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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 795 OF 2011

MANOJ KUMAR      APPELLANT

VERSUS

STATE OF HIMACHAL PRADESH      RESPONDENT

WITH

CRIMINAL APPEAL NO. 796 OF 2011

SURINDER SINGH      APPELLANT VERSUS

STATE OF HIMACHAL PRADESH      RESPONDENT

CRIMINAL APPEAL NO. 797 OF 2011

RANGEEL SINGH      APPELLANT

VERSUS

STATE OF HIMACHAL PRADESH      RESPONDENT

JUDGMENT N.V. RAMANA, J.

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1. These  appeals  by  special  leave  are  directed

against the judgment dated 20th November, 2009

passed by the High Court of Himachal Pradesh in

Criminal  Appeal  No.  312  of  2006  whereby  the

High Court  upheld  the  conviction  and sentence

against the appellants as awarded by the learned

Sessions Judge for the offences punishable under

Sections 302, 341 and 323 read with Section 34

of the Indian Penal Code (IPC).

2.  The facts necessary to deal with these appeals, as

culled out from the prosecution case, are that as

per the revenue records one Jaram Singh (PW1)

and  others  are  the  owners  of  land  bearing

Khata/Khatauni  No.  164/220,  Khasra  No.  605.

The said Jaram Singh (PW1) had mortgaged the

aforesaid land with one Krishan Lal and Subhash

Chand, but the land remained in the possession

of  Prem  Dass  (deceased).  Disturbed  with  the

interference  of  the  appellants  in  the  said  land,

PW1—Jaram Singh and the deceased Prem Dass

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filed  a  civil  suit  against  the  appellants  and

thereby restrained the appellants from raising any

construction in the disputed land. 3.  On 24th March, 2004 at about 8.30 p.m. Jeewan

(PW12)—complainant left  his house in search of

his  father  Prem  Dass  who  went  to  a  nearby

village,  and  found  his  father  Prem Dass  in  the

company  of  Yashwant  Singh  (PW13)  and  Narso

Ram (DW1) near a village called Chhedu.  All  of

them while returning to their village, they came

across  the  disputed  land  where  they  found  the

appellants  and  their  family  members,  seven

persons in all.  Suddenly  at  once,  they attacked

Prem  Dass.  Manoj  Kumar  (A4)  was  wielding  a

spade (belcha), Surinder Kumar (A3) was carrying

a Drat (sickle) and other accused were armed with

sticks.  Manoj Kumar (A4) gave a belcha (spade)

blow  on  the  head  of  Prem  Dass  and  accused

Surinder Singh struck him with a blow of sickle

causing injury on the right hand index finger of

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Prem Dass while other accused were beating him

with  sticks.   In  order  to  save  their  lives  the

deceased  Prem  Dass,  Yashwant  Singh  (PW13),

Narso Ram (DW1)  and the  complainant  Jeewan

(PW12)  ran  from the  scene  helter-skelter,  while

the accused Rangeel Singh (A1) was declaring that

Prem Dass will have to lose his life. By adopting

another route, Jeewan (PW12) reached the shop of

Yashwant Singh (PW13) where he found his father

Prem  Dass  in  semiconscious  condition  with

bleeding profusely.  They called the driver Ashok

Kumar (PW2) with his Maruti Van and took the

injured Prem Dass to the police post at Sinhunta

and lodged a report.  Accordingly,  FIR No.  45 of

2004 (Ext. PW.6/A) was registered.

4. Police  sent  the  injured  Prem  Dass  to  Primary

Health Centre, Sihunta where Dr. Parveen Kumar

(PW4)  attended  him  and  issued  Medico  Legal

Certificate  (Ext.  PW4/A).  As  his  condition  was

getting deteriorated, he was referred to Rajinder

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Prasad Medical  College (RPMC),  Dharmshala  for

better  treatment,  however,  on  the  way  it  was

noticed that the victim was not responding to the

calls of his son Jeevan. Sensing something wrong,

he was brought back to Dr. Praveen Kumar (PW4),

who  on  examination,  declared  him  to  have

succumbed to the injuries.

