Atmaram & Ors. Vs.
State of Madhya Pradesh
[Criminal Appeal No.
2003 of 2008]
J U D G M E N T
Swatanter Kumar, J.
1.
This
appeal is directed against the judgment of the High Court of Madhya Pradesh,
Bench at Indore dated 23rd January, 2008. We may notice the necessary facts
giving rise to the present appeal. According to the prosecution, Udayram, PW-1
along with his younger brother namely Gokul (the deceased) and sister Rajubai, PW-2
had gone to the village Lod for pilgrimage. After they reached the said village,
they came to know that the Pujari who was to perform the puja was not
available. Resultantly, all the said three persons decided to return back to
their village Dhuvakhedi, Tehsil Tarana, District Ujjain.
2.
At
about 4-4.30 p.m., when they reached near the said village, all of a sudden the
accused persons namely Atmaram, Gokul, Vikram, Ramchandran and Umrao emerged
from the fields having soyabean crop. They shouted that the deceased and his
relatives had set their soyabean crop afire and therefore, they should be
taught a lesson. The accused Ramachandra was armed with farsi, Gokul was carrying
dharia and other three accused were having lathis. All these accused persons started
assaulting Udayram (PW1) causing injury on his head, left hand and legs. Gokul
(the deceased) and PW2 tried to intervene and protect Udayram. In this process,
both these witnesses sustained a number of injuries caused by the accused with the
help of the same weapons. The other witnesses present at the site, Gajrajsingh,
Sardarsingh and Gokul did not interfere in the assault because of fear and
silently slipped away.
3.
Another
witness, Pannalal, PW8, was working in the fields nearby. Upon being called by
Rajubai, PW2, Pannalal came to the place of occurrence and seeing the deceased
and witnesses in injured condition, Pannalal and one Prem brought the bullock
cart of one Kanhaiya Balai. Thereafter, one Umrao Bai also joined them. They
finally found a jeep on the road in which Pannalal, Prem and Umrao Bai took the
injured persons to the Tarana Hospital where they were admitted. From the hospital,
information was sent to the Police Station, Makdon on which basis, the Head Constable
Chedilal Yadav, PW23, reached Tarana Hospital. On the basis of the statement of
Udayram, PW1, Dehati Nalishi (Ex.P1) was recorded at about 6.20 p.m. on 6th
November, 1993.
4.
A
case under Section 307 read with Sections 147, 148 and 149 of the Indian Penal
Code, 1860 (for short ‘IPC’) was registered. All the three injured persons were
subjected to medical examination by Dr. Anil Kumar Dubey, PW4, who issued their
MLC reports, Ex.P2-A to P.4-A. Udayram and Rajubai were treated by the doctors.
At about 7 p.m., the statement of Gokul was also recorded in the presence of
the witnesses. Keeping in view the serious condition of Gokul, he was required to
be transferred from Tarana Hospital to Civil Hospital, Ujjain for treatment. However,
he died on the way at about 11.30 p.m. on 6th November, 1993 and his dead body
was kept in the Civil Hospital, Ujjain. Information was sent to the Police
Station, Makdon, whereafter an offence of Section 302 read with Section 149 IPC
was added to the charges.
5.
Inquest
proceedings were completed. The dead body of the deceased was subjected to post
mortem and post mortem report Ext. P30 was prepared by Dr. Ajay Nigam (PW14).
6.
After
registration of the offence, the investigating officer, PW26, Sohan Pal Singh
Choudhary visited the spot of occurrence on 7th November, 1993, from where the
blood stained earth, cycle and sandal of the deceased were seized and the spot
map was prepared. On 8th November, 1993, all the accused persons were arrested.
Upon their interrogation and in furtherance to their statements, the arms
involved in the commission of crime were recovered and seized. These seized
weapons were sent to forensic science laboratory for examination on 3rd
December, 1993. The examination report was received on 8th December, 1993 and
in terms of the Report, no blood stain was found, either in the soil or in the sealed
farsi. The Investigating Officer submitted the charge sheet to the Court of competent
jurisdiction. Upon committal, the accused were tried by the Court of Sessions.
7.
