REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2003 OF 2008
Atmaram & Ors. … Appellants
Versus
State of Madhya Pradesh … Respondent
J U D G M E N T
Swatanter Kumar, J.
1. This appeal is directed against the judgment of the High Court of
Madhya Pradesh, Bench at Indore dated 23rd January, 2008. We may notice
the necessary facts giving rise to the present appeal. According to the
prosecution, Udayram, PW-1 along with his younger brother namely Gokul (the
deceased) and sister Rajubai, PW-2 had gone to the village Lod for
pilgrimage. After they reached the said village, they came to know that
the Pujari who was to perform the puja was not available. Resultantly, all
the said three persons decided to return back to their village Dhuvakhedi,
Tehsil Tarana, District Ujjain.
2. At about 4-4.30 p.m., when they reached near the said village, all of
a sudden the accused persons namely Atmaram, Gokul, Vikram, Ramchandran and
Umrao emerged from the fields having soyabean crop. They shouted that the
deceased and his relatives had set their soyabean crop afire and therefore,
they should be taught a lesson. The accused Ramachandra was armed with
farsi, Gokul was carrying dharia and other three accused were having
lathis. All these accused persons started assaulting Udayram (PW1)
causing injury on his head, left hand and legs. Gokul (the deceased) and
PW2 tried to intervene and protect Udayram. In this process, both these
witnesses sustained a number of injuries caused by the accused with the
help of the same weapons. The other witnesses present at the site,
Gajrajsingh, Sardarsingh and Gokul did not interfere in the assault because
of fear and silently slipped away.
3. Another witness, Pannalal, PW8, was working in the fields nearby.
Upon being called by Rajubai, PW2, Pannalal came to the place of occurrence
and seeing the deceased and witnesses in injured condition, Pannalal and
one Prem brought the bullock cart of one Kanhaiya Balai. Thereafter, one
Umrao Bai also joined them. They finally found a jeep on the road in
which Pannalal, Prem and Umrao Bai took the injured persons to the Tarana
Hospital where they were admitted. From the hospital, information was
sent to the Police Station, Makdon on which basis, the Head Constable
Chedilal Yadav, PW23, reached Tarana Hospital. On the basis of the
statement of Udayram, PW1, Dehati Nalishi (Ex.P1) was recorded at about
6.20 p.m. on 6th November, 1993.
4. A case under Section 307 read with Sections 147, 148 and 149 of the
Indian Penal Code, 1860 (for short ‘IPC’) was registered. All the three
injured persons were subjected to medical examination by Dr. Anil Kumar
Dubey, PW4, who issued their MLC reports, Ex.P2-A to P.4-A. Udayram and
Rajubai were treated by the doctors. At about 7 p.m., the statement of
Gokul was also recorded in the presence of the witnesses. Keeping in view
the serious condition of Gokul, he was required to be transferred from
Tarana Hospital to Civil Hospital, Ujjain for treatment. However, he
died on the way at about 11.30 p.m. on 6th November, 1993 and his dead
body was kept in the Civil Hospital, Ujjain. Information was sent to the
Police Station, Makdon, whereafter an offence of Section 302 read with
Section 149 IPC was added to the charges.
5. Inquest proceedings were completed. The dead body of the deceased
was subjected to post mortem and post mortem report Ext. P30 was prepared
by Dr. Ajay Nigam (PW14).
6. After registration of the offence, the investigating officer, PW26,
Sohan Pal Singh Choudhary visited the spot of occurrence on 7th November,
1993, from where the blood stained earth, cycle and sandal of the deceased
were seized and the spot map was prepared. On 8th November, 1993, all the
accused persons were arrested. Upon their interrogation and in furtherance
to their statements, the arms involved in the commission of crime were
recovered and seized. These seized weapons were sent to forensic science
laboratory for examination on 3rd December, 1993. The examination report
was received on 8th December, 1993 and in terms of the Report, no blood
stain was found, either in the soil or in the sealed farsi. The
Investigating Officer submitted the charge sheet to the Court of competent
jurisdiction. Upon committal, the accused were tried by the Court of
Sessions.
