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‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1772 OF 2008
Som Raj @ Soma … Appellant
Versus
State of H.P. … Respondent
J U D G M E N T
Jagdish Singh Khehar, J.
1. Consequent upon an intimation to the police, by Dr. B.M. Gupta
(PW5), Senior Medical Officer, Community Health Centre, Indora
(hereinafter referred to as the CHC, Indora); the statement of Nek Ram,
(PW1) was recorded at the CHC, Indora, on 29.7.2000; leading to the
registration of First Information Report bearing no.123 of 2000 under
Section 302 of the Indian Penal Code, 1860, at Police Station, Indora.
The aforesaid statement was recorded by ASI Shiv Kanya (PW12). In
his statement, Nek Ram (PW1) asserted that there was a ‘bhandara’
(feast for devotees, during a Hindu ceremonial congregation) following
a ‘yagya’ (Hindu ritual ceremony) at the residence of Kishan Singh
(PW2) at village Khanda Saniyal on 29.7.2000. Nek Ram (PW1)
disclosed, that he along with his brother Sardari Lal (since deceased)
had been invited to the ‘bhandara’ and were present at the residence ofPage 2
Kishan Singh (PW2). The complainant Nek Ram (PW1) affirmed, that
he was helping in serving food at the ‘bhandara’. Whilst he was in the
kitchen at about 9.30 p.m., he (Nek Ram, PW1) was informed by his
nephew Sohan (PW3) and Shamsher Singh (PW8) that the accusedappellant Som Raj alias Soma was quarrelling with his brother Sardari
Lal. On being so informed, he had immediately reached the place of
altercation, and had found the accused-appellant Som Raj assaulting
his brother Sardari Lal. He also pointed out, that he had seen Som Raj
picking up a ‘darat’ (a traditional agricultural implement used by
agriculturists in northern India, for cutting branches of trees. It is also
used by butches for beheading goats and sheep. The implement has a
handle and a large cutting blade), from the house of Kishan Singh
(PW2) and giving his brother Sardari Lal a blow with it, on the back
portion of his head. After the first blow, the accused-appellant was in
the process of giving a second blow when the complainant Nek Ram
(PW1) along with others present at the place of occurrence, had caught
hold of him. The ‘darat’ was then snatched from his hands. According
to Nek Ram (PW1), blood was oozing from the injury suffered by
Sardari Lal. Accordingly, Sardari Lal was immediately taken to the
CHC, Indora. Sardari Lal had reached the hospital at about 10.45 p.m.
He was declared dead at about 11.15 p.m.
2. Consequence upon the registration of First Information Report
no.123 of 2000 at Police Station, Indora, on 29.7.2000, the Police
initiated investigation into the matter. On completion of the same, the
accused-appellant was sent to face trial for commission of the offence
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under Section 302 of the Indian Penal Code. During the course of the
trial, the prosecution examined as many as 13 witnesses including six
witnesses of occurrence (Nek Ram - PW1, Kishan Singh - PW2, Sohan
- PW3, Mohinder Singh - PW6, Vakil Singh - PW7 and Shamsher Singh
- PW8). The prosecution also examined two doctors who had
examined Sardari Lal when he was taken to the CHC, Indora. One of
them had treated Sardari Lal when he was brought to the CHC, Indora,
whereas the other had conducted the post mortem examination. The
other witnesses were formal police witnesses. The prosecution also
produced various exhibits to prove the charge levelled against the
accused-appellant.
3. The statement of the accused-appellant was recorded under
Section 313 of the Code of Criminal Procedure after the prosecution
had concluded its evidence. In his statement under Section 313 of the
Code of Criminal Procedure, the accused-appellant projected a different
version of the incident. According to the accused-appellant, there was
an altercation between his brother Hari Singh (DW5) at the entrance of
the residence of Kishan Singh (PW2) during which a “gorkha” (a Nepali
living in India) named Rana gave a ‘darat’ blow to his elder brother Hari
Singh (DW5) which accidentally hit the deceased Sardari Lal. He
further stated, that information about the occurrence (as narrated by
him) was given by his brother Hari Singh (DW5) to the Magistrate,
Nurpur, on the day following the incident, i.e., on 30.7.2000. The
accused-appellant examined five witnesses in his defence including
Hari Singh (DW5) and Dr. V.K. Singla (DW2), Medical Officer,
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Community Health Centre, Choori, who had examined Hari Singh -
DW5 and had recorded the injuries found on his person.
