Ramvir Vs. State of Uttar Pradesh [ALL SC 2018 OCTOBER]

MURDER-Acquittal of the accused.

DATE: October 26, 2018.

ACT: Section 148/149 read with Section 302 IPC

SUPREME COURT OF INDIA

Ramvir Vs. State of Uttar Pradesh

[Criminal Appeal No. 183 of 2013]

Abhay Manohar Sapre, J.

1. This appeal is filed by the accused(A1) against the final judgment and order dated 28.02.2012 passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 1649 of 1983 by which the appeal filed by the appellant herein was dismissed.

2. In short, the case of the prosecution is as follows.

3. On 25.12.1980 around 5 P.M, Siya Ram (deceased) and his son Kripal (PW2) were going to a place called ” Baithak ” in a village Bishnodi (PS Patiyali) from their house. When they reached near the hut of one Ram Vilas, the appellant (Ramvir) along with five persons namely (1) Bhoorey (2) Satya Ram (3) Shaitan Singh (4) Ram Das and (5) Jagdamba Prasad armed with guns/rifles came there and surrounded Siya Ram and fired shots from their guns/rifles. Siyaram on receiving injuries fell down and succumbed to the injuries.

4. On hearing the noise, Badri (PW1), uncle of the deceased along with covillagers who happened to be in near proximity with the place of occurrence rushed to the spot. The appellant (A1) and five other accused persons (A2 to A6) seeing the mob fast approaching towards them, ran away from the spot by firing gun shots in the air.

5. Badri (PW1) uncle of deceased lodged FIR (ExKa2) on the next day morning in police station (Patiyali) against six named persons. The investigation was done which resulted in arrest of the aforementioned six named persons. The six persons were put to trial for commission of offences punishable under Section 148/149 read with Section 302 IPC. The prosecution examined eight witnesses whereas the defense also examined two witnesses.

6. By Judgment dated 15.7.1983, the learned Sessions Judge acquitted five accused persons(A2 3 to A6) out of six, from all the charges leveled against each of them. So far as the appellant (A1) is concerned, he was also acquitted of the charges under Section 149IPC but was convicted for commission of an offence punishable under Section 302 IPC. The operative portion of the order reads as under: “Accused Ramvir(appellant herein) is hereby held guilty of the offence punishable under Section 302 IPC simpliciter and he is hereby convicted for the same. He is however held not guilty of offence punishable under Section 149 IPC and he is hereby acquitted of the same. Accused Bhoorey, Satya Ram, Shaitan Singh, Ramdas and Jagdamba Prasad are not found guilty under Sections 148 and 302/149 IPC and they are hereby acquitted. They are on bail. Their bailbonds are hereby cancelled and sureties are discharged. They need not surrender. Accused Ramvir is also on bail. He shall be taken into custody herewith. His bailbonds are hereby cancelled and sureties are discharged.”

7. It is against this order; the appellant (Ramvir), feeling aggrieved, filed criminal appeal in the High Court of Allahabad. So far as the State is concerned, the State did not file any appeal against the part of the order whereby A2 to A6 were acquitted of all the charges, and nor has the State filed any appeal against the acquittal of A1 with respect to the offence punishable under Section 149 IPC. To that extent, therefore, the judgment of the Sessions Judge attained finality.

8. By the impugned order, the High Court dismissed the appeal and while upholding the appellant’s conviction under Section 302 IPC further convicted the appellant for commission of offences punishable under Section 148/149 IPC. The operative portion of the High Court’s order reads as under 5 “Accordingly, we convict the appellant by altering his conviction from that under Section 302 IPC to Sections 148 and 302/149 IPC. We do not intend to inflict any other sentence under both the counts other than that had been passed against him by the learned trial Judge.”

9. It is against this order; the appellant (A1), feeling aggrieved, filed the present appeal after obtaining special leave to appeal in this Court.

10. So, two questions arise for consideration in this appeal: First, whether the High Court was justified in upholding the appellant’s (A1) conviction in so far as it relates to the offence punishable under Section 302 IPC and Second whether the High Court was justified in convicting the appellant under Section 148/149 IPC.

11. Heard Mr. S.R. Singh, learned senior counsel for the appellant and Mr. Manoj K. Mishra, learned counsel for the respondent.

12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order, and acquit the appellant of the charges framed under Section 302 read with Section 148/149 IPC.

13. In our considered opinion, so far as appellant’s conviction under Section 148/149 IPC is concerned; the same is not legally sustainable and deserves to be set aside for more than one reasons.

14. First, it is not in dispute that the appellant was already acquitted by the Sessions Judge for commission of offences falling under Section 148/149IPC. It is also not in dispute that the appellant’s acquittal was not challenged by the State by filing any appeal before the High Court.

15. In this view of the matter, there was no occasion for the High Court to have gone into this question in an appeal filed by the accused (appellant herein) as the same had attained finality.

16. Second, in any event, five coaccused persons having also been acquitted of the charges framed against them under Section 148/149IPC, no case was made out against the appellant for his conviction under Section 148/149 ibid. In other words, once it was held by the Sessions Judge that all the six accused persons could not be convicted under Section 148/149 ibid and were accordingly acquitted and no appeal having been filed by the State against this part of the order, the High Court was not justified in convicting the appellant under Section 148/149IPC.

17. Third, as mentioned above, it is not in dispute that the prosecution had named six accused persons as being the members of “unlawful assembly” of which the appellant was one.

18. It is not the case of prosecution that even though these six accused persons were acquitted of the charges framed under Section 148/149IPC, yet there were some more unknown persons present at the time of occurrence with the appellant other than five named accused persons and, therefore, the appellant could still be convicted under Section 148/149 as a member of an unlawful assembly with such unknown persons notwithstanding the acquittal of five accused persons.

19. In the light of aforementioned three reasons, we are of the considered opinion, that the High Court was not justified in convicting the appellant (A1) for commission of the offences punishable under Section 148/149 IPC. The conviction under twin sections is, therefore, not sustainable both on facts and in law and hence deserves to be set aside.

20. Now so far as appellant’s conviction under Section 302 IPC is concerned, the same is also not factually and legally sustainable for following reasons. At the out set, it is apposite to quote how the High Court in Para 15 dealt with the issue in question.

“….Even at the cost of repetition, we want to note that there was no evidence on record suggestive of the inference which was drawn by the learned trial judge against the present appellant that he was author of the shot that hit and killed the deceased Siya Ram…”

21. The aforesaid reasoning itself suggests that there was no evidence to prove that appellant was the author of the gun shot which killed Siyaram: Second, the ballistic report (ExC1) did not support the prosecution case inasmuch as it opined that cartridges fired and recovered from the spot could not have been so fired from the rifle belonging to the appellant and the third, the alleged rifle was not taken in police custody immediately after the incident but it was surrendered by the appellant in the Court.

22. In the light of foregoing reasons, we are of the view that the appellant is entitled for benefit of doubt and hence deserves to be acquitted of the charges framed against him under Section 302 read with Section 148/149 IPC.

23. Accordingly the appeal succeeds and is allowed. Impugned order is set aside. The appellant Ramvir (A1) is acquitted of the charges for commission of offences punishable under Section 302 read with Section 148/149IPC. He is, therefore, set at liberty unless required in any other case.

24. Pending application(s), if any, stand dispose of.

J. [ABHAY MANOHAR SAPRE]

J. [INDU MALHOTRA]

New Delhi;

October 26, 2018.

Murder Conviction upheld-accused failed to explain presence of blood on his clothes and recovery on his instance

01-10-2018- The High Court has rightly held that motive stood established because of the grudge that the appellant nursed against his father with regard to agricultural lands. The evidence of PW-2 and PW-8 cumulatively established that the appellant had gone to the agricultural fields where the deceased had gone at night. The lands of PW-8 were adjacent to that of the deceased. The evidence of the witness conclusively establishes the presence of the appellant in the agricultural fields. No explanation has been offered by the appellant with regard to the presence of blood on his clothes. It is not the case of the appellant that he had suffered injuries in any other manner leading to the presence of blood. The recovery was at his instance. The conduct of the appellant in absconding till he was arrested, and abstaining during the funeral rites of his father, was completely contrary to normal human conduct, and is therefore considered an additional incriminating factor against the appellant.

Continue reading

Whether facts of last seen together by itself lead to inference that the accused committed the murder

On an analysis of the evidence referred to herein above, we find it very difficult to believe the evidence of PW-10 and PW-11. They are not trustworthy witnesses. It is doubtful as to how and in what circumstances Exhibit P-6 came into existence. If PW-10 had seen the dead body and identified it as that of her son there is no reason why she could not have stated about it in Exhibit P-6. If one goes by the contents of Exhibit P-6 it becomes clear that she knew nothing about the dead body found in the Ghataprabha river. The question of identifying the dead body as that of her son does not arise.

The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. Continue reading

Police officer got seven years of enhanced punishment for killing by using Third Degree

In the facts and circumstances of this case’ the punishment of three year imprisonment imposed by the Trial Court under Section 330 of IPC’ would be grossly insufficient and disproportional. We deem it appropriate to increase the term of sentence to maximum imposable period under Section 330 of IPC i.e.’ seven years of rigorous imprisonment’ while maintaining the fine imposed by the Trial Court. Accordingly’ we modify the sentence to this limited extent. Continue reading

State of Rajasthan Versus Shera Ram @ Vishnu Dutta [All SC 2011 December]

KEYWORDS:-Murder acquittal

(2011) 13 SCALE 140

(SUPREME COURT OF INDIA)

State of Rajasthan Appellant
Versus
Shera Ram @ Vishnu Dutta Respondent

(Before : Swatanter Kumar and Ranjana Prakash Desai, JJ.)

Criminal Appeal No. 1502 of 2005 : Decided On: 01-12-2011

Criminal Procedure Code, 1973—Sections 374 and 378—Appeal—There is very thin but fine distinction between appeal against conviction and acquittal—There is no substantial difference between appeal against conviction and appeal against acquittal except that while dealing with an appeal against acquittal Court keeps in view the position that PRESUMPTION of innocence in favour of accused has been fortified by his acquittal—Golden rule is that Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and ends of justice so require and it is essential to appease judicial conscience.

Criminal Procedure Code, 1973—Section 378—Appeal against acquittal—There is no absolute restriction in law to review and re-look entire evidence on which order of acquittal is founded—If, upon scrutiny, appellate Court finds that lower Court’s decision is based on erroneous views and against settled position of law then order of acquittal should be set aside.

Penal Code, 1860—Section 302—Criminal Procedure Code, 1973—Section 378—Murder—Acquittal on ground of mental insanity—A person of unsound mind cannot be said to possess this basic norm of human behavior—Person suffering from any mental disorder cannot be exempted from criminal liability ipso facto—Onus would be on the accused to prove by expert evidence that he is suffering from such a mental disorder or mental condition that he could not be expected to be aware of the consequences of his act—Once a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, person concerned would be entitled to seek resort to general exceptions from criminal liability—No error in judgment under appeal.

Counsel for the Parties:

Kamran Malik, Imtiaz Ahmad and Milind Kumar, Advs.

Doongar Singh, V.J. Francis and Anupam Mishra, Advs.

