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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     2003     OF     2008   

Atmaram & Ors. … Appellants

Versus

State of Madhya Pradesh … Respondent

J     U     D     G     M     E     N     T   

Swatanter     Kumar,     J  .

1. This appeal is directed against the judgment of the High  

Court of Madhya Pradesh, Bench at Indore dated 23rd January,  

2008.  We may notice the necessary facts giving rise to the  

present appeal.   According to the prosecution, Udayram, PW-1  

along with his younger brother namely Gokul (the deceased) and  

sister Rajubai, PW-2 had gone to the village Lod for pilgrimage.  

After they reached the said village, they came to know that the  

Pujari who was to perform the puja was not available.  

Resultantly, all the said three persons decided to return back to  

their village Dhuvakhedi, Tehsil Tarana, District Ujjain.

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2. At about 4-4.30 p.m., when they reached near the said  

village, all of a sudden the accused persons namely Atmaram,  

Gokul, Vikram, Ramchandran and Umrao emerged from the  

fields having soyabean crop.   They shouted that the deceased  

and his relatives had set their soyabean crop afire and therefore,  

they should be taught a lesson.    The accused Ramachandra  

was armed with farsi, Gokul was carrying dharia and other three  

accused were having lathis.   All these accused persons started  

assaulting Udayram (PW1) causing injury on his head, left hand  

and legs.   Gokul (the deceased) and PW2 tried to intervene and  

protect Udayram.   In this process, both these witnesses  

sustained a number of injuries caused by the accused with the  

help of the same weapons.   The other witnesses present at the  

site, Gajrajsingh, Sardarsingh and Gokul did not interfere in the  

assault because of fear and silently slipped away.    

3. Another witness, Pannalal, PW8, was working in the fields  

nearby.   Upon being called by Rajubai, PW2, Pannalal came to  

the place of occurrence and seeing the deceased and witnesses in  

injured condition, Pannalal and one Prem brought the bullock  

cart of one Kanhaiya Balai.   Thereafter, one Umrao Bai also  

joined them.   They finally found a jeep on the road in which  

Pannalal, Prem and Umrao Bai took the injured persons to the  

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Tarana Hospital where they were admitted.    From the hospital,  

information was sent to the Police Station, Makdon on which  

basis, the Head Constable Chedilal Yadav, PW23, reached  

Tarana Hospital.   On the basis of the statement of Udayram,  

PW1, Dehati Nalishi (Ex.P1) was recorded at about 6.20 p.m. on  

6th November, 1993.

4. A case under Section 307 read with Sections 147, 148 and  

149 of the Indian Penal Code, 1860 (for short ‘IPC’) was  

registered.   All the three injured persons were subjected to  

medical examination by Dr. Anil Kumar Dubey, PW4, who issued  

their MLC reports, Ex.P2-A to P.4-A.   Udayram and Rajubai were  

treated by the doctors.   At about 7 p.m., the statement of Gokul  

was also recorded in the presence of the witnesses.   Keeping in  

view the serious condition of Gokul, he was required to be  

transferred from Tarana Hospital to Civil Hospital, Ujjain for  

treatment.    However, he died on the way at about 11.30 p.m.  

on 6th November, 1993 and his dead body was kept in the Civil  

Hospital, Ujjain.  Information was sent to the Police Station,  

Makdon, whereafter an offence of Section 302 read with Section  

149 IPC was added to the charges.

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5. Inquest proceedings were completed.   The dead body of the  

deceased was subjected to post mortem and post mortem report  

Ext. P30 was prepared by Dr. Ajay Nigam (PW14).    

6. After registration of the offence, the investigating officer,  

PW26, Sohan Pal Singh Choudhary visited the spot of occurrence  

on 7th November, 1993, from where the blood stained earth, cycle  

and sandal of the deceased were seized and the spot map was  

prepared. On 8th November, 1993, all the accused persons were  

arrested.  Upon their interrogation and in furtherance to their  

statements, the arms involved in the commission of crime were  

recovered and seized.   These seized weapons were sent to  

forensic science laboratory for examination on 3rd December,  

1993.   The examination report was received on 8th December,  

1993 and in terms of the Report, no blood stain was found, either  

in the soil or in the sealed farsi.   The Investigating Officer  

submitted the charge sheet to the Court of competent  

jurisdiction.  Upon committal, the accused were tried by the  

Court of Sessions.    

