Delhi High Court
Suraj And Others vs State on 16 May, 2013
Author: Sanjiv Khanna
$~R-23.
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL APPEAL NO. 22/2009
Date of decision: 16th May, 2013
SURAJ AND OTHERS
..... Appellants
Through Ms. Anu Narula, Advocate.
Mr. Avninder Singh, Advocate.
versus
STATE
..... Respondent
Through Ms. Richa Kapoor, APP for the
State.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE VED PRAKASH VAISH
SANJIV KHANNA, J. (ORAL):
Suraj, his father Kanhiya Lal and his maternal grandfather Badlu
Ram have filed the present appeal challenging their conviction vide
judgment dated 19th August, 2008 under Section 302 of the Indian
Penal Code, 1860 (IPC, for short) for murder of Maya Ram in the
intervening night of 28th/29th March, 2007, in a case arising out of FIR
No. 213/07. By order of sentence dated 29th August, 2008 they have
been sentenced to life imprisonment and fine of Rs.15,000/- each, in
default of which,they shall undergo Simple Imprisonment for five
CRL.A. No. 22/2009 Page 1 of 34
months.
2. The deceased Maya Ram was brother of the appellant-Kanhiya
Lal.
3. The prosecution case relies upon four eye witnesses, Shyam
Sunder (PW-14), Sunita (PW-15), Prem (PW-17) and Rani Devi (PW-
18). PWs-15, 17 and 18 are residents of jhuggi No. 28/134, Block G,
Mangol Puri, Delhi. PW-15 and 17 are the daughters of the deceased
Maya Ram and PW-18 is his wife/widow. Shyam Sunder (PW-14) is
the neighbour, who was residing in jhuggi No. G-140, Mangol Puri,
Delhi.
4. Sunita (PW-15) has deposed that on 28th March, 2007, Punnu
brother of Guddi (wife of the appellant Kahniya Lal) had come to their
house and sat on their roof. Guddi had objected and insinuated that
Punnu should not sit on the roof of the enemies. PW-15‟s mother had
tried to reason out with Roshni (daughter of Guddi) but Roshni got
agitated and said she would slap Rani (PW-18) in case she intervenes.
PW-15 has even deposed that Roshni came and pushed PW-18 Rani,
who fell down into a "naali". Roshni, it is further alleged, tried to
catch hold of PW-15‟s younger brother Neeraj by neck but the
neighbours saved him. Rani (PW-18), wife of the deceased, has not
deposed in detail anything that occurred prior to the occurrence. She
has stated on 28th March, 2007 that she along with her family
CRL.A. No. 22/2009 Page 2 of 34
members, including the deceased, her daughters Sunita and Geeta,
Prem and Perm‟s husband Jaswant and son Satya Prakash had visited
various temples and had returned at about 10.30 P.M. While they were
having dinner, Punnu brother of Guddi, came and sat with them. In the
meanwhile, Guddi came there and abused her and her family members
and she left along with her brother Punnu. PW-18 has, therefore, not
deposed about any physical violence by Guddi or involvement of
Roshni. Similarly, Prem (PW-17) daughter of Rani, has stated that she
along with her husband Jaswant had come to her parental home on 28th
March, 2007 and had gone to temples. She has deposed that they
returned at 1 A.M. at night. In the cross-examination, she has stated
that they started the return journey from the temples at 10.30 P.M. and
thereafter they had dinner at their jhuggi. In the cross-examination, she
has stated that Punnu used to visit their Jhuggi and on the said night
after they returned from the temples, Punnu was found sitting in the
jhuggi. Guddi came there, abused them and left with Punnu. PW-17
has, therefore, not deposed about any violence, which was indulged in
by Guddi or Roshni.
5. The occurrence in question took place on 29th March, 2007 at
about 1 A.M. as deposed to by PW-15, 17 and 18. PW-15, in her chief
statement, has averred that at 1 P.M. (sic) A.M., when they were
sleeping, the three appellants started abusing them and on hearing the
CRL.A. No. 22/2009 Page 3 of 34
abuses they came out. Thereafter, the appellants started quarrelling
with her father. Kanhiya caught hold of Maya Ram‟s leg, Badlu
caught hold of his hand and Suraj hit her father with a saria from back.
Her father Maya Ram became unconscious. Police was called to the
spot and took Maya Ram to the hospital. She identified the iron saria
as Exhibit P-1. In her cross-examination, PW-15 repeatedly reiterated
that Suraj had given the saria blow on Maya Ram‟s head and Suraj had
brought the iron saria in his hand. There was a dispute between the
deceased Maya Ram and Kanhiya Lal on account of land in the village.
She has attributed act and spoken words to appellant-Kanhiya Lal to
the effect that he had caught hold of her father from the back and had
asked Suraj to kill her father.
6. PW-17 Prem has stated that at about 1 A.M. appellants Kanhiya,
Badlu and Suraj came to their jhuggi and threatened her father Maya
Ram and called out that they would kill him and today they would not
leave him. Maya Ram did not say anything as he was going to the
house of their relatives (Mausi) to inform her about the conduct and
threats extended by the appellant-Kanhiya. However, before he could
reach the house of the relatives (Mausi), the appellant-Kanhiya caught
hold of her father from the back side and appellant-Badlu caught hold
of his hands. Appellant-Suraj hit her father on the head with the saria.
