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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.532-533 OF 2013
(Arising out of S.L.P. (Crl.) Nos. 5099-5100 of 2012)
Khachar Dipu @ Dilipbhai Nakubhai .. Appellant
Versus
State of Gujarat ... Respondent
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. In these appeals, the appellant, original accused No.
1, has called in question the legal propriety of the
judgment of conviction and order of sentence passed
by the High Court of Gujarat in Criminal Appeal No.
950 of 2009 whereby the
Division Bench has allowed
the appeal of the State and converted the conviction
under Section 304 Part-I of the Indian Penal Code (for
short ‘IPC’) recorded by the learned trial Judge to that
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of an offence punishable under Section 302 of IPC
and sentenced him to undergo life imprisonment and
further the defensibility of the decision of dismissal of
Criminal Appeal No. 1075 of 2009 wherein the
appellant had assailed the judgment and conviction
and order of sentence dated 5.3.2009 passed by the
learned Additional Sessions Judge, Bhavnagar in
Sessions case No. 166 of 1998.
3. The factual score which led to the trial of the
appellant along with two others is that three days
prior to the date of occurrence, i.e., 21.5.1998,
accused Nos. 1 and 2, namely, Khachar Dipu alias
Dilipbhai Nakubhai and Vahtubhai Nakubhai, had a
dispute regarding dumping of manure with the
brother of the complainant and there were
altercations which led to an inimical relationship
between the parties.
On the date of occurrence,
when the deceased Shambhubhai, the brother of the
complainant, was going to his field by cycle about
9.00 p.m. on 20.05.1998, the accused No. 1, with the
intention of extinguishing the life spark of the
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deceased, dashed the motor vehicle No. GJ-7-U-2385
from behind and when the deceased was thrown off
from his cycle, the accused No. 1 tied him behind the
motor vehicle and dragged him about 10 kilometers
and threw the dead body on the Gadhada Road and
destroyed the evidence.
The other two accused
persons abetted with the common intention to assist
accused No. 1.
On an FIR being lodged, the criminal
law was set in motion and after investigation, the
accused persons were arrested and, eventually, a
charge sheet for offences under Sections 302/201
read with Section 34 of the IPC was laid before the
learned Magistrate who, in turn, committed the
matter to the Court of Session. The accused persons
denied the charges and claimed to be tried.
4. The prosecution, in order to establish its case,
examined 24 witnesses and exhibited 31 documents.
The defence chose not to adduce any evidence.
5. The learned Sessions Judge, on analysis of the
evidence, came to hold that the accused No. 1 was
guilty of the offence punishable under Section 304
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Part-I of IPC and, accordingly, sentenced him to
undergo rigorous imprisonment for a period of five
years and to pay a fine of Rs.500/- and, in default, to
suffer further simple imprisonment of one month. As
far as the other accused persons are concerned, they
stood acquitted of the charges.
6. Being grieved by the aforesaid judgment, the
convicted persons and the State of Gujarat preferred
Criminal Appeal Nos. 950 of 2009 and 1075 of 2009
respectively. The High Court took note of the earlier
quarrel that had taken place between the parties, the
injuries on the dead body, the evidence of the
prosecution witnesses, the material brought on
record relating to the incident, and accepting the fact
that the motor vehicle had dashed against the cycle
ridden by the deceased and further analyzing the
reasoning ascribed by the learned trial Judge, opined
that the learned Sessions Judge had flawed in
recording the conviction under Section 304 Part-I of
IPC and not under Section 302 of IPC. The High Court
opined that it was not a case of accident inasmuch as
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the injuries on the whole body had effectively
crushed the entire body and it could not have
happened if the motor vehicle had only dashed
against cycle from behind. The High Court further
opined that had it been a case of negligence in
driving, the accused would not have lifted the body
of the deceased after dashing his vehicle against the
cycle of the deceased. The Division Bench further
proceeded to state that the muscle tissues found
from the bumper of the motor vehicle coupled with
the condition of the body of the deceased and the
fact that it was left on the road with the motor
vehicle at a distance of about 10 to 15 kms away
from where it had dashed gave credence to the
prosecution version that it was not a case of mere
dashing of the motor vehicle with the cycle and the
findings of the learned Sessions Judge pertaining to
absence of pre-meditation to cause death was totally
against normal prudence, and therefore, the findings
recorded by the learned Sessions Judge were
perverse and the intention to cause death was
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proved by material evidence, oral as well as
documentary. Considering the totality of facts and
circumstances, the Division Bench concluded that the
learned Sessions Judge was in error in holding that A-
1 was guilty of offence under Section 304 Part-I of IPC
and not under Section 302 of IPC.
