the conviction of the appellant may be altered from Section 302 IPC to Section 304 Part II IPC or at the most under Section 304 Part-I IPC. - the occurrence took place suddenly and there was no premeditation on the part of the appellants. There is no evidence that the appellants made special preparation for assaulting the deceased with the intent to kill him. There is no dispute that the appellants assaulted deceased in such a manner that the deceased suffered grievous injuries which was sufficient to cause death, but we are convinced that the injury was not intended by the appellants to kill the deceased.= In the facts and circumstances of the case, in our considered opinion, the instant case falls under Section 304 Part II IPC as stated above. Although the appellants had no intention to cause death but it can safely be inferred that the appellants knew that such bodily injury was likely to cause death, hence the appellants are guilty of culpable homicide not amounting to murder and are liable to be punished under Section 304 Part II IPC. 22. Accordingly, we modify the judgment of the trial court and the High Court and convert the conviction under Section 302 to 304 Part II IPC, and sentence the appellants to ten years’ imprisonment. The appeal is, therefore, disposed of with the modi

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 805 OF 2009
Litta Singh & Anr. … Appellant(s)
versus
State of Rajasthan … Respondent(s)
J U D G M E N T
M.Y. Eqbal, J.
The present appeal by special leave arises out of the
judgment and order dated 8th May, 2008 of the High Court of
Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal No. 239
of 2002 whereby the appeal of the appellants herein was dismissed
upholding the judgment and order dated 23rd January, 2002 of the
Additional Sessions Judge in Sessions Case No. 16 of 2001 whereby
the appellants were convicted under Section 302/34 IPC and
sentenced to imprisonment for life and a fine of rupees one thousand
1Page 2
each and in default in payment of fine to further undergo rigorous
imprisonment for one month each in addition.
2. During the pendency of this appeal, appellant No.2 Kalla
Singh was granted bail by this Court on 3rd February, 2010.
3. The case of the prosecution in brief is that complainant
Baltej Singh (PW-1) submitted a written report on 7th February, 2001
(Ex.P/1) in the police station Sadulshahar upon which FIR (Ex. P/17)
was drawn and a case under Section 307, 341, 323/34 was
registered. It is alleged in the said report Ex.P/1 that to pass time the
villagers and complainant and his family members used to sit near
the fire during the time of winter and cold in front of house of Mukund
Singh. Boga Singh, co-accused was not liking sitting of brother of
complainant Hansraj Singh and, therefore, two days before the date
of incident quarrel took place between Hansraj Singh and Boga
Singh. On 7th February, 2001 at about 7.00 p.m., hearing the voice
MARO MARO coming from the side of lane in front of the house of
Mukund Singh, the complainant, Yadvinder Singh, Mukund Singh and
Gurjant Singh ran towards the place from where the voice was
coming. There they saw that accused Boga Singh and his two sons
Litta Singh and Kalla Singh (appellants herein) were beating
2Page 3
Hansraj Singh with lathis and gandasi. Kalla Singh had gandasi with
him who inflicted injury by gandasi on the head of Hansraj Singh and
others gave beating by lathis. The complainant, Mukund Singh,
Yadvinder Singh and Gurjant Singh shouted upon which the accused
ran away. The complainant took the victim to the hospital and got
him admitted. He lodged report Ex. P/1 in the police station
Sadulshahar at 10.00 p.m. on the basis of which FIR No. 29/2001
(Ex.P/17) was registered under Sections 307, 341, 323/34 IPC. The
victim died on 8th February, 2001 during treatment in the hospital on
which Section 302 IPC was added. During investigation, site was
inspected on 8th February, 2001 and blood soil and sample soil were
collected. All the three accused were arrested. The weapons of
offence were also recovered. The seized articles were sent to
Forensic Science Laboratory (FSL) for report. After recording the
statements of the witnesses and obtaining opinion of the FSL (report
Ex.P/24) and post mortem report (Ex.P/14), the challan was filed
against the accused persons under Section 302/34 IPC. The
accused denied the charges and sought trial. In support of its case,
the prosecution examined as many as nine witnesses out of whom
PW-1 Baljet Singh, PW-2 Yadvinder Singh and PW-3 Mukund Singh
3Page 4
are stated to be eye-witnesses, PW-6 Dr. B.B. Gupta & PW-7 Dr.
Manish Ahuja are witnesses regarding treatment of the deceased and
post mortem report, PW-8 Chandra Prakash Parick as Investigating
Officer and the other witnesses i.e. PW-4 Sewa Singh, PW-5
Lakharam & PW-9 Haranarayan are witnesses to prove the
recovery/seizure of the articles and sending them to the FSL. Each
of the accused denied the incriminating circumstances put to them
and stated that they have been falsely implicated. The accused Boga
Singh took further stand that the deceased Hansraj Singh had illicit
relation with wife of Gurjant Singh and the same being objected by
him he has been wrongly implicated in the case of murder.
However, none of the accused led any evidence in defence.
4. The following injuries were found on the body of the
deceased on performing post mortem:
1. Incised wound 4 cm x 1/5 cm x bone deep was on left
forearm. The bones of lower side were fractured.
2. Incised wound 20 cm x 1/4 cm x skin deep was on the right
forearm.
3. Abrasion 5 cm x 1/8 cm on right shoulder.
4. Abrasion 5 cm x 1/8 cm on right shoulder.
5. Abrasion 7 cm x ½ cm was present on the waist.
4Page 5
6. Abrasion 7 cm x ½ cm was present on the waist.
7. Cyanosed mark with swelling. There was 8 cm abrasion
within the injury on left temple which 1 cm x 1 cm on central
part.
8. Cyanosed and swelled 7 cm x 7 cm on right temple 1 cm x 1
cm abrasion was present inside the same injury.
9. Cyanosed and swelled 6 cm x 8 cm clotted blood was
present under the skin on cutting back side of head which was
extending from injury No. 7 upto the lower part of injury No. 9.
On cutting the bone blood had coagulated which duramatter
was in the brain which was in the left parietal region, occipital
region and right tempo-parietal region.
10. Cyanosed 10 cm x 1 cm on right knee.
5. According to the doctor (PW-6), all the injuries were ante
mortem and the deceased died due to shock and coma arising out of
head injury Nos. 7, 8 and 9. Injury Nos. 7 and 8 was the cause of
death in ordinary course of nature.
6. The trial court on the basis of statement of PW-6 made on
the basis of post mortem report (Ex.P/14) held that the death of
deceased Hansraj Singh was homicidal. As regards credibility of the
testimony of eye-witnesses (PW-1, PW-2 and PW-3), the trial court
observed (in para 18) that it may be true that the place where all
these three witnesses were standing seeing the accused directly from
5Page 6
there is not at all possible but their statement is that they heard the
call MARO MARO and then they rushed there; there may be
exaggeration in the statements of PW-1 and PW-2 regarding seeing
the accused because both of them are close relatives of the
deceased and they have made statement of seeing the accused
directly that they wanted to give conclusive evidence on this point that
they saw accused while assaulting from the very beginning but on the
basis of their statement that they have seen the accused from that
place where they were standing, on this basis it cannot be agreed
that they did not hear the call MARO MARO; and since there was a
call of MARO MARO, therefore all these three witnesses rushed there
and they saw that the accused were assaulting the deceased Hansraj
Singh, cannot be disbelieved. As regards discrepancies and
shortcomings in the statements, the trial court held (in para 19) that
on this ground the entire prosecution case cannot be treated untrue
because there is no such case in which such discrepancies of
general nature do not exist and the court has to see that how much
prosecution evidence is reliable in respect of chief statement of the
occurrence. On the argument that PW-1 and PW-2 being close
relatives of the deceased their statements cannot be believed, the
6Page 7
trial court did not accept the same observing that their arrival at the
spot of occurrence was natural because they made statement of
reaching the place of occurrence on hearing the call of MARO MARO
and the place of occurrence is not very far from their house. On the
argument that Gurjant Singh being the eye-witness has not been
examined by the prosecution, the trial court held that it is for the
prosecution as to which witnesses are to be examined and when the
same fact is proved through reliable witness then for corroboration of
it on the same point by getting examined more than one witnesses is
not required.
7. Ultimately, the trial court held that the accused Litta Singh
and Kalla Singh caused fatal injuries to the deceased Hansraj Singh
by assaulting him with sickle (gandasi) and lathi with the motive of
causing his death as a result of which he died but the fact of any
participation of accused Boga Singh in the said offence is not found
to be proved beyond reasonable doubt and therefore, giving benefit
of the doubt accused Boga Singh was acquitted. The appellants
herein were convicted under Section 302/34 IPC and sentenced as
stated above.
7Page 8
8. Aggrieved by the judgment of the trial court, the
appellants preferred an appeal before the High Court. The High
Court after analyzing the facts of the case and re-appreciating the
testimonies of the witnesses, affirmed the findings recorded by the
trial court and dismissed the appeal. Hence, this appeal by special
leave.
