2. The appellant assails his conviction under Section 302 of the   Indian   Penal   Code   (in   short,   “IPC”)   and   the   consequent sentence of life imprisonment, upheld by the High Court.

6. The High Court on appreciation of evidence has come to the conclusion that the assault was not premeditated but had taken place in a heat of passion due to a land dispute.  If the appellant had the intention, nothing prevented him from further assaulting the deceased.   Nonetheless it maintained the sentence of the appellant under Section 302, IPC because death had taken place pursuant to the assault by him.

7.   A lathi is a common item carried by a villager in this country, linked to his identity. The fact that it is also capable of being used as a weapon of assault, does not make it a weapon of assault simpliciter.  In a case like the present, of an assault on the head with a lathi, it is always a question fact in each case whether there was intention to cause death or only knowledge that death was likely to occur.   The circumstances, manner of assault,   nature   and   number   of   injuries   will   all   have   to   be considered cumulatively to decipher the intention or knowledge as the case may be.   We do not consider it necessary to dilate on the first principles laid down in this regard in Virsa Singh vs. The   State   of   Punjab,   1958   SCR   1495, which   stand   well established. Suffice it to notice from precedents that in Joseph vs. State of Kerala, (1995) SCC (Crl.) 165, the appellant dealt two blows on the head of the deceased.  The deceased died two days later.  The post mortem report found lacerated injury on the head and internal examination revealed fracture to the occipital bone   extended   up   to   the   temporal   bone.     The   High   Court convicted the appellant under Section 302 IPC holding that the injury caused by the lathi was sufficient to cause death of the deceased.  This Court observed as follows:

“3. ….The weapon used is not a deadly weapon as rightly contended by   the   learned   counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be   stated   that   he   intended   to   cause   the   injury which is sufficient (sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set   aside   the   conviction   of   the   appellant   under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant   under   Section   304   Part   II   IPC   and entence him to five years’ RI.”

8. In  Chamru  Budhwa  vs.  State  of  Madhya  Pradesh,  AIR 1954 SC 652, the appellant dealt a blow on the head of the deceased with a lathi and which proved fatal.   The injury was medically opined sufficient in the ordinary course to cause death. Conviction under Section 302, IPC followed.  This court observed as follows:

“5. It now remains to consider whether the offence which he committed falls within the first part or the second part of Section 304 of the Indian Penal Code. When the fatal injury was inflicted by the appellant on the head of the deceased by only one blow   given   in   the   manner   alleged   by   the prosecution   it   could   as   well   be  that   the  act  by which death was caused was not done with the intention   of   causing   death   or   of   causing   such bodily injury as is likely to cause death. The act appears to have been done with the knowledge that it   was   likely   to   cause   death,   but   without   any intention to cause death or to cause such bodily injury   as   is   likely   to   cause   death   within   the meaning of Part II of Section 304 of the Indian Penal Code.
6. We accordingly allow the appeal to this extent that the conviction of the appellant under Section 302 of the Indian Penal Code and the sentence of transportation for life awarded to him will be set aside, but the appellant will be convicted of having committed the offence under Section 304 Part II of the Indian Penal Code and will be sentenced to seven years’ rigorous imprisonment.”

9. In Gurmukh Singh vs. State of Haryana,  (2009) 15 SCC 635, the deceased died three days later after an assault on the head with a lathi opined to be sufficient in the ordinary course of nature to cause death.  Holding that the assault was made on the spur of the moment without premeditation the conviction was altered from one under Section 302 to Section 304 Part II and a sentence   of   seven   years   was   handed. Similarly in Mohd. Shakeel vs. State of A.P., (2007) 3 SCC 119, the appellant had caused only one injury and had suffered injury himself also. Altering the conviction from under Section 302 IPC to 304 Part II, the appellant was sentenced to the period undergone since 1999.

10. We   do   not   consider that  Laltu   Ghosh  (supra) and  S. Rayappa (supra), with regard to credibility of related witnesses, have any relevance to the issue in question being decided by us.

11. We accordingly alter the conviction of the appellant from Section 302 IPC to Section 304 Part II, IPC.  The appellant is in custody since 2004. He has already undergone the maximum period of sentence prescribed under the same.  The appellant is, therefore, directed to be set at liberty forthwith unless wanted in any other case.

12. The appeal is allowed.