Delhi High Court
Tajinder Singh @ Kaka vs State on 20 March, 2013
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No. 796/2012
Reserved on: 28th February, 2013
% Date of Decision: 20th March, 2013
TAJINDER SINGH @ KAKA ....Appellant
Through Mr. Sumeet Verma, Advocate.
Versus
STATE ....Respondent
Through Mr. Sanjay Lao and Ms. Richa
Kapoor, Additional Public Prosecutors.
+ Crl. Appeal No. 738/2012
BHUPINDER SINGH @ RAJA ....Appellant
Through Mr. R.K. Dikshit, Advocate.
Versus
STATE ....Respondent
Through Mr. Sanjay Lao and Ms. Richa
Kapoor, Additional Public Prosecutors.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
SANJIV KHANNA, J.
The appellants Bhupender Singh and Tajinder Singh impugn
their conviction under Section 302 read with Section 34 of the Indian
Penal Code, 1860 (IPC) for murder of Amarjeet Singh on 19 th
November, 2007. By order of sentence dated 14th November, 2011, the
two appellants have been sentenced to life imprisonment and fine of
Rs.5,000/- each. In default of payment of fine, they have to undergo
Simple Imprisonment of one year each.
2. Homicidal death of Amarjeet Singh aged about 17 years cannot
really be disputed and has been established beyond doubt by Dr. B.N.
Mishra (PW-14), and Ranjeet Singh (PW-3). PW-14 had along with
Dr. Sushil Kumar Chaurasia conducted post mortem on the dead body
of Amarjeet Singh and proved the post mortem report (Ex.PW-14/A),
which was signed by him as well as Dr. Sushil Kumar Chaurasia.
Cause of death as opined was cardiogenic shock (haemorrhagic shock)
caused by rupture of heart consequent upon stabbing by a sharp
pointed weapon like knife.
3. Ranjeet Singh (PW-3), father of Amarjeet Singh has deposed
that his son was murdered on 19th November, 2007 and he identified
the dead body of his son at DDU Hospital Mortuary. His statement
was marked Ex.PW-3/A. MLC (Ex.PW-21/A) of deceased Amarjeet
Singh was proved by Dr. Ajay Sharma (PW-21). The MLC records
that the patient was brought dead by his brother Tirlok Singh with
history of assault on 19th November, 2007 at about 9.00 P.M. in DDU
Hospital. The MLC was prepared by Dr. Sanjeev Kumar, who had left
service, but his signatures and handwriting were identified by PW-21
as Dr. Sanjeev Kumar had worked under his supervision.
4. On the question of the involvement of the two appellants, the
prosecution relies upon the testimony of Tirlok Singh (PW-1), Amar
Singh (PW-6) and to a limited extent statements by Vikram (PW-2)
and Deepak Sahdev @ Vicky (PW-4).
5. PW-6 has deposed that he was a driver by profession and on 19 th
November, 2007 at about 8.15 P.M. when he was going to his house
via Dharampuri Road on foot from the side of Nala, he saw the two
appellants, whom he identified, along with two others, were running
towards the Nala from the side of Dharampuri Road. He knew all four
of them. Bittoo, who faced trial before the Juvenile Justice Board, was
carrying a knife in his hand. When PW-6 reached at the corner of the
street, he found that Amarjeet Singh was lying injured in a pool of
blood. Amarjeet Singh was rushed to the DDU Hospital by Vicky in
his van. PW-6 knew the two appellants prior to the incident. In his
cross-examination, he has admitted that his statement was recorded
between 11 A.M.-12.00 noon on 20th November, 2007. He did not
apprehend the appellants as he did not know what had happened till
then. Tirlok Singh, he deposed, was his distant relative, but he denied
the suggestion that he has deposed falsely being a relative of the
deceased.
6. Tirlok Singh (PW-1) has testified that on 19th November, 2007,
he had gone to the house of his relative Amarjeet Kaur to deliver
vegetables and at about 8.15 P.M. he came back and was in the street
(gali). He noticed that the two appellants, Deepu and Bittoo (the last
two have faced or are facing trial before the Juvenile Justice Board)
were escorting his brother Amarjeet Singh towards the gali.