7. The learned Trial Court vide its detailed judgment dated 13th April,
1999 held that the prosecution had succeeded in proving the charges, while
finding all the accused guilty of the offences with which they were
charged. It sentenced them as follows:-
“46. On the point of punishment, on behalf of accused evidence
were not produced on conviction. The counsel for accused
produced oral argument and prayed for least punishment to
accused whereas Assistant Public Prosecutor have prayed for
harder conviction.
47. In any opinion from the case, it is clear that this is
the first offence of accused. Looking into the circumstances
under which crime is committed and nature of crime, it does not
seem proper to convict with life imprisonment under Section 302
I.P.C. and it seems proper to convict accused for life
imprisonment and fine. Therefore, all the five accused shall
be convicted under Section 148 I.P.C. with rigorous imprisonment
of two years. Accused Ramchandra No. 4 is held guilty under
Section 307 I.P.C. and Section 307/149 I.P.C. for both the
offences prescribed punished is same, therefore, it is proper to
convict accused Ramchandra only under Section 307/149 I.P.C. and
accused Atmaram No. 1 for charges under Section 307 I.P.C. and
accused Gokul No. 2, Vikram No. 3, Ramchandra No. 4, Umrao No. 5
for Section 307 read with 149 I.P.C. shall be convicted
respectively with rigorous imprisonment for 5 year each and fine
of Rs. 500/- (Rs. five hundred ) each. In default of payment
of fine accused shall be imprisoned for another term of 2 month
each.
48. Similarly, accused Gokul No. 2 charged under Section 302
I.P.C. and Section 302/149 I.P.C. and accused Vikram No. 3 was
held guilty under Section 302 or Section 302 read with Section
149 I.P.C., whereas punishment prescribed for both the offences
is same, both the accused are held guilty under Section 307/149
I.P.C. and accused Atmaram No. 1 is found guilty for charges
under Section 302, I.P.C. and accused No. 2, Gokul, No. 3
Vikram, No. 4 Ramchandra, No. 5 Umrao are found guilty under
Section 302 read with Section 149 I.P.C. and convicted
accordingly, and all the accused for such charges are convicted
with life imprisonment and in addition all the accused are also
punished with fine of Rs. 2000 (Two Thousand Rupees) each. In
default of payment of fine all the accused shall be imprisoned
for another term of 4 month each. Similarly, accused No. 5,
Umrao, is charged under Section 323 I.P.C. and accused Atmaram
No. 1 Gokul No. 2, Vikram No. 3, and Ramchandra No. 4 are found
guilty under Section 323 read with Section 149 I.P.C. and all
the accused are convicted with 6 month rigorous imprisonment and
fine of Rs. 200 each (Two Hundred Rupees). In default of
payment of fine all the accused shall be imprisoned for another
term of 1 month rigorous imprisonment each. All the
punishment shall run concurrently.
49. During prosecution, accused No. 1 Atmaram from 8.11.93 to
3.3.94, accused No. 2 Gokul from 8.11.93 to 24.6.94, accused No.
3 Vikram from 8.11.93 to 3.3.94 and accused No. 4 Ramchandra
from 11.1.93 to 6.1.94 and accused No. 5 Umrao from 11.11.93 to
6.1.94, were in judicial custody. Such duration shall be
adjusted towards punishment.
50. On payment of fine from accused and after the expiration
of the period of limitation Rs. 8000/- from the amount of fine
shall be paid to widowed mother of Gokul, Umraobai w/o Lalji r/o
village Dhaukhedi, Thana Makdone, as compensation and from the
said fine Rs. 5000 (Five Thousand Rupees) shall be paid to
applicant Udairam s/o Lalji r/o Village Dhaukhedi, Thana
Makdone.
51. After the expiration of period of appeal, blood mixed
soil, simple soil, Sandel, cloths of Gokul, cloths of Udairam,
and Farsi, Dharia, Lathi, seized from accused shall be discarded
being available.”