7. Be it noted, the High Court chose not to interfere with
the acquittal of the accused A-2 and A-3 as the
allegations were not established and, accordingly,
allowed the appeal preferred by the State in part. As
far as the appeal preferred by the accused-appellant
A-1 is concerned, it was dismissed.
8. We have heard Mr. Harshit S. Tolia, learned counsel
for the appellant, and Ms. Jesal, learned counsel for
the respondent in both the appeals.
9. The issues that arise for consideration in these
appeals are whether the accused-appellant is entitled
to a judgment of complete acquittal or the conviction
and sentence as recorded by the learned trial Judge
is absolutely justified in the obtaining factual matrix
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which did not warrant interference by the High Court
while entertaining the appeal by the State by
converting the conviction under Section 304 Part-I of
the IPC to Section 302 of the IPC and sentencing
thereunder. To appreciate the said issues, it is
necessary to refer to the post mortem report which
would show the injuries on the deceased. On a
perusal of the same, it appears that there were
injuries on the vital parts of the body, the face was
crushed and further there were marks of dragging
which were found on the upper part of the body and
on the back, and the private part was crushed. The
High Court, in its judgment, has enumerated the
injuries in seriatim which we reproduce: -
“1. Destruction of brain and skull.
2. Destruction of face and its bone
(crushing)
3. Crushing of all ribs on Rt. Side and some
ribs on left side.
4. CLW over left leg just below knee, above
ankle joint.
5. Abrasion all over front part of chest,
abdomen, leg and hand, liner mark with
contaminated of road metal.
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6. Fracture of all ribs with sternum
7. Fracture on Rt. Femur bone at lower
end.
8. Fracture of numerous at it’s upper part.
9. Abrasion over heel of Rt. Leg up to
bone.
10. Abrasion over the finger of both hand.
11. Abrasion on front of abdomen at lateral
side and back of abdomen. All part.
12. Abrasion all over thoracial part back
side.
13. Abrasion over knee joint and middle side
of Rt. Leg upto muscle deep.
14. The skull was fractured and crushed and
the portion of brain was hanging out. It
was also crushed. The road metal was
also found therefrom. Lungs, heart,
brain, all vital parts were crushed.
10. Dr. Kanjibhai, PW-16, who conducted the autopsy on
the dead body, has opined that the injuries were
possible in vehicular accident or if the vehicle is run
over the body. He has deposed that even after
death, if the body was dragged or the vehicle runs
over the body, the injuries could have been caused.
The cross-examination was focused to elicit from this
witness about the absence of marks on the wrist part
of the deceased to demolish the version of the
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prosecution to the extent that the deceased was tied
behind the vehicle and was dragged on the road. In
fact, the said witness has categorically stated that
there were marks of dragging on the body of the
deceased. PW-15, Kishorebhai Chhaganal Naina,
Scientific Officer, has deposed that on the rear part
of the bumper of the vehicle, there were skin pieces
stuck and blood masses were seen. On an
examination of the cycle, he has found that the
motor vehicle had collided with the cycle and
thereafter, the orange colour of the front bumper of
the motor vehicle was seen stuck on the back of the
fan. He had taken into custody 7 articles, namely,
two pieces of blood stained tar cotton thread, clothes
of the deceased, skin pieces from the motor vehicle
No. GJ-7-U-2385, cotton thread rubbed on the rear of
the motor vehicle, the blood stained cotton thread, a
coloured iron piece from the front of the motor
vehicle near the bumper, and rear part of the cycle
on which the orange colour of the motor vehicle was
stuck. He had given suggestion for sending the same
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to the Forensic Science laboratory at Junagarh. The
items suggested along with several other items were
sent by the Investigating Officer to the Forensic
Science Laboratory and the said report was exhibited
during the trial as Exhibit-44. It is revealed from the
said report that the skin that was sent for
examination was human skin. As regards the cotton
thread, the report mentioned that blood was found.
