SOMPAL SINGH Vs STATE OF U.P.
Bench: B.S. CHAUHAN,A.K. SIKRI
Case number: Crl.A. No.-000147-000147 / 2009
Diary number: 25697 / 2008
Advocates: IRSHAD AHMAD Vs
ANUVRAT SHARMA
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 147 OF 2009
Sompal Singh & Anr. …Appellants
Versus
State of U.P. …Respondent
J U D G M E N T
Dr. B.S. Chauhan, J.
1. This appeal has been preferred against the
impugned judgment and order dated 24.5.2007 of the High
Court of Judicature at Allahabad in Criminal Appeal No. 2681
of 1982, by which the High Court has affirmed the judgment
and order passed by the IInd Additional Sessions Judge,
Budaun dated 12.10.1980 in S.T. No. 540 of 1980, wherein the
trial court had convicted the appellants alongwith other
accused Jaganant Singh, Sahaab Singh and Meharban Singh
under Sections 148, 323, 149, 324/149 of the Indian Penal
Code, 1860 (hereinafter referred to as the `IPC’) and also
under Sections 320/149 IPC. All the accused were sentenced
to undergo RI for one year under Section 148 IPC and were
further convicted for six months RI under Sections 324/149
IPC and for another six months RI under Sections 323/149 IPC
and all of them were also stood convicted under Sections
302/149 for imprisonment for life.
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2. The High Court has converted the aforesaid
conviction and also acquitted all of them for the offence
punishable under Sections 302/149 IPC. Kunwar Pal Singh and
Sahaab Singh have been sentenced for ten years RI under
Section 304-I IPC and the other remaining convicts were
held guilty under Sections 148, 323, 324/149 IPC and reduced
their sentences.
3. So far as the present appeal is concerned, it
relates only to two appellants i.e. Sompal Singh and Kunwar
Pal Singh. Sompal Singh is reported to have served out the
sentence of 1-1/2 years awarded to him and in view of the
statement made by Shri Ratnakar Desh, learned senior
counsel appearing on behalf of the appellants, his appeal is
dismissed as having become infructuous. So, we have to
consider the case of remaining sole appellant Kunwar Pal
Singh, the second appellant who has been convicted under
Section 304-I IPC and sentenced to 10 years RI.
4. The facts and circumstances giving rise to this
appeal are that:
A. Shanker Singh, the complainant, was irrigating his
agricultural field by Persian Wheel (Rahat) on 21.5.1980.
At about 11.00 AM, the cattle of Jaganant Singh reached on
the well and started drinking water. As a result of which
the water drain got damaged and this ultimately resulted in
exchange of words between Shanker Singh and Jaganant Singh.
Both of them subsequently finished their agricultural work
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and came to the village at their respective houses.
B. On the same day, both the appellants alongwith
Meharban Singh, Sahaab Singh and Jaganant Singh attacked
Shanker Singh at around 2.00 p.m. Kunwar Pal Singh and
Sahaab Singh had Kanta, Sompal Singh had a ballam, Jaganant
Singh had bhala and Meherban Singh had a lathi. When Bhoop
Singh, Pooran Singh and Mukku Singh, family members of
Shanker Singh, tried to save him, they also suffered
injuries at the hands of the accused. Hearing the hue and
cries, witnesses Bahadur Singh (PW.8), Hakim Singh (PW.9)
and many other persons arrived at the place of occurrence.
On seeing this, the accused ran away.
C. Shanker Singh, injured, dictated a report to his
nephew Rajbir Singh and when taken to the police station
Wazirganj in bullock-cart, he handed over the same to
Constable Vidya Ram (PW.6), on the basis of which an FIR was
registered for riot and assault. Shanker Singh, injured, as
well as Mukku Singh, Bhoop Singh and Pooran Singh, injured
persons were also examined. Shanker Singh was admitted in
the hospital where he succumbed to the injuries on
24.5.1980. The postmortem was conducted on his body on
25.5.1980.
D. On conclusion of the investigation, chargesheet
was filed and after conclusion of the trial, they stood
convicted and sentenced by the trial court as referred to
herein above.
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E. Aggrieved, two appeals i.e. Criminal Appeal Nos.
2681 of 1982 and 2687 of 1982, were filed by the convicts
which have been partly allowed by the High Court vide common
judgment and order dated 24.5.2007.
Hence, this appeal.