Thereafter, he saw that the appellant-Tajinder, Deepu and Bittoo had
caught hold of his brother and Bhupinder inflicted an injury on the left
side chest of his brother with some pointed object. His brother shouted
for help and fell down on ground. He raised an alarm. The accused
persons ran away from the spot. PW-1 took his brother to the DDU
Hospital, but his brother was declared as brought dead. The police
recorded his statement (Ex.PW-1/A) in the hospital. The police
prepared site plan at his instance on 5th February, 2008. PW-1
correctly identified the two appellants, who were present in the trial
court. He further deposed that Bhupender had given the pointed object
blow to Bittoo while they were running.
7. Learned counsel for the appellants has submitted that statement
of PW-1 should be disbelieved because he is an interested witness
being a relative of the deceased. Reference is made to the cross-
examination of PW-1 wherein he has accepted the position that there
were many houses in the street (gali); it was not recorded in Ex.PW-
1/A that PW-1 had gone to the house of his Aunty for delivering
vegetables; PW-1 had seen Bittoo inflicting injury on the left side chest
of his brother. We do not think that statement of PW-1 lacks
credibility or should be disbelieved. Presence of PW-1 at the spot has
been proved by the statement of Vikram (PW-2) and Deepak Sehdev
(PW-4). PW-2 stated that on 19th November, 2007, when he was
present in his house, he heard noise in the street (gali) and on coming
out he saw his neighbour Tirlok Singh, who told him that the two
appellants had inflicted knife injury on Amarjeet Singh, who was lying
in a pool of blood. PW-2 along with Tirlok Singh and Deepak Sehdev
removed Amarjeet Singh in a Maruti 800 car to the DDU Hospital.
PW-2‟s statement was recorded by the Investigating Officer. In the
cross-examination, he deposed that he had reached the hospital at about
9 P.M. and remained there for about 10 minutes. Similarly, Deepak
Sahdev (PW-4) has deposed that on 19th November, 2007, on hearing
noise in the street he came out and Tirlok Singh (PW-1) told him that
the two appellants and Deepu had stabbed his brother Amarjeet Singh
with a knife. Amarjeet Singh was lying in a pool of blood and was
taken to the DDU Hospital in the car of Vicky. In the cross-
examination he deposed that PW-4‟s statement was recorded on the
next day and he remained in the hospital for about an hour. It is clear
from the statements of PW-2 and PW-4 that Tirlok Singh (PW-1) was
present at the spot in the street (gali). He had at that time informed and
named appellants as the perpetrators of the crime to PW-2 and PW-4.
The MLC (Ex.PW-21/A) gives name and parentage of the deceased
Amarjeet Singh. It records that Amarjeet Singh had been brought to
the hospital by Tirlok Singh, his brother. The MLC was recorded at 9
P.M. on 19th November, 2007 and records that the patient was declared
as brought dead. Soon thereafter PW-1 made a statement (Ex.PW-7/A)
to the police and on this basis at about 11.30 P.M. „rukka‟ was
recorded and „tehrir‟ was sent to the police station Tilak Nagar by ASI
Madan Lal (PW-15). DD Entry No.32A was recorded at 11.50 P.M.
on 19th November, 2007 and FIR No.745/2007 under Section 302/34
IPC was registered at police station Tilak Nagar. The FIR (Ex.PW-
7/A) specifically mentions and records the name of the two appellants
as assailants along with Deepu. At this stage, we only notice that the
name of Bittoo was not specifically mentioned in Ex.PW-1/A and the
FIR. His name was mentioned and recorded in the purported statement
made by PW-1 and statement of PW-6 made on the next date i.e. 20th
November, 2007. In the examination-in-chief PW-1 has categorically
stated that he had seen the appellant Bhupender inflicting injury on the
left side chest of his brother Amarjeet Singh with a pointed object,
while Tajinder, Deepu and Bittoo had caught hold of his brother. He
has further deposed that Bhupender had given the pointed objected to
Bittoo, when they were running. In the cross-examination PW-1 has
stated as under:-
"I had stated to the police that accused Bittoo
had inflicted injury on the left side chest of my
brother. Confronted with Ex.PW1/A where only chest
is mentioned. I do not know if one Deepu had beaten
my brother in the year 2007 and accused Raja had
saved him. I am not on talking terms with accused
persons. It is incorrect to suggest that I had not seen
the accused persons escorting my brother or that
accused Raja had not inflicted injury on the left said
of chest of my brother with some pointed object or
that my brother was having enmity with Deepu and
Bittoo who had murdered him. I cannot say if Raja
lived in the same gali but I have often seen him there
or that I have got the accused persons falsely
implicated."
