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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1848 OF 2008

DHIRENDRA KUMAR @ DHIROO …APPELLANT

VERSUS

STATE OF UTTARAKHAND            … RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL J.

1. This appeal has been preferred against the judgment  

and order dated 17th November, 2007 passed by the High  

Court of Uttarakhand at Nainital in Criminal Appeal No.158  

of  2007  upholding  the  conviction  of  the  appellant  under  

Section  302  of  the  Indian  Penal  Code  and  sentence  to  

undergo life imprisonment.

2. Case of the prosecution is that the appellant caused  

the death of Surat Singh deceased with a stone at 8.30 P.M.  

on 1st April, 1983 at Village Jantanwala.  On 2nd April, 1983  

at 9.05 A.M., Mani Ram father of the deceased (who died  

during  pendency  of  proceedings  before  the  trial  Court)  

lodged  FIR  to  the  effect  that  on  28th March,  1983,  the  

deceased  had  gone  to  the  house  of  the  accused  to

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celebrate holi.  In the night, the accused came to the house  

of the complainant to assault the deceased alleging that he  

had knocked the door of his aunt Kumari Sunita in the night  

with evil intention when she was alone in her house.  With  

the intervention of Mani Ram and PW 7 Raj Kumari, wife of  

the  deceased,  the accused was prevented from dragging  

the  deceased  out  of  the  house  but  the  accused  left  the  

house with a threat.  On 1st April, 1983 when the deceased  

went to the nearby Dehradun city, he did not return home  

at the night.  In the morning PW2 Lal Singh told him that the  

deceased was seen with the accused at  7.30 P.M.  in  the  

night.  Further, Lakhi Ram PW 4 and Bahadur Singh PW 3  

told him that the accused was seen beating the deceased  

with a stone at 8.30 P.M.  One Jagdish Singh told him that he  

had seen the dead body near the bank of the river near the  

field of Ratan Singh.   

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3. After  registering  the  FIR,  the  investigation  was  

conducted by SO Rajpal Singh PW 11.  Post mortem was  

conducted  by  Dr.  I.F.  Nath  PW6.   After  completing  the  

investigation, the accused was sent up for trial.    

4. The prosecution examined as many as 12 witnesses.  

The accused in  his  statement  under  313 Cr.P.C.  took the  

plea that he was falsely implicated as he was member of  

Yuvak Gram Kalyan Samiti and he had made complaint to  

the  District  Magistrate  against  illegal  distillation  of  liquor  

which made the police inimical to him.  He had also made a  

complaint  against  illegal  dealings  of  the  contractors  in  

selling  Government  cement  which  had  made  contractors  

inimical to him.  He examined his brother, DW 1 Vijendra  

Kumar  Sharma  in  support  of   

his version.   

5. After  considering  the  evidence  on  record,  the  trial  

Court  convicted  and  sentenced  the  appellant  which  has  

been affirmed by the High Court.

6. We have heard learned counsel for the parties.

7. Main contention urged on behalf  of  the appellant  is  

that the evidence of Bahadur Singh PW 3 and Lakhi Ram PW  

4 as eye witnesses is not reliable as if they had seen the  

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occurrence as claimed, they could not have kept quiet in the  

night.  It was further submitted that the alleged motive was  

far  fetched  and  could  not  be  believed.   It  was  finally  

submitted  that  the  case  was  covered  by  Exception  4  to  

Section 300 as it was a case of sudden fight in which both  

the parties threw stone at each other and thus the case falls  

under  Section  304  Part  II.   Reliance  has  been  placed  on  

judgment  of  this  Court  in  Ankush Shivaji  Gaikwad  vs.  

State of Maharashtra1.   

8. We  have  given  due  consideration  to  the  rival  

submissions and perused the record.

9. As far as reliability of evidence on record is concerned,  

we are of the view that re-appreciation of evidence is not  

called for in an appeal under Article 136 of the Constitution  

in absence of patent illegality or perversity merely because  

a different view could also be taken.  In the present case,  

both the courts  below have found the evidence of  PW 3  

Bahadur Singh and PW 4 Lakhi Ram to be reliable.  Evidence  

of PW 7 Raj Kumari widow of the deceased has also been  

believed  with  regard  to  the  earlier  incident  furnishing  

motive  to  the  accused.   PW  2  Lal  Singh  has  also  

corroborated  the  version  given  by  the  eye  witnesses  by  

1 2013 (6) SCC 770

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stating  that  he  had  seen  the  accused  and  deceased  

together just before the occurrence.  The defence version of  

the accused has not been found to be reliable.  The view  

taken by the courts below is certainly a possible view for  

accepting the evidence led by the prosecution in support of  

its version.  We thus do not find any reason to reject the  

prosecution  version.   There  is  enough  evidence  to  prove  

that the accused appellant was responsible for causing the  

death of the deceased.   