8. The Trial Court also punished them on other counts.
9. Being aggrieved from the judgment of conviction and order of sentence
passed by the Trial Court, the accused preferred an appeal before the High
Court, which by its judgment dated 23rd January, 2008, confirmed the
judgment of the Trial Court and also did not interfere with the order of
sentence.
10. Feeling aggrieved therefrom, all the five accused have preferred the
present appeal before this Court.
11. While raising a challenge to the impugned judgment, the learned
counsel appearing for the appellants argued that there are serious
contradictions between the statements of PW1 and PW2. These two witnesses
being the eye-witnesses, such serious contradictions in their statements
make the conviction of the appellants unsustainable on that basis. To
substantiate his plea, the learned counsel for the appellants has relied
upon the paragraph 2 of the deposition of PW2, Rajubai and paragraph 3 of
the statement of PW1, Udayram. In order to properly appreciate the merit
or otherwise of this contention, it would be appropriate to refer to the
relevant paragraphs of deposition of these two witnesses. They,
respectively, read as under :
“2. Ramchandra hit Udairam with Farsi which hit on his head
and both hands. My brother Gokul was hit by accused Gokul with
Dhariya due to which he got injuries on his head, both hands,
above the eye and on the waist. Umrao hit me with two ladhi
blows which hit me on my hand and foot. The accused hit a lot.
XXX XXX XXX
3. Accused Ramchand had hit farsi on my head, Atmaram had hit
lathi which hit me near the joint of my left hand thumb.
Accused Gokul hit my brother Gokul on the head with Dharia.
Ramchand had hit after me, my brother Gokul with farsi on his
head. The other accused started hitting my brother with lathi
due to which my brother fell down and I was also attached with
lathi. My sister Rajubai was also hit with lathi by accused
Umrao. She had received injury on her hand and Rajubai also
received injury on her foot.”
12. From a bare reading of the statements of these witnesses, it is clear
that according to PW1, not only Gokul, the accused, had caused injury on
the head of the deceased by farsi but accused persons had also caused
injuries to him with lathis etc. However, according to PW2, Gokul, the
accused, had caused injuries on the head of the deceased, both hands, above
the eyes and on the wrist while other accused hit her. This cannot be
termed as a material contradiction in the statements of these two
witnesses. These are two eye-witnesses who themselves were injured by the
accused. Every variation is incapable of being termed as a serious
contradiction that may prove fatal to the case of prosecution. It is a
settled cannon of criminal jurisprudence that every statement of the
witness must be examined in its entirety and the Court may not rely or
reject the entire statement of a witness merely by reading one sentence
from the deposition in isolation and out of context. In the present case,
it has been completely established that both PW1 and PW2 are injured eye-
witnesses and their presence at the place of occurrence cannot be doubted.
If one reads the statements of PW1 and PW2 in their entirety, it will be
difficult to trace any element of serious contradiction in their statements
which may prove fatal to the case of the prosecution. PW2, even in the
paragraph extracted above has said that accused ‘hit a lot’. However, the
language in which her statement was recorded states ‘abhiyukton ne khoob
mara’ which obviously means that all the accused had hit the deceased and
other victims including herself, because this sentence immediately precedes
the part of the statement where she gives details of all the accused
persons as well as the injuries inflicted on the deceased and herself by
each of the accused. The very first paragraph of her statement clearly
indicates the essence of her statement. She has categorically stated that
all the accused persons had come to the site, abused her brother Gokul and
clearly claimed that he had burnt their soyabean crop and that they shall
kill him. Whereafter, they started hitting her brothers, Gokul and Udayram.
