MANOJ KUMAR V. STATE OF HIMACHAL PRADESH versus STATE OF HIMACHAL PRADESH on 15 May 2018

[2018] 5 S.C.R. 361

MANOJ KUMAR

v.

STATE OF HIMACHAL PRADESH

(Criminal Appeal No. 795 of 2011)

MAY 15, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Penal Code, 1860 – ss. 304 Part-II and 302 – Prosecutioncase that PW-1 and ‘P’ disturbed with interference of appellants ontheir land had filed suit against them – It was alleged that when ‘P’along with PW-13 and DW-1 were returning to their village fromnearby village they came across the disputed land, suddenly,appellants armed with weapons attacked ‘P’ and assaulted him –Injured ‘P’ was taken to a police post, where he lodged a report –Thereafter, he was taken to a Health Centre, where doctor-PW-4attended him and referred him to hospital, however, on the way tohospital his situation deteriorated and was brought back to PW-4,who declared him dead – Trial Court convicted all the 7 accusedu/ss. 302,341 and 323 r/w.149 and ss.147 and 148 – However, HighCourt acquitted 4 persons but confirmed the conviction of other 3accused-appellants – On appeal, held: The totality of circumstancesof the case on hand would amply show that there was a suddenverbal quarrel and evidently there was no pre-meditated plan toattack the deceased – In view of the civil disputes already pendingbetween both the families, a minor verbal exchange bloated into asudden physical attack – In instant case, death was notinstantaneous, and ‘P’ died after sometime, due to hemorrhage –Two simple injuries were inflicted and one turned out to be fatallater – The circumstances demonstrates that the appellant had nointention to cause death, though he had knowledge that the weaponused by him to inflict injury on scalp of the deceased may causedeath – But in the absence of intention to cause death or to causesuch bodily injury as is likely to cause death, the offence does notfall within the scope of s.300 IPC but it will fall within s.304 Part-II,IPC – Therefore, appellants-accused (A-1,A-2 and A-3) guilty foran offence punishable u/s.304 Part-II and not for the offence u/s.300.

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ADisposing of the appeals, the Court

HELD: 1. The totality of circumstances of the case on handwould amply show that there was a sudden verbal quarrel andevidently there was no pre-meditated plan to attack the deceased.In view of the civil disputes already pending between both theBfamilies, a minor verbal exchange bloated into a sudden physicalattack. [Para 25] [373-D-E]

2. It is important to have a look at the evidence of PW5who has conducted Post mortem and according to him there wasan incised wound on the right parietal region of size 4" and 10"Cabove right ear and another incised wound of 1" in size on theright index finger. He has deposed that “the brain was foundcongested, yet no fracture was seen on the scalp”. Though in thecross examination he has stated at one place that the injury No 2on the scalp might be ‘grievous’ that caused brain hemorrhage.This particular fact is not noted in the postmortem report.DRegarding the cause of such injury, PW5 stated that it can becaused by striking with sharp edged object and the depth of thescalp injury depends upon the force and speed. He maintains thestand that it was a ‘scalp injury’ and not ‘skull injury’. Moreover,he did not measure the depth of the head injury which wasEnecessary for classification of injury. [Para 28] [374-E-G]

3. The force and gravity of assault indicates that theaforesaid assault was carried out with only sufficient knowledgeof likely death of the deceased in a free fight situation. Had hegot intention to commit the murder of the deceased by inflictingFsuch injury, he might have used the weapon with sufficient forceand in that case, definitely it would have caused a deep injurycausing fracture of skull. This court is bound to show somedeference to this particular aspect while evaluating the facts andcircumstances of this case at hand. [Para 30] [375-C-E]

G4. In the case on hand, the death is not instantaneous, butthe deceased died after sometime, due to hemorrhage. Whenseveral persons of the accused group wielding weapons attackedthe deceased, it is surprising to see only two injuries, that too,two simple injuries alone are inflicted; of course, one such simpleinjury turns out to be fatal sometime later. This circumstanceH

demonstrates that the appellant had no intention to cause death,though he has knowledge that the weapon used by him to inflictinjury on the scalp of the deceased may cause death. But in theabsence of intention to cause death or to cause such bodily injuryas is likely to cause death, the offence does not fall within thescope of Section 300, IPC but it will fall within Section 304, PartII of the IPC. Therefore, the appellants A-1, A-3 and A-4 areguilty for an offence punishable under Section 304 Part II IPCand not for the offence under Section 300 IPC. [Paras 31, 32][375-E-G; 376-A]

Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395 :

[2004] 3 Suppl. SCR 395; Deo Nath Rai v. State of Bihar and Others etc, AIR 2017 SC 5428 – relied on.

