Ambaram Vs. State of M.P  Insc 463 (27 April 2007)
S.B. Sinha & Markandey Katju
CRIMINAL APPEAL NO. 637 2007 [Arising out of S.L.P. (Crl.) No.
5006 of 2006] S.B. SINHA, J.
Appellant herein was convicted for commission of an offence under
Section 148, 302/149 of the Indian Penal Code along with several other persons
namely Hukum, Girdhari, Patiram, Narayan and Prahlad.
Prosecution case shortly stated is as under:- Savitribai and other
members of her family were sitting in the courtyard of the former's house at
about 4 p.m. on 2.3.1991. Prahladsingh, Ambaram, Patiram, Hukum, Narayan and
Girdhari were drinking liquor.
They started hurling filthy abuses. Savitribai came out from her
house and asked them to behave themselves. They adopted a hostile stance. They
started assaulting her, causing injuries inter alia by throwing stones. When
Accused Hukum hurled a stone at her, Prem Singh, brother of Savitribai
intervened. He was caught by them. Hukum pelted a stone at him causing injury
on his head. Ambaram, who was carrying an axe, inflicted a blow on his head
from its blunt side. Other accused persons entered her house.
Patiram brought a bow and arrow and shot an arrow at Premsingh. He
fell down unconscious. One Chandrakalabai pulled out that arrow. Others who
were returning from the weekly market intervened. At least six of them namely
Himmatsingh, Gendalal, Mansingh, Kamalasingh, Savitribai and Phool Singh were
injured by the appellants.
Some of the accused persons in the process also appeared to have
suffered injuries. It is alleged that not only the aforementioned persons
suffered injuries at the hands of the accused, even the tiles of the roof of
Savitribai's house were also damaged.
Prem Singh succumbed to his injuries on 3.3.1991.
Homicidal nature of death of Prem Singh is not disputed. The
learned Sessions Judge upon consideration of the materials brought on record by
the prosecution held the appellants guilty of commission of an offence under
Section 302/149 of the Indian Penal Code. The High Court, however, convicted
only Ambaram, Hukum and Prahlad under Section 302/34 of the Indian Penal Code.
Appellant Girdhari was convicted under Section 324 of the Indian Penal Code.
Only appellant Ambaram is before us. A limited notice was issued
by this Court in regard to the nature of offence.
Mr. Anis Ahmed Khan, learned counsel appearing on behalf of the
appellant would submit that keeping in view the fact that the appellant has
assaulted merely with the blunt portion of the axe, whereby no vital injury was
caused; only an offence under part II of the Section 304 of the Indian Penal
Code is made out.
Dr. N.M. Ghatate, learned senior counsel appearing on behalf of
the respondent, on the other hand, would submit that the appellant and others
having been armed with various lethal weapons and having not only caused the
death of one person but injuries to six others, it is not a case where clause
fourthly appended to Section 300 of the Indian Penal Code would be applicable.
The deceased Prem Singh received the following ante-mortem
injuries;- "I. A punctured wound in his abdomen 2" below umbilical
region measuring 1" x >" x cavity deep.
The wound has punctured the small intestine and caused injury of
the size >" x =" x through and through. Omentum and small
intestine had also come out.
II. Two Lacerated wound on the occipital region measuring 1"x
= x <" and another wound 1"x =" x <". "
At least one of the injuries is attributed to the appellant. The
injuries found on the person of the deceased both by Dr. N.K. Pancholi in his
injury report as also in the post-mortem report, support the prosecution case.
Appellant, took an active part in assaulting the deceased Prem
From the materials on record, it appears that he actively
associated himself in the entire episode. Ambaram and Prahlad assaulted the
deceased with axe whereas Patiram shot an arrow. They have been allegedly
shouting 'kill-kill'. Apart from that, it appears that Ambaram, the appellant
had also assaulted Himmat Singh on his head. There was absolutely no reason as
to why the appellant together with others would assemble for taking drinks in
front of the house of the deceased and that too armed with such lethal weapons.
