# Durga Prasad v. State

- **Citation:** (2024) 2 ILRA 1350
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-06
- **Case number:** Criminal Appeal No. 651 of 1989
- **Bench:** Rajan Roy, Jyotsana Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/durga-prasad-v-state-51248
- **Pages:** 13

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34, 304, 323 & 325 -
Appellant challenged conviction under Section
302/34 I.P.C. for murder of Babu Lal, arising
from dispute over clearing a drain. Court held:
(1) Incident involved throwing brick pieces
during an altercation without premeditation; no
weapon used, only bricks (Virsa Singh Vs St. of
2 All. Durga Prasad Vs. State
1351
Punj., AIR 1958 SC 465). (2) Single lacerated
wound on head caused skull fracture and death
due to shock and haemorrhage; no evidence of
intent to cause death or injury likely to cause
death (Anbazhagan Vs St., Criminal Appeal No.
2043 of 2023). (3) Accused had knowledge that
throwing bricks could cause hurt or grievous
hurt, not death; offence under Section 325/34
I.P.C., not Section 302/34 (Dhupa Chamar Vs St.
of Bihar, (2002) 6 SCC 506). (4) Conviction
altered to Section 325/34 I.P.C.; sentence
reduced to 3 years' R.I. and Rs. 30,000 fine,
with Rs. 25,000 as compensation to deceased's
son; default imprisonment of 3 months. (5)
Period
of
imprisonment
served
adjusted;
appellant to surrender immediately. (Paras 2436)

Appeal Partly Allowed.

Case Law Cited:

## Text

_Characters 0–39,902 of 44,642. This is a partial read: ask again with offset=39902 for what follows._

1350 INDIAN LAW REPORTS ALLAHABAD SERIES
but they are guilty of committing an
offence which is punishable under Section
304 Part I of the Code "Culpable homicide
not amounting to murder", punishable
under Section 304 Part I of the Code. We,
therefore, do not agree with the contentions
of the learned counsel for the appellant that
the offence committed by the appellant
would fall in the Second part of Section
304 IPC. Having held that the appellant
Nos. 1, 2 and 3 are guilty of the offence
under Section 304 Part I IPC, we partially
accept this appeal and alter the offence
from that of Section 302 of the Code to one
under Section 304 Part I of the Indian Penal
Code.

56. Further, having regard to the facts
and circumstances of the instant case, we
find that the sentence of 10 years' rigorous
imprisonment would be adequate for the
offence of which the appellants have been
held guilty.

57. We, therefore, award a sentence of
10 years' rigorous imprisonment to the
appellant Nos. 1, 2 and 3. The judgment
under appeal is modified accordingly.

58. So far as appellant No. 4 Brijesh
is concerned, she is said to have assaulted
the victim Risalo mother of the deceased by
pulling her by her hair and pushing her
when she tried to rescue her son,
consequent to which she suffered simple
injuries, however she has not participated
in the main incident of assault to the
deceased Yashpal and injured Naresh, as
such she has rightly been convicted u/s 323
IPC for causing injury only to Risalo and
sentenced to fine of Rs. 500/- with default
stipulation. Accordingly, conviction and
sentence, in her behalf, is affirmed. She
would deposit the fine within one month, if
already not deposited.

59. The Chief Judicial Magistrate,
Bulandshahr is directed to take appellant
Nos. 1, 2 and 3 in custody in the aforesaid
case and send them to jail to serve out the
sentences awarded to them by the trial
court. Appellant No. 4 need not to
surrender.

60. The appeal is allowed in part.

61. Let a copy of this judgment and
order be sent to the court concerned
alongwith the lower court record within a
week for compliance. The compliance
report shall be sent by the court concerned
to this Court within a further period of
fifteen days.
----------
(2024) 2 ILRA 1350
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.02.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE JYOTSANA SHARMA, J.

Criminal Appeal No. 651 of 1989

Durga Prasad ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
S.H. Ibrahim, Angad Kumar Vishwakarma, G.R.
Chhabra, Moti Chand Yadav

