to the appellant. There was verbal altercation between the parties and it was also most likely that there was actually a scuffle, when the deceased is said to have actually caught hold of the spade held by the appellant before the actual assault. The scuffle militated against the possibility that the appellant took aim when wielding the spade. There existed reasonable possibility that the spade blow landed on the head of the deceased during, what could be called, unaimed wielding. The appellant had no malice or ill-will against the deceased. The appellant had earlier also not gone away to pick up the spade in order to assault the deceased. The appellant had also not persisted in the assault by striking with the spade a second time. All these circumstances when considered cumulatively raise a reasonable possibility that the appellant did not 'intend' the particular injury caused on the head of the deceased. It may be proper to credit him only with the knowledge that by giving a forcible blow with his spade, he was likely to cause the death of the victim. The case of the appellant, therefore, fell outside the purview of Clause 3rdly of Section 300, Indian Penal Code but fell within the purview of 3rd part of Section 299, Indian Penal Code, making the offence to be culpable homicide not amounting to murder punishable under Part II of Section 304, Indian Penal Code.
9. This leaves the question of sentence. Learned counsel for the appellant argued that this is 13 years' old appeal of the year 1979. It was also stated that the appellant has been at large on bail by the order of this Court for the past 13 years and it will be very unjust to send him back to jail at this point of time. The learned counsel argued that in such cases there have been orders for release of the accused on probation by Superior Courts. Reference was made to the decision of Ram Bihari v. State reported in 1965 JLJ Short Note 83, wherein a college-going student, whose conviction for an offence under Section 304 (Part II), Indian Penal Code was maintained by our High Court, was released on probation. It was pointed out from the record of the present case that the appellant has been in jail, either as an undertrial prisoner or as a convict undergoing a part of the jail sentence, for about 15 months. It was argued that this period should be held to be sufficient by reducing the sentence to already undergone. Reference was made to certain decisions, where because of the fact that the accused/appellant had been at large on bail for a long period, it was thought improper to send him back to jail, regard being had to the nature and gravity of the crime and the entire circumstances of the case. It is not necessary to make reference to those decisions, for they may be legion. Those cases are no authority for the proposition, in fact there can never be such, that sentence should be reduced to one already undergone, if only because the appellant was at large on bail for a long period, regardless of the nature and gravity of the crime and overall consideration of achieving the ends of justice. In our opinion, sentence in a criminal case should always be so fixed as to be commensurate with the gravity of the crime, regard being had to the nature and character of the offender; which will, considering the entire circumstances of the case, achieve the purpose for which punishment is given. In the present case, the occurrence of which the appellant has been held guilty had taken place in distant past, about 14 years back in the year 1978. Circumstances of the case do not show that the crime was committed by the appellant on account of his vicious nature. The appellant appears to have acted in a momentary fit of anger under the influence of raw youth. He has already suffered 15 months' incarceration and it may not be proper at this point of time to send him back to jail. It should at the same time not appear that he has been very lightly treated. The purpose of sentence being also deterrence, some suitable punishment must be visited upon the appellant to bring home to him that he had committed a crime. Considering all the circumstances, it will in our opinion be proper to visit the appellant with a substantial sentence of' fine, which might then be utilised in compensating the dependant of the deceased. In a case under Section 304 (Part II), Indian Penal Code the Supreme Court reduced the sentence of an offender to one year's imprisonment already undergone by him and imposed a fine of Rs. 50,000/- with direction that the same be paid to father and other legal heirs of the deceased. (See Khanjanpal v. State of U. P., (1990) 4 SCC 63). That case is just by way of illustration. Considering all the facts and circumstances of the present case, we are of the opinion that it will serve the ends of justice, if the sentence of the appellant is reduced to the period already undergone by him and he is further visited with a fine of Rs. 10,000/- (ten thousand) to compensate the widow of the victim.
10. For the foregoing reasons, the present appeal is partly allowed. The conviction of appellant Narayan Das is reduced from Section 302, Indian Penal Code to Section 304 (Part It), Indian Penal Code. He is sentenced for the said offence to imprisonment already undergone by him and is further fined Rs. 10,000/- (ten thousand), in default it is further directed that he shall undergo R.I. for one year. The entire amount of fine, if realised, shall be paid to the deceased's widow Parwati (P.W.2) as compensation. The appellant shall pay the fine within two months from the date of this judgment.