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CASE NO.:

Appeal (crl.) 998 of 1999

PETITIONER:

KHUMAN SINGH & ORS.

RESPONDENT:

STATE OF M.P.

DATE OF JUDGMENT: 24/11/2004

BENCH:

B.P.SINGH & ARUN KUMAR

JUDGMENT:

J U D G M E N T

B.P.SINGH, J.

There are seven appellants in this Appeal who have impugned the

judgement and order of the High Court of Madhya Pradesh at Jabalpur dated

2nd September, 1998 in Criminal Appeal No.1035 of 1989. The High Court

by its impugned judgement and order dismissed the appeal preferred by them

and upheld the judgement and order of the First Additional Sessions Judge,

Sehore in Sessions Trial No. 74 of 1988 finding them guilty of the offence

punishable under Section 302 read with Section 149 IPC and

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sentencing them to imprisonment for life. The appellants were also found

guilty of the offences under Sections 147 and 323 read with Section 149 IPC

and sentenced to undergo one year, and six months, rigorous imprisonment

respectively for those offences.

The facts of the case are that in connection with the Flag Ceremony

performed near the Hanuman Temple, the villagers had assembled from

different villages. They danced the whole night in celebration. The party of

the complainant was dancing to the beating of drums of one Nanla (PW 5)

while the appellants and others were dancing in a separate group. It appears

that inadvertently the stick of Khuman Singh, Appellant No.2 hit PW5 on his

face. There was protest from Nanla, and it appears that an altercation

followed the protest. However, the groups dispersed thereafter. Rayla (since

deceased) had intervened to pacify the parties.

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Thereafter the villagers took 'prasad' and started to proceed towards their

respective villages. According to the prosecution, the complainant party was

chased by the appellants who caught hold of Nanla (PW 5). There was protest

from deceased Rayla and others. It appears that appellant No.1 gave a lathi

blow to Bair Singh (PW 1). The chase continued and ultimately in the field of

Samadh Miyan, Rayla, the deceased was over-powered and was assaulted

with lathi and stones. It is the case of the prosecution that some of the accused

trampled on his body as a result of which he died on the spot.

The First Information Report was lodged by PW1 and after

investigation the appellants were put on trial. There is considerable evidence

on record to prove the participation of the appellants. The evidence also

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establishes the genesis and manner of occurrence as stated by the prosecution.

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Learned Counsel for the appellants submitted that even if the

prosecution case is accepted to be true, the nature of injuries caused, the

weapons used, the genesis of the occurrence and the trivial dispute which

gave rise to the occurrence, belie the case of the prosecution that the

appellants intended to cause the death of the deceased. She submits that none

of the injuries caused was by itself sufficient in the ordinary course of nature

to cause death, and at best death resulted on account of the unintended injury

to the liver caused by fracture of a rib bone which punctured the liver.

According to her, injury to the liver, which appears to be the cause of the

death, was not intended by the appellants. According to her, the offence made

out may be one under Section 326 or Section 324 IPC.

On the other hand, Counsel for the State submitted that a large

number of injuries were inflicted on the deceased by the appellants. The

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appellants must have known that such large number of injuries caused by

them would result in the death of the victim in the ordinary course of nature.

He, therefore, submitted that the case clearly comes under Section 302 IPC.

To be more precise he submits that the case would fall under Section 300

"thirdly" IPC.

We have gone through the evidence on record and have noticed the

features of the case. Firstly, the occurrence has its genesis in a trivial matter

namely the unintended hitting of Nanla (PW5) by the stick of appellant No.2

when they were dancing at the festival. There was some protest giving rise to

exchange of abuses and altercation but the matter rested there. Thereafter, the

parties took 'prasad' and proceeded to their respective villages. It is thus

apparent that what happened was not premeditated and the appellants had not

come particularly prepared for the incident. Secondly,

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while returning to their respective villages the appellants caught hold of Nanla

(PW5) but there was intervention by the deceased Rayla. This is what made

Rayla the target of the appellants. The injuries inflicted were by lathis carried

by the appellants and some of them picked up stones which they found lying

nearby. Thirdly, the medical evidence discloses that the following injuries

were caused :-

1. Swelling of the size of 3 cm. x 3 cm. on

the outer margin of the eye and right side of

the face.

2. Swelling of the dia of 4 cm. on the

head bone of left parietal bone.

3. A spreading swelling over the left of

the nostril and on the Mazalary bone of the left

face.

4. Spreading swelling in the region of

the left collar bone.

5. In the half upper portion of the left

arm spreading swelling.

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6. Contusion spread around the niple of

left side of the chest.

7. Swelling in the region of the ribs

Nos.10, 11, 12 of the back bone and

right side of the back.

The internal examination disclosed that though there was clotting of

blood under the upper skin on the left parietal bone there was no underlying

fracture. The 11th and 12th ribs which had been fractured had entered the

liver. The deceased had suffered several fracture of bones but none of them

appear to be such as would have caused his death in the ordinary course of

nature.

