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Sec.302 – vs- 326 I.P.C. – Absence of charge under sec.34 – five injuries – one say by Farsa on neck and another say by Ballam near the eye victim died – Doctor said due 5 injuries and due to loss of blood victim died – in the absence of a charge under sec.34 – who cause the death of victim not proved – the accused is liable to be convicted under sec. 326 for causing injury but not for death under sec.302 I.P.C. – Apex court sentenced them to undergo rigorous imprisonment for 10 years each and fine of Rs.5,000/- each, in default to suffer imprisonment for six months. = VIJAY SINGH & ANR. …APPELLANTS VERSUS STATE OF MADHYA PRADESH …RESPONDENT = 2014 (March.Part) judis.nic.in/supremecourt/filename=41334

Sec.302 – vs- 326 I.P.C. – Absence of charge under sec.34 – five injuries – one say by Farsa on neck and another say by Ballam near the eye victim died – Doctor said due 5 injuries and due to loss of blood victim died – in the absence of a charge under sec.34 – who cause the death of victim not proved – the accused is liable to be convicted under sec. 326 for causing injury but not for death under sec.302 I.P.C. – Apex court sentenced them  to undergo rigorous imprisonment for 10 years  each  and  fine  of  Rs.5,000/- each, in default to suffer imprisonment for six months. =

 

 Nonetheless from the evidence of the  prosecution  witnesses  what  is

proved beyond doubt is that appellant Vijay Singh caused injury on the face

of the deceased by ballam and appellant Hari Singh on neck  by  farsa.   In

this backdrop, we proceed to consider the nature of offence. It is relevant

here to mention that no charge under Section 34 IPC has been framed against

the appellants.  Even if we assume in favour of the State, as contended  by

Mr. Singh, that it is possible to hold the appellants guilty under  Section

302 read with Section 34 of the IPC  in  the  absence  of  charge,  in  our

opinion, for  that  the  prosecution  will  have  to  prove  that  injuries

attributable to the appellants or any of them were the cause of death.   As

observed earlier, the appellants had caused one injury  each,  whereas  the

deceased had sustained five injuries.  According to the doctor,  death  had

occurred on account of shock and excessive bleeding  due  to  the  injuries

caused on the person of the deceased.  Therefore, the death had  not  taken

place as a result of the injuries caused by the appellants or  any  one  of

them.  Hence, they cannot be held guilty under Section 302 IPC  simplicitor

or with the aid of Section 34 IPC.

 

 

      However, the prosecution has been able to prove  that  the  appellants

have assaulted the deceased with ballam  and  farsa,  which  are  dangerous

weapons.  Further, the appellants  had  caused  grievous  injuries  on  the

person of the deceased.  Hence, they may not be held guilty  under  Section

302 or 302 read with Section 34 IPC, but surely their acts come within  the

mischief of Section 326  IPC.    Accordingly,  we  modify  the  appellants’

conviction and hold them guilty under Section 326 IPC and sentence them  to

undergo rigorous imprisonment for 10 years  each  and  fine  of  Rs.5,000/-

each, in default to suffer imprisonment for six months.  We have been  told

that both the appellants have already remained in custody for more than the

period of their sentence.  If that be so, they be released forthwith unless

required in any other case.

 

 

      In the result, the  appeal  is  partly  allowed,  the  conviction  and

sentence of the appellants under Section 302 IPC is set aside, instead they

are convicted under Section 326 IPC and sentenced to the  period  as  above

with the direction aforesaid.

2014 (March.Part) judis.nic.in/supremecourt/filename=41334

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.444 OF 2008
VIJAY SINGH & ANR. …APPELLANTS