JUDGMENT

Swatanter Kumar, J—Respondent Shera Ram @ Vishnu Dutta was charged for committing an offence under Sections 302, 295 and 449 of the Indian Penal Code, 1860 (for short ‘Indian Penal Code’) and was sentenced to undergo imprisonment for life by the Additional Sessions Judge-1, Jodhpur vide judgment dated 7th June, 2000. However, upon appeal, he came to be acquitted of all the offences by a Division Bench of the High Court of Rajasthan vide order dated 21st February, 2004 primarily on the ground that at the time of incident, he was a person of unsound mind within the meaning of Section 84 Indian Penal Code and was directed to be detained in safe custody in an appropriate hospital or a place of custody of non-criminal lunatics as would be provided to him by the State Government under the direct supervision of the Jail Authorities till the time he was cured of his mental illness and infirmity.

2. Aggrieved from the said judgment, the State of Rajasthan has presented this appeal by way of a special leave petition.

3. Before we proceed to dwell upon the merits of the case and the legal issues involved in the present appeal, a reference to the case of the prosecution would be necessary. According to the prosecution, on 10th March, 1999 at about 7.15 a.m., while Pujari Tulsi Das (now deceased) was in the Raghunathji’s temple, the Respondent abruptly hurled a stone on his head resulting into his instantaneous death. The Respondent also damaged the idol and other properties of the temple. This all was unprovoked. The incident was witnessed by the villagers including PW-6 Santosh, PW-11 Narsingh Ram and PW-16, Smt. Tiku Devi.

4. PW-2, Ghan Shyam Das Daga reported the matter to the police immediately. Upon receipt of the information, the police registered a case under Section 302 Indian Penal Code and proceeded with the investigation. Besides recording statements of number of witnesses, the Investigating Officer also prepared the site plan and the inquest memo. The body of the deceased was sent for post-mortem which was performed by PW-20, Dr. C.P. Bhati, who prepared the post-mortem report Ext. P-37.

5. After investigation, the police filed the challan upon which, the Respondent was committed to the appropriate Court of Sessions for trial. The charge-sheet was filed under Sections 302, 295 and 449 Indian Penal Code, as already noticed. The Respondent denied the charges leveled against him and claimed trial.

6. The prosecution examined as many as 23 witnesses to prove its case. The material piece of evidence appearing in the case of the prosecution against the Respondent were put to him and his statement was recorded by the learned Trial Court under Section 313 of the Code of Criminal Procedure, 1973 (for short ‘Cr.PC’). According to the Respondent, his mental condition right from the year 1992-1993 was not good and occasionally he suffered from fits of insanity. He had undergone treatment for the same. He has stated that in the jail also, he was receiving the treatment. To put it simply, he claimed the defence of insanity under Section 84 Indian Penal Code. The defence also examined DW-2, Dr. Vimal Kumar Razdan and DW-1, Bhanwar Lal, brother of the Respondent who had produced records to show that the Respondent was a person suffering from insanity of mind. The learned Trial Court rejected the plea of defence of insanity and convicted the Respondent.

7. The Respondent preferred an appeal against the judgment and order of conviction by the Trial Court which resulted in his acquittal vide order dated 21st February, 2004 with the afore-noticed directions to the State Government. Dissatisfied from the said judgment, the State has preferred the present appeal.

8. As is evident from the above-noted facts, it is an appeal against the judgment of acquittal. The plea of insanity raised by the Respondent has been accepted by the High Court resulting in his acquittal.

9. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.

10. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and PRESUMPTION of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such PRESUMPTION which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for. We may refer to a recent judgment of this Court in the case of State of Rajasthan, through Secretary, Home Department v. Abdul Mannan, (2011) 8 SCC 65, wherein this Court discussed the limitation upon the powers of the appellate court to interfere with the judgment of acquittal and reverse the same.

11. This Court referred to its various judgments and held as under:

12. As is evident from the above recorded findings, the judgment of conviction was converted to a judgment of acquittal by the High Court. Thus, the first and foremost question that we need to consider is, in what circumstances this Court should interfere with the judgment of acquittal. Against an order of acquittal, an appeal by the State is maintainable to this Court only with the leave of the Court. On the contrary, if the judgment of acquittal passed by the trial court is set aside by the High Court, and the accused is sentenced to death, or life imprisonment or imprisonment for more than 10 years, then the right of appeal of the accused is treated as an absolute right subject to the provisions of Articles 134(1)(a) and 134(1)(b) of the Constitution of India and Section 379 of the Code of Criminal Procedure, 1973. In light of this, it is obvious that an appeal against acquittal is considered on slightly different parameters compared to an ordinary appeal preferred to this Court.

13. When an accused is acquitted of a criminal charge, a right vests in him to be a free citizen and this Court is very cautious in taking away that right. The PRESUMPTION of innocence of the accused is further strengthened by the fact of acquittal of the accused under our criminal jurisprudence. The courts have held that if two views are possible on the evidence adduced in the case, then the one favourable to the accused, may be adopted by the court. However, this principle must be applied keeping in view the facts and circumstances of a case and the thumb rule is that whether the prosecution has proved its case beyond reasonable doubt. If the prosecution has succeeded in discharging its onus, and the error in appreciation of evidence is apparent on the face of the record then the court can interfere in the judgment of acquittal to ensure that the ends of justice are met. This is the linchpin around which the administration of criminal justice revolves.

14. It is a settled principle of criminal jurisprudence that the burden of proof lies on the prosecution and it has to prove a charge beyond reasonable doubt. The PRESUMPTION of innocence and the right to fair trial are twin safeguards available to the accused under our criminal justice system but once the prosecution has proved its case and the evidence led by the prosecution, in conjunction with the chain of events as are stated to have occurred, if, points irresistibly to the conclusion that the accused is guilty then the court can interfere even with the judgment of acquittal. The judgment of acquittal might be based upon misappreciation of evidence or apparent violation of settled canons of criminal jurisprudence.

15. We may now refer to some judgments of this Court on this issue. In State of M.P. v. Bacchudas, the Court was concerned with a case where the accused had been found guilty of an offence punishable under Section 304 Part II read with Section 34 Indian Penal Code by the trial court; but had been acquitted by the High Court of Madhya Pradesh. The appeal was dismissed by this Court, stating that the Supreme Court’s interference was called for only when there were substantial and compelling reasons for doing so. After referring to earlier judgments, this Court held as under: (SCC pp. 138-39, paras 9-10)

9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the PRESUMPTION of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, Ramesh Babulal Doshi v. State of Gujarat, Jaswant Singh v. State of Haryana, Raj Kishore Jha v. State of Bihar, State of Punjab v. Karnail Singh, State of Punjab v. Phola Singh, Suchand Pal v. Phani Pal and Sachchey Lal Tiwari v. State of U.P.

10. When the conclusions of the High Court in the background of the evidence on record are tested on the touchstone of the principles set out above, the inevitable conclusion is that the High Court’s judgment does not suffer from any infirmity to warrant interference.

16. In a very recent judgment, a Bench of this Court in State of Kerala v. C.P. Rao decided on 16-5-2011, discussed the scope of interference by this Court in an order of acquittal and while reiterating the view of a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan, the Court held as under:

13. In coming to this conclusion, we are reminded of the well-settled principle that when the court has to exercise its discretion in an appeal arising against an order of acquittal, the court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan 212. At SCR p. 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows:

‘9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court’s approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) “substantial and compelling reasons”, (ii) “good and sufficiently cogent reasons”, and (iii) “strong reasons”, are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified’.

17. Reference can also be usefully made to the judgment of this Court in Suman Sood v. State of Rajasthan, where this Court reiterated with approval the principles stated by the Court in earlier cases, particularly, Chandrappa v. State of Karnataka. Emphasising that expressions like “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal, the Court stated that such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with the acquittal. Thus, where it is possible to take only one view i.e. the prosecution evidence points to the guilt of the accused and the judgment is on the face of it perverse, then the Court may interfere with an order of acquittal.

12. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the PRESUMPTION of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.

13. Also, this Court had the occasion to state the principles which may be taken into consideration by the appellate court while dealing with an appeal against acquittal. There is no absolute restriction in law to review and re-look the entire evidence on which the order of acquittal is founded. If, upon scrutiny, the appellate court finds that the lower court’s decision is based on erroneous views and against the settled position of law then the said order of acquittal should be set aside. {See State (Delhi Administration) v. Laxman Kumar and Ors., (1985) 4 SCC 476, Raj Kishore Jha v. State of Bihar and Ors., AIR 2003 SC 4664, Inspector of Police, Tamil Nadu v. John David, JT 2011 (5) SC 1

14. To put it appropriately, we have to examine, with reference to the present case whether the impugned judgment of acquittal recorded by the High Court suffers from any legal infirmity or is based upon erroneous appreciation of evidence.

15. In our considered view, the impugned judgment does not suffer from any legal infirmity and, therefore, does not call for any interference. In the normal course of events, we are required not to interfere with a judgment of acquittal.

16. Having deliberated upon the above question of law, we may now proceed to discuss the merits of the case in hand. The High Court after consideration of the entire evidence produced by the prosecution, affirmed the finding that the incident as alleged by the prosecution had occurred and the Respondent had hurled a stone on the head of Pujari Tulsi Das which resulted in his death. This being a finding of fact based upon proper appreciation of evidence, does not call for any interference by us.

17. The corollary that follows from the above is whether having committed the charged offence, the Respondent is entitled to the benefit of the general exception contained in Section 84, Chapter IV of the Indian Penal Code? Section 84 states that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that what he is doing is either wrong or contrary to law.

18. It is obvious from a bare reading of this provision that what may be generally an offence would not be so if the ingredients of Section 84 Indian Penal Code are satisfied. It is an exception to the general rule. Thus, a person who is proved to have committed an offence, would not be deemed guilty, if he falls in any of the general exceptions stated under this Chapter.

19. To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosus nulla voluntus est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behavior. In the case of Surendra Mishra v. State of Jharkhand (2011) 3 SCC (Cri.) 232, the Court was dealing with a case where the accused was charged for an offence under Section 302 Indian Penal Code and Section 27 of the Arms Act. While denying the protection of Section 84 of the Indian Penal Code to the accused, the Court held as under:

9. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression “unsoundness of mind” has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behavior or the behavior is queer are not sufficient to attract the application of Section 84 of the Indian Penal Code.

20. From the above-stated principles, it is clear that a person alleged to be suffering from any mental disorder cannot be exempted from criminal liability ipso facto. The onus would be on the accused to prove by expert evidence that he is suffering from such a mental disorder or mental condition that he could not be expected to be aware of the consequences of his act.

21. Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability.

22. Epileptic Psychosis is a progressing disease and its effects have appropriately been described in the text book of Medical Jurisprudence and Toxicology by Modi, 24th Ed. 2011 where it states as follows:

Epileptic Psychosis. – Epilepsy usually occurs from early infancy, though it may occur at any period of life. Individuals, who have had epileptic fits for years, do not necessarily show any mental aberration, but quite a few of them suffer from mental deterioration. Religiousity is a marked feature in the commencement, but the feeling is only superficial. Such patients are peevish, impulsive and suspicious, and are easily provoked to anger on the slightest cause.

The disease is generally characterized by short transitory fits of uncontrollable mania followed by complete recovery. The attacks, however, become more frequent. There is a general impairment of the mental faculties, with loss of memory and self- control. At the same time, hallucinations of sight and hearing occur and are followed by delusions of a persecuting nature. They are deprived of all moral sensibility, are given to the lowest forms of vice and sexual excesses, and are sometimes dangerous to themselves as well as to others. In many long- standing cases, there is a progressive dementia or mental deficiency.

