Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2003 OF 2008
Atmaram & Ors. … Appellants
Versus
State of Madhya Pradesh … Respondent
J U D G M E N T
Swatanter Kumar, J .
1. This appeal is directed against the judgment of the High
rd
Court of Madhya Pradesh, Bench at Indore dated 23 January,
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2008. We may notice the necessary facts giving rise to the
present appeal. According to the prosecution, Udayram, PW-1
along with his younger brother namely Gokul (the deceased) and
sister Rajubai, PW-2 had gone to the village Lod for pilgrimage.
After they reached the said village, they came to know that the
Pujari who was to perform the puja was not available.
Resultantly, all the said three persons decided to return back to
their village Dhuvakhedi, Tehsil Tarana, District Ujjain.
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2. At about 4-4.30 p.m., when they reached near the said
village, all of a sudden the accused persons namely Atmaram,
Gokul, Vikram, Ramchandran and Umrao emerged from the
fields having soyabean crop. They shouted that the deceased
and his relatives had set their soyabean crop afire and therefore,
they should be taught a lesson. The accused Ramachandra
was armed with farsi , Gokul was carrying dharia and other three
accused were having lathis . All these accused persons started
assaulting Udayram (PW1) causing injury on his head, left hand
and legs. Gokul (the deceased) and PW2 tried to intervene and
protect Udayram. In this process, both these witnesses
sustained a number of injuries caused by the accused with the
help of the same weapons. The other witnesses present at the
site, Gajrajsingh, Sardarsingh and Gokul did not interfere in the
assault because of fear and silently slipped away.
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3. Another witness, Pannalal, PW8, was working in the fields
nearby. Upon being called by Rajubai, PW2, Pannalal came to
the place of occurrence and seeing the deceased and witnesses in
injured condition, Pannalal and one Prem brought the bullock
cart of one Kanhaiya Balai. Thereafter, one Umrao Bai also
joined them. They finally found a jeep on the road in which
Pannalal, Prem and Umrao Bai took the injured persons to the
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Tarana Hospital where they were admitted. From the hospital,
information was sent to the Police Station, Makdon on which
basis, the Head Constable Chedilal Yadav, PW23, reached
Tarana Hospital. On the basis of the statement of Udayram,
PW1, Dehati Nalishi (Ex.P1) was recorded at about 6.20 p.m. on
th
6 November, 1993.
4. A case under Section 307 read with Sections 147, 148 and
149 of the Indian Penal Code, 1860 (for short ‘IPC’) was
registered. All the three injured persons were subjected to
medical examination by Dr. Anil Kumar Dubey, PW4, who issued
their MLC reports, Ex.P2-A to P.4-A. Udayram and Rajubai were
treated by the doctors. At about 7 p.m., the statement of Gokul
was also recorded in the presence of the witnesses. Keeping in
view the serious condition of Gokul, he was required to be
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transferred from Tarana Hospital to Civil Hospital, Ujjain for
treatment. However, he died on the way at about 11.30 p.m.
th
on 6 November, 1993 and his dead body was kept in the Civil
Hospital, Ujjain. Information was sent to the Police Station,
Makdon, whereafter an offence of Section 302 read with Section
149 IPC was added to the charges.
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5. Inquest proceedings were completed. The dead body of the
deceased was subjected to post mortem and post mortem report
Ext. P30 was prepared by Dr. Ajay Nigam (PW14).
6. After registration of the offence, the investigating officer,
PW26, Sohan Pal Singh Choudhary visited the spot of occurrence
th
on 7 November, 1993, from where the blood stained earth, cycle
and sandal of the deceased were seized and the spot map was
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prepared. On 8 November, 1993, all the accused persons were
arrested. Upon their interrogation and in furtherance to their
statements, the arms involved in the commission of crime were
recovered and seized. These seized weapons were sent to
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forensic science laboratory for examination on 3 December,
th
1993. The examination report was received on 8 December,
1993 and in terms of the Report, no blood stain was found, either
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in the soil or in the sealed farsi . The Investigating Officer
submitted the charge sheet to the Court of competent
jurisdiction. Upon committal, the accused were tried by the
Court of Sessions.
