advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, February 27, 2015

whether a case falls under Section 302 or 304 has to be decided from case to case depending on factors like the circumstances in which the incident takes place, the nature of weapon used and whether weapon was carried or was taken from the spot and whether the assault was aimed on vital part of the body; the amount of force used; whether the deceased participated in the sudden fight; whether there was any previous enmity; whether there was any sudden provocation; whether the attack was in the heat of passion; whether the person inflicting the injury took any undue advantage or acted in a cruel or unusual manner. The list of circumstances is not exhaustive and there may be several other circumstances with reference to individual cases. Applying these tests to the present case, we are unable to accept the defence on behalf of the appellant. It was a case of previous enmity and the nature of injury suggests intention to cause death or a fatal injury on a vital part of the body with full force sufficient to cause death. In these circumstances, we do not find any ground to interfere.

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1848 OF 2008


DHIRENDRA KUMAR @ DHIROO                ...APPELLANT

VERSUS

STATE OF UTTARAKHAND                         ...RESPONDENT


                               J U D G M E N T

ADARSH KUMAR GOEL J.

1.    This appeal has been preferred against the judgment  and  order  dated
17th November, 2007 passed by the High Court of Uttarakhand at  Nainital  in
Criminal Appeal No.158 of 2007 upholding the  conviction  of  the  appellant
under Section 302 of the Indian Penal Code  and  sentence  to  undergo  life
imprisonment.

2.    Case of the prosecution is that the  appellant  caused  the  death  of
Surat Singh deceased with a stone  at  8.30  P.M.  on  1st  April,  1983  at
Village Jantanwala.  On 2nd April, 1983 at 9.05 A.M.,  Mani  Ram  father  of
the deceased (who died during  pendency  of  proceedings  before  the  trial
Court) lodged FIR to the effect that on 28th March, 1983, the  deceased  had
gone to the house of the accused to  celebrate  holi.   In  the  night,  the
accused came to the  house  of  the  complainant  to  assault  the  deceased
alleging that he had knocked the door of  his  aunt  Kumari  Sunita  in  the
night with evil intention when  she  was  alone  in  her  house.   With  the
intervention of Mani Ram and PW 7 Raj Kumari,  wife  of  the  deceased,  the
accused was prevented from dragging the deceased out of the  house  but  the
accused left the house with a threat.  On 1st April, 1983 when the  deceased
went to the nearby Dehradun city, he did not return home at the  night.   In
the morning PW2 Lal Singh told him that  the  deceased  was  seen  with  the
accused at 7.30 P.M. in the night.  Further, Lakhi  Ram  PW  4  and  Bahadur
Singh PW 3 told him that the accused was seen beating the  deceased  with  a
stone at 8.30 P.M.  One Jagdish Singh told him that he  had  seen  the  dead
body near the bank of the river near the field of Ratan Singh.
3.    After registering the FIR,  the  investigation  was  conducted  by  SO
Rajpal Singh PW 11.  Post mortem was conducted by Dr. I.F. Nath PW6.   After
completing the investigation, the accused was sent up for trial.

4.    The prosecution examined as many as 12 witnesses.  The accused in  his
statement under 313 Cr.P.C. took the plea that he was falsely implicated  as
he was member of Yuvak Gram Kalyan Samiti and he had made complaint  to  the
District Magistrate against illegal distillation of liquor  which  made  the
police inimical to him.  He  had  also  made  a  complaint  against  illegal
dealings of the contractors in selling  Government  cement  which  had  made
contractors inimical to him.  He examined his brother, DW 1  Vijendra  Kumar
Sharma in support of
his version.

5.    After considering the evidence on record, the  trial  Court  convicted
and sentenced the appellant which has been affirmed by the High Court.
6.    We have heard learned counsel for the parties.

7.    Main contention urged on behalf of the appellant is that the  evidence
of Bahadur Singh PW 3 and Lakhi Ram PW 4 as eye witnesses  is  not  reliable
as if they had seen the occurrence as claimed,  they  could  not  have  kept
quiet in the night.  It was further submitted that the  alleged  motive  was
far fetched and could not be believed.  It was finally  submitted  that  the
case was covered by Exception 4 to Section 300 as it was a  case  of  sudden
fight in which both the parties threw stone at each other and thus the  case
falls under Section 304 Part II.  Reliance has been placed  on  judgment  of
this Court in Ankush Shivaji Gaikwad vs. State of Maharashtra[1].