The doctor who had conducted the postmortem examination was

examined as PW10 but in the course of his deposition he did not state that he

had found any injury which was sufficient in the ordinary course of nature to

cause death. His opinion appears

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to be that "death has been caused due to the injuries caused on his person and

following the damage of the liver and profuse bleeding". In the absence of

any clear medical opinion we have examined the nature of injuries inflicted

on the deceased as disclosed by the evidence on record. From the external and

internal injuries found, we have come to the conclusion that it was the injury

caused to the liver resulting in profuse bleeding which caused the death. If the

liver had not been damaged, perhaps death would not have resulted. We say

so because there is no clear medical opinion on this aspect. The question then

is whether in this state of the evidence on record, the case is covered by

Section 300 "thirdly" IPC, that is to say, whether the appellants committed

the act with the intention of causing bodily injury to the deceased and the

bodily injury intended to be inflicted was sufficient in the ordinary course of

nature to cause death. In Virsa Singh Versus State of Punjab, AIR

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1958 SC 465, this Court considered the facts and held that the prosecution

must prove the following facts before it could bring the case under Section

300 "thirdly".

"First, it must establish, quite objectively that a bodily injury is

present;

Secondly, the nature of the injury must be proved; These are purely

objective investigations.

Thirdly, it must be proved that there was an intention to inflict that

particular bodily injury, that is to say, that it was not accidental or

unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry

proceeds further and,

Fourthly, it must be proved that the injury of the type just described

made up of the three elements set out above is sufficient to cause death in the

ordinary course of nature. This part of the enquiry is purely objective and

inferential and has nothing to do with the intention of the offender."

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In Anda Versus State of Rajasthan (AIR 1966 SC 151 the same

principle has been reiterated in the following words :-

"The third clause views the matter from a general stand point. It

speaks of an intention to cause bodily injury which is sufficient in the

ordinary course of nature to cause death. The sufficiency is the high

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probability of death in the ordinary way of nature and when this exists and

death ensues and the causing of such injury is intended the offence is murder.

Sometimes the nature of the weapon used, sometimes the part of the body on

which the injury is caused, and sometimes both are relevant. The determinant

factor is the intentional injury which must be sufficient to cause death in the

ordinary course of nature. If the intended injury cannot be said to be sufficient

in the ordinary course of nature to cause death, that is to say, the probability

of death is not so high, the offence does not fall within murder but within

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culpable homicide not amounting to murder or something less."

In the same judgement this Court cautioned that no case can be an authority

on facts. This is always a question of fact as to whether accused shared a

particular knowledge or intent. One must look for a common intention, that is

to say, some prior concert and what that common intention is. One must look

for the requisite ingredient that the injuries which were intended to be caused

were sufficient to cause death in the ordinary course of nature, and whether

the accused possessed the knowledge that the injuries they were intending to

cause were sufficient in the ordinary course of nature to cause death.

Keeping these principles in mind and applying them to the facts of

this case we find that the occurrence took place suddenly. There was no

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premeditation on the part of the appellants and quarrel really arose from a

trivial issue. The parties had danced all night and nothing untoward had

happened except this small incident. Thereafter they proceeded towards their

respective villages. It is not the case of the prosecution that the appellants

were armed with deadly weapons. Some of them were carrying lathis, as are

usually carried by the tribals in that part of the State, and had not made any

special preparation for the assault. Some others had just picked up stones

when the deceased was overpowered, and assaulted him. It is, no doubt, true

that they assaulted the deceased in such a manner that the deceased suffered

several fractures, but the injury which caused the death of the deceased was

the one suffered by him on account of the rib bone puncturing the liver. We

are convinced that this injury was not intended by the appellants, and the

injury suffered by the deceased on his liver was at best accidental. We

therefore, hold that

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Section 300 "thirdly" IPC is not attracted, and it cannot be said that the

appellants intended to cause any injury to the liver which perhaps proved

fatal. There is no evidence to suggest that any of the other injuries suffered by

him was sufficient to cause death in ordinary course of nature.

The question then is under which provision of the IPC the appellants

should be punished. Counsel for the State submits that even if the case does

not fall under Section 300 "thirdly" IPC it would certainly fall under Section

304 Part II IPC. Even if we say that the appellants had no intention to cause

death they certainly knew that such bodily injury was likely to cause death.

He, therefore, submits that even if the appellants may not be found guilty of

culpable homicide amounting to murder, they are certainly guilty of culpable

homicide not amounting to murder punishable under Section 304 Part II IPC.

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Having considered all the relevant facts we are satisfied that the

appellants are guilty of the offence punishable under Section 304 Part II IPC.

We, therefore, set aside their conviction under Section 302 IPC and instead

convict them under Section 304 Part II IPC and sentence them to 5 years

rigorous imprisonment. Learned Counsel for the appellant submitted that the

offence will fall under Section 326 IPC and not under Section 304 Part II IPC

because the injury caused by the appellants resulted in fracture of the bones. It

is true that in such border line cases it is possible to hold either way.

However, in the facts and circumstances of this case the conviction should

appropriately be one under Section 304 Part II IPC. In any event, it would

make no difference to the sentence, having regard to the facts of the case.

In the circumstances, this appeal is partly allowed and the conviction

of the appellants under Section 302 IPC is set aside and they are convicted

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under Section 304 Part II IPC and sentenced to five years rigorous

imprisonment each. We are informed that the appellant No.1, Khuman Singh,

s/o Nahar Singh, appellant No.2 Khuman Singh, s/o Bair Singh, Appellant

No.4 Bhai Singh, s/o Phool Singh and Appellant No.6 Dhanna, s/o Par Singh

have remained in custody through out and have served out about 11 years of

the sentence, while the remaining appellants were granted bail by the High

Court after sometime. In this appeal this Court granted bail to all the

appellants. Their bail bonds are cancelled and the authorities are directed to

take them into custody if they have not served out the sentence of five years

awarded by this Court, to serve out the remainder of the sentence.