REPORTABLE

   IN THE SUPREME COURT OF INDIA

  CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NO. 923 of 2011   [Arising out of S.L.P. (Crl.) No.8847of 2009]

Veeran & Ors.                 …....……    Appellants

Versus

State of M.P.        ….……...   Respondent

J U D G M E N T

Deepak Verma, J.

1. Leave granted.

2. The perennial question whether accused deserve to be convicted under Section  

302 of the Indian Penal Code (hereinafter shall be referred as 'I.P.C.') as held by  

the trial court and upheld by the High Court or whether the conviction  should be  

converted  under  Section  304  of  the  I.P.C,  has  once  again  cropped  up  for  

consideration before us,  in this Appeal.  

3. In the instant case, eight accused were charged and prosecuted for commission of  

offences under Section 147, 148, 302 or 302/149 and 325 of the IPC. After trial,  

giving benefit of doubt, Suresh and Badelal – accused nos.6 & 7 respectively, were  

acquitted by Additional Sessions Judge, Gadarwara, Narsingpur in Sessions Case  

No. 21/93 vide its Judgment and Order dated 21.4.1994.  Six convicted

Crl.A @ S.L.P.(Crl.)No.8847 of 2009 …. (contd.)

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accused preferred Criminal Appeal No. 472 of 1994 in the High Court of Madhya  

Pradesh at Jabalpur. During the pendency of the appeal, Accused No. 3 - Rewaram  

and Accused No. 4 - Lakhan Lal died. Thus, appeal in respect of these two accused  

stood abated.    However,  as  regards  the remaining four  accused,  the High Court  

upheld the conviction and sentence awarded by the Trial Court.   Now, in this appeal,  

it is prayed before us to consider,  in the peculiar facts and circumstances of this case,  

whether, the four surviving convicted Appellants Veeran, Onkar, Ganesh and Ashok  

deserve to be convicted under Section 302/149, 147 and 148 of the IPC, who have  

been awarded life imprisonment and one year each respectively for the commission of  

the aforesaid offences or it deserves to be converted under Section 304 of the IPC.  

4. Prosecution story in nutshell is as under :

It is said, PW-6 Mayabai, real sister of deceased Daddu had become pregnant  

on  account  of  accused  Onkar  and  Ganesh.  Panchayat  was  called  to  resolve  the  

dispute.  Panchayat  passed a resolution to outcaste deceased Daddu, PW-6  Mayabai  

and their family members.  On account of this,   they were in  inimical  terms. On  

4.11.1992,  Radhelal,  uncle  of  deceased  Daddu,  was  not  in  his  house.  Deceased  

Daddu,  and Narmada @ Narbadi  were  required to sleep at  Radhelal's  house  and  

hence  were  proceeding  towards  his  house  at  about  8:00  p.m  for  this  purpose.  

Narmada @ Narbadi was brother-in-law of deceased Daddu. When they reached the  

house  of  Radhelal,  wives  of  accused Veeran,  Onkar  and Rewaram started abusing

Crl.A @ S.L.P.(Crl.)No.8847 of 2009 …. (contd.)

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them saying that these persons had lost their reputation because of the misconduct  

committed  by  PW-6  -  Mayabai,  sister  of  deceased  Daddu,  after  which  Daddu  

(deceased) asked the ladies not to abuse them. At that time accused Veeran, Onkar  

and Rewaram came out from their house but went back to their respective houses.  

However, before leaving they challenged deceased Daddu, to come out of the house.  

Daddu came out of his house and at that point of time,  accused Lakhan, Ashok and  

Ganesh also came to the spot armed with Gandasa, Farsa  and Lathis. etc.      All of  

them told Daddu that he was crossing all limits and he should behave in proper and  

orderly manner. After some altercation, they started beating Daddu (deceased) with  

the weapons they were carrying.  

5. It is said that Veeran caused injuries on the head of Daddu. On account of injuries  

sustained  by  Daddu,  he  fell  down.  Even  though,  Narmada  @ Narbadi  raised  

protest but they did not stop.  Mayabai - PW6, Rambai and Trivenibai – PW7  

(sisters of deceased Daddu), Shiv Prasad and Kailash – PW9, (cousin of deceased)  

of the same village came to intervene but the accused persons  did not stop. After  

inflicting  injuries  on  Daddu,  thinking  him  to  be  dead,  accused  left  the  spot.  

Narmada @ Narbadi and Mayabai  also sustained injuries as they were trying to  

intervene. Daddu was then taken in   a bullock cart to Police Station, Gotetoriya,  

Narsinghpur by Mayabai and others. FIR was lodged by Mayabai on 4.11.92 at

23.30 Hrs. naming all the  eight accused  in the same and giving details of the  

injuries caused by each one of  

Crl.A @ S.L.P.(Crl.)No.8847 of 2009 …. (contd.)