She, her mother and sister tried to save her father but were
CRL.A. No. 22/2009 Page 4 of 34
apprehended by Gunia, Guddi and Roshni (Kanhiya‟s mother-in-law,
wife and daughter, respectively). Maya Ram fell on the ground and
became unconscious.
7. PW-18 has averred that the three appellants came to the jhuggi
and started abusing Maya Ram, stating that the deceased had already
disowned him from property, so he won‟t leave him today. Appellant-
Kanhiya had caught hold of Maya Ram from behind and the appellant-
Badlu had caught hold of his hands. Thereupon, appellant-Kanhiya
asked appellant-Suraj to finish him. Appellant-Suraj hit the saria,
which he was carrying, on the head of Maya Ram. She has deposed
that he had hit the saria number of times on the head of Maya Ram.
The children rushed to save Maya Ram. At that time, the witnesses
were apprehended by Kunni, Guddi and Roshni. PW-18 has alleged
that her daughters Geeta, Sunita and Prem were beaten up.
8. At this stage, it would be relevant to notice that Sunita (PW-15)
in her examination-in-chief did not attribute any specific words to the
appellants-Kanhiya and Badlu or Suraj. She was cross-examined by
the Additional Public Prosecutor and then accepted that the appellant
Kanhiya had asked Suraj to kill her father. We notice that no injuries
were suffered by Sunita (PW-15), Prem (PW-17) and Rani Devi (PW-
18). They were not medically examined. Therefore, it is apparent that
PW-15, 17 and 18 have exaggerated and inflated the occurrence and
CRL.A. No. 22/2009 Page 5 of 34
had tried to implicate the lady members, i.e., Kunni, Guddi, Roshni etc.
We agree with the counsel for the appellants that we have to carefully
examine their testimonies on the role and involvement of the three
appellants specially Kanhiya and Badlu before we accept their
versions.
9. Learned counsel have, therefore, rightly referred to the statement
of Shyam Sunder (PW-14), a neighbour. He has stated that on 28 th
March, 2007 he say Guddi, Kunia (Kuna) and Roshni were quarrelling
with each other. He had tried to intervene and prevail upon them not to
quarrel after which they dispersed. Kunia Guddi, and Roshni are
family members of the appellants and are not the immediate family
members of Maya Ram. The said quarrel deposed to by PW-14 is of
no consequence and relevance. PW-14 has further deposed that at 1.00
A.M. midnight he heard noise outside his house and saw the three
appellants whom he identified along with some ladies, which included
Kunia, Guddi and Roshni were beating Maya Ram, his daughters
Sunita, Prem and Geeta and his wife Rani. Maya Ram was hit on his
head by Suraj with a saria. Maya Ram fell on the spot and expired
immediately. PW-14 then made a call at number 100. He identified
the saria as Exhibit P-1. In the cross-examination by the Learned APP,
PW-14 has clarified that the deceased did not die immediately, it only
appeared so. In the cross-examination, PW-14 again stated that he had
CRL.A. No. 22/2009 Page 6 of 34
seen Roshni, Guddi and Poonam beating Prem, Sunita and Geeta. He
has further stated that Suraj had hit Maya Ram with the saria from the
front side. He had tried to save him but before he could take any step,
saria had already been hit. Police had immediately recorded his
statement at the spot and they simultaneously took the injured to the
hospital. When Maya Ram was hit by the Suraj, PW14 was standing at
a distance of 4/5 feet away. PW-14 has also stated that he did not
know from where Suraj had got the saria. On the question of injuries
to Prem, Guddi and Roshni deposed to in PW-14‟s cross-examination,
it has already been noticed that there is no MLC of the said persons.
Possibly, the three ladies were present and after the occurrence the
tempers had heated up, resulting in minor altercation.
10. Learned counsel appearing for the appellants Kanhiya and Badlu
have submitted that PW-14 has deposed that Suraj had given the blow
with the saria on the head of Maya Ram. He has not attributed any act
or stated that Kanhiya and Badlu had caught hold of Maya Ram at that
time, as deposed to and as stated by Sunita (PW-15), Prem (PW-17)
and Rani Devi (PW-18). This is undoubtedly correct but PW-14 has
also deposed that Kanhiya and Badlu were present at the spot. The site
plan Exhibit PW-5/1 (scaled site plan) and PW-8/7 (site plan without
scale), indicate the residence, i.e., jhuggi of Maya Ram. The jhuggi of
the three appellants was located at a short distance. Guddi, Roshni and
CRL.A. No. 22/2009 Page 7 of 34
Kunia were present at the spot, as deposed to by PW-14. Thus
presence of Kanhiya and Badlu at the spot is certain. The same has
been uniformly deposed to. There is also consistency that Suraj had
brought saria with him. Kanhiya in his statement under Section 313
Cr.P.C. has accepted that he was present at the site of occurrence. He
has stated that deceased was drunk. There was a dispute between him
and his wife when Maya Ram‟s wife pushed him and the deceased
head hit the board resulting in injuries. He took Maya Ram to the
hospital but was arrested there on the basis of statement made by wife
of Maya Ram. The appellant Badlu Ram, on the other hand, has stated
that he was not present at the place of occurrence. The appellant Suraj
has stated that he was innocent and studying in his room when the
quarrel had taken place in the house of Maya Ram with his wife Rani
Devi. He has been falsely implicated.