The
learned Trial Court vide its detailed judgment dated 13th April, 1999 held that
the prosecution had succeeded in proving the charges, while finding all the accused
guilty of the offences with which they were charged. It sentenced them as
follows:- “46. On the point of punishment, on behalf of accused evidence were
not produced on conviction. The counsel for accused produced oral argument and prayed
for least punishment to accused whereas Assistant Public Prosecutor have prayed
for harder conviction. 47. In any opinion from the case, it is clear that this is
the first offence of accused. Looking into the circumstances under which crime
is committed and nature of crime, it does not seem proper to convict with life
imprisonment under Section 302 I.P.C. and it seems proper to convict accused for
life imprisonment and fine.
Therefore, all the
five accused shall be convicted under Section 148 I.P.C. with rigorous
imprisonment of two years. Accused Ramchandra No. 4 is held guilty under Section
307 I.P.C. and Section 307/149 I.P.C. for both the offences prescribed punished
is same, therefore, it is proper to convict accused Ramchandra only under
Section 307/149 I.P.C. and accused Atmaram No. 1 for charges under Section 307 I.P.C.
and accused Gokul No. 2, Vikram No. 3, Ramchandra No. 4, Umrao No. 5 for Section
307 read with 149 I.P.C. shall be convicted respectively with rigorous
imprisonment for 5 year each and fine of Rs. 500/- (Rs. five hundred ) each.
In default of payment
of fine accused shall be imprisoned for another term of 2 month each. 48. Similarly,
accused Gokul No. 2 charged under Section 302 I.P.C. and Section 302/149 I.P.C.
and accused Vikram No. 3 was held guilty under Section 302 or Section 302 read with
Section 149 I.P.C., whereas punishment prescribed for both the offences is
same, both the accused are held guilty under Section 307/149 I.P.C. and accused
Atmaram No. 1 is found guilty for charges under Section 302, I.P.C. and accused
No. 2, Gokul, No. 3 Vikram, No. 4 Ramchandra, No. 5 Umrao are found guilty under
Section 302 read with Section 149 I.P.C. and convicted accordingly, and all the
accused for such charges are convicted with life imprisonment and in addition
all the accused are also punished with fine of Rs. 2000 (Two Thousand Rupees)
each.
In default of payment
of fine all the accused shall be imprisoned for another term of 4 month each. Similarly,
accused No. 5, Umrao, is charged under Section 323 I.P.C. and accused Atmaram No.
1 Gokul No. 2, Vikram No. 3, and Ramchandra No. 4 are found guilty under
Section 323 read with Section 149 I.P.C. and all the accused are convicted with
6 month rigorous imprisonment and fine of Rs. 200 each (Two Hundred Rupees). In
default of payment of fine all the accused shall be imprisoned for another term
of 1 month rigorous imprisonment each. All the punishment shall run
concurrently. 49. During prosecution, accused No. 1 Atmaram from 8.11.93 to 3.3.94,
accused No. 2 Gokul from 8.11.93 to 24.6.94, accused No. 3 Vikram from 8.11.93
to 3.3.94 and accused No. 4 Ramchandra from 11.1.93 to 6.1.94 and accused No. 5
Umrao from 11.11.93 to 6.1.94, were in judicial custody. Such duration shall be
adjusted towards punishment. 50.
On payment of fine
from accused and after the expiration of the period of limitation Rs. 8000/-
from the amount of fine shall be paid to widowed mother of Gokul, Umraobai w/o
Lalji r/o village Dhaukhedi, Thana Makdone, as compensation and from the said
fine Rs. 5000 (Five Thousand Rupees) shall be paid to applicant Udairam s/o Lalji
r/o Village Dhaukhedi, Thana Makdone. 51. After the expiration of period of appeal,
blood mixed soil, simple soil, Sandel, cloths of Gokul, cloths of Udairam, and
Farsi, Dharia, Lathi, seized from accused shall be discarded being available.
8.
”The
Trial Court also punished them on other counts.
9.
Being
aggrieved from the judgment of conviction and order of sentence passed by the
Trial Court, the accused preferred an appeal before the High Court, which by its
judgment dated 23rd January, 2008, confirmed the judgment of the Trial Court
and also did not interfere with the order of sentence.