8. The statement of PW-1 in the cross-examination that he had seen
Bittoo inflicting injury on the left side chest of his brother, it is
apparent, is a mistake or an error. PW-1 after he had made the said
statement in the cross-examination was confronted with Ex.PW-1/A,
where only chest was mentioned and it was not recorded that the injury
was inflicted on the left side of the chest. Further cross-examination
on behalf of the two appellants is to the effect that the statement made
by PW-1 that he had seen Bhupender @ Raja inflicting injury was not
correct. This further cross-examination by the counsel for the
appellants reflects and indicates that PW-1 had stated that he had seen
Bhupender inflicting injury by the pointed object. In the examination-
in-chief, PW-1 is clear and has in categorical terms deposed that
Bhupender had inflicted the injury on the left side chest of his brother
with some pointed object.
9. Learned counsel for the appellants has submitted that PW-1 in
the cross-examination had stated as under:-
"....I had stated the name of Bittoo after wards to
the police. I had stated to police that Raja handed
over the pointed object to Bitto on the next day."
10. It is submitted that PW-1 had stated in the cross-examination
that Bhupender handed over the pointed object to Bittoo on the next
day i.e. day after the occurrence. In other words, PW-1 had claimed
that he had seen Bhupender handing over the pointed object to Bittoo
on 20th November, 2007 after the occurrence on 19th November, 2007.
Learned counsel for the appellants are misreading the testimony as
PW-1 had stated that he had given the name of Bittoo afterwards and
had informed the police on the next day that he had seen the appellant
Bhupender handing over the pointed object to Bittoo.
11. Statement of PW-1 cannot be rejected just because he is a distant
relative of the deceased and the sole eye witness. His statement is to
be carefully perused and once it is held to be credible and truthful, it
can certainly be relied upon. Ordinarily a close relative would not try
and protect the real culprit and falsely implicate an innocent person.
However, when there is personal animosity and ill-will between two
families/groups etc., there can be a tendency to drag innocent persons
along with those, who are guilty. However, there should be grounds to
a claim or sufficient foundation, when a plea of false implication of an
innocent person is raised. Relative of a victim is normally a reliable
witness and his testimony should be accepted once his/her presence at
the spot of occurrence is proved beyond doubt, unless there are
circumstances to show that he/she could have implicated an innocent
person because of enmity or other such reasons. (see Dalip Singh v.
State of Punjab, AIR 1953 SC 364 and Gangadhar Behera and Others
Vs. State of Orissa, AIR 2002 SC 3633).
12. We do not think that the testimony of PW-1 should be
disbelieved because although the occurrence had taken place in a
residential area and the police could not locate any other eye witness.
There is no evidence to show that some other person had witnessed the
occurrence. As noticed above, Vikram (PW-2) and Deepak Sahdev
(PW-4), who are neighbours, have appeared and testified that they
reached the occurrence spot immediately after the injuries were caused
to the deceased. Conviction even in case of murder can be based upon
a single eye witness once the court is satisfied that the statement made
by the said witness is credible and truthful. Law does not postulate or
require that a particular number of eye witnesses should depose before
conviction for murder can be sustained. (see Section 134 of the
Evidence Act). Conviction is possible on the basis of statement made
by a sole eye witness, when his presence at the spot of occurrence is
established and proved. It is not the number but credibility which can
be attached to statement that matters.