11. At this stage, we may note that the appellant-Kanhiya was
arrested on 29th March, 2007 at 5.10 A.M. in the morning from the
jhuggi. Suraj and Badlu were absconding. The two of them
surrendered in the court and were arrested on 11 th April, 2007 vide
arrest memo Exhibit PW-8/3 and PW-8/1 respectively.
12. The MLC of Maya Ram (Exhibit PW-1/A) records that he was
brought to the hospital by Head Constable Ashok Kumar but his name,
parentage and address are mentioned. It is also recorded that there was
CRL.A. No. 22/2009 Page 8 of 34
alleged history of physical assault and the patient was unconscious.
The said MLC was prepared at about 1.45 A.M. The rukka, i.e., the
statement of Rani (PW-18) Exhibit PW-10/1 was purportedly recorded
on 29th March, 2007 at 2.30 A.M. and, thereafter, DD entry No. 4A
was recorded at 2.45 A.M. and FIR No. 213/2007 under Section
308/34 IPC was recorded. This is the first statement which was made
by PW-18 about the occurrence. In the said statement Exhibit PW-
10/1 it is recorded that at 1 A.M. in the night the occurrence had taken
place. Suraj had iron rod in his hand and Badlu and Kanhiya had
caught hold of her husband Maya Ram and Suraj had hit Maya Ram on
his head while Suraj was uttering the words that he would not leave
him.
13. At this stage, we must deal with two contentions raised by the
appellants. It is stated that first Daily Diary Entry 5B (Ex. PW-4/3)
was recorded on 29th March, 2007 at 1.25 A.M. does not mention or
give names of the appellants and their role and refers only to a quarrel.
The said DD entry Exhibit PW-4/3 does not help the case of the
appellants and does not show that the appellants were not involved.
The said DD entry merely records what was communicated and stated
by the person concerned. We also record that this entry was recorded
at 1.25 A.M. whereas Head Constable Ashok Kumar (PW-6) has stated
that he had received a call at 1.10 A.M. regarding a quarrel and had
CRL.A. No. 22/2009 Page 9 of 34
reached the jhuggi at 1.15 A.M. and found a person lying on the road.
The said person was bleeding from his head and had already vomitted.
One-two other ladies were also present. DD Entry 5B (Ex.PW4/3)
does not mention that the appellants were not involved in the
occurrence. It is a short message which gives incomplete but some
information. Another submission made was that PW-18, in her court
deposition, has stated that her statement was recorded at the spot and
was not recorded in the hospital and she had gone to the hospital at 4
A.M. PW-18‟s actual deposition in cross-examination is that her
neighbour Shyam Sunder called the police by dialing No. 100 and her
husband was removed to the hospital and simultaneously her statement
Exhibit PW-10/1 was recorded by the police which she signed at point
„A‟ and put her thumb impression at point „A1‟. She has averred that
she had gone to the hospital at 4 A.M. PW-18 is a rustic and illetrate
witness who could barely sign. Her deposition in court was recorded
on 30th August, 2007. The slight variation and discrepancy in the
statement does not compel us to disbelieve and disregard the entire
notings made on the rukka and DD entry No. 4A dated 29th March,
2007 which was recorded at 2.45 A.M. at the police station.
Immediately after the occurrence, Maya Ram the deceased was taken
to the hospital. Action was taking place at a very fast pace with the
police coming to the spot, the deceased being taken to the hospital etc.
CRL.A. No. 22/2009 Page 10 of 34
Some discrepancy and difference in narration of facts is plausible and
expected. This does not affect the credibility of the statements made
by the witnesses.
14. This brings us to the two contentious issues. Firstly, whether
Suraj alone is guilty or the appellants Kanhiya and Badlu also shared
the common intention under Section 34 IPC. The second aspect is
whether the three appellants have been rightly convicted under Section
302 IPC or a lessor offence is made out.
15. We have partly dealt with the first question in the earlier part of
this judgment and noticed the facts and certain
discrepancies/differences in the statement of PW-14 and the version
given by PW-15, 17 and 18. We have accepted the position that Badlu
and Kanhiya were present at the spot and Suraj had come to the jhuggi
of Maya Ram with a saria in his hand. The time of occurrence is 1.00
A.M. at night. It is apparent that three appellants were agitated and
there was a history or a cause which compelled them to come out, one
hour past midnight. Suraj was youngest in the family and was studying
in class 12. (It is not disputed before us that on the date of the
occurrence Suraj was more than 18 years of age). The three appellants
had come to the house (jhuggi) of Maya Ram and the place of
occurrence as shown in site plans (Exhibit PW-5/1 and PW8/7) shows
that the occurrence had taken place small distance outside the jhuggi of
CRL.A. No. 22/2009 Page 11 of 34
Maya Ram. The three of them had come after midnight with Suraj
who had saria with him. There is evidence to show that women
members of the family of Badlu had also reached the spot. The post-
mortem report Exhibit PW-16/A records that there were abrasions in
right arm and elbow and there was a bruise over the right wrist on the
body of the deceased Maya Ram. These two injuries are in addition to
the injury on the head. In these circumstances, we are inclined to
accept the prosecution version that the appellant Kanhiya and Badlu
shared the common intention under Section 34 when they reached the
spot and these abrasions and bruises on the deceased‟s elbow and the
wrist establish that there was some physical violence, in addition to the
injury which was given by the iron rod/saria. This corroborates with
the ocular testimony of PW-15, 17 and 18 (On applicability and law
relating to Section 34 IPC see judgment of R.P. Sethi, J. In Suresh v.
