# Rajjan v. G.P. Dixit

- **Citation:** (2025) 5 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-19
- **Case number:** Criminal Appeal No. 2135 of 1983
- **Bench:** Siddhartha Varma, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajjan-v-g-p-dixit-53352
- **Pages:** 13

## Headnote

Criminal Law - Indian Penal Code-Section
304-Appellant along with other co-accused
caused several injuries by 'Lathi' on the
deceased- deceased suffered a fatal blow on his
head -there was no intention to cause his death-
admittedly the weapon of offence is lathi, which
is a common item carried by the villagers -none
of the clauses of Section 300 of IPC are
attracted -as intention of the appellants to cause
death or such bodily injury, which they knew
would cause the death of other person or
sufficient in the ordinary course of nature to
cause death, is not proved-deceased had
suffered a head injury and died after three days
of the incident- no specific role was attributedcase of the appellant would fall u/s 304 (Part II
) of Indian Penal Code.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,991 of 42,560. This is a partial read: ask again with offset=39991 for what follows._

5 All. Rajjan Vs. G.P. Dixit
179

59. In view of the aforesaid, the
present Criminal Appeal is allowed.

60.
Consequently,
the
impugned
Judgment and Order dated 24-12-2005
passed by the learned Additional Sessions
Judge/Fast Track Court No. 1, Bahraich in
Sessions Trial No. 229 of 2002, tilted as
'State Vs Rajesh @ Sajesh Twari', arising
out of Case Crime No. 216 of 2002, under
section 302 of the I.P.C., Police StationFakharpur, District-Bahraich, is hereby set
aside.

61. The accused-appellant, Rajesh @
Sajesh Tewari is in jail. Let the accusedappellant, Rajesh @ Sajesh Tewari, be
released from jail forthwith, if he is not
wanted in any other case.

62. In compliance of provisions of
section 437 A of the Cr.P.C., it is directed
that the accused-appellant, Rajesh @
Sajesh Tewari, shall furnish a personal
bond and two sureties each in the like
amount to the satisfaction of the court
concerned within two weeks of his release
from jail.

63. Let the record of trial court
alonwith the copy of this order be
transmitted forthwith to learned trial court
concerned for necessary information and
compliance.
----------
(2025) 5 ILRA 179
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.05.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Criminal Appeal No. 2135 of 1983
Rajjan ...Appellant
Versus
G.P. Dixit ...Respondent

Counsel for the Appellant:
State of U.P.

Counsel for the Respondent:
D.G.A.

Criminal Law - Indian Penal Code-Section
304-Appellant along with other co-accused
caused several injuries by 'Lathi' on the
deceased- deceased suffered a fatal blow on his
head -there was no intention to cause his death-
admittedly the weapon of offence is lathi, which
is a common item carried by the villagers -none
of the clauses of Section 300 of IPC are
attracted -as intention of the appellants to cause
death or such bodily injury, which they knew
would cause the death of other person or
sufficient in the ordinary course of nature to
cause death, is not proved-deceased had
suffered a head injury and died after three days
of the incident- no specific role was attributedcase of the appellant would fall u/s 304 (Part II
) of Indian Penal Code.

Appeal partly allowed. (E-9)

List of Cases cited:

1.
Criminal
Appeal
No.
2043
of
2023
(Anbazhagan Vs The St. Represented by the
Inspector of Police)

2. Basdev Vs St. of Pepsu, MANU/SC/0027/1956
: AIR 1956 16 SC 488

3. Pulicherla Nagaraju @ Nagaraja Reddy Vs St.
of A.P, MANU/SC/8419/2006 :2006:INSC:520 :
2006 (11) SCC 444

4. Jugut Ram Vs St. of Chhattisgarh (2020) 9
SCC 520

5. Gurmukh Singh Vs St. of Har., (2009) 15 SCC
635

6. Muhammad Shakeel Vs St. of A.P., (2007) 3
SCC 119
180 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. This criminal appeal has been
preferred on behalf of the accused namely
Rajjan against the judgment and order of
conviction
and
of
sentence
dated
06.09.1983 passed by learned Additional
Sessions Judge IV, Court No.1, Etawah, in
Sessions Trial No. 341/1981 (State of U.P.
versus Rajjan), arising out of Case Crime
No.75/1978
Police
Station-Dibiyapur,
District Etawah, whereby the appellant was
convicted for offence punishable under
Section 302/149 of Indian Penal Code and
was sentenced to undergo imprisonment for
life, 323/149 of Indian Penal Code for
causing simple hurt and was also convicted
for offence punishable under Section 147
Indian Penal Code .