5. Shri Ratnakar Dash, learned senior counsel
appearing on behalf of the appellant, has submitted that the
High Court after appreciating the evidence on record came to
the correct conclusion that injuries had been caused to
Shanker Singh with Kanta by giving two blows on the head and
one of them had been given by the present appellant Kunwar
Pal Singh and another by Sahaab Singh. The injuries caused
by each of them separately were not sufficient to cause
death. It was the cumulative effect of both the injuries
that Shanker Singh had died. There had been no intention to
kill Shanker Singh, as nobody could prevent the accused to
cause further injuries. Thus, the case falls within the
ambit of Section 304-II IPC and even if the appellant is
convicted under Section 304-I IPC, the sentence of 10 years
is disproportionate to the offence committed by him. Thus,
the appeal deserves to be allowed to that extent.
6. On the contrary, Shri Gaurav Bhatia, learned
Additional Advocate General for the State of U.P., has
opposed the appeal contending that the injury caused by the
appellant was grievous in nature and sufficient to cause
death. Therefore, as the High Court has already converted
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the conviction from Section 302 IPC to Section 304 Part-I
IPC and sentence has been reduced from life imprisonment to
10 years, no further interference is warranted and the
appeal is liable to be dismissed.
7. We have considered the rival submissions made by
the learned counsel for the parties and perused the records.
8. The appeal lies in a very narrow compass and is to
be decided considering as what could be the nature of
offence and what could be the appropriate
punishment/sentence for the same, taking into account the
injury caused by the appellant to Shanker Singh (deceased)
as the other injured witnesses had suffered injuries at the
hands of the other co-accused with whom we are not concerned
at all.
9. The injuries found on the person of Shanker Singh
(deceased) are as given below:
(
(1) Incised wound 9 c.m. X 1 c.m. X bone deep on
the right skull, 7 c.m. from the right ear.
(2) Incised wound 7 c.m. X 1 c.m. X bone deep on
the mid-line of skull, 8 c.m. away from injury No.
1.
(3) Contusion 6 c.m. X 2 c.m. on the left anterior
chest below the left nipple.
(4) Contusion 8 c.m. X 2 c.m. middle of right
thigh.
(5) Contusion 4 c.m. X 2 c.m. on the left back of
shoulder.
Injuries Nos. l and 2 were caused by some sharp
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edged object and injuries Nos. 3, 4 and 5 were
caused by some blunt object. They were half days
old in duration. The doctor also prepared the
injury report Ex.Ka-15.
In the opinion of Dr. V.K. Mehta (PW.7), Medical
Officer at Saidpur Primary Health Centre, injuries nos. 1
and 2 had been caused by some sharp edged weapon and other
injuries had been caused by blunt object.
10. The trial court after appreciating the entire
evidence, came to the conclusion that Kunwar Pal Singh - the
appellant was responsible for causing only one injury on the
head as the other injury on the head had been caused by
Sahaab Singh. However, considering the entire evidence on
record the court came to the conclusion that Shanker Singh
died in the hospital next day on account of the aforesaid
injuries caused by the accused persons. The prosecution
witness established that the accused persons formed an
unlawful assembly armed with lathis and other lethal weapons
and in order to prosecute common object of such assembly
they voluntarily caused serious injuries to Shanker Singh
causing his death and they also voluntarily caused simple
injuries to Bhoop Singh, Mikhu Singh and Pooran Singh. Thus,
on the basis of the prosecution witness, ocular and medical
it was established that all the accused persons were guilty
for the offences punishable under Sections 147, 148, 302,
324 and 323 IPC all read with Section 149 IPC.
11. In appeal, the High Court re-appreciated the
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entire evidence and came to the conclusion that appellant
Kunwar Pal Singh and accused Sahaab Singh were responsible
for causing injuries on the head of the deceased with
‘Kanta’. The deceased survived for two days after receiving
such incised wounds on his dead and died after three days of
the incident and the common object of the unlawful assembly
was to belabor the deceased. Considering the common object
of the assembly it was not possible to draw an inference
that there was no intention to murder the deceased or cause
him such bodily injury as was sufficient in the ordinary
course of nature to cause death. The force applied
inflicting the injury was such that if it did not make the
deceased even unconscious and he remained alive for three
days prior to his death the victim was in physical and
mental condition to dictate an FIR of the incident, and
therefore it was not a case where the conviction of any of
the accused could be affirmed under Section 302/149 IPC,
rather it was a case for conviction under Section 304 Part I
IPC simplicitor. Using sharp edged weapon on the head
indicates that Kunwar Pal Singh and Sahaab Singh accused
knew that death might ensue because of the assault made by
them.