4. Having narrated a birds eye view, of the accusation levelled
against the accused-appellant as also his defence, it is considered
expedient to summarily narrate the assertions made by witnesses
produced by the prosecution, in respect of the occurrence of
29.7.2000 :
(i) Nek Ram, the complainant, was examined by the prosecution as
PW1. He affirmed that on 29.7.2000, he and his brother Sardari
Lal, had gone to the house of Kishan Singh (PW2), for a
‘bhandara’. He deposed that he (Nek Ram - PW1) along with
Sohan (PW3), Mohinder Singh (PW6) and others were helping in
serving food at the ‘bhandara’. At about 8.00-8.30 p.m., Sohan
(PW3) and Shamsher Singh (PW8) came to him while he was
serving meals to the guests, and told him about exchange of hot
words between Sardari Lal (deceased) and Som Raj (the
accused-appellant) in the courtyard of Kishan Singh (PW2).
Thereupon he asserted, that he had proceeded to the courtyard
where he saw the accused-appellant Somraj giving a ‘darat’ blow
to Sardari Lal (the deceased) which landed on the back portion of
his head. He pointed out, that when the accused-appellant made
a second attempt for giving a second ‘darat’ blow to Sardari Lal,
he (Nek Ram - PW1), Mohinder Singh (PW6), Sohan (PW3),
Kishan Singh (PW2) and others overpowered Sardari Lal. He
further asserted, that Mohinder Singh (PW6) had snatched the
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‘darat’ from the hands of the accused-appellant Som Raj and had
thrown it away. He also testified, that having received the ‘darat’
blow, Sardari Lal had fallen on the ground, and was bleeding
profusely. Sardari Lal was immediately taken to the CHC, Indora,
where he succumbed to his injuries. He confirmed, that the
Police had reached the hospital and had recorded his statement.
He also stated, that the accused-appellant Som Raj alias Soma
was his uncle. The statement of Nek Ram (PW1) was in
consonance with the prosecution version of the occurrence.
During the course of his cross-examination, Nek Ram (PW1) was
confronted with the version of the incident depicted by the
accused-appellant during the course of his statement recorded
under Section 313 of the Code of Criminal Procedure. Nek Ram
(PW1), however, denied the correctness thereof.
(ii) Kishan Singh, at whose residence the ‘bhandara/yagna’ was
held, was examined as PW2. He reiterated the factual position of
the occurrence, in identical terms and in consonance with the
statement of Nek Ram (PW1). While doing so, he also affirmed
that the accused-appellant had tried to inflict a second blow with
the ‘darat’ on Sardari Lal. However, he was held by those at the
spot, and the ‘darat’ was snatched from his hands by Mohinder
Singh (PW6). He also reiterated, that on receipt of the injury at
the hands of the accused-appellant, Sardari Lal had fallen down
and blood was oozing from his head. He also deposed, that he
had recovered the ‘darat’ used by Som Raj and had handed over
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the same to the Police, during the course of investigation. He
also acknowledged, that the ‘darat’ produced in the court was the
same one with which Sardari Lal had been assaulted by the
accused-appellant. As in the case of Nek Ram (PW1), Kishan
Singh (PW2) was also confronted with the version of the incident
narrated by the accused-appellant during the course of his crossexamination. He, however, denied the same.
(iii) Karnail Singh was examined by the prosecution as PW3. The
statement of Karnail Singh (PW3) was on the same lines as those
of Nek Ram (PW1) and Kishan Singh (PW2). He too was
confronted during the course of cross-examination with the
version of the accused-appellant, namely, that the injury in
question had been caused by a “gorkha” named Rana. The
aforesaid suggestion put to the witness, was denied by him.
(iv) Mohinder Singh appeared before the Trial Court and recorded his
statement as PW6. He affirmed the quarrel between the rival
parties, namely, the deceased Sardari Lal and the accusedappellant, Som Raj. He also acknowledged, that Kishan Singh
(PW2) and Nek Ram (PW1) had caught hold of the accused. He
admitted, that he had seen the accused-appellant with the ‘darat’
in his hand. He also admitted, that he had snatched the ‘darat’
from the hands of the accused-appellant, and had thrown it away.
He admitted having seen the injury on the head of Sardari Lal,
who had fallen to the ground, and was in a pool of blood. He
however denied in his examination-in-chief, that he had actually
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seen the incident by asserting, that he did not know how the
deceased Sardari Lal had received the injury. Based on the
aforesaid statement made by Mohinder Singh (PW6), he was
declared hostile, and was permitted to be cross-examined by the
Public Prosecutor. During the course of his cross-examination,
he again acknowledged having seen the ‘darat’ in the hands of
the accused-appellant Som Raj, and additionally, that the
accused-appellant who had inflicted the first blow with the ‘darat’
on the person of Sardari lal. He further confirmed that the
accused-appellant had also tried to inflict another blow on Sardari
Lal, but was prevented by him and others from doing so. He
testified, that he had caught the hands of the accused-appellant,
and had thereby stopped him from inflicting the second blow. He
also reiterated, that he had forcibly snatched the ‘darat’ from the
hands of the accused-appellant, and had thrown it away.