10.
Feeling
aggrieved therefrom, all the five accused have preferred the present appeal
before this Court.
11.
While
raising a challenge to the impugned judgment, the learned counsel appearing for
the appellants argued that there are serious contradictions between the
statements of PW1 and PW2. These two witnesses being the eye-witnesses, such
serious contradictions in their statements make the conviction of the appellants
unsustainable on that basis. To substantiate his plea, the learned counsel for the
appellants has relied upon the paragraph 2 of the deposition of PW2, Rajubai
and paragraph 3 of the statement of PW1, Udayram. In order to properly appreciate
the merit or otherwise of this contention, it would be appropriate to refer to the
relevant paragraphs of deposition of these two witnesses.
They, respectively,
read as under : “2. Ramchandra hit Udairam with Farsi which hit on his head and
both hands. My brother Gokul was hit by accused Gokul with Dhariya due to which
he got injuries on his head, both hands, above the eye and on the waist. Umrao
hit me with two ladhi blows which hit me on my hand and foot. The accused hit a
lot. XXX XXX XXX 3. Accused Ramchand had hit farsi on my head, Atmaram had
hit lathi which hit me near the joint of my left hand thumb. Accused Gokul hit
my brother Gokul on the head with Dharia. Ramchand had hit after me, my brother
Gokul with farsi on his head. The other accused started hitting my brother with
lathi due to which my brother fell down and I was also attached with lathi. My
sister Rajubai was also hit with lathi by accused Umrao. She had received
injury on her hand and Rajubai also received injury on her foot.
12.
”From
a bare reading of the statements of these witnesses, it is clear that according
to PW1, not only Gokul, the accused, had caused injury on the head of the
deceased by farsi but accused persons had also caused injuries to him with
lathis etc. However, according to PW2, Gokul, the accused, had caused injuries
on the head of the deceased, both hands, above the eyes and on the wrist while other
accused hit her. This cannot be termed as a material contradiction in the statements
of these two witnesses. These are two eye-witnesses who themselves were injured
by the accused. Every variation is incapable of being termed as a serious contradiction
that may prove fatal to the case of prosecution.
It is a settled
cannon of criminal jurisprudence that every statement of the witness must be
examined in its entirety and the Court may not rely or reject the entire
statement of a witness merely by reading one sentence from the deposition in
isolation and out of context. In the present case, it has been completely
established that both PW1 and PW2 are injured eye- witnesses and their presence
at the place of occurrence cannot be doubted. If one reads the statements of
PW1 and PW2 in their entirety, it will be difficult to trace any element of
serious contradiction in their statements which may prove fatal to the case of
the prosecution. PW2, even in the paragraph extracted above has said that
accused ‘hit a lot’.
However, the language
in which her statement was recorded states ‘abhiyukton ne khoob mara’ which
obviously means that all the accused had hit the deceased and other victims
including herself, because this sentence immediately precedes the part of the
statement where she gives details of all the accused persons as well as the
injuries inflicted on the deceased and herself by each of the accused. The very
first paragraph of her statement clearly indicates the essence of her statement.
She has categorically stated that all the accused persons had come to the site,
abused her brother Gokul and clearly claimed that he had burnt their soyabean
crop and that they shall kill him.
Where after, they
started hitting her brothers, Gokul and Udayram. In face of this specific
statement and the medical evidence which shows presence of as many as ten
injuries on the body of the deceased Gokul, it is difficult to believe that in
the given situation, one accused could have caused so many injuries on the body
of deceased, especially when all accused persons are stated to have caused
injuries to the deceased as well as to the witnesses. It seems appropriate her to
refer to a recent judgment of this Court in the case of Ashok Kumar v. State of
Haryana [(2010) 12 SCC 350] wherein this Court, while dealing with the discrepancies
in the statement of the witnesses, held as under :
“41. The above
statement of this witness (DW 3) in cross- examination, in fact, is clinching
evidence and the accused can hardly get out of this statement. The defence
would be bound by the statement of the witness, who has been produced by the accused,
whatever be its worth. In the present case, DW 3 has clearly stated that there
was cruelty and harassment inflicted upon the deceased by her husband and
in-laws and also that a sum of Rs. 5000 was demanded. The statement of this
witness has to be read in conjunction with the statement of PW 1 to PW 3 to establish
the case of the prosecution.