5. The  Investigating  Officer,  PW18—Partap  Singh,

upon  receiving  the  information  of  death  of  the

deceased,  called  the  photographer  to  get  the

snaps  of  the  deceased,  conducted  inquest  (Ext.

PW11/A) and sent the dead body for postmortem.

Thereafter,  he  prepared  the  site  plan  (Ext.

PW18/A), got the injured Yashwant Singh (PW 13)

medically  examined and seized his  bloodstained

shirt  (Ext.PW13/B).  During  the  course  of

investigation,  the  I.O.  visited  the  place  of

occurrence  and  collected  bloodstained  earth,

stones  (Ext.  PW16/A),  belcha  (Ext.P2)  and

recovered one sickle (Ext.P1) and sticks (Ext.P3)

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from  the  possession  of  A5  vide  seizure  memo

Ext.PW17/A. From the possession of appellant—

accused  No.  1  (Rangeel  Singh)  his  bloodstained

clothes were recovered vide Ex.PW14/A and sent

the same for forensic examination.

6. On  completion  of  investigation,  the  case  was

presented to the learned SDJM, Dalhousie who in

turn committed the same to the Court of learned

Sessions  Judge,  Chamba  who  framed  charges

against  the accused for  the offences punishable

under  Sections  147/149,  148/149,  341/149,

323/149,  302/149  and  506/149,  IPC.  Rangeel

Singh (accused no. 1), Mohinder Singh (accused

no.  2)  Surinder  Singh  (accused  no.  3),  Manoj

Kumar (accused no. 4), Rekha Devi (accused no.

5),  Veena  Devi  (accused  no.  6)  and  Biaso  Devi

(accused no. 7) pleaded not guilty and claimed to

be tried. To bring home the guilt of the accused,

prosecution  has  examined  as  many  as  18

witnesses  and  there  was  one  witness  for  the

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defence. Carrying out a full fledged trial, learned

Sessions  Judge  formed  the  opinion  that  the

accused were proved to be guilty of the offences

with  which  they  were  charged  except  for  the

charge  against  Section  506/149,  IPC.

Accordingly,  they  were  convicted  and  sentenced

as  indicated  below,  with  the  direction  that  all

sentences were to run concurrently.

NAME OF THE ACCUSED

SECTIONS PUNISHMENT

All the accused 302 r/w. 149 ofIPC

Imprisonment for life and fine of Rs. 10,000/- each. In case of default in

payment of fine, each one of them would be liable to suffer further imprisonment of two

years.

All the accused 147 of IPC

Rigorous imprisonment for a period of six months and fine of Rs. 1000/- each. In

case of default in payment of fine, each one of them would be liable to suffer further

imprisonment of two months.

All the accused 148 of IPC

Rigorous imprisonment for a period of six months and fine of Rs. 1000/- each. In

case of default in payment of fine, each one of them would be liable to suffer further

imprisonment of two months.

All the accused 323 r/w. 149 ofIPC

Rigorous imprisonment for a period of six months and fine of Rs. 1000/- each. In

case of default in payment of fine, each one of them would be liable to suffer further

imprisonment of two months. All the accused 341 r/w, 149 of

IPC Simple imprisonment for one month and

fine of Rs. 500/- each. In default of payment of fine, each one of them shall

undergo simple imprisonment for a period

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of seven days more.

7. It would be relevant to state the brief reasoning of

the trial court which led to the conviction of the

accused-appellant herein- i. That  the  witnesses  having  interest  in  the  property  or

being a close friend of the deceased, would not qualify them as interested witnesses.

ii. Non-examination  of  two  witnesses,  who  are  alleged  to have accompanied the deceased, is not fatal for the case of the prosecution.

iii. That the DW-1 has not denied the incident wherein the deceased was beaten by the accused.

iv. The  court  cannot  place  reliance  on  the  theories introduced by DW-1, as his statements are contradictory.

v. That  the  blood  stains  found  on  the  Belcha  (alleged weapon used) is indicative of the occurrence of the crime.

vi. That no alcohol was found in the viscera of the deceased.

vii. That the prosecution was able to prove the case beyond reasonable doubt.