7. The learned Trial Court vide its detailed judgment dated  

13th April, 1999 held that the prosecution had succeeded in  

proving the charges, while finding all the accused guilty of the  

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offences with which they were charged.  It sentenced them as  

follows:-

“46.  On the point of punishment, on behalf  of accused evidence were not produced on  conviction.   The counsel for accused  produced oral argument and prayed for  least punishment to accused whereas  Assistant Public Prosecutor have prayed for  harder conviction.

47.    In any opinion from the case, it is  clear that this is the first offence of accused.  Looking into the circumstances under  which crime is committed and nature of  crime, it does not seem proper to convict  with life imprisonment under Section 302  I.P.C. and it seems proper to convict  accused for life imprisonment and fine.  Therefore, all the five accused shall be  convicted under Section 148 I.P.C. with  rigorous imprisonment of two years.  Accused Ramchandra No. 4 is held guilty  under Section 307 I.P.C. and Section  307/149 I.P.C. for both the offences  prescribed punished is same, therefore, it is  proper to convict accused Ramchandra only  under Section 307/149 I.P.C. and accused  Atmaram No. 1 for charges under Section  307 I.P.C. and accused Gokul No. 2, Vikram  No. 3, Ramchandra No. 4, Umrao No. 5 for  Section 307 read with 149 I.P.C. shall be  convicted respectively with rigorous  imprisonment for 5 year each and fine of  Rs. 500/- (Rs. five hundred ) each.   In  default of payment of fine accused shall be  imprisoned for another term of 2 month  each.

48.   Similarly, accused Gokul No. 2  charged under Section 302 I.P.C. and  Section 302/149 I.P.C. and accused Vikram  No. 3 was held guilty under Section 302 or  

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Section 302 read with Section 149 I.P.C.,  whereas punishment prescribed for both  the offences is same, both the accused are  held guilty under Section 307/149 I.P.C.  and accused Atmaram No. 1 is found guilty  for charges under Section 302, I.P.C. and  accused No. 2, Gokul, No. 3 Vikram, No. 4  Ramchandra, No. 5 Umrao are found guilty  under Section 302 read with Section 149  I.P.C. and convicted accordingly, and all the  accused for such charges are convicted with  life imprisonment and in addition all the  accused are also punished with fine of Rs.  2000 (Two Thousand Rupees) each.   In  default of payment of fine all the accused  shall be imprisoned for another term of 4  month each.   Similarly, accused No. 5,  Umrao, is charged under Section 323 I.P.C.  and accused Atmaram No. 1 Gokul No. 2,  Vikram No. 3, and Ramchandra No. 4 are  found guilty under Section 323 read with  Section 149 I.P.C. and all the accused are  convicted with 6 month rigorous  imprisonment and fine of Rs. 200 each (Two  Hundred Rupees).   In default of payment of  fine all the accused shall be imprisoned for  another term of 1 month rigorous  imprisonment each.    All the punishment  shall run concurrently.

49. During prosecution, accused No. 1  Atmaram from 8.11.93 to 3.3.94, accused  No. 2 Gokul from 8.11.93 to 24.6.94,  accused No. 3 Vikram from 8.11.93 to  3.3.94 and accused No. 4 Ramchandra from  11.1.93 to 6.1.94 and accused No. 5 Umrao  from 11.11.93 to 6.1.94, were in judicial  custody.   Such duration shall be adjusted  towards punishment.

50. On payment of fine from accused and  after the expiration of the period of  limitation Rs. 8000/- from the amount of  fine shall be paid to widowed mother of  Gokul, Umraobai w/o Lalji r/o village  

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Dhaukhedi, Thana Makdone, as  compensation and from the said fine Rs.  5000 (Five Thousand Rupees) shall be paid  to applicant Udairam s/o Lalji r/o Village  Dhaukhedi, Thana Makdone.

51.   After the expiration of period of appeal,  blood mixed soil, simple soil, Sandel, cloths  of Gokul, cloths of Udairam, and Farsi,  Dharia, Lathi, seized from accused shall be  discarded being available.”    

8. The Trial Court also punished them on other counts.    

9. Being aggrieved from the judgment of conviction and order  

of sentence passed by the Trial Court, the accused preferred an  

appeal before the High Court, which by its judgment dated 23rd  

January, 2008, confirmed the judgment of the Trial Court and  

also did not interfere with the order of sentence.