There are certain variations
or improvements in the statements of PWs but all of them are of minor nature.
Even if, for the sake of argument, they are taken to be as some contradictions or
variations in substance, they are so insignificant and mild that they would in no
way be fatal to the case of the prosecution. 42. This Court has to keep in mind
the fact that the incident had occurred on 16-5-1988 while the witnesses were examined
after some time. Thus, it may not be possible for the witnesses to make
statements which would be absolute reproduction of their earlier statement or
line to line or minute to minute correct reproduction of the occurrence/events.
The Court has to
adopt a reasonable and practicable approach and it is only the material or serious
contradictions/variations which can be of some consequence to create a dent in
the case of the prosecution. Another aspect is that the statements of the
witnesses have to be read in their entirety to examine their truthfulness and the
veracity or otherwise. It will neither be just nor fair to pick up just a line
from the entire statement and appreciate that evidence out of context and
without reference to the preceding lines and lines appearing after that
particular sentence. It is always better and in the interest of both the parties
that the statements of the witnesses are appreciated and dealt with by the
Court upon their cumulative reading.
13.
”
In light of the above judgment, it is clear that every variation or discrepancy
in the statement of a witness cannot belie the case of the prosecution per se. It
is true that in the present case, some other witnesses have turned hostile and
have not fully supported the case of the prosecution, but that by itself would
not be a circumstance for the Court to reject the statements of PW1 and PW2,
who are reliable and worthy of credence and more particularly, when their presence
at the place of occurrence has been established beyond reasonable doubt.
14.
The
other contention which has been raised on behalf of the appellants is that the
medical evidence does not support the statements of PW1 and PW2. This is
equally devoid of any merit. As per the statement of PW14, who had prepared the
post mortem report, Ext. P30, there were as many as ten injuries on the body of
the deceased and they were as follows : “Similarly on the said date itself, Gokul
S/o. Laljiram @ Lalchand was brought by Head Constable Chedilal for which he
had brought Ex.P-3 letter. I examined him at 6.35 p.m. and found the following
injuries :
i.
Incised
wound 5½ x scalp thick on left central region.
ii.
Incised
superficial (skin deep) 1 x ¼ cm. on right temple near eye. Both these injuries
appear to have been caused by sharp edged seapon. It was not possible to understand
injury No.1 therefore, X-ray advice was written and injury No.2 was simple and
caused within 0-6 hrs.
iii.
One
contusion 12 x 8 cm on right forearm.
iv.
Swelling
on left forearm ½ lower portion and ½ right portion on left side. The
aforesaid injuries appeared to have been caused with hard and blunt object and
X-ray was advised to ascertain seriousness.
v.
One
lacerated wound with fracture 2 x 1 x ½ on right leg in front on middle portion
which appear to have been caused with hard and blunt weapon and was serious
within 0- 6 hrs. and X-ray was advised for the same.
vi.
Lacerated
wound 1 x ½ x ¼ on lower portion of left leg.
vii.
Swelling
on left hand in full back portion.
viii.
Swelling
and contusion 13 x 4 cm. on left forearm out and front portions. Injuries
Nos.6, 7 and 8 appear to have been caused with hard and blunt weapon and simple
caused within 0-6 hrs.
ix.
One
contusion with parallel margin on left forearm which appear to have been caused
with hard and blunt weapon like lathi and X-ray was advised for this injury.
x.
One
contusion of parallel margin of 28 x 1 cm. in front portion of the chest
laterally. It appeared to have been caused with hard and blunt weapon like lathi
which was simple caused within 6 hrs.
15.
”
All that PW1 and PW2 have stated is that the accused had inflicted the injury
on the head of the deceased with a farsi and even on other parts of the body of
the deceased. According to them, even other accused had inflicted injuries upon
the body of the deceased with lathis. The accused were carrying farsi, dharia
and lathis, as per the statements of these witnesses. The medical evidence clearly
shows that there were incised wounds, contusions, lacerated wounds and swelling
found in the various injuries on the body of the deceased. The Investigating
Officer, PW26, has clearly proved the case of the prosecution with the assistance
of the corroborating evidence. We see no reason to accept this contention raised
on behalf of the appellants.