Counsel for the Respondent:
V.K. Misra, G.A., O.P. Dwivedi

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34, 304, 323 & 325 -
Appellant challenged conviction under Section
302/34 I.P.C. for murder of Babu Lal, arising
from dispute over clearing a drain. Court held:
(1) Incident involved throwing brick pieces
during an altercation without premeditation; no
weapon used, only bricks (Virsa Singh Vs St. of
2 All. Durga Prasad Vs. State
1351
Punj., AIR 1958 SC 465). (2) Single lacerated
wound on head caused skull fracture and death
due to shock and haemorrhage; no evidence of
intent to cause death or injury likely to cause
death (Anbazhagan Vs St., Criminal Appeal No.
2043 of 2023). (3) Accused had knowledge that
throwing bricks could cause hurt or grievous
hurt, not death; offence under Section 325/34
I.P.C., not Section 302/34 (Dhupa Chamar Vs St.
of Bihar, (2002) 6 SCC 506). (4) Conviction
altered to Section 325/34 I.P.C.; sentence
reduced to 3 years' R.I. and Rs. 30,000 fine,
with Rs. 25,000 as compensation to deceased's
son; default imprisonment of 3 months. (5)
Period
of
imprisonment
served
adjusted;
appellant to surrender immediately. (Paras 2436)

Appeal Partly Allowed.

Case Law Cited:

1. Virsa Singh Vs St. of Punj., AIR 1958 SC 465
(Para 27)

2. Dhupa Chamar Vs St. of Bihar, (2002) 6 SCC
506 (Para 26)

3. Jai Prakash Vs State (Delhi Administration),
(1991) 2 SCC 32 (Para 28)

4. Mahesh Balmiki Vs St. of M.P., (2000) 1 SCC
319 (Para 29)

5. Anbazhagan Vs State, Criminal Appeal No.
2043 of 2023 (Para 30)

6. Kudumula Mahanandi Reddi, AIR 1960 AP
141 (Para 30)

(Delivered by Hon'ble Jyotsna Sharma, J.)

1. Heard Sri Moti Chand Yadav,
learned counsel for the appellant no. 2, who
is the only surviving appellant and Sri O.P.
Dwivedi, learned AGA for the State and
perused the material on record.

2. The appellants-Durga Prasad and
Bhawani
Prasad
have
preferred
this
criminal appeal, challenging the judgment
and order dated 12.09.1989 passed by
Additional Session Judge, Sultanpur in
Session Trial No. 74 of 1985 whereby the
appellants were convicted under section
302 read with 34 IPC and sentenced to
undergo rigorous imprisonment for life.

3. The facts relevant for the purpose
of this case are as under:-

The
first
informant-Jagdish
Prasad Sharma submitted a written report
before the police station concerned stating
therein that at about 3 in the afternoon of
29.06.1981, his father was clearing a
drain. The accused persons Durga Prasad
and Bhawani Prasad came using foul
words. When his father protested, he was
attacked with pieces of bricks. The incident
was witnessed by the first informant-
Jagdish Prasad and witnesses Ram Kalp,
Devkali, Gayabaksh Singh. They rescued
him, otherwise they would have killed his
father. This information was given to the
police station concerned, on the basis
whereof NCR under section 323 IPC was
registered on 01.07.1981 at about 09.45.
The injured Babu Lal Sharma was
medically examined on 30.06.1981 at 8.00
AM at District Hospital, Sultanpur. Later
on he died of injuries and his postmortem
examination was done. The case came to be
converted into section 302 IPC. After
completion
of investigation
both the
accused persons were chargesheeted. The
case was committed to the Court of
Sessions.
The accused
persons
were
charged for the offence under section 302
read with section 34 IPC. They denied the
charge and claimed trial.

The
prosecution
produced
Jagdish Prasad as PW1. Ram Kalp as
PW2, Constable-Laljit Singh as PW3,
Radhey Shyam Tiwari as PW4 and Dr. T.N.
1352 INDIAN LAW REPORTS ALLAHABAD SERIES
Sharma as PW5. The statement of the
accused persons under section 313 Cr.P.C.
were recorded. No evidence in defence was
produced. After hearing both the sides the
accused persons were convicted under
section 302/34 I.P.C. and sentenced to
undergo rigorous imprisonment for life.

4. Before the contentions of the
accused persons are taken up, we find it
appropriate to briefly refer to the evidence
produced by the prosecution for proving its
case.

• The gist of the statement given
by PW1-Jagdish Prasad is that the
accused persons were his first cousins and
that they have been staying in separate
portions of the same house after mutual
partition. There had been incessant rain on the
day of occurrence. Both the sides had a
common drainage which was closed by the
accused persons, therefore, the rain water had
collected in his 'aangan'. His father went for
clearing the drain (naali). Both the accused
persons stopped him from doing so and they
had an argument. Accused threw pieces of
bricks causing injuries to his father on his head,
right shoulder and the lower lip. His father fell
down. His mother Devkali, uncle Ram Kalp,
witness Sharmajeet and Gayabaksh and he
himself witnessed the incident and rescued
Babu Lal. He has further stated that he went to
police station next day. When rain stopped, he
got his father admitted to civil hospital. From
their, he was referred to Medical College,
Lucknow. Later on, he died.