2. The accused was challaned by the
police of Dibiyapur police station for
committing the offence punishable under
sections 302/149, 323/149 & 147 of IPC.
The case was committed to the Sessions
Court for trial.

3. The allegation against the accused is
that
Rajjan
along
with Babu
Ram,
Vedprakash,
Balveer
and
7/8
other
companions formed an unlawful assembly
at Brahmadev fair in village Jamauli, Police
Station Dibiyapur, District Etawah on
23.4.78, with their common object to
murder Murli Prasad and to injure other
persons
namely
Ramprakash,
Horilal,
Kanhaiyalal and Rampratap. In furtherance
of their common object, they caused
several injuries by Lathi on Murli Prasad,
as a result of which he died. They also
caused injuries to Ramprakash, Rampratap,
Horilal, Kanhaiyalal with Lathi. Thus, case
under the varioius provisions of Indian
Penal Code was registered against the
accused/appellant-Rajjan.
Thereafter,
charges were framed for committing
punishable offence under Sections 302/149,
323/149 & 147 of the Indian Penal Code.

4. The co-accused Balbir, Ved Prakash
and Babu Ram were separately tried,
convicted and punished vide the judgment
and order passed by the learned Sessions
Judge, dated 08.06.1981, against which
they filed separate appeal having Criminal
Appeal No.1346 of 1981.

5. The present appellant namely
Rajjan was tried for the same offence in a
separate sessions trial being Sessions Trial
No. 341 of 1981 that resulted into
conviction vide the impugned judgment
and order dated 06.09.1983 giving rise to
the present appeal.

6. The prosecution's case was initiated
by one Ummed Prasad, resident of village
Deo Rai Ka Purwa, police station;
Dibiyapur, District- Etawah, who was the
informant of the incident. Smt. Jal Devi and
Maan Singh, are niece and nephew,
respectively, of the informant. Smt. Jal
Devi was married to Ved Prakash who
deserted her and was not maintaining her.
On the day of incident, i.e, 23.4.1978 Smt.
Jal Devi alongwith her brother Man Singh
had gone to see a fair held in village
Jhamauli at about 2.00 P.M. When they
reached near a mango orchard, they found
Ved Prakash, Balbir, Babu Ram and 8/9
other persons present there. All of them
were armed with lathis and short staffs, and
they surrounded them. They, in fact, caught
hold of the hand of Smt. Jal Devi and tried
to drag her. Finding them in peril both of
them shouted. Resultantly, Ram Prakash,
Hori Lal, Ram Pratap, Kahaiya Lal, Murli
Prasad and the informant (Ummed Prasad)
who too had gone there to see the fair
5 All. Rajjan Vs. G.P. Dixit
181
reached to the scene of occurrence. When
they tried to intervene, they were also
assaulted by Ved Prakash and others. Murli
Prasad became unconscious due to the
injuries sustained by him. However, when
the accused persons tried to flee away from
the spot the villagers caught hold of Babu
Ram on the spot. However, his other
accomplices succeeded in escaping their
arrest. Thereafter, Murli Prasad was sent to
the police station on a bullock cart while
the
informant-Ummed
Prasad,
Ram
Prakash, Hori Lal, Kanhaiya Lal and Ram
Pratap alongwith apprehended accused
Babu Ram followed him on foot to the
Police Station Dibiyapur where Ummed
Prasad got a report scribed with the
assistance of one Hari Babu and thereafter
lodged the same at the police station at 6.05
P.M. on 23.04.1978. The police station was
at a distance of 6 miles from the place of
incident. The injured persons were sent to
Hospital by the police for their medical
examination.

7. The investigation was conducted by
Sub-Inspector
R.K.Yadav,
who,
after
completing all the necessary formalities,
submitted charge sheet against all the
accused persons.

8. After taking into consideration the
case of the prosecution as well as the
defence and on the strength of evidence
available on record, the trial convicted the
accused persons. Thereafter the instant
Appeal was filed.

9. We have heard the submissions of
Sri Ramesh Kumar, learned counsel for the
appellant and Sri Rahul Asthana, learned
Additional
Government
Advocate
appearing on behalf of the State-respondent
and perused the material on record as well
as the impugned judgment and order.

10. As per the record available before
us, the prosecution, to prove its case,
produced
the
followings
nine
(9)
witnesses:-

P.W.-1 Ummed Prashad

P.W.-2 Ram Prakash

P.W.-3 Ram Pratap

P.W.-4 Abdul Rashid ( Retired
S.I. )

P.W.-5 Thakur Das

P.W.-6 Ghanshyam Singh

P.W.-7 Layak Singh

P.W.-8 R. K. Yadav ( S.I. )

P.W.-9 Ranwant Singh

The
two
defence
witnesses
produced were D.W.-1, S.H. Jafari (Assit.
Jailor) and D.W.-2, Tulsi Ram.