8. The aggrieved accused preferred appeal before the

High Court against their conviction and sentence

passed  by  the  trial  Court.  By  the  judgment

impugned  herein,  the  High  Court  while  partly

allowing  their  appeal,  acquitted  the  accused

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Mohinder Singh (A2), Biaso Devi (A7), Rekha Devi

(A5)  and  Veena  Devi  (A6)  extending  them  the

benefit  of  doubt.  However,  the  High  Court

affirmed the  conviction and sentence  passed by

the  trial  Court  against  Rangeel  Singh  (A1),

Surinder Kumar (A3)  and Manoj Kumar (A4)  on

the following grounds-

i. That the motive of the crime was due to the prior land dispute.

ii. That the statement of DW-1 was not believable.

iii. That the blood group found on the clothes of accused no. 1 matched with that of the deceased.

iv. That the High Court, accepted that the prosecution case was  exaggerated  to  the  extent  of  roping  other unconnected family members.

9. Aggrieved by the impugned judgment of the High

Court,  Manoj Kumar (Criminal Appeal No. 795

of 2017),  Surinder Singh (Criminal Appeal No.

796  of  2011)  and  Rangeel  Singh  (Criminal

Appeal No. 797 of 2011) are in appeal before this

Court. We propose to dispose of these appeals by

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this common order as all the accused-appellants

are  challenging  the  same  impugned  common

judgment.

10. While  taking  us  through  the  evidence  on

record vis-a-vis the portions of the findings of trial

court as well as the High Court, the Ld. counsel

for the appellants argued that the entire case of

the  prosecution  rests  on  the  motive  of  pending

civil  litigations between the parties and there is

absolutely  no  proof  that  the  appellants  have

pre-meditated  to  attack  the  deceased  and  his

party  at  the  given  place  and  given  time  as

propounded by the prosecution. According to him

the occurrence has taken place near the disputed

property  which is  not  on the way to the village

proceeded by the deceased and this would show

that  the  deceased  had  arrived  at  the  disputed

property  to  attack  the  appellants  or  to  cause

damage  or  otherwise  destroy  the  property  of

appellants.  He  then,  maintains  the  stand  that

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where  several  accused  persons  attacked  the

deceased  with  multiple  weapons  and  with

intention  to  do  away  with  his  life,  presence  of

negligible  simple  injuries  found  on  the  body  of

deceased  does  not  support  the  presence  of

intention  to  cause  death  of  deceased  so  as  to

attract punishment under Sec. 300 read with Sec.

302 IPC. The Ld counsel relied upon the medical

evidence also to buttress this argument.

11. On  the  other  hand,  the  learned  counsel

appearing on behalf  of  the State  has supported

the  judgment  of  the  High  Court  and  sought

dismissal of these appeals before this Court.

12. Heard  the  arguments  on  either  side  and

perused the material available on record. A mixed

question  of  law  and  fact  which  falls  for  our

consideration is  whether the accused-herein are

liable to be punished for the offence of culpable

homicide amounting to murder or not?

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13. PW-1  (Jaram  Singh),  states  that  he  is  the

brother of the deceased. He is not an eyewitness

to  the  incident  and  his  evidence  is  not  an

important  piece  of  evidence,  being  the  hearsay

evidence.  The  only  aspect  which  can  be  looked

into is  the existence of  dispute over  the landed

property. He states that the accused had forcibly

constructed shops over the disputed land and he

had  filed  a  civil  suit  for  eviction  before  the

Dalhousie Court.

14. PW-4  (Dr.  Parveen  Kumar)  was  the  Doctor

when the deceased (Prem Dass)  was referred to

the hospital.  He states that  the referred patient

was calm, conscious and well-oriented to time and

place. He further states that injury no. 1 and 2

appears to have been caused by sharp weapon,

while  the  third  injury  on the  sacral  region was

opined to have been caused by a blunt weapon.