7. The learned Trial Court vide its detailed judgment dated
th
13 April, 1999 held that the prosecution had succeeded in
proving the charges, while finding all the accused guilty of the
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offences with which they were charged. It sentenced them as
follows:-
“46. On the point of punishment, on behalf
of accused evidence were not produced on
conviction. The counsel for accused
produced oral argument and prayed for
least punishment to accused whereas
Assistant Public Prosecutor have prayed for
harder conviction.
47. In any opinion from the case, it is
clear that this is the first offence of accused.
Looking into the circumstances under
which crime is committed and nature of
crime, it does not seem proper to convict
with life imprisonment under Section 302
I.P.C. and it seems proper to convict
accused for life imprisonment and fine.
Therefore, all the five accused shall be
convicted under Section 148 I.P.C. with
rigorous imprisonment of two years.
Accused Ramchandra No. 4 is held guilty
under Section 307 I.P.C. and Section
307/149 I.P.C. for both the offences
prescribed punished is same, therefore, it is
proper to convict accused Ramchandra only
under Section 307/149 I.P.C. and accused
Atmaram No. 1 for charges under Section
307 I.P.C. and accused Gokul No. 2, Vikram
No. 3, Ramchandra No. 4, Umrao No. 5 for
Section 307 read with 149 I.P.C. shall be
convicted respectively with rigorous
imprisonment for 5 year each and fine of
Rs. 500/- (Rs. five hundred ) each. In
default of payment of fine accused shall be
imprisoned for another term of 2 month
each.
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48. Similarly, accused Gokul No. 2
charged under Section 302 I.P.C. and
Section 302/149 I.P.C. and accused Vikram
No. 3 was held guilty under Section 302 or
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Section 302 read with Section 149 I.P.C.,
whereas punishment prescribed for both
the offences is same, both the accused are
held guilty under Section 307/149 I.P.C.
and accused Atmaram No. 1 is found guilty
for charges under Section 302, I.P.C. and
accused No. 2, Gokul, No. 3 Vikram, No. 4
Ramchandra, No. 5 Umrao are found guilty
under Section 302 read with Section 149
I.P.C. and convicted accordingly, and all the
accused for such charges are convicted with
life imprisonment and in addition all the
accused are also punished with fine of Rs.
2000 (Two Thousand Rupees) each. In
default of payment of fine all the accused
shall be imprisoned for another term of 4
month each. Similarly, accused No. 5,
Umrao, is charged under Section 323 I.P.C.
and accused Atmaram No. 1 Gokul No. 2,
Vikram No. 3, and Ramchandra No. 4 are
found guilty under Section 323 read with
Section 149 I.P.C. and all the accused are
convicted with 6 month rigorous
imprisonment and fine of Rs. 200 each (Two
Hundred Rupees). In default of payment of
fine all the accused shall be imprisoned for
another term of 1 month rigorous
imprisonment each. All the punishment
shall run concurrently.
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49. During prosecution, accused No. 1
Atmaram from 8.11.93 to 3.3.94, accused
No. 2 Gokul from 8.11.93 to 24.6.94,
accused No. 3 Vikram from 8.11.93 to
3.3.94 and accused No. 4 Ramchandra from
11.1.93 to 6.1.94 and accused No. 5 Umrao
from 11.11.93 to 6.1.94, were in judicial
custody. Such duration shall be adjusted
towards punishment.
50. On payment of fine from accused and
after the expiration of the period of
limitation Rs. 8000/- from the amount of
fine shall be paid to widowed mother of
Gokul, Umraobai w/o Lalji r/o village
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Dhaukhedi, Thana Makdone, as
compensation and from the said fine Rs.
5000 (Five Thousand Rupees) shall be paid
to applicant Udairam s/o Lalji r/o Village
Dhaukhedi, Thana Makdone.
51. After the expiration of period of appeal,
blood mixed soil, simple soil, Sandel, cloths
of Gokul, cloths of Udairam, and Farsi,
Dharia, Lathi, seized from accused shall be
discarded being available.”
8. The Trial Court also punished them on other counts.
9. Being aggrieved from the judgment of conviction and order
of sentence passed by the Trial Court, the accused preferred an
rd
appeal before the High Court, which by its judgment dated 23
January, 2008, confirmed the judgment of the Trial Court and
also did not interfere with the order of sentence.