True epileptic psychosis is that which is associated with epileptic fits. This may occur before or after the fits, or may replace them, and is known as preepileptic, post-epileptic and masked or psychic phases (psychomotor epilepsy)

Post-Epileptic Mental Ill-health – In this condition, stupor following the epileptic fits is replaced by automatic acts of which the patient has no recollections. The patient is confused, fails to recognize his own relatives, and wanders aimlessly. He is terrified by visual and auditory hallucinations of a religious character and delusions of persecution, and consequently, may commit crimes of a horrible nature, such as thefts, incendiarism, sexual assaults and brutal murders. The patient never attempts to conceal them at the time of perpetration but on regaining consciousness may try to conceal them out of fear.

23. Similar features of Epilepsy have been recorded in the HWV COX Medical Jurisprudence and Toxicology (7th Edn) by PC Dikshit.

24. Reverting to the facts of the present case, it may be noted that no witness of the prosecution including the Investigating Officer stated anything with regard to the mental condition of the Respondent. However, the Respondent not only in his statement under Section 313 Code of Criminal Procedure. took up the defence of mental disorder seeking benefit of Section 84 Indian Penal Code but even led evidence, both documentary as well as oral, in support of his claim. He examined Dr. Vimal Kumar Razdan, DW-2, who deposed that he had examined the Respondent and had given him treatment. He, also, produced the examination report in regard to the treatment of the Respondent, Ext.D-5, which was prepared in his clinic.

25. According to the statement of this doctor and the prescription, the Respondent was suffering from Epilepsy and while describing post epileptic insanity, this witness stated that after the epileptic attack, a patient behaves like an insane person and he is unable to recognise even the known persons and relatives. During this time, there is a memory loss and the patient can commit any offence. In the prescription, Ext. D-3, issued by Dr. Ashok Pangadiya, it was stated that the patient was suffering from the fits disease and symptoms of behavioral abnormality. Two types of medication on the basis of diagnosis of epileptic disease and other one for insanity were prescribed to the Respondent who continued to take these medicines, post epileptic insanity.

26. Another witness who was produced by the defence was DW-1, Bhanwar Lal, the brother of the Respondent. According to this witness, the Respondent was suffering from mental disorder since 1993. He stated that when he gets the fits of insanity, he can fight with anybody, hit anybody and even throw articles lying around him. At the initial stage, Dr. Devraj Purohit had treated him. Then Dr. V.K. Razdan treated him and thereafter, in Jaipur, Dr. Ashok Pagadiya/Pandharia also treated him. Even when he was in jail, he was under treatment. He produced the prescription slips i.e. Exts. D3 and D4. This witness has also stated that on the date of occurrence at about 6.00 – 6.30 a.m., Shera Ram/Respondent was not feeling well and, in fact, his condition was not good. Even at home he had broken the electricity meter and the bulbs. When the people at home including the witness tried to stop him, he had beaten DW-1 on his arm and after hitting him on the face he had run away.

27. This oral and documentary evidence clearly shows that the Respondent was suffering from epileptic attacks just prior to the incident. Immediately prior to the occurrence, he had behaved violently and had caused injuries to his own family members. After committing the crime, he was arrested by the Police and even thereafter, he was treated for insanity, while in jail.

28. Thus, there is evidence to show continuous mental sickness of the Respondent. He not only caused death of the deceased but also on the very same day injured and caused hurt to his family members including DW-1. His statement made under Section 313 Cr.PC is fully corroborated by oral and documentary evidence of DW-2 and Ext. D-3 and D-4. Though, the High Court has not discussed this evidence in great detail, but this being an admissible piece of evidence, can always be relied upon to substantiate the conclusion and findings recorded by the High Court.

29. In other words, the High Court on the basis of the documentary and oral evidence has a taken a view which was a possible and cannot be termed as perverse or being supported by no evidence. The finding of the High Court, being in consonance with the well settled principles of criminal jurisprudence, does not call for any interference. More so, the Learned Counsel appearing for the State has not brought to our notice any evidence, documentary or otherwise, which could persuade us to take a contrary view i.e. other than the view taken by the High Court.

30. Another aspect of this case which requires consideration by this Court is that the case of the prosecution suffers from legal infirmity. In fact, the prosecution has failed to prove beyond reasonable doubt that the injury inflicted by the Respondent upon the deceased was sufficient in the ordinary course of nature to cause death. It is the case of the prosecution that the Respondent had hurled a stone which had caused injury (lacerated wound on the left side of the forehead) whereupon the deceased fell on the ground and subsequently collapsed. The injury is said to be 2” x 1/2” x upto bone, transversely Lt. side of forehead and another lacerated wound 2” x 1/2” x 1/4” near injury No. 1 towards the forehead. These are the injuries which the deceased is stated to have suffered. In addition, abrasion of 1 cm x 1 cm on the left eyebrow was also present. According to the doctor, all these injuries were ante mortem in nature and the cause of death was shock and haemorrhage due to head injury.

31. In the statement of PW-20, Dr. C.P. Bhati, it is nowhere stated that the injuries caused by the Respondent were sufficient in the ordinary course of nature to cause death. It is also not recorded in the post-mortem report, Ext. 37. This was a material piece of evidence which the prosecution was expected to prove in order to bring home the guilt of the Respondent. This is a serious deficiency in the case of the prosecution. Absence of this material piece of evidence caused a dent in the case of the prosecution. The High Court has not taken note of this important aspect of the case.

32. The Learned Counsel appearing for the Respondent placed reliance upon this evidence and strenuously contended that the Respondent was entitled to acquittal on this basis alone. We should not be understood to have stated any absolute proposition of law, but in the facts and circumstances of the present case, it was expected of PW-20 to state before the Court as well as record the same in the post- mortem report prepared by him i.e. Ext. 37, that the injuries were sufficient in the ordinary course of nature to cause death of the deceased.

33. Ex-facie, injuries do not appear to be so vital that they could have resulted in the death of the deceased, but this fact was required to be proved by expert evidence. The counsel for the Respondent relied upon a judgment of this Court in the case of Ram Jattan and Ors. v. State of U.P. (1995) SCC (Cri) 169 where this Court held that it is not appropriate to interfere with the conclusion that the injuries are not sufficient to cause death unless they are so patent. The Court held as under:

4. The learned Counsel, however, further submitted that in any event the offence committed by the members of unlawful assembly cannot be held to be one of murder and therefore the common object of unlawful assembly was not one which attracts the provision of Section 302 read with Section 149 Indian Penal Code. We find considerable force in this submission. Though, in general, right from the first report onwards the prosecution case is that all the 12 accused armed with sharp-edged weapons and lathis surrounded the three persons and inflicted the injuries but from the doctor’s report we find that no injury was caused on the vital organs. So far as Patroo is concerned, who got the report written by PW 7 and gave it in the police station, we find 13 injuries but all of them were abrasions and lacerated injuries on the legs and hands. The doctor opined that all the injuries were simple. On Balli, PW 8, the doctor found 12 injuries and they were also on arms and legs. There was only one punctured wound, injury No. 8 and it was not a serious injury and it was also a simple injury. Now, coming to the injuries on the deceased, the doctor who first examined him, when he was alive, found 11 injuries. Out of them, injuries Nos. 1 and 2 were punctured wounds. Injury No. 5 was an incised wound and injury No. 6 was a penetrating wound. All these injuries were on the upper part of the right forearm and outer and lower part of right upper arm. The remaining injuries were abrasions and contusions. The doctor opined that except injuries Nos. 7 and 9 all other injuries were simple. He did not say whether injuries Nos. 7 and 9 were grievous but simply stated that they were to be kept under observation. The deceased, however, died the next day i.e. 9-4-1974 and the post-mortem was conducted on the same day. In the post-mortem examination 11 external injuries were noted but on the internal examination the doctor did not find any injury to the vital organs. He, however, noted that 8th and 9th ribs were fractured. Now, coming to the cause of death, he opined that death was due to shock and haemorrhage. It is not noted that any of the injuries was sufficient to cause death in the ordinary course of nature. It could thus be seen that neither Clause 1stly nor Clause 3rdly of Section 300 are attracted to the facts of this case. This contention was also put forward before the High Court but the learned Judges rejected this contention observing that the fracture of 8th and 9th ribs must have resulted in causing death and therefore these injuries must be held to be sufficient in the ordinary course of nature to cause death. We are unable to agree with this reasoning. In the absence of proof by the prosecution in an objective manner that the injuries caused were sufficient in the ordinary course of nature to cause death, the same cannot be interfered with unless the injuries are so patent. As we have noted above except fracture of ribs there was no other injury to any of the vital organs. As a matter of fact internally the doctor did not notice any damage either to the heart or lungs. Even in respect of these two injuries resulting in fracture of the ribs, there were no corresponding external injuries. Again as already noted all the injuries were on the non-vital parts of the body. The learned Counsel for the State, however, submitted that a forceful blow dealt on the arm might have in turn caused the fracture of the two ribs. Even assuming for a moment it to be so, it is difficult to hold that from that circumstance alone the common object of the unlawful assembly of 12 persons to cause the death of the deceased is established.

5. The common object has to be gathered or inferred from the various circumstances like nature of the weapons, the force used and the injuries that are caused. After carefully going through the medical evidence we find that it is difficult to conclude that the common object was to cause the death. The injuries on Patroo, PW 8 as well as on the deceased were more or less of the same nature except that in the case of deceased, there were few punctured wounds which were not serious but only simple. He died due to shock and haemorrhage the next day. In any event there is no indication anywhere in the evidence of the doctor or in the post-mortem certificate that any of the injuries was sufficient in the ordinary course of nature to cause death. No doubt in his deposition the doctor, PW 4 has stated in the general way that these injuries were sufficient to cause death in the ordinary course of nature. We have already held that there was no external injury which resulted in the fracture of the ribs. In such an event Clause 3rdly of Section 300 Indian Penal Code is not attracted. Likewise Clause 1stly of Section 300 Indian Penal Code is also not attracted i.e. intentionally causing death. If their intention was to cause death, they would have used the lethal weapons in a different way and would not have merely inflicted simple injuries on the non-vital parts like legs and hands.

6. In the result we set aside the convictions of these eight Appellants under Section 302 read with Section 149 Indian Penal Code and the sentence for imprisonment for life. Instead we convict them under Section 304 Part II read with Section 149 Indian Penal Code and sentence each of them to undergo rigorous imprisonment for five years. The sentences and convictions imposed on other counts are confirmed. The four other accused who were convicted by the trial court as well as by the High Court are not before us. However, we are of the view that they must also get the same benefit. They are Ram Chander (A-2), Dal Singhar (A-7), Barai (A-8) and Birju (A-11). Accordingly their convictions under Section 302 read with Section 149 Indian Penal Code for imprisonment for life are set aside and instead they are also convicted under Section 304 Part II read with Section 149 Indian Penal Code and are sentenced to undergo rigorous imprisonment for five years. The other convictions and sentences imposed on other counts are, however, confirmed.

34. Reliance was also placed upon the judgment of this Court in the case of State of Rajasthan v. Kalu (1998) SCC (Cri.) 898, where in the post mortem examination of the deceased, the cause of death was noticed as “acute peritonitis” as a result of abdominal injuries. However, during the cross-examination, Dr. Prem Narayna admitted that “peritonitis” could have set in due to surgical complications also. The Court took the view that the medical evidence, therefore, when analysed in its correct perspective shows that the evidence recorded by the High Court is correct to the effect that prosecution had not proved that the injuries were sufficient in the ordinary course of nature to cause death of the lady and had acquitted the Respondent. The Supreme Court declined to interfere with the finding recorded by the High Court.