Mohinder Singh (PW6) was cross-examined on the same lines as
the previous three witnesses referred to above, but he reiterated
the factual position recorded by him in his examination-in-chief,
as also during the course of his cross-examination by the Public
Prosecutor.
(v) The prosecution then produced Vakil Singh as PW7. Vakil Singh
affirmed before the Trial Court, that he had seen the deceased
Sardari Lal lying in an injured condition, and he was informed that
the injuries on Sardari Lal were caused by the accused-appellant
Som Raj with a ‘darat’. He asserted, that when he had seen
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Sardari Lal in the injured condition during which he could not
speak anything. People who had gathered at the place of
occurrence, had informed him that the accused-appellant had run
away from the spot after inflicting injuries on Sardari Lal. Based
on the fact that Vakil Singh (PW7) was denying of having himself
witnessed the incident, he was declared hostile. Thereupon, the
Public Prosecutor was permitted to cross-examine him. When
confronted with the statement made to the Police, he reiterated
that his statement had not been recorded correctly. He stated,
that he had not seen the accused Som Raj inflicting injuries on
the person of the deceased Sardari lal. He however deposed
that the people who had gathered at the place of the occurrence
had informed him, that the accused-appellant Som Raj had
inflicted injuries on the person of the deceased Sardari Lal with a
‘darat’. He also denied the version of the accused pertaining to
the “gorkha’ named Rana.
(vi) Shamsher Singh (PW8) was the last of the witnesses of
occurrence. He fully supported the prosecution version of the
incident. He deposed on the same lines as Nek Ram (PW1),
Kishan Singh (PW2), Karnail Singh (PW3) and Mohinder Singh
(PW6). He also endorsed the fact, that the accused-appellant
Som Raj had tried to inflict a second blow with the ‘darat’, but had
not succeeded in doing so because Nek Ram (PW1), Kishan
Singh (PW2) and Mohinder Singh (PW6) had caught hold of him.
He also denied the version narrated by the accused-appellant.
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5. In so far as the accused-appellant is concerned, after recording
his statement under Section 313 of the Code of Criminal Procedure, he
examined five witnesses in his defence. The statement of Dr. Deepak
Sharma, Block Medical Officer Gangath was recorded as DW1. DW1
affirmed that on 30.7.2007, he had examined Hari Singh (DW5) and
had found bruises over his lower jaw and also found three shaky teeth.
During the course of his cross-examination, he acknowledged that no
application was filed by Hari Singh (DW5) before him, requiring him to
conduct his medical examination. He denied as incorrect, the
suggestion that he had prepared the medico-legal certificate (Exhibit
D3) in connivance with Hari Singh (DW5). He also acknowledged, that
the injuries suffered by Hari Singh, could result from falling on a hard
surface. Dr. V.K. Singla, Medical officer CHC, Choori, was examined
as DW2. DW2 stated that on 31.7.2000 (two days after the
occurrence), he had examined Hari Singh in his capacity as Dental
Surgeon, Gangath, and had given his opinion as at Exhibit D1. Harnam
Singh, Havaldar Head Constable, Police Station Nurpur, appeared as
DW3. He confirmed that a rapat roznamacha (entry in the Daily Diary
of the Police Station) was recorded at Police Station Nurpur, in respect
of the injuries suffered by Hari Singh. He pointed out, that no action
had been taken in the matter, as the incident in question was within the
jurisdiction of Police Station, Indora. The statement of Dev Raj,
Hawaldar Head Constable, Police Station, Indora, was recorded as
DW4. He merely produced the original ‘rapat roznamcha’ of Police
Station, Indora, to affirm the factual position depicted by Harnam Singh,
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Havaldar Head Constable (DW3). The statement of Hari Singh was
recorded as DW5. In his statement, he acknowledged, that the
accused-appellant was his younger brother and the deceased Sardari
Lal was his nephew. He also acknowledged, that he alongwith his
family members, attended the ‘yagya’ held by Kishan Singh (PW2) at
his residence on 29.7.2000. During the course of his deposition, he
attempted to provide an alibi to the accused-appellant by asserting, that
the accused-appellant Som Raj had gone to Chintpurni on the date of
occurrence. He further stated, that Som Raj was visiting their other
younger brother who lived at Chintpurni. He also endeavoured to
substantiate the factual position asserted by the accused-appellant in
his statement under Section 313 of the Code of Criminal Procedure. In
this behalf he deposed, that a ‘gorkha’ named Rana had an altercation
with him outside the house of Kishan Singh (PW2). During the
aforesaid altercation, Rana had given him a blow on his mouth, which
had resulted in one broken tooth. He further stated, that when the
aforesaid Rana attempted a second blow with a ‘darat’ at him, he had
ducked, whereupon the blow had landed on the deceased Sardari Lal,
which resulted in the death of Sardari Lal. Hari Singh (DW5) further
testified, that he had lodged a report with the police. He deposed, that
he had also gone to the Civil Hospital, Nurpur for treatment, whereupon
he was referred to the Dental Surgeon at Gangath. Hari Singh (DW5)
deposed further, that having noted down his complaint, the same was
forwarded by Police Station, Nurpur, to the Police Station, Indora.