13. In the present case the weapon of offence i.e. the sharp pointed
object could not be recovered, but this does not mean that the
prosecution version should be disbelieved and not accepted. Tirlok
Singh (PW-1) has deposed on the injuries and the MLC (Ex.PW-21/A)
also mentions the injuries suffered by the deceased. Post Mortem
Report (Ex.PW-14/A) records the external and internal injuries seen on
the body of the deceased. J.K. Sharma, ACP Rajouri Garden, who
was the Investigating Officer and was posted as the SHO, police
station Tilak Nagar at the relevant time, has appeared as PW-23. He
prepared the inquest documents (Ex.PW-23/B) and had got the post
mortem conducted. He has deposed that Deepu, who was tried before
the Juvenile Justice Board, was arrested first and on the next day when
they were searching for Tajinder, they found that 15-20 persons were
beating him. Tajinder was arrested vide arrest memo Ex.PW11/A on
20th November, 2007 at 6.10 P.M. Medical examination of Tajinder
was conducted in DDU Hospital and they were put in the lockup.
Bhupender was arrested on 27th November, 2007 at around 6.30 P.M.
vide arrest memo Ex. PW-19/A. PW-23 deposed that PW-1 had
remained with them in the intervening night between 19 and 20 th
November, 2007 up to 2 A.M. In these circumstances as the arrests got
delayed because of abscondence, plea that failure to recover the
weapon of offence, should result in acquittal has to be rejected.
14. There is nothing in the statements of the appellants under
Section 313 of the Code of Criminal Procedure, 1973, which requires
consideration or creates any doubt about the prosecution evidence.
The two appellants have made general statements that the statements
made against them were incorrect or they did not know. They have
claimed that they were innocent and have been falsely implicated.
15. The next aspect, which requires consideration, is whether
Section 34 IPC has been rightly invoked viz. the appellant Tajinder as
the injury by the sharp pointed object was caused by Bhupender and
whether the appellants have been rightly convicted under Section 302
IPC or they should have been convicted and the prosecution has been
able only to made out only a case under Section 304 Part-I or Part-II.
Reliance has been placed on the judgment of the Supreme Court in
Ramashish Yadav and Others v. State of Bihar, (1999)8 SCC 555 and
Raju and Another v. State of Haryana, 2010 (2) SCALE 304. Learned
Additional Public Prosecutor on the other hand has relied upon
Ramesh Singh v. State of A.P. 2004(1) SCC 305. We have noticed
the evidence on record and the testimony of PW-1. He has deposed
that Tajinder, Deepu and Bittoo (though in the FIR and the initial
statement of PW-1 Bittoo‟s name is not mentioned) had caught hold of
his brother and Bhupender had inflicted injury on the left side chest of
his brother with some pointed object.
16. PW-1 has not attributed any spoken words to Tajinder Singh, but
it is apparent from his statement that the two appellants had acted in
concert and with common intention. This is clear as the deceased
Amarjeet was seen with the appellants, first being escorted to the street
and thereafter Bhupinder inflicted the injury. The deceased was caught
hold by Tajinder Singh. Common intention under Section 34 IPC is a
matter of inference which is to be drawn from the facts. The distinct
feature of Section 34 is element of participation in action which
implies acting in concert, which is proved from the conduct,
circumstances or from incriminating facts. Prior concert or meeting of
minds may be prior to the occurrence but it can develop at the spur of
the movement. These legal principles have to be applied to the facts of
a particular case. Thus in Ramashish Yadav and Ors .v. State of
Bihar, (1999)8 SCC 555, it was held that the two accused who caught
hold of the deceased, did not share common intention with the two
accused who had given the gandasa blows. It was noticed that the
accused were ploughing their own fields and two of them who were
acquitted from the charge of murder or by applying Section 34 IPC,
had caught hold of the deceased. The other two accused who were
convicted under Section 302 read with Section 34 IPC, came to the
spot and suddenly gave gandasa blows. It is apparent that the accused
who had caught hold of the deceased were acquitted from the charge
under Section 302 read with Section 34 IPC, as they did not share the
common intention that a third person would come and give the gandasa
blows. In the said case, Section 149 IPC had also been invoked but not
proved. In Raju & Anr. Vs. State of Haryana, 2010(2) SCALE 304,
the conviction was altered from Section 302 read with Section 34 IPC
to Section 304 Part I, read with Section 34 IPC. In Ramesh Singh vs.
