ORDER
Usha Mehra, J.
(1) Madan Lal @ Gagar has assailed the order dated 30th March, 1996 passed by Additional Sessions Judge, Delhi thereby convicting him of offences under Sections 302/332/353 read with Section 34 of IPC and sentencing him to life imprisonment and fine of Rs.1500/- and in default of payment of fine simple imprisonment for two months. The impugned order of conviction and sentence have been assailed, primarily on the grounds:-
i) that being a single blow suddenly given on the chest of the deceased without. any intention or premeditation hence case would be covered under Section 304 and not under Section 302 IPC;
ii) that there was violation of Rule 24 (1) of Punjab Police Rules as applicable to Delhi;
(2) In order to appreciate the challenge brief facts relevant for our consideration are, that constable Onkanwar Singh (PW-6) was on patrol duty near jhuggi of K-Block, Jahangirpuri on 6th December, 1988. At about 7.45 P.M. constable Bhupender Singh the deceased came there ad informed that SHO was calling him at the police station. On receiving this information constable Onkanwar Singh PW-6 Along with the deceased constable Bhupender Singh started proceeding towards the police station. Hardly had they reached jhuggies of K-Block near Shiv Temple on the main road at about 8 P.M. they saw three persons namely the appellant, his brother Sardari Lal @ Dhari and co-accused Mehar Dass coming from the opposite side. They were bad characters of the area, therefore these constables knew them from before. Constable Bhupender Singh confronted them by saying to accused Sardari Lal @ Dhari and Madan Lal @ Gagar that there were several complaints against them for selling smack. Being confronted was not liked by the accused persons hence the appellant threatened the deceased by saying “Chal sale bhag yahan se, tere jaise kai dekhe hain” (Bastered go away we have seen several persons like you). Deceased Bhupender Singh told the appellant that he would complain this to the SHO. On this the accused got enraged and shouted, “Tujhe jinda jane denge to report karega” (If you are left alive only then you would be able to report). Accused Sardari Lal and Mehan Dass exhorted to Madan Lal alias Gagar thus; “Maar Sale Ko, peit phad do” (Beat the bastered and rip apart his stomach). Appellant suddenly took out his dagger from the right dub of the pant and gave a knife blow on the left side chest of deceased Bhupender Singh. Constable Onkanwar Singh raised alarm and tried to save by waiving his stick towards the accused persons. On this the accused left the deceased but tried to attack him. He saved himself by raising alarm and also waiving the stick. On hearing the alarm accused ran away. Constable Onkanwar Singh PW-6 chased them but the accused made good their escaped under the cover of darkness. In the meantime constable Satpal who was on duty picked up deceased Bhupender Singh from the spot and removed the deceased to Hindu Rao hospital. FIR was recorded on the statement of Constable Onkanwar Singh PW-6 at 8.50 P.M. Subsequent the accused persons were arrested near ISBT and thereafter challan was filed.
(3) Mr. Naveen Thakur appearing as amices Curiae for the appellant contended that the incident happened at the spur of the moment. The three accused persons namely Madan Lal alias Gagar, his brother Sardari Lal @ Dhari and the co-accused Mehan Dass reached the spot by chance. They were coming from the opposite direction. They were not aware that they would meet Constable Bhupender Singh and PW-6 at the place of occurrence. Not it was prosecution’s case that the accused persons had any intention or pre-mediated to kill Constable Bhupender Singh. In fact deceased Bhupender Singh confronted the accused and reminded them of their involvements in the sale of smack which allegations according to Mr. Thakur were false. Mr. Thakur then contended that it was in fact the deceased who provoked the accused by levelling false allegations. Till then there was no plan to harm or kill Constable Bhupender Singh. Therefore from the facts of this case it cannot be inferred that there was pre-meditation or intention on the part of the accused persons kill constable Bhupender Singh. It happened suddenly and at the spur of the moment. Omkanwar Singh PW-6, the author of the FIR had nowhere stated that there was any motive on the part of the accused person to kill the deceased or that the accused had any grauge against the deceased. Hence there was of intention on the part of the accused persons to kill the deceased. It is established fact on record that the appellant gave a single blow on the left side of the chest of the deceased and that too on being provoked by the co-accused who have only been convicted under Section 326 IPC. There was no specific charge framed under Section 302 against the appellant hence he could not have been convicted under Section 302 IPC particularly when co-accused have been convicted under Section 326 IPC.
