Vs. State Of Uttaranchal  Insc 476 (27 April 2007)
S.B. Sinha & Markandey Katju
CRIMINAL APPEAL NO. 638 2007 [Arising out of S.L.P. (Crl.) No. 5962 of 2006]
S.B. SINHA, J.
One Umra advanced a petty sum of Rs. 5 to Multana by way of loan.
On 31.10.1985 at about 9 p.m, he asked him to pay the said amount back to
him. What was his response thereto is not known. Multana, however, started
hurling abuses on him. Bachni, the mother of appellant came there and said
"UMRA DO KAUDI KA LADKA HAI, ISKO MITTI MAIN MILA DO. MAIN ISKI EENT SE
EENT BAJA DUNGI" Whereupon Multana and Ranjeet caught hold of the
deceased. Appellant was carrying a big knife with him. He inflicted three blows
on the deceased with the said knife. The deceased ran towards his house
pressing his abdomen by his hands. He could not run for a long distance. He
fell down. P.W. 1, Amar Singh, father of the deceased who had been coming back
to his house alongwith P.W. 4, Jeet Singh from the market witnessed the entire
It was also witnessed by P.W. 7, Birsa Singh. The deceased was taken to the
hospital immediately. He, however, was declared dead. A First Information
Report was lodged in regard to the said incident by Amar Singh at 10.40 p.m. in the Dehradun Police Station.
On completion of the Investigation, all the four accused were chargesheeted.
Appellant was charged for commission of "murder" of the deceased. He
was convicted and sentenced to rigorous imprisonment.
Other three accused, however, were acquitted by the learned Trial Judge
opining that the prosecution has not been able to prove that they had a common
intention to cause the said offence. An appeal preferred by the appellant
against the said judgment of conviction and sentence was dismissed by the High
Court by reason of the impugned judgment. Appellant is, thus, before us.
Mr. Vinay Singh, learned counsel appearing on behalf of the appellant would,
in support of this appeal, submit that the prosecution case should not be
accepted inasmuch as;
(I) The medical evidence is contrary to the ocular evidence, as not only no
injury was found on the abdomen of the deceased, two other injuries were found
on his back.
(II) According to doctor more than one weapon might have been used.
(III) P.W. 7, Birsa Singh having not been relied upon by the Trial Judge,
P.W. 4, Jeet Singh having seen only Birsa Singh and nobody else, his testimony
should not have been relied upon (IV) In any event, having regard to the facts
and circumstances of the case, a case of commission of offence under Section
302 of the Indian Penal Code has not been made out but one under IInd Part of
Section 304, as the offence was committed (i) without any pre-meditation, (ii)
without any undue cruelty, (iii) At the spur of the moment on sudden provocation,
and (iv) there was no debasement on the part of the appellant.
The deceased suffered three injuries at the hands of the appellant which are
1. Punctured wound with clean cut margins 4cm x 1 = cm x heart cavity deep,
cutting the 6th rib pleura and apex of peri cardium and heart. 100 ml of blood
in pericardial cavity, on the left side of front of chest 6 cm below the left
nipple, 1 = cm away from nipple line.
2. Incised wound 2 = cm X 1cm X 1cm deep as the outer part of back 5 cms below
the posterior axillary fold.
3. Punctured wound with clean cut margins 5cm X 2cm X 7cm deep on the back
of chest directed upwards and anteriorly cutting the muscles of back,
intercoastal muscles, pleura and piercing 2cm in the left upper lobe of lung in
its lower part. A litre of fluid blood found in the thoracic cavity."
P.W. 2, Dr. Ajay Krishna, who had conducted the post-mortem examination,
opined that the injuries Nos. 1 and 2 were sufficient in ordinary course to
cause death. So far as injury No. 3 is concerned, according to him, the same
was directed from down to upward.
The doctor did not categorically state that in causing the injuries
aforementioned, two different instruments have been used as according to him;
"...Injuries Nos. (ii) and (iii) could be caused by the one and same
instrument as also from different instruments...."