• PW2-Ram Kalp is another
witness of fact produced by the prosecution,
who has subsequently narrated the same story
as PW1.

• PW3-Laljit Singh (Constable) is a
formal witness, who has stated that S.I.-Ram
Ashrey conducted inquest. Thereafter the dead
body was sent for postmortem. The postmortem
was done at 1.30 on the day, on 08.07.1981.
Babu Lal died on 07.07.1981 at about 12 in the
afternoon.

• PW4-Radhey Shyam Tiwari is a
witness, who has proved that the NCR was
written by constable-Shyam Narayan Dubey in
his own handwriting. He has further stated that
on the basis of the information, as regards death
of Babu Lal, the case was converted into
section 304 IPC and the investigation was
entrusted to him. He visited the place of
occurrence at about 6 pm on 26.07.1981. The
statements of the eye-witnesses were recorded
on 05.10.1981. He prepared the site map. On
his transfer, the investigation was handed over
to
S.I.
Dharmraj,
who
submitted
the
chargesheet.

• PW5-Dr. T.N. Sharma, is the
witness who conducted the postmortem on the
dead body. He has stated that he noted down the
ante-mortem injuries and gave an opinion that
Babu Lal died of shock and haemorrhage, as a
result of ante-mortem injuries. He has also
stated on oath that the injuries were sufficient to
cause death.

5. In the statement given under section
313 Cr.P.C., the accused persons denied their
involvement and said specifically that no
injuries were caused by them and that they have
been falsely implicated because of enmity with
the informant's side. Both the accused persons
said that the injured sustained injuries because
he had fell down after having slipped in his
house and that they are innocent.

6. No witness has been examined by
the defence.

7. The prosecution case is based on
oral evidence of two witnesses of fact i.e.
PW-1 Jagdish Prasad, son of the deceased
and PW-2 Ram Kalap, brother of the
deceased and further on the evidence of
medical officer who conducted post-
2 All. Durga Prasad Vs. State
1353
mortem. Rest of the two witnesses are
formal in nature.

8. Considerable jurisprudence has
evolved, on the basis of the myriad of cases
decided by the Supreme Court and the High
Courts with regard to medical evidence.
More often then not the injuries, the nature
and dimensions thereof, the seat of the
injuries and the weapons used to inflict
them, may occupy a key position for
deciding the actual intent or the knowledge
and may hold a pivotal place in a criminal
case involving offence under section 302 or
304 I.P.C. This may not be a sweeping
statement that when the Court is faced with
a question that which section defining the
offences affecting life within Chapter XVI
of I.P.C., a particular act is covered, the
discussion may revolve around the medical
evidence. Presence of injuries, matters
incidental thereto or related to them or even
lack of injuries may hold a centre stage in a
criminal case.

9. In the instant case, PW-5, the
medical officer testified that he found
following ante mortem injuries at the time
of post-mortem.

(i) A 7cm long stitched wound with
seven stitches on right side of head, 3 cm
above the left eyebrow.

(ii) A swelling 15cm x 10cm at the
back of left side head, 3cm above the left
ear and 4cm above the left eyebrow.

(iii) Abraded contusion 1.5cm x 1cm
on top of right shoulder.

(iv) Abrasion 6cm x 5cm right side of
chest, 1.5 cm below right scapula bone.

The doctor found a burr hole 4cm x
3cm membrane deep, below injury no.(i)
and
a
linear
facture
17cm
on
frontal/temporal and occipital bones and
a haematoma of 17cm x 16cm under the
membrane, below injury no. (i) and (ii), on
opening.

10. PW-5 has given an opinion that
deceased died of shock and haemorrhage
due to ante mortem injuries. He has further
given an opinion that injuries were
sufficient to cause death. In his cross
examination, he said that injury no.(ii) was
only a swelling and was caused as a
consequence of injury no.(i). He further
said that the injuries may be caused, if
deceased had slipped and fell down on
bricks and that he cannot say that the
swelling was because of post-mortem
staining or not.

11. Before I compare and discuss the
medical evidence given by the Doctor who
conducted the post-mortem with the
injuries shown in the medical examination
of the deceased done earlier (conducted
seven days before the post mortem), I find
it appropriate to refer to certain evidence
which has come in the testimony of
witnesses of fact, in the background of the
prosecution story.