In face of this specific statement and the medical evidence which shows
presence of as many as ten injuries on the body of the deceased Gokul, it
is difficult to believe that in the given situation, one accused could have
caused so many injuries on the body of deceased, especially when all
accused persons are stated to have caused injuries to the deceased as well
as to the witnesses. It seems appropriate her to refer to a recent
judgment of this Court in the case of Ashok Kumar v. State of Haryana
[(2010) 12 SCC 350] wherein this Court, while dealing with the
discrepancies in the statement of the witnesses, held as under :
“41. The above statement of this witness (DW 3) in cross-
examination, in fact, is clinching evidence and the accused can
hardly get out of this statement. The defence would be bound by
the statement of the witness, who has been produced by the
accused, whatever be its worth. In the present case, DW 3 has
clearly stated that there was cruelty and harassment inflicted
upon the deceased by her husband and in-laws and also that a sum
of Rs. 5000 was demanded. The statement of this witness has to
be read in conjunction with the statement of PW 1 to PW 3 to
establish the case of the prosecution. There are certain
variations or improvements in the statements of PWs but all of
them are of minor nature. Even if, for the sake of argument,
they are taken to be as some contradictions or variations in
substance, they are so insignificant and mild that they would in
no way be fatal to the case of the prosecution.
42. This Court has to keep in mind the fact that the incident
had occurred on 16-5-1988 while the witnesses were examined
after some time. Thus, it may not be possible for the witnesses
to make statements which would be absolute reproduction of their
earlier statement or line to line or minute to minute correct
reproduction of the occurrence/events. The Court has to adopt a
reasonable and practicable approach and it is only the material
or serious contradictions/variations which can be of some
consequence to create a dent in the case of the prosecution.
Another aspect is that the statements of the witnesses have to
be read in their entirety to examine their truthfulness and the
veracity or otherwise. It will neither be just nor fair to pick
up just a line from the entire statement and appreciate that
evidence out of context and without reference to the preceding
lines and lines appearing after that particular sentence. It is
always better and in the interest of both the parties that the
statements of the witnesses are appreciated and dealt with by
the Court upon their cumulative reading.”
13. In light of the above judgment, it is clear that every variation or
discrepancy in the statement of a witness cannot belie the case of the
prosecution per se. It is true that in the present case, some other
witnesses have turned hostile and have not fully supported the case of the
prosecution, but that by itself would not be a circumstance for the Court
to reject the statements of PW1 and PW2, who are reliable and worthy of
credence and more particularly, when their presence at the place of
occurrence has been established beyond reasonable doubt.
14. The other contention which has been raised on behalf of the
appellants is that the medical evidence does not support the statements of
PW1 and PW2. This is equally devoid of any merit. As per the statement of
PW14, who had prepared the post mortem report, Ext. P30, there were as many
as ten injuries on the body of the deceased and they were as follows :
“Similarly on the said date itself, Gokul S/o. Laljiram @
Lalchand was brought by Head Constable Chedilal for which he had
brought Ex.P-3 letter. I examined him at 6.35 p.m. and found
the following injuries :
(i) Incised wound 5½ x scalp thick on left central region.
(ii) Incised superficial (skin deep) 1 x ¼ cm. on right temple
near eye. Both these injuries appear to have been caused
by sharp edged seapon. It was not possible to understand
injury No.1 therefore, X-ray advice was written and injury
No.2 was simple and caused within 0-6 hrs.
(iii) One contusion 12 x 8 cm on right forearm.
(iv) Swelling on left forearm ½ lower portion and ½ right
portion on left side.
The aforesaid injuries appeared to have been caused with hard
and blunt object and X-ray was advised to ascertain seriousness.
(v) One lacerated wound with fracture 2 x 1 x ½ on right leg
in front on middle portion which appear to have been
caused with hard and blunt weapon and was serious within 0-
6 hrs. and X-ray was advised for the same.
(vi) Lacerated wound 1 x ½ x ¼ on lower portion of left leg.
(vii) Swelling on left hand in full back portion.
(viii) Swelling and contusion 13 x 4 cm. on left forearm
out and front portions. Injuries Nos.6, 7 and 8 appear to
have been caused with hard and blunt weapon and simple
caused within 0-6 hrs.