He states that the patient was thereafter referred

to  RPMC  Dharamshala,  for  further  treatment.

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After  two-two  and  half  hours,  deceased  was

declared as brought dead.  

15. In the cross examination he accepts that his

advice for an x-ray, to RPMC Dharamshala is not

reflected  anywhere  in  the  OPD records.  It  is  of

some significance to note that PW-4 accepts that

the deceased was brought to the health center in

a private  van and the deceased returned to  his

house  in  the  same  vehicle.  Although  he  has

denied later that the patient returned to the home

instead of  going to RPMC Dharamshala.  On the

aspect of treatment, he states that the condition

of the patient was not so serious.

16. PW-5 (Dr. Arvind Kanwar), stated the nature of

injuries on opening of the scalp in the following

manner- On opening the scalp cap extradural and sub-Dural hematoma  seen  in  the  right  parietal  temporal region. Extensive in size. The brain was congested, no fracture was seen on the scalp.

It may be relevant to note his cross examination

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Self stated that injury No. 2 on scalp was grievous in nature which caused brain hemorrhage.  It  is correct to suggest that there was no facture on the head injury. It is correct that Dr. Modi is authority on  medical  jurisprudence.  I  have  seen  the  18th

edition of Dr. Modi in which, at page 229, he has defined  the  grievous  injury,  I  agree  with  this definition. I did not see the weapon of the offence at  the  time  of  post  mortem  examination.  The injury No. 2 can be caused by blade of the Dr at Ex. P-1 shown to me in the court. It is correct that the injury No. 2 can be caused by striking with sharp-edged object  but it  depends on force and speed.  …  I  have not  mentioned the depth of the scalp injury in post mortem report.  It  is correct that without ascertaining the depth of the scalp injury, it was not possible to opine that it was grievous injury.

(emphasis supplied)

17. PW-12 (Jeewan), son of the deceased is stated

to be an eye witness to the alleged incident. He

has repeated the prosecution story in entirety to

the  effect  that  in  the  presence  of  himself,

Yashwant Singh (PW-13) and Narso Ram (DW1),

the  accused-party  suddenly  attacked  the

deceased.  When  Yashwant  Singh  intervened  to

save the deceased, he was also beaten up by the

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accused  party.  As  the  accused  were  rushing

towards PW-12 (Jeewan),  he  ran from the spot.

While running he turned back and saw deceased

(after receiving multiple injuries including a head

injury),  Yashwant  Singh  and  Narso  Ram  were

running  from  the  spot.  With  respect  to  the

treatment, he states that the deceased was taken

to the PHC Sihunta wherein he was preliminarily

treated  and  referred  further  to  the  Hospital  at

Dharmashala.  As  the  deceased  was  not

responding,  he  was  brought  back  to  the  PHC

Sihunta, wherein he was declared dead.

18. Another important witness, who was alleged to

have been present at the scene of  the crime, is

PW-13 (Yashwant Singh).  He has re-iterated the

prosecution  story.  It  may  be  noted  that  this

witness has specifically stated that the deceased

was  taken  back  to  the  home  after  taking

treatment at PHC Sinhunta. As the condition of

the deceased worsened thereafter, he was brought

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back  to  the  PHC  Sinhunta,  wherein  he  was

declared as brought dead.  

19. Having observed the prosecution evidence, we

need to concentrate on the defense witness. DW1

—Narso Ram was in fact  a  prosecution witness

initially  and  even  according  to  the  prosecution

theory,  DW1  was  the  eyewitness.  According  to

DW1,  he  was  accompanying  Yashwant  Singh

(PW13)  and while  they were proceeding towards

village Thukrla, the deceased Prem Dass met them

at  a  distance  of  50 yards   and they  went  to  a

liquor  shop  and  nearby  the  disputed  property

wherein certain shop rooms were constructed, the

accused were found closing the shops and at that

time the deceased and PW13 started abusing the

accused  persons  and  he  saw  accused  Surinder

Singh and  Manoj  Kumar (appellants in Criminal

Appeals  No.  796/2011  and  795/2011

respectively)  coming from the house with empty

hands.