State of Andra Pradesh (2004) 11 SCC 305, it was held that common
intention has to be distinguished from same and similar intention as in
cases where two persons, not known to each other, may fire shots at the
same person but this would indicate that they would had the same and
similar intention but not the common intention. It was accordingly
observed as under:-
"12. To appreciate the arguments advanced on behalf of
the appellants it is necessary to understand the object of
incorporating Section 34 in the Indian Penal Code. As a
general principle in a case of criminal liability it is the
primary responsibility of the person who actually
commits the offence and only that person who has
committed the crime can be held to guilty. By
introducing Section 34 in the penal code the Legislature
laid down the principle of joint liability in doing a
criminal act. The essence of that liability is to be found in
the existence of a common intention connecting the
accused leading to the doing of a criminal act in
furtherance of such intention. Thus, if the act is the result
of a common intention then every person who did the
criminal act with that common intention would be
responsible for the offence committed irrespective of the
share which he had in its perpetration. Section 34 IPC
embodies the principles of joint liability in doing the
criminal act based on a common intention. Common
intention essentially being a state of mind it is very
difficult to procure direct evidence to prove such
intention. Therefore, in most cases it has to be inferred
from the act like, the conduct of the accused or other
relevant circumstances of the case. The inference can be
gathered by the manner in which the accused arrived at
the scene, mounted the attack, determination and concert
with which the attack was made, from the nature of injury
caused by one or some of them. The contributory acts of
the persons who are not responsible for the injury can
further be inferred from the subsequent conduct after the
attack. In this regard even an illegal omission on the part
of such accused can indicate the sharing of common
intention. In other words, the totality of circumstances
must be taken into consideration in arriving at the
conclusion whether the accused had the common
intention to commit an offence of which they could be
convicted. (See Noor Mohammad Yusuf Momin, (1970) 1
SCC 696.
13. Since common intention essentially being a state of
mind and can only be gathered by inference drawn from
facts and circumstances established in a given case, the
earlier decisions involving almost similar facts cannot be
used as a precedent to determine the conclusions on facts
in the case in hand. This view of ours finds support in a
judgment of this Court in Pandurang Tukia and Bhillia v.
State of Hyderabad, AIR 1955 SC 216 wherein while
considering the applicability of Section 34 IPC this Court
held thus:-
"But to say this is no more than to reproduce the
ordinary rule about circumstantial evidence, for
there is no special rule of evidence for this class
of case. At bottom, it is a question of fact in every
case and however similar the circumstances, facts
in one case cannot be used as a precedent to
determine the conclusion on the facts in another.
All that is necessary is either to have direct proof
of prior concert, or proof of circumstances which
necessarily lead to that inference, or, as we prefer
to put it in the time-honoured way, "the
incriminating facts must be incompatible with the
innocence of the accused and incapable of
explanation on any other reasonable hypothesis".
(Sarkar's Evidence, 8th Edn., p. 30)."
xxxx
As we have said, each case must rest on its own
facts and the mere similarity of the facts in one
case cannot be used to determine a conclusion of
fact in another."
17. Applying the ratio to the facts of the present case as elucidated
above, we feel that the appellant Tajinder Singh shared common
intention with the appellant Bhupinder. To this extent, the prosecution
has been able to prove the case beyond doubt.
18. However, we are inclined to and do accept the plea of the
appellants that they have been wrongly convicted under Section 302
IPC and in fact conviction should be under Section 304 Part I, IPC.