11. The prosecution examined nine
witnesses in all to prove its case ,out of
them
Ummed
Prasad
(P.W.1),
Ram
Prakash (P.W.2) & Ram Pratap (P.W.3)
were the witnesses of the factum of
incident while all others were formal
witnesses.

12. Learned counsel for the appellant
submitted that the appellant was innocent and
that the learned trial Court had wrongly
convicted the appellant without properly
appreciating the evidence available on record.
He further submitted that the appellant had
not caused any fatal injury to the deceased
and also to other persons. There is nothing on
record to show that the deceased died due to
the injury caused by the appellant.

13. It is further submitted on behalf of
the appellant that there are material
contradictions
and
omissions
in
the
statements of the prosecution witnesses but
the learned trial Court had erred in law by
ignoring the same and in convicting the
appellant.
182 INDIAN LAW REPORTS ALLAHABAD SERIES

14. It has been argued on behalf of the
appellant that as per the Medical report, the
doctor had opined that as many as 16
injuries were caused to the persons on the
side of the prosecution and except one
injury on the top of the head of Murli
Prasad, which resulted in his death, all were
simple in nature. None of the accused had
specifically been assigned the role of
causing the injury on the head of the
deceased Murli Prasad which proved to be
fatal to his life. Further, that if the case of
the prosecution is seen in its right
perspective, the same would not travel
beyond the offence as is contained in
Section 304(Part-II) of Indian Penal Code.

15. It has been emphatically submitted
on behalf of the appellant that the learned
trial Court had failed to appreciate the
prosecution evidence correctly and had
therefore erred in convicting the appellant.
As such the appellant is entitled for
acquittal.

16. Per contra, the learned Additional
Government Advocate has submitted that
the deceased died due to the injuries caused
by the appellant and the learned trial Court
has very rightly convicted the appellant by
sentencing him appropriately. He prayed
for dismissal of the present appeal.

17.
We
have
considered
rival
contentions of the parties and perused the
record.

18.
Prosecution
witness
P.W.-1,
Ummed Prasad who is an eye-witness of
the incident has supported the prosecution
version in his examination-in-chief. He has
further stated that he had gone to Etawah
Jail for identification of the person and took
part in the test identification parade and had
identified the appellant. In his crossexamination, he stood firm with regard to
the manner in which the incident had taken
place.

19. P.W.-2 Ram Prakash has been
examined by the prosecution, as an eyewitness who has supported the prosecution
version in his examination-in-chief and has
further stated that he had also identified the
present appellant- Rajjan while he was in
Jail. In his cross-examination, he had stated
that it was incorrect to say that appellant-
Rajjan used to visit the house of Moti Lal
in his village. He further stated that he had
never seen appellant- Rajjan in his village.

20. P.W.-3 Ram Pratap was also
examined by the prosecution as an eyewitness. He too stood firm and has
supported the prosecution case stating the
manner in which the incident had taken
place. In his cross-examination, he stated
that he had never seen the appellant- Rajjan
in his village and had denied the suggestion
that appellant- Rajjan used to accompany
Balveer in the village. He had also denied
the suggestion regarding his previous
acquaintance with the appellant. On reexamination, he had stated that he had gone
to Jail to identify accused-appellant and
had rightly identified him.

21. P.W.-4 Abdul Rashid was the
Investigating Officer, who was assigned the
investigation on 06.11.1978 and has
submitted the charge-sheet against the
appellant- Rajjan.

22. P.W.-5 Thakur Das is the Head
Constable who was posted as Head
Moharir on 23.04.1978 and has proven the
chik report as Exhibit Ka-4.

23. P.W.-6 Constable Ghanshyam
Singh was assigned the job of taking
5 All. Rajjan Vs. G.P. Dixit
183
appellant- Rajjan in veil from Jail. He has
further stated that when the appellant was
in his custody, he did not give any
opportunity to anyone to see the face of the
appellant.

24. P.W.-7 Constable Layak Singh
was on security duty from 6:00 a.m. to 9:00
a.m. and has stated that appellant was in
veil and no one was given opportunity to
see him.

25.
P.W.-8
R.K.
Yadav,
the
Investigating Officer has investigated the
case and has stated that he arrested the
appellant-Rajjan Lal on 07.05.1978 from
his house, then took him in veil and was
kept him veil till the test identification. He
further stated that on the statement of
accused- Babu Ram and name of present
appellant-Rajjan and of nine other accused
persons came into light.