Camilo Vaz v. State of Goa, (2000) 9 SCC 1: [2000] 2

SCR 1088 – referred to.

Modi, A Textbook of Medical Jurisprudence andthToxicology, 25 Edition- referred to.

Case Law Reference

[2004] 3 Suppl. SCR 395relied onPara 24

[2000] 2 SCR 1088referred to Para 26

AIR 2017 SC 5428

relied onPara 27

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.795 of 2011.

From the Judgment and Order dated 20.11.2009 of the High Courtof Himachal Pradesh at Shimla in Criminal Appeal No. 312 of 2006

WITH

Crl. A. No. 796 & 797 of 2011.

Shiv Ram Sharma, Satyendra Kumar Srivastav, Gopal Prasad,Pukhrambam Ramesh Kumar, Advs. for the Appellant.

Abhinav Mukerji, AAG, Ms. Bihu Shamra, Siddharth Garg, AjayMarwah, Advs. for the Respondent.

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AThe Judgment of the Court was delivered by

N. V. RAMANA, J. 1. These appeals by special leave arethdirected against the judgment dated 20 November, 2009 passed by theHigh Court of Himachal Pradesh in Criminal Appeal No. 312 of 2006whereby the High Court upheld the conviction and sentence against theBappellants as awarded by the learned Sessions Judge for the offencespunishable under Sections 302, 341 and 323 read with Section 34 of theIndian Penal Code (IPC).

2. The facts necessary to deal with these appeals, as culled outfrom the prosecution case, are that as per the revenue records one JaramCSingh (PW1) and others are the owners of land bearing Khata/KhatauniNo. 164/220, Khasra No. 605. The said Jaram Singh (PW1) hadmortgaged the aforesaid land with one Krishan Lal and Subhash Chand,but the land remained in the possession of Prem Dass (deceased).Disturbed with the interference of the appellants in the said land, PW1—Jaram Singh and the deceased Prem Dass filed a civil suit against theDappellants and thereby restrained the appellants from raising anyconstruction in the disputed land.

th March, 2004 at about 8.30 p.m. Jeewan (PW12)—

th March, 2004 at about 8.30 p.m. Jeewan (PW12)—

3. On 24 March, 2004 at about 8.30 p.m. Jeewan (PW12)—complainant left his house in search of his father Prem Dass who wentto a nearby village, and found his father Prem Dass in the company ofEYashwant Singh (PW13) and Narso Ram (DW1) near a village calledChhedu. All of them while returning to their village, they came acrossthe disputed land where they found the appellants and their familymembers, seven persons in all. Suddenly at once, they attacked PremDass. Manoj Kumar (A4) was wielding a spade (belcha), Surinder KumarF(A3) was carrying a Drat (sickle) and other accused were armed withsticks. Manoj Kumar (A4) gave a belcha (spade) blow on the head ofPrem Dass and accused Surinder Singh struck him with a blow of sicklecausing injury on the right hand index finger of Prem Dass while otheraccused were beating him with sticks. In order to save their lives thedeceased Prem Dass, Yashwant Singh (PW13), Narso Ram (DW1)Gand the complainant Jeewan (PW12) ran from the scene helter-skelter,while the accused Rangeel Singh (A1) was declaring that Prem Dasswill have to lose his life. By adopting another route, Jeewan (PW12)reached the shop of Yashwant Singh (PW13) where he found his fatherPrem Dass in semiconscious condition with bleeding profusely. They H

called the driver Ashok Kumar (PW2) with his Maruti Van and took theinjured Prem Dass to the police post at Sinhunta and lodged a report.Accordingly, FIR No. 45 of 2004 (Ext. PW.6/A) was registered.