The difference between Section 299 and Section 304 has been
elucidated and tabulated in State of U.P. v. Virendra Prasad (2004) 9
SCC 37
7. The academic distinction between "murder" and
"culpable homicide not amounting to murder" has
always vexed the courts. The confusion is caused, if
courts losing sight of the true scope and meaning of the
terms used by the legislature in these sections, allow
themselves to be drawn into minute abstractions. The
safest way of approach to the interpretation and
application of these provisions seems to be to keep in
focus the keywords used in the various clauses of
Sections 299 and 300. The following comparative table
will be helpful in appreciating the points of distinction
between the two offences:
Section Section 300
A person Subject to certain
commits exceptions culpable
culpable homicide is murder, if
homicide if the act by which the
the act by death is caused is
which the done--
death is
caused is
done--
Intention
(a) with (1) with the intention
the intention of causing death; or
of causing
death; or
(b) with (2) with the intention
the intention of causing such bodily
of causing injury as the offender
such bodily knows to be likely to
injury as is cause the death of the
likely to cause person to whom the
death; or harm is caused; or
(3) 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; or
Knowledge
(c) with the (4) with the
knowledge knowledge that the act
that the act is is so imminently
likely to cause dangerous that it must,
death. in all probability, cause
death or such bodily
injury as is likely to
cause death, and
commits such act
without any excuse for
incurring the risk of
causing death or such
injury as is mentioned
above.
8. Clause (b) of Section 299 corresponds with
clauses (2) and (3) of Section 300. The distinguishing
feature of the mens rea requisite under clause (2) is the
knowledge possessed by the offender regarding the
particular victim being in such a peculiar condition or
state of health that the internal harm caused to him is
likely to be fatal, notwithstanding the fact that such
harm would not in the ordinary way of nature be
sufficient to cause death of a person in normal health or
condition. It is noteworthy that the "intention to cause
death" is not an essential requirement of clause (2).
Only the intention of causing the bodily injury coupled
with the offender's knowledge of the likelihood of such
injury causing the death of the particular victim, is
sufficient to bring the killing within the ambit of this
clause. This aspect of clause (2) is borne out by
Illustration (b) appended to Section 300.
9. Clause (b) of Section 299 does not postulate any
such knowledge on the part of the offender. Instances
of cases falling under clause (2) of Section 300 can be
where the assailant causes death by a fist-blow
intentionally given knowing that the victim is suffering
from an enlarged liver or enlarged spleen or diseased
heart and such blow is likely to cause death of that
particular person as a result of the rupture of the liver
or spleen or the failure of the heart, as the case may be.
If the assailant had no such knowledge about the
disease or special frailty of the victim, nor an intention
to cause death or bodily injury sufficient in the
ordinary course of nature to cause death, the offence
will not be murder, even if the injury which caused the
death, was intentionally given. In clause (3) of Section
300, instead of the words "likely to cause death"
occurring in the corresponding clause (b) of Section
299, the words "sufficient in the ordinary course of
nature" have been used. Obviously, the distinction lies
between a bodily injury likely to cause death and a
bodily injury sufficient in the ordinary course of nature
to cause death. The distinction is fine but real and if
overlooked, may result in miscarriage of justice. The
difference between clause (b) of Section 299 and
clause (3) of Section 300 is one of degree of
probability of death resulting from the intended bodily
injury. To put it more broadly, it is the degree of
probability of death which determines whether a
culpable homicide is of the gravest, medium or the
lowest degree. The word "likely" in clause (b) of
Section 299 conveys the sense of probability as
distinguished from a mere possibility. The words
"bodily injury ... sufficient in the ordinary course of
nature to cause death" mean that death will be the
"most probable" result of the injury, having regard to
the ordinary course of nature."
19. In Virsa Singh vs. State of Punjab AIR 1958 SC 465 Supreme
Court has expounded upon the requisites under clause 3, Sections 300,
302 and 304-I, IPC and observed that:
"14. To put it shortly, the prosecution must prove the
following facts before it can bring a case under
Section 300 "thirdly";
15. First, it must establish, quite objectively, that a
bodily injury is present;
16. Secondly, the nature of the injury must be proved;
these are purely objective investigations.
17. Thirdly, it must be proved that there was an
intention to inflict that particular bodily injury, that is
to say, that it was not accidental or unintentional, or
that some other kind of injury was intended.