10. Feeling aggrieved therefrom, all the five accused have
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preferred the present appeal before this Court.
11. While raising a challenge to the impugned judgment, the
learned counsel appearing for the appellants argued that there
are serious contradictions between the statements of PW1 and
PW2. These two witnesses being the eye-witnesses, such serious
contradictions in their statements make the conviction of the
appellants unsustainable on that basis. To substantiate his
plea, the learned counsel for the appellants has relied upon the
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paragraph 2 of the deposition of PW2, Rajubai and paragraph 3
of the statement of PW1, Udayram. In order to properly
appreciate the merit or otherwise of this contention, it would be
appropriate to refer to the relevant paragraphs of deposition of
these two witnesses. They, respectively, read as under :
“2. Ramchandra hit Udairam with Farsi
which hit on his head and both hands. My
brother Gokul was hit by accused Gokul
with Dhariya due to which he got injuries on
his head, both hands, above the eye and on
the waist. Umrao hit me with two ladhi
blows which hit me on my hand and foot.
The accused hit a lot.
XXX XXX XXX
3. Accused Ramchand had hit farsi on my
head, Atmaram had hit lathi which hit me
near the joint of my left hand thumb.
Accused Gokul hit my brother Gokul on the
head with Dharia. Ramchand had hit after
me, my brother Gokul with farsi on his head.
The other accused started hitting my brother
with lathi due to which my brother fell down
and I was also attached with lathi. My sister
Rajubai was also hit with lathi by accused
Umrao. She had received injury on her hand
and Rajubai also received injury on her foot.”
JUDGMENT
12. From a bare reading of the statements of these witnesses, it
is clear that according to PW1, not only Gokul, the accused, had
caused injury on the head of the deceased by farsi but accused
persons had also caused injuries to him with lathis etc. However,
according to PW2, Gokul, the accused, had caused injuries on
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the head of the deceased, both hands, above the eyes and on the
wrist while other accused hit her. This cannot be termed as a
material contradiction in the statements of these two witnesses.
These are two eye-witnesses who themselves were injured by the
accused. Every variation is incapable of being termed as a
serious contradiction that may prove fatal to the case of
prosecution. It is a settled cannon of criminal jurisprudence that
every statement of the witness must be examined in its entirety
and the Court may not rely or reject the entire statement of a
witness merely by reading one sentence from the deposition in
isolation and out of context. In the present case, it has been
completely established that both PW1 and PW2 are injured eye-
witnesses and their presence at the place of occurrence cannot
be doubted. If one reads the statements of PW1 and PW2 in their
entirety, it will be difficult to trace any element of serious
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contradiction in their statements which may prove fatal to the
case of the prosecution. PW2, even in the paragraph extracted
above has said that accused ‘hit a lot’. However, the language in
which her statement was recorded states ‘ abhiyukton ne khoob
mara ’ which obviously means that all the accused had hit the
deceased and other victims including herself, because this
sentence immediately precedes the part of the statement where
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she gives details of all the accused persons as well as the injuries
inflicted on the deceased and herself by each of the accused. The
very first paragraph of her statement clearly indicates the
essence of her statement. She has categorically stated that all
the accused persons had come to the site, abused her brother
Gokul and clearly claimed that he had burnt their soyabean crop
and that they shall kill him. Whereafter, they started hitting her
brothers, Gokul and Udayram. In face of this specific statement
and the medical evidence which shows presence of as many as
ten injuries on the body of the deceased Gokul, it is difficult to
believe that in the given situation, one accused could have
caused so many injuries on the body of deceased, especially
when all accused persons are stated to have caused injuries to
the deceased as well as to the witnesses. It seems appropriate
her to refer to a recent judgment of this Court in the case of
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Ashok Kumar v. State of Haryana [(2010) 12 SCC 350] wherein
this Court, while dealing with the discrepancies in the statement
of the witnesses, held as under :
“ 41. The above statement of this witness
(DW 3) in cross-examination, in fact, is
clinching evidence and the accused can
hardly get out of this statement. The defence
would be bound by the statement of the
witness, who has been produced by the
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accused, whatever be its worth. In the
present case, DW 3 has clearly stated that
there was cruelty and harassment inflicted
upon the deceased by her husband and in-
laws and also that a sum of Rs. 5000 was
demanded. The statement of this witness
has to be read in conjunction with the
statement of PW 1 to PW 3 to establish the
case of the prosecution. There are certain
variations or improvements in the
statements of PWs but all of them are of
minor nature. Even if, for the sake of
argument, they are taken to be as some
contradictions or variations in substance,
they are so insignificant and mild that they
would in no way be fatal to the case of the
prosecution.
