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Sunday, March 6, 2016

Section 300. The expression “bodily injury” in clause thirdly includes also its plural, so that the clause would cover a case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause, as already noticed, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall under clause thirdly of Section 300. All the conditions which are a prerequisite for the applicability of this clause have been established and the offence committed by the accused, in the instant case was ‘murder’.”= the accused hurled country made bombs, has been established. The incised injuries caused to Hari were intentional and were sufficient to cause death in the ordinary course of nature even if it cannot be said that his death was intended. This is sufficient to bring the case within thirdly of Section 300. 11. For the foregoing reasons, we are of the opinion that the High Court was in error in altering the conviction of the respondents/accused from one under Section 302 to that under Section 304-I Indian Penal Code.


                                                         REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 185  of 2016
                        (@ SLP(Crl.) No.967 of 2015)



State of Madhya Pradesh             ...                        Appellant

                                   versus

Goloo Raikwar and Anr.                ...           Respondent(s)




                               J U D G M E N T



C. NAGAPPAN, J.

Leave granted.

This appeal is preferred against the judgment dated 26.9.2012 passed by  the
High Court of Madhya Pradesh Principal seat at Jabalpur in  Criminal  Appeal
No. 1797 of 2004 whereby the High Court partly allowed the appeal  filed  by
the respondents/accused, by setting aside  their  conviction  under  Section
302 IPC and convicted them for the offence under Section 304 Part I IPC  and
thereby  reducing  their  sentence  from  life  imprisonment   to   Rigorous
Imprisonment for 10 years.

Briefly the facts are as follows :  Deceased Hari Choudhary   is  the  uncle
of PW1 Kallu Choudhary.  On 15.8.2000 at about 3.30 p.m. both  of them  were
going to eat betel and on their way they saw respondent  no.1/accused  Golu,
respondent no.2/accused Bhura and three other accused  namely  Puttu  @  Ram
Charan, Gabbar and Bedilal armed with  weapons,  coming  and  accused  Bhura
hurled  country bomb at them.  On  explosion  they  fell  down  and  accused
Bhura dealt a blow of sword  to  PW1  Kallu  and  the  other  accused   also
assaulted him with their weapons.  PW1 saw the  accused  persons  assaulting
Hari Choudhary with their weapons.  He  ran  and  informed  PW3  Ram  Niwas,
brother of  Hari  and  they  carried  injured  Hari  to  Victoria  Hospital,
Jabalpur where he was declared dead.  On telephonic  information  PW10  Sub-
Inspector R.B. Soni reached  the  hospital  and  recorded  Exh.P1  complaint
given by PW1 Kallu and prepared Exh.P2 Murg Report.   He  conducted  inquest
and prepared Exh.P3 Inquest Report and gave requisition for conducting post-
mortem.  He also sent injured PW1 Kallu for medical examination.

Dr. Ashok Kumar Jain conducted the autopsy and  found following injuries  on
the body of Hari:

Incised wound 3” x ½” muscle deep on right cheek

 Incised wound 4” x ½” x bone deep on left cheek extending up to  ear.   The
pinna of the ear was cut.

Incised wound on right knee joint  posteriorly  to  lateral  aspect.   Joint
disarticulated. Patella hanging with the help of  tendon.   Vessels,  nerves
and other soft tissues severed.

 Incised wound 3” x ¾” x bone deep over occipital region  obliquely  placed.
Clotted blood matting the skull hair.

    Swelling of blue colour on the right shoulder on the  back  side  6”  in
length.

Linear abrasion over left side of chest lateral aspect 4” in length,  bluish
in colour.

Injuries No.1,2,3 and 4 were caused by  hard  and  sharp  object.   Injuries
No.5 and 6 might have been  caused  by  hard  and  blunt  object.   All  the
injuries were ante mortem in nature and were sufficient to cause death.   In
the opinion of Dr. Jain, cause  of  death  was  excessive  haemorrhage  from
Injury No.3.  The death of deceased was homicidal.



 PW10 Sub-Inspector Soni, after registering a case  under  Section  302  IPC
and Section  3(2)(v)  of  Scheduled  Caste/Scheduled  Tribe  (Prevention  of
Atrocities) Act against the accused persons and  after  investigation  filed
the  charge-sheet.   After  committal  the  Sessions  Court  framed  charges
against both  the  respondents  herein  and  accused  Puttu  @  Ram  Charan.
Accused Gabbar and Bedilal were absconding.  The trial court  convicted  the
respondents herein for the offence under Section 302 IPC and acquitted  them
for the  offence  under  Section  3(2)(v)  of  the  SC/ST  (P.A.)  Act   and
sentenced each of them to life imprisonment and to pay a fine of   Rs.1000/-
each in default to undergo one month simple imprisonment for the  charge  of
murder. At the same time the trial  court  acquitted  accused  Puttu  @  Ram
Charan of the charges.  Challenging the same, both  the  respondents  herein
preferred appeal and the High Court altered the conviction and  sentence  as
mentioned above.  Aggrieved by the same the State has preferred the  present
appeal.

The learned counsel for the appellant State submitted that  the  view  taken
by the High Court is patently erroneous in law as the offence under  Section
302 IPC was clearly made out.  It is his further submission  that  the  High
Court has committed an error in holding that injury no.3 was  not  on  vital
part of the body and the other  injuries  were  not  fatal  in  nature,  and
therefore, intention to  commit  murder  of  the  deceased  cannot  be  held
established. According to him the accused attacked the deceased by hard  and
sharp weapons at the time of occurrence  resulting  in  his  death  and  the
offence of murder is clearly made  out.   Per  contra  the  learned  counsel
appearing for the respondents supported the view taken  by  the  High  Court
and submitted that the impugned judgment is sustainable in law.