10. Feeling aggrieved therefrom, all the five accused have  

preferred the present appeal before this Court.

11. While raising a challenge to the impugned judgment, the  

learned counsel appearing for the appellants argued that there  

are serious contradictions between the statements of PW1 and  

PW2.  These two witnesses being the eye-witnesses, such serious  

contradictions in their statements make the conviction of the  

appellants unsustainable on that basis.  To substantiate his  

plea, the learned counsel for the appellants has relied upon the  

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paragraph 2 of the deposition of PW2, Rajubai and paragraph 3  

of the statement of PW1, Udayram.  In order to properly  

appreciate the merit or otherwise of this contention, it would be  

appropriate to refer to the relevant paragraphs of deposition of  

these two witnesses.  They, respectively, read as under :

“2. Ramchandra hit Udairam with Farsi  which hit on his head and both hands.  My  brother Gokul was hit by accused Gokul  with Dhariya due to which he got injuries on  his head, both hands, above the eye and on  the waist.  Umrao hit me with two ladhi  blows which hit me on my hand and foot.  The accused hit a lot.

XXX XXX XXX

3. Accused Ramchand had hit farsi on my  head, Atmaram had hit lathi which hit me  near the joint of my left hand thumb.  Accused Gokul hit my brother Gokul on the  head with Dharia.  Ramchand had hit after  me, my brother Gokul with farsi on his head.  The other accused started hitting my brother  with lathi due to which my brother fell down  and I was also attached with lathi.  My sister  Rajubai was also hit with lathi by accused  Umrao.  She had received injury on her hand  and Rajubai also received injury on her foot.”

12. From a bare reading of the statements of these witnesses, it  

is clear that according to PW1, not only Gokul, the accused, had  

caused injury on the head of the deceased by farsi but accused  

persons had also caused injuries to him with lathis etc.  However,  

according to PW2, Gokul, the accused, had caused injuries on  

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the head of the deceased, both hands, above the eyes and on the  

wrist while other accused hit her. This cannot be termed as a  

material contradiction in the statements of these two witnesses.  

These are two eye-witnesses who themselves were injured by the  

accused.  Every variation is incapable of being termed as a  

serious contradiction that may prove fatal to the case of  

prosecution.  It is a settled cannon of criminal jurisprudence that  

every statement of the witness must be examined in its entirety  

and the Court may not rely or reject the entire statement of a  

witness merely by reading one sentence from the deposition in  

isolation and out of context.  In the present case, it has been  

completely established that both PW1 and PW2 are injured eye-

witnesses and their presence at the place of occurrence cannot  

be doubted.  If one reads the statements of PW1 and PW2 in their  

entirety, it will be difficult to trace any element of serious  

contradiction in their statements which may prove fatal to the  

case of the prosecution.  PW2, even in the paragraph extracted  

above has said that accused ‘hit a lot’.  However, the language in  

which her statement was recorded states ‘abhiyukton ne khoob  

mara’  which obviously means that all the accused had hit  the  

deceased and other victims including herself, because this  

sentence immediately precedes the part of the statement where  

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she gives details of all the accused persons as well as the injuries  

inflicted on the deceased and herself by each of the accused.  The  

very first paragraph of her statement clearly indicates the  

essence of her statement.  She has categorically stated that all  

the accused persons had come to the site, abused her brother  

Gokul and clearly claimed that he had burnt their soyabean crop  

and that they shall kill him. Whereafter, they started hitting her  

brothers, Gokul and Udayram.  In face of this specific statement  

and the medical evidence which shows presence of as many as  

ten injuries on the body of the deceased Gokul, it is difficult to  

believe that in the given situation, one accused could have  

caused so many injuries on the body of deceased, especially  

when all accused persons are stated to have caused injuries to  

the deceased as well as to the witnesses.  It seems appropriate  

her to refer to a recent judgment of this Court in the case of  

Ashok Kumar v. State of Haryana [(2010) 12 SCC 350] wherein  

this Court, while dealing with the discrepancies in the statement  

of the witnesses, held as under :

“41. The above statement of this witness  (DW 3) in cross-examination, in fact, is  clinching evidence and the accused can  hardly get out of this statement. The defence  would be bound by the statement of the  witness, who has been produced by the  

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accused, whatever be its worth. In the  present case, DW 3 has clearly stated that  there was cruelty and harassment inflicted  upon the deceased by her husband and in- laws and also that a sum of Rs. 5000 was  demanded. The statement of this witness  has to be read in conjunction with the  statement of PW 1 to PW 3 to establish the  case of the prosecution. There are certain  variations or improvements in the  statements of PWs but all of them are of  minor nature. Even if, for the sake of  argument, they are taken to be as some  contradictions or variations in substance,  they are so insignificant and mild that they  would in no way be fatal to the case of the  prosecution.