10. Only other question which remains to be considered is  

the nature of  offence.  Learned counsel  for the appellant  

submitted  that  the  accused  also  received  injuries  which  

showed the case to be of free fight.  The injuries found on  

the person of  the accused by PW 1 Dr.  D.M. Kala are as  

follows :

“1.  Abraded contusion 3 x 2.5 cm. just   above right  eyebrow.

2. Abraded contusion 8 cm. x 2.5 cm. on right   side of face inusilry the area just below and  lateral to right eye.

3. Abrasion 4 cm. x 1 cm., on right side of face   2 cms. From right angle of mouth. In the opinion of Medical Officer, the injuries   

were  caused by  hard  blunt  object  or  friction   about  one day before Injury No.1 and 2 was  kept under observation while Injury No.3 was  simple.”

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11. On the other hand, the injury noticed on the body of  

the deceased is as follows :

“1.The face and head is flattened from side to  side. There are multiple irregular lacerated  wounds all over. The face is disfigured and  right eye could not be made out.   All  the  bones of skull,  base of skull and mandible   are pulverized and the brain matter is seen  flowing out from all the wounds. In the opinion of Medical Officer, the death  

of the deceased was caused due to shock and  hemorrhage as a result of ante mortem injury.   The doctor has also opined that the injury may   be caused by stone in between 8:00 to 9:00  p.m. on 01.04.1983.”

12. The nature of injuries suffered by the deceased does  

not show that the injury was suffered accidentally.  There  

are multiple wounds and the face is disfigured.  The bones  

are pulverized.  The brain matter was flowing out from all  

wounds.   Seen in the light of previous motive, the accused  

can be said to have caused the death by acting in a cruel  

manner.  In a plea of sudden fight, the burden to show that  

the case falls under Exception 4 to Section 300 I.P.C. is on  

the accused.  No doubt even without leading positive, the  

plea can be substantiated from the material on record.

13. In  the  present  case,  there  is  nothing  on  record  to  

establish  free  fight.   Plea  of  the  accused  is  of  false  

implication.  From the circumstances taken as a whole, only  

possible inference is that the accused has inflicted the fatal  

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injury with a view to cause death.  The injuries on the head  

have been caused with full force.  There is prior enmity.  It  

was not a case of any sudden quarrel or sudden provocation  

or in the heat of passion.

14. Judgment in Ankush does not advance the case of the  

appellant.  In the said case, the accused were walking near  

the field of the deceased when a dog barked at them.  The  

accused hit the dog with an iron pipe and on objection being  

raised by the deceased there was exchange of hot words  

which led to  a  scuffle  in  the course of  which one of  the  

accused  hit  the  deceased  with  iron  pipe  which  he  was  

already carrying.  Thus, it was a case of a sudden fight on  

account of barking of the dog belonging to the deceased.  

There was no previous enmity.  Barking of the dog triggered  

the  incident  and  intervention  of  the  deceased  led  to  a  

quarrel  culminating  into  the  fatal  injury  on  a   

vital part.  

15. Question whether  a  case falls  under  Section 302 or  

304  has  to  be  decided  from case  to  case  depending  on  

factors like the circumstances in which the incident takes  

place, the nature of weapon used and whether weapon was  

carried or was taken from the spot and whether the assault  

was aimed on vital part of the body; the amount of force  

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used;  whether  the  deceased  participated  in  the  sudden  

fight;  whether  there  was  any  previous  enmity;  whether  

there was any sudden provocation; whether the attack was  

in  the  heat  of  passion;  whether  the  person inflicting  the  

injury  took  any  undue  advantage  or  acted  in  a  cruel  or  

unusual manner.  The list of circumstances is not exhaustive  

and  there  may  be  several  other  circumstances  with  

reference to individual cases.  Applying these tests to the  

present case, we are unable to accept the defence on behalf  

of the appellant.  It was a case of previous enmity and the  

nature of injury suggests intention to cause death or a fatal  

injury on a vital part of the body with full force sufficient to  

cause death.  In these circumstances, we do not find any  

ground to interfere.   

The appeal is accordingly dismissed.

..……..…………………………….J.      [DIPAK MISRA]

...….………………………………..J.             [ ADARSH KUMAR  

GOEL ]

NEW DELHI FEBRUARY 26, 2015

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