Full Judgment Text
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 37 OF 2022
State of U.P. …Appellant
Versus
Jai Dutt and Anr. …Respondents
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 18.09.2019 passed by the High
Court of Judicature at Allahabad in Criminal Appeal No.870
of 1987, by which the High Court has allowed the said
Signature Not Verified
Digitally signed by
Rajni Mukhi
Date: 2022.01.19
17:04:28 IST
Reason:
appeal in part and has converted the conviction of the
accused from that of Section 302 read with Section 34 IPC
1
to Section 326 IPC, the State of Uttar Pradesh had preferred
the present appeal.
2. As per the case of the prosecution when the deceased
was working in his agricultural field all the accused persons
reached there and started abusing him. That the deceased
was beaten by the accused persons. All the accused
persons were having different weapons with them. All of
them started beating the deceased resulting in a number of
injuries and later considering his serious condition, he was
taken to hospital at Lucknow where after about six days, he
succumbed to the injuries. All the accused persons were
charged and tried for the offences under Section 302 read
with Section 34 of the IPC except accused no.1 Jai Dutt who
was charged and tried for the offence punishable under
Section 302 IPC. To prove the charge against the accused,
the prosecution examined a number of witnesses of which,
PW1 and PW2 were the eyewitnesses to the incident. By
examining PW8 Dr. P.R. Mishra who conducted the post
mortem on the body of the deceased, the prosecution
brought on record the postmortem report. The trial Court
convicted Jai Dutt for the offence under Section 302 IPC
2
and sentenced him to undergo life imprisonment. The
learned trial Court also convicted other accused Lal
Bahadur, Sher Singh and Shastri for the offences under
Section 302 read with Section 34 of the IPC and sentenced
them to undergo life imprisonment.
2.1 Feeling aggrieved and dissatisfied with the judgment
and order of conviction passed by the learned trial Court, all
the accused preferred the criminal appeal before the High
Court. During the pendency of the appeal, accused Lal
Bahadur and Sher Singh expired. Therefore, appeal qua
those persons abated. That by impugned judgment and
order the High Court has partly allowed the said appeal qua
rest of the accused Jai Dutt and Shastri and has converted
the conviction from that of Section 302 read with Section 34
IPC to Section 326 IPC, mainly on the ground that the
deceased died after six days from the incident and no
fracture of head was found. The High Court has imposed
the sentence of two years only for the offence under Section
326 IPC solely on the ground that incident occurred about
36 years back and therefore imposing two years sentence
would be sufficient to meet the ends of justice.
3
2.2 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court converting
the conviction from Section 302 IPC to Section 326 IPC, the
State has preferred the present appeal.
3. Shri Rana Mukherjee, learned Senior Advocate
appearing on behalf of the appellant – State has vehemently
submitted that in the facts and circumstances of the case
the High Court has materially erred in converting the
conviction from Section 302 IPC to Section 326 IPC.
3.1 It is submitted by Shri Mukherjee, learned Senior
Advocate that as such the High Court has specifically held
against the accused as they went to the field of the deceased
and started the quarrel and used weapons and caused the
injuries. It is submitted that the High Court has also
observed and held that PW1 and PW2 – eye witnesses are
wholly trustworthy but there is no reason to disbelieve their
statements. It is submitted that despite the above when the
deceased succumbed to the injuries and died because of the
head injury, a clear case of murder was made out and
therefore, the High Court ought not to have converted the
conviction from Section 302 IPC to Section 326 IPC.
4
3.2 It is submitted that merely because the deceased died
after six days could not have been the ground to convert the
conviction from Section 302 IPC to Section 326 IPC. It is
submitted that the High Court has not at all appreciated
and/or considered the injuries mentioned in the post
mortem report and the cause of death. It is submitted that
merely because no fracture on the head was found cannot
be a ground, not to convict the accused for the offence
under Section 302 IPC. It is submitted that in a given case
a person might have died because of the internal injuries
like in the present case. It is submitted that therefore, the
reasoning given by the High Court while converting the
conviction from Section 302 IPC to Section 326 IPC can be
said to be perverse.
4. Present appeal is vehemently opposed by Shri Salman
Khurshid, learned Senior Advocate appearing for the
respondents – accused.
4.1 It is vehemently submitted by Shri Khurshid, learned
Senior Advocate appearing for the accused that in the facts
and circumstances of the case and having found no fracture
on the head of the deceased and he died after six days of the
5
incident and also, considering the fact that the injuries were
not so serious and/or grave, the High Court has rightly
acquitted the accused for the offence under Section 302 IPC
and has rightly converted the same to Section 326 IPC. It is
submitted by Shri Khurshid, learned Senior Advocate that
when the deceased was first taken to the PHC, PW6 Dr. B.L.
Katiyar who did MLC of injured Ram Autar (who
subsequently died) noticed nine injuries which were simple
in nature. It is submitted therefore that the case would not
fall under Section 302 IPC as observed and held by the High
Court.
4.2 It is submitted by Shri Khurshid learned Counsel
appearing on behalf of the accused that in fact the incident
occurred on the spur of the moment and the quarrel took
place because of the minor dispute and there was no
intention to kill the deceased, therefore, the case would not
fall under Section 302 IPC.
5. Making the above submissions it is prayed to dismiss
the present appeal more particularly when the High Court
has already passed an order to pay compensation of Rs.2
lakhs to the objector Raman Babu.
6
6. We have heard learned counsel appearing for the
respective parties at length.
