Kartar Singh v.

State Of Punjab

 This is an appeal by special leave on behalf of the appellant who is convicted under Section 302
IPC and sentenced to imprisonment for life by the High Court

 It is not disputed that trouble arose between close relations at the time of marriage and
thereafter some days before the incident there was exchange of abuse. According to the
prosecution this present appellant and three others went to the house of Ravel Singh and it is
clear that they attacked him. The act attributed to the present appellant is that he gave a stab
wound in the abdomen of the deceased which apparently resulted in the death of the deceased

 It is also not in dispute that in this incident this appellant and other accused also received some
injuries. This appellant is alleged to have received number of injuries, two with sharp weapons
and other injuries by blunt weapons. Accordingly to the prosecution story, one Mehar Singh
who was examined as a witness for prosecution stated that he took up a seroo (the leg of the
cot) and inflicted injuries by it on this accused also

 The defence set up by the present appellant in the course of cross-examination of witness was
that in fact he had gone to the house of Ravel Singh to lodge a protest about what was said
earlier and when he lodged the protest Ravel Singh attacked the present appellant and the
persons accompanying him and in this scuffle when he received injuries he took out the knife
which he was carrying and inflicted a blow on the deceased which resulted in his death. The
appellant is alleged to be of 18 years at the time of the incident and therefore after conviction
he has been sent to a borstal school

 The circumstances that appear are that there is no clear explanation of the injuries on the
accused person. The appellant has set up a defence that the scuffle started and it is only in that
situation that he took out the knife and inflicted a blow. It is also not in dispute that it was only
one blow which was inflicted by the present appellant. In these circumstances, the evidence of
the prosecution does not clearly establish the manner in which the incident took place and,
therefore, it could not be held that the incident did not take place in the manner suggested by
the present appellant accused, and in that situation it could not be held that he inflicted this
injury with an intention to cause death. At best, knowledge could be imputed to him that it may
result in death.
  In view of this the conviction of the appellant under Section 302 could not be maintained. The
conviction of the appellant is altered to Section 304 Part II. He has already been in custody for
more than five years.

KURIEN Verus STATE OF KERALA

 The appellant was convicted by the Sessions Judge, Ernakulam for an offence under for causing
the death of Binu, a baby aged eight months, son of pw.1 Joseph. The incident took place at
about 10-30 PM. on 30-3-74. The facts in brief relevant for the decision are the following: The
appellant and pw. 1 are sons of brothers, living at Ponnaramala in Elamkode village. Following
an incident in the school where their sons were studying, the appellant chastised and squeezed
the neck of Baby, son of pw. 1. Baby complained to pw. 1. pw.1 met the accused by about 8-30
PM. at the Kalayanthani junction, the market area of the locality. There was a wordy quarrel and
mutual beating. pw. 6 and others separated them. Both the appellant and Pw.1 left the place. At
about 10-30 P.M. pw.1 who was on his way home saw the appellant standing on the rocky area
close to his house. He had a drawn knife with him. He accosted pw.1 and threatened to kill him.
pw.1 entreated him to go home. Hearing their talk and finding the appellant in an aggressive
mood, pw. 2, the wife of pw.1 came out of the house with Binu in her arms and requested the
appellant not to create trouble. The appellant retorted that he would kill her and aimed a stab
at pw. 2. The knife hit Binu on his head. The child died at 2-30 A.M. on the same night.
During trial, when the appellant was questioned under S.313 Cr.P.C., he admitted the earlier
quarrel, the encounter between him and pw.1 near the latter's house and also the intervention
of pw. 2 the wife of pw. 1. He, however, stated that it was a dark night and he could identify pw.
2 only by her voice. He left the place on hearing the cry of the child.

The trial judge found that the appellant was responsible for the death of the child. The plea that
only a case under S.304 Part II IPC. was made out was not accepted by that court Holding that
the injury was on a vital part and was sufficient in the ordinary course to cause the death of the
child, the appellant was convicted under S.302 IPC. and sentenced to imprisonment for life.

Since the incident is more or less admitted and stands proved by the testimony of pws.1 and 2,
the question involved is whether the conviction for an offence of murder is sustainable. Shri.
Thomas Jacob, appearing on behalf of the appellant would contend that as there was no
intention to cause the death of the child and since it was by accident that the stab directed
against pw. 2 fell on the child, the offence made out is only one under S.304A IPC. The decision
in Koran Singh v. State (1965 Allahabad Law Journal (Vol. 63) 52) was cited in support of the
plea. In that case, one Karan Singh and his son Dhanvir Singh fighting Sri Ram in a lane in front of
the house of Nathu Lal. Nathu Lal was sitting on the chabuthara near the entrance of his house
holding his daughter Sakuntala in his lap. Nathu Lal objected to the fight in front of his house.
Annoyed at this, Dhanvir Singh attacked Nathu Lal with bis lathi. Karan Singh joined him. After
the blow of Dhanvir Singh on Nathu Lal, his lathi is said to have slipped and fallen on the head of
the infant Sakuntala. As a result of the blow Nathu Lal fell into the lane and the baby in his lap
was also dropped by him while falling. As a result of the injuries sustained, the infant died. The
trial judge held that although Dhanvir Singh had no intention to kill the child or to cause hurt to
her, yet due to the operation of S.301 IPC. Dhanvir Singh was guilty under S.304 Part II IPC. In
appeal, it was held that inasmuch as the injury on the infant was not due to a blow aimed at
Nathu Lal, S.301 IPC. had no application and since the death of the child was the result of the
injury sustained by its fall from the lap of Nathu Lal due to the blow sustained by him it was a
case of death by rash and negligent act coming under S.304A IPC. The facts of the present
appeal are different. The above case is not helpful in arriving at a decision.

Whether in a case where the facts are more or less similar, an offence under S.304A IPC. is made
out was considered in Jageshar v. Emperor (24 Cr. L.J. Reports 789). In that case, the appellant
was beating one Sheopal with his fists, when the wife of Sheopal with a two months' old baby
on her shoulder interfered. The appellant hit at the woman and the blow struck the child on the
head; the baby died as a result of the blow. It was held that the act of the appellant was in its
nature criminal and,neither S.80 IPC. nor S.304A IPC. applied to the case. It had not been made
out that while wanting to hit the woman, the appellant intended or knew to be likely to cause
the death of the woman. Therefore, no conviction could be entered under S.304 IPC. by the
operation of S.301 IPC. The appellant was held to have committed an offence under S.325 IPC.

Since in the instant case no intention to kill the child is proved, the appellant's conviction can be
sustained only on the basis of the doctrine of transfer of malice embodied in S.301 IPC. The facts
of the case disclose that the appellant bawled out that he would kill pw. 2; but those could only
be words of threat in the heat of passion.