STATE OF RAJASTHAN Vs SHERA RAM @ VISHNU DUTTA
Bench: SWATANTER KUMAR,RANJANA PRAKASH DESAI
Case number: Crl.A. No.-001502-001502 / 2005
Diary number: 14225 / 2004
Advocates: MILIND KUMAR Vs
V. J. FRANCIS
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1502 OF 2005
State of Rajasthan … Appellant
Versus
Shera Ram @ Vishnu Dutta … Respondent
J U D G M E N T
Swatanter Kumar, J.
1. Respondent Shera Ram @ Vishnu Dutta was charged for
committing an offence under Sections 302, 295 and 449 of the
Indian Penal Code, 1860 (for short ‘IPC’) and was sentenced to
undergo imprisonment for life by the Additional Sessions
Judge-1, Jodhpur vide judgment dated 7th June, 2000.
However, upon appeal, he came to be acquitted of all the
offences by a Division Bench of the High Court of Rajasthan
vide order dated 21st February, 2004 primarily on the ground
that at the time of incident, he was a person of unsound mind
within the meaning of Section 84 IPC and was directed to be
detained in safe custody in an appropriate hospital or a place
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of custody of non-criminal lunatics as would be provided to
him by the State Government under the direct supervision of
the Jail Authorities till the time he was cured of his mental
illness and infirmity.
2. Aggrieved from the said judgment, the State of Rajasthan
has presented this appeal by way of a special leave petition.
3. Before we proceed to dwell upon the merits of the case and
the legal issues involved in the present appeal, a reference to
the case of the prosecution would be necessary. According to
the prosecution, on 10th March, 1999 at about 7.15 a.m.,
while Pujari Tulsi Das (now deceased) was in the
Raghunathji’s temple, the respondent abruptly hurled a stone
on his head resulting into his instantaneous death. The
respondent also damaged the idol and other properties of the
temple. This all was unprovoked. The incident was
witnessed by the villagers including PW-6 Santosh, PW-11
Narsingh Ram and PW-16, Smt. Tiku Devi.
4. PW-2, Ghan Shyam Das Daga reported the matter to the
police immediately. Upon receipt of the information, the police
registered a case under Section 302 IPC and proceeded with
the investigation. Besides recording statements of number of
witnesses, the Investigating Officer also prepared the site plan
and the inquest memo. The body of the deceased was sent for
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post-mortem which was performed by PW-20, Dr. C.P. Bhati,
who prepared the post-mortem report Ext. P-37.
5. After investigation, the police filed the challan upon which,
the respondent was committed to the appropriate Court of
Sessions for trial. The charge-sheet was filed under Sections
302, 295 and 449 IPC, as already noticed. The respondent
denied the charges leveled against him and claimed trial.
6. The prosecution examined as many as 23 witnesses to
prove its case. The material piece of evidence appearing in
the case of the prosecution against the respondent were put to
him and his statement was recorded by the learned Trial
Court under Section 313 of the Code of Criminal Procedure,
1973 (for short ‘Cr.PC’). According to the respondent, his
mental condition right from the year 1992-1993 was not good
and occasionally he suffered from fits of insanity. He had
undergone treatment for the same. He has stated that in the
jail also, he was receiving the treatment. To put it simply, he
claimed the defence of insanity under Section 84 IPC. The
defence also examined DW-2, Dr. Vimal Kumar Razdan and
DW-1, Bhanwar Lal, brother of the respondent who had
produced records to show that the respondent was a person
suffering from insanity of mind. The learned Trial Court
rejected the plea of defence of insanity and convicted the
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respondent.
7. The respondent preferred an appeal against the judgment
and order of conviction by the Trial Court which resulted in
his acquittal vide order dated 21st February, 2004 with the
afore-noticed directions to the State Government. Dissatisfied
from the said judgment, the State has preferred the present
appeal.
8. As is evident from the above-noted facts, it is an appeal
against the judgment of acquittal. The plea of insanity raised
by the respondent has been accepted by the High Court
resulting in his acquittal.