35. In the present case also, there is no documentary or oral evidence to prove the fact that the injuries caused by the Respondent to the deceased were sufficient in the ordinary course of nature to cause death. This, however, cannot be stated as an absolute proposition of law and the question whether the particular injury was sufficient in the ordinary course of nature to cause death or not is a question of fact which will have to be determined in light of the facts, circumstances and evidence produced in a given case. (Ref. Halsbury’s Laws of India 5(2) Criminal Law-II).

There could be cases where injuries caused upon the body of the deceased per se can irresistibly lead to the conclusion that the injuries were sufficient to cause death in the ordinary course of nature, while there may be other cases where it is required to be proved by documentary and oral evidence. Resultantly, it will always depend on the facts of each case. Thus, in such cases, it may neither be permissible nor possible to state any absolute principle of law universally applicable to all such cases.

36. In view of our discussion above, we find no error in the judgment under appeal. Thus, we have no hesitation in dismissing the appeal and the same is hereby dismissed.

What is a “Rarest of Rare Case”?

Jagmohan Singh v. State of U.P [1973]

  1. Bachan Singh v. State of Punjab [1980]
  2. Machhi Singh v. State of Punjab [1982]
  3. Mithu v. State of Punjab [1983]
  4. State ofPunjab v. Harchet Singh [1994]
  5.  Mohd. Chamat v. State (NCT of Delhi) [1998]
  6. State ofMaharashtra v. Suresh [2000]
  7. Ram Deo Chauhan and Another v. State of Assam [2000]
  8. Saibanna v. State ofKarnataka [2005]
  9. Surendra Pal Shivbalakal v. State of Gujara[2005]
  10. Amrit Singh v. State of Punjab [2007]
  11. Swami Shraddananda v. State of Karnataka [2008]
  12. Santosh Kumar Bariyar v. State of Maharashtra [2009]
  13. Alok Nath Dutt and Others v. State of West Bengal [2006]
  14. Santosh Singh v. State [2010]
  15. Absar Alam v. State of Bihar [2012]
  16. Ramnaresh & Ors. v. State of Chhattisgarh [2012]
  17. Neel Kumar @AnilKumar v. The State of Haryana [2012]

Govindaswamy v. State of Kerala [ ALL SC 2016 SEPTEMBER]

KEYWORDS:-RAPE AND MURDER-INTENTION-VICTIM NOT DIED INSTANTLY

DATE: September 15, 2016

  • To hold that the accused is liable under Section 302 IPC what is required is an intention to cause death or knowledge that the act of the accused is likely to cause death.
  • The intention of the accused in keeping the deceased in a supine position, according to P.W. 64, was for the purposes of the sexual assault. The requisite knowledge that in the circumstances such an act may cause death, also, cannot be attributed to the accused, inasmuch as, the evidence of P.W. 64 itself is to the effect that such knowledge and information is, in fact, parted with in the course of training of medical and para-medical staff. The fact that the deceased survived for a couple of days after the incident and eventually died in Hospital would also clearly militate against any intention of the accused to cause death by the act of keeping the deceased in a supine position.

ACTS: S 372 and 376 of IPC

SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1584-1585 OF 2014

Bench: Ranjan Gogoi, Prafulla C. Pant, Uday Umesh Lalit

Govindaswamy v. State of Kerala

J U D G M E N T

RANJAN GOGOI,J.

1. The accused appellant has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentenced to death. He has additionally been convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for life. Besides, he has been found guilty of the offences punishable under Section 394 read with Section 397 IPC as well as under Section 447 of the IPC for which he has been separately sentenced to undergo rigorous imprisonment for seven years and three months respectively. The conviction of the accused appellant and the sentences imposed have been confirmed in appeal by the High Court. Aggrieved, the present appeals have been filed.

2. The case of the prosecution in short is that the deceased/victim girl, aged about 23 years, was working in Ernakulam and was engaged to one Anoop (P.W.76), who also happened to be employed in Ernakulam. Their betrothal ceremony was to be in the house of the deceased at Shornur on 2nd February, 2011. P.W.76 along with his family members were scheduled to visit the house of the deceased on that day. Accordingly, on 1st February, 2011 the deceased boarded the Ernakulam-Shornur Passenger Train at about 5.30 p.m. from Ernakulam Town North Railway Station to go to her home at Shornur. The deceased had boarded the ladies division of the last compartment. There were other passengers in the ladies division of the compartment along with the deceased. When the train reached Mulloorkara, all other lady passengers in the ladies division of the compartment had alighted and, therefore, the deceased also got down along with them and hurriedly entered the ladies coach attached just in front of the last compartment. The train reached Vallathol Nagar Railway Station, where it halted for some time.

3. According to the prosecution, the accused appellant, who is a habitual offender, noticed that the deceased was alone in the ladies compartment. As soon as the train had left Vallathol Nagar Railway Station and moved towards Shornur the accused entered the ladies compartment. The prosecution alleges that inside the compartment the accused had assaulted the deceased and, in fact, repeatedly hit her head on the walls of the compartment. The prosecution has further alleged that the deceased was crying and screaming. It is the case of the prosecution that the victim was dropped/pushed by the accused from the running train to the track and that the side of her face hit on the crossover of the railway line. The accused appellant also jumped down from the other side of the running train and after lifting the victim to another place by the side of the track he sexually assaulted her. Thereafter he ransacked her belongings and went away from the place with her mobile phone.

4. It is the further case of the prosecution that P.W. 4 – Tomy Devassia and P.W. 40 – Abdul Shukkur were also traveling in the general compartment attached in front of the ladies compartment. According to the prosecution, the said witnesses heard the cries of the deceased. P.W. 4 wanted to pull the alarm chain to stop the train but he was dissuaded by a middle-aged man who was standing at the door of the compartment by saying that the girl had jumped out from the train and escaped and that in these circumstances he should not take the matter any further as the same may drag all of them to Court. However, when the train reached Shornur Railway Station within a span of 10 minutes, P.W.4 and P.W.40 rushed to P.W.34 – Joby Skariya, the guard of the train and complained about the incident which triggered a search, both, for the deceased and the accused. Eventually, the deceased was found in a badly injured condition lying by the side of the railway track and the accused was also apprehended soon thereafter in circumstances which need not detain the Court. According to the prosecution, the deceased was removed to the local Hospital whereafter she was taken to the Medical College Hospital, Thrissur where she succumbed to her injuries on 6th February, 2011. It is in these circumstances that the accused was charged with the commission of crimes in question for which he has been found guilty and sentenced, as already noticed.

5. A large number of witnesses (83 in all) had been examined by the prosecution in support of its case and over a hundred documents were exhibited. For the present it would suffice to notice the evidence of P.Ws.4, 40, 64 and 70. The Postmortem report (Exhibit P-69) and D.N.A. Profile (Exhibit P-2) would also require a specific notice and the relevant part thereof may also require to be reproduced.

6. P.W.4 and P.W.40, as already mentioned, were traveling in the general compartment which was attached just in front of the ladies compartment. According to both the witnesses, they heard the sounds of a woman crying and wailing coming from the ladies compartment and though P.W. 4 wanted to pull the alarm chain of the train he was dissuaded by a middle-aged man who reported to them that the issue should not be carried any further as the woman had alighted from the train and had made good her escape. According to P.W. 4 and P.W.40, they brought the matter to the attention of P.W.34, the guard of the train as soon as the train had reached Shornur railway station. The recovery of the deceased and the apprehension of the accused followed thereafter.

7. P.W. 64 – Dr. Sherly Vasu who was then working as Professor and Head of Department of Forensic Medicine, M.C.H. Thrissur conducted the postmortem examination of the deceased with the assistance of five other doctors (who were also examined). According to P.W. 64, he had noted 24 antemortem injuries on the body of the deceased, details of which have been mentioned by him in the postmortem report (Exhibit P-69). While it will not be necessary to notice the details of each of the injuries sustained/suffered by the deceased, the evidence of P.W. 64 so far as the injury Nos.1 and 2 is concerned, being vital, would require specific notice and, therefore, is extracted below:

“Injury No.1 is sufficient to render her dazed and insensitive. It is capable of creating dazeness to head and rendering incapable to respond. These wounds may not be of the nature of exclusive cause of death. This injury will be caused only if the head is forcefully hit to backward and forward against a hard flat surface. Need not become total unconscious. But can do nothing. The injury described in No.1 is caused by hitting 4-5 times against a flat surface holding the hair from back with a right hand. These injuries are photographed in detail in Ext. P.70. CD. This is my independent findings. I have also checked the matters listed in the requisition from an independent evaluation what I understand is that after hitting the head on a flat and hard substance several times and rendering insensitive dropped. (Q) If hit against the wall (of train) holding hair from behind it will occur? (A) Yes. It will occur so.

Injury No.2. It is the injury sustained from beneath the left eye upto chin bone. Further below and on lips. There are fractures on maxilla and mandible. About 13 teeth have gone severed. The left cheek bone is pulverized. A vertically long mark of rubbing chin bone and cheek is seen. So it is added in remarks that fall on to smooth surface of a rail and gliding forward (upward) (gliding). The gliding mark on lower chin is seen 5 cm. (Gliding movement) In post mortem request it is pushed down from running train. So though it was a running train it had only negligible speed. In inflicting this injury the speed of the train had only a negligible role. The speed ignorable. Since she was rendered insensitive as a result of injury No.1 in the absence of natural reflex the face had to bear the full force of the descent, it is seen. In case she was not dazed and had alert reflexes and fallen in such a condition she would have moved hands forward and the hands would have showed the force of the fall to some extent. There was no injuries of fall on elbows, wrists and inner boarders of fore arms. There was no reflexes in this fall. No.2 are injuries that may have been caused by fall of a person having the weight of this person (42 kg.) from a height of 5 to 8 feet. These injuries will be sustained if this portion (left cheek bone crosswise) hits against train tract. I have visited this scene on 9-2-2011 with C.I. Chelakkara.

These 5 tracks were seen. They are seen as intercoin (cross). So understood that it can happen when fallen from a moving train into the next near cross tract. Usually two tracks go Parallel. This is not such a place. Left cheek bone has been thoroughly pulverized. The bone was pulverized as there are air cells inside maxilla. By the force of the fall as there are air cells inside maxilla.

8. The opinion of P.W. 64 as to the cause of death mentioned in the postmortem report is as follows:

“The decedent had died due to blunt injuries sustained to head as a result of blunt impact and fall and their complications including aspiration of blood into air passages (during unprotected unconscious state following head trauma) resulting in anoxic brain damage. She also showed injuries as a result of assault and forceful sexual intercourse. She had features of multiple organ disfunction at the time of death.

9. P.W.64 in his evidence had also explained that the aspiration of blood into the air passage could have been due to the victim being kept in a supine position, probably, for sexual intercourse which may have resulted in anoxic brain damage.

10. There are other parts of the postmortem report and the evidence of P.W. 64 which would also require a specific notice insofar as the offence under Section 376 IPC alleged against the accused appellant is concerned. The relevant part of the postmortem report is extracted below: “Pelvic Structures: Urinary bladder was empty. Uterus and its appendages appeared normal, the cavity was empty; endometrium showed congestion and the cervical os was circular. The right ovary showed polycystic changes. Spine was intact.

