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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1985 OF 2010 With

Crl.A.No.1990/2010, Crl.A.No.1991/2010,  Crl.A.No.1992/2010 and Crl.A.No.342/2011

Nanak Ram .. Appellant(s)  versus

State of Rajasthan ..        Respondent(s)

J U D G M E N T

C. NAGAPPAN, J.  

1.      This judgment shall dispose of three appeals in  

Criminal  appeal  Nos.1985  of  2010  filed  by  the  

appellant  Nanak  Ram/Accused  and  Criminal  

Appeal  No.342  of  2011  filed  by

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appellants/Accused  Mohan  Ram  and  Surja  Ram  

against  their  conviction  and  sentence,  and  

Criminal Appeal Nos. 1991 of 2010,  1990 of 2010  

and Criminal Appeal No.1992 of 2010 filed by the  

State  of  Rajasthan  for  the  enhancement  of  the  

sentence against the above mentioned  accused,  

respectively.

2.      The case of  the prosecution in  brief  is  as  

follows : PW 7 Shera Ram is the younger brother  

of  deceased  Shivji  Ram and  they  had  obtained  

land from Gram Panchayat towards the  western  

side  of  the village and obtained Pattas for  the  

said land. Accused Bhera Ram and accused Chuna  

Ram are real  brothers while accused Surja Ram  

and  accused  Mohan  Ram  are  sons  of  accused  

Sadula  Ram.   Accused  Bhera  Ram  and  Sadula  

Ram told Shivji Ram and Shera Ram that they will  

not allow them to take the land and will snatch it  

from them. Two months prior to occurrence Shivji

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Ram and Shera Ram erected fencing around their  

land  whereupon  the  accused  Bhera  Ram  and  

other  accused were  seriously  annoyed over  the  

same. On the occurrence day i.e. on  29.5.1983 at  

10.30  a.m.  Shivji  Ram   and  both  his  younger  

brothers were repairing/re-erecting the fencing in  

their  land,  accused persons  Bhera  Ram,  Sadula  

Ram and  his  sons  Mohan  Ram and  Surja  Ram,  

Gordhan  Ram, Nanak Ram and Chuna Ram, all  

duly  armed entered into  Bara  from  south  side  

and started  dismantling the fence.   Shivji  Ram  

and his brothers questioned the same by saying  

that  they  have  obtained   Patta  from  the  

Panchayat.  Thereupon Bhera Ram and Surja Ram  

simultaneously inflicted Barchhi blow on the head  

of Shivji  Ram, as a result of which he fell  down  

and  all  the  accused  attacked  him  with  their  

weapons.   Shera  Ram  intervened  and  accused  

Mohan Ram inflicted Barchhi  blow which landed  

on the left side of his head and accused Chuna

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Ram inflicted the jei blow on his right leg. Then all  

the   accused   started  beating   whereupon  his  

sister  Dhuri  came  running  and  fell  upon  Shera  

Ram in order to protect him.  PW 11 Balu Ram and  

PW  2  Mangi  Lal  who  were  present  at  the  

occurrence place were threatened by the accused  

and they got frieghtened and saw the occurrence  

standing by the side of the road. After that all the  

accused went away. Shivji Ram died on the spot.

3.      Some  unknown  person  gave  a  telephonic  

information  about  the  occurrence  to  the  Police  

Station  Nokha  on  29.5.1983  and  after  making  

Exh.P-54 entry in the Roznamcha PW 13 Attar Ali  

Khan  went  to  the  occurrence  place  and  found  

Shivji  Ram  lying  dead   and  Shera  Ram  with  

injuries  and  he  recorded  Exh.P9  statement  of  

Shera  Ram,  sent  him   to  Nokha  Hospital  for  

treatment.  He forwarded Exh.P9 statement to the  

Police  Station  for  registering  the  case  and Exh.  

P55  FIR  came to  be  registered.   He  conducted

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inquest on the body of  Shivji Ram and prepared  

Exh.P5 ‘inquest report’. He prepared  Exh.P3 site  

plan and Exh.P45  site inspection note.  He seized  

blood stained earth and ordinary earth under Exh.  

P33  and  also  seized  jeis  used  by  the  accused  

Chuna  Ram,  Nanak  Ram  from  the  occurrence  

place  and  the  blood  stained  wooden  jei  under  

Exh. P34.  He also seized the footwear of Shivji  

Ram  viz.  Exh.P35  and  sent  the  body  for  post  

mortem.   