9. A judgment of acquittal has the obvious consequence of
granting freedom to the accused. This Court has taken a
consistent view that unless the judgment in appeal is contrary
to evidence, palpably erroneous or a view which could not
have been taken by the court of competent jurisdiction
keeping in view the settled canons of criminal jurisprudence,
this Court shall be reluctant to interfere with such judgment
of acquittal.
10. The penal laws in India are primarily based upon
certain fundamental procedural values, which are right to fair
trial and presumption of innocence. A person is presumed to
be innocent till proven guilty and once held to be not guilty of
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a criminal charge, he enjoys the benefit of such presumption
which could be interfered with only for valid and proper
reasons. An appeal against acquittal has always been
differentiated from a normal appeal against conviction.
Wherever there is perversity of facts and/or law appearing in
the judgment, the appellate court would be within its
jurisdiction to interfere with the judgment of acquittal, but
otherwise such interference is not called for. We may refer to
a recent judgment of this Court in the case of State of
Rajasthan, Through Secretary, Home Department v. Abdul
Mannan [(2011) 8 SCC 65], wherein this Court discussed the
limitation upon the powers of the appellate court to interfere
with the judgment of acquittal and reverse the same.
11. This Court referred to its various judgments and
held as under:-
“12. As is evident from the above recorded findings, the judgment of conviction was converted to a judgment of acquittal by the High Court. Thus, the first and foremost question that we need to consider is, in what circumstances this Court should interfere with the judgment of acquittal. Against an order of acquittal, an appeal by the State is maintainable to this Court only with the leave of the Court. On the contrary, if the judgment of acquittal passed by the trial court is set aside by the High Court, and the accused is sentenced to death, or life imprisonment or imprisonment for more than 10 years, then the right of appeal of the accused is treated as an absolute right subject to the provisions of Articles 134(1)(a) and 134(1)(b) of the Constitution of India and Section 379
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of the Code of Criminal Procedure, 1973. In light of this, it is obvious that an appeal against acquittal is considered on slightly different parameters compared to an ordinary appeal preferred to this Court.
13. When an accused is acquitted of a criminal charge, a right vests in him to be a free citizen and this Court is very cautious in taking away that right. The presumption of innocence of the accused is further strengthened by the fact of acquittal of the accused under our criminal jurisprudence. The courts have held that if two views are possible on the evidence adduced in the case, then the one favourable to the accused, may be adopted by the court. However, this principle must be applied keeping in view the facts and circumstances of a case and the thumb rule is that whether the prosecution has proved its case beyond reasonable doubt. If the prosecution has succeeded in discharging its onus, and the error in appreciation of evidence is apparent on the face of the record then the court can interfere in the judgment of acquittal to ensure that the ends of justice are met. This is the linchpin around which the administration of criminal justice revolves.
14. It is a settled principle of criminal jurisprudence that the burden of proof lies on the prosecution and it has to prove a charge beyond reasonable doubt. The presumption of innocence and the right to fair trial are twin safeguards available to the accused under our criminal justice system but once the prosecution has proved its case and the evidence led by the prosecution, in conjunction with the chain of events as are stated to have occurred, if, points irresistibly to the conclusion that the accused is guilty then the court can interfere even with the judgment of acquittal. The judgment of acquittal might be based upon misappreciation of evidence or apparent violation of settled canons of criminal jurisprudence.
15. We may now refer to some judgments of this Court on this issue. In State of M.P. v. Bacchudas, the Court was concerned with a case where the accused had been found guilty of an offence punishable under Section 304 Part II read with Section 34 IPC by the trial court; but had been acquitted by the High Court of Madhya Pradesh. The appeal was dismissed by this
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Court, stating that the Supreme Court’s interference was called for only when there were substantial and compelling reasons for doing so. After referring to earlier judgments, this Court held as under: (SCC pp. 138-39, paras 9-10)
“9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, Ramesh Babulal Doshi v. State of Gujarat, Jaswant Singh v. State of Haryana, Raj Kishore Jha v. State of Bihar, State of Punjab v. Karnail Singh, State of Punjab v. Phola Singh, Suchand Pal v. Phani Pal and Sachchey Lal Tiwari v.
