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Tuesday, March 25, 2014

Sec.302 - vs- 326 I.P.C. - Absence of charge under sec.34 - five injuries - one say by Farsa on neck and another say by Ballam near the eye victim died - Doctor said due 5 injuries and due to loss of blood victim died - in the absence of a charge under sec.34 - who cause the death of victim not proved - the accused is liable to be convicted under sec. 326 for causing injury but not for death under sec.302 I.P.C. - Apex court sentenced them to undergo rigorous imprisonment for 10 years each and fine of Rs.5,000/- each, in default to suffer imprisonment for six months. = VIJAY SINGH & ANR. …APPELLANTS VERSUS STATE OF MADHYA PRADESH …RESPONDENT = 2014 (March.Part) judis.nic.in/supremecourt/filename=41334

   Sec.302 - vs- 326 I.P.C. - Absence of charge under sec.34 - five injuries - one say by Farsa on neck and another say by Ballam near the eye victim died - Doctor said due 5 injuries and due to loss of blood victim died - in the absence of a charge under sec.34 - who cause the death of victim not proved - the accused is liable to be convicted under sec. 326 for causing injury but not for death under sec.302 I.P.C. - Apex court sentenced them  to undergo rigorous imprisonment for 10 years  each  and  fine  of  Rs.5,000/- each, in default to suffer imprisonment for six months. =

 Nonetheless from the evidence of the  prosecution  witnesses  what  is
proved beyond doubt is that appellant Vijay Singh caused injury on the face
of the deceased by ballam and appellant Hari Singh on neck  by  farsa.   In
this backdrop, we proceed to consider the nature of offence. It is relevant
here to mention that no charge under Section 34 IPC has been framed against
the appellants.  Even if we assume in favour of the State, as contended  by
Mr. Singh, that it is possible to hold the appellants guilty under  Section
302 read with Section 34 of the IPC  in  the  absence  of  charge,  in  our
opinion, for  that  the  prosecution  will  have  to  prove  that  injuries
attributable to the appellants or any of them were the cause of death.   As
observed earlier, the appellants had caused one injury  each,  whereas  the
deceased had sustained five injuries.  According to the doctor,  death  had
occurred on account of shock and excessive bleeding  due  to  the  injuries
caused on the person of the deceased.  Therefore, the death had  not  taken
place as a result of the injuries caused by the appellants or  any  one  of
them.  Hence, they cannot be held guilty under Section 302 IPC  simplicitor
or with the aid of Section 34 IPC.


      However, the prosecution has been able to prove  that  the  appellants
have assaulted the deceased with ballam  and  farsa,  which  are  dangerous
weapons.  Further, the appellants  had  caused  grievous  injuries  on  the
person of the deceased.  Hence, they may not be held guilty  under  Section
302 or 302 read with Section 34 IPC, but surely their acts come within  the
mischief of Section 326  IPC.    Accordingly,  we  modify  the  appellants’
conviction and hold them guilty under Section 326 IPC and sentence them  to
undergo rigorous imprisonment for 10 years  each  and  fine  of  Rs.5,000/-
each, in default to suffer imprisonment for six months.  We have been  told
that both the appellants have already remained in custody for more than the
period of their sentence.  If that be so, they be released forthwith unless
required in any other case.


      In the result, the  appeal  is  partly  allowed,  the  conviction  and
sentence of the appellants under Section 302 IPC is set aside, instead they
are convicted under Section 326 IPC and sentenced to the  period  as  above
with the direction aforesaid.
2014 (March.Part) judis.nic.in/supremecourt/filename=41334
                                                              REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.444 OF 2008


VIJAY SINGH & ANR.                        …APPELLANTS

                                   VERSUS

STATE OF MADHYA PRADESH                     …RESPONDENT

                               J U D G M E N T


CHANDRAMAULI KR. PRASAD,J.


      In the present appeal by way of special leave, we are  concerned  with
appellants Vijay Singh and Hari Singh.


      According to the prosecution, on 16th of  June,  1992  at  about  6.30
A.M., a report was lodged by the informant,  Pohap  Singh  (PW-1),  alleging
that while he  was  at  his  house,  his  father  Bhagirath  (deceased)  was
returning home after answering the  nature’s  call  and  at  that  time,  11
accused persons including appellant no. 2 Hari Singh armed  with  farsa  and
appellant no. 1 Vijay Singh armed with a  ballam  and  other  accused  armed
with axes surrounded him.  Seeing this,  according  to  the  informant,  his
mother Prema Bai (PW-2), his wife Sheela (PW-3)  and  grandfather  Jagannath
(PW-6) went to rescue him, whereupon informant Pohap Singh was assaulted  by
lathi by one of  the  accused.   Meanwhile,  appellant  no.  2,  Hari  Singh
inflicted an injury on the neck of the deceased with  farsa  upon  which  he
fell down.  Thereafter, all the accused  assaulted  the  deceased  with  the
weapons with which they were armed.  It is the case of the prosecution  that
appellant no. 1, Vijay Singh caused an injury with a ballam near the eye  of
the deceased and he died on the spot.