12. The indisputable facts are that the
incident occurred on 29.06.1981 at 3 in the
afternoon inside the house, where both the
sides used to reside after partition. The
prosecution story is that deceased was
trying to open a drain to release the rain
water which had collected in his aangan.
The accused persons Durga Prasad and
Bhawani Prasad started hurling abuses and
they asked him not to open the drain. An
altercation ensued, and the accused persons
started throwing pieces of bricks from
above, causing him injuries. It is not
disputed that the first informant had earlier
gone to police station and an N.C.R. under
section 323 and 504 I.P.C. was written on
1354 INDIAN LAW REPORTS ALLAHABAD SERIES
the basis of his written complaint. This
N.C.R. was registered on 01.07.1981 i.e.
about two days after the incident. This is
also not disputed that injured Babu Lal died
on
07.07.1981
in
medical
college.
Subsequently a written complaint was
given by his son. The CO directed for
registration of an F.I.R. Therefore, the case
got converted into Crime No. 163 of 1981
under section 304 I.P.C. vide G.D. entry of
22.07.1981. Earlier the injured Babu Lal
had
been
medically
examined
on
30.06.1981 privately at 8.00 AM at District
Hospital Sultanpur and the post-mortem
was done on 07.07.1981.

13. PW-1 the first informant has
stated that when his father went to ask for
opening the drain, the accused persons
refused to do so. His father protested and
said that he should be permitted to open the
same. The accused persons started throwing
pieces of bricks on him causing him
injuries. As there was continuous rain,
therefore, he did not go to the police
station. The next day, he took his father to a
hospital in Sultanpur, where he was
medically examined on 30.06.1981 at 8.00
A.M. at District Hospital, Sultanpur and
was referred to Medical College, Lucknow.

In his cross-examination, he
stated that when his father was digging
open the drain, the accused persons climbed
on the rooftop of their kitchen and started throwing
brick pieces. When asked, he said that he does not
remember that accused persons threw one or two,
10 or 20 , 50 or 100 pieces of bricks. He stated that
his father sustained an injury on the back of his
head from which blood came out.

14. PW-2 Ram Kalap has stated that when
the accused did no permit Babu Lal to open the
drain, he started doing it himself. Both the accused
persons started throwing brick pieces from their
rooftop. Babu Lal fell in his aangan and became
unconscious. Falling is an admitted fact. He has
testified that because of heavy rains, he could not be
brought to the hospital or the Thana, the same day
and was instead given treatment by some local
Doctor. It was only next day, when Babu Lal was
brought to civil hospital at Sultanpur and from there
he was referred to medical college.

Giving description of the acts done by
the accused persons, this witness testified that the
accused persons threw only four to five pieces of
bricks.

15. It is established that the incident was
preceded by an altercation as regards opening of
drain. This too is established that the accused
persons threw pieces of bricks from the rooftop.
They were standing on their rooftop and the
deceased was in his aangan. This too is undisputed
that deceased was brought to civil hospital
Sultanpur. He was examined the next day of the
incident. The genuineness of medical examination
report dated 30.06.1981 has been admitted by the
defence side, therefore this is an admitted fact that
deceased was medically examined at 8 AM on
30.06.1981.

16. This medical examination describes three
injuries having been found on the person of the
deceased:

"(i) Lacerated wound 3.5cm x 0.4 cm
scalp deep over left occipital region,
10cm away from left ear. No fresh
bleeding. Kept under observation.

(ii) Abrasion 1cm x 0.5 cm
over right shoulder, 3.5 below from
tip of shoulder, scab found.

(iii) Abrasion 1cm x 1.5cm
over middle of lower tip inner
aspect.

General condition was low,
unconscious, Admitted to hospital,
X-ray skull advised.
2 All. Durga Prasad Vs. State
1355

Remark- Injury No. 1 kept under
observation. Rest injuries are simple. Injury
No.1 caused by blunt object and rest by
friction.

Duration is about half day old."

17. In this case the patient was
advised X-ray, but no X-ray has been
produced. The doctor gave opinion that
injury no.(i) was caused by blunt object and
rest by friction. His general condition was
low and he was unconscious and was
admitted to hospital.

18. The prosecution has not explained
the reasons for non production of papers
like reference slip or discharge certificate
or x-ray report etc. No question has been
put to the I.O. in this regard by either of the
parties. Definitely it was duty of I.O. to
collect those papers to prove that the
deceased was in fact referred to medical
college and was put to X-ray examination.
However, this missing link may not have
any bearing on the prosecution case and is
a defect for which only the I.O can be
blamed, not the prosecution. This defect
does not seem to have any far reaching
consequence and is liable to be ignored in
the facts and circumstance of the case, in
view of the discussion to follow in the body
of the judgment. The prosecution further
relies on pre-mortem medical examination
and on post- mortem report. Now, this
Court has before it a medical examination
done on 30.06.1981 and a post mortem
report done on 08.07.1981 to draw
appropriate inferences.