(ix) One contusion with parallel margin on left forearm which
appear to have been caused with hard and blunt weapon like
lathi and X-ray was advised for this injury.
(x) One contusion of parallel margin of 28 x 1 cm. in front
portion of the chest laterally. It appeared to have been
caused with hard and blunt weapon like lathi which was
simple caused within 6 hrs.”
15. All that PW1 and PW2 have stated is that the accused had inflicted
the injury on the head of the deceased with a farsi and even on other parts
of the body of the deceased. According to them, even other accused had
inflicted injuries upon the body of the deceased with lathis. The accused
were carrying farsi, dharia and lathis, as per the statements of these
witnesses. The medical evidence clearly shows that there were incised
wounds, contusions, lacerated wounds and swelling found in the various
injuries on the body of the deceased. The Investigating Officer, PW26, has
clearly proved the case of the prosecution with the assistance of the
corroborating evidence. We see no reason to accept this contention raised
on behalf of the appellants.
16. Before dealing with the last contention raised on behalf of the
appellants, we may usefully refer to some pertinent aspects of the case of
the prosecution. In this case, the incident had occurred at about 4.30
p.m. on 6th November, 1993 and the FIR itself was registered at 6.30 p.m.
on the statement of PW1 recorded in the hospital. In the hospital itself,
the doctor had also recorded the dying declaration Ext. P-6 of the
deceased. The relevant part of the declaration reads as under :
“My First question was : What is your name?
Ans : Gokulsingh S/o Laljiram Lalsingh.
Q: Where do you live?
Ans: Dhuankheri.
I again asked what happened to you when he replied that the well
of Kanhaiya, myself, my brother Udayram and sister were hit by 5
brothers Ramchand, Umrao, Vikram, Gokul and Atmaram sons of
Devaji of Balai caste. He stated so. Thereafter I asked where
all have you received injuries whereupon he replied that on
head, hands and legs. Thereafter I again asked who saw you
being beaten up then he replied that we were seen by Udaysingh,
Gokulsingh, Gajrajsingh, Ramchandra etc. I again asked what did
you do thereupon he replied, what could we do, we were un-armed,
we kept shouting. Our sister had tried to rescue us.”
17. After recording of the FIR, Ext. P-37 the investigation was started
immediately and on the second day, the accused were taken into custody.
Names of all the accused were duly shown in Column No.7 of the FIR. Two
witnesses, PW1 and PW2, have given the eye witness version of the
occurrence. All the accused persons were hiding themselves in the field
and had a clear intention to kill the deceased. The motive for commission
of the offence which, of course, is not an essential but is a relevant
consideration, has also been brought out in the case of the prosecution
that the deceased had allegedly burnt their soyabean crops and, therefore,
the accused wanted to do away with the deceased Gokul and his brother.
These factors have been clearly brought out in the statement of PW1 and
PW2. The fact that these injuries were inflicted by a collective offence
upon the deceased and the injured witnesses is duly demonstrated not only
by the medical report, but also by the statements of the doctors, PW4 and
PW14. Thus, the prosecution has been able to establish its case.
18. The contention lastly raised on behalf of the appellants is that no
single injury has been found to be sufficient in the ordinary course of
nature to cause death as per the medical evidence. There was no intention
on the part of the accused to cause death of the deceased. At best, they
have only caused an injury which was likely to cause death. Therefore, no
case for an offence under Section 302 IPC is made out and, at best, it
could be a case under Section 304 Part II and/or even Section 326 IPC.