VERSUS

STATE OF MADHYA PRADESH …RESPONDENT

J U D G M E N T
CHANDRAMAULI KR. PRASAD,J.
In the present appeal by way of special leave, we are concerned with
appellants Vijay Singh and Hari Singh.
According to the prosecution, on 16th of June, 1992 at about 6.30
A.M., a report was lodged by the informant, Pohap Singh (PW-1), alleging
that while he was at his house, his father Bhagirath (deceased) was
returning home after answering the nature’s call and at that time, 11
accused persons including appellant no. 2 Hari Singh armed with farsa and
appellant no. 1 Vijay Singh armed with a ballam and other accused armed
with axes surrounded him. Seeing this, according to the informant, his
mother Prema Bai (PW-2), his wife Sheela (PW-3) and grandfather Jagannath
(PW-6) went to rescue him, whereupon informant Pohap Singh was assaulted by
lathi by one of the accused. Meanwhile, appellant no. 2, Hari Singh
inflicted an injury on the neck of the deceased with farsa upon which he
fell down. Thereafter, all the accused assaulted the deceased with the
weapons with which they were armed. It is the case of the prosecution that
appellant no. 1, Vijay Singh caused an injury with a ballam near the eye of
the deceased and he died on the spot.
On the basis of the report given by Pohap Singh, a case under Section
147, 148 and 302/149 of Indian Penal Code, 1860 (hereinafter referred to as
“the IPC”) was registered. Police after usual investigation submitted the
charge-sheet against all 11 accused persons and ultimately they were
committed to the Court of Sessions to face the trial. The Sessions Judge
acquitted 9 of the 11 accused and convicted the appellants herein for
commission of offence under Section 302 of the IPC and sentenced them to
imprisonment for life. The learned Judge found the allegations as to the
infliction of injuries, on the head and neck of the deceased by specific
weapon such as ballam by appellant no.1 and farsa by appellant no.2
respectively, to have been corroborated by the medical evidence. Hence,
the two appellants were convicted and sentenced as above.
On appeal, the High Court confirmed their conviction and sentence and
while doing so, observed as follows:
“5………Dr. Kapil Dev Singh, who has performed the postmortem of
the deceased on 16.6.1992 and found as many as six injuries on
the body of the deceased, out of which injury No.1 is caused by
some pointed object near the face of the deceased. Thus, the
injury attributed to Vijay Singh is corroborated. The other
injury was incised wound on the body of the deceased. All the
injuries were caused by sharp and edged weapons. As per opinion
of Doctor injury No. 1 was sufficient to cause death of the
deceased…………
6. After perusal of the statements of PW-1, PW-2 and PW-3, we
find that the Sessions Court rightly convicted the present
appellants. So far as the other accused are concerned the
Doctor has specifically stated that except the injury No.1 which
is attributed to Vijay Singh, all other injuries were caused by
the same weapon. Thus, the other injuries are attributed to
Hari Singh. Moreso, the witness could not point out which of
the injuries were caused by other accused, hence, acquitted the
other accused. But so far as the present appellants are
concerned, there are specific allegation against them for
causing injuries to the deceased.
“Underling ours”

 
Aggrieved by the same, the appellants are before us.
At the outset, while assailing the conviction of the appellants, Mr.
Rajesh learned counsel appearing for the appellants, submits that the High
Court erred in holding that excepting injury no. 1, all other injuries are
attributable to Hari Singh. He draws our attention to the evidence of PW-2
Prema Bai and PW-3 Sheela, who claim to be the eye-witnesses to the
occurrence and have clearly stated in their evidence that the appellant
Hari Singh gave farsa blow on the neck of the deceased and other accused
persons (since acquitted) have also assaulted the deceased with farsa.
We have gone through the evidence of the eye-witnesses and from their
testimony it is evident that appellant Vijay Singh had caused one injury to
the deceased by ballam whereas appellant Hari Singh caused one injury on
the neck by farsa. They have also testified that other accused had also
given farsa blows to the deceased. In the face of it, the High Court
clearly erred in holding that excepting injury no. 1, all other injuries
were caused by the appellant Hari Singh.
Mr. Rajesh, then submits that the appellants can be held guilty under
Section 302 of the IPC only when it is proved that the injuries inflicted
by them have resulted into death. He refers to the evidence of PW-7 Dr.
Kapil Dev Singh and submits that according to his opinion, the death
occurred because of excessive bleeding and shock on account of all the
injuries found on the person of the deceased. He points out that this
doctor had found 5 injuries on the person of the deceased and all those
injuries cannot be attributed to the present appellants. Mr. Rajesh
further points out that even if it is assumed that appellant Vijay Singh
had assaulted the deceased with ballam on the face and appellant Hari Singh
by farsa on the neck, they cannot be held guilty under Section 302 of the
IPC as those injuries only did not cause death.
Mr. C.D. Singh, learned counsel for the State, on the other hand,
submits that since the doctor in evidence has stated that injury no. 1 was
sufficient to have caused death, the High court rightly convicted the
appellants. In any view of the matter, according to Mr. Singh, the
deceased died of various injuries caused to him during the occurrence, and
therefore, the appellants can well be convicted under Section 302 with the
aid of Section 34 of the IPC.
True it is that the High Court, while upholding the conviction of the
appellants, has observed that “as per the opinion of the doctor, injury no.
1 was sufficient to cause death of the deceased”. We have gone through the
evidence of PW-7 Dr. Kapil Dev Singh. PW-7 in his evidence stated that
during the post-mortem examination, he found the following injuries on the
person of the deceased:
“1.Depressed fracture with contusion with open wound cutting
front parietal bone 4” x 1½” x bone deep on right side.
2. Incised wound on cheek cutting auxiliary bone 5”x 1/2” x bone
deep right side.
3. Incised wound of the size 4” x ½” x muscle deep and cutting
breathing pipe and major blood arteries on right side.