26.
P.W.-9
is
Head
Constable
Ranwant Singh who has stated that on
07.05.1978, Sub-Inspector R.K. Yadav,
produced appellant- Rajjan in veil at police
station at 06:45 a.m. and was taken away
from police station to Jail at 09:15 a.m. on
the same day. During the appellant's
custody at police station, no one was
allowed to see his face.

27. The trial court thereafter recorded
the statement of accused-appellant under
Section 313 Cr.P.C. wherein he denied the
allegations as levelled against him by the
prosecution witnesses. He has also stated
that when he was arrested, his face was
uncovered and thereafter he was taken from
the Jail with uncovered face.

28. The defence has produced D.W.-1
S.H. Jafri, Assistant Jailor, who produced
the register containing the entry for seven
accused persons who were kept with
covered face and for the present appellant,
the word 'cover' was not entered in that
register.

29. D.W.-2 Tulsi Ram stated that
Jagannath and Shri Ram are his real
brothers. He also stated that appellant-
Rajjan is son of Shri Ram.

30. In the light of the evidence
available on record and the arguments
advanced by learned counsel for the parties,
this Court has to delve upon the question as
to whether the findings recorded by the
learned trial Court regarding conviction
under Section 302 of the Indian Penal Code
are in consonance with the parameter
prescribed under law or not?

31. Now we proceed to examine the
injuries in respect of the conviction under
section 302/149 and 323/149 I.P.C. As per
prosecution version Murli Prasad, Ram
Prakash, Ram Pratap, Kanhaiya Lal, Hori
Lal & Babu Ram sustained injuries in this
incident. They were examined as follows :-

Examination of Murli Prasad

Dr.
H.C.Yadav
medically
examined Murli Prasad at 6.30 P.M. on
23.04.1978 and found 3 swellings, one
lacerated wound besides injury no.1 which
was regarding unconsciousness of the
patient. Injuries no.1 and 5 were kept under
observation while other injuries were found
to be simple in nature. Subsequently Murli
Prasad died in the Hospital on 26.04.1978
at 7.00 P.M. Jang Bahadur Rai, Sub
Inspector, Police Station Swaroop Nagar,
Kanpur,
prepared
inquest
report
of
deceased Murli Prasad at 11.00 P.M. on
26.04.1978 and sent the dead body to
mortuary for postmortem examination
184 INDIAN LAW REPORTS ALLAHABAD SERIES
where autopsy was conducted by Dr. R.M.
Saxena, A.C.M.O.(Medical) Kanpur at 6.00
P.M. on 19.04.1978. He found only one
contusion on the top of head. The
genuineness of this document has been
admitted.

Examination of Ram Prakash

Three lacerated wounds and one
abrasion was found on the person of Ram
Prakash and in the opinion of the doctor, all
the injuries were simple in nature.

Examination of Hori Lal

One lacerated wound, muscle
deep was found on the person of Hori Lal
which according to doctor was simple in
nature.

Examination of Kanhaiya Lal

Two injuries on the person of
Kanhaiya Lal. One is lacerated wound deep
and the other is swelling on the forearm. In
the opinion of the doctor, both the injuries
are simple in nature.

Examination of Ram Pratap

Four injuries on the person of
Ram Pratap in the nature of a single
lacerated wound, two reddish contusions
and one swelling. In the opinion of the
doctor, all the injuries are simple in nature.

32. It is germane to point out here that
in the instant case, the weapon assigned to
the appellants is lathi , which, by no stretch
of imagination, can be said to be a lethal
weapon used in the incident, on the basis of
which, we will now determine as to
whether there was any intention on the part
of the accused-appellants to cause death of
the deceased or just to assault him with an
intention to cause bodily injury.

33. The Hon'ble Supreme Court in its
recent decision in Criminal Appeal No.
2043 of 2023 (Anbazhagan Vs. The State
Represented by the Inspector of Police)
,the Hon'ble Apex court has very lucidly
explained distinction between the terms
'intention' and 'knowledge'.

34. The word "intent" is derived from
the word archery or aim. The "act"
attempted to must be with "intention" of
killing a man.

35. 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,
on admission. Intention of a person cannot
be proved by direct evidence but is to be
deduced from the facts and circumstances
of a case.