The scientific report of FSL confirms that the back
side of the cycle had a colour mark of the front side
of the motor vehicle. Thus, dashing of the cycle by
the motor vehicle in question is established by this
scientific evidence also. We have referred to the
same only to highlight as there is sufficient proof that
after the accident, there was dragging of the
deceased by the vehicle in question. Learned trial
Judge has not accepted the allegation of dragging of
the deceased solely on the basis that no injuries were
caused on the wrist. He has totally ignored the other
evidence collected by the Investigating Officer on the
site, the opinion of the doctor that the injuries were
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caused by the accident and dragging of the body and
the F.S.L. report. In our considered opinion, there is
definite material on record to come to the conclusion
that the body was dragged but it cannot be said with
certainty about the distance. It is worthy to note
that the dead body was found at a distance of 10
kms., but it is not necessary to establish that the
accused had dragged the deceased for about 10 kms.
suffice it to say that there is evidence to establish
that the body was dragged for a considerable
distance. Dr. Kanjibhai, PW-16, who conducted the
post-mortem in his evidence, has categorically stated
that on the body there were marks of dragging which
was on the front part of the body and on the back.
The evidence in this regard has totally gone
unchallenged. The finding of the learned trial Judge
is solely based on the fact that there was no mark
which would indicate that the wrists were tied. It is
useful to note here that the accused had not taken
the plea that there was an accident. On the contrary,
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he has taken the plea of complete denial of the
occurrence.
11. At this juncture, we may scrutinize the oral evidence
on record. Apart from the testimony of Bhimjibhai,
PW-1, there is other evidence on record which can be
taken aid of.
It is noticeable that some of the
witnesses had turned hostile during trial.
The High
Court has referred to the depositions of two
witnesses, namely, Shantibhai Lakhmanbhai, PW-20,
and Gobarbhai Bavubhai, PW-21.
It is well settled in
law that the evidence of the hostile witness can be
relied upon by the prosecution as well as by the
defence.
In Rameshbhai Mohanbhai Koli and
Others v. State of Gujarat1
, the said principle has
been reiterated stating that:-
“16. It is settled legal proposition that the
evidence of a prosecution witness cannot
be rejected in toto merely because the
prosecution chose to treat him as hostile
and cross-examined him. The evidence of
such witnesses cannot be treated as
effaced or washed off the record
altogether but the same can be accepted
to the extent that their version is found to
be dependable on a careful scrutiny
1
(2011) 11 SCC 111
1Page 13
thereof. (Vide Bhagwan Singh v. State of
Haryana2
, Rabindra Kumar Dey v. State of
Orissa3
, Syad Akbar v. State of Karnataka4
and Khujji v. State of M.P.5
)
17. In State of U.P. v. Ramesh Prasad
Misra6
this Court held that evidence of a
hostile witness would not be totally
rejected if spoken in favour of the
prosecution or the accused but required to
be subjected to close scrutiny and that
portion of the evidence which is consistent
with the case of the prosecution or defence
can be relied upon. A similar view has
been reiterated by this Court in Balu
Sonba Shinde v. State of Maharashtra7
,
Gagan Kanojia v. State of Punjab8
, Radha
Mohan Singh v. State of U.P.9
, Sarvesh
Narain Shukla v. Daroga Singh10 and Subbu
Singh v. State11.”
