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
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