9. Mr. Sushil Kumar Jain, learned counsel for the appellants
assailed the impugned judgment and order of conviction as being
contrary to the facts and evidence on record. Learned counsel firstly
submitted that the courts below have erred in placing reliance on the
statements of the PW-1 Baltej Singh, PW-2 Yadvinder Singh, PW-3
Mukund Singh, who were ex facie interested witnesses inasmuch as
PW-1 and PW-2 are brother and son of the deceased and Mukund
Singh was inimical towards the appellants. Learned counsel
submitted that since the statements of these witnesses had been
disbelieved qua Boga Singh, the High Court has gravely erred in
placing reliance on the statements of these witnesses without any
corroboration by independent witnesses. Learned counsel drew our
attention to the judgment of the trial court and submitted that the High
Court ought to have considered the findings recorded by the trial
8Page 9
court in para 22 of the judgment. Para 22 of the trial court judgment
reads as under:-
“As far as there is the question of the accused
Boga Singh though statements are also
against him similar to PW.1, PW.2 and PW.3
that he also beat the deceased with lathi but
our opinion in this regard is that PW.1 and
PW.2 have made statements regarding the
accused Boga Singh that accused Boga Singh
raised the call of MARO MARO but in the
statement under Section 161 Cr.P.C. of all
these three there is no such statement that
who gave a call of MARO MARO was the
accused Boga Singh. It is revealed from this
that the statement made by PW.1 and PW.2
regarding giving a call of MARO MARO by
accused Boga Singh has been made for
ensuring that accused Boga Singh be also
fully included in this case. PW.3 Mukand
Singh does not make such statement in his
statement in the court that accused Boga
Singh raised a call of MARO MARO and it
was natural for him that he only heard the call
did not see the accused because at that time
he was feeding bread to the dogs in front of
his house. PW.1 and PW.2 have made this
excess statement in the court regarding Boga
Singh due to which doubt is created that
whether in fact call of MARO MARO was
made by Boga Singh only because the place
where these people were standing and in the
time of occurrence it was not possible to see
for them that the call was given by him. In
addition to this there was no blood on the lathi
which accused Boga Singh got recovered on
his information. Therefore, this also creates
doubt that the lathi which was seized was
used in causing injuries to the deceased.
9Page 10
There is one more practical fact that when his
two young sons in which the age of accused
Kala Singh is 20 years and accused Leeta
Singh is 25 years old as has been told by
them in their statements under Section 313
Cr.P.C, and both have sufficient capacity of
causing injuries to the deceased then this
accused was having the necessity that he also
cause injuries to the deceased. His presence
may be at the spot of occurrence because the
manner in which PW.1, PW.2 and PW.3 came
on hearing MARO MARO then he may have
also come there but neither he gave a call of
MARO MARO and instigated both his sons in
any manner and nor he took any part in
causing injuries to the deceased. Therefore,
the statements of PW.1, PW.2 and PW.3
concerning him cannot be believed and giving
benefit of doubt to him is justified.”
10. Learned counsel submitted that the allegation in the FIR
made against all the three accused persons and the evidence
adduced by the prosecution cannot be segregated. Since one of the
accused Boga Singh has been acquitted, then there is no reason why
the appellants may not be acquitted from the charges. Learned
counsel further submitted that the genesis of the incident has not
been established as to which injuries were fatal. Learned counsel
referred the decisions of this Court in the case of Ishwar Singh vs.
State of U.P., (1976) 4 SCC 355 and State of U.P. vs. Madan
Mohan & Ors., AIR 1989 SC 1519. Learned counsel submitted that
1
0Page 11
the non-examination of Gurjant Singh and the persons of the locality
is fatal in the instant case as no explanation has been given for their
non-examination. Lastly, learned counsel made an alternative
argument and submitted that there was no common intention of the
appellants to kill the victim. It may be that because of some dispute
and quarrel between the appellants and the victim, the appellants
might have tried to teach lesson to the victim and in that they have
allegedly inflicted injuries which have caused the death of the victim.
And in the said premises, the conviction of the appellant may be
altered from Section 302 IPC to Section 304 Part II IPC or at the most
under Section 304 Part-I IPC. 
11. On the other hand, Dr. Manish Singhvi, learned counsel
appearing for the prosecution side submitted that there are direct
evidence in the form of eye-witnesses, namely, PW-2 and PW-3.
Learned counsel submitted that the weapons used by the appellants
were recovered and blood found on the said weapons. Learned
counsel submitted that the head injuries i.e. injury Nos. 7, 8 and 9 are
independently sufficient to cause the death. Learned counsel
submitted that Gurjant Singh may not be called as best witness but
one of the witnesses. Since the evidence of PWs 1, 2 and 3 was
1
1Page 12
sufficient to establish the case, non-examination of Gurjant Singh is
not in any way fatal to the prosecution side.
12. We have carefully examined the evidence adduced by the
prosecution and also the complaint lodged by the complainant on the
basis of which the case was registered against the appellant Boga
Singh who has been acquitted in the case. Much stress and
emphasis has been given to the word “MARO MARO” coming from
the side of lane in front of the house of Mukund Singh. Hearing the
voice, the accused person alleged to have run towards the place and
saw that the accused Boga Singh and his two sons Litta Singh and
Kalla Singh were beating the deceased with lathi and gandasi. In the
FIR (English translation of the same has been annexed as Annexure
P-1), it appears that the informant alleged that when he along with
two others ran in front of the house of Mukund Singh, a loud voice
“MARO MARO” was heard. On hearing the turmoil, the complainant
and PWs 2 and 3 rushed and saw that the accused persons were
assaulting the deceased. When the complainant and PWs 2 and 3
raised commotion, then the accused persons ran away. PW-1, who
is the complainant, in his evidence, has deposed otherwise.
According to his evidence, there was hue and cry, Boga Singh was
1
2Page 13
saying “KILL KILL”. Hearing the hue and cry, he went running there
and saw that the accused persons were beating the deceased. PW-2
Yadvinder Singh in his deposition has said that on hearing the sound
of “MARO MARO” he saw that Boga Singh was saying “MARO
MARO”, then they went there and saw that three accused persons
were beating his father. When they reached nearby, then these
persons fled away. PW-3 Mukund Singh has said that the incident
was of about six months before. While he was feeding bread to the
dogs, then sound of “MARO MARO” reached. He reached there
running and saw that the accused persons were beating Hansraj
Singh.
13. The trial court proceeded on the basis of written report
(Ex. P/1) submitted in the police station wherein the allegation was
that the deceased while coming home from the field at about 7
O’clock and when he reached in the lane in front of the house of
Mukund Singh a loud voice “MARO MARO” was heard. In the
judgment, the word “MARO MARO” was described as “MAR DO
MAR DO”. The trial court further noticed the evidence of PWs 1, 2
and 3 who alleged to have heard the noise “MARO MARO”. The trial
court recorded its opinion which is quoted hereinbelow:-
1
3Page 14
“ …… My opinion in this regard is that it may
be true the place where all these three
witnesses were standing seeing the accused
from there is not at all possible because the
occurrence is about quarter to seven - seven
O’clock evening on 7th February 2001 and on
this day sun sets at almost 6½ O’clock and
the dark after half an hour after sun set is that
much in which it is not possible to see the
accused directly but their statement is that
they heard the call MARO MARO then they
rushed there. There may be exaggeration in
the statements of PW-1 and PW-2 regarding
seeing the accused because both of them are
close relatives of the deceased and they have
made statement of seeing the accused
directly that they wanted to give conclusive
evidence on this point that they saw accused
while assaulting from the very beginning but
on the basis of their statement that they have
seen the accused from that place where they
were standing, on this basis it cannot be
agreed that they did not hear the call of
MARO MARO. The statement of PW.1, PW.2
and PW.3 that they had gone there on hearing
MARO MARO and among them the
statement of PW.1 and PW.2 is certain that
Banga Singh was giving a call of MARO
MARO but in it their evidence may be
doubtful that in fact Bonga Singh made a call
of MARO MARO but since there was a call of
MARO MARO therefore all these three
witnesses rushed there and they saw that the
accused were assaulting deceased Hansraj
Singh. The place of all these witnesses is
though not very far from the place of
occurrence hence, their going to the place of
occurrence on hearing the sound of MARO
MARO and having gone there evidence of
seeing the accused assaulting Hansraj Singh
1
4Page 15
cannot be disbelieved. Though the Advocate
for the accused have given the argument in
their arguments that the Investigation Officer
has not shown that place wherefrom they
were seeing the accused by standing but it
does not have any adverse effect because it
was necessary for the Investigation Officer
that he would show the spot of occurrence
and the place in the vicinity not that place
wherefrom any witness may have seen
occurrence. Had all the three witnesses
would have made the statement of not going
at the place of occurrence on hearing the
sound of MARO MARO and would have made
the statement of seeing the occurrence
standing only at that place then this argument
was having the importance that how they had
seen the occurrence while standing at the
place where they were standing. When they
reached the place of occurrence on hearing
the call then the state of their being standing
or place becomes secondary. Therefore, the
argument given by the learned Advocate for
the accused does not have any force.”