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20. The  High Court  however  has  disbelieved  the

evidence  of  DW1 to  the  extent  of  deceased and

PW13 consuming alcohol since the FSL report (Ex

PW-18/C) does not indicate presence of alcohol in

the  intestine  of  the  deceased.  Except  this,  the

High Court has taken into consideration the part

of the statement of DW1. Merely because one part

of the evidence of certain witness is not believed,

it does not mean that his entire evidence shall be

discarded. To the extent that DW1 was present at

the time of occurrence is admitted even according

to the prosecution. His evidence that the deceased

started abusing the  appellants’  group who were

present at the relevant time is acceptable for that

reason and this behavior of deceased must have

instigated the appellants to retaliate. This view is

substantiating  the  plea  of  the  defense  to  some

extent  as  propounded  by  them  in  their

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examination  under  Sec.  313  of  the  Code  of

Criminal Procedure.

21. Having taken into consideration, the statement

of  witnesses  on  questions  of  fact,  it  would  be

appropriate to have thorough look at the question

of law pertaining to Culpable Homicide. Learned

counsel  for  the  appellants  contended  that  the

defense  emerging  from the  evidence  is  that  the

deceased party arrived at the place of the incident

wherein  PW-13  started  verbally  abusing  the

accused which ensued a sudden fight resulting in

the  injuries  being  caused  to  the  deceased  and

while so the High Court failed to appreciate that

there  was  no  premeditation  on  behalf  of  the

appellant-accused  and  the  entire  incident  was

due to a sudden fight and the High Court ought to

have invoked Exception 4 to Section 300 IPC.

22. Exception 4 to Section 300 IPC reads as under:

Exception 4.-Culpable homicide is not murder if it  is  committed  without  premeditation  in  a sudden  fight  in  the  heat  of  passion  upon  a

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sudden quarrel and without the offender having taken undue  advantage  or  acted  in  a  cruel  or unusual manner.

23. There is  no dispute about the  ingredients  of

Exception  4  to  Section  300  IPC,  the  following

conditions are to be satisfied namely:

(i) that  the  incident  happened  without premeditation;

(ii) in a sudden fight;

(iii) in the heat of passion;

(iv) upon a sudden quarrel and

(v)  without  the  offender  having  taken  undue advantage  or  acted  in  a  cruel  or  unusual manner.

24. It may be relevant to note that in the case of

Sridhar Bhuyan v. State of Orissa,  (2004) 11

SCC 395, it was held as under- For  bringing  in  operation  of  Exception  4  to Section 300 Indian Penal Code, it  has to be established  that  the  act  was  committed without  premeditation,  in  a  sudden fight  in the  heat  of  passion  upon a  sudden quarrel without  the  offender  having  taken  undue advantage and not having acted in a cruel or unusual manner.

The  fourth  exception of  Section 300 Indian Penal  Code  covers  acts  done  in  a  sudden

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fight. The said exception deals with a case of prosecution  not  covered  by  the  first exception,  after  which its  place would have been  more  appropriate.  The  exception  is founded upon the same principle, for in both there is absence of premeditation. But, while in  the  case  of  Exception  1  there  is  total deprivation  of  self-control,  in  case  of Exception  4,  there  is  only  that  heat  of passion which clouds men's sober reason and urges  them to  deeds which they would not otherwise  do.  There  is  provocation  in Exception 4 as in Exception 1; but the injury done  is  not  the  direct  consequence  of  that provocation.  In  fact  Exception 4  deals  with cases in which notwithstanding that a blow may have been struck, or some provocation given  in  the  origin  of  the  dispute  or  in whatever  way  the  quarrel  may  have originated,  yet  the  subsequent  conduct  of both  parties  puts  them  in  respect  of  guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is  then clearly not traceable  to  unilateral  provocation,  nor  in such cases could the whole blame be placed on one side. For if it were so, the exception more  appropriately  applicable  would  be Exception 1. There is no previous deliberation or  determination  to  fight.  A  fight  suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them  starts  it,  but  if  the  other  had  not aggravated it by his own conduct it would not have taken the serious turn it did. There is then  mutual  provocation  and  aggravation, and it  is  difficult  to  apportion the  share  of blame  which  attaches  to  each  fighter.  The help of Exception 4 can be invoked if death is