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them, with the weapons they were carrying. Thereafter,  Daddu was taken to Civil  

Hospital, Gadarwara but before any medical help could be provided to him,  he was  

declared ‘brought dead’  by the Doctors attending on him.

6. After completion of investigation, the accused were prosecuted for commission of  

the aforesaid  offences  by the Trial  Court.  As mentioned hereinabove,  accused  

Suresh and Badelal were acquitted, whereas Rewaram and Lakhan expired during  

the pendency of the appeal before the High Court. Thus, now only four accused  

are before us.  In Criminal Appeal, High Court confirmed the judgment and order  

of  conviction  against  all  the  four  Appellants  and  found  them  guilty  for  

commission of offences under Section 302/149,  147 and 148 of the IPC. Hence,  

this appeal.

7. We have, accordingly, heard Shri R.P.Gupta, learned Senior Counsel assisted by  

Shri  Parmanand  Gaur,  for  the  Appellants,  Smt.  Vibha  Datta  Makhija  for  

Respondent-state and perused the record.   

8. At the outset, learned counsel for the Appellants contended that looking to the  

nature of the injuries sustained by deceased, both the courts below, committed  

grave error in finding the Appellants  guilty  for  commission of offences  under  

Section 302/149, 147 and 148 of the IPC. It was further submitted that Appellant

No. 1 - Veeran, the so called main accused has already undergone a sentence of  

more than 15 years, whereas others  are  in  jail for  over 2 ½ years.  It has also  

been submitted that  

Crl.A @ S.L.P.(Crl.)No.8847 of 2009 …. (contd.)

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some  of  the  accused  had  also  sustained  injuries,  which  have  not  been  explained  

properly by the prosecution. The incident had occurred at the spur of the moment  

and there was neither common object nor common intention in the mind of accused  

to  commit  murder  of  deceased  Daddu.   According  to  them,  thus,  the  offence  

deserves to be converted under Section 304 of the IPC as far as Veeran is concerned,  

more so when he has already undergone more than 15 years in Jail and others deserve  

to be convicted for lesser offences as no specific  overt act could be attributed to  

them.   

9. On the other hand, Smt. Vibha Datta Makhija, learned Counsel for Respondent  

State, vehemently opposed and contended that looking to the nature of injuries  

inflicted on vital parts of the body of the deceased, with deadly weapons, no scope  

of doubt remains that they had common intention to kill the deceased.  In any  

event, the accused were aware of the fact that the nature of injuries caused by  

them would be sufficient  in ordinary  course  of nature  to  cause  death.  It  was,  

therefore, contended that no case for showing any leniency was made out and the  

concurrent findings of the two courts below need not be disturbed. Consequently,  

this Appeal deserves to be dismissed.

10. Post  Mortem  Report  shows  that  deceased  Daddu  had  sustained  in  all,  eight  

injuries,  out  of  the  which  four  were  incised  wounds  and  others  were  either  

contusion  or  abrasion.  As  per  this  report,  deceased  had  died  of  shock  and  

Haemorrhage.  Injury  

Crl.A @ S.L.P.(Crl.)No.8847 of 2009 …. (contd.)

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No. 8 was sufficient to cause death. This Post Mortem Report has been duly  proved  

by  autopsy  surgeon.  It  has  neither  been  disputed  nor  challenged  before  us  that  

deceased Daddu had met with homicidal death. Now, the question that arises for  

consideration in this Appeal is whether, in the facts and circumstances of the case,  

conviction of the Appellants under Section 302/149 of the IPC can still be upheld or  

it deserves to be converted under Section 304 of the IPC.

11. Perusal of the record shows that in the same incident some of the accused i.e.  

Suresh, Badelal, Rewaram and Ganesh had also sustained injuries on their persons,  

which were caused by the complainant party. These injuries have been proved by  

D.W.4 - Dr. O.P. Nayak & D.W. 5 - Dr. Patel, vide their injury reports. It is also  

clear from the record that accused did not try to cause any pre-determined injuries  

on the person of deceased, which could have proved fatal. There does not appear  

to be any premeditation on the part of accused to commit the crime. It occurred  

all of a sudden and at the spur of the moment.  There is nothing to suggest  that  

the accused were already aware that  the  deceased and his brother-in-law were to  

come at the spot where the crime was committed.