12. On a careful scrutiny of the testimonies of the said
two witnesses, it is seen that both of them have
categorically deposed that the motor vehicle involved
in the accident had dashed against the cycle of the
deceased as a result of which he had fallen down. It
is interesting to note that in cross-examination by the
accused, they have not paved the path of variance in
2
(1976) 1 SCC 389
3
(1976) 4 SCC 233
4
(1980) 1 SCC 30
5
(1991) 3 SCC 627
6
(1996) 10 SCC 360
7
((2002) 7 SCC 543
8
(2006) 13 SCC 516
9
(2006) 2 SCC 450
10 (2007) 13 SCC 360
11 (2009) 6 SCC 462
1Page 14
this regard. In our opinion, their evidence support
the prosecution version that the motor vehicle had
dashed against the cycle. We may note with profit
that one of the witnesses has not identified the
accused in court but the other witness, PW-20,
Shantibhai Lakhmanbhai, has identified. That apart,
as far as the identification of the accused is
concerned, there is ample evidence on record to
support the same.
The singular purpose of referring
to the testimonies of these two witnesses is that the
incident did occur and the accused had dashed the
vehicle against the cycle.
13. From the aforesaid evidence on record, certain
aspects became clear:- namely, (i) on the fateful
night at 9.00 p.m., the deceased was going on a
cycle, (ii) the motor vehicle bearing registration
number No. GJ-7-U-2385 belonging to the accused appellant dashed against the cycle, (iii) number of
injuries were sustained by the deceased, (iv) there
was dragging of the deceased after the accident
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occurred, and (v) the accused was involved in the
commission of the crime.
14. The learned trial Judge had convicted the accused
under Section 304 Part I of IPC as there was no
previous deliberation or pre-meditation on the part of
the accused and there was no evidence that the dead
body was dragged upto 10 kms.
The High Court, as
is noticeable, accepted the prosecution version of
murder, regard being had to the effective crushing of
the body intentionally and dragging of the same to
cause death.
15. One aspect that has to be seen is
whether the High
Court was justified in saying that there was intention.
Such a view has been expressed on the ground that
dashing of the motor vehicle and dragging was with
the intention to inflict such bodily injury that was
sufficient to cause death in the ordinary course of
nature. To put it differently, the High Court has
brought the case under Section 300 “thirdly”.
In this
context, we may refer with profit to the decision in
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Virsa Singh v. State of Punjab12 wherein Vivian
Bose, J., speaking for a three-Judge Bench, laid down
what is required for the prosecution to prove to bring
the case under the said clause. It has been stated
therein that first, it must be established, quite
objectively, that a bodily injury is present; Secondly,
the nature of the injury must be proved and these
are purely objective investigations; 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; and once these three
elements are proved to be present, the enquiry
proceeds further; and 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.
Thereafter, in that case, it has been stated as
follows:-
12 AIR 1958 SC 465
1Page 17
“Once these four elements are established
by the prosecution (and, of course, the
burden is on the prosecution throughout)
the offence is murder under Section 300
“thirdly”. It does not matter that there was
no intention to cause death. It does not
matter that there was no intention even to
cause an injury of a kind that is sufficient
to cause death in the ordinary course of
nature (not that there is any real
distinction between the two). It does not
even matter that there is no knowledge
that an act of that kind will be likely to
cause death. Once the intention to cause
the bodily injury actually found to be
present is proved, the rest of the enquiry is
purely objective and the only question is
whether, as a matter of purely objective
inference, the injury is sufficient in the
ordinary course of nature to cause death.
No one has a licence to run around
inflicting injuries that are sufficient to
cause death in the ordinary course of
nature and claim that they are not guilty of
murder. If they inflict injuries of that kind,
they must face the consequences; and
they can only escape if it can be shown, or
reasonably deduced, that the injury was
accidental or otherwise unintentional.”