16.
Before
dealing with the last contention raised on behalf of the appellants, we may
usefully refer to some pertinent aspects of the case of the prosecution. In
this case, the incident had occurred at about 4.30 p.m. on 6th November, 1993
and the FIR itself was registered at 6.30 p.m. on the statement of PW1 recorded
in the hospital. In the hospital itself, the doctor had also recorded the dying
declaration Ext. P-6 of the deceased.
The relevant part of
the declaration reads as under : “My First question was : What is your name? Ans
: Gokulsingh S/o Laljiram Lalsingh. Q: Where do you live? Ans: Dhuankheri. I
again asked what happened to you when he replied that the well of Kanhaiya,
myself, my brother Udayram and sister were hit by 5 brothers Ramchand, Umrao,
Vikram, Gokul and Atmaram sons of Devaji of Balai caste. He stated so. Thereafter
I asked where all have you received injuries whereupon he replied that on head,
hands and legs. Thereafter I again asked who saw you being beaten up then he
replied that we were seen by Udaysingh, Gokulsingh, Gajrajsingh, Ramchandra
etc. I again asked what did you do thereupon he replied, what could we do, we
were un-armed, we kept shouting. Our sister had tried to rescue us.
17.
”After
recording of the FIR, Ext. P-37 the investigation was started immediately and
on the second day, the accused were taken into custody. Names of all the
accused were duly shown in Column No.7 of the FIR. Two witnesses, PW1 and PW2, have
given the eye witness version of the occurrence. All the accused persons were
hiding themselves in the field and had a clear intention to kill the deceased.
The motive for commission
of the offence which, of course, is not an essential but is a relevant consideration,
has also been brought out in the case of the prosecution that the deceased had
allegedly burnt their soyabean crops and, therefore, the accused wanted to do
away with the deceased Gokul and his brother. These factors have been clearly
brought out in the statement of PW1 and PW2. The fact that these injuries were
inflicted by a collective offence upon the deceased and the injured witnesses
is duly demonstrated not only by the medical report, but also by the statements
of the doctors, PW4 and PW14. Thus, the prosecution has been able to establish
its case.
18.
The
contention lastly raised on behalf of the appellants is that no single injury
has been found to be sufficient in the ordinary course of nature to cause death
as per the medical evidence. There was no intention on the part of the accused
to cause death of the deceased. At best, they have only caused an injury which
was likely to cause death.
Therefore, no case
for an offence under Section 302 IPC is made out and, at best, it could be a
case under Section 304 Part II and/or even Section 326 IPC. Reliance has been
placed upon the judgments of this Court in the case of Molu & Ors. v. State
of Haryana [(1976) 4 SCC 362] and Rattan Singh & Ors. v. State of Punjab [1988
Supp. SCC 456]. In any case and in the alternative, it is also contended that
as per the statement of PW2, accused Gokul alone had caused injuries to the deceased
and therefore, all the other accused persons are entitled to acquittal or at
best, are liable to be convicted under Section 326 IPC for causing injuries to the
eye- witnesses, PW1 and PW2 or even to the deceased.
This argument, at the
first blush, appears to be have substance, but when examined in its proper perspective
and in light of the settled law, we find it untenable, for the reason that even
in the case of Molu (supra), this Court had noticed that none of the injuries
was on any vital part of the bodies of the two deceased persons and even
injuries upon the skull appeared to be very superficial. There was nothing to
show that the accused intended to cause murder of the deceased persons
deliberately and there was no evidence to show that any of the accused ordered
the killing of the deceased persons or indicated or in any way expressed a
desire to kill the deceased persons on the spot.
It was upon returning
this finding on appreciation of evidence that the Court found that there was
only a common intention to assault the deceased, with the knowledge that the
injuries caused to them were likely to cause death of the deceased and, therefore,
the Court permitted alteration of the offence from that under Section 302 to
one under Section 304 Part II, IPC. Also in the case of Rattan Singh (supra),
this Court had found that as per the case of the prosecution, the injuries on the
person of the deceased which could be attributed to the accused were either on the
hands or feet and at best could have resulted in fractures. None of the appellants
could be convicted for causing such injuries individually which could make out
an offence under Section 302 and, thus, the Court altered the offence.