14. However, with regard to the accused Boga Singh, the
trial court recorded the reasoning in para 22 of the judgment while
acquitting him.
15. Curiously enough, the High Court while narrating the
incident as contained in Ex. P/1, has wrongly mentioned that the
witnesses have heard the voice “KILL KILL” and hearing the shout,
1
5Page 16
the witnesses reached the spot and saw the accused persons beating
the deceased.
16. The word “MARO MARO” can never mean “KILL KILL”.
The word “KILL” means to cause the death of a person or animal. It
also means to put some one to death, to murder, to slaughter. On
the other hand, the word “MARO MARO” means to beat, to cause
assault. Here the thin line of distinction lies between the two words.
If the voice is “KILL KILL”, it means to cause death of the person
and to finish him. Had the intention of the person been to make such
call or voice “KILL KILL” and on the basis of such call the accused
persons had assaulted the deceased, then the intention would have
been clearly to kill and murder the deceased. Here on hearing the
call “MARO MARO”, the accused persons with Boga Singh started
beating the deceased.
17. Considering the nature of the injury caused to the
deceased and the weapons i.e. lathi and gandasi (sickle) used by
them, it cannot be ruled out that they assaulted the deceased with the
knowledge that the injury may cause death of the person. Moreover,
there is no evidence from the side of the prosecution that the accused
persons pre-planned to cause death and with that intention they
1
6Page 17
were waiting for the deceased coming from the field and then with an
intention to kill the deceased they assaulted him.
18. It is well settled proposition of law that the intention to
cause death with the knowledge that the death will probably be
caused, is very important consideration for coming to the conclusion
that death is indeed a murder with intention to cause death or the
knowledge that death will probably be caused. From the testimonies
of the witnesses, it does not reveal that the accused persons
intended to cause death and with that intention they started inflicting
injuries on the body of the deceased. Even more important aspect is
that while they were beating the deceased the witnesses reached the
place and shouted whereupon the accused persons immediately ran
away instead of inflicting more injuries with intent to kill the deceased.
19. In the case of Gurdip Singh & Anr. vs. State of Punjab,
(1987) 2 SCC 14, this Court came across a similar type of incident,
where the prosecution case was that one Maya Bai had two sons
and two brothers. She was the mother of accused Nos. 1 and 2 and
sister of accused Nos. 3 and 4. The deceased was one Kishore
Singh. The accused suspected that Mayabai had illicit relations with
the deceased. Hence one day when the deceased was returning
1
7Page 18
from village and when he reached the field of Kashmiri Lal, the
accused came out of the wheat field. The first appellant had a kirpan
and the second appellant had kappa. It was alleged that the four
accused took deceased on wheat field and threw him on the ground.
One of the acquitted accused Jit Singh caught hold of arms of the
deceased and the two appellants caused injuries with the weapons
in their hands. There was an alarm created by Lachhman Singh,
PW-3, which had attracted PW-4 and Mohinder Singh. When they
reached the spot, the accused ran away with their weapons. The
deceased had seven injuries on his body. Injury No.7 was fatal
according to the doctor, who examined him. It was argued that the
prosecution had not come forward with true case as to how the
incident happened. The trial Judge found two accused Jit Singh and
Teja Singh not guilty, since the case against them was not proved
beyond the reasonable doubt. The appellants were convicted
because they had weapons with them unlike the acquitted accused.
This Court on consideration of the entire evidence did not interfere
with the findings that the appellants were responsible for the death of
the deceased by attacking him with the weapons in their hands, but
on reappraisal of the entire evidence, the Court found it difficult to
1
8Page 19
agree with the trial court that the appellants were guilty of the offence
under Section 302 IPC.
Hence, converting the offence under Section
304 Part I, this Court observed:-
“6. The trial Judge was not wholly justified
in observing that there was no evidence about
the so-called illicit relationship between Maya
Bai and Kishore Singh, the deceased. The
materials available create considerable doubt
in our mind as to whether the appellants really
intended to kill Kishore Singh or whether his
misconduct pushed them to wreak revenge
against the deceased and in this pursuit
attacked him. We are not unmindful of the fact
that the 7th injury noted in the post-mortem
certificate is in the ordinary course sufficient to
cause the death of the deceased. But we are
not fully satisfied that the appellants intended
to kill the deceased. The correct approach on
the evidence and other circumstances in this
case, would according to us, be to find the
accused guilty under Section 304 Part I, and to
sentence them under that section.”
20. After analyzing the entire evidence, it is evidently clear
that the occurrence took place suddenly and there was no
premeditation on the part of the appellants. There is no evidence
that the appellants made special preparation for assaulting the
deceased with the intent to kill him. There is no dispute that the
appellants assaulted deceased in such a manner that the deceased
suffered grievous injuries which was sufficient to cause death, but we
1
9Page 20
are convinced that the injury was not intended by the appellants to kill
the deceased.
21. In the facts and circumstances of the case, in our
considered opinion, the instant case falls under Section 304 Part II
IPC as stated above. Although the appellants had no intention to
cause death but it can safely be inferred that the appellants knew that
such bodily injury was likely to cause death, hence the appellants are
guilty of culpable homicide not amounting to murder and are liable to
be punished under Section 304 Part II IPC.
22. Accordingly, we modify the judgment of the trial court and
the High Court and convert the conviction under Section 302 to 304
Part II IPC, and sentence the appellants to ten years’ imprisonment.
The appeal is, therefore, disposed of with the modification in the
conviction and sentence as indicated above.
……………………………..J.
(P. Sathasivam)
……………………………..J.
(M.Y. Eqbal)
New Delhi,
April 26, 2013.
2
0Page 21
2
1Page 22

murder case - A-2 did not simply poke in his abdomen by the side of his naval with a stick but in fact he pounded at his abdomen with the stick. In other words, in vernacular ‘KULLA BODICHI NADU’ in fact this is the injury that led to the death of the deceased because the intestines were ruptured and bleeding took place internally and serious damage was caused to the vital organs inside and caused the death of the deceased.= The High Court has fully gone into the evidence of the witnesses examined and injuries sustained by the deceased and PW- 2 and came to the conclusion that the cumulative effect of the injuries led to the death of the deceased and appellant No.1 being the person, who participated in the commission of the offence, was also having common intention to attack the deceased. However, the High Court in the facts and circumstances of the case modified the order of the conviction and sentence. 13. Considering the entire facts and circumstances of the case and the evidence available on record, we do not find any reason to interfere with the impugned judgment of conviction and sentence passed by the High Court.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1132 OF 2009
Thammu Panduranga Rao & Anr. … Appellant(s)
versus
State of Andhra Pradesh … Respondent(s)
J U D G M E N T
M.Y. Eqbal, J.:
The present appeal by special leave is directed against the
judgment and order dated 9th October, 2007 passed by the High Court
of Judicature of Andhra Pradesh partly allowing Criminal Appeal No.
1187 of 2002 filed by the appellants herein (accused Nos. 1 and 2) by
inter alia modifying the conviction of accused Nos. 1 and 2 for the
offence under Section 304 IPC into conviction for the offence under
Section 304(2) IPC and reducing the sentence of rigorous
imprisonment of 10 years to three years in respect of both the accused
and the sentence of rigorous imprisonment of four years for the
1Page 2
offence under Section 325 IPC in respect of accused No. 2 to one
year.
2. The case of the prosecution which led to the conviction of
accused Nos. 1 and 2 is that the deceased Boddu Maraiah and
accused No. 2 were having prior disputes between them. The son of
said accused loved the daughter of the deceased. As the elders did
not agree to the proposal, the deceased married his daughter to some
other person. Even after her marriage, the son of accused used to go
to her house and tried to create problems in her married life, because
of which the son of accused was beaten by the deceased and his
family members which became the subject matter of a criminal case.
Thus, it was alleged that there was inimical term between the two
families. On 2.11.1998 at about 5.30 p.m., while accused Nos. 1 to 5
(A-1 to A-5) (accused No. 4 is son of accused No. 2; accused No. 2 is
the nearest relative of accused No. 1; accused No. 3 is his son; and
accused No. 5 is a close relative of accused Nos. 1 to 4) were
returning to their village after finishing their fishing work and when they
reached near the cattle shed of the deceased, they heard PW-2 (wife
of deceased) abusing her cattle sarcastically. All are stated to be
residents of Ramannamodi. The accused suspected that PW-2 was
abusing them. On PW-2 being questioned by A-2 as to why she was
2Page 3
abusing them, the deceased interfered and attacked A-2. A-1 also
interfered and the deceased beat him whereupon A-1 beat the
deceased on his head with a stick and induced A-2 to A-5 to beat the
deceased. A-2 beat the deceased by poking against his abdomen
with stick near his naval, A-3 beat him on his back with a stick, A-1
and A-4 beat PW-2 with sticks and caused injuries and A-1 and A-4
beat PW-1 (son of deceased) on his left hand wrist and on his neck
with sticks. After beating the deceased, PW-1 and PW-2, the
accused ran away from the place of occurrence. Later PW-1 went to
police station and registered a complaint (Ex.P-13) and a case under
Section 324/34 IPC was started. The deceased, PW-1 and PW-2
were sent to the Government Headquarters Hospital, Machilipatnam.