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State of U.P. 10. When the conclusions of the High Court
in the background of the evidence on record are tested on the touchstone of the principles set out above, the inevitable conclusion is that the High Court’s judgment does not suffer from any infirmity to warrant interference.”
16. In a very recent judgment, a Bench of this Court in State of Kerala v. C.P. Rao decided on 16-5-2011, discussed the scope of interference by this Court in an order of acquittal and while reiterating the view of a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan, the Court held as under:
“13. In coming to this conclusion, we are reminded of the well-settled principle that when the court has to exercise its discretion in an appeal arising against an order of acquittal, the court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan 212. At SCR p. 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows:
‘9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court’s approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) “substantial and compelling reasons”, (ii) “good and sufficiently cogent reasons”, and (iii) “strong reasons”, are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it
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should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified’.”
17. Reference can also be usefully made to the judgment of this Court in Suman Sood v. State of Rajasthan, where this Court reiterated with approval the principles stated by the Court in earlier cases, particularly, Chandrappa v. State of Karnataka. Emphasising that expressions like “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal, the Court stated that such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with the acquittal. Thus, where it is possible to take only one view i.e. the prosecution evidence points to the guilt of the accused and the judgment is on the face of it perverse, then the Court may interfere with an order of acquittal.”
12. There is a very thin but a fine distinction between
an appeal against conviction on the one hand and acquittal on
the other. The preponderance of judicial opinion of this Court
is that there is no substantial difference between an appeal
against conviction and an appeal against acquittal except that
while dealing with an appeal against acquittal the Court keeps
in view the position that the presumption of innocence in
favour of the accused has been fortified by his acquittal and if
the view adopted by the High Court is a reasonable one and
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the conclusion reached by it had its grounds well set out on
the materials on record, the acquittal may not be interfered
with. Thus, this fine distinction has to be kept in mind by the
Court while exercising its appellate jurisdiction. The golden
rule is that the Court is obliged and it will not abjure its duty
to prevent miscarriage of justice, where interference is
imperative and the ends of justice so require and it is essential
to appease the judicial conscience.
13. Also, this Court had the occasion to state the
principles which may be taken into consideration by the
appellate court while dealing with an appeal against acquittal.
There is no absolute restriction in law to review and re-look
the entire evidence on which the order of acquittal is founded.
If, upon scrutiny, the appellate court finds that the lower
court’s decision is based on erroneous views and against the
settled position of law then the said order of acquittal should
be set aside. {See State (Delhi Administration) v. Laxman Kumar
& Ors. [(1985) 4 SCC 476], Raj Kishore Jha v. State of Bihar &
Ors. [AIR 2003 SC 4664], Inspector of Police, Tamil Nadu v.
John David [JT 2011 (5) SC 1] }
14. To put it appropriately, we have to examine, with
reference to the present case whether the impugned judgment
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of acquittal recorded by the High Court suffers from any legal
infirmity or is based upon erroneous appreciation of evidence.
15. In our considered view, the impugned judgment
does not suffer from any legal infirmity and, therefore, does
not call for any interference. In the normal course of events,
we are required not to interfere with a judgment of acquittal.
16. Having deliberated upon the above question of law,
we may now proceed to discuss the merits of the case in hand.
The High Court after consideration of the entire evidence
produced by the prosecution, affirmed the finding that the
incident as alleged by the prosecution had occurred and the
respondent had hurled a stone on the head of Pujari Tulsi Das
which resulted in his death. This being a finding of fact based
upon proper appreciation of evidence, does not call for any
interference by us.
17. The corollary that follows from the above is whether
having committed the charged offence, the respondent is
entitled to the benefit of the general exception contained in
Section 84, Chapter IV of the IPC? Section 84 states that
nothing is an offence which is done by a person who, at the
time of doing it, by reason of unsoundness of mind, is
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incapable of knowing the nature of the act, or that what he is
doing is either wrong or contrary to law.