Reliance has been placed upon the judgments of this Court in the case of
Molu & Ors. v. State of Haryana [(1976) 4 SCC 362] and Rattan Singh & Ors.
v. State of Punjab [1988 Supp. SCC 456]. In any case and in the
alternative, it is also contended that as per the statement of PW2, accused
Gokul alone had caused injuries to the deceased and therefore, all the
other accused persons are entitled to acquittal or at best, are liable to
be convicted under Section 326 IPC for causing injuries to the eye-
witnesses, PW1 and PW2 or even to the deceased. This argument, at the
first blush, appears to be have substance, but when examined in its proper
perspective and in light of the settled law, we find it untenable, for the
reason that even in the case of Molu (supra), this Court had noticed that
none of the injuries was on any vital part of the bodies of the two
deceased persons and even injuries upon the skull appeared to be very
superficial. There was nothing to show that the accused intended to cause
murder of the deceased persons deliberately and there was no evidence to
show that any of the accused ordered the killing of the deceased persons or
indicated or in any way expressed a desire to kill the deceased persons on
the spot. It was upon returning this finding on appreciation of evidence
that the Court found that there was only a common intention to assault the
deceased, with the knowledge that the injuries caused to them were likely
to cause death of the deceased and, therefore, the Court permitted
alteration of the offence from that under Section 302 to one under Section
304 Part II, IPC. Also in the case of Rattan Singh (supra), this Court had
found that as per the case of the prosecution, the injuries on the person
of the deceased which could be attributed to the accused were either on the
hands or feet and at best could have resulted in fractures. None of the
appellants could be convicted for causing such injuries individually which
could make out an offence under Section 302 and, thus, the Court altered
the offence.
19. We are unable to see as to what assistance the appellants seek to
derive from these two judgments. They were judgments on their own facts
and in the case of Molu (supra), as discussed above, the Court had clearly
returned a finding that the accused had no intention to kill the accused,
which is not the circumstance in the case at hand. If there is an
intention to kill and with that intent, injury is caused which is
sufficient to cause death in the ordinary course of nature, then the
offence would clearly fall within the ambit of para Thirdly of Section 300
IPC and, therefore, would be culpable homicide amounting to murder. In the
present case, the intention on the part of the accused persons to kill
Gokul was manifest as is evident from the statements of PW1 and PW2. The
cause for having such an intent is also proved by the prosecution that
according to the accused, Gokul and PW1 had burnt their soyabean crops.
The manner in which all the accused assaulted the deceased even after he
fell to the ground and the act of continuously inflicting blows on the
body of the deceased, clearly shows that they had a pre-determined mind to
kill the deceased at any cost, which they did. In the case of State of
Haryana v. Shakuntala & Ors. [2012 (4) SCALE 526], this Court held :
“…Reverting back to the present case, it is clear that, as per
the case of the prosecution, there were more than five persons
assembled at the incident. All these nine persons were also
convicted by the Trial Court and the conviction and sentence of
six of them has been affirmed by the High Court. The members
of this assembly had acted in furtherance to the common object
and the same object was made absolutely clear by the words of
accused Matadin, when he exhorted all the others to ‘finish’ the
deceased persons.
27. In other words, the intention and object on the part of
this group was clear. They had come with the express object of
killing Manohar Lal and his family members. It might have been
possible for one to say that they had come there not with the
intention to commit murder, but only with the object of beating
and abusing Manohar Lal and others, but in view of the manner in
which Matadin exhorted all the others and the manner in which
they acted thereafter, clearly establishes that their intention
was not to inflict injuries simplicitor. Manohar Lal,
admittedly, had fallen on the ground. However, the accused
still continued inflicting heavy blows on him and kept on doing
so till he breathed his last. They did not even spare his wife
Sushila and inflicted as many as 33 injuries on her body. Where
a person has the intention to cause injuries simplicitor to
another, he/she would certainly not inflict 30/33 injuries on
the different parts of the body of the victim, including the
spine. The spine is a very delicate and vital part of the
human body. It, along with the ribs protects all the vital
organs of the body, the heart and lungs, etc. Powerful blows
on these parts of the body can, in normal course, result in the
death of a person, as has happened in the case before us. The
way in which the crime has been committed reflects nothing but
sheer brutality. The members of the assembly, therefore, were
aware that their acts were going to result in the death of the
deceased. Therefore, we find no merit in this contention of
the accused also.”