State of U.P., (2001) 3 SCC 673).
16. Learned counsel for the appellants have submitted that in the
statements under Section 313 Cr.P.C. no specific questions were put to
appellants Kanhiya and Badlu with reference to evidence of common
intention under Section 34 IPC. We find that this contention is not
correct as question No. 1 put to Kanhiya and Badlu refers to common
intention and the fact that they, in the furtherance of common intention,
along with Suraj, who was armed with iron rod, had gone to the
CRL.A. No. 22/2009 Page 12 of 34
residence/jhuggi of Maya Ram at 1 A.M. on 29th March, 2007.
Testimonies of PW-15, 17 and 18 that the appellant Kanhiya and Badlu
had caught hold of Maya Ram was not specifically put but we feel this
is a mere irregularity and no prejudice has been caused to the said
appellants, which justifies a acquittal for the said reason. Appellants
Kanahiya and Badlu were aware that they were being tried on the basis
of common intention. The witnesses were cross-examined on the said
basis. We have already referred to their explanations in the statement
under Section 313 Cr.P.C. In Alister Anthony Pareira v. State of
Maharashtra, (2012) 2 SCC 648 it was observed that:
"58. The words of P.B. Gajendragadkar, J. (as he
then was) in Jai Dev v. State of Punjab [AIR 1963 SC
612 : (1963) 1 Cri LJ 495] speaking for the three-
Judge Bench with reference to Section 342 of the
1898 Code (corresponding to Section 313 of the 1973
Code) may be usefully quoted: (AIR p. 620, para 21)
"21. ... The ultimate test in determining whether
or not the accused has been fairly examined under
Section 342 would be to enquire whether, having
regard to all the questions put to him, he did get an
opportunity to say what he wanted to say in respect of
prosecution case against him. If it appears that the
examination of the accused person was defective and
thereby a prejudice has been caused to him, that
would no doubt be a serious infirmity."
59. In Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri)
1033] a three-Judge Bench of this Court stated: (SCC
p. 806, para 16)
"16. ... It is trite law, nevertheless fundamental,
that the prisoner's attention should be drawn to every
CRL.A. No. 22/2009 Page 13 of 34
inculpatory material so as to enable him to explain it.
This is the basic fairness of a criminal trial and
failures in this area may gravely imperil the validity
of the trial itself, if consequential miscarriage of
justice has flowed. However, where such an omission
has occurred it does not ipso facto vitiate the
proceedings and prejudice occasioned by such defect
must be established by the accused. In the event of
evidentiary material not being put to the accused, the
court must ordinarily eschew such material from
consideration. It is also open to the appellate court to
call upon the counsel for the accused to show what
explanation the accused has as regards the
circumstances established against him but not put to
him and if the accused is unable to offer the appellate
court any plausible or reasonable explanation of such
circumstances, the court may assume that no
acceptable answer exists and that even if the accused
had been questioned at the proper time in the trial
court he would not have been able to furnish any
good ground to get out of the circumstances on which
the trial court had relied for its conviction."
60. The above decisions have been referred
in Asraf Ali v. State of Assam [(2008) 16 SCC 328 :
(2010) 4 SCC (Cri) 278] . The Court stated: (SCC pp.
334 & 336, paras 21-22 & 24)
"21. Section 313 of the Code casts a duty on the
court to put in an enquiry or trial questions to the
accused for the purpose of enabling him to explain
any of the circumstances appearing in the evidence
against him. It follows as a necessary corollary
therefrom that each material circumstance appearing
in the evidence against the accused is required to be
put to him specifically, distinctly and separately and
failure to do so amounts to a serious irregularity
vitiating trial, if it is shown that the accused was
prejudiced.
22. The object of Section 313 of the Code is to
establish a direct dialogue between the court and the
accused. If a point in the evidence is important
against the accused, and the conviction is intended to
be based upon it, it is right and proper that the
CRL.A. No. 22/2009 Page 14 of 34
accused should be questioned about the matter and be
given an opportunity of explaining it. Where no
specific question has been put by the trial court on an
inculpatory material in the prosecution evidence, it
would vitiate the trial. Of course, all these are subject
to the rider whether they have caused miscarriage of
justice or prejudice. ...
***
24. In certain cases when there is perfunctory
examination under Section 313 of the Code, the
matter is remanded to the trial court, with a direction
to retry from the stage at which the prosecution was
closed."
61. From the above, the legal position appears to
be this: the accused must be apprised of incriminating
evidence and materials brought in by the prosecution
against him to enable him to explain and respond to
such evidence and material. Failure in not drawing the
attention of the accused to the incriminating evidence
and inculpatory materials brought in by the
prosecution specifically, distinctly and separately may
not by itself render the trial against the accused void
and bad in law; firstly, if having regard to all the
questions put to him, he was afforded an opportunity
to explain what he wanted to say in respect of the
prosecution case against him and secondly, such
omission has not caused prejudice to him resulting in
failure of justice. The burden is on the accused to
establish that by not apprising him of the
incriminating evidence and the inculpatory materials
that had come in the prosecution evidence against
him, a prejudice has been caused resulting in
miscarriage of justice.
17. The next question is whether appellant-Suraj has been rightly
convicted under Section 302 IPC or he should have been convicted
under Section 304 Part-I or Part-II IPC. This question also relates to
conviction of appellants Kanhiya and Badlu for offence under Section
302 read with Section 34 IPC.