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6. Based on the statements of witnesses noticed hereinabove, we
shall endeavour to answer the legal issues canvassed at the hands of
the learned counsel for the accused-appellant. Suffice it to state, that
almost all the witnesses, whose statements have been noticed
hereinabove including the deceased, as well as, the accused-appellant,
are cousins, nephews or uncles. Consequently, it is apparent, that a
large number of relations have collectively deposed against the
accused-appellant, whereas, only the brother of the accused-appellant
Hari Singh (DW5) has deposed in his favour. On merits, there can
hardly be any doubt about the fact, that the accused-appellant inflicted
the fatal blow with a ‘darat’ on the back of the head of the deceased
Sardari Lal. The said singular blow proved to be fatal. The affirmation,
that the aforesaid blow had been inflicted by the accused-appellant
emerges from the statements of Nek Ram (PW1), Kishan Singh (PW2),
Sohan (PW3), Mohinder Singh (PW6) and Shamsher Singh (PW8). All
the aforesaid witnesses were present at the place of occurrence. All
the aforesaid witnesses were related to the deceased Sardari Lal, as
also the accused-appellant Som Raj. There is no reason for us to
doubt the veracity of their statements. In order to set up an alternative
version, the accused-appellant has narrated his own version of the
incident, wherein he acknowledges his presence at the
‘bhandara/yagna’ held at the residence of Kishan Singh (PW2) on
29.7.2000, when the occurrence in question took place. The statement
of Hari Singh (DW5), in our considered view, is insufficient to overturn
the statements of the prosecution witnesses. The statement of Hari
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Singh (DW5), to our mind, does not inspire any confidence. The
statement of Hari Singh (DW5), in our considered view, was recorded at
the behest of the accused-appellant, who is his real brother. We would
describe it as untrustworthy. In view of the overwhelming evidence
produced by the prosecution, we have no doubt in our mind, that the
fatal ‘darat’ blow was inflicted by the accused-appellant Som Raj on the
back of the head of the deceased Sardari Lal. We, therefore, affirm the
aforesaid conclusion drawn by the Trial Court, as well as, by the High
Court.
7. It would be relevant to mention, that learned counsel for the
accused-appellant vehemently contended that even if the singular fatal
blow is taken to have been inflicted by the accused-appellant Som Raj,
he could only be punished for the offence under Section 304 Part-II of
the Indian Penal Code, and not for the offence of murder under Section
302. In this behalf, it was the submission of the learned counsel, that
there was no premeditation to commit the offence on the date of
occurrence. It was also pointed out, that the evidence produced by the
prosecution, does not reveal any prior enmity between the accusedappellant and the deceased. Therefore, according to learned counsel,
the action should be treated as ‘culpable homicide not amounting to
murder’. It was sought to be explained, that the action attributed to the
accused-appellant, did not include any ingredient of intention of causing
such bodily injury as is likely to cause death. To support his aforesaid
submission, it was vehemently contended, that all the prosecution
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witnesses had stated in unison, that the accused-appellant had inflicted
a singular blow on the deceased Sardari Lal.
8. In order to support his aforesaid contention, learned counsel for
the appellant, in the first instance, placed reliance on the judgment of
this Court in Jagrup Singh Vs. State of Haryana, (1981) 3 SCC 616,
wherein this Court held as under:-
“5. In assailing the conviction, learned Counsel for the
appellant contends that the appellant having struck a
solitary blow on the head of the deceased with the blunt
side of the gandhala, can be attributed with the knowledge
that it would cause an injury which was likely to cause
death and not with any intention to cause the death of the
deceased. The offence committed by the appellant,
therefore, amounted to culpable homicide not amounting to
murder, punishable under Section 304, Part II of the Code.
He further contends, in the alternative, that there could be
no doubt that the appellant acted in the heat of the moment
when he hit the deceased and is, therefore, entitled to the
benefit of Exception 4 of Section 300 of the Code. On the
other hand, learned Counsel for the State contends that the
matter squarely falls within clause Thirdly of Section 300 of
the Code. He submits that merely because the appellant
rendered a solitary blow with the blunt side of the gandhala
on the head would not necessarily imply that the offence
amounted to culpable homicide not amounting to murder
punishable under Section 304, Part II of the Code.