He, however, stated that the length and breadth of the injury would depend
upon the force at which the weapon was used and if the blow of the instrument
is light, it would not go deeper and in that case breadth shall be
The First Information Report was lodged almost immediately after the
occurrence. P.W. 1 in his deposition supported the prosecution case in its
entirety. P.W. 4 is a relative of the P.W. 1. They were coming back together
from the market. Both of them saw the entire incident. Both of them stated that
whereas Ranjeet and Multana caught hold the deceased, Appellant took out a
knife and inflicted blows on the deceased. The accused, however, ran away when
P.W. 1 started shouting.
Reliance was not placed upon the testimony of P.W. 7 by the learned Trial
Judge as some statements made by him before the Court had not been made before
the Investigating Officer under Section 161 of the Code of Criminal Procedure.
The approach of the Court in this behalf although may not be entirely correct,
but in the facts and circumstances of this case, we are of the opinion that
even on the testimony of other witnesses the prosecutrix may be held to have proved
The statement of P.W. 4 that he saw Birsa Singh alone must be taken into
consideration with his other statements namely:
He and P.W. 1 were coming back from the market together. When he stated
about the presence of Birsa Singh alone, he must have meant that the latter was
the only outsider who was present at the scene of occurrence and noticed the
Submission of the learned counsel in regard to the fact that there was only
one injury in the front and two injuries on the back do not militate against
the prosecution story. Suffice it to say that one injury was 5 cm below the
nipple and if the same had been described as the injury in the abdomen by P.W.
1 and P.W. 4. no serious exception thereto can be taken.
Neither P.W. 1 nor P.W. 4 stated that the appellant caused all the three
injuries on the front portion of the person of the deceased.
What was stated was that the injuries were inflicted in quick succession
(the expression used in the vernacular was "Palak Jhapakte"). It must
have taken him by surprise. We, therefore do not find any reason to disagree
with the findings of the courts below that the death of Umra was homicidal in
nature and the same was caused by the appellant.
Coming to the submission of the learned counsel that only a case under
Section 304 Part II of the Indian Penal Code has been made out, we see no
reason to accept the same. 'Fourthly' appended to Section 300 of the Indian
Penal Code provides that the culpable homicide would not be murder if it was
committed without pre-meditation in a sudden fight, in a heat of passion being
sudden quarrel and the accused had not acted in a cruel and unusual manner.
The first ingredient of the said provision namely absence of pre- meditation
exists in the instant case but it cannot be said that there was a sudden fight,
in the sense that the deceased was armed or made any provocative statement. As
the prosecution story goes, it was the mother of Multana who gave an
exhortation. What was the occasion therefor, we do not know.
The learned Trial Judge was right in opining that a case of common intention
has not been made out as against the other accused persons, as nobody probably
in their wildest dream could have thought that a petty dispute relating to
demand of Rs. 5 by Umra from the deceased, would lead to his death at the hands
of the appellant. Appellant, however, was carrying a big knife. He inflicted
three blows repeatedly in quick succession. He took undue advantage of his
position as the deceased was being held by two other accused.
The intention to cause death and/or to cause an injury which is likely to
cause death is evident from the fact that the first blow was given on a vital
part of the body namely 5 cm below the nipple.
Two other blows might have landed on the side of the outer part of the back
below the posterior auxiliary fold and the back of chest as the deceased on
receipt of the first blow, must have moved to his right being in pain.
The effect of the blows was such that he even could not go beyond a few
We, therefore, are of the opinion that it cannot be said that there had been
no debasement or appellant did not take undue advantage of the situation and/or
there was a total absence of cruelty. We are, further, of the opinion that
there being no provocation on the part of the deceased, it is not a case where
only an offence under Section 304 part II of the Indian Penal Code is made out.
The appeal, for the aforementioned reason is dismissed.