18. Maya Ram was admitted to the hospital in coma on 29 th March,
2007 at 1.45 A.M. He succumbed and died while in coma on 4 th April,
2007 at 1.00 A.M., i.e., after nearly six days. As per the post-mortem
report (Exhibit PW-16/A), the deceased had an incised wound on the
occipital region of 1 x .5 x .5 cm. He also had an abrasion on the
zygomatic region. The contention of the Learned Additional Public
Prosecutor is that in view of the injury caused on the vital part of the
body i.e. the head, conviction under Section 302 IPC is justified and
correct. She has relied upon decisions of the Supreme Court in Gudar
Dusadh Vs. State of Bihar, AIR 1972 SC 952, Ramesh Singh @ Photti
Vs. State of A.P. (2004) 11 SCC 305 and Israr Vs. State of U.P., AIR
2005 SC 249. Her contention is that even in cases of single injury on
the vital part of the body conviction under Section 302 IPC is
sustainable. Per contra, learned counsel for the appellant submitted
that at best and as per the case of the prosecution, clause III of Section
300 IPC is being applied but the prosecution evidence does not satisfy
the objective requirement of the said clause that the injury caused was
sufficient to cause death in ordinary course of nature. It is stated that
the injury was not sufficient in ordinary course of nature to cause
death. There is no such deposition or statement to the said effect by the
doctors, who had examined the deceased or had conducted the post
mortem. It is submitted that the present case would not be, therefore
covered by clause III to Section 300 IPC. Secondly, and in alternative
reliance is placed on Exception IV to Section 300 IPC.
19. In Virsa Singh Vs. State of Punjab, AIR 1958 SC 465 the
Supreme Court examined the difference between clause III of Section
300 and Section 304 IPC. The Supreme Court expounded upon the
requisites of clause (3), Sections 300, 302 and 304, Part-I IPC. It was
observed as under:-
"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. Similarly, in State of U.P. v. Virendra Prasad (2004) 9 SCC 37,
the distinction between the two sections was elucidated and tabulated
as under:-
"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 299 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."
21. In Virsa Singh (supra) the Supreme Court had expounded that it
is not the number of injuries which matters but the test to be applied is
whether the offence falls under Section 302 or Section 304, Part-I IPC.
It was elucidated and explained:-
"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."
The aforesaid paragraphs show that the question whether Section
302 or Section 304, Part-I IPC is applicable requires determination of
two aspects. Firstly, whether the injury caused was injury intended
and, secondly, whether the injury suffered, when examined objectively,
can be categorized as sufficient in ordinary course of nature to cause
death or was likely to cause death. The injuries of the first type are far
more serious as compared to the second type of injuries. Thus, we
have to examine whether the wound/injury was serious, if so, how
serious. It is in this context that we should examine the judgments,
which have been relied upon by the State. In Gudar Dusadh (supra),
the Supreme Court had observed that clause III of Section 300 IPC was
applicable as it was a case of pre-meditated and not an accidental
attack and the injuries inflicted in ordinary course of nature were
sufficient to cause death. The injuries in the said case had been caused
by a Lathi hit on the head but it was observed that it would not mitigate
the offence and convert it into culpable homicide not amounting to
murder. The Supreme Court, in fact, had relied upon the evidence of
the doctor, who had conducted the post mortem and opined that the
injuries caused were sufficient in ordinary course of nature to cause
death and had actually resulted in death. Reliance placed by the
accused on Exception IV to Section 300 IPC in the said case was
rejected.
22. In the present case, the death certificate (Ex.PW12/B) records
that Maya Ram had died on 4th April, 2007 at 1.00 a.m. after he had
suffered cardiac arrest due to head injury. Duration of disease (sic.
Illness) was stated to be 7 days. Thus, the death certificate specifically
records that the immediate cause of death was cardiac arrest. The post
mortem report (Ex.PW16/A), on the other hand, records the cause of
death was Coma as a result of head injury subsequent to blunt force
impact. There is, therefore, some difference in the post mortem report
(Ex.PW16/A) and death certificate (Ex.PW12/B). The post mortem
report does not refer to the fact that the death certificate mentions that
the cause of death was cardiac arrest. The aforesaid discrepancy and
difference goes to the benefit of the appellant. Counsel for the
appellants have highlighted and in our opinion rightly that the post
mortem report does not specifically state that the injury caused was
sufficient in ordinary course of nature to cause death. This omission, it
is urged, is a clear indicator that the injury in question was not as
serious and did not fall in clause III to Section 300 IPC. The said lapse
becomes relevant in the facts of the present case in view of the long
hospitalization, different versions on the immediate cause of death etc.
We notice that Dr Brijesh Singh (PW-1), CMO, Sanjay Gandhi
Memorial Hospital, who had examined Maya Ram on 29 th March,
2007 at 1.45 a.m. has not stated that the injuries were sufficient in
ordinary course of nature to cause death. He has stated that he had
called a surgeon for management. Dr. Brijesh Kumar Yadav (PW-2)
on 29th March, 2007, had examined and treated Maya Ram when he
was admitted to Sanjay Gandhi Memorial Hospital. He has stated that
he had medically examined the patient and noted pulse rate, blood
pressure, respiratory rate etc. The wound was stitched under local
anesthesia and the patient was referred to Shushrut Trauma Centre for
neuro surgical opinion. He has also not deposed that the injuries
suffered were sufficient in ordinary course of nature to cause death.