(4) Mr. Naveen Thakur next contended that since there was no intention to kill and there being a single blow on the chest of the deceased case under Section 302 IPC is even otherwise not made out. Because of a single blow intention to cause death could not be inferred. In order to support his contention reliance was placed on the decision of Supreme Court in the case of Bhera vs. State of Rajasthan 2000 Supreme Court Cases (Criminal) 1230 and Sasi @ chalil Sasi vs. State of Kerela 2000 Supreme Court Cases (Criminal) 625. In these cases the Apex Court while dealing with an accused who gave a knife blow on the chest of the deceased resulting in his death opined that the appellant therein could not have been said to have inflicted the blow with the intention of causing death of the deceased. Since there was no intention to cause death therefore the case was covered under Part II of Section 304 IPC and not under Section 302 IPC. In Bhera’s case (Supra) Apex Court observed that absence of intention to cause murder was a relevant consideration. In that case the knife blow was given suddenly. It all happened at the spur of the moment. It was in this backdrop Apex Court held that since there was no intention to cause death or murder, therefore the case was not covered under Section 302 IPC.
(5) Applying the above principle to the facts of this case we have to see whether appellant inflicted the knife blow on the chest of the deceased with the intention to murder him. The fact as per PW-6 the eye-witness’s count are that PW-6 Along with the deceased were going back to the police station. The appellant and his co-accused came from opposite direction. This shows accused person could not have been aware that deceased would meet them at that spot at that time. The deceased in fact confronted the appellant. The reason for the incident was trivial and happened so suddenly. Thus from the eye-witness’s account, it cannot be said that appellant had any intention or pre-meditation to murder the deceased or that the act which caused death of Constable Bhupinder Singh was done with the intention of causing death. From the evidence on record it has not been proved that there was intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death. The occurrence was due to a sudden exchange of hot words between the deceased and the accused. The appellant inflicted only a single blow on the left side chest of the deceased. From this it cannot be said that the appellant intended to inflict that particular injury with intention to murder him though it is proved on record that injury was fatal and caused the death of the deceased. This does not prove that the appellant had the intention that that particular injury was going to cause death of the deceased. Intention to cause murder in the facts of this case having not been culled out, the case would be covered under Section 304 IPC and not under Section 302 IPC.
(6) In similar circumstances in the case of Shitla Prasad @ Baba Vs. State of U.P. 1994 reported in Supreme Court Cases (Cri) Page 1161, the Apex Court altered the conviction from under Section 302 IPC to one under Section 304 IPC. In that case also from the facts intention to cause death could not be inferred. Similarly in the case of State of Punjab Vs. Bira Singh & Ors. 1995 Supreme Court Cases (Cri) 1152, there was chance meeting of the accused and the deceased. On the spur of the moment quarrel took place between them. The accused suddenly inflicted a single blow on the chest of the victim causing his death. In that circumstance the Apex Court observed that the intention to cause death or causing particular injury could not be imputed to the accused. However knowledge that he was likely to cause injury which was likely to cause death could be inferred. If that be so then offence under Part I or Part II of Section 300 IPC cannot be inferred. Similar view was expressed by the Apex Court in the case of Jagtar Singh Vs. State of Punjab .
(7) In the case in hand the meeting of the deceased and the accused was by chance as has been admitted by the eye-witness Onkanwar Singh (PW-6). The accused and the deceased exchanged hot word which arose out of trivial cause. On the spur of the moment the appellant inflicted a single blow on the chest of the deceased constable Bhupender Singh. It was opined by the doctors to be sufficient to cause death. Admittedly there was no premeditation or planning to kill constable Bhupender Singh (the deceased). It happened all of a sudden, therefore the ratio laid down by the Apex Court in Jagtar Singh’s case (Supra) applies to the facts of this case.
(8) Mr. HJS Ahluwalia counsel for the state on the other hand contended that inflicting of a single blow by itself is no ground to take out the case from the application of Section 302 IPC. There is no probation that a single blow when inflicted resulting in death the provision of Section 302 IPC would not be attracted. There is no quarrel with this proposition. But what we have to see is the nature of the weapon used, the seat of the injury, the facts leading to the assault and the intention to cause that particular injury which would cause death. Admittedly the weapon used in the instant case was knife, seat of injury was chest but the fact remains that there was no notice or planning to cause death. It happened all of a sudden at the spur of the moment. From the material brought on record it cannot be inferred that appellant had the intention to cause this particular injury to cause death of constable Bhupinder Singh.
(9) Taking into consideration the totality of the circumstances and the facts of this case, we are of the view that the case of the appellant is covered under Section 304 part II IPC and accordingly this appeal is partly allowed. The conviction & sentence of the appellant is accordingly modified. He is sentenced to suffer rigorous imprisonment for 10 years. That would meet end of the justice with the sentence of fine and consequential default remaining unaltered. Order be communicated to the appellant forthwith through Superintendent, Central Jail, Tihar.