19. As per the medical examination
report, there is only one injury worth
mentioning i.e. a lacerated wound on
occipital region. The dimensions were
3.5cm x 4 cm. This injury was only scalp
deep. At that time there was no fresh
bleeding. Rest of the two injuries were
quite minor, of the nature of abrasions. The
dimensions too were quite petty.

20. The doctor, who conducted post
mortem examination, opened the body and
found a linear fracture 7cm covering
frontal, temporal and occipital bone. It was
situated 1cm above the occipital bone to
above the left eyebrow. He also found
haematoma under the membrane below
injury no.(i) and (ii). This evidence
establishes that there was a long linear
fracture on the bones of his head and this
caused an internal bleeding. The blood had
collected and therefore, the doctor had to
drill through the bones to take out the blood
collected below the injuries. The burr holes
are drilled into skull to release the pressure
which collected fluid may build up.

21. From all the medical facts taken
together, the only inference which can be
drawn is that injury no.(i) was outwardly,
merely a lacerated wound but had in fact
caused linear facture of the three bones.
The dimension of 17cm shows that the
blow had a deep impact on the bones
causing fracture. This injury caused an
accumulation of blood below it. The injury
no.(ii) i.e. swelling of 15cm x 10cm on the
right
side
head
was
nothing
but
accumulation of fluid/blood caused by
internal bleeding and therefore, the doctor
had to burrow a hole of 4cm x 3cm to
release the pressure created by the fluid
collected in the skull.

The prosecution case is that the
deceased sustained injury from the pieces
of bricks and fell down. Act of falling down
explains the rest of the injuries which were
in the nature of abrasions. In the medical
examination dated 30.06.1981, the doctor
found his general condition as low and he
1356 INDIAN LAW REPORTS ALLAHABAD SERIES
was unconscious at that time too. All these
facts cumulatively show that the deceased
died of the injury caused on his head by a
piece of brick.

22. The contention of the defence is
that that the prosecution has failed to
demonstrate that how many pieces of brick
were thrown and what was their size. No
pieces of brick were collected by the I.O. It
may be noted that the only defence which
has been taken by the accused is that the
deceased sustained injuries while he
slipped in the rain. If injury no.(i) is
excluded and rest of the injuries which are
in the nature of abrasions, are considered,
this statement appears to have substance
that he fell down and therefore, sustained
those injuries but as far as injury no.(i) is
concerned, it may confound and compel the
Judge to think over whether the same was
caused by the impact of a blunt object
thrown from above or just by slipping
down on a solid surface.

23. In these circumstances, the seat of
the injury, the nature thereof assumes great
significance and to draw a conclusion
undoubtedly this court has to depend upon
the testimony of the witness of fact coupled
with other circumstances of the matter. For
this purpose the Court has no resources
except to rely upon the evidence produced
by the prosecution. P.W.-1 Jagdish Prasad
who has supported prosecution story, has
stated in unambiguous terms that the
accused persons started throwing pieces of
bricks which hit his father's head from the
rooftop of their kitchen. PW.2 -Ram Kalap
is another eyewitness, who admittedly
happens to be uncle of P.W.1 and resided in
the third portion of the same house after its
partition, has supported the prosecution.
P.W.-2 has testified that because of
excessive rain, water had collected in their
angan and that when his brother i.e.
deceased Babu Lal asked the accused
persons to clear the drain, they did not pay
any heed and therefore the deceased started
digging the drain himself for release of
water. Annoyed over this act of the
deceased, the accused persons started
throwing pieces of brick from their rooftop.