20. They even caused injuries to the vital parts of the body of the
deceased, i.e., the skull. As per the medical evidence, there was incised
wound of 5½”x skull thick on left skull region, which shows the brutality
with which the said head injury was caused to the deceased.
21. We may usefully refer to the judgment of this Court in the case of
State of Andhra Pradesh v. Rayavarapu Punnayya & Anr. [(1976) 4 SCC 382]
wherein the Court was concerned with somewhat similar circumstances, where
a number of accused had caused multiple bodily injuries to the deceased and
it was contended that since none of the injuries was caused upon any vital
part of the body of the deceased, the offence was, therefore, at best to be
altered to an offence under Section 304, Part II. This contention of the
accused had been accepted by the High Court. While disturbing this
finding, this Court held as under :
“38. 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 ordinary lathis, 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, speaking through Hidayatullah, J. (as he
then was) after explaining the comparative scope of and the
distinction between Sections 299 and 300, answered the question
in these terms:
“The injuries were not on a vital part of the body and no
weapon was used which can be described as specially
dangerous. Only lathis were used. It cannot, therefore, be
said safely that there was an intention to cause the death
of Bherun within the first clause of Section 300. At the
same time, it is obvious that his hands and legs were
smashed and numerous bruises and lacerated wounds were
caused. The number of injuries shows that everyone joined
in beating him. It is also clear that the assailants aimed
at breaking his arms and legs. Looking at the injuries
caused to Bherun in furtherance of the common intention of
all it is clear that the injuries intended to be caused
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.”
39. The ratio of Anda v. State of Rajasthan applies in full
force to the facts of the present case. Here, a direct causal
connection between the act of the accused and the death was
established. The injuries were the direct cause of the death. No
secondary factor such as gangrene, tetanus etc., supervened.
There was no doubt whatever that the beating was premeditated
and calculated. Just as in Anda case, here also, the aim of the
assailants was to smash the arms and legs of the deceased, and
they succeeded in that design, causing no less than 19 injuries,
including fractures of most of the bones of the legs and the
arms While in Anda case, the sticks used by the assailants were
not specially dangerous, in the instant case they were unusually
heavy, lethal weapons. 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”.
40. For all the foregoing reasons, we are of opinion that the
High Court was in error in altering the conviction of the
accused-respondent from one under Sections 302, 302/34, to that
under Section 304, Part II of the of the Penal Code.
Accordingly, we allow this appeal and restore the order of the
trial court convicting the accused (Respondent 2 herein) for the
offence of murder, with a sentence of imprisonment for life.
Respondent 2, if he is not already in jail, shall be arrested
and committed to prison to serve out the sentence inflicted on
him.”
Reference can also be made to Anda & Ors. v. State of Rajasthan [AIR
1996 SC 148].
22. The case before us is quite similar to the case of Rayavarapu
Punnayya (supra). The cumulative effect of all the injuries was obviously
known to each of the accused, i.e., all the injuries inflicted were bound
to result in the death of the deceased which, in fact, they intended.
Furthermore, the doctor, PW14, had opined that the deceased had died
because of multiple injuries and fracture on the vital organs, due to shock
and haemorrhage. In other words, even as per the medical evidence, the
injuries were caused on the vital parts of the body of the deceased.
23. For these reasons, we are unable to accept the contention raised on
behalf of the appellants that this is a case where the Court should
exercise its discretion to alter the offence to one under Section 304 Part
II or Section 326 IPC from that under Section 302 IPC. We also find the
submission of the learned counsel for the appellants to be without merit
that accused Gokul alone is liable to be convicted, if at all, under
Section 302 IPC and all other accused should be acquitted. We reject this
contention in light of the discussion above and the fact that all these
accused have been specifically implicated by PW1 and PW2, the Investigating
Officer, PW26 and the medical evidence.
24. Having found no substance in the pleas raised by the learned counsel
for the appellants, we hereby dismiss the appeal.
.…................................J.
[Swatanter Kumar]
.…................................J.
[Ranjan Gogoi]
New Delhi
May 10, 2012