19.
We
are unable to see as to what assistance the appellants seek to derive from
these two judgments. They were judgments on their own facts and in the case of
Molu (supra), as discussed above, the Court had clearly returned a finding that
the accused had no intention to kill the accused, which is not the circumstance
in the case at hand. If there is an intention to kill and with that intent, injury
is caused which is sufficient to cause death in the ordinary course of nature, then
the offence would clearly fall within the ambit of para Thirdly of Section 300 IPC
and, therefore, would be culpable homicide amounting to murder. In the present
case, the intention on the part of the accused persons to kill Gokul was
manifest as is evident from the statements of PW1 and PW2.
The cause for having
such an intent is also proved by the prosecution that according to the accused,
Gokul and PW1 had burnt their soyabean crops. The manner in which all the
accused assaulted the deceased even after he fell to the ground and the act of continuously
inflicting blows on the body of the deceased, clearly shows that they had a
pre-determined mind to kill the deceased at any cost, which they did. In the case
of State of Haryana v. Shakuntala & Ors. [2012 (4) SCALE 526], this Court
held : “…Reverting back to the present case, it is clear that, as per the case
of the prosecution, there were more than five persons assembled at the
incident.
All these nine persons
were also convicted by the Trial Court and the conviction and sentence of six
of them has been affirmed by the High Court. The members of this assembly had
acted in furtherance to the common object and the same object was made
absolutely clear by the words of accused Matadin, when he exhorted all the
others to ‘finish’ the deceased persons. 27. In other words, the intention and
object on the part of this group was clear. They had come with the express
object of killing Manohar Lal and his family members.
It might have been possible
for one to say that they had come there not with the intention to commit
murder, but only with the object of beating and abusing Manohar Lal and others,
but in view of the manner in which Matadin exhorted all the others and the manner
in which they acted thereafter, clearly establishes that their intention was not
to inflict injuries simplicitor. Manohar Lal, admittedly, had fallen on the ground.
However, the accused still continued inflicting heavy blows on him and kept on doing
so till he breathed his last.
They did not even
spare his wife Sushila and inflicted as many as 33 injuries on her body. Where a
person has the intention to cause injuries simplicitor to another, he/she would
certainly not inflict 30/33 injuries on the different parts of the body of the victim,
including the spine. The spine is a very delicate and vital part of the human
body. It, along with the ribs protects all the vital organs of the body, the
heart and lungs, etc. Powerful blows on these parts of the body can, in normal
course, result in the death of a person, as has happened in the case before us.
The way in which the crime has been committed reflects nothing but sheer
brutality. The members of the assembly, therefore, were aware that their acts
were going to result in the death of the deceased. Therefore, we find no merit
in this contention of the accused also.
20.
”
20. They even caused injuries to the vital parts of the body of the deceased,
i.e., the skull. As per the medical evidence, there was incised wound of 5½”x
skull thick on left skull region, which shows the brutality with which the said
head injury was caused to the deceased.
21.
21.
We may usefully refer to the judgment of this Court in the case of State of
Andhra Pradesh v. Rayavarapu Punnayya & Anr. [(1976) 4 SCC 382] wherein the
Court was concerned with somewhat similar circumstances, where a number of
accused had caused multiple bodily injuries to the deceased and it was contended
that since none of the injuries was caused upon any vital part of the body of
the deceased, the offence was, therefore, at best to be altered to an offence
under Section 304, Part II. This contention of the accused had been accepted by
the High Court. While disturbing this finding, this Court held as under :
“38. Question arose
whether in such a case when no significant injury had been inflicted on a vital
part of the body, and the weapons used were ordinary lathis, and the accused
could not be said to have the intention of causing death, the offence would be
“murder” or merely “culpable homicide not amounting to murder”. This Court,
speaking through Hidayatullah, J. (as he then was) after explaining the comparative
scope of and the distinction between Sections 299 and 300, answered the question
in these terms:
“The injuries were
not on a vital part of the body and no weapon was used which can be described as
specially dangerous. Only lathis were used. It cannot, therefore, be said
safely that there was an intention to cause the death of Bherun within the
first clause of Section 300. At the same time, it is obvious that his hands and
legs were smashed and numerous bruises and lacerated wounds were caused. The
number of injuries shows that everyone joined in beating him. It is also clear
that the assailants aimed at breaking his arms and legs. Looking at the injuries
caused to Bherun in furtherance of the common intention of all it is clear that
the injuries intended to be caused were sufficient to cause death in the ordinary
course of nature even if it cannot be said that his death was intended. This is
sufficient to bring the case within thirdly of Section 300.”