4. Police sent the injured Prem Dass to Primary Health Centre,Sihunta where Dr. Parveen Kumar (PW4) attended him and issuedMedico Legal Certificate (Ext. PW4/A). As his condition was gettingdeteriorated, he was referred to Rajinder Prasad Medical College(RPMC), Dharmshala for better treatment, however, on the way it wasnoticed that the victim was not responding to the calls of his son Jeevan.Sensing something wrong, he was brought back to Dr. Praveen Kumar(PW4), who on examination, declared him to have succumbed to theinjuries.

5. The Investigating Officer, PW18—Partap Singh, upon receivingthe information of death of the deceased, called the photographer to getthe snaps of the deceased, conducted inquest (Ext. PW11/A) and sentthe deadbody for postmortem. Thereafter, he prepared the site plan (Ext.PW18/A), got the injured Yashwant Singh (PW 13) medically examinedand seized his bloodstained shirt (Ext.PW13/B). During the course ofinvestigation, the I.O. visited the place of occurrence and collectedbloodstained earth, stones (Ext. PW16/A), belcha (Ext.P2) and recoveredone sickle (Ext.P1) and sticks (Ext.P3) from the possession of A5 videseizure memo Ext.PW17/A. From the possession of appellant—accusedNo. 1 (Rangeel Singh) his bloodstained clothes were recovered videEx.PW14/A and sent the same for forensic examination.

6. On completion of investigation, the case was presented to thelearned SDJM, Dalhousie who in turn committed the same to the Courtof learned Sessions Judge, Chamba who framed charges against theaccused for the offences punishable under Sections 147/149, 148/149,341/149, 323/149, 302/149 and 506/149, IPC. Rangeel Singh (accusedno. 1), Mohinder Singh (accused no. 2) Surinder Singh (accused no. 3),Manoj Kumar (accused no. 4), Rekha Devi (accused no. 5), VeenaDevi (accused no. 6) and Biaso Devi (accused no. 7) pleaded not guiltyand claimed to be tried. To bring home the guilt of the accused, prosecutionhas examined as many as 18 witnesses and there was one witness forthe defence. Carrying out a full fledged trial, learned Sessions Judgeformed the opinion that the accused were proved to be guilty of theoffences with which they were charged except for the charge against ABC

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ASection 506/149, IPC. Accordingly, they were convicted and sentencedas indicated below, with the direction that all sentences were to runconcurrently.

Name of the SectionspunishmentaccusedBImprisonment for life and fine of Rs. 10,000/- each. In case of 302 r/w. 149 of default in payment of fine, each All the accused IPC one of them would be liable to suffer further imprisonment of two years. CRigorous imprisonment for a period of six months and fine of Rs. 1000/- each. In case of All the accused 147 of IPC default in payment of fine, each one of them would be liable to Dsuffer further imprisonment of two months. Rigorous imprisonment for a period of six months and fine of Rs. 1000/- each. In case of EAll the accused 148 of IPC default in payment of fine, each one of them would be liable to suffer further imprisonment of two months.Rigorous imprisonment for a period of six months and fine Fof Rs. 1000/- each. In case of 323 r/w. 149 of All the accused default in payment of fine, each IPC one of them would be liable to suffer further imprisonment of two months. GSimple imprisonment for one month and fine of Rs. 500/- each. In default of payment of 341 r/w, 149 of All the accused fine, each one of them shall IPC undergo simple imprisonment for a period of seven days more. H

d fine case of e, each able to ent of for a fine se of e, each able to ent of for a fine se of e, each able to ent of for a fine se of e, each able to ent of r one 0/- ent of hall ment s MANOJ KUMAR v. STATE OF HIMACHAL PRADESH[N. V. RAMANA, J.]

7. It would be relevant to state the brief reasoning of the trialAcourt which led to the conviction of the accused-appellant herein-

i. That the witnesses having interest in the property or being aclose friend of the deceased, would not qualify them asinterested witnesses.

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ii. Non-examination of two witnesses, who are alleged to haveaccompanied the deceased,is not fatal for the case of theprosecution.

iii. That the DW-1 has not denied the incident wherein thedeceased was beaten by the accused.

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iv. The court cannot place reliance on the theories introduced byDW-1, as his statements are contradictory.

v. That the blood stains found on the Belcha (alleged weaponused) is indicative of the occurrence of the crime.

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vi. That no alcohol was found in the viscera of the deceased.

vii. That the prosecution was able to prove the case beyondreasonable doubt.