 
4. Incised wound on superior collar bone right side, 5” x ½”
cutting breathing pipe.
5. Incised wound right side on the face cutting right jaw bone
size 3” x ½” x bone deep.”

 

 
As regards the cause of death, he has stated as follows:
“In my opinion, all the injuries were caused by sharp and blunt
weapon. In my opinion cause of death is excessive bleeding and
shock….”
Thus, the doctor has altogether found 5 injuries on the person of the
deceased and the death had occurred due to excessive bleeding and shock on
account thereof. Therefore, it cannot be said that only injury no.1 was
the cause of the death. Hence, we are constrained to observe that the High
Court committed serious error by holding that injury no. 1 was sufficient
to cause death of the deceased.
Nonetheless from the evidence of the prosecution witnesses what is
proved beyond doubt is that appellant Vijay Singh caused injury on the face
of the deceased by ballam and appellant Hari Singh on neck by farsa. In
this backdrop, we proceed to consider the nature of offence. It is relevant
here to mention that no charge under Section 34 IPC has been framed against
the appellants. Even if we assume in favour of the State, as contended by
Mr. Singh, that it is possible to hold the appellants guilty under Section
302 read with Section 34 of the IPC in the absence of charge, in our
opinion, for that the prosecution will have to prove that injuries
attributable to the appellants or any of them were the cause of death. As
observed earlier, the appellants had caused one injury each, whereas the
deceased had sustained five injuries. According to the doctor, death had
occurred on account of shock and excessive bleeding due to the injuries
caused on the person of the deceased. Therefore, the death had not taken
place as a result of the injuries caused by the appellants or any one of
them. Hence, they cannot be held guilty under Section 302 IPC simplicitor
or with the aid of Section 34 IPC.
However, the prosecution has been able to prove that the appellants
have assaulted the deceased with ballam and farsa, which are dangerous
weapons. Further, the appellants had caused grievous injuries on the
person of the deceased. Hence, they may not be held guilty under Section
302 or 302 read with Section 34 IPC, but surely their acts come within the
mischief of Section 326 IPC. Accordingly, we modify the appellants’
conviction and hold them guilty under Section 326 IPC and sentence them to
undergo rigorous imprisonment for 10 years each and fine of Rs.5,000/-
each, in default to suffer imprisonment for six months. We have been told
that both the appellants have already remained in custody for more than the
period of their sentence. If that be so, they be released forthwith unless
required in any other case.
In the result, the appeal is partly allowed, the conviction and
sentence of the appellants under Section 302 IPC is set aside, instead they
are convicted under Section 326 IPC and sentenced to the period as above
with the direction aforesaid.
………………………………………………………………J
(CHANDRAMAULI KR. PRASAD)

 
………………………………………………………………J
(JAGDISH SINGH KHEHAR)

NEW DELHI,
MARCH 25, 2014.
———————–
11

 

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