12. Undoubtedly, both the said injuries have been on
the skull. The first injury is 7 Cm. away from the right
ear, however, the second injury is 8 Cm. away from injury
no.1. Much arguments have been advanced as what is the
meaning of bone deep. In case, the injury is caused on the
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part of the body other than head, it can be measured as
skin deep. If injury is deep to certain extent, it may cut
muscles and then may go upto the bone. In case of head
injury, if the injury remains superfluous, it is generally
described as skull deep. On the head, there is hair which
rooted to the skin with bulp. There are cartilages below
the skin and then comes cranium.
13. The gravity of the injury is to be determined in
view of the provisions contained in Section 320 IPC, which
read:
“Grievous hurt – The following kinds of hurt only
are designated as “grievous”:-
Firstly – …………..
xxx xxx xxx
Sixthly - Permanent disfiguration of the head or face.
Seventhly -Fracture or dislocation of a bone or
tooth.
Eighthly – Any hurt which endangers life or which
causes the sufferer to be during the space of
twenty days in severe bodily pain, or unable to
follow his ordinary pursuits.
14. So far as the instant case is concerned, clauses
sixthly and seventhly may be relevant. Nature of the
injuries is to be determined taking into consideration the
intense suffering to which it gives rise and the serious
disability which it causes the sufferer. However, in clause
seventhly, as the term ‘fracture’ has been referred to, it
may be necessary that the bone is broken. Mere abrasion
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would not amount to fracture. Even a cut that does not go
across the bone cannot be termed as a fracture of the bone.
But if the injury is grave even partial cut of the skull
vault (root or chamber) may amount to a fracture. However,
clause eighthly refers to the injuries which are not covered
under any one of the above clauses firstly to seventhly of
the section. However, it labels the injuries as grievous if
it endangers life or it causes the sufferer to be during the
space of 20 days in severe bodily pain or which causes the
sufferer to be during the space of 20 days unable to follow
his ordinary pursuits and all the three clauses have to be
read independently. This is a very thin and subtle
demarcation line between ‘hurt which endangers life’ and
‘injury as is likely to cause death’. Therefore, sometimes
it becomes very difficult as to whether a person is liable
under Section 325 IPC for causing grievous hurt or under
Section 304 IPC for culpable homicide not amounting to
murder when the injury results in the death of the victim.
In the present case, the injuries nos. 1 and 2 are beyond
`hurt which endanger life’ and clearly falls in the category
of ‘injuries as are likely to cause death’ even though each
injury may not be individually sufficient to cause death.
15. The High Court has set aside the conviction under
Section 302 read with Section 149 IPC and the finding
attained finality to that extent. There is ample evidence on
record to draw the conclusion that the injury caused by the
appellant was not sufficient to cause death independently.
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In such a fact-situation, the conviction of the appellant as
recorded by the High Court under Section 304 Part I IPC is
upheld. However, in the facts of the case as the incident
occurred about thirty four years ago, sentence is reduced to
seven years. The appeal stands disposed of with the
aforesaid modification.
......................J. (Dr. B.S. CHAUHAN)
.....................J. (A.K. SIKRI)
New Delhi, May 16, 2014
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ITEM NO.1A Court No.2 SECTION II
S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CRIMINAL APPEAL NO(s). 147 OF 2009
SOMPAL SINGH & ANR. Appellant (s)
VERSUS
STATE OF U.P. Respondent(s)
(With office report)
Date: 16/05/2014 This Appeal was called on for pronouncement of judgment today.
For Appellant(s) Mr. Irshad Ahmad,Adv. Mr. Samir Ali Khan ,Adv
For Respondent(s) Mr. Gaurav Bhatia, AAG Mr. Aviral Saxena, Adv.
Mr. Anuvrat Sharma,Adv.
Hon'ble Dr. Justice B.S. Chauhan pronounced the judgment of the Bench comprising of His Lordship and Hon'ble Mr. Justice A.K. Sikri.
The appeal is disposed of in terms of the signed non-reportable judgment.
(DEEPAK MANSUKHANI) (M.S. NEGI) Court Master Assistant Registrar
(Signed non-reportable judgment is placed on the file)
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