36. In the case of Basdev Vs. State of
Pepsu, MANU/SC/0027/1956 : AIR 1956
16 SC 488, at Page 490, the following
observations
have
been
made
by
Chadrasekhara Aiyar J. :-

"6. ... Of course, we have to
distinguish between motive, intention and
knowledge. Motive is something which
prompts a man to form an intention and
knowledge
is
an
awareness
of
the
consequences of the act. In many cases
intention and knowledge merge into each
other and mean the same thing more or less
and intention can be presumed from
knowledge. The demarcating line between
knowledge and intention is no doubt thin
5 All. Rajjan Vs. G.P. Dixit
185
but it is not difficult to perceive that they
connote different things. Even in some
English decisions, the three ideas are used
interchangeably and this had led to a
certain amount of confusion."
(Emphasis supplied)

37. Bearing in mind the test suggested
in the aforesaid decision and also bearing in
mind that our legislature has used two
different
terminologies
'intent'
and
'knowledge' and separate punishments are
provided for an act committed with an
intent to cause bodily injury which is likely
to cause death and for an act committed
with a knowledge that his act is likely to
cause death without intent to cause such
bodily injury as is likely to cause death, it
would be proper to hold that 'intent' and
'knowledge' cannot be equated with each
other. They connote different things.
Sometimes, if the consequence is so
apparent, it may happen that from the
knowledge, intent may be presumed. But it
will not mean that 'intent' and 'knowledge'
are the same. 'Knowledge' will be only one
of the circumstances to be taken into
consideration
while
determining
or
inferring the requisite intent.

38. In another case reported in
MANU/SC/8419/2006 : 2006:INSC:520 :
2006 (11) SCC 444, Pulicherla Nagaraju
@ Nagaraja Reddy Vs. State of A.P, the
Hon'ble Supreme Court has laid down
various relevant circumstances, from which
the intention could be gathered. Some
relevant considerations are the following :-

(i) The nature of the weapon
used, (ii) whether the weapon was carried
by the accused or was picked up from the
spot, (iii) whether the blow is aimed at the
vital part of the body, (iv) the amount of
force employed in causing injury, (v)
whether the act was in the course of sudden
quarrel or sudden fight, (vi) whether the
incident occurred by chance or whether
there was any premeditation, (vii) whether
there was any prior enmity or whether the
deceased was a stranger, (viii) whether
there was a grave or sudden provocation
and if so, the cause for such provocation,
(ix) whether it was heat of passion, (x)
whether a person inflicting the injury has
taken undue advantage or has acted in a
cruel manner, (xi) whether the accused
persons has dealt a single blow or several
blows.

39. Thus, while defining the offence of
culpable homicide and murder, the framers
of the IPC laid down that the requisite
intention or knowledge must be imputed to
the accused when he committed the act
which caused the death in order to hold him
guilty for the offence of culpable homicide
or murder as the case may be. The framers
of the IPC designedly used the two words
'intention' and 'knowledge', and it must be
taken that the framers intended to draw a
distinction between these two expressions.
The knowledge of the consequences which
may result in the doing of an act is not the
same thing as the intention that such
consequences should ensue. Except in
cases where mens rea is not required in
order to prove that a person had certain
knowledge, he "must have been aware that
certain specified harmful consequences
would or could follow." (Russell on Crime,
Twelfth Edition, Volume 1 at Page 40).

40. The phraseology of Sections 299
and 300 of the IPC leaves no manner of
doubt that under these Sections when it is
said that a particular act in order to be
punishable be done with such intention, the
requisite intention must be proved by the
prosecution. It must be proved that the
186 INDIAN LAW REPORTS ALLAHABAD SERIES
accused aimed or desired that his act should
lead to such and such consequences. For
example, when under Section 299 it is said
"whoever causes death by doing an act with
the intention of causing death" it must be
proved that the accused by doing the act,
intended to bring about the particular
consequence, that is, causing of death.
Similarly, when it is said that "whoever
causes death by doing an act with the
intention of causing such bodily injury as is
likely to cause death" it must be proved that
the accused had the aim of causing such
bodily injury as was likely to cause death.

41.
Thus,
in
order
that
the
requirements of law with regard to
intention may be satisfied for holding an
offence of culpable homicide proved, it is
necessary that any of the two specific
intentions must be proved. But, even when
such intention is not proved, the offence
will be culpable homicide if the doer of the
act causes the death with the knowledge
that he is likely by his such act to cause
death, that is, with the knowledge that the
result of his doing his act may be such as
may result in death.

42. The very significant question
which has engaged our attention in this
case is, whether on the facts and in the
circumstances of the case we should
maintain the conviction of the appellant
herein for the offence under Section 302 or
we should further alter it to Section 304
(Part II) of the Indian Penal Code?