      On the basis of the report given by Pohap Singh, a case under  Section
147, 148 and 302/149 of Indian Penal Code, 1860 (hereinafter referred to  as
“the IPC”) was registered.  Police after usual investigation  submitted  the
charge-sheet against  all  11  accused  persons  and  ultimately  they  were
committed to the Court of Sessions to face the trial.   The  Sessions  Judge
acquitted 9 of the 11  accused  and  convicted  the  appellants  herein  for
commission of offence under Section 302 of the IPC  and  sentenced  them  to
imprisonment for life. The learned Judge found the  allegations  as  to  the
infliction of injuries, on the head and neck of  the  deceased  by  specific
weapon such as  ballam  by  appellant  no.1  and  farsa  by  appellant  no.2
respectively, to have been corroborated by  the  medical  evidence.   Hence,
the two appellants were convicted and sentenced as above.


      On appeal, the High Court confirmed their conviction and sentence  and
while doing so, observed as follows:
           “5………Dr. Kapil Dev Singh, who has performed  the  postmortem  of
           the deceased on 16.6.1992 and found as many as six  injuries  on
           the body of the deceased, out of which injury No.1 is caused  by
           some pointed object near the face of the  deceased.   Thus,  the
           injury attributed to Vijay Singh  is  corroborated.   The  other
           injury was incised wound on the body of the deceased.   All  the
           injuries were caused by sharp and edged weapons.  As per opinion
           of Doctor injury No. 1 was sufficient  to  cause  death  of  the
           deceased…………


           6. After perusal of the statements of PW-1, PW-2  and  PW-3,  we
           find that the  Sessions  Court  rightly  convicted  the  present
           appellants.  So far as  the  other  accused  are  concerned  the
           Doctor has specifically stated that except the injury No.1 which
           is attributed to Vijay Singh, all other injuries were caused  by
           the same weapon.  Thus, the other  injuries  are  attributed  to
           Hari Singh.  Moreso, the witness could not point  out  which  of
           the injuries were caused by other accused, hence, acquitted  the
           other accused.   But  so  far  as  the  present  appellants  are
           concerned,  there  are  specific  allegation  against  them  for
           causing injuries to the deceased.
                                                            “Underling ours”




      Aggrieved by the same, the appellants are before us.


      At the outset, while assailing the conviction of the  appellants,  Mr.
Rajesh learned counsel appearing for the appellants, submits that  the  High
Court erred in holding that excepting injury no. 1, all other  injuries  are
attributable to Hari Singh.  He draws our attention to the evidence of  PW-2
Prema Bai and PW-3  Sheela,  who  claim  to  be  the  eye-witnesses  to  the
occurrence and have clearly stated in  their  evidence  that  the  appellant
Hari Singh gave farsa blow on the neck of the  deceased  and  other  accused
persons (since acquitted) have also assaulted the deceased with farsa.
      We have gone through the evidence of the eye-witnesses and from  their
testimony it is evident that appellant Vijay Singh had caused one injury  to
the deceased by ballam whereas appellant Hari Singh  caused  one  injury  on
the neck by farsa.  They have also testified that  other  accused  had  also
given farsa blows to the deceased.  In  the  face  of  it,  the  High  Court
clearly erred in holding that excepting injury no.  1,  all  other  injuries
were caused by the appellant Hari Singh.


      Mr. Rajesh, then submits that the appellants can be held guilty  under
Section 302 of the IPC only when it is proved that  the  injuries  inflicted
by them have resulted into death.  He refers to the  evidence  of  PW-7  Dr.
Kapil Dev Singh and  submits  that  according  to  his  opinion,  the  death
occurred because of excessive bleeding and  shock  on  account  of  all  the
injuries found on the person of the  deceased.   He  points  out  that  this
doctor had found 5 injuries on the person of  the  deceased  and  all  those
injuries cannot  be  attributed  to  the  present  appellants.   Mr.  Rajesh
further points out that even if it is assumed  that  appellant  Vijay  Singh
had assaulted the deceased with ballam on the face and appellant Hari  Singh
by farsa on the neck, they cannot be held guilty under Section  302  of  the
IPC as those injuries only did not cause death.