42. This Court has to keep in mind the fact  that the incident had occurred on 16-5-1988  while the witnesses were examined after  some time. Thus, it may not be possible for  the witnesses to make statements which  would be absolute reproduction of their  earlier statement or line to line or minute to  minute correct reproduction of the  occurrence/events. The Court has to adopt a  reasonable and practicable approach and it  is only the material or serious  contradictions/variations which can be of  some consequence to create a dent in the  case of the prosecution. Another aspect is  that the statements of the witnesses have to  be read in their entirety to examine their  truthfulness and the veracity or otherwise. It  will neither be just nor fair to pick up just a  line from the entire statement and  appreciate that evidence out of context and  without reference to the preceding lines and  lines appearing after that particular  sentence. It is always better and in the  interest of both the parties that the  statements of the witnesses are appreciated  

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and dealt with by the Court upon their  cumulative reading.”

13. In light of the above judgment, it is clear that every  

variation or discrepancy in the statement of a witness cannot  

belie the case of the prosecution per se.  It is true that in the  

present case, some other witnesses have turned hostile and have  

not fully supported the case of the prosecution, but that by itself  

would not be a circumstance for the Court to reject the  

statements of PW1 and PW2, who are reliable and worthy of  

credence and more particularly, when their presence at the place  

of occurrence has been established beyond reasonable doubt.

14. The other contention which has been raised on behalf of the  

appellants is that the medical evidence does not support the  

statements of PW1 and PW2.  This is equally devoid of any merit.  

As per the statement of PW14, who had prepared the post  

mortem report, Ext. P30, there were as many as ten injuries on  

the body of the deceased and they were as follows :

“Similarly on the said date itself, Gokul S/o.  Laljiram @ Lalchand was brought by Head  Constable Chedilal for which he had brought  Ex.P-3 letter.  I examined him at 6.35 p.m.  and found the following injuries :

(i) Incised wound 5½ x scalp thick on left  central region.

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(ii) Incised superficial (skin deep) 1 x ¼  cm. on right temple near eye.  Both  these injuries appear to have been  caused by sharp edged seapon.  It was  not possible to understand injury No.1  therefore, X-ray advice was written  and injury No.2 was simple and  caused within 0-6 hrs.

(iii) One contusion 12 x 8 cm on right  forearm.   

(iv) Swelling on left forearm ½ lower  portion and ½ right portion on left  side.

The aforesaid injuries appeared to have been  caused with hard and blunt object and X-ray  was advised to ascertain seriousness.

(v) One lacerated wound with fracture 2 x  1 x ½ on right leg in front on middle  portion which appear to have been  caused with hard and blunt weapon  and was serious within 0-6 hrs. and X- ray was advised for the same.

(vi) Lacerated wound 1 x ½ x ¼ on lower  portion of left leg.

(vii) Swelling on left hand in full back  portion.

(viii) Swelling and contusion 13 x 4 cm. on  left forearm out and front portions.  Injuries Nos.6, 7 and 8 appear to have  been caused with hard and blunt  weapon and simple caused within 0-6  hrs.

(ix) One contusion with parallel margin on  left forearm which appear to have been  caused with hard and blunt weapon  like lathi and X-ray was advised for  this injury.

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(x) One contusion of parallel margin of 28  x 1 cm. in front portion of the chest  laterally.  It appeared to have been  caused with hard and blunt weapon  like lathi which was simple caused  within 6 hrs.”

15. All that PW1 and PW2 have stated is that the accused had  

inflicted the injury on the head of the deceased with a farsi and  

even on other parts of the body of the deceased.  According to  

them, even other accused had inflicted injuries upon the body of  

the deceased with lathis.  The accused were carrying farsi, dharia  

and lathis, as per the statements of these witnesses.  The  

medical evidence clearly shows that there were incised wounds,  

contusions, lacerated wounds and swelling found in the various  

injuries on the body of the deceased.  The Investigating Officer,  

PW26, has clearly proved the case of the prosecution with the  

assistance of the corroborating evidence.  We see no reason to  

accept this contention raised on behalf of the appellants.   