After the deceased succumbed to injuries on 4.11.1998 in the hospital,
the police altered the FIR to Section 302 IPC and took up
investigation, held inquest over the dead body, observed the scene of
offence, conducted panchnama, got the post mortem examination
done and after receipt of post mortem report laid the chargesheet
under Section 302/34 IPC against A-1 and A-2, under Section 325
against A-2, under Section 323 against A-1, A-4 and A-5 and under
Section 114 against A-5. In support of its case, the prosecution
examined PWs 1 to 14, marked Exhibits P-1 to P-23 and also MOs 1
3Page 4
to 26. No defence witness was examined but Exhibits D-1 to D-9 were
marked on their side.
3. PW-9 Dr. K. Sanjeevarao who held inquest over the dead
body and issued post mortem certificate opined that the deceased
died of shock due to rupture of mesenteric vessel and damage to the
intestines. The doctor stated that the injuries mentioned in the
certificate would have been caused with sticks like MOs1 to 5 and that
the internal injuries 2 and 3 were sufficient to cause the death in the
ordinary course of nature. The following external injuries were found
on the dead body:
1. A three sutured injury 1 ½” in length on the right parietal
region.
2. A blue black abrasion 3” x ¼ “ on the right shoulder.
3. A blue black abrasion 1” x ¼ “ over the left loin.
4. A black abrasion 1” x ½ “ on the back of right lumber
region.
5. A blue black abrasion 1 ½ “ x 1” on the back and left
lower part of the chest.
4. On internal examination, the doctor found (1) about 2 ½
litre of blood present in the abdominal cavity and ½ litre of blood
present in the pelvic cavity, hemoperitoneum present and all the
intestines congested; (2) bluish contusion 6” x 1” on the middle third
of small intestine; (3) the mesentance vessels ruptured and the entire
4Page 5
mesentery blood stained; (4) three bluish blood clots each 30 grams
on the mecentary near the superior mesenteric artery; (5) all the
internal organs like liver, both the lungs, spleen and both the kidneys
congested; (6) the stomach empty and its mucosa congested; (7) the
brain and its menings congested; (8) hyoid bone intact; (9) urinary
bladder and the gall bladder empty; and (10) the chambers of the
heart empty. The doctor opined that the deceased appeared to have
died of shock due to rupture of mesenteric vessels and contusion of
the intestines and death would have been occurred within 24 hours
prior to the post mortem examination and Ex.P-7 is the post mortem
certificate he issued. The injuries mentioned in Ex.P-7 would have
been caused with sticks like MOs.1 to 5 and that the internal injuries 2
and 3 are sufficient to cause the death in the ordinary course of
nature.
5. As regards injuries to PW-1 and PW-2, PW-8 Dr. M.
Polaiah who medically examined PW-1 and PW-2 stated in his
deposition that he was of the opinion that injury No. 1 i.e. “Swelling
deformity of lower third of left forearm. Tender” caused to PW-1 was
grievous in nature and injury No. 2 i.e. “Abrasion of 1” x ¼ “ over the
anterior of triangle of left side of neck. Bleeding present” was simple
in nature and those injuries could have been caused with sticks. As
5Page 6
regards injuries i.e. “Swelling deformity of left hand and Contusion of
1” x 2” over right shoulder blade”, the doctor opined that the said
injuries were simple in nature and could have been caused with sticks
as alleged.
6. The trial court on consideration of testimony of the
witnesses held that a case has been made out against A-1 and A-2
(appellants herein) finding them guilty for the offences under Sections
304/34, 324/34 and 325 IPC. Accordingly, they were convicted for the
offence under Section 304 IPC and sentenced to undergo rigorous
imprisonment for 10 years and in default to suffer simple imprisonment
for three months. A-1 was further convicted for the offence under
Section 323 IPC and sentenced to undergo rigorous imprisonment for
six months. A-2 was further convicted under Section 325 IPC and
sentenced to undergo rigorous imprisonment for four years and also to
pay a fine of Rs.500/- and in default to suffer simple imprisonment for
two months. A-4 and A-5 were sentenced to pay fine of Rs.1,000/-
each, in default to suffer simple imprisonment for two months. All the
sentences imposed on respective accused were directed to run
concurrently. A-3 had died on 5.12.1998 due to ill health while under
judicial custody. In arriving at its conclusion as regards conviction and
6Page 7
sentence of A-1 and A-2 (appellants herein), the trial court gave the
following reasoning:
“21. …..The oral evidence and medical evidence on record
clinchingly proved that on account of injuries caused by A-
1 and A-2 the deceased died, especially the injuries
caused by A-2. But the common intention of A-1 and A-2
in beating the deceased is clear. Whether they intended
to kill him is doubtful, though PW-1 stated in his evidence
that the accused uttering `SACHADU NA KODUKU’ went
away because that material aspect was not mentioned by
him in Ex. P-1 or he stated the same before the Police.
The deceased also did not mention in Ex.P-20 that the
accused left the scene of offence uttering so. Therefore,
the intention to cause death to the deceased on the part of
A-1 and A-2 cannot be inferred from the circumstances but
the subtle situation led each party to self provocation.
Consequently A-1 and A-3 beat the deceased as well as
PWs-1 and 2. In fact on both sides there was no intention
or preparation for the quarrel. It was a sudden and
unexpected quarrel that arose on account of bitter enmity.
Passions roused on seeing each other. Both sides
plunged into a free fight. So it can be safely held that A-1
and A-2 in furtherance of common intention beat the
deceased Maraiah which injuries caused his death in the
ordinary course of nature. It cannot be held that they have
committed the offence u/s 302 r/w section 34 IPC, but they
have committed an offence punishable u/s 304 r/w section
34 IPC, in other words culpable homicide not amounting to
murder.
22. … it has been established beyond doubt that on
account of the injury caused by A-1, the left hand of PW-1
was broken. Not only a reading of Ex.P-1 but also a
reading of Ex.P-20 coupled with the oral and medical
evidence on record this offence against A-1 u/s 325 IPC
has been established.
xxx xxx xxx
7Page 8
24. It is the case of the prosecution that A-1 and A-4 beat
PW-2 and caused her two simple injuries with sticks. PW-
2 received injuries on her left hand and right shoulder
blade. The evidence of PW-8 and the wound certificate
Ex. P-6 corroborates the evidence of PW-1 and PW-2. In
Ex. P-1 and P-20 also these injuries caused to PW-2 were
attributed to A-1 and A-4. Thus, it has been established
by the prosecution that A-1 and A-4 beat PW-2 and
caused injuries to her by beating with sticks punishable u/s
323 IPC.”
7. Aggrieved by the judgment of the trial court, A-1 and A-2
(appellants herein) preferred an appeal before the High Court and
contended that as their guilt was not proved beyond all reasonable
doubt, their conviction and sentence ought to be set aside. The High
Court after going through the entire material on record held that the
lower court gave sufficient reasons as to why the respective accused
were convicted for the offences under various Sections of IPC;
cumulative effect of the injuries led to the death of the deceased and
A-1 being the person who participated in the commission of the
offence was also having common intention to attack the deceased;
there was no ground to interfere with the conviction of the accused for
the offences under Sections 304, 325 and 323 IPC; and conviction
under Section 304 could be brought under Section 304(2) IPC and
accordingly modified the same. After taking into consideration the
motive behind the incident, the nature of weapons used and the
8Page 9
circumstances, the High Court was of the view that the accused did
not use sharp edged weapons to kill the deceased but they caused
injuries with a knowledge that they are likely to cause the death. In the
result, the appeal of A-1 and A-2 (appellants herein) was partly
allowed by the High Court as mentioned hereinbefore. Finally the High
Court held:-
 “By taking into consideration the motive behind the
incident, the nature of weapons used and the
circumstances explained by the learned defence counsel, I
am of the view that the accused did not use sharp edged
weapons to kill the deceased, but they caused injuries with
a knowledge that they are likely to cause the death. As
the offence under Section 304 I.P.C. was brought under
Section 304(2) I.P.C., the sentence of imprisonment
imposed on the accused is excessive. Therefore, I am
inclined to reduce the sentence imposed against the
accused for the offence under Section 325 I.P.C.
Therefore, the sentence imposed against Accused No.2
for the offence under Section 325 I.P.C. is reduced.