6. There is no justification for the assertion that the giving of a
solitary blow on a vital part of the body resulting the death
must always necessarily reduce the offence to culpable
homicide not amounting to murder punishable under
Section 304, Part II of the Code. If a man deliberately
strikes another on the head with a heavy log of wood or an
iron rod or even a lathi so as to cause a fracture of the
skull, he must, in the absence of any circumstances
negativing the presumption, be deemed to have intended to
cause the death of the victim or such bodily injury as is
sufficient to cause death. The whole thing depends upon
the intention to cause death, and the case may be covered
by either clause Firstly or clause Thirdly. The nature of
intention must be gathered from the kind of weapon used,
the part of the body hit, the amount of force employed and
the circumstances attendant upon the death.
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xxx xxx xxx xxx xxx
9. Looking at the totality of the evidence, it would not be
possible to come to the conclusion that when the appellant
struck the deceased with the blunt side of the gandhala, he
intended to cause such bodily injury as was sufficient in the
ordinary course of nature to cause death. A gandhala is a
common agricultural implement consisting of a flat,
rectangular iron strip, three sides of which are blunt,
embedded in a wooden handle. The length of the iron strip
is in continuation of the wooden handle and the end portion
is sharp, which is used to dig holes in the earth to set up
fencing on embankments in the field. If a man is hit with the
blunt side on the head with sufficient force, it is bound to
cause, as here, death. There can be no doubt that it was
used with certain amount of force because there was
cerebral compression. But that by itself is not sufficient to
raise an inference that the appellant intended to cause
such bodily injury as was sufficient to cause death. He
could only be attributed with the knowledge that it was
likely to cause an injury which was likely to cause the
death. The matter, therefore, does not fall within clause
Thirdly of Section 300 of the Code.”
Reliance was also placed on the decision rendered by this Court in
Jagtar Singh Vs. State of Punjab, (1983) 2 SCC 342, wherein it has
been held as under:-
“5. The only question that we are called upon to examine in
the facts and circumstances of this case is whether the
appellant could be said to have committed murder of
deceased Narinder Singh punishable under Section 302 of
the Indian Penal Code.
6. A quarrel took place on the spur of the moment. The
appellant never expected to meet the deceased. When the
deceased was just passing by the road in front of the house
of the appellant, his forehead dashed with the parnala of
the house of the appellant which provoked the deceased to
remonstrate the appellant. It is in evidence that there was
exchange of abuses and at that time appellant gave a blow
with a knife which landed on the chest of the deceased.
7. Undoubtedly, PW 2 Dr H.S. Gill opined that the blow on the
chest pierced deep inside the chest cavity resulting in the
injury to the heart and this injury was sufficient in the
ordinary course of nature to cause death. The question is
whether in the circumstances in which the appellant gave a
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blow with a knife on the chest, he could be said to have
intended to cause death or he could be imputed the
intention to cause that particular injury which has proved
fatal? The circumstances in which the incident occurred
would clearly negative any suggestion of premeditation. It
was in a sudden quarrel to some extent provoked by the
deceased, that the appellant gave one blow with a knife.
Could it be said that para 3 of Section 300 is attracted. We
have considerable doubt about the conclusion reached by
the High Court. We cannot confidently say that the
appellant intended to cause that particular injury which is
shown to have caused death. There was no premeditation.
There was no malice. The meeting was a chance meeting.
The cause of quarrel though trivial was just sudden and in
this background the appellant, a very young man gave one
blow. He could not be imputed with the intention to cause
death or the intention to cause that particular injury which
has proved fatal. Neither para 1 nor para 3 of Section 300
would be attracted. We are fortified in this view by the
decision of this Court in Jagrup Singh v. State of Haryana,
(1981) 3 SCC 616. It was subsequently followed in Randhir
Singh v. State of Punjab, (1981) 4 SCC 484, and Kulwant
Rai v. State of Punjab, (1981) 4 SCC 245. Following the
ratio of the aforementioned decisions, we are of the opinion
that the appellant could not be convicted for having
committed murder of the deceased Narinder Singh. His
conviction for an offence under Section 302, IPC and
sentence of imprisonment for life are liable to be set aside.
8. The next question is what offence the appellant is shown to
have committed? In a trivial quarrel the appellant wielded a
weapon like a knife. The incident occurred around 1.45
noon. The quarrel was of a trivial nature and even in such a
trivial quarrel the appellant wielded a weapon like a knife
and landed a blow in the chest. In these circumstances, it is
a permissible inference that the appellant at least could be
imputed with a knowledge that he was likely to cause an
injury which was likely to cause death. Therefore, the
appellant is shown to have committed an offence under
Section 304 Part II of the IPC and a sentence of
imprisonment for five years will meet the ends of justice.