12. Evidence of all the three main eye witnesses, PW-6 Mayabai, PW-7 Trivenibai and  

PW-12 Narmada @ Narbadi is consistent that Veeran had hit the deceased with  

Gandasa and the blow inflicted by him had proved to be fatal. As regards other  

accused, there appears  to be omnibus statement that they all had hit the deceased  

but  

Crl.A @ S.L.P.(Crl.)No.8847 of 2009 …. (contd.)

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details of the same have not been given specifically.   No specific overt acts have been  

attributed to the other remaining 3 accused except omnibus statement as mentioned  

hereinabove.

13. PW-6 Mayabai, has deposed that on reaching the spot, she had seen eight persons,  

namely,  Veeran,  Rewaram,  Ganesh,  Lakhan,  Onkar,  Ashok,  Badelal,  Suresh,  

beating her brother Daddu. Veeran was having Gandasa, Rewaram, Onkar and  

Ashok were armed with Farsas, while Ganesh and Lakhan had Lathis.  Similar is  

the  statement  of  PW-7  Trivenibai,  who  has  deposed  that  Mayabai,  Rambai,  

Kailash had reached the spot where Veeran, Ganesh, Rewaram, Lakhan, Ashok,  

Suresh  and  Badelal  were  beating  her  brother  Daddu.    Veeran  was  having  

Gandasa, Ashok - Farsa, Onkar – Rewaram - Farsa, Badelal - Ganesh and Suresh  

had  Lathis. PW-12 Narmada @ Narbadi was in fact with Daddu, when they were  

going to the house of Radhelal to sleep at night. According to him, Veeran was  

having  Gandasa  and he  had  hit  with  it  on  the  head  of  Daddu.  His  evidence  

appears  to  be  convincing  and natural  as  he  was  accompanying   the  deceased

Daddu, when the incident had taken place. Recovery of Gandasa was made from  

the possession of Veeran. Thus, from the analysis of the aforesaid evidence, it is  

clear  that  it  was  Veeran,  who  had  caused  the  fatal   blow  on  the  person  of  

deceased.

14. A close look at  the evidence of  the said main witness  makes it  clear  that  the  

accused were not already armed with lethal weapons to cause the death of Daddu.  

As  

Crl.A @ S.L.P.(Crl.)No.8847 of 2009 …. (contd.)

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per his own admission, when they reached in front of the house of Radhelal, wives of  

accused started abusing them, meaning thereby, at that time none of the accused were  

there.   The contention of  the learned counsel  for  the State  that  the accused had  

common intention to cause  death of Daddu thus stands repelled.

15. Looking to the facts and feature of the case and also keeping in mind that it was  

Accused No. 1 - Veeran who had caused a fatal injury to  deceased Daddu and  

other injuries were not grievous, it would be in the fitness of things to convert the  

conviction of the Appellant No. 1 under Section 304 Part I of IPC and to award  

him sentence already undergone, which is about 15 years.

16. To understand the legal complexities of the matter,  we would consider the import  

of Sec 299 and 300 of IPC,  reproduced hereinbelow:

Section 299 of IPC reads as follows:

“299. Culpable homicide.-  Whoever causes death by doing an act with the  intention of causing death, or with the intention of causing such bodily

injury as is likely to cause death, or with the knowledge that he is likely by  such act to cause death, commits the offence of culpable homicide.”

In the instant case,  there has been death of  Daddu caused on account of  

injuries by aforementioned accused. The two courts below have convicted accused for  

the offence of murder under Section 302 of IPC. In plethora of cases, this Court has  

held that under the scheme of IPC, “culpable homicide” is the genus and “murder”  

its species wherein all “murder”  is “culpable homicide” but all “culpable homicide” is  

not “murder”.

Crl.A @ S.L.P.(Crl.)No.8847 of 2009 …. (contd.)

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Exception 1  to 5  to  Section 300 of  IPC indicate  the  circumstances  where  

“culpable homicide” is not “murder”.  Exception 1  and 4 which are relevant for the  

present appeal read as follows :

“Section 300. Murder : …. …. ….  

Exception  1.-When  culpable  homicide  is  not  murder.-  Culpable  homicide is not murder if the offender, whilst deprived of the power of  self-control  by  grave  and  sudden  provocation,  causes  the  death  of  the  person who gave the provocation or causes the death of any other person  by mistake or accident.

Exception 2. - …. …. …. Exception 3. - …. …. ….

Exception 4. - Culpable homicide is not murder if it is committed without  premeditation  in  a  sudden  fight  in  the  heat  of  passion  upon a  sudden  quarrel and without the offender having taken undue advantage or acted in  a cruel or unusual manner.

Exception 5. - …. …. ….”

17. In the instant case, it can be inferred that :

(i) The fight between both the parties was not premeditated as the incident  

took place due to heated arguments and altercations between them and  

could be termed as a result of  sudden and grave provocation.