In the result, the appeal is allowed in part. The
conviction of Accused Nos. 1 and 2 for the offence under
Section 304 I.P.C., is modified into conviction for the
offence under Section 304(2) I.P.C. Regarding Rigorous
Imprisonment, it is reduced to rigorous Imprisonment of
three years to each of the accused. The fine and default
sentence remain un-altered. The conviction of Accused
No.1 for the offence under Section 323 I.P.C., and the
sentence of Rigorous Imprisonment for six months is
confirmed. Conviction of Accused No.2 for the offence
under Section 325 I.P.C., is confirmed, but the sentence of
rigorous imprisonment of four years is reduced to
Rigorouos Imprisonment of one year. The fine amount
remains un-altered. All the sentences of imprisonment
against each of the accused shall run concurrently.”
9Page 10
8. Mr. Venkateswara Rao Anumolu, learned counsel
appearing for the appellants assailed the impugned judgment of the
High Court mainly on the ground that the conviction and sentence
cannot be sustained as the injuries were inflicted by the appellants
while exercising their right of private defence. Admittedly, the accused
–appellants were on inimical terms with the deceased and the
witnesses. Learned counsel drew our attention to the injuries
sustained by the parties and the report of the doctor and submitted
that in the facts and circumstances of the case, the impugned
judgment of conviction is liable to be set aside.
9. Mr. Shishir Pinaki, learned counsel appearing for the
respondent, on the other hand, submitted that the evidence of the
prosecution witnesses including the injured witnesses and the injuries
inflicted on the deceased completely ruled out the application of right
of private defence.
10. It is the cardinal principle of law that everyone has a right
to defend his own person and property but the right of private defence
cannot be exercised for causing more harm than necessary or for
taking revenge. Such right of private defence must be used as a
shield to avert an attack and it should not be vindictive and cannot be
10Page 11
used to retaliate. In no case the right of private of defence extends to
the inflicting of more harm than it is necessary to inflict for the purpose
of defence.
11. From analyzing the evidence on record which has already
been noticed by the trial court, it is clear that appellant No.1(A-1) beat
PW-1 on his right wrist with a stout stick with the result his hand
broken. A-5 also beat him on the right side of the neck with a stout
stick. Then the deceased interfered. He tried to rescue his son. Then
A-1 gave a blow on his head with stout stick and caused a bleeding
injury. To rescue the deceased, PW-2 interfered; then A-1 and A-4
beat her with sticks on her hands and back and caused injuries.
Though the deceased was already beaten on his head when his wife
was being beaten by A-1 and A-4, he again mustered his strength and
tried to interfere when A-2 poked with a stick on his abdomen and A-3
beat him with a stick on his back and gave two blows. In fact the
deceased in his statement before the Police under Ex.P-20 said that
A-2 did not simply poke in his abdomen by the side of his naval with a
stick but in fact he pounded at his abdomen with the stick. In other
words, in vernacular ‘KULLA BODICHI NADU’ in fact this is the injury
that led to the death of the deceased because the intestines were
11Page 12
ruptured and bleeding took place internally and serious damage was
caused to the vital organs inside and caused the death of the
deceased.
12. The High Court has fully gone into the evidence of the
witnesses examined and injuries sustained by the deceased and PW-
2 and came to the conclusion that the cumulative effect of the injuries
led to the death of the deceased and appellant No.1 being the person,
who participated in the commission of the offence, was also having
common intention to attack the deceased. However, the High Court in
the facts and circumstances of the case modified the order of the
conviction and sentence. 
13. Considering the entire facts and circumstances of the case
and the evidence available on record, we do not find any reason to
interfere with the impugned judgment of conviction and sentence
passed by the High Court.
14. For the reasons aforesaid, there is no merit in this appeal,
which is accordingly dismissed. The bail bonds of the accused-
12Page 13
appellants stand cancelled. They shall surrender forthwith to serve
out the remaining period of the sentence.
……………………………..J.
(P. Sathasivam)
……………………………..J.
(M.Y. Eqbal)
New Delhi,
April 26, 2013.
13Page 14

Section 47 of the BSF Act- the case squarely falls within 1st exception to the general provisions of Section 47 of the BSF Act, for which option is available to the applicant either to try them at BSF Court or let the Criminal Court of Ordinary jurisdiction to go ahead with their trial. In the instant case applicant has chosen to try them at BSF Court. Therefore, this court has no option but to hand-over the accused together with the charge-sheet and other material collected by Investigating agency to the applicant for trying them at the BSF Court, Application is therefore accepted and accused are ordered to be handed over under custody so the applicant together with charge-sheet and the supporting material as well as all the seized articles. The Officer concerned shall try the accused expeditiously and convey the final out-come of the case to this court as soon as it is completed” In the facts and circumstances of the case, we give liberty to the Director General of the Force, if so advised, to re-visit the entire issue within eight weeks bearing in mind the observation aforesaid in accordance with law and if he comes to the conclusion that the trial deserves to be conducted by the Security Force Court, nothing will prevent him to make an appropriate application afresh before the Chief Judicial Magistrate. Needless to state that in case the Director General of the Force takes recourse to the aforesaid liberty and files application for the trial by the Security Force Court, the Chief Judicial Magistrate shall consider the same in accordance with law. It is made clear that observations made in these appeals are for the purpose of their disposal and shall have no bearing on trial. In the result, both the appeals are allowed, the impugned judgment and order of the Chief Judicial Magistrate dated 25th of November, 2010 and that of the High Court dated 21st October, 2011 are set aside. The Security Force Court shall forthwith transmit the record sent to it, to the Chief Judicial Magistrate, Srinagar, who in turn shall proceed in the matter in accordance with law bearing in mind the observation aforesaid.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 624 OF 2013
(@SPECIAL LEAVE PETITION (CRL.) NO. 5910 OF 2012)
STATE OF J & K … APPELLANT
VERSUS
LAKHWINDER KUMAR & ORS. …RESPONDENTS
WITH
CRIMINAL APPEAL NO. 625 OF 2013
(@SPECIAL LEAVE PETITION (CRL.) NO. 5911 OF 2012)
GHULAM MOHAMMAD SHEIKH … APPELLANT
VERSUS
STATE OF J & K & ORS. …RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
The allegation in the case is very distressing.
A
Kashmiri teenager lost his life by the bullet of
Lakhwinder Kumar, a constable of the Border Security
Force (hereinafter referred to as “the Force”) at the
Boulevard Road, Srinagar. He allegedly fired at the
Page 2
instigation of R.K. Birdi, Commandant of the 68th
Battalion of the Force. The cause of firing, as
alleged by the prosecution, if true, is appalling.
R.K. Birdi on 5th of February, 2010 had gone for
Annual Medical Examination at Composite Hospital,
Humhama. While on way back at 4.40 P.M. to the Force
Headquarters at Nishat, Srinagar, accompanied by
other Force personnel, they got stuck in a traffic
jam. This led to a verbal duel with some boys
present at Boulevard Road, Brain, Srinagar. The
verbal duel took an ugly turn and the Force personnel
started chasing the boys. It is alleged that at the
instigation of R.K. Birdi, constable Lakhwinder Kumar
fired twice and one of the rounds hit Zahid Farooq
Sheikh. Zahid died of the fire arm injury
instantaneously. The aforesaid incident led to
registration of FIR No. 4 of 2010 at Police Station,
Nishat. It is relevant here to state that the
Commandant of the Force by his letter dated
10.02.2010 handed over the investigation to the
police. The case was investigated without any murmur
by the local police and, during the course of
2Page 3
investigation, both R.K.Birdi and Lakhwinder Kumar
were arrested. On completion of investigation, the
police submitted the charge-sheet on 05th of April,
2010 against both the accused for commission of
offence under Section 302, 109 and 201 of the Ranbir
Penal Code before the Chief Judicial Magistrate,
Srinagar, whereupon an application was filed on
behalf of the Force seeking time to exercise option
for trial of the accused by Security Force Court.
Accordingly, an application was filed by the Deputy
Inspector General, Station Headquarters, Border
Security Force, Srinagar before the Chief Judicial
Magistrate, Srinagar on 6th of April, 2010 inter alia
stating that the criminal case is pending against
R.K. Birdi, Commandant and Lakhwinder Kumar,
Constable and they are serving under his Command and
both of them are in judicial custody. He went on to
say that in exercise of his discretion under Section
80 of the Border Security Force Act, 1968
(hereinafter referred to as “the Act”) he has decided
to institute proceeding against them before the
Security Force Court. 