16. Before dealing with the last contention raised on behalf of  

the appellants, we may usefully refer to some pertinent aspects  

of the case of the prosecution.  In this case, the incident had  

occurred at about 4.30 p.m. on 6th November, 1993 and the FIR  

itself was registered at 6.30 p.m. on the statement of PW1  

recorded in the hospital.  In the hospital itself, the doctor had  

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also recorded the dying declaration Ext. P-6 of the deceased.  The  

relevant part of the declaration reads as under :

“My First question was : What is your name?

Ans : Gokulsingh S/o Laljiram Lalsingh.

Q: Where do you live?

Ans: Dhuankheri.

I again asked what happened to you when  he replied that the well of Kanhaiya, myself,  my brother Udayram and sister were hit by 5  brothers Ramchand, Umrao, Vikram, Gokul  and Atmaram sons of Devaji of Balai caste.  He stated so.  Thereafter I asked where all  have you received injuries whereupon he  replied that on head, hands and legs.  Thereafter I again asked who saw you being  beaten up then he replied that we were seen  by Udaysingh, Gokulsingh, Gajrajsingh,  Ramchandra etc.  I again asked what did  you do thereupon he replied, what could we  do, we were un-armed, we kept shouting.  Our sister had tried to rescue us.”

17. After recording of the FIR, Ext. P-37 the investigation was  

started immediately and on the second day, the accused were  

taken into custody.  Names of all the accused were duly shown in  

Column No.7 of the FIR.  Two witnesses, PW1 and PW2, have  

given the eye witness version of the occurrence.  All the accused  

persons were hiding themselves in the field and had a clear  

intention to kill the deceased.  The motive for commission of the  

offence which, of course, is not an essential but is a relevant  

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consideration, has also been brought out in the case of the  

prosecution that the deceased had allegedly burnt their soyabean  

crops and, therefore, the accused wanted to do away with the  

deceased Gokul and his brother.  These factors have been clearly  

brought out in the statement of PW1 and PW2.  The fact that  

these injuries were inflicted by a collective offence upon the  

deceased and the injured witnesses is duly demonstrated not  

only by the medical report, but also by the statements of the  

doctors, PW4 and PW14.  Thus, the prosecution has been able to  

establish its case.

18. The contention lastly raised on behalf of the appellants is  

that no single injury has been found to be sufficient in the  

ordinary course of nature to cause death as per the medical  

evidence.  There was no intention on the part of the accused to  

cause death of the deceased.  At best, they have only caused an  

injury which was likely to cause death.  Therefore, no case for an  

offence under Section 302 IPC is made out and, at best, it could  

be a case under Section 304 Part II and/or even Section 326 IPC.  

Reliance has been placed upon the judgments of this Court in  

the case of Molu & Ors. v. State of Haryana [(1976) 4 SCC 362]  

and Rattan Singh & Ors. v. State of Punjab [1988 Supp. SCC 456].  

In any case and in the alternative, it is also contended that as  

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per the statement of PW2, accused Gokul alone had caused  

injuries to the deceased and therefore, all the other accused  

persons are entitled to acquittal or at best, are liable to be  

convicted under Section 326 IPC for causing injuries to the eye-

witnesses, PW1 and PW2 or even to the deceased.  This  

argument, at the first blush, appears to be have substance, but  

when examined in its proper perspective and in light of the  

settled law, we find it untenable, for the reason that even in the  

case of Molu (supra), this Court had noticed that none of the  

injuries was on any vital part of the bodies of the two deceased  

persons and even injuries upon the skull appeared to be very  

superficial.  There was nothing to show that the accused  

intended to cause murder of the deceased persons deliberately  

and there was no evidence to show that any of the accused  

ordered the killing of the deceased persons or indicated or in any  

way expressed a desire to kill the deceased persons on the spot.  

It was upon returning this finding on appreciation of evidence  

that the Court found that there was only a common intention to  

assault the deceased, with the knowledge that the injuries  

caused to them were likely to cause death of the deceased and,  

therefore, the Court permitted alteration of the offence from that  

under Section 302 to one under Section 304 Part II, IPC.  Also in  

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the case of Rattan Singh (supra), this Court had found that as per  

the case of the prosecution, the injuries on the person of the  

deceased which could be attributed to the accused were either on  

the hands or feet and at best could have resulted in fractures.  