43. Sections 299 and 300 of the IPC
deal with the definition of 'culpable
homicide' and 'murder', respectively. In
terms of Section 299, 'culpable homicide' is
described as an act of causing death (i) with
the intention of causing death or (ii) with
the intention of causing such bodily injury
as is likely to cause death, or (iii) with the
knowledge that such an act is likely to
cause death. As is clear from a reading of
this provision, the former part of it
emphasises on the expression 'intention'
while the latter upon 'knowledge'. Both
these
are
positive
mental
attitudes,
however, of different degrees. The mental
element in 'culpable homicide', that is, the
mental attitude towards the consequences
of conduct is one of intention and
knowledge. Once an offence is caused in
any of the three stated manners notedabove, it would be 'culpable homicide'.
Section 300 of the IPC, however, deals
with 'murder', although there is no clear
definition of 'murder' in Section 300 of the
IPC. As has been repeatedly held by this
Court, 'culpable homicide' is the genus and
'murder' is its species and all 'murders' are
'culpable homicides' but all 'culpable
homicides' are not 'murders'. (see Rampal
Singh
vs.
State
of
U.P.,
MANU/SC/0589/2012 : 2012:INSC:302 :
(2012) 8 SCC 289).

44. The Hon'ble Supreme Court
further in its decision in Criminal Appeal
No. 2043 of 2023 (supra) has thus held that
the distinction between culpable homicide
(Section 299 of IPC) and the murder
(Section 300 of IPC) has always to be
carefully borne in mind while dealing with
a charge under Section 302 of the IPC.
Under the category of unlawful homicides,
both, the cases of culpable homicide
amounting to murder and those not
amounting to murder would fall. Culpable
homicide is not murder when the case is
brought within the five exceptions to
Section 300 of the IPC. But, even though
none of the said five exceptions are pleaded
or prima facie established on the evidence
on record, the prosecution must still be
required under the law to bring the case
5 All. Rajjan Vs. G.P. Dixit
187
under any of the four clauses of Section
300 of the IPC to sustain the charge of
murder. If the prosecution fails to discharge
this onus in establishing any one of the four
clauses of Section 300 of the IPC, namely,
1stly to 4thly, the charge of murder would
not be made out and the case may be one of
culpable homicide not amounting to murder
as described under Section 299 of the IPC.

45. When the injury inflicted by the
accused results in the death of the victim,
no inference, as a general principle, can be
drawn that the accused did not have the
intention to cause the death or that
particular injury which resulted in the death
of the victim. Whether an accused had the
required guilty intention or not, is a
question of fact which has to be determined
on the facts of each case.

46. Now, we recapitulate the facts and
circumstances of the instant case on the
fateful day of the incident, the appellant
Rajjan
alongwith
other
co-accused
caused several injuries by 'Lathi' on
Murli Prasad, as a result of which Murli
Prasad died ,the deceased suffered a
fatal blow on his head resulting in his
death, though, there was no intention to
cause his death. In the present case,
admittedly the weapon of offence is
lathi, which is a common item carried by
the villagers in this country linked to his
identity.

47.
Thus,
from
the
aforesaid
circumstances, we are of the considered
opinion that none of the clauses of Section
300 of IPC are attracted as intention of the
appellants to cause death or such bodily
injury, which they knew would cause the
death of other person or sufficient in the
ordinary course of nature to cause death, is
not proved.

48. Now, the next question would be
as to whether the appellants would be
guilty in Part-I or Part-II of Section 304 of
IPC. The statutory provisions under section
304 is as under :-

Punishment
for
culpable
homicide not amounting to murder.

Whoever
commits
culpable
homicide not amounting to murder shall be
punished with imprisonment for life, or
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine, if the act by
which the death is caused is done with the
intention of causing death, or of causing
such bodily injury as is likely to cause
death, or with imprisonment of either
description for a term which may extend to
ten years, or with fine, or with both, if the
act is done with the knowledge that it is
likely to cause death, but without any
intention to cause death, or to cause such
bodily injury as is likely to cause death.

49. Section 304 is in two parts. If
analysed, the section provides for two kinds
of punishment to two different situations. (1)
if the act by which death is caused is done
with the intention of causing death or causing
such bodily injury as is likely to cause death.
Here important ingredients is the "intention";
(2) if the act is done with knowledge that it is
likely to cause death but without any
intention to cause death or such bodily injury
as is likely to cause death. When a person hits
another with a lathi danda on vital part of the
body with such a force that the person hit
meets his death, knowledge has to be imputed
to the accused. In that situation, case will fall
in part II of Section 304 IPC as in the present
case.