In the aforesaid premise it
3Page 4
was requested to stay the proceeding and to forward
the accused persons along with all connected
documents and exhibits for trial before the Security
Force Court. This application was filed in the light
of the provisions of Section 549 of the Code of
Criminal Procedure, Svt. 1989, as in force in the
State of Jammu & Kashmir. It was further stated that
the outcome of the trial of the accused shall be
intimated to the court as required under Rule 7 of
the Jammu & Kashmir Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1983. The prayer
of the Force was opposed by the State of Jammu &
Kashmir and the deceased’s uncle Ghulam Mohammad
Shiekh. The Chief Judicial Magistrate by his order
dated 25th of November, 2010 allowed the application
filed by the Commandant and handed over the accused
together with the charge-sheet and other materials
collected by the investigating agency for trying the
accused by the Security Force Court. While doing
so, the learned Chief Judicial Magistrate observed as
follows:
“In the light of the above discussion it
has been shown that accused have committed
4Page 5
alleged offence while on active duty and
the case squarely falls within 1st
exception to the general provisions of
Section 47 of the BSF Act, for which option
is available to the applicant either to try
them at BSF Court or let the Criminal Court
of Ordinary jurisdiction to go ahead with
their trial. In the instant case applicant
has chosen to try them at BSF Court.
Therefore, this court has no option but to
hand-over the accused together with the
charge-sheet and other material collected
by Investigating agency to the applicant
for trying them at the BSF Court,
Application is therefore accepted and
accused are ordered to be handed over under
custody so the applicant together with
charge-sheet and the supporting material as
well as all the seized articles. The
Officer concerned shall try the accused
expeditiously and convey the final out-come
of the case to this court as soon as it is
completed”
Aggrieved by the aforesaid order Ghulam Mohammad
Sheikh and the State of Jammu & Kashmir filed
separate revision applications before the High Court.
Both the applications were heard together by the High
Court and have been dismissed by the impugned order
dated 21st of October, 2011. It is against this order
the State of Jammu & Kashmir and Ghulam Mohammad
Sheikh have preferred separate special leave
petitions under Article 136 of the Constitution of
India.
5Page 6
Leave granted.
We have heard Mr. Gaurav Pachnanda, Senior
Advocate on behalf of the appellant, the State of
Jammu & Kashmir and Ms. Kamini Jaiswal, Advocate for
the appellant, Ghulam Mohammad Sheikh. We have also
heard Mr. R.F. Nariman, learned Solicitor-General of
India. Despite service of notice, Respondent Nos. 1
and 2 i.e., Lakhwinder Kumar & R.K. Birdi
respectively have not chosen to appear.
It may be mentioned here that Section 47 of the
Act bars trial of a person subject to the Act by a
Security Force Court who has committed an offence of
murder or of culpable homicide not amounting to
murder or rape in relation to a person not subject to
the Act. However, this bar will not operate if the
person subject to the Act has committed the offence
while on active duty. In other words, if a member of
the Force commits offence of the nature specified
above and the victim of crime is a civilian member,
he cannot be tried by a Security Force Court but this
bar will not operate if the offence has been
committed while on active duty. The expression
6Page 7
‘active duty’ has been defined under Section 2(1)(a)
of the Act, it reads as follows:
“2. Definitions.-(1) In this Act, unless the
context otherwise requires,-
(a)”active duty”, in relation to a person
subject to this Act, means any duty as a
member of the Force during the period in
which such person is attached to, or
forms part of, a unit of the Force-
(i) which is engaged in operations
against an enemy, or
(ii) which is operating at a picket or
engaged on patrol or other guard duty
along the borders of India,
and includes duty by such person
during any period declared by the
Central Government by notification in
the Official Gazette as a period of
active duty with reference to any area
in which any person or class of
persons subject to this Act may be
serving;”
Aforesaid provision makes the duty of the nature
specified therein to be active duty and includes duty
declared by the Central Government by notification in
the official Gazette. From a plain reading of the
aforesaid, it is evident that any duty as a member of
the Force and enumerated in clauses (i) and (ii),
i.e., engaged in operations against an enemy or
7Page 8
operating at a picket or engaged on patrol or other
guard duty along the borders of India shall come
within the definition of active duty. It shall also
include such duty by the member of the Force as
active duty declared by the Central Government in the
Official Gazette. 
The Central Government by Notification SO.1473(E)
dated 8th of August, 2007 in exercise of the powers
conferred under Section 2(1)(a) of the Act, had made
a declaration that the duty of every personnel
serving in the State as mentioned in the said
Notification for the period 01st of July 2007 to 30th
of June, 2010, shall be ‘active duty’. The State of
Jammu & Kashmir is at Serial Number 16 of the said
Notification. 
It is common ground that offence committed is a
civil offence which is triable by a Criminal Court
and at the time of commission of the offence, the
accused persons were not engaged in any operation
against any enemy or operating at a picket or engaged
on patrolling or other guard duty along the borders
8Page 9
of India. According to the appellants, accused
persons were not engaged in the duty of the nature
specified above pursuant to any lawful command,
therefore, they cannot be said to be on active duty
so as to give jurisdiction to the Force to try them
before Security Force Court. The learned Solicitor
General does not join issue and accepts that accused
persons were not performing duty of the nature
mentioned in clauses (i) and (ii) of Section 2(1)(a)
of the Act, but, according to him, in view of
declaration of the Central Government, their act
shall come within the inclusive definition of
active duty.
There is no connection, not even the remotest
one, between their duty as members of the Force and
the crime in question. The situs of the crime was
neither under Force control nor the victim of crime
was in any way connected with the Force. But, for
the notification, these could have been sufficient to
answer that accused persons were not on active duty
at the time of commission of the crime. However,
9 Page 10
answer to this question would depend upon the effect
of notification issued in exercise of the power under
Section 2(1)(a) of the Act. From a plain reading of
this section it is evident that ‘active duty’ would
include duty of such person during any period
declared by the Central Government by notification in
the Official Gazette as a period of active duty.
Section 2(1)(a) finds place in the definition section
of the Act. 
It is well settled that legislature has authority
to define a word even artificially and while doing
so, it may either be restrictive of its ordinary
meaning or it may be extensive of the same. When the
legislature uses the expression “means” in the
definition clause, the definition is prima facie
restrictive and exhaustive. However, use of the
expression “includes” in the definition clause makes
it extensive. Many a times, as in the present case,
the legislature has used the term “means” and
“includes” both and, hence, definition of the
expression “active duty” is presumed to be
10Page 11
exhaustive. In our opinion, the use of the
expression “includes” enlarges the meaning of the
word “active duty” and, therefore, it shall not only
mean the duty specified in the section but those duty
also as declared by the Central Government in the
Official Gazette. The notification so issued by the
Central Government states that “duty of every person”
of the Force “serving in the State” of Jammu and
Kashmir “with effect from the 1st of July, 2007 to 30th
of June, 2010 as active duty”. The notification does
not make any reference to the nature of duty, but
lays emphasis at the place where the members of the
Force are serving, to come within the definition of
‘active duty’. In view of the aforesaid, there is no
escape from the conclusion that the accused persons
were on active duty at the time of commission of the
offence. 
The natural corollary of what we have found above
is that the bar of trial by the Security Force Court
provided in Section 47 of the Act would not operate.
11Page 12
Section 47 of the Act which is relevant for the
purpose reads as follows:
“47. Civil offences not triable by a
Security Force Court.-
A person subject to
this Act who commits an offence of murder
or of culpable homicide not amounting to
murder against, or of rape in relation
to, a person not subject to this Act shall
not be deemed to be guilty of an offence
against this Act and shall not be tried by
a Security Force Court, unless he commits
any of the said offences,-
(a) while on active duty; or
(b) at any place outside India; or
(c) at any place specified by the Central
Government by notification in
this behalf.”
The aforesaid provision makes it clear that a
member of the Force accused of an offence of murder
or culpable homicide not amounting to murder or rape
shall not be tried by a Security Force Court, unless
the offence has been committed while on active duty.
As we have found that the accused persons have
committed the offence while on active duty within the
extended meaning, the bar under Section 47 of the Act
shall not stand in their way for trial by a Security
Force Court. The bar of trial by a Security Force
12Page 13
Court though is lifted, but it does not mean that the
accused who had committed the offence of the nature
indicated in Section 47 of the Act shall necessarily
have to be tried by a Security Force Court. In a
given case, there may not be a bar of trial by a
Security Force Court, but still an accused can be
tried by a Criminal Court. In other words, in such a
situation, the choice of trial is between the
Criminal Court and the Security Force Court. This
situation is visualized under Section 80 of the Act,
which reads as follows:
“80.Choice between criminal court and
Security Force Court.- When a criminal
court and a Security Force Court have each
jurisdiction in respect of an offence, it
shall be in the discretion of the
Director-General, or the Inspector General or the Deputy Inspector-General
within whose command the accused person is
serving or such other officer as may be
prescribed, to decide before which court
the proceedings shall be instituted, and,
if that officer decides that they shall be
instituted before a Security Force Court,
to direct that the accused person shall be
detained in Force custody.”