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caused:  (a)  without  premeditation;  (b)  in  a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within  Exception  4  all  the  ingredients mentioned in it  must  be  found.  It  is  to  be noted that the "fight" occurring in Exception 4 to  Section 300 Indian  Penal  Code  is  not defined in Indian Penal Code. It takes two to make a fight.  Heat of  passion requires that there must be no time for the passions to cool down  and  in  this  case,  the  parties  have worked themselves into a fury on account of the  verbal  altercation  in  the  beginning.  A fight  is  a  combat  between  two  and  more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel  is  sudden  or  not  must  necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient  to show that  there was a sudden quarrel  and  there  was  no  premeditation.  It must further be shown that the offender has not  taken  undue  advantage  or  acted  in  a cruel  or  unusual  manner.  The  expression "undue advantage" as used in the provision means "unfair advantage".

25. Thus, the totality of circumstances of the case

on  hand  would  amply  show  that  there  was  a

sudden verbal quarrel and evidently there was no

pre-meditated plan to attack the deceased. In view

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of the civil disputes already pending between both

the families, a minor verbal exchange bloated into

a sudden physical attack.  

26. In Camilo Vaz vs. State of Goa, (2000) 9 SCC

1,  referring  to  the  ambit  of  Section  304  of  the

Code, this Court in similar set of circumstances

held thus:

“This section is in two parts. If analysed the section provides for two kinds of punishment to two different situations. (1) if  the act by which  death  is  caused  is  done  with  the intention of causing death or causing such bodily injury as is likely to cause death. Here important ingredients is the "intention"; (2) if the  act  is  done  with  knowledge  that  it  is likely  to  cause  death  but  without  any intention  to  cause  death  or  such  bodily injury as is  likely  to  cause death.  When a person hits  another  with a  danda on vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation case will fall in part II of Section 304 IPC as in the present case.”

27. Again, this Court in Deo Nath Rai vs State of

Bihar  and  Others  etc,  AIR  2017  SC  5428

observed-

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“Looking  to  the  totality  of  the  facts  and circumstances of the case and the evidence on  record,  it  is  clear  that  it  was  only  the accused - Parsuram Rai who had assaulted Mohan  Rai  with  the  help  of  sword,  whose assault  resulted  grievous  injury,  and  the deceased Mohan Rai  ultimately  succumbed to  the  said  injury  during  the  course  of transit to the hospital.

      The incident had taken place when the deceased  was  returning  from  the  disputed land and the accused persons were busy in the  adjacent  field  transplanting  paddy seedlings  from where  they  saw Mohan Rai crossing  their  land.  There  was  no premeditation of any kind on the part of the accused  to  commit  the  murder  of  the deceased.  However,  the eye witnesses have deposed that accused - Wakil Rai came and started  quarreling  with  Mohan  Rai  when other  family  members  also  joined.  The quarrel not only suddenly erupted but also escalated  without  any  premeditation.  As rightly  concluded  by  the  High  Court,  the whole  incident  was  spontaneous  and  went out  of  hand  that  too  within  short  spell  of time.