39. The ratio of Anda
v. State of Rajasthan applies in full force to the facts of the present case.
Here, a direct causal connection between the act of the accused and the death was
established. The injuries were the direct cause of the death. No secondary
factor such as gangrene, tetanus etc., supervened. There was no doubt whatever
that the beating was premeditated and calculated. Just as in Anda case, here
also, the aim of the assailants was to smash the arms and legs of the deceased,
and they succeeded in that design, causing no less than 19 injuries, including
fractures of most of the bones of the legs and the arms While in Anda case, the
sticks used by the assailants were not specially dangerous, in the instant case
they were unusually heavy, lethal weapons.
All these acts of the
accused were preplanned and intentional, which, considered objectively in the light
of the medical evidence, were sufficient in the ordinary course of nature to
cause death. The mere fact that the beating was designedly confined by the
assailants to the legs and arms, or that none of the multiple injuries
inflicted was individually sufficient in the ordinary course of nature to cause
death, will not exclude the application of clause thirdly of Section 300. The
expression “bodily injury” in clause thirdly includes also its plural, so that
the clause would cover a case where all the injuries intentionally caused by
the accused are cumulatively sufficient to cause the death in the ordinary
course of nature, even if none of those injuries individually measures upto such
sufficiency.
The sufficiency spoken
of in this clause, as already noticed, is the high probability of death in the ordinary
course of nature, and if such sufficiency exists and death is caused and the
injury causing it is intentional, the case would fall under clause thirdly of Section
300. All the conditions which are a prerequisite for the applicability of this
clause have been established and the offence committed by the accused, in the
instant case was “murder”.
40. For all the
foregoing reasons, we are of opinion that the High Court was in error in altering
the conviction of the accused-respondent from one under Sections 302, 302/34,
to that under Section 304, Part II of the of the Penal Code. Accordingly, we
allow this appeal and restore the order of the trial court convicting the accused
(Respondent 2 herein) for the offence of murder, with a sentence of imprisonment
for life. Respondent 2, if he is not already in jail, shall be arrested and
committed to prison to serve out the sentence inflicted on him.” Reference can
also be made to Anda & Ors. v. State of Rajasthan [AIR 1996 SC 148].
22.
The
case before us is quite similar to the case of Rayavarapu Punnayya (supra). The
cumulative effect of all the injuries was obviously known to each of the
accused, i.e., all the injuries inflicted were bound to result in the death of the
deceased which, in fact, they intended. Furthermore, the doctor, PW14, had opined
that the deceased had died because of multiple injuries and fracture on the
vital organs, due to shock and haemorrhage. In other words, even as per the medical
evidence, the injuries were caused on the vital parts of the body of the
deceased.
23.
For
these reasons, we are unable to accept the contention raised on behalf of the
appellants that this is a case where the Court should exercise its discretion
to alter the offence to one under Section 304 Part II or Section 326 IPC from
that under Section 302 IPC. We also find the submission of the learned counsel
for the appellants to be without merit that accused Gokul alone is liable to be
convicted, if at all, under Section 302 IPC and all other accused should be
acquitted. We reject this contention in light of the discussion above and the fact
that all these accused have been specifically implicated by PW1 and PW2, the Investigating
Officer, PW26 and the medical evidence.
24.
Having
found no substance in the pleas raised by the learned counsel for the
appellants, we hereby dismiss the appeal.
.…................................J.
[Swatanter Kumar]
.…................................J.
[Ranjan Gogoi]
New
Delhi
May
10, 2012
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