8. The aggrieved accused preferred appeal before the High Courtagainst their conviction and sentence passed by the trial Court. By thejudgment impugned herein, the High Court while partly allowing theirappeal, acquitted the accused Mohinder Singh (A2), Biaso Devi (A7),Rekha Devi (A5) and Veena Devi (A6) extending them the benefit ofdoubt. However, the High Court affirmed the conviction and sentencepassed by the trial Court against Rangeel Singh (A1), Surinder Kumar(A3) and Manoj Kumar (A4) on the following grounds- E

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i. That the motive of the crime was due to the prior land dispute.

ii. That the statement of DW-1 was not believable.

iii. That the blood group found on the clothes of accused no. 1matched with that of the deceased.

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iv. That the High Court, accepted that the prosecution case wasexaggerated to the extent of roping other unconnected familymembers.

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A9. Aggrieved by the impugned judgment of the High Court, ManojKumar (Criminal Appeal No. 795 of 2017), Surinder Singh (CriminalAppeal No. 796 of 2011) and Rangeel Singh (Criminal Appeal No.797 of 2011) are in appeal before this Court. We propose to dispose ofthese appeals by this common order as all the accused-appellants arechallenging the same impugned common judgment.B

10. While taking us through the evidence on record vis-a-vis theportions of the findings of trial court as well as the High Court, the Ld.counsel for the appellants argued that the entire case of the prosecutionrests on the motive of pending civil litigations between the parties andthere is absolutely no proof that the appellants have pre-meditated toCattack the deceased and his party at the given place and given time aspropounded by the prosecution. According to him the occurrence hastaken place near the disputed property which is not on the way to thevillage proceeded by the deceased and this would show that the deceasedhad arrived at the disputed property to attack the appellants or to causeDdamage or otherwise destroy the property of appellants. He then,maintains the stand that where several accused persons attacked thedeceased with multiple weapons and with intention to do away with hislife, presence of negligible simple injuries found on the body of deceaseddoes not support the presence of intention to cause death of deceasedso as to attract punishment under Sec. 300 read with Sec. 302 IPC. TheELd counsel relied upon the medical evidence also to buttress thisargument.

11. On the other hand, the learned counsel appearing on behalf ofthe State has supported the judgment of the High Court and soughtdismissal of these appeals before this Court.F

12. Heard the arguments on either side and perused the materialavailable on record. A mixed question of law and fact which falls for ourconsideration is whether the accused-herein are liable to be punishedfor the offence of culpable homicide amounting to murder or not?

G13. PW-1 (Jaram Singh), states that he is the brother of thedeceased. He is not an eyewitness to the incident and his evidence is notan important piece of evidence, being the hearsay evidence. The onlyaspect which can be looked into is the existence of dispute over thelanded property. He states that the accused had forcibly constructedshops over the disputed land and he had filed a civil suit for evictionHbefore the Dalhousie Court.

14. PW-4 (Dr. Parveen Kumar) was the Doctor when the deceased(Prem Dass) was referred to the hospital. He states that the referredpatient was calm, conscious and well-oriented to time and place. Hefurther states that injury no. 1 and 2 appears to have been caused bysharp weapon, while the third injury on the sacral region was opined tohave been caused by a blunt weapon. He states that the patient wasthereafter referred to RPMC Dharamshala, for further treatment. Aftertwo-two and half hours, deceased was declared as brought dead.

15. In the cross examination he accepts that his advice for an x-ray, to RPMC Dharamshala is not reflected anywhere in the OPDrecords. It is of some significance to note that PW-4 accepts that thedeceased was brought to the health center in a private van and thedeceased returned to his house in the same vehicle. Although he hasdenied later that the patient returned to the home instead of going toRPMC Dharamshala. On the aspect of treatment, he states that thecondition of the patient was not so serious.

16. PW-5 (Dr. Arvind Kanwar), stated the nature of injuries onopening of the scalp in the following manner- On opening the scalp cap extradural and sub-Dural hematomaseen in the right parietal temporal region. Extensive in size. Thebrain was congested, no fracture was seen on the scalp.