Vaginal introitus and wall showed contusion all around, most prominent just behind urethral meatus. Hymen showed a recent complete tear at about 5’O clock position and partial recent tear at about 7’O clock positions (as suggested by edema and hyperemia of edges) and a natural indentation at 1’O clock position.

(Remark – recent sexual intercourse)”

11. The evidence of P.W. 70 – Dr. R. Sreekumar, Joint Director (Research) holding charge of Assistant Director, D.N.A. in the Forensic Science Laboratory, Trivandrum and the report of examination (Exhibit P-2) may now be noticed.

12. P.W. 70 in his deposition has stated that after examination following results were recorded at pages No.19 and 20 of Exhibit P-2:

Item 1(a) and 2(b) contain the vagina swabs of the victim whereas Item 2(a) is vaginal smear collected from the victim. Item 3(a) is a cut open garment (M.O.1) and Item 18 is a torn lunky (M.O.5). Item No.8 is the blood sample of the accused.

According to P.W. 70, as per the DNA typing the seminal stains on Item No. 1(1), 2(a), 2(b), 3(a) and 18 belonged to the accused to whom the blood sample in Item No.8 belongs.

Furthermore, from the evidence of P.W. 70 it is evident that the blood of the victim [Item 1(b)] was found in the clothing of the accused i.e. pants [Item No.13 (M.O.8)], underwear [Item No.14 (M.O.21)]; Shirt [Item No.17 (M.O.6)].

13. So far as the offence under Section 376 IPC is concerned, from a consideration of the postmortem report (Exhibit P-69) D.N.A. Profile (Exhibit P-2) and the evidence of P.W. 64 and P.W. 70, there can be no manner of doubt that it is the accused appellant who had committed the said offence. The D.N.A. profile, extracted above, clinches the issue and makes the liability of the accused explicit leaving no scope for any doubt or debate in the matter. We, therefore, will find no difficulty in confirming the conviction of the accused under Section 376 IPC. Having regard to the fact that the said offence was committed on the deceased who had already suffered extreme injuries on her body, we are of the view that not only the offence under Section 376 IPC was committed by the accused, the same was so committed in a most brutal and grotesque manner which would justify the imposition of life sentence as awarded by the learned trial Court and confirmed by the High Court.

14. Insofar as the offence under Section 394 read with Section 397 IPC is concerned, there is also adequate evidence on record to show that the accused after committing the offence had taken away the mobile phone of the deceased and had, in fact, sold the same to P.W.7 – Manikyan who again sold the same to P.W.10 – Baby Varghese from whom the mobile phone was seized by the Police.

15. This will bring the Court to a consideration of the culpability of the accused for the offence punishable under Section 302 IPC and if the accused is to be held so liable what would be the appropriate punishment that should be awarded to him. The evidence of P.W. 64, particularly, with reference to the injury No. 1 and 2, details of which have been extracted above, would go to show that the death of the deceased was occasioned by a combination of injury no.1 and 2, and complications arising therefrom including aspiration of blood into the air passages resulting in anoxic brain damage. The same, in the opinion of the doctor (P.W.64), had occurred due to the fact that the deceased was kept in a supine position for the purpose of sexual assault. In a situation where death had been certified and accepted to have occurred on account of injury Nos. 1 and 2 and aspiration of blood into the air passages on account of the position in which the deceased was kept, the first vital fact that would require consideration is whether the accused is responsible for injury No.2 which apparently was occasioned by the fall of the deceased from the running train. Before dealing with Injury No.2 we would like to observe that we are of the opinion that the liability of the accused for Injury No.1 would not require a redetermination in view of the evidence of P.W.4 and P.W.40 as to what had happened in the ladies compartment coupled with the evidence of P.W.64 and the Postmortem report (Exhibit P-69). However, so far as Injury No.2 is concerned, unless the fall from the train can be ascribed to the accused on the basis of the cogent and reliable evidence, meaning thereby, that the accused had pushed the deceased out of the train and the possibility of the deceased herself jumping out of train is ruled out, the liability of the accused for the said injury may not necessary follow.

16. In this regard, the learned counsel for the State has referred to injury No.1 sustained by the deceased, as deposed to by P.W.64, and has contended that in view of the impaired mental reflexes that the deceased had at that point of time it may not have been possible for her to take a decision to jump out of the train. While the said proposition need not necessarily be incorrect what cannot also be ignored is the evidence of P.W. 4 and P.W. 40 in this regard which is to the effect that they were told by the middle aged man, standing at the door of the compartment, that the girl had jumped out of the train and had made good her escape. The circumstances appearing against the accused has to be weighed against the oral evidence on record and the conclusion that would follow must necessarily be the only possible conclusion admitting of no other possibility. Such a conclusion to the exclusion of any other, in our considered view, cannot be reached in the light of the facts noted above.

17. Keeping of the deceased in a supine position for commission of sexual assault has been deposed to by P.W. 64 as having a bearing on the cause of death of the deceased. However, to hold that the accused is liable under Section 302 IPC what is required is an intention to cause death or knowledge that the act of the accused is likely to cause death. The intention of the accused in keeping the deceased in a supine position, according to P.W. 64, was for the purposes of the sexual assault. The requisite knowledge that in the circumstances such an act may cause death, also, cannot be attributed to the accused, inasmuch as, the evidence of P.W. 64 itself is to the effect that such knowledge and information is, in fact, parted with in the course of training of medical and para-medical staff. The fact that the deceased survived for a couple of days after the incident and eventually died in Hospital would also clearly militate against any intention of the accused to cause death by the act of keeping the deceased in a supine position. Therefore, in the totality of the facts discussed above, the accused cannot be held liable for injury no.2. Similarly, in keeping the deceased in a supine position, intention to cause death or knowledge that such act may cause death, cannot be attributed to the accused. We are, accordingly, of the view that the offence under Section 302 IPC cannot be held to be made out against the accused so as to make him liable therefor. Rather, we are of the view that the acts of assault, etc. attributable to the accused would more appropriately attract the offence under Section 325 IPC. We accordingly find the accused appellant guilty of the said offence and sentence him to undergo rigorous imprisonment for seven years for commission of the same.

18. Consequently and in the light of the above discussions, we partially allow the appeals filed by the accused appellant. While the conviction under Section 376 IPC, Section 394 read with Section 397 IPC and Section 447 IPC and the sentences imposed for commission of the said offences are maintained, the conviction under Section 302 IPC is set aside and altered to one under Section 325 IPC. The sentence of death for commission of offence under Section 302 IPC is set aside and instead the accused is sentenced to undergo rigorous imprisonment for seven years. All the sentences imposed shall run concurrently. The order of the learned Trial Court and the High Court is accordingly modified.

RANJAN GOGOI

PRAFULLA C. PANT

UDAY UMESH LALIT

NEW DELHI

SEPTEMBER 15, 2016


 Alternative citation :Govindaswamy v. State of Kerala, (2016) 16 SCC 295, 15-09-2016

Soumya Rape Case

 

Gurwinder Singh @ Sonu Etc. Vs. State of Punjab and ANR [ALL SC 2018 MAY]

KEYWORD: MURDER CONVICTION

DATE: May 08, 2018

ACTS: Section 304 Part-I IPC

HELD: “the deceased sustained head injuries with multiple fractures, right fronto temporal and temporo parietal region infarct in the right fronto temporo parietal region of the brain, haemorrhagic contusions in bilateral temporal region and right parietal region. The weapon used in the manner in which the injury was inflicted clearly establish that the appellants intended to cause the injury which is sufficient in the ordinary course of nature to cause death. Having regard to the facts and circumstances of the case, we are of the view that the conviction of the appellants under Section 302 IPC to be modified as conviction under Section 304 Part-I IPC”

SUPREME COURT OF INDIA

Gurwinder Singh @ Sonu Etc. Vs. State of Punjab and ANR.

[Criminal Appeal Nos. 2301-2302 of 2014]

R. BANUMATHI, J.

1. These appeals arise out of the judgment dated 17.12.2012 passed by the High Court of Punjab and Haryana at Chandigarh in CRA No.1176 DB of 2010 and CRA No.1222 DB of 2010 in and by which the High Court affirmed the conviction of the appellants under Section 302 IPC read with Section 34 IPC and sentence passed by the trial Court.

2. Case of the prosecution is that Sukhwinder Singh (PW-6) is the son of deceased Harbhajan Singh. Satnam Singh who is the younger brother of deceased Harbhajan Singh is residing separately in the village and other two younger brothers of Harbhajan Singh have gone to Italy.

The land falling to other brothers’ share is being cultivated by 1 Satnam Singh; but they desired that their land should be cultivated by Harbhajan Singh. For amicable settlement, the matter went to the Panchayat several times; but could not be solved. Few days prior to the occurrence, dog of Satnam Singh went missing, who blamed the family of Harbhajan Singh for missing of the said dog. On 02.11.2007 at about 04.00 p.m., both families gathered to discuss the issue regarding the land and missing of dog.

Complainant-Sukhwinder Singh, deceased Harbhajan Singh, his uncle Satnam Singh, Gurwinder Singh alias Sonu son of Satnam Singh and other villagers namely Sandeep Singh, Makhan Singh also participated in the said gathering, which took place on the tubewell situated near village Dasupur. During discussion for settlement, there was exchange of hot words and the appellants Satnam Singh and Gurwinder Singh gave fist and kick blows to them. Satnam Singh also raised ‘Lalkara’ to catch hold Harbhajan Singh to teach him a lesson for partitioning the land. In the meanwhile, appellant Gurwinder Singh brought an axe from the room near the tubewell and Satnam Singh held Harbhajan Singh from the arms. Gurwinder Singh gave axe blow to Harbhajan Singh which hit him on his head and Harbhajan Singh became soiled with blood.

3. The complainant-Sukhwinder Singh took his father to Civil Hospital, Kartarpur. After the first aid, Harbhajan Singh was referred to Joshi Hospital, Jalandhar where he was admitted for further treatment. Even after the incident, since the talk for compromise was going on, no complaint was lodged about the incident. Since the matter could not be settled, Sukhwinder Singh lodged the complaint on 07.11.2007, based on which FIR No.178 of 2007 was registered under Section 307 IPC read with Section 34 IPC. Initial investigation was taken up by the investigating officer. Harbhajan Singh succumbed to injuries on 01.12.2007 and the case was altered into Section 302 IPC read with Section 34 IPC. Dr. M.B. Bali, Medical Officer (PW-1) conducted the autopsy on the dead body of Harbhajan Singh. Further investigation was completed and charge sheet was filed against the appellants/accused persons under Section 302 IPC read with Section 34 IPC.

4. To bring home the guilt of the accused, prosecution has examined Sukhwinder Singh (PW-6), Sandeep Singh (PW-7), Dr. M.B. Bali, Medical Officer (PW-1) and other witnesses. The appellants/accused were questioned under Section 313 Cr.P.C. about the incriminating evidence and circumstances and the accused denied 3 all of them. On the side of the accused, defence witnesses Dr. Mohinderjit Singh (DW-1) and Kuldeep Kaur (DW-2) were also examined.

5. Upon consideration of evidence, the trial court held that by the evidence of Sukhwinder Singh (PW-6) and Sandeep Singh (PW-7), the prosecution has established the guilt of the accused beyond reasonable doubt. The trial court rejected the defence version that Mithu, servant of the accused, caused injuries to deceased Harbhajan Singh as unbelievable. On such findings, the trial court convicted the appellants/accused Gurwinder Singh under Section 302 IPC and Satnam Singh under Section 302 IPC read with Section 34 IPC and sentenced them to undergo life imprisonment and also to pay a fine of Rs.10,000/- each. Being aggrieved, the appellants preferred appeal before the High Court and the High Court confirmed the conviction and the sentence imposed upon the appellants by the trial court.