42. This Court has to keep in mind the fact
that the incident had occurred on 16-5-1988
while the witnesses were examined after
some time. Thus, it may not be possible for
the witnesses to make statements which
would be absolute reproduction of their
earlier statement or line to line or minute to
minute correct reproduction of the
occurrence/events. The Court has to adopt a
reasonable and practicable approach and it
is only the material or serious
contradictions/variations which can be of
some consequence to create a dent in the
case of the prosecution. Another aspect is
that the statements of the witnesses have to
be read in their entirety to examine their
truthfulness and the veracity or otherwise. It
will neither be just nor fair to pick up just a
line from the entire statement and
appreciate that evidence out of context and
without reference to the preceding lines and
lines appearing after that particular
sentence. It is always better and in the
interest of both the parties that the
statements of the witnesses are appreciated
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and dealt with by the Court upon their
cumulative reading.”
13. In light of the above judgment, it is clear that every
variation or discrepancy in the statement of a witness cannot
belie the case of the prosecution per se . It is true that in the
present case, some other witnesses have turned hostile and have
not fully supported the case of the prosecution, but that by itself
would not be a circumstance for the Court to reject the
statements of PW1 and PW2, who are reliable and worthy of
credence and more particularly, when their presence at the place
of occurrence has been established beyond reasonable doubt.
14. The other contention which has been raised on behalf of the
appellants is that the medical evidence does not support the
statements of PW1 and PW2. This is equally devoid of any merit.
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As per the statement of PW14, who had prepared the post
mortem report, Ext. P30, there were as many as ten injuries on
the body of the deceased and they were as follows :
“Similarly on the said date itself, Gokul S/o.
Laljiram @ Lalchand was brought by Head
Constable Chedilal for which he had brought
Ex.P-3 letter. I examined him at 6.35 p.m.
and found the following injuries :
(i) Incised wound 5½ x scalp thick on left
central region.
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(ii) Incised superficial (skin deep) 1 x ¼
cm. on right temple near eye. Both
these injuries appear to have been
caused by sharp edged seapon. It was
not possible to understand injury No.1
therefore, X-ray advice was written
and injury No.2 was simple and
caused within 0-6 hrs.
(iii) One contusion 12 x 8 cm on right
forearm.
(iv) Swelling on left forearm ½ lower
portion and ½ right portion on left
side.
The aforesaid injuries appeared to have been
caused with hard and blunt object and X-ray
was advised to ascertain seriousness.
(v) One lacerated wound with fracture 2 x
1 x ½ on right leg in front on middle
portion which appear to have been
caused with hard and blunt weapon
and was serious within 0-6 hrs. and X-
ray was advised for the same.
(vi) Lacerated wound 1 x ½ x ¼ on lower
portion of left leg.
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(vii) Swelling on left hand in full back
portion.
(viii) Swelling and contusion 13 x 4 cm. on
left forearm out and front portions.
Injuries Nos.6, 7 and 8 appear to have
been caused with hard and blunt
weapon and simple caused within 0-6
hrs.
(ix) One contusion with parallel margin on
left forearm which appear to have been
caused with hard and blunt weapon
like lathi and X-ray was advised for
this injury.
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(x) One contusion of parallel margin of 28
x 1 cm. in front portion of the chest
laterally. It appeared to have been
caused with hard and blunt weapon
like lathi which was simple caused
within 6 hrs.”
15. All that PW1 and PW2 have stated is that the accused had
inflicted the injury on the head of the deceased with a f arsi and
even on other parts of the body of the deceased. According to
them, even other accused had inflicted injuries upon the body of
the deceased with lathis . The accused were carrying farsi, dharia
and lathis, as per the statements of these witnesses. The
medical evidence clearly shows that there were incised wounds,
contusions, lacerated wounds and swelling found in the various
injuries on the body of the deceased. The Investigating Officer,
PW26, has clearly proved the case of the prosecution with the
assistance of the corroborating evidence. We see no reason to
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accept this contention raised on behalf of the appellants.