9. Accordingly this appeal is partly allowed. The conviction of
the appellant for an offence under Section 302, IPC and
sentence of imprisonment for life are set aside. Appellant is
convicted for having committed an offence under Section
304 Part II of the Indian Penal Code and he is sentenced to
suffer RI for five years. Conviction of the appellant for an
offence under Section 304 and the sentence imposed for
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the same are confirmed. Both the substantive sentences
are directed to run concurrently.”
9. In order to controvert the aforenoticed submission advanced at
the hands of the learned counsel for the accused-appellant, it was the
vehement assertion of the learned counsel for the respondent State,
that the weapon of offence would constitute a material basis for
determining the purely legal contention advanced at the hands of the
learned counsel for the appellant. It was pointed out, that a ‘darat’ had
been used by the accused-appellant for inflicting the blow on the
deceased Sardari Lal. It was submitted, that a ‘darat’ is used by
agriculturalists for cutting branches and trees. It was also submitted,
that butchers use a ‘darat’ for beheading goats and sheeps. Based on
the aforesaid factual position it was submitted, that the very nature of
the weapon of offence is sufficient to infer, that the accused-appellant
had the intention of causing such bodily injury as is likely to cause
death. It was also the contention of the learned counsel for the
respondent State, that it would be wrongful to adjudicate the present
controversy under the assumption, that the accused-appellant had
caused a singular injury. As a matter of fact, it was the vehement
contention of the learned counsel for the respondent State, that the
accused-appellant was in the process of inflicting a second ‘darat’ blow
on the deceased Sardari Lal, but was prevented from doing so by those
present at the place of occurrence. Insofar as the instant aspect of the
matter is concerned, learned counsel for the respondent State placed
reliance on the statements of Nek Ram (PW1), Kishan Singh (PW2),
Sohan (PW3), Mohinder Singh (PW6) and Shamsher Singh (PW8), who
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unequivocally stated, that they had caught hold of the accusedappellant when he was in the process of inflicting a second ‘darat’ blow
on the deceased. They all affirmed, that the ‘darat’ was snatched away
from the accused-appellant by Mohinder Singh (PW6). Accordingly, it
was contended, that left to himself, the accused-appellant would have
inflicted a second blow, and probably still further blows, had he not
been restrained by those present at the place of occurrence. Besides
the aforesaid, there is a third reason highlighted by the learned counsel
for the respondent State, namely, the place on the body of the
deceased and the nature of injury caused to the deceased. Insofar as
the instant aspect of the matter is concerned, it was submitted, that the
injury in question was inflicted on the head of the deceased Sardari Lal.
Learned counsel invited our attention to the statements of Dr. Suman
Saxena (PW4) and Dr. B.M. Gupta (PW5). Having examined Sardari
Lal, they had deposed, that the deceased bore an incised wound 6 cm
x 4 cm brain deep, cutting parts of the underlying bone. The injury
under reference was caused just lateral to the midline on the left side of
the occipital bone. The underlying brain tissue, according to these
witnesses, could be seen and felt through a hole at the place of the
wound. The size of the hole in the occipital bone was 3 cm x 2 cm.
The underlying brain membranes were found to have been torn off, and
brain tissues were found lacerated. It was accordingly his submission,
that the fact that the accused-appellant had aimed the ‘darat’ blow on
the head of the deceased with such force, that it caused a hole in the
occipital bone and exposed the brain, was sufficient to arrive at the
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conclusion, that the same was inflicted with the intention, that it would
cause death of the person hit.
10. In order to support his contention, that the offence committed by
the accused-appellant constitutes ‘culpable homicide amounting to
murder’, reliance was placed by the learned State counsel on the
decision rendered by this Court in State of Andhra Pradesh Vs.
Rayavarapu Punnayya & Anr., (1976) 4 SCC 382, wherein it has been
held as under:-
“13. The academic distinction between ‘murder’ and ‘culpable
homicide not amounting to murder’ has vexed the courts for
more than a century. The confusion is caused, if courts
losing sight of the true scope and meaning of the terms
used by the legislature in these sections, allow themselves
to be drawn into minutae abstractions. The safest way of
approach to the interpretation and application of these
provisions seems to be to keep in focus the keywords used
in the various clauses of Sections 299 and 300. The
following comparative table will be helpful in appreciating
the points of distinction between the two offences.
Section 299 Section 300
A person commits culpable
homicide if the act by which the
death is caused is done –
Subject to certain exceptions
culpable homicide is murder if
the act by which the death is
caused is done -
INTENTION
(a) with the intention of causing
death; or
(b) with the intention of causing
such bodily injury as is likely to
cause death; or
(1) with the intention of
causing death; or
(2) with the intention of
causing such bodily injury as
the offender knows to be likely
to cause the death of the
person to whom the harm is
caused; or
(3) with the intention of
causing bodily injury to any
person and the bodily injury
intended to be inflicted is
sufficient in the ordinary
course of nature to cause
death; or
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KNOWLEDGE
(c) with the knowledge that the
act is likely to cause death
(4) with the knowledge that
the act is so imminently
dangerous that it must in all
probability cause death or
such bodily injury as is likely to
cause death, and without any
excuse for incurring the risk of
causing death or such injury
as is mentioned above.