      Mr. C.D. Singh, learned counsel for the  State,  on  the  other  hand,
submits that since the doctor in evidence has stated that injury no.  1  was
sufficient to have caused  death,  the  High  court  rightly  convicted  the
appellants.  In any  view  of  the  matter,  according  to  Mr.  Singh,  the
deceased died of various injuries caused to him during the  occurrence,  and
therefore, the appellants can well be convicted under Section 302  with  the
aid of Section 34 of the IPC.


      True it is that the High Court, while upholding the conviction of  the
appellants, has observed that “as per the opinion of the doctor, injury  no.
1 was sufficient to cause death of the deceased”.  We have gone through  the
evidence of PW-7 Dr. Kapil Dev Singh.  PW-7  in  his  evidence  stated  that
during the post-mortem examination, he found the following injuries  on  the
person of the deceased:


           “1.Depressed fracture with contusion  with  open  wound  cutting
           front parietal bone 4” x 1½” x bone deep on right side.


           2. Incised wound on cheek cutting auxiliary bone 5”x 1/2” x bone
           deep right side.


           3. Incised wound of the size 4” x ½” x muscle deep  and  cutting
           breathing pipe and major blood arteries on right side.




           4. Incised wound on superior collar bone right  side,  5”  x  ½”
           cutting breathing pipe.


           5. Incised wound right side on the face cutting right  jaw  bone
           size 3” x ½” x bone deep.”






      As regards the cause of death, he has stated as follows:


           “In my opinion, all the injuries were caused by sharp and  blunt
           weapon.  In my opinion cause of death is excessive bleeding  and
           shock….”


      Thus, the doctor has altogether found 5 injuries on the person of  the
deceased and the death had occurred due to excessive bleeding and shock  on
account thereof.  Therefore, it cannot be said that only  injury  no.1  was
the cause of the death.  Hence, we are constrained to observe that the High
Court committed serious error by holding that injury no. 1  was  sufficient
to cause death of the deceased.


      Nonetheless from the evidence of the  prosecution  witnesses  what  is
proved beyond doubt is that appellant Vijay Singh caused injury on the face
of the deceased by ballam and appellant Hari Singh on neck  by  farsa.   In
this backdrop, we proceed to consider the nature of offence. It is relevant
here to mention that no charge under Section 34 IPC has been framed against
the appellants.  Even if we assume in favour of the State, as contended  by
Mr. Singh, that it is possible to hold the appellants guilty under  Section
302 read with Section 34 of the IPC  in  the  absence  of  charge,  in  our
opinion, for  that  the  prosecution  will  have  to  prove  that  injuries
attributable to the appellants or any of them were the cause of death.   As
observed earlier, the appellants had caused one injury  each,  whereas  the
deceased had sustained five injuries.  According to the doctor,  death  had
occurred on account of shock and excessive bleeding  due  to  the  injuries
caused on the person of the deceased.  Therefore, the death had  not  taken
place as a result of the injuries caused by the appellants or  any  one  of
them.  Hence, they cannot be held guilty under Section 302 IPC  simplicitor
or with the aid of Section 34 IPC.


      However, the prosecution has been able to prove  that  the  appellants
have assaulted the deceased with ballam  and  farsa,  which  are  dangerous
weapons.  Further, the appellants  had  caused  grievous  injuries  on  the
person of the deceased.  Hence, they may not be held guilty  under  Section
302 or 302 read with Section 34 IPC, but surely their acts come within  the
mischief of Section 326  IPC.    Accordingly,  we  modify  the  appellants’
conviction and hold them guilty under Section 326 IPC and sentence them  to
undergo rigorous imprisonment for 10 years  each  and  fine  of  Rs.5,000/-
each, in default to suffer imprisonment for six months.  We have been  told
that both the appellants have already remained in custody for more than the
period of their sentence.  If that be so, they be released forthwith unless
required in any other case.


      In the result, the  appeal  is  partly  allowed,  the  conviction  and
sentence of the appellants under Section 302 IPC is set aside, instead they
are convicted under Section 326 IPC and sentenced to the  period  as  above
with the direction aforesaid.
                                                   ………………………………………………………………J
                                                   (CHANDRAMAULI KR. PRASAD)




                                                   ………………………………………………………………J
                                        (JAGDISH SINGH KHEHAR)

NEW DELHI,
MARCH 25, 2014.


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