16. Before dealing with the last contention raised on behalf of
the appellants, we may usefully refer to some pertinent aspects
of the case of the prosecution. In this case, the incident had
th
occurred at about 4.30 p.m. on 6 November, 1993 and the FIR
itself was registered at 6.30 p.m. on the statement of PW1
recorded in the hospital. In the hospital itself, the doctor had
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also recorded the dying declaration Ext. P-6 of the deceased. The
relevant part of the declaration reads as under :
“My First question was : What is your name?
Ans : Gokulsingh S/o Laljiram Lalsingh.
Q: Where do you live?
Ans: Dhuankheri.
I again asked what happened to you when
he replied that the well of Kanhaiya, myself,
my brother Udayram and sister were hit by 5
brothers Ramchand, Umrao, Vikram, Gokul
and Atmaram sons of Devaji of Balai caste.
He stated so. Thereafter I asked where all
have you received injuries whereupon he
replied that on head, hands and legs.
Thereafter I again asked who saw you being
beaten up then he replied that we were seen
by Udaysingh, Gokulsingh, Gajrajsingh,
Ramchandra etc. I again asked what did
you do thereupon he replied, what could we
do, we were un-armed, we kept shouting.
Our sister had tried to rescue us.”
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17. After recording of the FIR, Ext. P-37 the investigation was
started immediately and on the second day, the accused were
taken into custody. Names of all the accused were duly shown in
Column No.7 of the FIR. Two witnesses, PW1 and PW2, have
given the eye witness version of the occurrence. All the accused
persons were hiding themselves in the field and had a clear
intention to kill the deceased. The motive for commission of the
offence which, of course, is not an essential but is a relevant
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consideration, has also been brought out in the case of the
prosecution that the deceased had allegedly burnt their soyabean
crops and, therefore, the accused wanted to do away with the
deceased Gokul and his brother. These factors have been clearly
brought out in the statement of PW1 and PW2. The fact that
these injuries were inflicted by a collective offence upon the
deceased and the injured witnesses is duly demonstrated not
only by the medical report, but also by the statements of the
doctors, PW4 and PW14. Thus, the prosecution has been able to
establish its case.
18. The contention lastly raised on behalf of the appellants is
that no single injury has been found to be sufficient in the
ordinary course of nature to cause death as per the medical
evidence. There was no intention on the part of the accused to
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cause death of the deceased. At best, they have only caused an
injury which was likely to cause death. Therefore, no case for an
offence under Section 302 IPC is made out and, at best, it could
be a case under Section 304 Part II and/or even Section 326 IPC.
Reliance has been placed upon the judgments of this Court in
the case of Molu & Ors. v. State of Haryana [(1976) 4 SCC 362]
and Rattan Singh & Ors. v. State of Punjab [1988 Supp. SCC 456].
In any case and in the alternative, it is also contended that as
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per the statement of PW2, accused Gokul alone had caused
injuries to the deceased and therefore, all the other accused
persons are entitled to acquittal or at best, are liable to be
convicted under Section 326 IPC for causing injuries to the eye-
witnesses, PW1 and PW2 or even to the deceased. This
argument, at the first blush, appears to be have substance, but
when examined in its proper perspective and in light of the
settled law, we find it untenable, for the reason that even in the
case of Molu (supra), this Court had noticed that none of the
injuries was on any vital part of the bodies of the two deceased
persons and even injuries upon the skull appeared to be very
superficial. There was nothing to show that the accused
intended to cause murder of the deceased persons deliberately
and there was no evidence to show that any of the accused
ordered the killing of the deceased persons or indicated or in any
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way expressed a desire to kill the deceased persons on the spot.
It was upon returning this finding on appreciation of evidence
that the Court found that there was only a common intention to
assault the deceased, with the knowledge that the injuries
caused to them were likely to cause death of the deceased and,
therefore, the Court permitted alteration of the offence from that
under Section 302 to one under Section 304 Part II, IPC. Also in
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the case of Rattan Singh (supra), this Court had found that as per
the case of the prosecution, the injuries on the person of the
deceased which could be attributed to the accused were either on
the hands or feet and at best could have resulted in fractures.