14. Clause (b) of Section 299 corresponds with clauses (2) and
(3) of Section 300. The distinguishing feature of the mens
rea requisite under clause (2) is the knowledge possessed
by the offender regarding the particular victim being in such
a peculiar condition or state of health that the internal harm
caused to him is likely to be fatal, notwithstanding the fact
that such harm would not in the ordinary way of nature be
sufficient to cause death of a person in normal health or
condition. It is noteworthy that the “intention to cause
death” is not an essential requirement of clause (2). Only
the intention of causing the bodily injury coupled with the
offender's knowledge of the likelihood of such injury
causing the death of the particular victim, is sufficient to
bring the killing within the ambit of this clause. This aspect
of clause (2) is borne out by Illustration (b) appended to
Section 300.
15. Clause (b) of Section 299 does not postulate any such
knowledge on the part of the offender. Instances of cases
falling under clause (2) of Section 300 can be where the
assailant causes death by a fist blow intentionally given
knowing that the victim is suffering from an enlarged liver,
or enlarged spleen or diseased heart and such blow is
likely to cause death of that particular person as a result of
the rupture of the liver, or spleen or the failure of the heart,
as the case may be. If the assailant had no such
knowledge about the disease or special frailty of the victim,
nor an intention to cause death or bodily injury sufficient in
the ordinary course of nature to cause death, the offence
will not be murder, even if the injury which caused the
death, was intentionally given.
16. In clause (3) of Section 300, instead of the words “likely to
cause death” occurring in the corresponding clause (b) of
Section 299, the words “sufficient in the ordinary course of
nature” have been used. Obviously, the distinction lies
between a bodily injury likely to cause death and a bodily
injury sufficient in the ordinary course of nature to cause
death. The distinction is fine but real, and, if overlooked,
may result in miscarriage of justice. The difference between
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clause (b) of Section 299 and clause (3) of Section 300 is
one of the degree of probability of death resulting from the
intended bodily injury. To put it more broadly, it is the
degree of probability of death which determines whether a
culpable homicide is of the gravest, medium or the lowest
degree. The word “likely” in clause (b) of Section 299
conveys the sense of ‘probable’ as distinguished from a
mere possibility. The words “bodily injury … sufficient in the
ordinary course of nature to cause death” mean that death
will be the “most probable” result of the injury, having
regard to the ordinary course of nature.
17. For cases to fall within clause (3), it is not necessary that
the offender intended to cause death, so long as the death
ensues from the intentional bodily injury or injuries
sufficient to cause death in the ordinary course of nature.
Rajwant v. State of Kerala, AIR 1966 SC 1874, is an apt
illustration of this point.
18. In Virsa Singh v. State of Punjab, AIR 1958 SC 465, Vivian
Bose, J. speaking for this Court, explained the meaning
and scope of clause (3), thus (at p. 1500):-
“The prosecution must prove the following facts
before it can bring a case under Section 300,
“thirdly”. First, it must establish quite objectively, that
a bodily injury is present; secondly the nature of the
injury must be proved. These are purely objective
investigations. It must be proved that there was an
intention to inflict that particular injury, that is to say,
that it was not accidental or unintentional or that
some other kind of injury was intended. Once these
three elements are proved to be present, the enquiry
proceeds further, and fourthly it must be proved that
the injury of the type just described made up of the
three elements set out above was sufficient to cause
death in the ordinary course of nature. This part of
the enquiry is purely objective and inferential and has
nothing to do with the intention of the offender.”
19. Thus according to the rule laid down in Virsa Singh case of
even if the intention of accused was limited to the infliction
of a bodily injury sufficient to cause death in the ordinary
course of nature, and did not extend to the intention of
causing death, the offence would be ‘murder’. Illustration
(c) appended to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4) of Section 300
both require knowledge of the probability of the act causing
death. It is not necessary for the purpose of this case to
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dilate much on the distinction between these corresponding
clauses. It will be sufficient to say that clause (4) of Section
300 would be applicable where the knowledge of the
offender as to the probability of death of a person or
persons in general — as distinguished from a particular
person or persons — being caused from his imminently
dangerous act, approximates to a practical certainty. Such
knowledge on the part of the offender must be of the
highest degree of probability, the act having been
committed by the offender without any excuse for incurring
the risk of causing death or such injury as aforesaid.
21. From the above conspectus, it emerges that whenever a
court is confronted with the question whether the offence is
‘murder’ or ‘culpable homicide not amounting to murder’, on
the facts of a case, it will be convenient for it to approach
the problem in three stages. The question to be considered
at the first stage would be, whether the accused has done
an act by doing which he has caused the death of another.