It may be relevant to note his cross examination

Self stated that injury No. 2 on scalp was grievous in naturewhich caused brain hemorrhage. It is correct to suggest thatthere was no facture on the head injury. It is correct that Dr.Modi is authority on medical jurisprudence. I have seen the18[th] edition of Dr. Modi in which, at page 229, he has definedthe grievous injury, I agree with this definition. I did not see theweapon of the offence at the time of post mortem examination.The injury No. 2 can be caused by blade of the Dr at Ex. P-1shown to me in the court. It is correct that the injury No. 2 canbe caused by striking with sharp-edged object but it dependson force and speed. … I have not mentioned the depth ofthe scalp injury in post mortem report. It is correct thatwithout ascertaining the depth of the scalp injury, it wasnot possible to opine that it was grievous injury.

(emphasis supplied)

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A17. PW-12 (Jeewan), son of the deceased is stated to be an eyewitness to the alleged incident. He has repeated the prosecution story inentirety to the effect that in the presence of himself, Yashwant Singh(PW-13) and Narso Ram (DW1), the accused-party suddenly attackedthe deceased. When Yashwant Singh intervened to save the deceased,he was also beaten up by the accused party. As the accused were rushingBtowards PW-12 (Jeewan), he ran from the spot. While running he turnedback and saw deceased (after receiving multiple injuries including a headinjury), Yashwant Singh and Narso Ram were running from the spot.With respect to the treatment, he states that the deceased was taken tothe PHC Sihunta wherein he was preliminarily treated and referred furtherCto the Hospital at Dharmashala. As the deceased was not responding,he was brought back to the PHC Sihunta, wherein he was declareddead.

18. Another important witness, who was alleged to have beenpresent at the scene of the crime, is PW-13 (Yashwant Singh). He hasDre-iterated the prosecution story. It may be noted that this witness hasspecifically stated that the deceased was taken back to the home aftertaking treatment at PHC Sinhunta. As the condition of the deceasedworsened thereafter, he was brought back to the PHC Sinhunta, whereinhe was declared as brought dead.

E19. Having observed the prosecution evidence, we need toconcentrate on the defense witness. DW1—Narso Ram was in fact aprosecution witness initially and even according to the prosecution theory,DW1 was the eyewitness. According to DW1, he was accompanyingYashwant Singh (PW13) and while they were proceeding towards villageThukrla, the deceased Prem Dass met them at a distance of 50 yardsFand they went to a liquor shop and nearby the disputed property whereincertain shop rooms were constructed, the accused were found closingthe shops and at that time the deceased and PW13 started abusing theaccused persons and he saw accused Surinder Singh and ManojKumar (appellants in Criminal Appeals No. 796/2011 and 795/2011Grespectively) coming from the house with empty hands.

20. The High Court however has disbelieved the evidence of DW1to the extent of deceased and PW13 consuming alcohol since the FSLreport (Ex PW-18/C) does not indicate presence of alcohol in the intestineof the deceased. Except this, the High Court has taken into consideration H

the part of the statement of DW1. Merely because one part of theevidence of certain witness is not believed, it does not mean that hisentire evidence shall be discarded. To the extent that DW1 was presentat the time of occurrence is admitted even according to the prosecution.His evidence that the deceased started abusing the appellants’ groupwho were present at the relevant time is acceptable for that reason andthis behavior of deceased must have instigated the appellants to retaliate.This view is substantiating the plea of the defense to some extent aspropounded by them in their examination under Sec. 313 of the Code ofCriminal Procedure.

21. Having taken into consideration, the statement of witnesseson questions of fact, it would be appropriate to have thorough look at thequestion of law pertaining to Culpable Homicide.Learned counsel forthe appellants contended that the defenseemerging from the evidence isthat the deceased party arrived at the place of the incident whereinPW-13 started verbally abusing the accused which ensued a suddenfight resulting in the injuries being caused to the deceased and while sothe High Court failed to appreciate that there was no premeditation onbehalf of the appellant-accused and the entire incident was due to asudden fight and the High Court ought to have invoked Exception 4 toSection 300 IPC.

22. Exception 4 to Section 300 IPC reads as under:

Exception 4.-Culpable homicide is not murder if it is committedwithout premeditation in a sudden fight in the heat of passion upona sudden quarrel and without the offender having taken undueadvantage or acted in a cruel or unusual manner.

23. There is no dispute about the ingredients of Exception 4 toSection 300 IPC, the following conditions are to be satisfied namely:

(i) that the incident happened without premeditation;

(ii) in a sudden fight;

(iii) in the heat of passion;

(iv) upon a sudden quarrel and

(v) without the offender having taken undue advantage or actedin a cruel or unusual manner.

