Full Judgment Text
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PETITIONER:
KISHORE SINGH & ANR.
Vs.
RESPONDENT:
THE STATE OF MADHYA PRADESH
DATE OF JUDGMENT10/10/1977
BENCH:
ACT:
Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970, (Criminal Procedure Code 1973 sec.
379)-Certificate under Art. 134 (1)(c) of the Constitution
is unnecessary in a case falling u/s. 2 of the 1970 Act.
Appeal u/s. 417(1) of Criminal Procedure Code, 1898-Accused
acquitted of a major offence but convicted of a minor
offence-Being still a conviction albeit under a minor
charge-Whether a case of acquittal for the purpose of s.
417(1) of the Code and u/s. 2(a) of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970.
HEADNOTE:
The appellants attacked Jawahar, the deceased, and also one
Pooran Singh on July 28, 1968 and caused grievous injuries
on the person of the deceased using the ’sabbal’ and the
blunt side of the axe with which they were armed. Jawahar
died in the hospital on August 27, 1968 after recovering
from a surgical operation for his head injuries. Pooran
Singh also received grievous injuries. P.W. 6. the doctor,
who first examined the deceased could not say in his
evidence whether the injuries were such as were "likely to
cause death" in theordinary course of nature. P.W. 12, the
doctor who performed the surgical operation opined that the
injuries to the skull found on the deceased were likely to
cause death in the ordinary course of nature without any
treatment. P.W. 13, the doctor who conducted the autopsy,
opined that the injuries found on the dead body were
sufficient to cause death in the ordinary course of nature.
The appellants were tried u/s. 302/34 I.P.C. for the murder
of Jawahar and u/s. 307/34 I.P.C. for attempt to murder
Pooran Singh. They were convicted u/s. 307/34 I.P.C. and
sentenced to rigorous imprisonment for five years; but
acquitted of-the charge under s. 302/34 I.P.C. They were,
however, convicted u/s. 325 r/w 34 I.P.C. and sentenced to
four years rigorous imprisonment. On appeal by the State
u/s. 417(1) of the 1898 Code, the High Court accepting the
appeal, set aside the order of conviction u/s. 325/34 I.P.C.
and convicted the appellants u/s. 302/34 I.P.C. and
sentenced them to life imprisonment. The High Court granted
certificate to the appellants under 134(1)(c) of the
Constitution.
Dismissing the appeal and modifying the conviction and
sentence to that u/s. 304 (,Part 1/34 I.P.C.), the Court,
HELD : (1) If on appeal against an order of acquittal the
High Court sets aside the acquittal and convicts an accused
and sentences him to imprisonment for life or to a period
not less than ten years, the accused is entitled, as of
right, to appeal to this Court u/s. 2(a) of the Act, 1970.
The High Court is not right in holding that a certificate is
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necessary under Art. 134(1) (c) of the Constitution when the
appellants had a right u/s. 2 of the Act. [636 IT, 637 A-D]
(2)It is clear from the language employed both in s.
417(1) of the Criminal Procedure Code of 1898 and s. 2(a) of
the Act of 1970 that, when an accused is acquitted of a
major charge, but convicted under a minor charge it is still
an acquittal under the major charge which can be challenged
by the Stale before the High Court in an appeal u/s. 417(t)
of the old Code. The same principle will apply in the case
of s. 2(a) of the Act, if a person has been acquitted by the
trial court under a major charge and the High Court on
appeal sets aside the acquittal under the major charge and
sentences the person to imprisonment for life or to a
sentence of not less than ten years. [638 A-B]
4-951SCI/77
636
(3)The distinction between culpable homicide (section 299
IPC) and murder (section 300 IPC) is always to be carefully
borne in mind while dealing with a charge under s. 302 IPC.