(ii) There was no intention to cause death of the deceased.

Crl.A @ S.L.P.(Crl.)No.8847 of 2009 …. (contd.)

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(iii)They had no common intention to cause death of the deceased as only  

Veeran had hit Daddu (Deceased) with Gandasa on head, without there  

being any premeditation amongst themselves.

(iv)They were not aware that the injuries caused by them were sufficient in  

ordinary course of nature to cause death.

18. Also, fine distinction between Section 299 and Section 300 of IPC has been  

eloquently and beautifully carved out by  Hon'ble Dr. Justice Arijit Pasayat in a recent  

judgment, after considering all the previous judgments of this Court. We may quote  

profitably the following paras of the judgment reported in (2005) 9 SCC 650 titled  

Thangaiya Vs. State of T.N. :

“17. These  observations  of  Vivian  Bose,  J.  have  become  locus  classicus. The test laid down by Virsa Singh v. State of Punjab AIR  1959 SC 465:1958 SCR 1495 for the applicability of clause “thirdly” is  now ingrained in our legal system and has become part of the rule of  law. Under clause “thirdly” of Section 300 IPC, culpable homicide is

murder, if both the following conditions are satisfied: i.e. (a) that the  act which causes death is done with the intention of causing death or is  done with the intention of causing a bodily  injury;  and (b)  that  the  injury intended to be inflicted is sufficient in the ordinary course of  nature to cause death. It must be proved that there was an intention to  inflict  that  particular  bodily  injury  which,  in  the  ordinary  course  of  nature, was sufficient to cause death viz. that the injury found to be  present was the injury that was intended to be inflicted.

18. Thus, according to the rule laid down in Virsa Singh case even if the  intention of the accused was limited to the infliction of a bodily  injury sufficient to cause death in the ordinary course of nature, and  did   not  extend  to the  intention of  causing  death,  the offence  would be  

Crl.A @ S.L.P.(Crl.)No.8847 of 2009 …. (contd.)

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murder. Illustration (c) appended to Section 300 clearly brings out this  point.

19. Clause (c) of Section 299 and clause (4) of Section 300 both require  knowledge  of  the probability  of  the act  causing  death.  It  is  not  necessary  for  the  purpose  of  this  case  to  dilate  much  on  the  distinction between  these   corresponding   clauses.   It   will  be  sufficient to say that clause (4) of Section 300 would be applicable  where the knowledge of the offender as to the probability of death  of a person or persons in general as distinguished from a particular  person or persons — being caused from his imminently dangerous  act, approximates to a practical certainty. Such knowledge on the  part of the offender must be of the highest degree of probability,  the act having been committed by the offender without any excuse  for incurring the risk of causing death or such injury as aforesaid.

20. The above are only broad guidelines and not cast-iron imperatives.  In most cases, their observance will facilitate the task of the court.  But sometimes the facts are so intertwined and the second and the  third  stages  so  telescoped  into  each  other  that  it  may  not  be  convenient to give a separate treatment to the matters involved in  the second and third stages”.

19. From the evidence of  doctors  examined by prosecution,  it  is  clear  that  PW-6  

Mayabai, PW-7 Trivenibai, and PW-12  Narmada @ Narbadi had also sustained  

injuries, which were caused by other accused. Thus, Appellant No. 1 Veeran is  

held guilty for commission of offences under Section 304 Part I/149 of the IPC  

and others are held guilty under Section 323/149 of the IPC together with Section  

147, 148 of the IPC. All of them are awarded the sentences already undergone by  

them i.e. Veeran about 15 years and others more than 2 ½ years.

Crl.A @ S.L.P.(Crl.)No.8847 of 2009 …. (contd.)

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20. From the upshot of the aforesaid discussions, it appears that the death caused  

by the accused was not premeditated, accused had no common intention to cause  

death of  deceased, the injuries  were not sufficient in the ordinary course of nature to  

have caused his death,  hence the instant case falls under the Exceptions 1 and 4 to  

Section 300 of IPC.

21. In the light of the foregoing discussion, appeal is allowed in part. Appellant No. 1,  

Veeran is held guilty for commission of offences under Section 304 Part I /149  

and  under  Section  147,  148  of  the  IPC  and  awarded  the  sentence  already  

undergone  whereas  others  are  held  guilty  for  commission  of  offences  under  

Section 323/149,  147 & 148 of  the I.P.C.  and awarded the sentences  already  

undergone.  The Appellants  be thus,  released  forthwith,  if  not  required in any  

other case.

 ……………………………J.     [Dalveer Bhandari]

 ……………………………J. [Deepak Verma]

New Delhi April 13, 2011.