None of the appellants could be convicted for causing such
injuries individually which could make out an offence under
Section 302 and, thus, the Court altered the offence.
19. We are unable to see as to what assistance the appellants
seek to derive from these two judgments. They were judgments
on their own facts and in the case of Molu (supra), as discussed
above, the Court had clearly returned a finding that the accused
had no intention to kill the accused, which is not the
circumstance in the case at hand. If there is an intention to kill
and with that intent, injury is caused which is sufficient to cause
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death in the ordinary course of nature, then the offence would
clearly fall within the ambit of para Thirdly of Section 300 IPC
and, therefore, would be culpable homicide amounting to
murder. In the present case, the intention on the part of the
accused persons to kill Gokul was manifest as is evident from
the statements of PW1 and PW2. The cause for having such an
intent is also proved by the prosecution that according to the
accused, Gokul and PW1 had burnt their soyabean crops. The
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manner in which all the accused assaulted the deceased even
after he fell to the ground and the act of continuously inflicting
blows on the body of the deceased, clearly shows that they had a
pre-determined mind to kill the deceased at any cost, which they
did. In the case of State of Haryana v. Shakuntala & Ors. [2012
(4) SCALE 526], this Court held :
“…Reverting back to the present case, it is
clear that, as per the case of the prosecution,
there were more than five persons assembled
at the incident. All these nine persons were
also convicted by the Trial Court and the
conviction and sentence of six of them has
been affirmed by the High Court. The
members of this assembly had acted in
furtherance to the common object and the
same object was made absolutely clear by the
words of accused Matadin, when he exhorted
all the others to ‘finish’ the deceased persons.
27. In other words, the intention and object
on the part of this group was clear. They had
come with the express object of killing
Manohar Lal and his family members. It
might have been possible for one to say that
they had come there not with the intention to
commit murder, but only with the object of
beating and abusing Manohar Lal and others,
but in view of the manner in which Matadin
exhorted all the others and the manner in
which they acted thereafter, clearly establishes
that their intention was not to inflict injuries
simplicitor . Manohar Lal, admittedly, had fallen
on the ground. However, the accused still
continued inflicting heavy blows on him and
kept on doing so till he breathed his last. They
did not even spare his wife Sushila and
inflicted as many as 33 injuries on her body.
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Where a person has the intention to cause
injuries simplicitor to another, he/she would
certainly not inflict 30/33 injuries on the
different parts of the body of the victim,
including the spine. The spine is a very
delicate and vital part of the human body. It,
along with the ribs protects all the vital organs
of the body, the heart and lungs, etc.
Powerful blows on these parts of the body can,
in normal course, result in the death of a
person, as has happened in the case before us.
The way in which the crime has been
committed reflects nothing but sheer brutality.
The members of the assembly, therefore, were
aware that their acts were going to result in
the death of the deceased. Therefore, we find
no merit in this contention of the accused
also.”
20. They even caused injuries to the vital parts of the body of
the deceased, i.e., the skull. As per the medical evidence, there
was incised wound of 5½”x skull thick on left skull region, which
shows the brutality with which the said head injury was caused
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to the deceased.
21. We may usefully refer to the judgment of this Court in the
case of State of Andhra Pradesh v. Rayavarapu Punnayya & Anr.
[(1976) 4 SCC 382] wherein the Court was concerned with
somewhat similar circumstances, where a number of accused
had caused multiple bodily injuries to the deceased and it was
contended that since none of the injuries was caused upon any
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vital part of the body of the deceased, the offence was, therefore,
at best to be altered to an offence under Section 304, Part II.