The respondents have not challenged their conviction. The  trial  court,  as
already noticed, had convicted the respondents of  the  offence  of  murder.
The High Court has disagreed with the Trial Court and held the  offence  was
not ‘murder’ but one under  Section 304-I of the  Indian  Penal  Code.   The
High Court reached this  conclusion on the following reasoning:

 “17. On perusal of the evidence of Dr. Ashok Kumar  Jain  (PW-6)  it  seems
that injuries No.1 and 2, which were caused on  right  and  left  cheeks  of
deceased by    sharp edged weapons, were not  grievous.   Similarly,  injury
No.4, which was an incised wound on the occipital region of  the  skull  was
bone deep.  Though there was bleeding from it, but the bone  was  not  found
cut. Injuries No.5  and  6  were  respectively  swelling  and  abrasions  on
shoulder and chest. No. underneath organ was found  damaged.  No  doubt  Dr.
Jain stated that injuries found on the body of deceased were  sufficient  to
cause his death, but he did not mention this fact in the  postmortem  report
(Ex.P/10).  In Ex.P/10 as well as in court he specifically stated  that  the
cause of death of deceased was excessive haemorrhage from  the  injury  No.3
which was on the knee.

18. In view of the above medical evidence, in  our  opinion,  it  cannot  be
held established with certainty that appellants intended  to  commit  murder
of the deceased, but, since they caused number of injuries  by  sharp  edged
weapons to deceased and the injury No.3 proved fatal, it can  be  held  that
appellants assaulted deceased with  an  intention  of  causing  such  bodily
injuries to him as were likely to cause his death making them liable  to  be
punished under Section 304-I of the Indian Penal Code”.



8.    We are unable to appreciate  and  accept  this  reasoning.   When  the
deceased  along  with  PW1  Kallu  Choudhary  were  going  to   eat   betals
respondents/accused came from the front side  and  second  respondent  Bhura
pelted country bomb at them and inflicted blow of sword   on  Hari  and  the
other accused assaulted Hari with sword, Gupti  and  Kankur  and  they  also
attacked PW1 Kallu Choudhary with weapons.  Hari was  soiled  in  blood  and
was moaning and on being taken to hospital,  was  declared  dead.   Injuries
no.1 to 4 found on the body of Hari were incised wounds and 3rd and  4th  of
them were inflicted on the right knee  joint  and  head  respectively.   Dr.
Ashok Kumar Jain who conducted the autopsy  has  stated  that  the  injuries
found on the body were sufficient to cause death.  It was pointed  out  that
the cause of death was excessive haemorrhage from injury no.3 which  was  on
the knee.

9.    In State of Andhra Pradesh vs. Rayavarapu Punnayya and Anr.  (1976)  4
SCC 382), this Court had to deal with a similar  situation.  In  that  case,
the accused 5 in number beat the victim with sticks on the legs and arms  of
the deceased and when hospitalized the deceased succumbed to  his  injuries.
The medical officer who conducted the  autopsy  opined  that  the  cause  of
death was shock and haemorrhage resulting from multiple  injuries  and  said
injuries were cumulatively sufficient to cause death in the ordinary  course
of nature.   Question arose whether in  such  a  case  when  no  significant
injury had been inflicted on a vital part of the body, and the weapons  used
were sticks and the accused could not be  said  to  have  the  intention  of
causing death, the offence would be ‘murder’ or  merely  ‘culpable  homicide
not amounting to murder’.  This Court answered the question in these terms:

“39. ……. . All these acts of the accused were  preplanned  and  intentional,
which, considered objectively in the light of  the  medical  evidence,  were
sufficient in the ordinary course of nature to cause death.  The  mere  fact
that the beating was designedly confined by the assailants to the  legs  and
arms, or that none of  the  multiple  injuries  inflicted  was  individually
sufficient in the ordinary  course  of  nature  to  cause  death,  will  not
exclude the application of clause thirdly of Section  300.   The  expression
“bodily injury” in clause thirdly includes also  its  plural,  so  that  the
clause would cover a case where all the  injuries  intentionally  caused  by
the accused are cumulatively sufficient to cause the death in  the  ordinary
course of nature, even if  none  of  those  injuries  individually  measures
upto such sufficiency.   The  sufficiency  spoken  of  in  this  clause,  as
already noticed, is the high probability of death in the ordinary course  of
nature, and if such sufficiency exists and death is caused  and  the  injury
causing it is intentional, the case  would  fall  under  clause  thirdly  of
Section  300.   All  the  conditions  which  are  a  prerequisite  for   the
applicability of  this  clause  have  been  established    and  the  offence
committed by the accused, in the instant case was ‘murder’.”



10.   In the present case, the fact that the  accused  hurled  country  made
bombs, has been established.   The incised  injuries  caused  to  Hari  were
intentional and were sufficient to cause death in  the  ordinary  course  of
nature even if it cannot be said that  his  death  was  intended.   This  is
sufficient to bring the case within thirdly of Section 300.

11.   For the foregoing reasons, we are of the opinion that the  High  Court
was in error in altering the conviction of the respondents/accused from  one
under  Section  302  to  that  under  Section  304-I  Indian   Penal   Code.
Accordingly, we allow this appeal and set aside the  impugned  judgment  and
restore the judgment of the trial court convicting  the  respondents/accused
for the offence of murder, with a sentence of imprisonment  for  life.   The
respondents/accused are directed to surrender  before  the  trial  court  to
serve out the remaining  sentence,  failing  which  the  trial  court  would
forthwith issue warrants of arrest and send them to jail.


                                                      …….………………………….J.
                                                      (Jagdish Singh Khehar)



                                                           ……..…..……………………J.
                                                                (C.Nagappan)


New Delhi;
March 02, 2016


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