4.      Dr.  Moti  Lal  Mishra  (PW 9)  conducted  the  

autopsy on the body of Shivji Ram and found the  

following 9 injuries:

i) An incised wound of 6-½” x ½” and deep upto  

brain on the head,

ii) a punctured wound of 1 x ½ x ½ cm  on the left  

knee joint deep to the bone;

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iii) multiple contusion of 1 cm each  incised on the  

left elbow joint;

iv) an abrasion 1 x ½ cm on the left  ring finger  

dorsally;

v) a contusion of 4 x 2 cm on the lower half of the  

left leg anteriorly;

vi) swelling 2 x 2 cm on the left leg near the 5th  

injury;

vii) a contusion of 1 x 1 cm on the right thigh

viii) an abrasion 3 x 1 cm on the right knee joint  

near the ankle joint; and

ix) an abrasion on the right middle finger dorsally.

He  issued  Exh.  P  33  Post  Mortem  report  by  

expressing  opinion  that  the  death  has  occurred  

due to destruction of all  the elements of  brain  

and shock due to excessive  bleeding.

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5.      PW 9 Dr. Moti Lal Mishra examined Shera Ram  

in the Nokha hospital and found the following 11  

injuries on him:

i) One crushed wound of 4 x 3 cm bone deep on  

lower half of the left leg interiorly;

ii) One  crushed  wound  of  1cm  x  .5x.5  cm  on  

middle 1/3 of the right leg laterally;

iii) Contusion of 15 x 1.5 cm on the lower portion of  

glutal region;

iv) An abrasion 3 x ½ cm on the right scapula;

v) One crushed wound of 6 x 1 x 1.5 cm on the left  

side of the head, 7 cm above the left ear,  

vi) An abrasion 1cm x 1 cm on the back side of the  

head;

vii) Swelling 4 x 3 cm on the right palm;

viii) An  abrasion  1  x  ½  cm  on  the  left  thumb  

laterally;

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ix) A contusion of 6 x 1 cm on the middle half of  

the right thigh medially;

x) A contusion of 3 x 1 cm on the  right thigh 2 cm  

above the ninth injury and

xi) Contusion two in number, one of 4 x 1 cm and  

another of 3 x 1 cm on the upper half of the  

right glutal.

He opined that all the above injuries were simple  

in nature and issued Exh. P 32 Injury Report.

6.      After completing investigation challan was filed  

in  the  Court  of  Munsif-cum-Judicial  Magistrate  

Nokha against all  the accused persons. Accused  

Nanak Ram was absconding.  The other accused  

persons namely Bhera Ram,  Sadula Ram, Chuna  

Ram, Surja Ram, Mohan Ram and Gordhan Ram  

were tried in Sessions Case No.63 of1983 for the  

alleged offences under Section 302, 307, 323 and  

324 all  read with  Section 149 IPC  and also  the

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offence  under  Section  147  and  148  IPC.   The  

prosecution examined 13 witnesses and tendered  

in evidence  59 documents.  The learned Sessions  

Judge  convicted  accused  Bhera  Ram  and  Surja  

Ram for the offences under Section 302 read with  

section  149  IPC  and  sentenced  them  each  to  

undergo imprisonment for life.  He also convicted  

accused  persons  Sadula  Ram,  Mohan  Ram  and  

Gordhan Ram for the offences under Section 304  

Part II  read with Section 149 IPC and sentenced  

them  each  to  undergo  five  years  rigorous  

imprisonment.   Besides  he  convicted  accused  

persons namely Surja Ram, Bhera Ram, Gordhan  

Ram  and  Mohan  Ram  for  the  offence  under  

Section  148  IPC  and  sentenced  them  each  to  

undergo  six  months  rigorous  imprisonment   He  

also convicted Sadula Ram for the offence under  

Section 147 IPC and sentenced him to undergo 3  

months rigorous imprisonment.    In  addition he  

convicted  accused  persons  Surja  Ram,  Bhera

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Ram, Mohan Ram, Sadula Ram and Gordhan Ram  

for the offence under Sections 323 and 324 read  

with Section 149 IPC and sentenced them each to  

undergo  6  months  rigorous  imprisonment  and  

directed  all  the  sentences  to  run  concurrently.  

However, he acquitted accused Chuna Ram of the  

charges.  

7.      All  the  five   convicted  accused  persons  

preferred appeal in Appeal No.428 of 1984 on the  

file  of  High Court  of  Judicature of  Rajasthan,  at  

Jodhpur,  challenging  their  conviction  and  

sentences.  The State of Rajasthan challenged the  

complete  acquittal  of  Chuna  Ram  and  the  

acquittal of accused persons Sadula Ram, Mohan  

Ram  and  Gordhan  Ram for  the  offences  under  

Section 302 read with 149 IPC , in Appeal No.106  

of 1985.  During the pendency of the appeals four  

accused  persons  namely  Sadula  Ram,  Gordhan  

Ram, Bhera Ram and Chuna Ram died, with the

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result  the  appeal  preferred  against  them  in  

Appeal  No.  106  of  1985   abated  and  the  said  

appeal  continued  only  as  against  the  accused  

Mohan  Ram.  Like  wise  Appeal  No.428  of  1984  

preferred  by  the  accused  persons  Bhera  Ram,  

Sadula Ram, Gordhan Ram also stood abated and  

it continued on behalf of accused Surja Ram and  

Mohan Ram only.   

