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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.444 OF 2008

VIJAY SINGH & ANR.            …APPELLANTS  

VERSUS

STATE OF MADHYA PRADESH     …RESPONDENT

J U D G M E N T  

 CHANDRAMAULI KR. PRASAD,J.

In  the  present  appeal  by  way  of  special  

leave,  we  are  concerned  with  appellants  Vijay  

Singh and Hari Singh.

According to the prosecution, on 16th of June,  

1992 at about 6.30 A.M., a report was lodged by  

the informant, Pohap Singh (PW-1), alleging that  

while he was at his house, his father Bhagirath  

(deceased) was returning home after answering the  

nature’s call and at that time, 11 accused persons  

including appellant no. 2 Hari Singh armed with  

farsa and appellant no. 1 Vijay Singh armed with a

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ballam  and  other  accused  armed  with  axes  

surrounded him.  Seeing this, according to the  

informant, his mother Prema Bai (PW-2), his wife  

Sheela (PW-3) and grandfather Jagannath  (PW-6)  

went  to  rescue  him,  whereupon  informant  Pohap  

Singh  was  assaulted  by  lathi  by  one  of  the  

accused.  Meanwhile, appellant no. 2, Hari Singh  

inflicted an injury on the neck of the deceased  

with farsa upon which he fell down.  Thereafter,  

all the accused assaulted the deceased with the  

weapons with which they were armed.  It is the  

case  of  the  prosecution  that  appellant  no.  1,  

Vijay Singh caused an injury with a ballam near  

the eye of the deceased and he died on the spot.

On the basis of the report given by Pohap  

Singh, a case under Section 147, 148 and 302/149  

of Indian Penal Code, 1860 (hereinafter referred  

to as “the IPC”) was registered.  Police after  

usual  investigation  submitted  the  charge-sheet  

against all 11 accused persons and ultimately they  

were committed to the Court of Sessions to face  

the trial.  The Sessions Judge acquitted 9 of the  

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11 accused and convicted the appellants herein for  

commission of offence under Section 302 of the IPC  

and sentenced them to imprisonment for life. The  

learned  Judge  found  the  allegations  as  to  the  

infliction of injuries, on the head and neck of  

the deceased by specific weapon such as ballam by  

appellant  no.1  and  farsa  by  appellant  no.2  

respectively,  to  have  been  corroborated  by  the  

medical evidence.  Hence, the two appellants were  

convicted and sentenced as above.

On  appeal,  the  High  Court  confirmed  their  

conviction  and  sentence  and  while  doing  so,  

observed as follows:

“5………Dr. Kapil Dev Singh, who has  performed  the  postmortem  of  the  deceased on 16.6.1992 and found as  many as six injuries on the body of  the deceased, out of which injury  No.1  is  caused  by  some  pointed  object  near  the  face  of  the  deceased.   Thus,  the  injury  attributed  to  Vijay  Singh  is  corroborated.  The other injury was  incised wound on the body of the  deceased.   All  the  injuries  were  caused by sharp and edged weapons.  As per opinion of Doctor injury No.  1 was sufficient to cause death of  the deceased…………

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6. After perusal of the statements  of  PW-1,  PW-2  and  PW-3,  we  find  that  the  Sessions  Court  rightly  convicted  the  present  appellants.  So  far  as  the  other  accused  are  concerned  the  Doctor  has  specifically stated that except the  injury No.1 which is attributed to  Vijay  Singh,  all  other  injuries  were  caused  by  the  same  weapon.  Thus,  the  other  injuries  are  attributed to Hari Singh.  Moreso,  the  witness  could  not  point  out  which of the injuries were caused  by other accused, hence, acquitted  the other accused.  But so far as  the  present  appellants  are  concerned,  there  are  specific  allegation against them for causing  injuries to the deceased.

“Underling ours”

Aggrieved  by  the  same,  the  appellants  are  

before us.

At the outset, while assailing the conviction  

of  the  appellants,  Mr.  Rajesh  learned  counsel  

appearing  for  the  appellants,  submits  that  the  

High Court erred in holding that excepting injury  

no. 1, all other injuries are attributable to Hari  

Singh.  He draws our attention to the evidence of  

PW-2 Prema Bai and PW-3 Sheela, who claim to be  

the  eye-witnesses  to  the  occurrence  and  have  

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clearly  stated  in  their  evidence  that  the  

appellant Hari Singh gave farsa blow on the neck  

of the deceased and other accused persons (since  

acquitted) have also assaulted the deceased with  

farsa.   

We have gone through the evidence of the eye-

witnesses and from their testimony it is evident  

that appellant Vijay Singh had caused one injury  

to the deceased by ballam whereas appellant Hari  

Singh  caused  one  injury  on  the  neck  by  farsa.  

They have also testified that other accused had  

also given farsa blows to the deceased.  In the  

face  of  it,  the  High  Court  clearly  erred  in  

holding that excepting injury no. 1, all other  

injuries were caused by the appellant Hari Singh.