Under the category of unlawful homicides fall both cases of
culpable homicide amounting to murder and those Pot
amounting to murder. Culpable homicide is not murder when
the case is brought within the five exceptions to S. 300
I.P.C. But, even though none of the said five exceptions are
pleaded or prima facie established on the evidence on
record, the prosecution must still be required under the law
to bring the case under any of the four clauses of s. 300
I.P.C., to sustain the charge of murder. If the
prosecution fails to discharge this onus in establishing
anyone of ’the"our clauses of s. 300 I.P.C., namely,
firstly to fourthly, the charge of murderwould not be
made out and the case may be one of culpable homicide not
amounting to murder as described u/s 299 I.P.C. [639 C-E]
(4)The distinction between the expression "likely to cause
death" and "sufficient in the ordinary course of nature to
cause death" is significant although rather fine and
sometimes deceptive.
(5)With regard to the second part of thirdly of s. 300
IPC, namely, where the bodily injury is sufficient in the
ordinary course of nature to cause death, the court’s
enquiry is not confined to the intention of the accused at
that stage of judicial evaluation, once the intention of the
accused to cause the injury has already been established.
The court will have to judge objectively from the nature of
the injuries and other evidence, including the medical
opinion as to whether the injuries intentionally inflicted
on the deceased were sufficient in the ordinary course of
nature to cause death. In judging whether the in-juries
inflicted are sufficient in the ordinary course of nature to
cause death, the possibility that skillful and efficient
medical treatment might prevent the fatal result is wholly
irrelevant. [639 F-H, 640 A]
Virsa Singh v. The State of Punjab [1958] SCR 1495 at 1501.
reiterated.
In the instant case : (i) clause thirdly of s. 300 I.P.C.
has not been established beyond reasonable doubt; (ii) the
evidence fulfils one of the ingredients of s. 299, namely,
that the appellants caused the death by doing an act with
the intention of causing such bodily injury as is likely to
cause death as deposed by the. Surgeon, P.W. 12; and (iii)
it is a fit case where the conviction of the appellants
should be u/s. 304 (Part I) I.P.C. [640 B-D]
[The Court convicted the appellants u/s. 304 (Part I) read
with s. s. 34 I.P.C. and sentenced them to ten years
rigorous imprisonment; the sentence of the appellants u/s.
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307/34 I.P.C. is to run concurrently with this]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 399
of 1974.
From the Judgment and Order dated 24-8-1974 of the Madhya
Pradesh High Court in Criminal Appeal No. 693 of 1969.
D. Mukherjee and B. P. Singh for the Appellants.
I. N. Shroff and H. S. Parihar for the Respondent.
The Judgment of the Court was delivered by
GOSWAMI, J.-This appeal on certificate under Article 134(1)
(c) of the Constitution is from the judgment of the Madhya
Pradesh High Court. The certificate was granted as the High
Court thought that the appellants were entitled, as of
right, to a grant of certificate in view of section 2 of the
Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 (briefly the Act).
The High Court is not right in holding that a certificate is
necessary under Article 134(1) (c) of the Constitution if
the appellants have, a right of appeal under section 2 of
the Act. it will therefore be necessary to
637
consider whether the appellants are entitled, as of right,
to appeal to ibis Court under section 2 of the Act.
Section 2 of the Act reads as follows
"2. Without prejudice to the powers conferred
on the Supreme Court by clause (1) of Art. 134
of the Constitution, an appeal shall lie to
the Supreme Court from any judgment, final
order of sentence in a criminal proceeding of
a High Court in the territory of India if the
High Court-
(a) has on appeal reversed an order of
acquittal of an accused person and sentenced
him to imprisonment for life or to
imprisonment for a period of not less than ten
years;
(b) has withdrawn for trial before itself
any case from any court subordinate to its
authority and has in such trial convicted the
accused person and sentenced him to
imprisonment for life or to imprisonment for a
period of not less than ten years."
It is clear that if on appeal against an order of acquittal
the High Court sets aside the acquittal and convicts an
accused and sentences him to imprisonment for life or to a
period of not less than ten years, the accused is entitled,
as of right, to, appeal to this Court under section 2 (a) of
the Act.