None of the appellants could be convicted for causing such  

injuries individually which could make out an offence under  

Section 302 and, thus, the Court altered the offence.  

19. We are unable to see as to what assistance the appellants  

seek to derive from these two judgments.  They were judgments  

on their own facts and in the case of Molu (supra), as discussed  

above, the Court had clearly returned a finding that the accused  

had no intention to kill the accused, which is not the  

circumstance in the case at hand.  If there is an intention to kill  

and with that intent, injury is caused which is sufficient to cause  

death in the ordinary course of nature, then the offence would  

clearly fall within the ambit of para Thirdly of Section 300 IPC  

and, therefore, would be culpable homicide amounting to  

murder.  In the present case, the intention on the part of the  

accused persons to kill Gokul was manifest as is evident from  

the statements of PW1 and PW2.  The cause for having such an  

intent is also proved by the prosecution that according to the  

accused, Gokul and PW1 had burnt their soyabean crops.  The  

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manner in which all the accused assaulted the deceased even  

after he fell to the ground and the act of  continuously inflicting  

blows on the body of the deceased, clearly shows that they had a  

pre-determined mind to kill the deceased at any cost, which they  

did.  In the case of State of Haryana  v.  Shakuntala & Ors. [2012  

(4) SCALE 526], this Court held :  

“…Reverting back to the present case, it is  clear that, as per the case of the prosecution,  there were more than five persons assembled  at the incident.  All these nine persons were  also convicted by the Trial Court and the  conviction and sentence of six of them has  been affirmed by the High Court.   The  members of this assembly had acted in  furtherance to the common object and the  same object was made absolutely clear by the  words of accused Matadin, when he exhorted  all the others to ‘finish’ the deceased persons.

27. In other words, the intention and object  on the part of this group was clear.  They had  come with the express object of killing  Manohar Lal and his family members.   It  might have been possible for one to say that  they had come there not with the intention to  commit murder, but only with the object of  beating and abusing Manohar Lal and others,  but in view of the manner in which Matadin  exhorted all the others and the manner in  which they acted thereafter, clearly establishes  that their intention was not to inflict injuries  simplicitor. Manohar Lal, admittedly, had fallen  on the ground.   However, the accused still  continued inflicting heavy blows on him and  kept on doing so till he breathed his last.  They  did not even spare his wife Sushila and  inflicted as many as 33 injuries on her body.  

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Where a person has the intention to cause  injuries simplicitor to another, he/she would  certainly not inflict 30/33 injuries on the  different parts of the body of the victim,  including the spine.    The spine is a very  delicate and vital part of the human body.   It,  along with the ribs protects all the vital organs  of the body, the heart and lungs, etc.  Powerful blows on these parts of the body can,  in normal course, result in the death of a  person, as has happened in the case before us.  The way in which the crime has been  committed reflects nothing but sheer brutality.  The members of the assembly, therefore, were  aware that their acts were going to result in  the death of the deceased.    Therefore, we find  no merit in this contention of the accused  also.”  

20. They even caused injuries to the vital parts of the body of  

the deceased, i.e., the skull.  As per the medical evidence, there  

was incised wound of 5½”x skull thick on left skull region, which  

shows the brutality with which the said head injury was caused  

to the deceased.   

21. We may usefully refer to the judgment of this Court in the  

case of State of Andhra Pradesh v. Rayavarapu Punnayya & Anr.  

[(1976) 4 SCC 382] wherein the Court was concerned with  

somewhat similar circumstances, where a number of accused  

had caused multiple bodily injuries to the deceased and it was  

contended that since none of the injuries was caused upon any  

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vital part of the body of the deceased, the offence was, therefore,  

at best to be altered to an offence under Section 304, Part II.  