24. The prosecution has examined
two
witnesses
of
fact.
Both
are
eyewitnesses, whose presence on the spot is
nothing but natural. The accused and the
witnesses are closely related. There appears
no good reason why they should falsely
implicate the accused persons when they
had already accepted the partition of the
house at least 6 to 7 years before this
incident. In our view, the Court is not
expected to go about the prosecution story
with an air of disbelief from the very
beginning. In our opinion, unless, the
defence has been able to demolish the
prosecution
case
by
impeaching
the
credibility
of
the
witnesses
or
by
demonstrating
probability
of
false
implication
or
by
demonstrating
the
inherent weakness or by at least creating
reasonable doubts in any other manner, of
course by producing some evidence or
from the prosecution evidence itself, the
Court
would
ordinarily
believe
the
statements given by prosecution witnesses.
This is not to say that the prosecution
witnesses have to be believed blindly. Of
course, the evidence has to be scrutinised
for finding out the grains of truth in it. The
defence may dismantle the prosecution case
by demonstrating the falsity thereof which
may emanate from inherent infirmities in
the story or because the evidence of the
witnesses are shaky in material particulars
or because the witnesses are likely to
falsely implicate the accused persons for
certain objectives to be attained or where
2 All. Durga Prasad Vs. State
1357
witnesses are not found reliable for any
other good reason or their evidence is
found deficient. The factors enumerated
herein definitely do not lay down any strict
formula for prosecution to stand on its own
legs. The only point this Court wants to
impress upon is that the Court has to
depend upon the evidence which has been
led by the prosecution or by the defence for
inferring whether the charges stand proved
or not. The Court cannot depend upon
conjectures and surmises or entertain
doubts without having good reasons to
have them. In the instant case, the Court do
not find substance in the alternative theory
given by defence that injury was not caused
by their act and rather it was a result of his
slipping down in the rain. My view is
fortified by the fact that the fatal injury was
on his skull with a 17cm fracture right from
frontal to temporal to occipital bone. In our
opinion there is a strong probability that
injury of such nature and dimension is
caused by the impact of a blunt object
thrown with strong force, therefore, this
Court is of the view that injury no.1 on the
head of the decease was caused by
throwing of brick piece and not just by
slipping down. ]

25. A question may arise that the
prosecution has not been able to show that
it was accused Durga Prasad alone who
threw the piece of brick which actually hit
him in the head, therefore, he may be given
benefit of doubt. We do not find much
substance in this argument. The prosecution
story is that the accused Durga Prasad and
one more Bhawani Prasad (whose appeal
stands abated) both started throwing brick
pieces. In such circumstances common
intention, covered under section 34 of I.P.C.
comes into play. Therefore, it is not necessary to
show that who threw a particular piece of brick
which hit his head leaving him injured. In our
opinion, if this Court embarks upon such an
enquiry that who threw that particular piece of
brick which hit Babu Lal's head, it would
tantamount to adding a new angle in the
prosecution case. The prosecution case is that
both the accused who were real brothers,
climbed over their roof and started throwing
brick pieces. The act of both accused speaks of
their common intention. The prosecution case
cannot be bifurcated as if that one of the
accused was throwing brick pieces and the
other just kept standing without sharing the
intention of
co-accused! This type
of
presumption is, not only not supported by the
evidence of the witnesses but is like substituting
one's own new story in the prosecution case.
Ordinarily, in criminal cases the prosecution
sets up a story from the evidence which has
been collected. The courts are not permitted to
add or modify or change or substitute with its
own - unless the court is compelled to do so for
good and strong reasons. Such a course of
action, if frequently resorted to may not only
prejudice the defence, may also crumble the
criminal justice administration system.

26. Next important legal issue is whether
prosecution has been able to prove charge of
section 302/34. In Dhupa Chamar & Ors Vs.
State of Bihar, (decided on 02.08.2002), the
Supreme Court had to grapple with a case of
death caused by single bhala blow in the neck.
A question arose whether clause 'Thirdly' of
section 300 I.P.C. is attracted. The Supreme
Court observed as below:-

" The ingredient 'intention' in that
Clause is very important and that gives a
clue in a given case whether offence
involved is murder or not. Clause Thirdly
of Section 300 of the Penal Code reads
thus:-

"Thirdly. If it is done with the
intention or causing bodily injury to any
person and the bodily injury intended to be
1358 INDIAN LAW REPORTS ALLAHABAD SERIES
inflicted is sufficient in the ordinary course
of nature to cause death, or" Intention is
different from motive. It is the intention
with which the act is done that makes
difference, in arriving at a conclusion
whether the offence is culpable homicide or
murder"

27. In the celebrated and landmark
judgment given by the Supreme Court in
Virsa Singh Vs. State of Punjab AIR
1958 SC 465, it was held as below:

"
To
put
it
shortly,
the
prosecution must prove the following facts
before it can bring a case under s. 300, 3rdly "
; (i) First, it must establish, quite objectively,
that a bodily injury is present ; (ii) Secondly,
the nature of the injury must be proved; These
are purely objective investigations.(iii) Thirdly,
it must be proved that there was an intention
to inflict that particular bodily injury, that is to
say, that it was not accidental or unintentional,
or that some other kind of injury was intended.
Once these three elements are proved to be
present,
the
enquiry
proceeds
further
and,Fourthly, it must be proved that the injury
of the type just described made up of the three
elements set out above is sufficient to cause
death in the ordinary course of nature. This
part of the enquiry is purely objective and
inferential and has nothing to do with the
intention of the offender."