8.    We have given due consideration to the rival submissions  and  perused
the record.

9.    As far as reliability of evidence on record is concerned,  we  are  of
the view that re-appreciation of evidence is not called  for  in  an  appeal
under Article 136 of the Constitution in absence  of  patent  illegality  or
perversity merely because a different view could  also  be  taken.   In  the
present case, both the courts below have found the evidence of PW 3  Bahadur
Singh and PW 4 Lakhi Ram to be reliable.  Evidence of PW 7 Raj Kumari  widow
of the deceased has also been believed with regard to the  earlier  incident
furnishing motive to the accused.  PW 2 Lal Singh has also corroborated  the
version given by the eye witnesses by stating that he had seen  the  accused
and deceased together just before the occurrence.  The  defence  version  of
the accused has not been found to  be  reliable.   The  view  taken  by  the
courts below is certainly a possible view for accepting the evidence led  by
the prosecution in support of its version.  We thus do not find  any  reason
to reject the prosecution version.  There is enough evidence to  prove  that
the  accused  appellant  was  responsible  for  causing  the  death  of  the
deceased.

10.   Only other question which remains to be considered is  the  nature  of
offence.  Learned counsel for the appellant submitted that the accused  also
received injuries which showed the case to be of free fight.   The  injuries
found on the person of the accused by PW 1 Dr. D.M. Kala are as follows :

 "1.   Abraded contusion 3 x 2.5 cm. just above right  eyebrow.

2.    Abraded contusion 8 cm. x 2.5 cm. on right side of face  inusilry  the
area just below and lateral to right eye.

3.    Abrasion 4 cm. x 1 cm., on right side of face 2 cms. From right  angle
of mouth.

In the opinion of Medical Officer, the injuries were caused  by  hard  blunt
object or friction about one day before Injury No.1 and  2  was  kept  under
observation while Injury No.3 was simple."



11.   On the other hand, the injury noticed on the body of the  deceased  is
as follows :

"1.   The face and head is flattened from side to side. There  are  multiple
irregular lacerated wounds all over. The face is disfigured  and  right  eye
could not be made out.  All the bones of skull, base of skull  and  mandible
are pulverized and the brain  matter  is  seen  flowing  out  from  all  the
wounds.

In the opinion of Medical Officer, the death of the deceased was caused  due
to shock and hemorrhage as a result of ante mortem injury.  The  doctor  has
also opined that the injury may be caused by stone in between 8:00  to  9:00
p.m. on 01.04.1983."

12.   The nature of injuries suffered by the deceased  does  not  show  that
the injury was suffered accidentally.  There are  multiple  wounds  and  the
face is disfigured.   The  bones  are  pulverized.   The  brain  matter  was
flowing out from all wounds.   Seen in the light  of  previous  motive,  the
accused can be said to have caused the death by acting in  a  cruel  manner.
In a plea of sudden fight, the burden to show  that  the  case  falls  under
Exception 4 to Section 300 I.P.C. is on the accused.  No doubt even  without
leading positive, the  plea  can  be  substantiated  from  the  material  on
record.

13.   In the present case, there is nothing  on  record  to  establish  free
fight.   Plea  of  the  accused  is  of   false   implication.    From   the
circumstances taken as a whole, only possible inference is that the  accused
has inflicted the fatal injury with a view to cause death.  The injuries  on
the head have been caused with full force.  There is prior enmity.   It  was
not a case of any sudden quarrel or sudden provocation or  in  the  heat  of
passion.

14.   Judgment in Ankush does not advance the case  of  the  appellant.   In
the said case, the accused were walking near the field of the deceased  when
a dog barked at them.  The accused hit the dog with  an  iron  pipe  and  on
objection being raised by the deceased  there  was  exchange  of  hot  words
which led to a scuffle in the course of which one of  the  accused  hit  the
deceased with iron pipe which he was already carrying.  Thus, it was a  case
of a sudden fight on  account  of  barking  of  the  dog  belonging  to  the
deceased.  There was no previous enmity.  Barking of the dog  triggered  the
incident and intervention of the deceased led to a quarrel culminating  into
the fatal injury on a
vital part.

15.   Question whether a case falls under Section  302  or  304  has  to  be
decided from case to case depending on factors  like  the  circumstances  in
which the incident takes place,  the  nature  of  weapon  used  and  whether
weapon was carried or was taken from the spot and whether  the  assault  was
aimed on vital part of the body; the  amount  of  force  used;  whether  the
deceased participated in the sudden fight; whether there  was  any  previous
enmity; whether there was any sudden provocation; whether the attack was  in
the heat of passion; whether the  person  inflicting  the  injury  took  any
undue advantage or acted  in  a  cruel  or  unusual  manner.   The  list  of
circumstances  is  not  exhaustive  and   there   may   be   several   other
circumstances with reference to individual cases.  Applying these  tests  to
the present case, we are unable to accept  the  defence  on  behalf  of  the
appellant.  It was a case of  previous  enmity  and  the  nature  of  injury
suggests intention to cause death or a fatal injury on a vital part  of  the
body with full force sufficient to cause death.  In these circumstances,  we
do not find any ground to interfere.

The appeal is accordingly dismissed.

                              ............................................J.
                                  [DIPAK MISRA]


                             .............................................J.
                                              [ ADARSH KUMAR GOEL ]
NEW DELHI
FEBRUARY 26, 2015

-----------------------
[1]    2013 (6) SCC 770

-----------------------
8


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.