Hence, this appeal.

6. Assailing the verdict of the conviction, learned counsel for the appellants submitted that since there was a delay of five days in lodging the First Information Report, serious doubts arise as to the prosecution case. It was contended that the appellants/accused also sustained injuries for which the prosecution has offered no explanation and that the prosecution has suppressed the genesis of the occurrence. Learned counsel for the appellants inter alia contended that even if the accusations of the prosecution are accepted in toto, offence under Section 302 IPC is not made out in view of the circumstances emerging from the evidence as the attack was in a sudden quarrel when parties have assembled for settling the land dispute.

7. In reply, learned counsel for the State submitted that considering the evidence adduced by the prosecution and the nature of head injuries inflicted on the deceased, the trial court was justified in recording the conviction under Section 302 IPC and the High Court has rightly dismissed the appeal.

8. Evidence of eye witnesses Sukhwinder Singh (PW-6) and Sandeep Singh (PW-7) were corroborated by the medical evidence. Prosecution has established that accused were responsible for causing death of Harbhajan Singh. In the same incident, appellant Satnam Singh also sustained injuries. On the same day i.e. 02.11.2007 at 04.45 p.m., Dr. Mohinderjit Singh (DW-1), Medical Officer examined accused Satnam Singh and noted the following injuries on the person of Satnam Singh:-

1. An incised wound 6.0 cm × 0.5 cm on the frontal region;

2. An incised wound 5.5 cm × 0.5 cm on the left frontal region.

The patient was discharged after treatment. On the same day, Dr. Mohinderjit Singh (DW-1) also examined accused Gurwinder Singh and noted the following injuries on the person of Gurwinder Singh:-

1. An incised wound 3.0 cm × 0.5 cm right temporal parietal region;

2. Abrasion right side frontal region 0.5 cm × 0.5 cm;

3. Lacerated wound forearm 3.0 cm × 0.5 cm.

9. Contention of the appellants is that prosecution has not explained the injuries on the person of the accused and only the complainant party attacked the accused and the complainant party are the aggressors. In his statement, Sukhwinder Singh has stated that he attacked on the head of Satnam Singh and caused injury to him. Arguments advanced on behalf of the appellants is that the complainant party were the aggressors and that the prosecution failed to explain the injuries on the persons of the accused and therefore, the case of prosecution should be disbelieved.

10. It cannot be held as an invariable proposition that as soon as the accused received the injuries in the same transaction, the complainant party were the aggressors – it cannot be held as a rule that the prosecution is obliged to explain the injuries and on failure of the same, the prosecution case should be disbelieved. It is well settled that before placing the burden on the prosecution to explain the injuries on the person of the accused, two conditions are to be satisfied:-

(i) the injuries were sustained by the accused in the same transaction; and (ii) the injuries sustained by the accused are serious in nature.

11. This Court considered the effect of non-explanation of injuries sustained by the accused person in Takhaji Hiraji v. Thakore Kubersing Chamansing and others (2001) 6 SCC 145 and held as under:-

“17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajender Singh v. State of Bihar (2000) 4 SCC 298, Ram Sunder Yadav v. State of Bihar (1998) 7 SCC 365 and Vijayee Singh v. State of U.P. (1990) 3 SCC 190, all three-Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before nonexplanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions:

(i) that 7 the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.”

(underlining added)

12. In the present case, the incident had taken place near the tubewell where both the parties assembled to settle the land dispute. When there was exchange of words, there was a scuffle between both the parties. In the same transaction where Harbhajan Singh was attacked, the accused party also sustained injuries. Apart from the stray, the statement made by the complainant-Sukhwinder Singh in the FIR, the prosecution has not offered any explanation for the injuries sustained by the accused. Since both the accused sustained injuries in the incident, non-explanation of injuries sustained by the accused assumes significance. Having regard to the injuries sustained by the accused, the trial court and the High Court ought to have made an effort in searching out genesis of the occurrence.

13. From the evidence, it is clear that both families have assembled and they were talking near the tubewell to resolve the land dispute. There was no provocation from either side. In his evidence, Sukhwinder Singh (PW-6) has clearly stated that there was exchange of words which resulted in scuffle between both the parties. It has come from the evidence of Dr. Mohinderjit Singh (DW-1) that Harbhajan Singh was drunk at the time of the incident. While examining Harbhajan Singh at the time of his admission in the hospital, Dr. Moninderjit Singh (DW-1) observed that “there was alcoholic smell present in the breath of the patient”. It is in this circumstance, appellant Gurwinder Singh had gone inside the room adjacent to the tubewell and brought an axe and hit on the head of deceased Harbhajan Singh. As pointed out earlier, accused also sustained injuries in the same incident.

14. There is no clear evidence as to who started the attack. Both the parties were unarmed. When there was exchange of words between both the parties, accused Gurwinder Singh went inside the room and brought an axe and caused head injuries to Harbhajan Singh. From the post-mortem certificate (Ex.PA), it is seen that deceased Harbhajan Singh sustained head injuries with multiple fractures, right fronto temporal and temporo parietal region in the right fronto temporo parietal region of the brain, haemorrhagic contusions in bilateral temporal region and right parietal region. However, deceased Harbhajan Singh survived for about one month and he succumbed to injuries on 01.12.2007.

Though accused Gurwinder Singh used the axe which is a formidable weapon, but Harbhajan Singh survived for about one month. The appellants therefore cannot be said to have taken undue advantage of the same. There was also a delay of five days in lodging the FIR; the reason being, talks were still going on for settling the matter. Considering the totality of the circumstances, in our view, the act of the accused would fall under “Exception 4” to Section 300 IPC.

15. For bringing in operation of “Exception 4” to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

16. Considering the scope of “Exception 4” to Section 300 IPC, in Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395, it was held as under:-

“8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have 10 been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do.

There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A “sudden fight” implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side.

For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused:

(a) without premeditation;

(b) in a sudden fight;

(c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and

(d) the fight must have been with 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 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons.

It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”.”

(underlining added)

17. The question falling for consideration is the nature of the offence whether it would fall under Section 304 Part-I IPC or Part-II IPC. The third clause of Section 300 IPC consists of two parts. Under the first part, it must be proved that there was an intention to inflict the injury that is present and under the second part, it must be proved that the injury was sufficient in the ordinary course of nature to cause death. As discussed earlier, deceased Harbhajan Singh was attacked with axe on the head and he sustained multiple fractures, right fronto temporal and temporo parietal region infarct in the right fronto temporo parietal region of the brain, haemorrhagic contusions in bilateral temporal region and right parietal region. The head injury caused to Harbhajan Singh was sufficient in the ordinary course of the nature to cause death. The accused intended to inflict that injury on Harbhajan Singh which is sufficient in the ordinary course of nature to cause death. In Nankaunoo v. State of Uttar Pradesh (2016) 3 SCC 317, it was held as under:-

“12. The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place.”

18. Keeping in view the above principle, when we examine the facts of the present case, the deceased sustained head injuries with multiple fractures, right fronto temporal and temporo parietal region infarct in the right fronto temporo parietal region of the brain, haemorrhagic contusions in bilateral temporal region and right parietal region. The weapon used in the manner in which the injury was inflicted clearly establish that the appellants intended to cause the injury which is sufficient in the ordinary course of nature to cause death. Having regard to the facts and circumstances of the case, we are of the view that the conviction of the appellants under Section 302 IPC to be modified as conviction under Section 304 Part-I IPC.

19. In the result, the conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part-I IPC and the appellants are sentenced to undergo imprisonment for seven years and the appeals are partly allowed. Appellant Gurwinder Singh is said to have undergone imprisonment for more than ten years, he is ordered to be released forthwith unless his presence is required in any other case. Appellant Satnam Singh is directed to surrender to serve the remaining period of sentence, failing which, he shall be taken into custody.

J. [RANJAN GOGOI]

J. [R. BANUMATHI]

New Delhi;

May 08, 2018

Issac @ Kishor Vs. Ronald Cheriyan and Ors.[SC 2018 January]

KEYWORDS:-Setting aside  acquittal-302 IPC -MURDER-High Court in interfering with a finding of acquittal in revision-

Capture

DATE:- January 23, 2018

  • In appeal against acquittal, in exceptional circumstances, the High Court may set aside the order of acquittal even at the instance of private parties, though the State may not have thought it fit for appeal. But it is to be emphasized that this jurisdiction is to be exercised only in exceptional circumstances when there is glaring defect in the conduct of trial which has materially affected the trial or caused prejudice.

ACTS:- IPC-Cr.P.C

SUPREME COURT OF INDIA

Issac @ Kishor Vs. Ronald Cheriyan and Ors.

[Criminal Appeal No.165 of 2018 arising out of SLP (CRL.) No. 9571 of 2012]

O R D E R

R. BANUMATHI, J.

1. Leave granted.

2. This appeal arises out of the judgment dated 25.07.2012 passed by Kerala High Court at Ernakulam allowing Criminal Revision Petition No.3413 of 2008 preferred by respondent no.1 herein thereby setting aside the acquittal of the appellant-accused no.1 for the offences punishable under Section 302 IPC and Section 394 IPC read with Section 34 IPC and further remitting the matter back to the trial Court for retrial.

3. Briefly stated case of the prosecution is that, the deceased-Brijitha was sixty three years old widow and used to stay alone in her house which was situated in five acres of agricultural land. Natarajan, father of accused no.1 used to stay in the same house where Brijitha was staying. He was a permanent employee of Brijitha. Respondent no.1-Ronald Cheriyan, son of the deceased, for some reasons, directed Natarajan not to stay in the house and therefore, Natarajan discontinued his employment. Thereafter, for helping the deceased in agricultural work, the appellant-accused no.1 started staying with the deceased in her house.

On 06.02.2006 in the midnight, sister-in-law of deceased who was staying at a distance of 50 meters from the house of the deceased, heard cries from the house of deceased. On hearing the cries of deceased, sister-in-law of deceased got awaken her son Cheriyan @ Shabin (PW-1). Then, PW-1 went to the house of deceased and asked the appellant-accused no.1 to open the door of the kitchen; but the appellant-accused no.1 told him that he being tied with rope could not open the door and asked PW-1 to take entry from the front door. PW-1, on entering the house from front door, found the deceased lying in unconscious state in the front room of the house and the appellant-accused no.1 being tied with rope in the kitchen.

The appellant-accused no.1 told PW-1 that five thieves had entered the house and after suffocating the Page No. 2 of 11 deceased took away all the valuable gold ornaments and cash from the house. PW-1 informed about the incident to respondent no.1-Ronald Cheriyan, eldest son of the deceased, and then they took the deceased to the St. John Hospital, Kattappana where she was declared dead. At about 04.00 a.m., PW-1 went to Kattappana police station and his statement (Ex.P1) was recorded by PW-22-Sub-Inspector of Police, on the basis of which, case in Crime No. 49 of 2006 was registered against five identifiable persons under Section 396 IPC.

4. After registration of FIR, the Inspector of Police, during investigation prepared the spot panchnama (scene mahazar) and also taken the finger prints from the scene of crime. The appellant-accused no.1 was arrested on 07.02.2006 at 06.20 p.m. who gave a disclosure statement; based on which, accused no.2 was located and arrested on the same day at 08.00 p.m. Confession statement of accused no.2 led to recovery of gold ornaments, currency notes and shawl which was used to suffocate the deceased, from the house of accused no.2.