28. The Supreme Court in Dhupa
Chamar (supra), quoted from another
judgment of itself given in Jai Prakash Vs.
State (Delhi Administration), (1991) 2 SCC
32 in which the meaning of term 'knowledge'
and 'intention' was elaborated as below:

"It can thus be seen that the
'knowledge' as contrasted with 'intention'
signify a state of mental realisation with the
bare state of conscious awareness of certain
facts in which human mind remains supine or
inactive. On the other hand, 'intention' is a
conscious state in which mental faculties are
aroused into activity and summoned into action
for the purpose of achieving a conceived end. It
means shaping of one's conduct so as to bring
about a certain event. Therefore, in the case of
'intention' mental faculties are projected in a set
direction. Intention need not necessarily involve
premeditation. Whether there is such an
intention or not is a question of fact. In Clause
Thirdly the words "intended to be inflicted" are
significant. As noted already, when a person
commits an act, he is presumed to expect the
natural consequences. But from the mere fact
that the injury caused is sufficient in the
ordinary course of nature to cause death it
does not necessarily follow that the offender
intended to cause the injury of that nature.
However, the presumption arises that he
intended to cause that particular injury. In such
a situation the court has to ascertain whether
the facts and circumstances in the case are
such as to rebut the presumption and such
facts and circumstances cannot be laid
down in an abstract rule and they will vary
from case to case. However, as pointed out
in Virsa Singh's case (supra), 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 a
struggle or grappling, the number of
injuries inflicted and their nature and the
part of the body where the injury was
inflicted are some of the relevant factors.
These and other factors which may arise
in a case have to be considered and if on a
totality of these circumstances a doubt
arises as to the nature of the offence, the
benefit has to go to the accused."

29. In Mahesh Balmiki alias Munna
Vs. State of M.P. 2000 (1) SCC 319, the
2 All. Durga Prasad Vs. State
1359
Supreme Court pointed out that there is no
principle that in all cases of a single blow,
302 I.P.C. is not attracted. A single blow
may in some cases entail conviction under
section 302 I.P.C., in some cases under
section 304 I.P.C. and in some other cases
under section 326 I.P.C. The Supreme
Court observed as below:-

"Adverting to the contention of a
single blow, it may be pointed out that
there is no principle that in all cases of
single blow Section 302 I.P.C. is not
attracted. Single blow may, in some cases,
entail conviction under Section 302 I.P.C.,
in some cases under Section 304 I.P.C and
in some other cases under Section 326
I.P.C. The question with regard to the
nature of offence has to be determined on
the facts and in the circumstances of each
case. The nature of the injury, whether it
is on the vital or non-vital part of the body,
the weapon used, the circumstances in
which the injury is caused and the manner
in which the injury is inflicted are all
relevant
factors
which
may
go
to
determine the required intention or
knowledge of the offender and the offence
committed by him."

30. The Supreme Court of India, in
Criminal Appeal No. 2043 of 2023
Anbazhagan Vs. The State represented
by the Inspector of Police, decided on
20.07.2023, differentiated between word
'intent' and 'knowledge' observing that
intention which is a state of mind can never
be precisely proved by direct evidence as a
fact; it can only be deduced or inferred
from other facts which are proved the
intention may be proved by res-gestae, by
acts or events previous or subsequent to the
incident or occurrence. The relevant
consideration may include nature of
weapon used, place where injury was
inflicted, nature of injury, the opportunity
available to the accused. The Supreme
Court
quoted
from
the
Kudumula
Mahanandi Reddi MANU/AP/0128/1960
: AIR 1960 AP 141, as below :-

'18. ... A man's intention has to
be inferred from what he does. But there
are cases in which death is caused and the
intention which can safely be imputed to
the offender is less grave. The degree of
guilt depends upon intention and the
intention to be inferred must be gathered
from the facts proved. Sometimes an act is
committed which would not in an ordinary
case inflict injury sufficient in the
ordinary course of nature to cause death,
but which the - offender knows is likely to
cause the death. Proof of such knowledge
throws light upon his intention."

The Supreme Court further reproduced
para 26 from Kudumala judgment as
below:

"26. ...Where the evidence does
not disclose that there was any intention,
to cause death of the deceased but it was
clear that the accused had the knowledge
that their acts were likely to cause death
the accused can be held guilty under the
second part of sec. 304, I.P.C. The
contention that in order to bring the case
under the second part of sec. 304, I.P.C. it
must be brought within one of the
exceptions to sec 300, I.P.C. is not
acceptable."

'Knowledge'
and
'intention'
are
essential ingredients of offence of culpable
homicide as defined in section 299 of I.P.C.
Section 299 I.P.C. is as below:

"Whoever causes death by doing an
act with the intention of causing death, or
1360 INDIAN LAW REPORTS ALLAHABAD SERIES
with the intention of causing such bodily
injury as is likely to cause death, or with
the knowledge that he is likely by such act
to cause death, commits the offence of
culpable homicide."