This contention of the accused had been accepted by the High  

Court.  While disturbing this finding, this Court held as under :

“38. Question arose whether in such a case  when no significant injury had been inflicted  on a vital part of the body, and the weapons  used were ordinary lathis, and the accused  could not be said to have the intention of  causing death, the offence would be  “murder”  or merely “culpable homicide not  amounting to murder”. This Court, speaking  through Hidayatullah, J. (as he then was)  after explaining the comparative scope of  and the distinction between Sections 299  and 300, answered the question in these  terms:

“The injuries were not on a vital part of  the body and no weapon was used  which can be described as specially  dangerous. Only lathis were used. It  cannot, therefore, be said safely that  there was an intention to cause the  death of Bherun within the first clause  of Section 300. At the same time, it is  obvious that his hands and legs were  smashed and numerous bruises and  lacerated wounds were caused. The  number of injuries shows that everyone  joined in beating him. It is also clear  that the assailants aimed at breaking  his arms and legs. Looking at the  injuries caused to Bherun in  furtherance of the common intention of  all it is clear that the injuries intended  to be caused were sufficient to cause  death in the ordinary course of nature  even if it cannot be said that his death  

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was intended. This is sufficient to bring  the case within thirdly of Section 300.”

39. The ratio of Anda v. State of Rajasthan  applies in full force to the facts of the  present case. Here, a direct causal  connection between the act of the accused  and the death was established. The injuries  were the direct cause of the death. No  secondary factor such as gangrene, tetanus  etc., supervened. There was no doubt  whatever that the beating was premeditated  and calculated. Just as in Anda case, here  also, the aim of the assailants was to smash  the arms and legs of the deceased, and they  succeeded in that design, causing no less  than 19 injuries, including fractures of most  of the bones of the legs and the arms While  in Anda case, the sticks used by the  assailants were not specially dangerous, in  the instant case they were unusually heavy,  lethal weapons. All these acts of the accused  were preplanned and intentional, which,  considered objectively in the light of the  medical evidence, were sufficient in the  ordinary course of nature to cause death.  The mere fact that the beating was  designedly confined by the assailants to the  legs and arms, or that none of the multiple  injuries inflicted was individually sufficient  in the ordinary course of nature to cause  death, will not exclude the application of  clause thirdly of Section 300. The expression  “bodily injury” in clause thirdly includes also  its plural, so that the clause would cover a  case where all the injuries intentionally  caused by the accused are cumulatively  sufficient to cause the death in the ordinary  course of nature, even if none of those  injuries individually measures upto such  sufficiency. The sufficiency spoken of in this  clause, as already noticed, is the high  probability of death in the ordinary course of  nature, and if such sufficiency exists and  

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death is caused and the injury causing it is  intentional, the case would fall under clause  thirdly of Section 300. All the conditions  which are a prerequisite for the applicability  of this clause have been established and the  offence committed by the accused, in the  instant case was “murder”.

40. For all the foregoing reasons, we are of  opinion that the High Court was in error in  altering the conviction of the accused- respondent from one under Sections 302,  302/34, to that under Section 304, Part II of  the of the Penal Code. Accordingly, we allow  this appeal and restore the order of the trial  court convicting the accused (Respondent 2  herein) for the offence of murder, with a  sentence of imprisonment for life.  Respondent 2, if he is not already in jail,  shall be arrested and committed to prison to  serve out the sentence inflicted on him.”

Reference can also be made to Anda & Ors. v. State of  

Rajasthan [AIR 1996 SC 148].

22. The case before us is quite similar to the case of  

Rayavarapu Punnayya (supra).  The cumulative effect of all the  

injuries was obviously known to each of the accused, i.e., all the  

injuries inflicted were bound to result in the death of the  

deceased which, in fact, they intended.  Furthermore, the doctor,  

PW14, had opined that the deceased had died because of  

multiple injuries and fracture on the vital organs, due to shock  

and haemorrhage.  In other words, even as per the medical  

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evidence, the injuries were caused on the vital parts of the body  

of the deceased.

23. For these reasons, we are unable to accept the contention  

raised on behalf of the appellants that this is a case where the  

Court should exercise its discretion to alter the offence to one  

under Section 304 Part II or Section 326 IPC from that under  

Section 302 IPC.  We also find the submission of the learned  

counsel for the appellants to be without merit that accused  

Gokul alone is liable to be convicted, if at all, under Section 302  

IPC and all other accused should be acquitted.   We reject this  

contention in light of the discussion above and the fact that all  

these accused have been specifically implicated by PW1 and  

PW2, the Investigating Officer, PW26 and the medical evidence.

24. Having found no substance in the pleas raised by the  

learned counsel for the appellants, we hereby dismiss the appeal.

.…................................J.  [Swatanter Kumar]

  .…................................J.                 [Ranjan Gogoi]

New Delhi

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May 10, 2012  

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