Also, the grey hair found on the shawl were preserved for further investigation. The post-mortem report disclosed that death of the deceased was caused due to smothering. After completion of the Page No. 3 of 11 investigation, charge-sheet was filed against the appellant-accused no.1 under Section 394 IPC and Section 302 IPC read with Section 34 IPC.

5. The trial court convicted accused no.2 under Sections 302 and 394 IPC inter alia on the following grounds:-

a. presence of accused no.1 has been confirmed in the house of the deceased due to the fact that finger prints of the accused were found on the objects recovered from the place of crime;

b. ornaments of the deceased and the currency notes were recovered from the house of accused no.2;

c. recovery of shawl which was used in the commission of offence containing hair of the deceased, from the house of accused no.2; and

d. that accused no.2 was in dire need of money to pay back his debts.

The trial court has acquitted the appellant-accused no.1 holding that the disclosure statement given by the appellant regarding involvement of accused no. 2 and location of the house of accused no.2, are not sufficient grounds to establish the guilt of appellant. The trial court held that the chance finger prints of the appellant-accused no.1 collected from the place of occurrence was immaterial as he was working as domestic help in the house of deceased.

6. Being aggrieved by acquittal of appellant, respondent no.1-eldest son of the deceased filed a criminal revision challenging the acquittal of the appellant-accused no.1. Accused no.2 also filed a criminal appeal before the High Court challenging his conviction and sentence.

7. The High Court held that the trial court has committed irregularity in omitting to frame charges under Section 34 IPC, even though the trial court itself has framed an issue on the point of sharing of common intention of accused nos.1 and 2 in committing robbery and murder of the deceased which has materially affected the trial. The High Court further held that the fingerprint expert who had prepared the report (Ex.P8) ought to have been examined before the trial court and non-examination of that witness has caused prejudice. The High Court has taken note of that the trial court has failed to evaluate the possibility of accused no.2 in committing the crime alone without the aid of the appellant and also that there was no injury on the appellant when he was found tied with the rope in the house of deceased.

8. We have heard learned counsel for the parties and perused the impugned judgment and materials on record. The point falling for consideration is whether the High Court was right in setting aside the judgment of the trial court and remitting the matter back to the trial court for retrial.

9. Section 386 Cr.P.C. defines the powers of the Appellate Court in dealing with the appeals. The powers enumerated thereon are vested in all courts, whether the High Court or subordinate courts, except that Clause (a) of the section is restricted to the powers of the High Court only, since an appeal against an order of acquittal lies only to that court, while Clause (b) of the section is not so restricted and embraces all courts. The power to direct the accused to be retried has been conferred on the High Court not only when it deals with an appeal against acquittal but also when it deals with an appeal against conviction. Section 386 Cr.P.C. reads as under:-

“Section 386:- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may :-

(a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) In an appeal from a conviction:-

(i) Reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of Competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) Alter the finding, maintaining the sentence, or (iii) With or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; …………”

10. Under Section 386(a) and (b)(i), the power to direct retrial has been conferred upon the Appellate Court when it deals either with an appeal against judgment of conviction or an appeal against acquittal (High Court). There is a difference between the powers of an Appellate Court under Clauses (a) and (b). Under Clause (b), the Court is required to touch the finding and sentence, but under Clause (a), the Court may reverse the order of acquittal and direct that further enquiry be made or the accused may be retried or may find him guilty and pass sentence on him according to law.

11. Normally, retrial should not be ordered when there is some infirmity rendering the trial defective. A retrial may be ordered when the original trial has not been satisfactory for particular reasons like…, appropriate charge not framed, evidence wrongly rejected which could have been admitted or evidence admitted which could have been rejected etc. Retrial cannot be ordered when there is a mere irregularity or where it does not cause any prejudice, the Appellate Court may not direct retrial. The power to order retrial should be exercised only in exceptional cases.

12. In K. Chinnaswamy Ready v. State of Andhra Pradesh and Another, AIR 1962 SC 1788, the accused had been convicted by the trial court. The Sessions Court took the view that an important piece of evidence held against the accused was inadmissible and acquitted him. The High Court in revision by the de facto complainant held that the evidence held to be inadmissible by the Sessions Court was admissible and set aside the acquittal directing the accused to be retried on the same charges. The Supreme Court agreed with the High Court that the acquittal deserved to be set aside. In para (7), this Court has spelt out what could be termed as exceptional circumstances which reads as under:-

“7. It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction.

This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision.

These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law.

These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4)……”

(underlining added)

The same principle was again reiterated in Mahendra Pratap Singh v. Sarju Singh and Another AIR 1968 SC 707.

13. In Matukdhari Singh and others v. Janardan Prasad, AIR 1966 SC 356, accused was tried for offences under Sections 420, 466, 406 and 465/471 IPC and acquitted. The trial court did not frame charge under Section 467 IPC regarding which there were prima facie materials available, that is an offence triable exclusively by the Sessions Court. The High Court, in appeal, set aside the acquittal and ordered retrial. The Supreme Court dismissed the appeal preferred before it. The court referred to earlier decisions in Abinash Chandra Bose v. Bimal Krishna Sen and Another AIR 1963 SC 316 and Rajeshwar Prasad Misra v. State of West Bengal and Another AIR 1965 SC 1887 with reference to the facts of those cases and emphasized that wide discretion available with the Appellate Court in ordering retrial.

14. In appeal against acquittal, in exceptional circumstances, the High Court may set aside the order of acquittal even at the instance of private parties, though the State may not have thought it fit for appeal. But it is to be emphasized that this jurisdiction is to be exercised only in exceptional circumstances when there is glaring defect in the conduct of trial which has materially affected the trial or caused prejudice. In the present case, the High Court found that even though the trial court has framed an issue on the point of sharing of common intention of accused Nos. 1 and 2 in committing the offence, the omission to frame charges under Section 34 IPC has materially affected the trial.

The High Court further observed that the fingerprint expert who prepared Ex. P8 ought to have been examined and other circumstances emerging out of evidence ought to have been examined by the trial court. The High Court further observed that because of the omission to frame the charges under Section 34 IPC, in spite of framing the issue of common intention, the trial court has not examined the evidence in proper perspective, which according to the High Court has materially affected the trial which is called for retrial. The discretion exercised by the High Court under Section 386 (a) Cr.P.C. directing retrial with certain directions cannot be said to be erroneous warranting interference.

15. In the result, the appeal is dismissed. The trial court shall proceed with the matter as per the directions of the High Court and dispose of the matter as expeditiously as possible.

No costs.

. [RANJAN GOGOI]

 [R. BANUMATHI]

New Delhi;

January 23, 2018

Atul Thakur Vs. State of Himachal Pradesh etc [SC 2018 JANUARY]

KEYWORDS:-MURDER-The number of wounds caused by the appellant, it is a well established position, by itself cannot be a decisive factor.

Capture

DATE:- January 19, 2018.

  • Thus, it is a case of homicidal death. However, there is no evidence that the injuries inflicted by the appellant were with an intention to cause the murder of Hitesh Thakur. On the other hand, the evidence clearly establishes that the appellant assaulted Hitesh Thakur without any premeditation.

ACTS:-Section 302 of the Indian Penal Code  AND 201 read with Section 34

Atul Thakur Vs. State of Himachal Pradesh etc.

[Criminal Appeal Nos. 522-523 of 2016]

A.M. Khanwilkar, J.

1. These appeals have been filed against the judgment and order dated 1st April, 2016 passed by the High Court of Himachal Pradesh, Shimla in Criminal Appeal Nos.75 & 227 of 2015, modifying the order of conviction and sentence passed by the Sessions Judge (Forests), Shimla, dated 31st December, 2014 in Sessions Trial No.39-S/7 of 2012 thereby convicting the appellant under Section 302 of the Indian Penal Code (IPC) and sentencing him to imprisonment for life along with fine.

2. Shorn of details, the appellant along with three others were tried for offence punishable under Sections 302, 201 read with Section 34 of IPC by the Sessions Judge (Forests), Shimla. The case of the prosecution is that a telephone message was received at Police Station, West Shimla at around 4.45 A.M. on 28.07.2011, informing that a quarrel had taken place near Tunnel 103, from where one Hunny was brought to IGMC Hospital (Shimla) in seriously injured condition. On reaching the hospital, the SHO Shakuntala Sharma was informed that the injured had succumbed to the injuries. She then recorded the statement of Rajinder Singh under Section 154 of the Code of Criminal Procedure.

In his statement, Rajinder Singh disclosed that he had two children. His daughter Pooja was doing computer course and his younger son Hitesh Thakur, 22 years of age, was also doing computer course from Lakhar Bazar. He stated that Hitesh had left home on 27.07.2011 after taking meal, on his motorcycle bearing registration No.HP-63-3235, for attending computer course. He had then informed his sister Pooja on her mobile that he was going with his friend Akhilesh and would not be returning during the night.

He requested his sister to inform their mother. At about 3 a.m. on 28.07.2011 one Atul Thakur (appellant herein) telephonically informed him that his son Hitesh was brought to IGMC Hospital, Shimla as he was not feeling well and asked him to come to the hospital. On receiving that telephonic information he rushed to the hospital and found that his son was lying dead in wounded condition. At that time, the appellant was also present there.

3. After recording the statement, investigation proceeded and four accused, who had visited the house of Mukesh Thakur (Accused No.2) where a drink party was arranged during the night of 27.07.2011 and 28.07.2011, were sent for trial for the stated offence. The Trial Court after analysing the evidence acquitted the other three accused but found the appellant guilty of the offence punishable under Section 304, Part-II and sentenced him to rigorous imprisonment for five years and to pay fine of Rs.10,000/-, in default to undergo further imprisonment for one year vide judgment dated 31st December, 2014.

4. Against the said decision, the appellant filed an appeal before the High Court, being criminal Appeal No.75 of 2015. The complainant also filed an appeal before the High Court, being Criminal Appeal No.227 of 2015 against the acquittal of three accused as well as for enhancement of sentence of the appellant. Both the appeals came to be disposed of by common judgment dated 1st April, 2016. The High Court upheld the finding of fact regarding the involvement of the appellant in the commission of crime.

However, it reversed the finding and conclusion recorded by the Trial Court regarding the nature of offence. It concluded that taking an overall view of the matter, the appellant was guilty of offence punishable under Section 302 of IPC for the murder of Hitesh Thakur and not under Section 304 Part-II, as held by the Trial Court. At the same time, the High Court affirmed the order of acquittal in favour of the other accused who were tried along with the appellant. In the present appeals, the aforementioned decision of the High Court has been assailed only by the original accused No.1.

5. Mr. Aditya Dhawan, learned counsel appearing for the appellant, made a fervent effort to persuade this Court that there is an obvious contradiction between the evidence of the eye-witnesses which should enure to the benefit of the appellant. According to him, the appellant deserves to be acquitted as in the case of co-accused, as the genesis of the offence is doubtful. Further, the involvement of the appellant in the commission of crime has not been proved beyond reasonable doubt. He took us through the evidence of the prosecution witnesses and also of the defence witness (DW1) who was examined at the instance of the appellant.

He submits that in any case, the fact situation established by the prosecution, even if taken as it is, does not warrant a finding of commission of offence of murder of Hitesh Thakur. At best it is a case of culpable homicide not amounting to murder, covered by the Exception under Section 300 of IPC and, thus, punishable under second part of Section 304 of IPC. The Trial Court had justly invoked that offence and sentenced the appellant to undergo five years rigorous imprisonment which the appellant has already undergone.