Dr. Manoj Dhingra (PW-16) has conducted the post mortem on the
body of Maya Ram. In his testimony he has deposed that the death
was caused due to Coma as a result of head injury subsequent to blunt
force impact. He opined that the injury in question could have been
caused by the Saria (iron rod) produced before him or by any other
similar weapon. Size of the Saria (iron rod) was 83.82 cm (33.5
inches) and it was having a diameter of 1 cm. He has also not deposed
whether the injuries in question were sufficient in ordinary course of
nature to cause death.
23. In State of Rajasthan Vs. Shera Ram, (2012) 1 SCC 602, the
Supreme Court referred to the following paragraphs of an earlier
decision in the case of Ram Jattan Vs. State of U.P., 1995 SCC (Cri)
169:-
"4. The learned counsel, however, further
submitted that in any event the offence committed
by the members of unlawful assembly cannot be
held to be one of murder and therefore the
common object of unlawful assembly was not one
which attracts the provision of Section 302 read
with Section 149 IPC. We find considerable force
in this submission. Though, in general, right from
the first report onwards the prosecution case is that
all the 12 accused armed with sharp-edged
weapons and lathis surrounded the three persons
and inflicted the injuries but from the doctor's
report we find that no injury was caused on the
vital organs. So far as Patroo is concerned, who
got the report written by PW 7 and gave it in the
police station, we find 13 injuries but all of them
were abrasions and lacerated injuries on the legs
and hands. The doctor opined that all the injuries
were simple. On Balli, PW 8, the doctor found 12
injuries and they were also on arms and legs. There
was only one punctured wound, injury No. 8 and it
was not a serious injury and it was also a simple
injury. Now, coming to the injuries on the
deceased, the doctor who first examined him,
when he was alive, found 11 injuries. Out of them,
injuries Nos. 1 and 2 were punctured wounds.
Injury No. 5 was an incised wound and injury No.
6 was a penetrating wound. All these injuries were
on the upper part of the right forearm and outer
and lower part of right upper arm. The remaining
injuries were abrasions and contusions. The doctor
opined that except injuries Nos. 7 and 9 all other
injuries were simple. He did not say whether
injuries Nos. 7 and 9 were grievous but simply
stated that they were to be kept under observation.
The deceased, however, died the next day i.e. 9-4-
1974 and the post-mortem was conducted on the
same day. In the post-mortem examination 11
external injuries were noted but on the internal
examination the doctor did not find any injury to
the vital organs. He, however, noted that 8th and
9th ribs were fractured. Now, coming to the cause
of death, he opined that death was due to shock
and haemorrhage. It is not noted that any of the
injuries was sufficient to cause death in the
ordinary course of nature. It could thus be seen that
neither clause 1stly nor clause 3rdly of Section 300
are attracted to the facts of this case. This
contention was also put forward before the High
Court but the learned Judges rejected this
contention observing that the fracture of 8th and
9th ribs must have resulted in causing death and
therefore these injuries must be held to be
sufficient in the ordinary course of nature to cause
death. We are unable to agree with this reasoning.
In the absence of proof by the prosecution in an
objective manner that the injuries caused were
sufficient in the ordinary course of nature to cause
death, the same cannot be interfered with unless
the injuries are so patent. As we have noted above
except fracture of ribs there was no other injury to
any of the vital organs. As a matter of fact
internally the doctor did not notice any damage
either to the heart or lungs. Even in respect of
these two injuries resulting in fracture of the ribs,
there were no corresponding external injuries.
Again as already noted all the injuries were on the
non-vital parts of the body. The learned counsel
for the State, however, submitted that a forceful
blow dealt on the arm might have in turn caused
the fracture of the two ribs. Even assuming for a
moment it to be so, it is difficult to hold that from
that circumstance alone the common object of the
unlawful assembly of 12 persons to cause the death
of the deceased is established.
5. The common object has to be gathered
or inferred from the various circumstances like
nature of the weapons, the force used and the
injuries that are caused. After carefully going
through the medical evidence we find that it is
difficult to conclude that the common object was to
cause the death. The injuries on Patroo, PW 8 as
well as on the deceased were more or less of the
same nature except that in the case of deceased,
there were few punctured wounds which were not
serious but only simple. He died due to shock and
haemorrhage the next day. In any event there is no
indication anywhere in the evidence of the doctor or
in the post-mortem certificate that any of the
injuries was sufficient in the ordinary course of
nature to cause death. No doubt in his deposition
the doctor, PW 4 has stated in the general way that
these injuries were sufficient to cause death in the
ordinary course of nature. We have already held
that there was no external injury which resulted in
the fracture of the ribs. In such an event clause
3rdly of Section 300 IPC is not attracted. Likewise
clause 1stly of Section 300 IPC is also not attracted
i.e. intentionally causing death. If their intention
was to cause death, they would have used the lethal
weapons in a different way and would not have
merely inflicted simple injuries on the non-vital
parts like legs and hands."