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24. It may be relevant to note that in the case ofSridhar Bhuyanv. State of Orissa, (2004) 11 SCC 395, it was held as under- For bringing in operation of Exception 4 to Section 300 IndianPenal Code, it has to be established that the act was committedwithout premeditation, in a sudden fight in the heat of passionupon a sudden quarrel without the offender having taken undueadvantage and not having acted in a cruel or unusual manner.

The fourth exception of Section 300 Indian Penal Code coversacts done in a sudden fight. The said exception deals with a caseof prosecution not covered by the first exception, after which itsplace would have been more appropriate. The exception is foundedupon the same principle, for in both there is absence ofpremeditation. But, while in the case of Exception 1 there is totaldeprivation of self-control, in case of Exception 4, there is onlythat heat of passion which clouds men’s sober reason and urgesthem to deeds which they would not otherwise do. There isprovocation in Exception 4 as in Exception 1; but the injury doneis not the direct consequence of that provocation. In fact Exception4 deals with cases in which notwithstanding that a blow may have

been struck, or some provocation given in the origin of the disputeor in whatever way the quarrel may have originated, yet thesubsequent conduct of both parties puts them in respect of guiltupon equal footing. A “sudden fight” implies mutual provocationand blows on each side. The homicide committed is then clearlynot traceable to unilateral provocation, nor in such cases couldthe whole blame be placed on one side. For if it were so, theexception more appropriately applicable would be Exception 1.There is no previous deliberation or determination to fight. A fightsuddenly takes place, for which both parties are more or less tobe blamed. It may be that one of them starts it, but if the other hadnot aggravated it by his own conduct it would not have taken theserious turn it did. There is then mutual provocation andaggravation, and it is difficult to apportion the share of blame whichattaches to each fighter. The help of Exception 4 can be invokedif death is caused: (a) without premeditation; (b) in a sudden fight;(c) without the offender’s having taken undue advantage or actedin a cruel or unusual manner; and (d) the fight must have beenwith the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the“fight” occurring in Exception 4 to Section 300 Indian Penal Codeis not defined in Indian Penal Code. It takes two to make a fight.Heat of passion requires that there must be no time for the passionsto cool down and in this case, the parties have worked themselvesinto a fury on account of the verbal altercation in the beginning. Afight is a combat between two and more persons whether with orwithout weapons. It is not possible to enunciate any general ruleas to what shall be deemed to be a sudden quarrel. It is a questionof fact and whether a quarrel is sudden or not must necessarilydepend upon the proved facts of each case. For the application ofException 4, it is not sufficient to show that there was a suddenquarrel and there was no premeditation. It must further be shownthat the offender has not taken undue advantage or acted in acruel or unusual manner. The expression “undue advantage” asused in the provision means “unfair advantage”.

25. Thus, the totality of circumstances of the case on hand wouldamply show that there was a sudden verbal quarrel and evidently therewas no pre-meditated plan to attack the deceased. In view of the civildisputes already pending between both the families, a minor verbalexchange bloated into a sudden physical attack.

26. In Camilo Vaz vs. State of Goa, (2000) 9 SCC 1, referring tothe ambit of Section 304 of the Code, this Court in similar set ofcircumstances held thus:

“This section is in two parts. If analysed the section provides fortwo kinds of punishment to two different situations. (1) if the actby which death is caused is done with the intention of causingdeath or causing such bodily injury as is likely to cause death.Here important ingredients is the “intention”; (2) if the act is donewith knowledge that it is likely to cause death but without anyintention to cause death or such bodily injury as is likely to causedeath. When a person hits another with a danda on vital part ofthe body with such a force that the person hit meets his death,knowledge has to be imputed to the accused. In that situationcase will fall in part II of Section 304 IPC as in the present case.”

27. Again, this Court in Deo Nath Rai vs State of Bihar andOthersetc,AIR 2017 SC 5428 observed- AB

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“Looking to the totality of the facts and circumstances of thecase and the evidence on record, it is clear that it was only theaccused - Parsuram Rai who had assaulted Mohan Rai with thehelp of sword, whose assault resulted grievous injury, and thedeceased Mohan Rai ultimately succumbed to the said injury duringthe course of transit to the hospital.