This contention of the accused had been accepted by the High
Court. While disturbing this finding, this Court held as under :
“ 38. Question arose whether in such a case
when no significant injury had been inflicted
on a vital part of the body, and the weapons
used were ordinary lathis, and the accused
could not be said to have the intention of
causing death, the offence would be
“murder” or merely “culpable homicide not
amounting to murder”. This Court, speaking
through Hidayatullah, J. (as he then was)
after explaining the comparative scope of
and the distinction between Sections 299
and 300, answered the question in these
terms:
“The injuries were not on a vital part of
the body and no weapon was used
which can be described as specially
dangerous. Only lathis were used. It
cannot, therefore, be said safely that
there was an intention to cause the
death of Bherun within the first clause
of Section 300. At the same time, it is
obvious that his hands and legs were
smashed and numerous bruises and
lacerated wounds were caused. The
number of injuries shows that everyone
joined in beating him. It is also clear
that the assailants aimed at breaking
his arms and legs. Looking at the
injuries caused to Bherun in
furtherance of the common intention of
all it is clear that the injuries intended
to be caused were sufficient to cause
death in the ordinary course of nature
even if it cannot be said that his death
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was intended. This is sufficient to bring
the case within thirdly of Section 300.”
39. The ratio of Anda v. State of Rajasthan
applies in full force to the facts of the
present case. Here, a direct causal
connection between the act of the accused
and the death was established. The injuries
were the direct cause of the death. No
secondary factor such as gangrene, tetanus
etc., supervened. There was no doubt
whatever that the beating was premeditated
and calculated. Just as in Anda case , here
also, the aim of the assailants was to smash
the arms and legs of the deceased, and they
succeeded in that design, causing no less
than 19 injuries, including fractures of most
of the bones of the legs and the arms While
in Anda case , the sticks used by the
assailants were not specially dangerous, in
the instant case they were unusually heavy,
lethal weapons. All these acts of the accused
were preplanned and intentional, which,
considered objectively in the light of the
medical evidence, were sufficient in the
ordinary course of nature to cause death.
The mere fact that the beating was
designedly confined by the assailants to the
legs and arms, or that none of the multiple
injuries inflicted was individually sufficient
in the ordinary course of nature to cause
death, will not exclude the application of
clause thirdly of Section 300. The expression
“bodily injury” in clause thirdly includes also
its plural, so that the clause would cover a
case where all the injuries intentionally
caused by the accused are cumulatively
sufficient to cause the death in the ordinary
course of nature, even if none of those
injuries individually measures upto such
sufficiency. The sufficiency spoken of in this
clause, as already noticed, is the high
probability of death in the ordinary course of
nature, and if such sufficiency exists and
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death is caused and the injury causing it is
intentional, the case would fall under clause
thirdly of Section 300. All the conditions
which are a prerequisite for the applicability
of this clause have been established and the
offence committed by the accused, in the
instant case was “murder”.
40. For all the foregoing reasons, we are of
opinion that the High Court was in error in
altering the conviction of the accused-
respondent from one under Sections 302,
302/34, to that under Section 304, Part II of
the of the Penal Code. Accordingly, we allow
this appeal and restore the order of the trial
court convicting the accused (Respondent 2
herein) for the offence of murder, with a
sentence of imprisonment for life.
Respondent 2, if he is not already in jail,
shall be arrested and committed to prison to
serve out the sentence inflicted on him.”
Reference can also be made to Anda & Ors. v. State of
Rajasthan [AIR 1996 SC 148].
22. The case before us is quite similar to the case of
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Rayavarapu Punnayya (supra). The cumulative effect of all the
injuries was obviously known to each of the accused, i.e., all the
injuries inflicted were bound to result in the death of the
deceased which, in fact, they intended. Furthermore, the doctor,
PW14, had opined that the deceased had died because of
multiple injuries and fracture on the vital organs, due to shock
and haemorrhage. In other words, even as per the medical
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evidence, the injuries were caused on the vital parts of the body
of the deceased.
23. For these reasons, we are unable to accept the contention
raised on behalf of the appellants that this is a case where the
Court should exercise its discretion to alter the offence to one
under Section 304 Part II or Section 326 IPC from that under
Section 302 IPC. We also find the submission of the learned
counsel for the appellants to be without merit that accused
Gokul alone is liable to be convicted, if at all, under Section 302
IPC and all other accused should be acquitted. We reject this
contention in light of the discussion above and the fact that all
these accused have been specifically implicated by PW1 and
PW2, the Investigating Officer, PW26 and the medical evidence.
24. Having found no substance in the pleas raised by the
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learned counsel for the appellants, we hereby dismiss the appeal.
.…................................J.
[Swatanter Kumar]
.…................................J.
[Ranjan Gogoi]
New Delhi
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May 10, 2012
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