31. In our opinion the aforesaid
precedents set up a right background for
this court to proceed, keeping in mind the
real intent of law and its application to the
facts of instant case. This Court has to first
find out whether the act is covered under
section 299 I.P.C. as defined above. The
facts of this case are that in the background
of a dispute which arose because of
accumulation of rain water in a enclosure
which is inside portion of house popularly
known as 'angan' (courtyard) of the
deceased and when his brother's family
refused to open the drain, he attempted to
clear the same on his own which annoyed
the accused persons i.e. his real brother's
sons and they started throwing brick pieces.
In this case only one injury was of such
nature which could have caused death.
There has not been any repetition of act of
throwing bricks when the deceased had
slipped and fell down. The accused threw
pieces of bricks (not wielded any weapon)
which is enough to show that there has not
been any pre-meditation. This is not the
case that they had come prepared with
some object which may properly fall in
category of a weapon. This is not a case
where after the altercation, accused persons
had come again with a plan in their mind.
This is not a case where they had brought
some weapon. The circumstances show that
there was an act which can be called rather
reckless. When a piece of brick is thrown, it
is difficult to say where it will hit the body,
if at all it hits, unless somebody is so
trained that he can exactly pin point the
part of the body where he wanted to hit
with the object. Unless someone is skilled
enough, it is not possible to hit with a stone
or brick at a target with precision. Here the
act, and the intended consequence have to
be considered with caution. Moreover, it
has not come in evidence that accused had
specifically targetted head of the deceased
for inflicting injury and he was successful
in doing the same.

32. Now comes another aspect that is
the nature of injury actually caused. In this
case, the impact of the blow by piece of
brick caused fracture of skull bones. The
deceased
survived
for
seven
days,
thereafter he succumbed to this injury. In
our view a single injury caused by throwing
a piece of brick, which is not a hand held
weapon, cannot be categorised as an injury
likely to cause death. In our opinion the
facts
and
circumstances
exclude
the
proposition that the accused persons did the
act with the intention of causing death or
with the intention of causing such bodily
injury as is likely to cause death. Further
the act is not covered in the third part of
section 299 I.P.C. that the act was done
with a 'knowledge' that he is likely by such
act to cause death.

33. In Anbazhagan (supra), the
Supreme Court in para 42 of the judgment
observed that it is fallacious to contend that
wherever there is single injury, a case of
culpable homicide is made out, irrespective
of other circumstances. In the same
judgment, the Supreme Court reproduced
para 23 of the judgment in Virsa Singh
(supra) with a view to impress upon that
the court has to confine itself to the fact
whether accused intended to inflict the
injury which is proved to be present and
that if he can show that he did not, or if the
totality of the circumstances justify such an
inference, then, of course the 'intent' that
the section requires, is not proved. The
2 All. Durga Prasad Vs. State
1361
Supreme Court said that whether he knew
of its seriousness or intended serious
consequence is neither here not there.

34. In the instant case, the existence
of injury is proved. Now the question is
whether circumstances warrant conclusion
that he intended to cause such an injury
which has actually been caused or whether
he had the requisite knowledge that he will
cause such an injury which may ultimately
cause his death. Even in cases which
involved a single blow by lathi, the Courts
have convicted accused under section 304
I.P.C. and in some cases even under section
302 I.P.C. Having said that it may be noted
that lathi is a weapon which has to be held
by hands and when a blow is caused, the
accused must be presumed to have
knowledge that on which part of the body,
whether some vital parts like head or any
other part like limbs which are non-vital, he
is going to hit.

Another difference is that when an
accused is using lathi, he must be presumed
to be aware of the force he is about to use
or has used and therefore, can be attributed
with
the
necessary
'knowledge'
of
consequence of his act, whether accused
had necessary intention or 'knowledge'.
Most fundamental formula which may
be applied for deducing the requisite
intention or knowledge, is whether he
was aware of the consequences which
shall follow or likely to follow as a direct
consequence of his act. Where such an
awareness of the direct consequences or the
higher degree of probability cannot be
attributed to the accused, the offence may
not fall either under section 302 I.P.C. or
section 304 I.P.C. In our firm opinion, in
such cases the offence may be covered
under section 323, 324 and 325 I.P.C. as the
case may be.

35. Interestingly, the term 'intention'
and term 'knowledge' form essential
ingredient of section 321 I.P.C. which
defines voluntarily causing hurt and section
322 I.P.C. which defines voluntarily
causing grievous hurt.