LexHARENDRA NATH MANDAL versus STATE OF BIHAR
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HARENDRA NAT:f MANDAL A v. STATE OF BIHAR MARCH 2, 1993 B [DR. A.S. ANAND AND N.P. SINGH, JJ.] Indian Penal Code, 1860: Section 304, Part I-:-W11en can be invoked-Attack by accused-Victim surviving injuries inflicted by accused-Trial Coun sentencing accused under C section 307/34-High Court converting sentehce to one under section 304, Part I-Whether justified. Sections JO I and 104-0ccurrence of incident due to dispute regarding harvesting of crops-Accused suffering injuries along with the victims i., the D same incidenl-Non-disclomre of true version of occurrence by prosecu- tion-Right of private defence of person and property-W/1ether available to the accused-Whether accused entitled to be acquitted. The prosecution alleged that when PW 9 and his brother, having learnt that the appellant and two other persons were harvesting paddy E from their plot, went there and protested as to why their crops were being harvested, one person caught hold of the hands of PW 9's brother, and the appellant, assaulted him on his head with the back portion of a Tangi, and at that very time, another person assaulted PW 9, the informant, with a lathi on his right hand. The three perscns were charged with attempt to F commit murder of PW 9's brother, and also theft of the paddy crops from the plot of PW 9 and his brother. On consideration of the evidence on record, the Sessions Judge convicted the appellant and another accused for offence under section 307 read with section 34 of the Penal Code. They were sentenced to undergo G seven years' and live years' rigorous imprisonment respectively. The third accused was convicted under section 323 and sentenced to undergo rigorous imprisonment for six months. All of them were also convicted under section 379 of the Penal Code and sentenced to one year's rigorous imprisonment each. H 137 A B 138 SUPREME COURT REPORTS [1993] 2 S.C.R. During the pendency of the appeal before the High Court, preferred by the three accused, one of them died and his appeal abated. The High Court set aside the conviction and sentence under section 323 of the Penal Code against the other accused and he was acquitted of the charges levelled against him. The High Court also set aside the conviction and sentence under section 307 read with section 34 passed against the appel· lant, but convicted him under section 304 Part I of the Penal Code and sentenced him to two years' rigorous imprisonment. In the appeal before this Court on behalf of the appellant, it was urged that when PW 9 to whom the appellant was alleged to have given.a C blow by the back portion of a Tangi, survived the injury, there was no question of convicting the ljppellant under section 304 Part I of.the Penal Code. It was also contended that the appellant had sustained injuries during the same occurrence including one at the scalp. D E F Allowing the appeal, this Court, HELD : 1.1. Section 304 does not create an offence but provides the punishment for culpable homicide not amounting to murder. In view of section 300 of the Penal Code, except in cases covered by the five exceptions mentioned therein, culpable homicide is murder. If a death is caused and the case is covered by any one of the five exceptions of section 300, then such culpable homicide shall not amount to murder. Section 304 provides punishment for culpable homicide not amounting to murder and draws a distinction in the penalty to be inflicted in cases covered by one of the five exceptions where an intention to kill is present ·and where there is only knowledge that death will be a likely result, but intention to cause death or such bodily injury which is likely to cause death is absent. The first part of section 304 applies where there is guilty intention whereas the second part applies where there is guilty knowledge. But before an accused is held guilty and punished under first part or second part of section 304, a death must have been caused by him under any of the circumstances mentioned G in the five exceptions to section 300, which include dealh caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without permedita· lion. [1418-D,F) H 1.2. In the instant case, when death itself had not been caused, there ~- - HARENDRA NATH v. STATE OF BIHAR [N.P. SIN
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