18. Once these three elements are proved to be
present, the enquiry proceeds further and,
19. Fourthly, it must be proved that the injury of the
type just described made up of the three elements set
out above is sufficient to cause death in the ordinary
course of nature. This part of the enquiry is purely
objective and inferential and has nothing to do with
the intention of the offender."
20. It is clear from the said passages that the act which results in
death should be as a result of injury which was intended and the said
injury should be sufficient in ordinary course of nature to cause death
for a conviction to fall under Section 300, clause 3.
21. A Division Bench of this Court in Amirudin v. State ILR (2010)
1 Del 267 has held that a single blow by a knife piercing deep into the
back and causing death in few minutes was covered under Section 302
IPC. In Jagtar Singh v. State of Punjab, AIR 1983 SC 463, it was
observed that clause 3 of Section 300 was not attracted as there was no
malice or pre-meditation though the blow was on the chest and had
pierced deep inside the chest cavity. The court observed that there was
possibility that the accused never intended to cause the said injury as
the quarrel was of trivial nature. In Tholan v. State of Tamil Nadu,
1984 SCC (Crl.) 164, there was an incise wound, again on the chest, of
the size of 3 x 1 cms at the maximum point but the depth was not
proved. The cause of death was shock and hemorrhage due to injury
on the vital organs like heart and the lung. It was observed that
looking at the facts of the said case, the accused did not have the
requisite intention. Reference was made to the following decisions in
Jagroop Singh v. State of Hayana (1981) 3 SCC 616, Randhir Singh
v. State of Punjab AIR 1982 SC 55, Kulwant Rai v. State of Punjab
AIR 1982 SC 126, Hari Ram v. State of Haryana AIR 1983 SC 185,
Jagtar Singh v. State of Punjab (supra). In Sasi alias Chalil Sasi v.
State of Kerala, 2000 SCC (Crl.) 695, again there was a single knife
blow struck on vital part of the body, but the Supreme Court converted
the conviction to Part II of Section 304 IPC from Part I, observing that
it was not possible to hold that the injury inflicted was with the
requisite intention. We note here that the trial court had convicted the
appellant under Section 302 IPC. In Raju's case (supra), the
conviction under Section 302 IPC was set aside and converted to
Section 304 Part I, IPC. In the said case, death had taken place on
account of knife blow on the left side anterior side of the chest and
there was another knife blow on the right posterior side of the waist.
22. The test, to be applied in such cases, has been clearly settled and
set out in the following two paragraphs of Virsa Singh (supra):
"23. The learned counsel for the appellant referred us
to Emperor v. Sardarkhan Jaridkhan [ (1917) ILR 41
Bom 27, 29] where Beaman, J., says that--
"where death is caused by a single blow, it is always
much more difficult to be absolutely certain what
degree of bodily injury the offender intended".
With due respect to the learned Judge he has linked
up the intent required with the seriousness of the
injury, and that, as we have shown, is not what the
section requires. The two matters are quite separate
and distinct, though the evidence about them may
sometimes overlap. The question is not whether the
prisoner intended to inflict a serious injury or a trivial
one but whether he intended to inflict the injury that
is proved to be present. If he can show that he did not,
or if the totality of the circumstances justify such an
inference, then, of course, the intent that the section
requires is not proved. But if there is nothing beyond
the injury and the fact that the appellant inflicted it,
the only possible inference is that he intended to
inflict it. Whether he knew of its seriousness, or
intended serious consequences, is neither here nor
there. The question, so far as the intention is
concerned, is not whether he intended to kill, or to
inflict an injury of a particular degree of seriousness,
but whether he intended to inflict the injury in
question; and once the existence of the injury is
proved the intention to cause it will be presumed
unless the evidence or the circumstances warrant an
opposite conclusion. But whether the intention is
there or not is one of fact and not one of law. Whether
the wound is serious or otherwise, and if serious, how
serious, is a totally separate and distinct question and
has nothing to do with the question whether the
prisoner intended to inflict the injury in question.