18. It is obvious from a bare reading of this provision
that what may be generally an offence would not be so if the
ingredients of Section 84 IPC are satisfied. It is an exception
to the general rule. Thus, a person who is proved to have
committed an offence, would not be deemed guilty, if he falls
in any of the general exceptions stated under this Chapter.
19. To commit a criminal offence, mens rea is generally
taken to be an essential element of crime. It is said furiosus
nulla voluntus est. In other words, a person who is suffering
from a mental disorder cannot be said to have committed a
crime as he does not know what he is doing. For committing
a crime, the intention and act both are taken to be the
constituents of the crime, actus non facit reum nisi mens sit
rea. Every normal and sane human being is expected to
possess some degree of reason to be responsible for his/her
conduct and acts unless contrary is proved. But a person of
unsound mind or a person suffering from mental disorder
cannot be said to possess this basic norm of human behavior.
In the case of Surendra Mishra v. State of Jharkhand [(2011) 3
SCC(Cri.) 232], the Court was dealing with a case where the
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accused was charged for an offence under Section 302 IPC and
Section 27 of the Arms Act. While denying the protection of
Section 84 of the IPC to the accused, the Court held as under:-
“9. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression “unsoundness of mind” has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behavior or the behavior is queer are not sufficient to attract the application of Section 84 of the Indian Penal Code.”
20. From the above-stated principles, it is clear that a
person alleged to be suffering from any mental disorder cannot
be exempted from criminal liability ipso facto. The onus would
be on the accused to prove by expert evidence that he
is suffering from such a mental disorder or mental condition
that he could not be expected to be aware of the consequences
of his act.
21. Once, a person is found to be suffering from mental
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disorder or mental deficiency, which takes within its ambit
hallucinations, dementia, loss of memory and self-control, at
all relevant times by way of appropriate documentary and oral
evidence, the person concerned would be entitled to seek
resort to the general exceptions from criminal liability.
22. Epileptic Psychosis is a progressing disease and its
effects have appropriately been described in the text book of
Medical Jurisprudence and Toxicology by Modi, 24th Ed. 2011
where it states as follows:-
“Epileptic Psychosis. – Epilepsy usually occurs from early infancy, though it may occur at any period of life. Individuals, who have had epileptic fits for years, do not necessarily show any mental aberration, but quite a few of them suffer from mental deterioration. Religiousity is a marked feature in the commencement, but the feeling is only superficial. Such patients are peevish, impulsive and suspicious, and are easily provoked to anger on the slightest cause.
The disease is generally characterized by short transitory fits of uncontrollable mania followed by complete recovery. The attacks, however, become more frequent. There is a general impairment of the mental faculties, with loss of memory and self- control. At the same time, hallucinations of sight and hearing occur and are followed by delusions of a persecuting nature. They are deprived of all moral sensibility, are given to the lowest forms of vice and sexual excesses, and are sometimes dangerous to themselves as well as to others. In many long- standing cases, there is a progressive dementia or mental deficiency.
True epileptic psychosis is that which is associated
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with epileptic fits. This may occur before or after the fits, or may replace them, and is known as pre- epileptic, post-epileptic and masked or psychic phases (psychomotor epilepsy)
Post-Epileptic Mental Ill-health – In this condition, stupor following the epileptic fits is replaced by automatic acts of which the patient has no recollections. The patient is confused, fails to recognize his own relatives, and wanders aimlessly. He is terrified by visual and auditory hallucinations of a religious character and delusions of persecution, and consequently, may commit crimes of a horrible nature, such as thefts, incendiarism, sexual assaults and brutal murders. The patient never attempts to conceal them at the time of perpetration but on regaining consciousness may try to conceal them out of fear.”
23. Similar features of Epilepsy have been recorded in
the HWV COX Medical Jurisprudence and Toxicology (7th Edn)
by PC Dikshit.