24. The Supreme Court then referred to the testimony of the doctor
in the Shera's case, who had nowhere stated that the injuries caused
were sufficient in ordinary course of nature to cause death. It was
recorded that the post mortem report was silent on the said aspect and
no other piece of evidence had been led by the prosecution. The
Supreme Court accepted the position that the case would not fall under
Section 302/295/449 IPC observing that this was not an absolute
proposition of law, but decision in each case depends upon the facts
and circumstances of the individual case. However, after examining
the post mortem report and statement of witnesses it was observed that
it could not be said that the injuries were such that they would have
certainly resulted in death of the victim. It was also observed that this
was a matter of expert evidence. Accordingly, it was held in Shera's
case as under:-
" 34. In the present case also, there is no
documentary or oral evidence to prove the fact that
the injuries caused by the respondent to the deceased
were sufficient in the ordinary course of nature to
cause death. This, however, cannot be stated as an
absolute proposition of law and the question whether
the particular injury was sufficient in the ordinary
course of nature to cause death or not is a question of
fact which will have to be determined in light of the
facts, circumstances and evidence produced in a
given case. (Ref. Halsbury's Laws of India, 5(2),
Criminal Law II.)
35. There could be cases where injuries caused
upon the body of the deceased per se can irresistibly
lead to the conclusion that the injuries were sufficient
to cause death in the ordinary course of nature, while
there may be other cases where it is required to be
proved by documentary and oral evidence.
Resultantly, it will always depend on the facts of
each case. Thus, in such cases, it may neither be
permissible nor possible to state any absolute
principle of law universally applicable to all such
cases."
25. Earlier in Laxman Kalu Nikalje Vs. State of Maharashtra, AIR
1968 SC 1390, it was expounded:-
" 11. That section requires that the bodily
injury must be intended and the bodily injury
intended to be caused must be sufficient in the
ordinary course of nature to cause death. This
clause is in two parts; the first part is a subjective
one which indicates that the injury must be an
intentional one and not an accidental one; the
second part is objective in that looking at the injury
intended to be caused, the court must be satisfied
that it was sufficient in the ordinary course of
nature to cause death. We think that the first part is
complied with, because the injury which was
intended to be caused was the one which was found
on the person of Ramrao. But the second part in our
opinion is not fulfilled, because but for the fact that
the injury caused the severing of artery, death might
not have ensued. In other words, looking at the
matter objectively, the injury which Laxman
intended to cause did not include specifically the
cutting of the artery but to wound Ramrao in the
neighbourhood of the clavicle. Therefore, we are of
opinion that the thirdly of Section 300 does not
cover the case. Inasmuch as death has been caused,
the matter must still come within at least culpable
homicide not amounting to murder. There again,
Section 299 is in three parts. The first part takes in
the doing of an act with the intention of causing
death. As we have shown above, Laxman did not
intend causing death and the first part of Section
299 does not apply. The second part deals with the
intention of causing such bodily injury as is likely
to cause death. Here again, the intention must be to
cause the precise injury likely to cause death and
that also, as we have shown above, was not the
intention of Laxman. The matter therefore comes
within the third part. The act which was done was
done with the knowledge that Laxman was likely
by such act to cause the death of Ramrao. The case
falls within the third part of Section 299 and will be
punishable under the second part of Section 304 of
the Indian Penal Code as culpable homicide not
amounting to murder. We accordingly alter the
conviction of Laxman from Section 302 to Section
304 of the Indian Penal Code and in lieu of the
sentence of imprisonment for life imposed on him,
we impose a sentence of rigorous imprisonment for
7 years. With this modification, the appeal shall
stand dismissed."
In the said case injury was suffered on the chest and in the case
of Shera Ram (supra) injury was suffered by the victim on the head.
26. In Willie William (Slaney) Vs. State of M.P., AIR 1956 SC 116,
Bose, J. has opined:-
" 66. Where there is a charge against an accused
under Section 302, read with Section 149, if Section
149 of the Indian Penal Code is inapplicable to the
facts, can the accused be convicted under Section 302
without a separate charge? In the first case, it was held
that the omission to have a specific charge under
Section 302 amounted to an illegality. In the latter
case, the view was taken that it was a mere
irregularity, curable if no prejudice was caused to the
accused.
68. This conflict does not arise in the case before
us where the offence charged against two brothers,
William and Ronnie for the murder of Donald was
under Section 302, read with Section 34 of the Indian
Penal Code. Ronnie was acquitted. But William was
found guilty and sentenced to transportation for life.
As pointed out by Lord Sumner in his classic
judgment in Barendra Kumar Ghosh v. King-
Emperor [ (1924) LR 52 IA 40] , there is much
difference in the scope and applicability of Sections
34 and 149, though they have some resemblance and
are to some extent overlapping. The two sections are
again compared and contrasted in Karnail
Singh v. State of Punjab [ (1954) SCR 904, 911] .
Section 34 does not by itself create any offence,
whereas it has been held that Section 149 does. In a
charge under Section 34, there is active participation
in the commission of the criminal act; under Section
149, the liability arises by reason of the membership
of the unlawful assembly with a common object, and
there may be no active participation at all in the
perpetration or commission of the crime. The
overlapping arises in those cases where two or more
persons commit a murder in furtherance of the
common intention, but it is not possible to say which
of them was responsible for the fatal injury, or
whether any one injury by itself was responsible for
the death. There may also be a case where it is known
that out of the assailants one in particular was
responsible for the fatal injury and the others are
sought to be made liable for the result owing to the
common intention involved. But whereas in this case,
the appellant has been individually charged with
murder and there is proof that his hand caused the
injury, the fact that his brother was also sought to be
made liable owing to the existence of a common
intention, is neither here nor there, so far as the
legality of the conviction is concerned, as there has
been no prejudice by way of failure of justice.