He, therefore, submits that this appeal be allowed and the appellant be set free by reviving the order of the Sessions Court and setting aside the impugned judgment and order of the High Court. He submits that the appellant has already undergone sentence for a period of 7 years 3 months 24 days as on 24th November, 2017 including remission period of one year 2 months and 6 days.

6. Learned counsel for the respondents, however, has opposed these appeals. According to the respondents, the finding of guilt recorded by the two Courts below is supported by the evidence on record which has established the involvement of the appellant in the commission of crime beyond doubt. The finding of guilt so recorded by the Trial Court and affirmed by the High Court does not warrant any interference.

Similarly, the finding recorded by the High Court reversing the opinion of the Trial Court to convict the appellant under Section 302 of IPC is also unexceptionable. The High Court justly noted that it was a case of murder of Hitesh Thakur which is punishable under Section 302 of IPC and not under Section 304 Part-II, in which case the appellant will have to suffer the sentence period of life imprisonment. The respondents would submit that the appeals are devoid of merit and ought to be dismissed.

7. We have carefully considered the oral evidence adduced by the prosecution, in particular the evidence of PW-11 and PW-12 who were the eye-witnesses to the incident during which Hitesh Thakur was assaulted by the appellant with knife causing serious bodily injuries to which he finally succumbed. In addition to the said oral evidence, the other circumstances also point towards the complicity of the appellant in the commission of crime such as recovery of the knife at his instance and the nature of injuries suffered by the deceased attributable to the assault by the same knife by the appellant. We find that the Trial Court has justly analysed the evidence to record a finding about the complicity of the appellant in the commission of crime.

That has been affirmed by the High Court after reappreciation of the relevant evidence. We are in agreement with the view so taken by the two Courts below. In other words, we are inclined to uphold the concurrent finding recorded by the Courts below that the appellant caused six injuries to deceased Hitesh Thakur by attacking him with a knife on the night of 27.07.2011 in the presence of their friends (including PW-11 and PW-12) who had gathered at the house of Mukesh Thakur for celebrating a drink party arranged at the behest of Hitesh Thakur. Further, Hitesh Thakur succumbed to the injuries caused by the appellant. Thus, it is a case of homicidal death.

8. Notably, the evidence on record plainly establishes that a sudden fight took place between the appellant and Hitesh Thakur and in the heat of passion, the appellant assaulted Hitesh Thakur causing serious bodily injuries. There is no shred of evidence, much less even a remote suggestion that the appellant had assaulted Hitesh Thakur with an intention to cause his death.

Though the High Court found the appellant guilty, it has not held that the bodily injuries caused by the appellant were with an intention to cause the death of Hitesh Thakur. The High Court overturned the finding recorded by the Trial Court regarding the nature of offence, principally on the ground that the appellant gave repeated knife blows to Hitesh Thakur and Hitesh Thakur could not defend himself as he was unarmed. Thus, the appellant was found guilty of offence punishable under Section 302 of IPC.

9. In other words, the controversy in these appeals boils down to the nature of offence and the sentence to be awarded in that behalf. As aforesaid, the evidence on record, as held by two Courts below and with which finding we are in full agreement, is that the appellant gave six knife blows to Hitesh Thakur on the fateful night to which he succumbed. Thus, it is a case of homicidal death. However, there is no evidence that the injuries inflicted by the appellant were with an intention to cause the murder of Hitesh Thakur. On the other hand, the evidence clearly establishes that the appellant assaulted Hitesh Thakur without any premeditation.

The whole incident took place suddenly and, in the heat of passion a sudden quarrel started as Hitesh Thakur, while smoking, blew smoke on the face of the appellant. Resultantly, the appellant got enraged. He told him that he was senior in age and thus should not smoke in his presence much less blow the smoke towards him. Then a sudden physical fight started between them, in which the appellant, in heat of passion, gave six knife blows to Hitesh Thakur on different parts of his body.

10. The evidence of PW-11 and PW-12 (eye-witnesses) would establish that the appellant and others including deceased Hitesh Thakur had gathered at the spot for a drink party arranged at the instance of Hitesh Thakur. They had consumed drinks when the incident took place. Soon after assaulting Hitesh Thakur by knife, when the appellant realised that Hitesh has been badly injured, he offered him water and took him to the hospital along with his other friends.

He was in the hospital till Hitesh Thakur succumbed to the injuries. He had also informed the father of Hitesh on telephone and called him to the hospital. Further, when Hitesh was taken to the hospital, the doctors did not provide him immediate treatment but insisted on calling his father. This can be culled out from the evidence of PW-11 and PW-12, who were eye-witnesses and also present throughout and until the last rites of Hitesh Thakur were performed.

11. Taking into account the events as unfolded, it leaves no manner of doubt that the appellant had no intention to cause the death of Hitesh Thakur. The incident happened without any premeditation in a sudden fight between Hitesh Thakur and the appellant and in heat of passion the appellant inflicted six knife blows on Hitesh Thakur. On the contrary, after realising his mistake, he immediately offered water to Hitesh Thakur and also took him to hospital and stayed there till his last rites were performed. PW-2 father of deceased Hitesh Thakur also corroborates the position that the appellant had contacted him to inform that Hitesh had been brought to the hospital in serious condition.

12. Taking overall view of the matter, the facts of the present case warrant invocation of Exception 4 to Section 300 of IPC. For, it is a case of culpable homicide not amounting to murder inasmuch as  the incident happened on account of sudden fight between the friends who had gathered for a drink party arranged at the behest of Hitesh Thakur. There was no pre-mediation and the act done by the appellant was in the heat of passion without the appellant taking any undue advantage or acted in a cruel manner.

The number of wounds caused by the appellant, it is a well established position, by itself cannot be a decisive factor. The High Court committed manifest error in being influenced by the said fact. What is relevant is that the occurrence was sudden and not premeditated and the offender acted in the heat of passion. The evidence supports the case of the appellant in this behalf. The fact that the appellant used weapon such as knife, is also not a decisive factor to attract Section 302 of IPC. Neither the use of a knife in the commission of offence nor the factum of multiple injuries given by the appellant would deny the appellant of the benefit of Exception 4.

13. Dealing with a somewhat similar situation, in the case of Surain Singh Vs. State of Punjab 1, this Court has restated the settled legal position about the purport of Exception 4 to Section 1 (2017) 5 SCC 796 12 300 of IPC. Even in that case, the accused had repeatedly assaulted the deceased with a Kirpan and caused injuries resulting into death. After restating the legal position, the Court converted the offence to one under Section 304 Part-II instead of Section 302 IPC. Following the same legal principle and keeping in mind the factual position as unfolded, the view taken by the Trial Court of convicting the appellant for offence punishable under Section 304 Part-II, is unexceptionable. The Trial Court had observed thus:

“60. The evidence placed on record by the prosecution, reveals that deceased Hitesh and the accused were having cordial relations since long, knowing to each other and were good friends. A party was organized by the deceased in the room of accused Mukesh and deceased himself invited all the accused to attend the party. In this party, large quantity of alcohol was consumed by them and suddenly an altercation took place between deceased Hitesh and accused Atul Thakur as a result of which accused Atul stabbed Hitesh, which resulted into his death……

61. There is no doubt that Hitesh met a homicidal death on the night intervening 27/28.07/2011 at IGMC, Shimla consequent to stab injury inflicted by accused Atul Thakur. The queston which arises for consideration is whether this action of the accused which caused the death of Hitesh would amount to murder or culpable homicide not amounting to murder. It is an admitted fact that there was no enmity between the deceased and this accused rather they were having cordial relations. The fact 13 that there was a physical fight between the deceased and the accused Atul, cannot be denied because it has come in the evidence of PW-11 Himanshu, PW-12 Manoj Bansal and PW-1 Ashutosh that a physical fight has taken place between them.

In these circumstances, this Court will have to examine the prosecution evidence whether the accused Atul had taken an undue advantage or acted in a cruel or inimical manner so as to deprive him of the benefit of exception 4 of Section 300. In fact, the prosecution could not prove any motive for killing the deceased by the accused. The drinking session in the room of the accused Mukesh Thakur was by mutual consent. From these circumstances, it can be held that the incident in question took place in a sudden fight in the heat of possession.

The next question which arises for consideration is whether the accused Atul did take an undue advantage of the said fight or acted in a cruel or inimical manner. Keeping in view the fact that both the deceased and accused had consumed considerable amount of alcohol which is established from the evidence of the prosecution witnesses, it cannot be altogether ruled out that the stab injuries inflicted were not with an intention of taking undue advantage by the accused Atul.

It is probable that in an inebriated condition the accused inflicted the injuries because of the physical fight between them. Moreover, keeping in view the nature of the injuries noticed by Dr. Sandeep Kaushik in the MLC Ext. PW-18/A, it is difficult to accept the accused Atul Thakur intended to cause the death of Hitesh or that the injuries were so dangerous that they would in all probability, cause death. Nevertheless, the injuries were quite serious, the accused can surely by credited with the knowledge that if an injury is caused with a knife on the chest or abdomen of a person then this act is likely to cause the death of the victim.

62. Having considered the material on record this Court is of the opinion that the accused Atul Thakur can only be found guilty of an offence punishable under Section 304 Part II, Indian Penal Code.”

14. As aforesaid, the High Court overturned this finding of the Trial Court on the question of nature of offence, by mainly observing that the appellant had caused repeated blows with a weapon like knife, causing six serious injuries to Hitesh Thakur to which he succumbed. We are of the opinion that neither the factum of use of knife by the appellant during the assault nor the multiple blows (six) given by the appellant can be the sole basis to deny the appellant of the benefit available under Exception 4 to Section 300 of IPC. The Court is obliged to take an overall view of the matter on the basis of the established facts. This principle is restated in Surain Singh’s case (supra).

15. The next question is whether the appellant is right in his persuasive argument to restore and revive the decision of the Trial Court on the quantum of sentence. The Trial Court awarded the sentence of rigorous imprisonment for five years only for offence under Section 304 Part-II of IPC and fine of Rs.10,000/- and in default, to undergo rigorous imprisonment for a further period of one year. For that no special reason has been recorded by the Trial Court. Considering the nature of offence and the trivial reason for which the appellant got enraged and assaulted Hitesh Thakur, that too by a knife and also gave multiple blows, does not warrant a light punishment. We would, however, accept the argument of the respondents that in the fact situation of the present case, the sentence period should not be less than 10 years imprisonment with fine. That would meet the ends of justice.

16. Accordingly, we partly allow these Criminal Appeal Nos.75 and 227 of 2015 filed by original accused No.1 Atul Thakur. We modify the impugned judgment of the High Court against the appellant in respect of nature of offence and instead restore the order of the Trial Court in that behalf. The appellant is held guilty for an offence punishable under Section 304 Part-II of IPC and is sentenced to undergo rigorous imprisonment for a period of 10 (Ten) years with fine of Rs.10,000/- (Rupees Ten Thousand), in default to undergo further imprisonment for one year. Needless to mention that the appellant shall be entitled to set off under Section 428 of the Code of Criminal Procedure.

17. These appeals are disposed of in the aforementioned terms.

CJI. (Dipak Misra)

J. (A.M. Khanwilkar)

 (Dr. D.Y. Chandrachud)

New Delhi;

January 19, 2018.