Distinction between Murder and Homicide not amounting to murder:
It is important to have a look at the evidence of PW 5-Dr. Arvind Kanwar who has conducted Post mortem and according to him there was an incised wound on the right parietal region of size 4” and 10” above right ear and another incised wound of 1” in size on the right index finger. He has deposed that “the brain was found congested, yet no fracture was seen on the scalp”. Though in the cross examination he has stated at one place that the injury No 2 on the scalp might be ‘grievous’ that caused brain hemorrhage. This particular fact is not noted in the postmortem report. Regarding the cause of such injury, PW5 stated that it can be caused by striking with sharp edged object and the depth of the scalp injury depends upon the force and speed. He maintains the stand that it was a ‘scalp injury’ and not ‘skull injury’. Moreover, he did not measure the depth of the head injury which was necessary for classification of injury.
Extra-dural or sub-dural hematoma:
We may note that the injury to the head resulted in Extra-Dural and Sub-Dural Hematoma. We are conscious of the fact that such symptoms of the same may take some hours to develop in many cases as has happened in this case at hand.1 We are also apprised that in such cases a detailed post-mortem may be necessary and it is important to know the existence of prior medical history and condition. In this case a generalized statement by the Doctor conducting the post-mortem that he had causally enquired about any existing medical condition with the deceased. It may further be relevant to note the extract from the Modi, A Textbook of Medical Jurisprudence and Toxicology, wherein it is noted that-
It must be born in mind that a slight injury on the head may cause cerebral hemorrhage in a person previously predisposed to it from age or disease. (Modi, A Textbook of Medical Jurisprudence and Toxicology, 25th Eds., p. 701.)
The above opinion goes to show that the injury no. 2 on the scalp resulted in hemorrhage which has not been duly accounted for. Moreover, the force and gravity of assault indicates that the aforesaid assault was carried out with only sufficient knowledge of likely death of the deceased in a free fight situation. Had he got intention to commit the murder of the deceased by inflicting such injury, he might have used the weapon with sufficient force and in that case, definitely it would have caused a deep injury causing fracture of skull. This court is bound to show some deference to this particular aspect while evaluating the facts and circumstances of this case at hand.
In the case on hand, the death is not instantaneous, but the deceased died after sometime, due to hemorrhage.
Intention to murder:
When several persons of the accused group wielding weapons attacked the deceased, it is surprising to see only two injuries, that too, two simple injuries alone are inflicted; of course, one such simple injury turns out to be fatal sometime later. This circumstance demonstrates that the appellant had no intention to cause death, though he has knowledge that the weapon used by him to inflict injury on the scalp of the deceased may cause death. But in the absence of intention to cause death or to cause such bodily injury as is likely to cause death, the offence does not fall within the scope of Section 300, IPC but it will fall within Section 304, Part II of the IPC.
Mystery of Law and Justice 