Merely because the accused Ramavtar caused the injury on the head by the blunt side of Farsa, the High Court is not justified in altering the conviction to Section 304 Part II of the IPC. As held by this Court in catena of decisions, even in a case of a single blow, but on the vital part of the body, the case may fall under Section 302 of the IPC and the accused can be held guilty for the offence under Section 302 of the IPC. However, in the facts and circumstances of the case, more particularly that it was a case of free fight, considering the fact that the weapon used by the accused Ramavtar was Farsa and he caused the injury on the vital part of the body i.e. head which proved to be fatal, in the facts and circumstances of the case, we are of the opinion that the High Court has committed a grave error in altering the conviction of the accused Ramavtar from Sections 302/149 of the IPC to Section 304 Part II of the IPC.

1
NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1411 OF 2013
State of Madhya Pradesh .. Appellant
Versus
Kalicharan & Ors. .. Respondents
J U D G M E N T
M. R. Shah, J.

  1. Feeling aggrieved and dissatisfied with the impugned
    judgment and order dated 18.11.2008 passed by the High Court
    of Madhya Pradesh, Judicature at Jabalpur, Bench at Gwalior in
    Criminal Appeal No. 43 of 1997 whereby the High Court has
    partly allowed the said appeal preferred by the original accused
    and set aside the judgment and order of conviction and sentence
    dated
    2
    16.01.1997 passed by the learned Trial Court, whereby the
    learned Trial Court convicted the respondent­original accused for
    commission of the offence under Sections 148, 302/149,
    325/149, 323/149 of the IPC and altered the conviction of the
    accused­Ramavtar from Section 302/149 of the IPC to Section
    304 Part II of the IPC and sentenced him to five years R.I. with
    fine of Rs.5000/­ and set aside his conviction for the offence
    under Sections 148 and 302/149 of the IPC; altered the
    conviction of the accused­Kalicharan to offences under Sections
    323 and 325 of the IPC and reduced the sentence to the period
    already undergone; set aside the conviction of the accused­Amar
    Singh, Kedar, Abhilakh and Ramgopal under Sections 148,
    302/149, 325/149 and 323/149 of the IPC and acquitted them
    from the charges levelled against them; set aside the conviction of
    the accused­Tejsingh, Gangaram and Vedari under Sections 148,
    302/149 and 325/149 of the IPC and convicted them for
    commission of the offence under Section 323 of the IPC and
    reduced the sentence to the period already undergone by them,
    the State has preferred the present appeal.
  2. We have heard the learned advocates appearing on behalf of
    the respective parties at length. Having heard the learned
    3
    counsel appearing on behalf of the respective parties, the findings
    recorded by the High Court and considering the evidence on
    record, we are of the opinion that the impugned judgment and
    order passed by the High Court, insofar as accused Kalicharan,
    Amar Singh, Kedar, Abhilakh, Ramgopal, Tejsingh, Gangaram
    and Vedari are concerned, is not required to be interfered with.
    In the facts and circumstances of the case and considering the
    fact that there was a free fight and the role attributed to the
    aforesaid accused, the High Court has rightly acquitted the
    aforesaid accused for the offences under Sections 148, 302/149
    and 325/149 of the IPC. The same is absolutely in consonance
    with the decision of this Court in the case of Kanwarlal v. State
    of M.P. (2002) 7 SCC 152. Therefore, the present appeal qua the
    aforesaid accused (except the accused­Ramavtar) deserves to be
    dismissed.
  3. Now, so far as the impugned judgment and order passed by
    the High Court altering the conviction of the accused­Ramavtar
    from Sections 302/149 to Section 304 Part II of the IPC is
    concerned, it is required to be noted that the fatal blow was
    caused by the said accused­Ramavtar. The deceased Kalyan
    sustained the injury on his head which was caused by the
    4
    accused Ramavtar. The said injury caused by the accused
    Ramavtar was on the vital part of the body i.e. head and proved
    to be fatal. Merely because the accused Ramavtar caused the
    injury on the head by the blunt side of Farsa, the High Court is
    not justified in altering the conviction to Section 304 Part II of the
    IPC. As held by this Court in catena of decisions, even in a case
    of a single blow, but on the vital part of the body, the case may
    fall under Section 302 of the IPC and the accused can be held
    guilty for the offence under Section 302 of the IPC. However, in
    the facts and circumstances of the case, more particularly that it
    was a case of free fight, considering the fact that the weapon
    used by the accused Ramavtar was Farsa and he caused the
    injury on the vital part of the body i.e. head which proved to be
    fatal, in the facts and circumstances of the case, we are of the
    opinion that the High Court has committed a grave error in
    altering the conviction of the accused Ramavtar from Sections
    302/149 of the IPC to Section 304 Part II of the IPC. In the
    facts and circumstances of the case and considering the evidence
    on record, more particularly, the medical evidence and the
    manner in which the incident took place, we are of the opinion
    that the accused Ramavtar should have been held guilty for the
    5
    offence under Section 304 Part I of the IPC. To that extent, the
    impugned judgment and order passed by the High Court deserves
    to be quashed and set aside. The conviction of the accused
    Ramavtar is to be altered from Section 304 Part II to Section 304
    Part I of the IPC.
    3.1 In view of the above and for the reasons stated above, the
    present appeal succeeds in part. The impugned judgment and
    order passed by the High Court insofar as altering the conviction
    of the accused Ramavtar from Sections 302/149 of the IPC to
    Section 304 Part II of the IPC and sentencing him to undergo five
    years R.I. with fine of Rs.5,000/­ for the offence under Section
    304 Part II of the IPC is hereby quashed and set aside. The
    conviction of the accused Ramavtar (respondent No. 2 herein) is
    altered from Section 302 of the IPC to Section 304 Part I of the
    IPC and is sentenced to undergo eight years R.I. with a fine of
    Rs.5000/­ and in default to further undergo R.I. for six months.
    Four weeks’ time is granted to the accused Ramavtar (respondent
    No. 2 herein) to surrender to serve out the remaining portion of
    his sentence. Rest of the judgment and order of the High Court
    is hereby confirmed.
    6
    ……………………………….J.
    [M. R. SHAH]
    NEW DELHI, ……………………………….J.
    MAY 31, 2019. [A.S. BOPANNA]