24. Reverting to the facts of the present case, it may be
noted that no witness of the prosecution including the
Investigating Officer stated anything with regard to the mental
condition of the respondent. However, the respondent not
only in his statement under Section 313 Cr.P.C. took up the
defence of mental disorder seeking benefit of Section 84 IPC
but even led evidence, both documentary as well as oral, in
support of his claim. He examined Dr. Vimal Kumar Razdan,
DW-2, who deposed that he had examined the respondent and
had given him treatment. He, also, produced the examination
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report in regard to the treatment of the respondent, Ext.D-5,
which was prepared in his clinic.
25. According to the statement of this doctor and the
prescription, the respondent was suffering from Epilepsy and
while describing post epileptic insanity, this witness stated
that after the epileptic attack, a patient behaves like an insane
person and he is unable to recognise even the known persons
and relatives. During this time, there is a memory loss and
the patient can commit any offence. In the prescription, Ext.
D-3, issued by Dr. Ashok Pangadiya, it was stated that the
patient was suffering from the fits disease and symptoms of
behavioral abnormality. Two types of medication on the basis
of diagnosis of epileptic disease and other one for insanity
were prescribed to the respondent who continued to take these
medicines, post epileptic insanity.
26. Another witness who was produced by the defence
was DW-1, Bhanwar Lal, the brother of the respondent.
According to this witness, the respondent was suffering from
mental disorder since 1993. He stated that when he gets the
fits of insanity, he can fight with anybody, hit anybody and
even throw articles lying around him. At the initial stage, Dr.
Devraj Purohit had treated him. Then Dr. V.K. Razdan treated
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him and thereafter, in Jaipur, Dr. Ashok Pagadiya/Pandharia
also treated him. Even when he was in jail, he was under
treatment. He produced the prescription slips i.e. Exts. D3
and D4. This witness has also stated that on the date of
occurrence at about 6.00 – 6.30 a.m., Shera Ram/respondent
was not feeling well and, in fact, his condition was not good.
Even at home he had broken the electricity meter and the
bulbs. When the people at home including the witness tried
to stop him, he had beaten DW-1 on his arm and after hitting
him on the face he had run away.
27. This oral and documentary evidence clearly shows
that the respondent was suffering from epileptic attacks just
prior to the incident. Immediately prior to the occurrence, he
had behaved violently and had caused injuries to his own
family members. After committing the crime, he was arrested
by the Police and even thereafter, he was treated for insanity,
while in jail.
28. Thus, there is evidence to show continuous mental
sickness of the respondent. He not only caused death of the
deceased but also on the very same day injured and caused
hurt to his family members including DW-1. His statement
made under Section 313 Cr.PC is fully corroborated by oral
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and documentary evidence of DW-2 and Ext. D-3 and D-4.
Though, the High Court has not discussed this evidence in
great detail, but this being an admissible piece of evidence,
can always be relied upon to substantiate the conclusion and
findings recorded by the High Court.
29. In other words, the High Court on the basis of the
documentary and oral evidence has a taken a view which was
a possible and cannot be termed as perverse or being
supported by no evidence. The finding of the High Court,
being in consonance with the well settled principles of criminal
jurisprudence, does not call for any interference. More so, the
learned counsel appearing for the State has not brought to our
notice any evidence, documentary or otherwise, which could
persuade us to take a contrary view i.e. other than the view
taken by the High Court.
30. Another aspect of this case which requires
consideration by this Court is that the case of the prosecution
suffers from legal infirmity. In fact, the prosecution has failed
to prove beyond reasonable doubt that the injury inflicted by
the respondent upon the deceased was sufficient in the
ordinary course of nature to cause death. It is the case of the
prosecution that the respondent had hurled a stone which had
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caused injury (lacerated wound on the left side of the forehead)
whereupon the deceased fell on the ground and subsequently
collapsed. The injury is said to be 2’’ x ½” x upto bone,
transversely Lt. side of forehead and another lacerated wound
2” x ½” x ¼” near injury No.1 towards the forehead. These
are the injuries which the deceased is stated to have suffered.
In addition, abrasion of 1 cm x 1 cm on the left eyebrow was
also present. According to the doctor, all these injuries were
ante mortem in nature and the cause of death was shock and
haemorrhage due to head injury.