As we have observed above, in the present case,
the Criminal Court and the Security Force Court each
13Page 14
have jurisdiction for trial of the offence which the
accused persons are alleged to have committed. In
such a contingency Section 80 of the Act has
conferred discretion on the Director General or the
Inspector General or the Deputy Inspector General of
the Force within whose Command the accused person is
serving, to decide before which court the proceeding
shall be instituted. Section 141 of the Act confers
power on the Central Government to make rules for the
purpose of carrying into effect the provisions of the
Act. It is relevant here to state that the Central
Government in exercise of the powers under Section
141 (1) and (2) of the Act has made the Border
Security Force Rules, 1969, hereinafter referred to
as “the Rules”. Chapter VI of the Rules is in
relation to choice of jurisdiction between Security
Force Court and criminal court. Thus, for exercise
of discretion under Section 80 of the Act, Rules have
been framed and Rule 41 of the Rules, which is
relevant for the purpose, reads as follows:
“41. Trial of cases either by Security
Force Court or criminal court.- (1) Where
an offence is triable both by a criminal
14Page 15
court and a Security Force Court, an
officer referred to in section 80 may,-
(i) (a) where the offence is committed by
the accused in the course of the
performance of his duty as a member
of the Force, or
(b) where the offence is committed in
relation to property belonging to the
Government or the Force or a person
subject to the Act, or
(c) where the offence is committed
against a person subject to the Act,
direct that any person subject to the
Act, who is alleged to have committed
such an offence, be tried by a Court;
and
(ii) in any other case, decide whether or
not it would be necessary in the
interests of discipline to claim for
trial by a Court any person subject
to the Act who is alleged to have
committed such an offence.
(2) In taking a decision to claim an
offender for trial by a Court, an
officer referred to in section 80 may
take into account all or any of the
following factors, namely:-
(a) the offender is on active duty or
has been warned for active duty and
it is felt that he is trying to avoid
such duty;
(b) the offender is a young person
undergoing training and the offence
is not a serious one and the trial of
the offender by a criminal court
would materially affect his training.
15Page 16
(c) the offender can, in view of the
nature of the case, be dealt with
summarily under the Act.”
Rule 2 (c) of the Rules defines Court to mean the
Security Force Court. A bare reading of Rule 41(1)
makes it evident that where the offence is committed
in the course of the performance of duty as a member
of the Force or where the offence is committed in
relation to property belonging to the Government or
the Force or a person subject to the Act or where the
offence is committed against a person subject to the
Act, the officer competent to exercise the power
under Section 80 of the Act may direct that the
members of the Force who have committed the offence,
be tried by a Security Force Court. The allegations
in the present case do not indicate that the accused
committed the offence in course of performance of
their duty as a member of the Force or in relation to
property belonging to the Government or the Force or
a person subject to the Act or the offence was
committed against a person subject to the Act. In
16Page 17
that view of the matter, the aforesaid ingredients
are not satisfied and, therefore, the jurisdictional
fact necessary for trial of the accused persons by a
Security Force Court does not exist. Rule 41 (1)(ii)
further authorizes the officer competent to exercise
its power under Section 80 of the Act to decide as to
whether or not it would be necessary in the interest
of discipline to claim for trial by a Security Force
Court. It is worth mentioning here that Rule 41 (2)
enumerates the factors which the officer competent
under Section 80 of the Act is to take into account
for taking a decision for trial of an accused by a
Security Force Court. None of the clauses of Rule
41(1)(i) and 41(2) apply in the facts of the present
case. The condition under which the authority could
exercise the discretion is provided under Rule 41(1)
(ii) of the Rules.
We must answer here an ancillary submission. It
is pointed out that the Rules made to give effect to
the provisions of the Act has to be consistent with
it and if a rule goes beyond what the Act
17Page 18
contemplates or is in conflict thereof, the rule must
yield to the Act. It is emphasized that Section 80 of
the Act confers discretion on the Officer within
whose Command the accused person is serving the
choice between Criminal Court and Security Force
Court without any rider, whereas Rule 41 of the Rules
specifies grounds for exercise of discretion.
Accordingly, it is submitted that this rule must
yield to Section 80 of the Act. We do not find any
substance in this submission.
One of the most common mode adopted by the
legislature conferring rule making power is first to
provide in general terms i.e., for carrying into
effect the provisions of the Act, and then to say
that in particular, and without prejudice to the
generality of the foregoing power, rules may provide
for number of enumerated matters. Section 141 of the
Act, with which we are concerned in the present
appeal, confers on the Central Government the power
to make rules is of such a nature. It reads as
follows:
18Page 19
“141. Power to make rules.-(1) The Central
Government may, by notification, make
rules for the purpose of carrying into
effect the provisions of this Act.
(2) In particular and without prejudice to
the generality of the foregoing power,
such rules may provide for,-
(a) the constitution, governance,
command and discipline of the Force;
(b) the enrolment of persons to the
Force and the recruitment of other
members of the Force;
(c) the conditions of service
including deductions from pay and
allowances of members of the Force;
(d) the rank, precedence, powers of
command and authority of the
officers, subordinate officers,
under- officers and other persons
subject to this Act;
(e) the removal, retirement, release
or discharge from the service of
persons subject to this Act;
(f) the purposes and other matters
required to be prescribed under
section 13;
(g) the convening, constitution,
adjournment, dissolution and sittings
of Security Force Courts, the
procedure to be observed in trials by
such courts, the persons by whom an
accused may be defended in such
19Page 20
trials and the appearance of such
persons thereat;
(h) the confirmation, revision and
annulment of, and petitions against,
the findings and sentences of
Security Force Courts;
(i) the forms of orders to be made
under the provisions of this Act
relating to Security Force Courts and
the awards and infliction of death,
imprisonment and detention;
(j) the carrying into effect of
sentences of Security Force Courts;
(k) any matter necessary for the
purpose of carrying this Act into
execution, as far as it relates to
the investigation, arrest, custody,
trial and punishment of offences
triable or punishable under this Act;
(l) the ceremonials to be observed
and marks of respect to be paid in
the Force;
(m) the convening of, the
constitution, procedure and practice
of, Courts of inquiry, the summoning
of witnesses before them and the
administration of oaths by such
Courts;
(n) the recruitment and conditions of
service of the Chief Law Officer and
the Law Officers;
(o) any other matter which is to be,
or may be prescribed or in respect of
which this Act makes no provision or
makes insufficient provision and
provision is, in the opinion of the
20Page 21
Central Government, necessary for the
proper implementation of this Act.
(3) Every rule made under this Act shall
be laid, as soon as may be after it is
made, before each House of Parliament
while it is in session for a total period
of thirty days which may be comprised in
one session or in two more successive
sessions, and if, before the expiry of the
session immediately following the session
or the successive sessions aforesaid both
Houses agree in making any modification in
the rule or both Houses agree that the
rule should not be made, the rule shall
thereafter have effect only in such
modified form or be of no effect, as the
case may be; so, however, that any such
modification or annulment shall be without
prejudice to the validity of anything
previously done under that rule.”
In our opinion, when the power is conferred in
general and thereafter in respect of enumerated
matters, as in the present case, the
particularlisation in respect of specified subject is
construed as merely illustrative and does not limit
the scope of general power. Reference in this
connection can be made to a decision of this Court in
the case of Rohtak & Hissar Districts Electric Supply
Co. Ltd. v. State of U.P., AIR 1966 SC 1471, in which
it has been held as follows:
21Page 22
“……….Section 15(1) confers wide powers on
the appropriate Government to make rules
to carry out the purposes of the Act; and
Section 15(2) specifies some of the
matters enumerated by clauses (a) to (e),
in respect of which rules may be framed.
It is well-settled that the enumeration of
the particular matters by sub-section (2)
will not control or limit the width of the
powers conferred on the appropriate
Government by sub-section (1) of Section
15; and so, if it appears that the item
added by the appropriate Government has
relation to conditions of employment, its
addition cannot be challenged as being
invalid in law……..”
(Underlining ours)
The Privy Council applied this principle in the
case of Emperor v. Sibnath Banerji, AIR 1945 PC 156,
to uphold the validity of Rule 26 of the Defence of
India Rules, which though was found in excess of the
express power conferred under enumerated provision,
but covered under general power. Relevant portion of
the judgment reads as under:
“Their Lordships are unable to agree
with the learned Chief Justice of the
Federal Court on his statement of the
relative positions of sub-sections (1) and
(2) of Section 2, Defence of India Act,
and counsel for the respondents in the
present appeal was unable to support that
22Page 23
statement, or to maintain that R.26 was
invalid. In the opinion of their
Lordships, the function of sub-section (2)
is merely an illustrative one; the rulemaking power is conferred by sub-section
(1), and “the rules” which are referred to
in the opening sentence of sub-section (2)
are the rules which are authorized by, and
made under, sub-section (1); the
provisions of sub-section (2) are not
restrictive of sub-section (1), as indeed
is expressly stated by the words “without
prejudice to the generality of the powers
conferred by sub-section (1).” There can
be no doubt – as the learned Judge himself
appears to have thought – that the general
language of sub-section (1) amply
justifies the terms of R.26, and avoids
any of the criticisms which the learned
Judge expressed in relation to sub-section
(2).