Proof of such causal connection between the act of the
accused and the death, leads to the second stage for
considering whether that act of the accused amounts to
“culpable homicide” as defined in Section 299. If the
answer to this question is prima facie found in the
affirmative, the stage for considering the operation of
Section 300 of the Penal Code, is reached. This is the
stage at which the court should determine whether the
facts proved by the prosecution bring the case within the
ambit of any of the four clauses of the definition of ‘murder’
contained in Section 300. If the answer to this question is in
the negative the offence would be ‘culpable homicide not
amounting to murder’, punishable under the first or the
second part of Section 304, depending, respectively, on
whether the second or the third clause of Section 299 is
applicable. If this question is found in the positive, but the
case comes within any of the exceptions enumerated in
Section 300, the offence would still be ‘culpable homicide
not amounting to murder’, punishable under the first part of
Section 304, of the Penal Code.
22. The above are only broad guidelines and not cast-iron
imperatives. In most cases, their observance will facilitate
the task of the court. But sometimes the facts are so
intertwined and the second and the third stages so
telescoped into each other, that it may not be convenient to
give a separate treatment to the matters involved in the
second and third stages.”
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11. We shall now venture to apply the parameters laid down by this
Court, to determine
whether the accused-appellant herein can be stated
to have intentionally caused such bodily injury to the deceased, as he
knew was so imminently dangerous, that it would in all probability cause
his death.
First and foremost, it is apparent from the factual narration of
the witnesses produced by the prosecution, that the accused-appellant
was not carrying the ‘darat’ but had picked up the same from the house
of Kishan Singh (PW2). A ‘darat’, as noticed above, is a traditional
agricultural implement used for cutting branches of trees. It is also used
by butchers for beheading goats and sheep. A ‘darat’ has a handle and
a large cutting blade. Having picked up the ‘darat’ for committing an
assault on the deceased, it is apparent that the accused-appellant was
aware of the nature of injury he was likely to cause with the weapon of
incident.
From the statements of Dr. Suman Saxena (PW4) and Dr.
B.M. Gupta (PW5), the nature of injuries caused to the deceased has
been brought out.
A perusal thereof would leave no room for doubt,
that the accused-appellant had chosen the sharp side of the ‘darat’ and
not the blunt side. The ferocity with which the aforesaid blow was
struck clearly emerges from the fact that the blow resulted in cutting
through the skull of the deceased and caused a hole therein, resulting in
exposing the brain tissue. When a blow with a deadly weapon is struck
with ferocity, it is apparent that the assailant intends to cause bodily
injury of a nature which he knows is so imminently dangerous, that it
must in all probability cause death. The place where the blow was
struck (at the back of the head of the deceased) by the accused-
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appellant, also leads to the same inference.
It is not the case of the
accused-appellant, that the occurrence arose out of a sudden quarrel.
It is also not his case, that the blow was struck in the heat of the
moment. It is not even his case, that he had retaliated as a
consequence of provocation at the hands of the deceased. He has
therefore no excuse, for such an extreme act.
Another material fact is
the relationship between the parties. The accused-appellant was an
uncle to the deceased. In such circumstances, there is hardly any
cause to doubt the intent and knowledge of the accused-appellant.
Besides the aforesaid factual position, it would be incorrect to treat the
instant incident as one wherein a single blow had been inflicted by the
accused. As many as five witnesses of the occurrence have stated in
unison, that the accused-appellant was in the process of inflicting a
second blow on the deceased, when they caught hold of him,
whereupon one of them (Mohinder Singh – PW6) snatched the ‘darat’
from the accused-appellant, and threw it away. In such a situation, it
would improper to treat/determine the culpability of the accused
appellant by assuming, that he had inflicted only one injury on the
deceased.
Keeping in mind the parameters of the judgments referred to
by the learned counsel for the rival parties (which have been extracted
above), we have no doubt in our mind, that the accused-appellant must
be deemed to have committed the offence of ‘culpable homicide
amounting to murder’ under Section 302 of the Indian Penal Code, as
the accused-appellant Som Raj had struck the ‘darat’ blow, with the
intention of causing such bodily injury, which he knew was so
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imminently dangerous, that it would in all probability cause the death of
Sardari Lal.
Having recorded the aforesaid conclusion, we are satisfied,
that the accused-appellant was justifiably convicted of the offence under
Section 302 of the Indian Penal Code and sentenced to undergo
Rigorous Imprisonment for life, as also, to pay a fine of Rs.10,000/- (and
in default, to undergo further simple imprisonment for a period of one
year).
12. In view of our aforesaid conclusions, the instant appeal being
devoid of merit, is dismissed.
…………………………….J.
(P. Sathasivam)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
February 22, 2013.
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