In this particular case the appellants were tried under
section 302/ 34 IPC for the murder of Jawahar and under
section 307/34 IPC for attempt to murder Pooran Singh. We
are not concerned with the sentence of five years under
section 307/34 IPC in his appeal which runs concurrently
with the other sentence. The Sessions Judge acquitted them
of the charge of murder of Jawahar but convicted them under
section 325 read with section 34 IPC. Indeed the Session
Judge clearly stated that-
"Raghubir Singh and Kishore Singh are
acquitted of the charge under section 302
r.w. section 34 Indian Penal Code but they are
convicted under section 325 r.w. section 34
Indian Penal Code] for their acts of violence
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against Jawahar and are sentenced to 4(four)
years rigorous imprisonment."
The judgment of the trial court was delivered on 29th
August, 1969. The State appealed to the High Court against
the acquittal of the murder charge under section 417(1) of
the Code of Criminal Procedure, 1898 (briefly the old Code)
which governs this case.
The short question that arises for consideration is as to
whether the appeal before the High Court under section
417(1) of the old Code was competent since the appellants
were not entirely acquitted in the trial but convicted of a
minor offence after having been charged for a major offence
which is permissible under section 238 of the old Code.
Being still a conviction. albeit under a minor charge. will
it be a case of acquittal for the purpose of section 417 (1
) of the old Code and under section
638
2(a) of the Act ? That is the question. The same question
will also arise under section 2 (a) of the Act since the
High Court set aside the acquittal and altered the
conviction under section 325/34 IPC to one under section
302/34 IPC and sentenced them to imprisonment for life.
Having given our anxious consideration to the language
employed both in section 417(1) of the old Code and Section
2(a) of the Act we are of opinion that when an accused is
acquitted of a major charge but convicted under a minor
charge, it is still an acquittal under the major charge
which can be challenged by the State before the High Court
in an appeal under section 417 (1) of the old Code. The
same principle will apply in the case of section 2(a) of
the, Act if a person had been acquitted sets aside the
acquittal under the major charge and the High Court on
appeal sets aside the acquittal under the major charge and
sentences the person to imprisonment for life or to a
sentence of not less then ten years. The accused will then
be entitled, as of right, to appeal to this Court under
section 2(a) of the Act. In this view of the matter the
certificate was unnecessary in this case and we will treat
this appeal as one under section
2 (a) of the Act.
Mr.D. Mookherjee appearing on behalf of the appellants has
addressedus only on the question of untenability of the
conviction under section302/34 IPC. According to counsel
this is a clear case under section325/34 IPC and the trial
court was right in holding accordingly.
We may very briefly advert to the material facts necessary
to appreciate this submission. Appellant Kishore Singh was
armed with a ’sabbal’ and Raghubir Singh with an axe. We
are not concerned with their father Bhaiyalal who was said
to be in their company with a stick but has since been
acquitted. On the date of occurrence which was on July 28,
1968, at 3.30 P.M.,, both the appellants attacked Jawahar
and caused grievous injuries on his person using the
’sabbal’ and the blunt side of the axe. Jawahar died in the
hospital on August 27, 1968, after recovering from a
surgical operation for his head injuries. Dr. D. N. Malviya
(PW 6) who first examined the deceased could not sty whether
the injuries were such as were likely to cause death in the
ordinary course of nature. Dr. P. K. Jain (PW 12) performed
the operation on Jawahar on July 30, 1968, on the third day
of the occurrence. He found depressed fracture of the
temporal bone. Four pieces of bone were removed during the
operation as these were causing compression to the brain. He
opined that the injuries to the skull were likely to cause
death in the ordinary course of nature without any
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treatment.The deceasedrecovered from the operation but
unfortunately died after a month ofthe occurrence on
August 27, 1968, as stated earlier. Dr. C.N. Dafal (PW 13)
who held the post mortem examination was of opinion that
death was due to injury to scalp and chest and its complica-
tions which were due to the same. He also opened that the
injuries found on the dead body were sufficient in his
opinion to cause death in the ordinary course of nature.