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The incident had taken place when the deceased was returningfrom the disputed land and the accused persons were busy in theadjacent field transplanting paddy seedlings from where they sawMohan Rai crossing their land. There was no premeditation ofany kind on the part of the accused to commit the murder of thedeceased. However, the eye witnesses have deposed that accused- Wakil Rai came and started quarreling with Mohan Rai whenother family members also joined. The quarrel not only suddenlyerupted but also escalated without any premeditation. As rightlyconcluded by the High Court, the whole incident was spontaneousand went out of hand that too within short spell of time.

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In the facts and circumstances of the case, though the HighCourt was justified in altering the conviction of the accused fromSection 302 and 302/149 IPC to Section 304 Part-II IPC, it wasnot justified in imposing lesser sentence on the accused…”

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28. It is important to have a look at the evidence of PW 5-Dr.Arvind Kanwarwho has conducted Post mortem and according to himthere was an incised wound on the right parietal region of size 4" and 10"above right ear and another incised wound of 1" in size on the right indexfinger. He has deposed that “the brain was found congested, yet noFfracture was seen on the scalp”. Though in the cross examination hehas stated at one place that the injury No 2 on the scalp might be ‘grievous’that caused brain hemorrhage. This particular fact is not noted in thepostmortem report. Regarding the cause of such injury, PW5 stated thatit can be caused by striking with sharp edged object and the depth of thescalp injury depends upon the force and speed. He maintains the standGthat it was a ‘scalp injury’ and not ‘skull injury’. Moreover, he did notmeasure the depth of the head injury which was necessary forclassification of injury.

29. We may note that the injury to the head resulted in Extra-Dural and Sub-Dural Hematoma. We are conscious of the fact that H

such symptoms of the same may take some hours to develop in manycases as has happened in this case at hand.[1] We are also apprised that insuch cases a detailed post-mortem may be necessary and it is importantto know the existence of prior medical history and condition. In this casea generalized statement by the Doctor conducting the post-mortem thathe had causally enquired about any existing medical condition with thedeceased. It may further be relevant to note the extract from the Modi,A Textbook of Medical Jurisprudence and Toxicology, wherein it is notedthat- It must be born in mind that a slight injury on the head maycause cerebral hemorrhage in a person previouslypredisposed to it from age or disease.[2]

30. The above opinion goes to show that the injury no. 2 on thescalp resulted in hemorrhage which has not been duly accounted for.Moreover, the force and gravity of assault indicates that the aforesaidassault was carried out with only sufficient knowledge of likely death ofthe deceased in a free fight situation. Had he got intention to commit themurder of the deceased by inflicting such injury, he might have used theweapon with sufficient force and in that case, definitely it would havecaused a deep injury causing fracture of skull. This court is bound toshow some deference to this particular aspect while evaluating the factsand circumstances of this case at hand.

31. In the case on hand, the death is not instantaneous, but thedeceased died after sometime, due to hemorrhage. When several personsof the accused group wielding weapons attacked the deceased, it issurprising to see only two injuries, that too, two simple injuries alone areinflicted; of course, one such simple injury turns out to be fatal sometimelater. This circumstance demonstrates that the appellant had no intentionto cause death, though he has knowledge that the weapon used by himto inflict injury on the scalp of the deceased may cause death. But in theabsence of intention to cause death or to cause such bodily injury as islikely to cause death, the offence does not fall within the scope of Section300, IPC but it will fall within Section 304, Part II of the IPC.

32. We, therefore, hold that the appellants Manoj Kumar, RangeelSingh and Surinder Singh are guilty for an offence punishable under 1 Modi, A Textbook of Medical Jurisprudence and Toxicology, 25th Eds., p. 701.

2 Id. At 704.

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H

ASection 304 Part II IPC and not for the offence under Sec. 300 IPC.Their conviction under Section 302 IPC is, therefore, set aside. Whilemodifying the conviction accordingly, the appellants are sentenced tosuffer rigorous imprisonment for a period of ten years. However, weare informed that the appellants have already undergone more than 11½years imprisonment so far, consequently, the appellants are directed toBbe released forthwith, if not required in any other case.

33. Accordingly, these appeals are disposed of in the above terms.

C

Ankit Gyan

Appeals disposed of.

D

E

F

G

H