7. At the outset, it is required to be noted that on
appreciation of evidence the trial Court convicted the
accused for the offence under Section 302 IPC and Section
302 read with Section 34 of the IPC respectively, having
killed/committed the murder of deceased Ram Autar,
relying upon the medical evidence on record as well as the
evidence of eyewitnesses of PW1 and PW2. However, in an
appeal preferred by the accused, the High Court has
observed that PW1 and PW2 – eye witnesses are wholly
trustworthy and there is no reason to disbelieve their
statements. Though the High Court has accepted the case
on behalf of the prosecution that on 20.12.1983 in the
evening all the four accused persons entered the field of the
complainant and started abusing deceased Ram Autar and
all the accused persons were having different weapons with
them and all of them started beating the deceased resulting
in a number of injuries on his body and thereafter when the
Ram Autar was taken to the hospital and later succumbed
to injuries and died, the High Court has converted Section
7
302 IPC to Section 326 IPC on the ground that the deceased
died after six days of the incident and no facture on his
head was found. However, the High Court has not at all
considered the injuries mentioned in the post mortem
report. As per the post mortem report following antemortem
injuries on the dead body of the Ram Autar were found:
“1. Scabbed abraded contusion 8 cm x 6 cm on
the left side of head above the left eye brow.
2. Scabbed abraded contusion 9 cm x 5 on the left
scapular region.
3. Scabbed abraded contusion 6 cm x 5 cm on the
left side of buttock.
4. Abraded contusion 4 cm x 4 cm on the 5th
lumber spine.
5. Infected wound 1.5 cm x 0.5c, x muscle deep on
the front of mid of left leg.
6. Multiple scabbed abraded contusion in an area
of 18 cm x 2 cm on the upper half of left leg.
7. Scabbed abrasion on an area of 22 cm 2 cm on
the front of right leg.”
7.1 As per the deposition of Dr. P.R. Mishra – PW8 who
conducted the post mortem, on opening of the brain
menages, found brain congested, subdural hematoma over
both temporal lobes. As per the doctor the deceased died
due to head injury no.1. The aforesaid injuries more
particularly head injury no.1 was fatal and because of said
injuries the deceased died. Merely because the deceased
8
died after six days could not have been the ground to set
aside the conviction for the offence under Section 302 IPC
and to convert it to Section 326 IPC. The deceased was first
taken to the PHC, however his condition was found to be
serious and therefore, he was taken to the Lucknow
Hospital on 20.12.1983 and thereafter while under
treatment he died on 26.12.1983 and the main cause of
death is found to be the head injury no.1. At this stage, it is
required to be noted that though the High Court has noticed
the nine injuries as noticed by Dr. B.L. Katiyar of Medical
Officer at PHC, the High Court has not at all noticed and/or
considered at all the antemortem injuries on the dead body
of Ram Autar mentioned in the postmortem report. As
observed hereinabove and as per the medical evidence the
cause of death was due to head injury no.1. The weapon
was used on the head vital part of the body and ultimately
the same proved to be fatal and the deceased died due to
head injury no.1. Therefore, by no stretch of imagination
the case would fall under Section 326 IPC.
7.2. One another reason given by the High Court to convert
the conviction from Section 302 IPC to Section 326 IPC is
9
that no fracture on the head was found. However, it is
required to be noted that the deceased died because of the
internal injuries. As per the postmortem report and the
medical evidence head injury is found. Head injury no.1 is
reproduced hereinabove. As per the deposition of Dr. P.R.
Mishra – PW8, who conducted the postmortem, on opening
of the brain menages, he found brain congested, subdural
hematoma over both temporal lobes. Therefore, merely
because no fracture was noticed and/or found cannot take
the case out of Section 302 IPC when the deceased died due
to head injury no.1. As observed hereinabove causing
injury on the head can be said to be causing injury on the
vital part of the body and therefore a clear case of Section
302 IPC has been established and proved. Therefore, the
learned trial Court rightly convicted the accused for the
offences under Section 302 IPC and Section 302/34 IPC
respectively.
7.3 Even otherwise considering Section 326 IPC, we fail to
appreciate how the case would fall under Section 326 IPC
when the deceased actually died due to grievous hurt and
the injuries were on the vital part of the body – head. At
10
this stage, it is required to be noted that in fact the accused
went to the field of the complainant where his father
deceased Ram Autar was also working. All of them went
with the deadly weapons and had beaten the deceased Ram
Autar and caused serious injuries and immediately the
deceased Ram Autar was required to be taken to the
hospital and he was first taken to PHC and thereafter to
Lucknow, Hospital where he succumbed to the injuries. For
the reasons stated above also the High Court has committed
grave error in convicting the accused for the offence under
Section 326 IPC by acquitting the accused for the offence
under Section 302 IPC. The impugned judgment and order
passed by the High Court acquitting the accused for the
offence Section 302 IPC and to convict the accused for the
offence under Section 326 IPC is unsustainable and
deserves to be quashed and set aside and the judgment and
order passed by the trial Court is required to be restored.
8. In view of the above and for the reasons stated
hereinabove the present appeal succeeds. The impugned
judgment and order passed by the High Court acquitting the
11
accused – respondents Jai Dutt and Shastri for the offence
under Section 302 IPC and Section 302/34 IPC respectively
and convicting them for the offence under Section 326 IPC
is hereby quashed and set aside. The judgment and order
of the learned trial Court convicting the accused Jai Dutt for
the offence punishable under Section 302 IPC and
convicting the accused Shastri for the offence punishable
under Section 302/34 IPC is hereby restored. The
respondents – accused are sentenced to undergo life
imprisonment with the fine as imposed by the learned trial
Court.
Now both the accused be taken into custody forthwith
to undergo the life imprisonment. Present appeal is allowed
accordingly.
……………………………….J.
[M.R. SHAH]
NEW DELHI; ……………………………….J.
JANUARY 19, 2022. [B.V. NAGARATHNA]
12