Relying on the above medical evidence Mr. Mookerjee submits
that the charge under section 302 IPC has not been made out
against the appellants. According to counsel the medical
evidence is not definite
639
as to whether the injuries caused by the appellants were
sufficient in the, ordinary course of nature to cause death.
In other words, be submits that the present case does not
come under the clause ’3rdly’ of section 300 IPC to warrant
a charge of murder.
We may, therefore, read that clause
"300,. Except in the cases hereinafter
excepted, culpable homicide is murder.........
3rdly.-if it (if the act by which the death is
caused) is done, with the intention of causing
bodily injury to any person and the bodily
injury intended to be inflicted is sufficient
in the ordinary course of nature to cause
death."
The distinction between culpable homicide (section 299 IPC)
and murder (section 300 IPC) has always to be carefully
borne in mind while dealing with a charge under section 302
IPC. Under the category of unlawful homicides fall both
cases of culpable homicide amounting- to murder and those
not amounting to murder. Culpable homicide is not murder
when the case is brought within the five exceptions to sec-
tion 300 IPC. But even though none of the said five
exceptions are pleaded or prima facie established on the
evidence on record, the prosecution must still be required
under the law to bring the case under any of the four
clauses of section 300 IPC to sustain the charge of murder.
If the prosecution fails to discharge this onus in
establishing any one, of the four clauses of section 300 IPC
namely, 1stly to 4thly, the charge of murder would not be
made out and the case may be one of culpable homicide not
amounting to murder as described under section 299 IPC.
On the facts and circumstances of the present case in order
to sustain the charge under section 302 IPC the, prosecution
has to establish the ingredients of the, clause "3rdly’
under section 300 IPC.
That both the appellants caused injuries on the vital parts
of the body of the deceased with dangerous weapons has been
fully established. It is absolutely clear on the evidence
that both the appellants intended to cause the bodily
injuries to the deceased. Thus the first part of "3rdly" is
established.
With regard to the second part of "3rdly", namely, whether
the bodily injury is sufficient in the ordinary course of
nature to cause death, the court’s enquiry is not confined
to the intention of the accused at that stage of judicial
evaluation, once the intention of the accused to cause the
injuries has already been established (see Virsa Singh v.
The State of Punjab) (1). The court will have to judge
objectively from the nature of the injuries and other
evidence, including the medical opinion, as to whether the
injuries intentionally inflicted by the appellants on the
deceased were sufficient in the ordinary course of nature to
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cause death. In judging whether the injuries inflicted are
sufficient in the ordinary course of nature to cause death,
the possibility that skilful
(1) [1958] S.C.R. 1495 at 1501.
640
and efficient medical treatment might prevent the fatal
result is wholly irrelevant.
Having regard to the entire evidence and the circumstances
of the case and in view of the somewhat hesitant medical
opinion with regard to the cause of death given by the three
doctors and the further fact that the deceased died a month
after the occurrence, we think that clause "3rdly" of
section 300 IPC has not been established beyond reasonable
doubt in this case. The evidence fulfils one of the
ingredients of section 299, namely, that the appellants
caused the death by doing an act with the intention of
causing such bodily injury as is likely to cause death as
deposed to by the Surgeon (PW 12).
The distinction between the expression "likely to cause,
death" and ,,sufficient in the ordinary course of nature to
cause death" is significant sentence of the appellants under
section 307/34 IPC will run concur of the somewhat
discrepant medical opinion the appellants are entitled to
the benefit and we hold that it is a fit case where the
conviction of the appellants should be under section 304
(Part 1) IPC. Both the appellants are, therefore, convicted
under section 304 (Part 1) read with section 34 IPC and
sentenced to ten years’ rigorous imprisonment. The sentence
of the appellants under section 307/34 IPC will run concurs
rently with this sentence. The appeal is dismissed with the
above modification of the conviction and sentence.
S.R. Appeal dismissed.
641