Their Lordships are therefore of
opinion that Keshav Talpade v. Emperor,
I.L.R. (1944) Bom. 183, was wrongly
decided by the Federal Court, and that
R.26 was made in conformity with the
powers conferred by sub-section (1) of
Section 2, Defence of India Act………”
A constitution Bench of this Court in the case of
Afzal Ullah v. State of Uttar Pradesh, AIR 1964 SC
264, quoted with approval the law laid down by the
Privy Council in the case of Sibnath Banerji (supra)
and held that enumerated provisions do not control
23Page 24
the general terms as particularization of topics is
illustrative in nature. It reads as follows:
“13. Even if the said clauses did not
justify the impugned bye-law, there can be
little doubt that the said bye-laws would
be justified by the general power
conferred on the Boards by Section 298(1).
It is now well-settled that the specific
provisions such as are contained in the
several clauses of Section 298(2) are
merely illustrative and they cannot be
read as restrictive of the generality of
powers prescribed by Section 298(1), vide
Emperor v. Sibnath Banerji, AIR 1945 PC
156. If the powers specified by Section
298(1) are very wide and they take in
within their scope bye-laws like the ones
with which we are concerned in the present
appeal, it cannot be said that the powers
enumerated under Section 298(2) control
the general words used by Section 298(1).
These latter clauses merely illustrate and
do not exhaust all the powers conferred on
the Board, so that any cases not falling
within the powers specified by Section
298(2) may well be protected by Section
298(1), provided, of course, the impugned
bye-law can be justified by-reference to
the requirements of Section 298(1). There
can be no doubt that the impugned bye-laws
in regard to the markets framed by
Respondent No. 2 are for the furtherance
of municipal administration under the Act,
and so, would attract the provisions of
Section 298(1). Therefore, we are
satisfied that the High Court was right in
coming to the conclusion that the impugned
bye-laws are valid.”
24Page 25
In view of what we have observed above it is
evident that Rule 41 of the Rules has been made to
give effect to the provisions of the Act. In our
opinion, it has not gone beyond what the Act has
contemplated or is any way in conflict thereof.
Hence, this has to be treated as if the same is
contained in the Act. Wide discretion has been given
to the specified officer under Section 80 of the Act
to make a choice between a Criminal Court and a
Security Force Court but Rule 41 made for the
purposes of carrying into effect the provision of the
Act had laid down guidelines for exercise of that
discretion. Thus, in our opinion, Rule 41 has neither
gone beyond what the Act has contemplated nor it has
supplanted it in any way and, therefore, the
Commanding Officer has to bear in mind the guidelines
laid for the exercise of discretion.
25Page 26
To test as to whether the Commanding Officer, who
had exercised the power under Section 80 of the Act,
satisfied the aforesaid requirement, it is apt to
reproduce the application filed by him in this
regard. The relevant portion of the application
reads as follows:
“Whereas a criminal case under FIR No.
04/201 of Police Station Nishat titled State
Vs. Lakhwinder Kumar and another is pending
against Lakhwinder Kumar and Randhir Kumar
Birdi before your Court for adjudication.
2. Whereas the said accused persons namely
Lakhwinder Kumar (No. 01005455
Constable of 68 Bn BSF) and Randhir
Kumar Birdi (Commandant BSF) are
serving under my command and,
3. Whereas in exercise of my discretion as
envisaged in Section 80 of the BSF Act,
1968, I have decided to institute
proceedings against the said accused
persons Lakhwinder Kumar and Randhir
Kumar Birdi before the Border Security
Force Court.
4. Whereas, the accused persons i.e.
Lakhwinder Kumar and Randhir Kumar
Birdi are presently under judicial
custody and in your control.
5. I therefore request you to stay
proceedings in your court against the
two accused persons and may forward all
connected documents and exhibits of
this case and custody of accused person
to the undersigned as per Section 549
26Page 27
of Cr.P.C. 1989 (J & K) for instituting
proceedings against them under the BSF
Act and Rules made thereunder.
6. That the outcome of the trial of the
accused persons by Border Security
Force Court of the result of effectual
proceedings instituted or ordered to be
taken against them shall be intimated
as per Rules 7 of the J & K Criminal
Courts and Court Martial (Adjustment of
Jurisdiction) Rules, 1983.”
The Commanding Officer, thus, has exercised his
power under Section 80 of the Act and excepting to
say that the said power has been exercised in his
discretion, there is not even a whisper as to why
said discretion has been exercised for trial of the
accused persons by a Security Force Court. The
Commanding Officer has nowhere stated that the trial
of the accused by Security Force Court is necessary
in the interest of discipline of the Force. Once a
statutory guideline has been issued for giving effect
to the provisions of the Act, in our opinion, the
exercise of discretion without adherence to those
guidelines shall render the decision vulnerable. In
our opinion, the Commanding Officer has exercised his
power ignorant of the restriction placed on him under
27Page 28
the Rules. Having found that the Commanding
Officer’s decision is illegal, the order passed by
the learned Chief Judicial Magistrate as affirmed by
the High Court based on that cannot be allowed to
stand.
It has also been pointed out on behalf of the
appellant that after lodging of the first information
report, the Force voluntarily handed over the custody
of accused Lakhwinder Kumar on 10th of February, 2010
and R.K. Birdi on 4th of March, 2010 and allowed the
investigation to be conducted by the police without
any objection and did not exercise option for trial
by Security Force Court. Later on, such an option
cannot be exercised, submits the learned counsel. In
support of the submission, reliance has been placed
on a decision of this Court in the case of Joginder
Singh v. State of H.P., (1971) 3 SCC 86, and our
attention has been drawn to Paragraph 29 of the
judgment which reads as follows:
“29. Rule 4 is related to clause (a)
of Rule 3 and will be attracted only
when the Magistrate proceeds to conduct
28Page 29
the trial without having been moved by
the competent military authority. It is
no doubt true that in this case the
Assistant Sessions Judge has not given a
written notice to the Commanding Officer
as envisaged under Rule 4. But, in our
view, that was unnecessary. When the
competent military authorities, knowing
full well the nature of the offence
alleged against the appellant, had
released him from military custody and
handed him over to the civil
authorities, the Magistrate was
justified in proceeding on the basis
that the military authorities had
decided that the appellant need not be
tried by the Court-martial and that he
could be tried by the ordinary criminal
court.”
This submission does not commend us. As observed
earlier, on the very date of filing of the charge sheet, 
an application was filed on behalf of the
Force seeking time to exercise option for trial of
the accused by the Security Force Court. On the
following date such an application was filed. At
that particular point of time the trial of the
accused persons had not commenced and before it could
commence, the option was exercised. As regards the
authority of this Court in the case of Joginder Singh
(supra), the same is clearly distinguishable. In the
said case, the Criminal Court proceeded with the
29Page 30
trial of a military personnel without complying Rule
4 of the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1952, which
obliged the Criminal Court to give written notice to
the Commanding Officer of the accused before trying
the said accused. The Criminal Court did not give
any notice to the Commanding Officer and proceeded to
try the accused and ultimately conviction was
recorded. Said conviction was assailed on the ground
that the Criminal Court having proceeded to try the
accused without giving any notice, the conviction is
vitiated. While answering the said question this
Court took into consideration the conduct of the
Commanding Officer of releasing the accused from
military custody and handing over the accused to the
authorities and in that background observed that the
Criminal Court was justified in proceeding with the
trial and failure to give notice to the Commanding
Officer by the Criminal Court shall not vitiate the
conviction. Here, in the present case, the Force has
exercised his option for trial of the accused
immediately on submission of the charge-sheet and
30Page 31
before the commencement of the trial. Hence, the
submission made has no substance and is rejected
accordingly.
In the facts and circumstances of the case, we
give liberty to the Director General of the Force, if
so advised, to re-visit the entire issue within eight
weeks bearing in mind the observation aforesaid in
accordance with law and if he comes to the conclusion
that the trial deserves to be conducted by the
Security Force Court, nothing will prevent him to
make an appropriate application afresh before the
Chief Judicial Magistrate. 
Needless to state that in
case the Director General of the Force takes recourse
to the aforesaid liberty and files application for
the trial by the Security Force Court, the Chief
Judicial Magistrate shall consider the same in
accordance with law. It is made clear that
observations made in these appeals are for the
purpose of their disposal and shall have no bearing
on trial. 
31Page 32
In the result, both the appeals are allowed, the
impugned judgment and order of the Chief Judicial
Magistrate dated 25th of November, 2010 and that of
the High Court dated 21st October, 2011 are set aside.
The Security Force Court shall forthwith transmit the
record sent to it, to the Chief Judicial Magistrate,
Srinagar, who in turn shall proceed in the matter in
accordance with law bearing in mind the observation
aforesaid.
……………………..………………………………..J.
(CHANDRAMAULI KR. PRASAD)
……...….……….………………………………..J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI,
APRIL 25, 2013
32Page 33
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