They were merely asked not to create a nuisance and to behave themselves as
they had been hurling abuses in filthy languages. It was not a case where PW-9,
Savitribai gave any provocation. She was unarmed. She was a lady, still then
she was assaulted. Intervention by the deceased being her brother at that stage
cannot be said to be unusual. It is, therefore, not a case where injuries were
caused on a sudden provocation or in a fit of anger.
Appellant does not claim a right of private defence. He is said to
have been injured but no medical certificate was produced.
We may, therefore, for the purpose of this case, notice the
relevant provisions of Section 299 and Section 300.
Section 299 Section 300 A person commits culpable homicide if the
act by which the death is caused is done - Subject to certain exceptions
culpable homicide is murder if the act by which the death is caused is done -
Intention (a) with the intention of causing death ; or (1) with the intention
of causing death ; or (b) with the intention of causing such bodily injury as is
likely to cause death; or (2) with the intention of causing such bodily injury
as the offender knows to be likely to cause the death of the person to whom the
harm is caused; or (3) with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death; or Knowledge (c) with the knowledge
that the act is likely to cause death (4) with the knowledge that the act is so
imminently dangerous that it must, in all probability, cause death or such
bodily injury as is likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such injury as is mentioned
Whereas Clause (b) of Section 299 refers to clauses secondly and
thirdly of Section 300, the distinctive feature of the said provisions are
Mr. Anis Ahmed Khan, submitted that only one injury was inflicted
by the appellant. A similar question came up for consideration recently in
Shajahan & Ors. v State of Kerala & Anr. [2007 (3) SCALE 618] wherein
it was held that number of injuries is not decisive. How and in what manner
injuries have been caused would be a relevant factor.
Reliance has been placed by Mr. Anis Ahmed Khan on Raj Pal and
Others v State of Haryana [(2006) 9 SCC 678]. In that case, it was held;
"17. Clause (b) of Section 299 does not postulate any such
knowledge on the part of the offender. Instances of cases falling under clause
(2) of Section 300 can be where the assailant causes death by a fist-blow
intentionally given knowing that the victim is suffering from an enlarged
liver, or enlarged spleen or diseased heart and such blow is likely to cause
death of that particular person as a result of the rupture of the liver or
spleen or the failure of the heart, as the case may be. If the assailant had no
such knowledge about the disease or special fraity of the victim, nor an
intention to cause death or bodily injury sufficient in the ordinary course of
nature to cause death, the offence will not be murder, even if the injury which
caused the death, was intentionally given. In clause (3) of Section 300,
instead of the words "likely to cause death" occurring in the
corresponding clause (b) of Section 299, the words "sufficient in the
ordinary course of nature" have been used. Obviously, the distinction lies
between a bodily injury likely to cause death and a bodily injury sufficient in
the ordinary course of nature to cause death. The distinction is fine but real
and if overlooked, may result in miscarriage of justice. The difference between
clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of
probability of death resulting from the intended bodily injury. To put it more
broadly, it is the degree of probability of death which determines whether a
culpable homicide is of the gravest, medium or the lowest degree. The word
"likely" in clause (b) of Section 299 conveys the sense of
probability as distinguished from a mere possibility.
The words "bodily injury .... sufficient in the ordinary
course of nature to cause death" mean that death will be the "most
probable" result of the injury, having regard to the ordinary course of
18. For cases to fall within clause (3), it is not necessary that
the offender intended to cause death, so long as the death ensues from the
intentional bodily injury or injuries sufficient to cause death in the ordinary
course of nature. Kalarimadathil Unni v. State of Kerala is an apt illustration
of this point. "
(Emphasis Supplied) The said decision does not support Mr. Ahmed's
contention. It runs counter thereto. In any event, appellant was held to be
carrying common intention.
Common intention may develop at the spot. Appellant acted on
exhortation made by others. He participated in the entire occurrence. He was
carrying a dangerous weapon. He assaulted not only the deceased but also
We therefore, are of the opinion that no case had been made out
for interference with the impugned judgment. The appeal is dismissed
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