24. It is true that in a given case the enquiry may be
linked up with the seriousness of the injury. For
example, if it can be proved, or if the totality of the
circumstances justify an inference, that the prisoner
only intended a superficial scratch and that by
accident his victim stumbled and fell on the sword or
spear that was used, then of course the offence is not
murder. But that is not because the prisoner did not
intend the injury that he intended to inflict to be as
serious as it turned out to be but because he did not
intend to inflict the injury in question at all. His
intention in such a case would be to inflict a totally
different injury. The difference is not one of law but
one of fact; and whether the conclusion should be one
way or the other is a matter of proof, where necessary,
by calling in aid all reasonable inferences of fact in
the absence of direct testimony. It is not one for
guesswork and fanciful conjecture."
23. When we apply the said test/principle to the facts of the present
case, it is noticed that as per the post mortem report (Ex. PW14/A),
there was only one external injury suffered by the deceased which was
on the left side of the chest measuring 2 x 1 cm. The size of the injury
reflects that it was a small wound. The said injury was deep to
thorosic cavity. The report further records that thorosic cavity was
pierced though both the sides of lungs remained intact. Cardiogenic or
haemorrhagic shock was caused by rapture of heart. We also note that
there is discrepancy in the deposition of PW-1 in the examination in
chief and what he had stated in Ex. PW1/A. PW-1 in the court had
stated that Bhupinder had inflicted injuries on the left side of the chest
but this is not recorded in Ex. PW1/A, where only „chest‟ is mentioned.
24. The deceased in the present case was a young boy aged about 17
years. He suffered the fatal blow which left his family/parents in
agony and pain. The cause and motive for the crime has not come on
record. There was not one accused but four of them, as per the
prosecution version and they did not belong to the same family. Only
one blow was given and as observed above, we attribute the said blow
to Bhupinder. The external injury itself is extremely small, but it
appears that the injury had reached the apex of the heart. Studies
suggest that in cases of thorax injuries, there are good chances of
survival (see section on Thoracic Injury, South Western Sydney
Regional Trauma Registry 10-year Report 1995-2004 here out of
2896 patients admitted during the ten years, where 1360 (47%) of
patients had injury predominantly at thorax region, out of which 2691
(92.9%) survived while 205 (7.1%) expired. Also see C.E.
Anagnostopoulos and C. Frederick Kittle, Penetrating wounds of the
hearts and great vessels, Department of Surgery, Section of Thoracic
and Cardiovascular Surgery, University of Chicago, Illinois 1973 and
A.K. Mandal, Unusually low mortality of penetrating wounds of the
chest, twelve years' experience, Department of Surgery, Charles R.
Drew University of Medicine and Science, 1989). The studies indicate
that the danger is severe in case of blunt trauma where there are
penetrating injuries or crush injuries. It is difficult to accept and
believe that the appellant Bhupinder had specifically aimed and wanted
to cause the injury on a particular point on the chest of the deceased.
Such precision does not merit acceptance and is improbable. We also
record that only one injury was given and PW-1 was also not injured.
There is also an ambiguity about the weapon of offence which has not
been located. In these circumstances, we feel that benefit should be
given to the appellants and their conviction should be converted from
Section 302 IPC to Section 304 Part I, IPC.
25. On the question of quantum of sentence, we note that it was
Bhupinder who had caused injury in question. He, according to us,
should be given stricter and larger sentence than being awarded to the
appellant Tajinder. Bhupinder is awarded rigorous imprisonment for a
period of 8 years and a fine of Rs.25,000/-. In default of payment of
fine, he shall suffer simple imprisonment for a period of a further six
months. Fine if collected, will be paid to the family of the deceased.
Appellant Tajinder Singh is awarded rigorous imprisonment of 6 years
and a fine of Rs.10,000/-. In default of payment of fine, he shall suffer
simple imprisonment for a period of further three months. Fine, if
collected, will be paid as compensation to the family of the deceased.
The appeals are accordingly disposed of.
-sd-
(SANJIV KHANNA)
JUDGE
-sd-
(SIDDHARTH MRIDUL)
JUDGE
MARCH 20th, 2013
NA/KKB