16. In State of Andhra Pradesh v. Rayavarapu
Punnayya and Another13
, after referring to the rule
laid down in Virsa Singh’s case (supra) and
Rajwant v. State of kerala14
, the Court proceeded
to enunciate that whenever a court is confronted
with the question whether the offence is ‘murder’ or
13 (1976) 4 SCC 382
14 AIR 1966 SC 1874
1Page 18
‘culpable homicide not amounting to murder’,
on the
facts of a case, it will be convenient for it to
approach the problem in three stages. The question
to be considered at the first stage would be, whether
the accused has done an act by doing which he has
caused the death of another. Proof of such causal
connection between the act of the accused and the
death, leads to the second stage for considering
whether that act of the accused amounts to
“culpable homicide” as defined in Section 299. If the
answer to this question is prima facie found in the
affirmative, the stage for considering the operation
of Section 300, Penal Code, is reached. This is the
stage at which the court should determine whether
the facts proved by the prosecution bring the case
within the ambit of any of the four clauses of the
definition of ‘murder’ contained in Section 300. If the
answer to this question is in the negative the offence
would be ‘culpable homicide not amounting to
murder’, punishable under the first or the second
part of Section 304, depending, respectively, on
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whether the second or the third clause of Section
299 is applicable. If the question is found in the
positive, but the case comes within any of the
exceptions enumerated in Section 300, the offence
would still be ‘culpable homicide not amounting to
murder’, punishable under the first part of Section
304, Penal Code.
17. We may hasten to clarify that in the said case, the
two-Judge Bench observed that the aforestated
principles are only broad guidelines and not cast-iron
imperatives. In most cases, their observance would
facilitate the task of the court. However, adding a
word of caution, it observed that sometimes the facts
are so intertwined and the second and the third
stages so telescoped into each other that it may not
be convenient to give a separate treatment to the
matters involved in the second and third stages.
18. Recently, in Rampal Singh v. State of Uttar
Pradesh15
, after referring to the pronouncements in
Rayavarapu Punnayya (supra), Vineet Kumar
15 (2012) 8 SCC 289
1Page 20
Chauhan v. State of U.P.16, Ajit Singh v. State
of Punjab17
, and Mohinder Pal Jolly v. State of
Punjab18, the Court opined thus: -
“The evidence led by the parties with
reference to all these circumstances
greatly helps the court in coming to a final
conclusion as to under which penal
provision of the Code the accused is liable
to be punished. This can also be decided
from another point of view i.e. by applying
the “principle of exclusion”. This principle
could be applied while taking recourse to a
two-stage process of determination. Firstly,
the Court may record a preliminary finding
if the accused had committed an offence
punishable under the substantive
provisions of Section 302 of the Code, that
is, “culpable homicide amounting to
murder”. Then secondly, it may proceed to
examine if the case fell in any of the
Exceptions detailed in Section 300 of the
Code. This would doubly ensure that the
conclusion arrived at by the court is
correct on facts and sustainable in law. We
are stating such a proposition to indicate
that such a determination would better
serve the ends of criminal justice delivery.”
19. Regard being had to the aforesaid enunciation of law,
it is to be seen whether the opinion expressed by the
High Court is correct and justified. As has been
stated hereinbefore, the High Court has taken note of
16 (2007) 14 SCC 660
17 (2011) 9 SCC 462
18 (1979) 3 SCC 30
2Page 21
the injuries and the conduct of the accused persons
and opined that it is a brutal murder. At this
juncture, it is apt to note that the accused had not
taken the plea that there was an accident because of
bad light or due to the negligence of the deceased.
He has taken the plea of complete denial. Under
these circumstances, the evidence of the son of the
deceased, Himmatbhai Sambhubhai, PW-18, gains
significance. He has deposed that there was a
quarrel between the accused and the deceased
relating to dumping of garbage and his father was
threatened by the accused. The said evidence has
gone unchallenged. Such a quarrel or altercation has
its own triviality but it gets magnified when the
dashing of the vehicle is proven and the nature of
the injuries caused on the deceased is taken note of.
That apart, there is evidence that the body was
dragged. Thus, it can safely be concluded that the
intention to cause bodily injury is actually found to
have been proved and such injuries are sufficient in
the ordinary course of nature to cause death. When
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such injuries are inflicted, it will be travesty of justice
to hold that it was an accident without the intention
to cause death.
20. In view of the aforesaid premised reasons, we do not
find any flaw in the analysis made by the High Court
for reversing the conviction under Section 304 Part I
of IPC recorded by the learned trial Judge to that of
302 of IPC and, accordingly, we concur with the
same. The resultant effect of the same is dismissal
of both the appeals which we direct.
……………………………….J.
[K. S. Radhakrishnan]
……………………………….J.
[Dipak Misra]
New Delhi;
April 04, 2013
2