50. To alter a conviction from Section
302 IPC (murder) to Section 304 Part II
188 INDIAN LAW REPORTS ALLAHABAD SERIES
IPC (culpable homicide not amounting to
murder), the analysis are as follows :-

(1.) Prosecution and Defence
Evidence

PWs 1, 2, and 3 (Ummed Prasad,
Ram Prakash, Ram Pratap): Established
presence of Rajjan at the scene, his
participation in the assault, but no specific
statement that he caused the head injury to
Murli Prasad.Other PWs (formal witnesses)
proved
general
facts
of
arrest,
identification, and post-mortem reports.
D.W.1
(Jailor)
and
D.W.2
(villager)
suggested
procedural
irregularities
in
identification and prior acquaintance, but
these do not materially affect the guilt.
However, they do reinforce doubt about
identification clarity, useful when assessing
the extent of Rajjan's specific role.

(2.)
Medical
and
Forensic
Evidence:
The
post-mortem
report
revealed that deceased Murli Prasad
suffered only one fatal injury: a contusion
on the top of the head, while other injuries
were either swellings or lacerations and
were classified as simple by the examining
doctor. The nature of this injury suggests
absence of a premeditated plan or intention
to kill, particularly in the context of a group
assault where individual roles were not
clearly defined.

(3.) Group Nature of Assault
and Provocation: The incident occurred at
a fair (Brahmadev mela) where a personal
family dispute escalated. The accused,
including Rajjan, allegedly attempted to
drag Smt. Jal Devi, leading to a sudden
escalation and intervention by relatives and
villagers. The suddenness of the event,
absence of premeditation, and use of
lathis-not deadly weapons per seindicate lack of intent to commit murder,
but knowledge that death may result from
such an act.

51. Having gone through the evidence
available on record, the deceased had
suffered a head injury which endangered
his
life.
The
deceased
expired
on
26.04.1978 after three days of the incident.
The Post Mortem report shows one
contusion on the top of the head as antemortem injury and in the opinion of the
doctor, cause of death hemorrahage as a
result of head injury. Having regard to the
totality of the facts and circumstances of
the case, it can safely be concluded that no
specific role was attributed to the appellantRanjjan for causing that fatal blow which
culminated into death of the Murli Prasad.

52. In the instant case, the existence of
injury is proved. Now the question is
whether
circumstances
warranted
a
conclusion that the appellant 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 the death of
the injured. 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 the consequence
of his act. Whether accused had necessary
intention or knowledge would have to be
seen. The basic criteria that may be
applied
for
deducing
the
requisite
intention or knowledge, is whether he
was aware of the consequences which
shall follow or were 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 under section even 302 of
I.P.C. In our firm opinion, in such cases
the offence would be covered under
section 304 ( Part II ) of Indian Penal
Code.
5 All. Rajjan Vs. G.P. Dixit
189

53. It appears that at the most it can be
said that the act of the appellant in hitting
the deceased was done with the knowledge
that it was likely to cause death but without
any intention to cause death or to cause
such bodily injury as is likely to cause
death. The case of the appellant would,
therefore, fall under under Section 304
(Part II ) of Indian Penal Code, the act must
be done with knowledge that it is likely to
cause death, but without intention to cause
death. The facts indicate that the intention
to kill is not proven beyond reasonable
doubt, though knowledge can be inferred
from the use of lathi to the head. Hence,
this case more appropriately falls within the
ambit of Section 304 Part II.

54. In Jugut Ram vs. State of
Chhattisgarh (2020) 9 SCC 520 (Paras 6
to 10), Hon'ble Supreme Court held that "a
lathi is a common item carried by a villager
in this country linked to his identity" which
is capable of being used as a weapon of
assault but it does not make it a weapon of
assault simplicitor and, therefore, assault on
the head with a lathi is always a question of
fact in each case whether there was
intention to cause death or only knowledge
that death was likely to occur. In the light
of the aforenoted law laid down in the case
of Gurmukh Singh vs. State of Haryana,
(2009) 15 SCC 635 and Muhammad
Shakeel vs. State of A.P., (2007) 3 SCC
119, the Hon'ble Supreme Court altered the
conviction of the accused from Section 302
to Section 304 (Part II) IPC holding as
under:

"6. A lathi is a common item
carried by a villager in this country, linked
to his identity. The fact that it is also
capable of being used as a weapon of
assault, does not make it a weapon of
assault simpliciter. In a case like the
present, of an assault on the head with a
lathi, it is always a question fact in each
case whether there was intention to cause
death or only knowledge that death was
likely to occur. The circumstances, manner
of assault, nature and number of injuries
will all have to be considered cumulatively
to decipher the intention or knowledge as
the case may be. We do not consider it
necessary to dilate on the first principles
laid down in this regard in Virsa Singh vs.
The State of Punjab, 1958 SCR 1495, which
stand well established. Suffice it to notice
from precedents that in Joseph vs. State of
Kerala, (1995) SCC (Cri.) 165, the
appellant dealt two blows on the head of
the deceased. The deceased died two days
later. The post mortem report found
lacerated injury on the head and internal
examination revealed fracture to the
occipital bone extended up to the temporal
bone. The High Court convicted the
appellant under Section 302 IPC holding
that the injury caused by the lathi was
sufficient to cause death of the deceased.
This Court observed as follows:

"3. ....The weapon used is not a
deadly weapon as rightly contended by the
learned counsel. The whole occurrence was
a result of a trivial incident and in those
circumstances the accused dealt two blows
on the head with a lathi, therefore, it
cannot be stated that he intended to cause
the injury which is sufficient (sic). At the
most it can be said that by inflicting such
injuries he had knowledge that he was
likely to cause the death. In which case the
offence committed by him would be
culpable homicide not amounting to
murder. We accordingly set aside the
conviction of the appellant under Section
302 IPC and the sentence of imprisonment
for life awarded thereunder. Instead we
convict the appellant under Section 304
190 INDIAN LAW REPORTS ALLAHABAD SERIES
Part II IPC and sentence him to five years'
RI."

7. In Chamru Budhwa vs. State of
Madhya Pradesh, AIR 1954 SC 652, the
appellant dealt a blow on the head of the
deceased with a lathi and which proved
fatal. The injury was medically opined
sufficient in the ordinary course to cause
death. Conviction under Section 302, IPC
followed. This court observed as follows:

"5. It now remains to consider
whether the offence which he committed
falls within the first part or the second part
of Section 304 of the Indian Penal Code.
When the fatal injury was inflicted by the
appellant on the head of the deceased by
only one blow given in the manner alleged
by the prosecution it could as well be that
the act by which death was caused was not
done with the intention of causing death or
of causing such bodily injury as is likely to
cause death. The act appears to have been
done with the knowledge that it was likely
to cause death, but without any intention to
cause death or to cause such bodily injury
as is likely to cause death within the
meaning of Part II of Section 304 of the
Indian Penal Code.

 "6. We accordingly allow the
appeal to this extent that the conviction of
the appellant under Section 302of the
Indian Penal Code and the sentence of
transportation for life awarded to him will
be set aside, but the appellant will be
convicted of having committed the offence
under Section 304 Part II of the Indian
Penal Code and will be sentenced to seven
years' rigorous imprisonment."

8. In Gurmukh Singh vs. State of
Haryana, (2009) 15 SCC 635, the deceased
died three days later after an assault on the
head with a lathi opined to be sufficient in
the ordinary course of nature to cause
death. Holding that the assault was made
on the spur of the moment without
premeditation the conviction was altered
from one under Section 302 to Section 304
Part II and a sentence of seven years was
handed. Similarly in Mohd. Shakeel vs.
State of A.P., (2007) 3 SCC 119, the
appellant had caused only one injury and
had suffered injury himself also. Altering
the conviction from under Section 302IPC
to 304 Part II, the appellant was sentenced
to the period undergone since 1999.

9. We do not consider that Laltu
Ghosh (supra) and S. Rayappa (supra),
with regard to credibility of related
witnesses, have any relevance to the issue
in questiond being decided by us.

10. We accordingly alter the
conviction of the appellant from Section
302 IPC to Section 304 Part II, IPC. The
appellant is in custody since 2004. He has
already undergone the maximum period of
sentence prescribed under the same. The
appellant is, therefore, directed to be set at
liberty forthwith unless wanted in any other
case.

11.The appeal is allowed."

55. On substratum of the aforesaid
analysis in entirety, we are of the view that
the appellant is not liable to be convicted
under Section 302 read with Section 149 of
Indian Penal Code, rather the appellant
could be convicted under Section 304 (Part
II) read with Section 149 of Indian Penal
Code. As such, the impugned judgment and
order passed by learned trial court qua the
conviction of the appellant under Section
302 read with Section 149 and Section 323
read with Section 149 of Indian Penal
Code, is hereby modified and acordinlgy,
the appellant is convicted under Section
304 (Part II) and Section 323 read with
Section 149 of Indian Penal Code.

56. Now, addressing the issue of
sentencing under Section 304 (Part II) of
5 All. Annu Vs. State of U.P.
191
the Indian Penal Code, read with Section
149 of the Indian Penal Code, since the
accused-appellant remained in custody
during the trial as well as post-conviction
and taking into account the period of
incarceration already undergone by him,
we deem it appropriate to impose a
sentence equivalent to the period already
undergone by the accused-appellant.

57. Thus the appeal stands partly
allowed in the above mentioned terms.The
appellant is on bail.