Mr. Rajesh, then submits that the appellants  

can be held guilty under Section 302 of the IPC  

only when it is proved that the injuries inflicted  

by them have resulted into death.  He refers to  

the  evidence  of  PW-7  Dr.  Kapil  Dev  Singh  and  

submits that according to his opinion, the death  

occurred because of excessive bleeding and shock  

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on account of all the injuries found on the person  

of the deceased.  He points out that this doctor  

had found 5 injuries on the person of the deceased  

and all those injuries cannot be attributed to the  

present appellants.  Mr. Rajesh further points out  

that even if it is assumed that appellant Vijay  

Singh had assaulted the deceased with ballam on  

the face and appellant Hari Singh by farsa on the  

neck, they cannot be held guilty under Section 302  

of the IPC as those injuries only did not cause  

death.   

Mr.  C.D.  Singh,  learned  counsel  for  the  

State, on the other hand, submits that since the  

doctor in evidence has stated that injury no. 1  

was  sufficient  to  have  caused  death,  the  High  

court rightly convicted the appellants.  In any  

view of the matter, according to Mr. Singh, the  

deceased died of various injuries caused to him  

during  the  occurrence,  and  therefore,  the  

appellants can well be convicted under Section 302  

with the aid of Section 34 of the IPC.

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True  it  is  that  the  High  Court,  while  

upholding the conviction of the appellants, has  

observed that “as per the opinion of the doctor,  

injury no. 1 was sufficient to cause death of the  

deceased”.  We have gone through the evidence of  

PW-7 Dr. Kapil Dev Singh.  PW-7 in his evidence  

stated that during the post-mortem examination, he  

found the following injuries on the person of the  

deceased:

“1.Depressed  fracture  with  contusion  with  open  wound  cutting  front parietal bone 4” x 1½” x bone  deep on right side.

2. Incised wound on cheek cutting  auxiliary bone 5”x 1/2” x bone deep  right side.

3. Incised wound of the size 4” x  ½”  x  muscle  deep  and  cutting  breathing  pipe  and  major  blood  arteries on right side.

4. Incised wound on superior collar  bone  right  side,  5”  x  ½”  cutting  breathing pipe.

5. Incised wound right side on the  face cutting right jaw bone size 3”  x ½” x bone deep.”   

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As regards the cause of death, he has stated  

as follows:

“In  my  opinion,  all  the  injuries  were  caused  by  sharp  and  blunt  weapon.   In  my  opinion  cause  of  death  is  excessive  bleeding  and  shock….”

Thus,  the  doctor  has  altogether  found  5  

injuries on the person of the deceased and the  

death had occurred due to excessive bleeding and  

shock on account thereof.  Therefore, it cannot be  

said that only injury no.1 was the cause of the  

death.  Hence, we are constrained to observe that  

the High Court committed serious error by holding  

that injury no. 1 was sufficient to cause death of  

the deceased.

Nonetheless  from  the  evidence  of  the  

prosecution witnesses what is proved beyond doubt  

is that appellant Vijay Singh caused injury on the  

face of the deceased by ballam and appellant Hari  

Singh on neck by farsa.  In this backdrop, we  

proceed to consider the nature of offence. It is  

relevant  here  to  mention  that  no  charge  under  

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Section  34  IPC  has  been  framed  against  the  

appellants.  Even if we assume in favour of the  

State,  as  contended  by  Mr.  Singh,  that  it  is  

possible  to  hold  the  appellants  guilty  under  

Section 302 read with Section 34 of the IPC in the  

absence of charge, in our opinion, for that the  

prosecution  will  have  to  prove  that  injuries  

attributable to the appellants or any of them were  

the  cause  of  death.   As  observed  earlier,  the  

appellants had caused one injury each, whereas the  

deceased had sustained five injuries.  According  

to the doctor, death had occurred on account of  

shock and excessive bleeding due to the injuries  

caused on the person of the deceased.  Therefore,  

the death had not taken place as a result of the  

injuries caused by the appellants or any one of  

them.  Hence, they cannot be held guilty under  

Section 302 IPC simplicitor or with the aid of  

Section 34 IPC.

However,  the  prosecution  has  been  able  to  

prove  that  the  appellants  have  assaulted  the  

deceased  with  ballam  and  farsa,  which  are  

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dangerous weapons.  Further, the appellants had  

caused  grievous  injuries  on  the  person  of  the  

deceased.   Hence,  they  may  not  be  held  guilty  

under Section 302 or 302 read with Section 34 IPC,  

but surely their acts come within the mischief of  

Section  326  IPC.    Accordingly,  we  modify  the  

appellants’ conviction and hold them guilty under  

Section  326  IPC  and  sentence  them  to  undergo  

rigorous imprisonment for 10 years each and fine  

of  Rs.5,000/-  each,  in  default  to  suffer  

imprisonment for six months.  We have been told  

that both the appellants have already remained in  

custody  for  more  than  the  period  of  their  

sentence.   If  that  be  so,  they  be  released  

forthwith unless required in any other case.

In the result, the appeal is partly allowed,  

the  conviction  and  sentence  of  the  appellants  

under Section 302 IPC is set aside, instead they  

are convicted under Section 326 IPC and sentenced  

to  the  period  as  above  with  the  direction  

aforesaid.

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………………………………………………………………J  (CHANDRAMAULI KR. PRASAD)

    ………………………………………………………………J                     (JAGDISH SINGH KHEHAR)

NEW DELHI, MARCH 25, 2014.  

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