31. In the statement of PW-20, Dr. C.P. Bhati, it is
nowhere stated that the injuries caused by the respondent
were sufficient in the ordinary course of nature to cause death.
It is also not recorded in the post-mortem report, Ext. 37.
This was a material piece of evidence which the prosecution
was expected to prove in order to bring home the guilt of the
respondent. This is a serious deficiency in the case of the
prosecution. Absence of this material piece of evidence
caused a dent in the case of the prosecution. The High Court
has not taken note of this important aspect of the case.
32. The learned counsel appearing for the respondent
placed reliance upon this evidence and strenuously contended
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that the respondent was entitled to acquittal on this basis
alone. We should not be understood to have stated any
absolute proposition of law, but in the facts and
circumstances of the present case, it was expected of PW-20 to
state before the Court as well as record the same in the post-
mortem report prepared by him i.e. Ext. 37, that the injuries
were sufficient in the ordinary course of nature to cause death
of the deceased.
33. Ex-facie, injuries do not appear to be so vital that
they could have resulted in the death of the deceased, but this
fact was required to be proved by expert evidence. The
counsel for the respondent relied upon a judgment of this
Court in the case of Ram Jattan and Others v. State of U.P.
[(1995) SCC (Cri) 169] where this Court held that it is not
appropriate to interfere with the conclusion that the injuries
are not sufficient to cause death unless they are so patent.
The Court held as under:-
“4. The learned counsel, however, further submitted that in any event the offence committed by the members of unlawful assembly cannot be held to be one of murder and therefore the common object of unlawful assembly was not one which attracts the provision of Section 302 read with Section 149 IPC. We find considerable force in this submission. Though, in general, right from the first report onwards the prosecution case is that all the
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12 accused armed with sharp-edged weapons and lathis surrounded the three persons and inflicted the injuries but from the doctor's report we find that no injury was caused on the vital organs. So far as Patroo is concerned, who got the report written by PW 7 and gave it in the police station, we find 13 injuries but all of them were abrasions and lacerated injuries on the legs and hands. The doctor opined that all the injuries were simple. On Balli, PW 8, the doctor found 12 injuries and they were also on arms and legs. There was only one punctured wound, injury No. 8 and it was not a serious injury and it was also a simple injury. Now, coming to the injuries on the deceased, the doctor who first examined him, when he was alive, found 11 injuries. Out of them, injuries Nos. 1 and 2 were punctured wounds. Injury No. 5 was an incised wound and injury No. 6 was a penetrating wound. All these injuries were on the upper part of the right forearm and outer and lower part of right upper arm. The remaining injuries were abrasions and contusions. The doctor opined that except injuries Nos. 7 and 9 all other injuries were simple. He did not say whether injuries Nos. 7 and 9 were grievous but simply stated that they were to be kept under observation. The deceased, however, died the next day i.e. 9-4-1974 and the post-mortem was conducted on the same day. In the post-mortem examination 11 external injuries were noted but on the internal examination the doctor did not find any injury to the vital organs. He, however, noted that 8th and 9th ribs were fractured. Now, coming to the cause of death, he opined that death was due to shock and haemorrhage. It is not noted that any of the injuries was sufficient to cause death in the ordinary course of nature. It could thus be seen that neither clause 1stly nor clause 3rdly of Section 300 are attracted to the facts of this case. This contention was also put forward before the High Court but the learned Judges rejected this contention observing that the fracture of 8th and 9th ribs must have resulted in causing death and therefore these injuries must be held to be sufficient in the ordinary course of nature to cause death. We are unable to agree with this reasoning. In the
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absence of proof by the prosecution in an objective manner that the injuries caused were sufficient in the ordinary course of nature to cause death, the same cannot be interfered with unless the injuries are so patent. As we have noted above except fracture of ribs there was no other injury to any of the vital organs. As a matter of fact internally the doctor did not notice any damage either to the heart or lungs. Even in respect of these two injuries resulting in fracture of the ribs, there were no corresponding external injuries. Again as already noted all the injuries were on the non-vital parts of the body. The learned counsel for the State, however, submitted that a forceful blow dealt on the arm might have in turn caused the fracture of the two ribs. Even assuming for a moment it to be so, it is difficult to hold that from that circumstance alone the common object of the unlawful assembly of 12 persons to cause the death of the deceased is established.