      In  the  facts  and  circumstances  of  the case, though the High Court was justified in altering the conviction of  the accused from Section 302 and 302/149 IPC to Section 304 Part-II IPC, it was not justified in imposing lesser sentence on the accused…”

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28. It is important to have a look at the evidence of

PW 5-Dr. Arvind Kanwar who has conducted Post

mortem  and  according  to  him  there  was  an

incised wound on the right parietal region of size

4”  and 10” above right  ear and another incised

wound of 1” in size on the right index finger. He

has deposed that “the brain was found congested,

yet no fracture was seen on the scalp”. Though in

the cross examination he has stated at one place

that  the  injury  No  2  on  the  scalp  might  be

‘grievous’  that  caused  brain  hemorrhage.  This

particular  fact  is  not  noted  in  the  postmortem

report. Regarding the cause of such injury, PW5

stated  that  it  can  be  caused  by  striking  with

sharp  edged  object  and  the  depth  of  the  scalp

injury  depends  upon  the  force  and  speed.  He

maintains the stand that  it  was a ‘scalp injury’

and  not  ‘skull  injury’.  Moreover,  he  did  not

measure the depth of the head injury which was

necessary for classification of injury.

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29. We  may  note  that  the  injury  to  the  head

resulted  in  Extra-Dural  and  Sub-Dural

Hematoma. We are conscious of the fact that such

symptoms of the same may take some hours to

develop in many cases as has happened in this

case at hand.1 We are also apprised that in such

cases a detailed post-mortem may be necessary

and it is important to know the existence of prior

medical  history  and  condition.  In  this  case  a

generalized  statement  by  the  Doctor  conducting

the  post-mortem that  he  had causally  enquired

about  any  existing  medical  condition  with  the

deceased. It may further be relevant to note the

extract  from  the  Modi,  A  Textbook  of  Medical

Jurisprudence and Toxicology, wherein it is noted

that-

It must be born in mind that a slight injury on the  head may cause  cerebral  hemorrhage  in  a

1  Modi, A Textbook of Medical Jurisprudence and Toxicology, 25th Eds., p.  701.

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person previously predisposed to it from age or disease.2

30. The above opinion goes to show that the injury

no. 2 on the scalp resulted in hemorrhage which

has not been duly accounted for.  Moreover,  the

force  and  gravity  of  assault  indicates  that  the

aforesaid  assault  was  carried  out  with  only

sufficient  knowledge  of  likely  death  of  the

deceased  in  a  free  fight  situation.  Had  he  got

intention to commit the murder of the deceased

by inflicting such injury, he might have used the

weapon  with  sufficient  force  and  in  that  case,

definitely  it  would  have  caused  a  deep  injury

causing fracture of skull. This court is bound to

show  some  deference  to  this  particular  aspect

while  evaluating  the facts  and circumstances of

this case at hand.

31. In  the  case  on  hand,  the  death  is  not

instantaneous,  but  the  deceased  died  after

2  Id. At 704.

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sometime,  due  to  hemorrhage.   When  several

persons of  the accused group wielding weapons

attacked the deceased, it is surprising to see only

two injuries,  that  too,  two simple injuries alone

are  inflicted;  of  course,  one  such  simple  injury

turns  out  to  be  fatal  sometime  later.  This

circumstance  demonstrates  that  the  appellant

had no intention to cause death, though he has

knowledge that the weapon used by him to inflict

injury  on  the  scalp  of  the  deceased  may  cause

death.  But in the absence of  intention to cause

death or to cause such bodily injury as is likely to

cause death, the offence does not fall within the

scope of  Section 300, IPC but it  will  fall  within

Section 304, Part II of the IPC.  

32. We, therefore, hold that the appellants  Manoj

Kumar,  Rangeel  Singh and  Surinder  Singh are

guilty  for  an  offence  punishable  under  Section

304 Part II IPC and not for the offence under Sec.

300 IPC. Their conviction under Section 302 IPC

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is,  therefore,  set  aside.  While  modifying  the

conviction  accordingly,  the  appellants  are

sentenced to suffer  rigorous imprisonment for  a

period of ten years. However, we are informed that

the appellants have already undergone more than

11½ years imprisonment so far, consequently, the

appellants are directed to be released forthwith, if

not required in any other case.

33. Accordingly, these appeals are disposed of in

the above terms.

…………......................J. (N.V. RAMANA)

..................................J.         (S. ABDUL NAZEER)

NEW DELHI, MAY 15, 2018.