69. It is, however, necessary having regard to the
lengthy arguments addressed to us, to consider the
main question arising on the reference. Though the
two cases which gave rise to this reference were cases
relating to Section 149 of the Indian Penal Code and
not to Section 34 of the Indian Penal Code, as the
present case is, the order of reference was occasioned
by the fact that in Nanak Chand case [ (1955) 1 SCR
1201] it was stated specifically that the parallel case
under Section 34 also stood on the same footing. In
our attempt to resolve the conflict, we covered a wide
area of sections and decisions. A detailed discussion
of all the decisions cited at the Bar is not of much use
as it is not possible to gather from a study of those
cases anything very decisive by way of any guiding
principle. But a few of them, more important than the
rest, must be noticed."
The said judgment also records that all blows on the head do not
necessarily cause death and another factor noticed was that the
deceased after the injuries had lived for 10 days.
27. A Division Bench of the Delhi High Court in Dewan Chand &
Another Vs. State, 1984, Crl.L.J. 1045 had occasion to observe:-
(9) There is no reason to disbelieve Pw 3, Pw 7 and
Pw 9. Statement of Daulat Ram was recorded and on the
basis of the same, first information report was recorded
with promptness. However, the case against Gopal is not
free from doubt. Daulat Ram in his statement merely
stated that Gopal had conspired with Dewan Chand . No
overt act showing his common intention was alleged.
During evidence, however, some improvement had been
made and it has been stated by Pw 3, Pw 7 and Pw 9 that
he caught hold of Dwarka Prasad and exhorted Dewan
by saying "Maro Sale Ko". In view of the fact that the
aforesaid was not mentioned in the statement of Daulat
Ram casts doubt about the making of the exhortation
and catching hold of Dwarka by Gopal. So that there
should be a common intention there must be meeting of
minds to commit a particular offence. There should be
some pre-arranged plan even though the said plan is
formed all of a sudden or at the spur of the moment.
Existence of such pre-arranged plan does not stand
established and, Therefore, it cannot be said that the
injury to Dwarka Parshad was caused in furtherance of
common intention of the appellants. That being so,
Gopal must be given benefit of doubt. 11. Then we are
confronted with the question as to what offence was
committed by Dewan Chand , appellant. Definition of
murder is given in Section 300 IPC. The first clause of
that definition says that culpable homicide is murder if
the act by which the death is caused is done with the
intention of causing death. In the present case there is no
circumstance leading to the conclusion that Dewan
Chand wanted to cause the death of Dwarka Parshad. It
is only clause 3rdly which can have the possibility of
application and that clause reads that culpable homicide
is murder 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.
In the present case, cutting of femoral artery was
sufficient in the ordinary course to have caused death
but it cannot be said that the appellant Dewan Chand
had the intention to inflict the particular injury of cutting
of femoral artery. He only inflicted knife blow on thigh
which is not vital part and it was only co-incidence that
the aforesaid artery was cut. In a similar case in Paramjit
Singh and another v. The State: 23(1983)DLT338 , we
held that the offence committed was one punishable
under second part of Section 304 IPC.
(10) We, Therefore, accept the appeal of Gopal, give
him benefit of doubt, set aside the conviction and
sentence and acquit him. The conviction of
appellant Dewan Chand is altered from 302 Ipc to the
second part of Section 304 IPC.
(11) The appellant Dewan Chand was aged little more
than 16 years at the time of the commission of the
offence. According to Section 6(1) of the Probation of
Offenders Act, 1958, when a person under 21 years of
age is found guilty of having committed an offence
punishable with imprisonment but not with
imprisonment for life, he shall be given the benefit of
being released on probation of good conduct unless the
court, for reasons to be recorded, is of the opinion that
course should not be adopted. For the purpose of
forming the opinion, as Sub-section (2) of Section 6 of
the said Act says, it is necessary to call for the report of
the probation officer. Therefore, the report of the
probation officer should be obtained within ten days and
the matter of either releasing Dewan Chand on
probation of good conduct or sending him to
imprisonment will be considered on May 26, 1983."
28. In view of the aforesaid position, we are inclined to give benefit
of doubt to the three appellants and their conviction under Section 302
IPC is modified to Section 304, Part-I IPC. As already held above, all
the appellants are equally guilty as they had shared common intention
as mandated under Section 34 IPC.
29. The last question pertains to the quantum of sentence, which
should be awarded to the appellants. Appellants Kanahiya and Badlu
had already suffered incarceration of about 4 years and 5 years,
respectively. Their sentences were suspended after filing of the present
appeal vide orders dated 30th March, 2011 and 22nd February, 2012.
Keeping in view the role attributed to them, we are inclined to sentence
them to the period already undergone. As far as appellant Suraj is
concerned, it is pointed out that at the time of occurrence, he was
studying in class-XII and had just attained the age of 18 years. It is
stated that Suraj has already suffered incarceration of about six years
and two months. He is sentenced to Rigorous Imprisonment for a
period of 7 years and fine of Rs.15,000/-. In default of payment of fine,
he shall undergo simple imprisonment of 4 months. Fine, if collected,
will be paid to the legal heirs of Maya Ram.
30. The appeals are accordingly disposed of.
SANJIV KHANNA, J.
VED PRAKASH VAISH, J.
MAY 16, 2013
VKR/NA