5. The common object has to be gathered or inferred from the various circumstances like nature of the weapons, the force used and the injuries that are caused. After carefully going through the medical evidence we find that it is difficult to conclude that the common object was to cause the death. The injuries on Patroo, PW 8 as well as on the deceased were more or less of the same nature except that in the case of deceased, there were few punctured wounds which were not serious but only simple. He died due to shock and haemorrhage the next day. In any event there is no indication anywhere in the evidence of the doctor or in the post-mortem certificate that any of the injuries was sufficient in the ordinary course of nature to cause death. No doubt in his deposition the doctor, PW 4 has stated in the general way that these injuries were sufficient to cause death in the ordinary course of nature. We have already held that there was no external injury which resulted in the fracture of the ribs. In such an event clause 3rdly of Section 300 IPC is not attracted. Likewise clause 1stly of Section 300 IPC is also not attracted i.e. intentionally causing death. If their intention was to
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cause death, they would have used the lethal weapons in a different way and would not have merely inflicted simple injuries on the non-vital parts like legs and hands.
6. In the result we set aside the convictions of these eight appellants under Section 302 read with Section 149 IPC and the sentence for imprisonment for life. Instead we convict them under Section 304 Part II read with Section 149 IPC and sentence each of them to undergo rigorous imprisonment for five years. The sentences and convictions imposed on other counts are confirmed. The four other accused who were convicted by the trial court as well as by the High Court are not before us. However, we are of the view that they must also get the same benefit. They are Ram Chander (A-2), Dal Singhar (A-7), Barai (A-8) and Birju (A-11). Accordingly their convictions under Section 302 read with Section 149 IPC for imprisonment for life are set aside and instead they are also convicted under Section 304 Part II read with Section 149 IPC and are sentenced to undergo rigorous imprisonment for five years. The other convictions and sentences imposed on other counts are, however, confirmed.
34. Reliance was also placed upon the judgment of this
Court in the case of State of Rajasthan v. Kalu [(1998) SCC
(Cri.) 898], where in the post mortem examination of the
deceased, the cause of death was noticed as “acute peritonitis”
as a result of abdominal injuries. However, during the cross-
examination, Dr. Prem Narayna admitted that “peritonitis”
could have set in due to surgical complications also. The
Court took the view that the medical evidence, therefore, when
analysed in its correct perspective shows that the evidence
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recorded by the High Court is correct to the effect that
prosecution had not proved that the injuries were sufficient in
the ordinary course of nature to cause death of the lady and
had acquitted the respondent. The Supreme Court declined
to interfere with the finding recorded by the High Court.
35. In the present case also, there is no documentary
or oral evidence to prove the fact that the injuries caused by
the respondent to the deceased were sufficient in the ordinary
course of nature to cause death. This, however, cannot be
stated as an absolute proposition of law and the question
whether the particular injury was sufficient in the ordinary
course of nature to cause death or not is a question of fact
which will have to be determined in light of the facts,
circumstances and evidence produced in a given case. (Ref.
Halsbury’s Laws of India 5(2) Criminal Law-II).
There could be cases where injuries caused upon the body of
the deceased per se can irresistibly lead to the conclusion that
the injuries were sufficient to cause death in the ordinary
course of nature, while there may be other cases where it is
required to be proved by documentary and oral evidence.
Resultantly, it will always depend on the facts of each case.
Thus, in such cases, it may neither be permissible nor possible
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to state any absolute principle of law universally applicable to
all such cases.
36. In view of our discussion above, we find no error in
the judgment under appeal. Thus, we have no hesitation in
dismissing the appeal and the same is hereby dismissed.
…................................J. [Swatanter Kumar]
.…................................J. [Ranjana Prakash Desai]
New Delhi December 1, 2011