8.      The High Court of Rajasthan partly allowed the  

appeal  in  Appeal  No.428  of  1984  filed  by  the  

accused Surja Ram by setting aside his conviction  

for  the  offence  under  Section  302  read  with  

Section 149 IPC and instead convicted him under  

Section 304 Part II read with Section 149 IPC and  

sentenced  him  to  undergo  5  years  rigorous  

imprisonment  and  the  other  conviction  and  

sentences imposed on him were maintained.  At  

the same time it dismissed the appeal in Appeal  

No.428 of 1984 preferred by accused Mohan Ram,

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by  confirming  the  conviction  and  sentence  

imposed on him. The High Court also dismissed  

the Appeal No.106 of 1985 preferred by the State  

of Rajasthan against accused Mohan Ram.

9.       The  accused  Nanak  Ram   on  being  

apprehended was tried in Sessions Case No.24 of  

1985  and  the  learned  Sessions  Judge,  Bikaner  

convicted him for the offence under Section 302  

read with Section 149 IPC and sentenced him to  

undergo life imprisonment.  He also convicted him  

for  the  offence  under  Section  148  IPC  and  

sentenced  him  to  undergo  six  months  rigorous  

imprisonment and further convicted him  for the  

offence under Section 324 read with Section 149  

IPC  and  sentenced  him  to  undergo  one  year  

rigorous  imprisonment  and  in  addition  he  

convicted him for the offence under Section 323  

read with Section 149 IPC and sentenced him to  

undergo three months rigorous imprisonment and

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further  he  convicted  him for  the  offence  under  

Section 447 IPC and sentenced him to  undergo  

two months rigorous imprisonment and directed  

all sentences to run concurrently.  Challenging the  

conviction  and   sentence  Nanak  Ram preferred  

appeal in Criminal Appeal No.314 of 1990 on the  

file  of  High  Court  of  Judicature  at  Rajasthan  at  

Jodhpur  and  the  High  Court  partly  allowed  the  

appeal  by  setting  aside  the  conviction   under  

Section 302 read with Section 149 IPC and instead  

convicted him for offence under Section 304 Part  

II read with Section 149 IPC and sentenced him to  

undergo  five  years  rigorous  imprisonment  and  

maintained  all  the  other  convictions  and  

sentences imposed by the Sessions Court.

10.      Challenging their convictions and sentences  

imposed  by  the  High  Court  on  them  accused  

Nanak Ram, Mohan Ram and Surja Ram preferred  

Criminal Appeal referred to above and the State of

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Rajasthan  also  filed  appeals  against  the  above  

accused  seeking  for  enhancement  of  the  

sentences imposed on them.  All  these appeals  

were heard together and are being disposed of by  

this common judgment.

11.      Mr.  Mahabir  Singh,  learned  senior  counsel  

appearing for the appellants contended that the  

occurrence  took  place  about  30  years  ago  and  

accused  persons  went  to  the  occurrence  place  

only to remove the fence put up by Shivji  Ram  

and his brothers and when it was resisted a free  

fight followed which was accidental and there was  

no intention to kill and  only one blow on the head  

of Shivji Ram was fatal and the other injuries were  

only  minor  injuries,  and the  Courts  below have  

failed  to  appreciate  that  there  are  material  

improvements and infirmities  in  the prosecution  

case and the presence of eye witnesses is highly  

doubtful and the conviction of appellants is wholly

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unwarranted  and  liable  to  be  set  aside.    The  

alternative  plea  of  the  learned  counsel  for  the  

appellants  was  that  the  appellants  have  

undergone three years of their sentence  and they  

be  granted  the  benefit  of  probation  under  the  

provision  of  Section  360  of  Code  of  Criminal  

Procedure   as  well  as  under  Section  4  of  the  

Probation of Offenders Act, 1958, and in support  

of the submission he relied on the decision of this  

Court  in  State  of  Karnataka  vs.  Muddappa  

(1999) 5 SCC 732 and  Eliamma and Another  

vs. State of Karnataka (2009) 11 SCC 42.  

12.     Per contra Ms. Sonia Mathur, learned counsel  

appearing for the State of Rajasthan strenuously  

contended that  Shivji  Ram and his  brothers are  

the Patta holders  of  the land and lease deeds  

have  been  executed  by  the  Panchayat  in  their  

favour and the accused persons having failed in

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their legal proceedings had decided to attack the  

brothers and take forcible possession of the land  

and in pursuance of the said common object all  

the  seven  accused  persons  duly  armed forcibly  

entered the  land and  inflicted  injuries  on  Shivji  

Ram  with  barchhi  and  jei  resulting  in  

instantaneous death and also inflicted injuries on  

his younger brother Shera Ram and the alteration  

made by the High Court on the conviction from  

Section 302 IPC read with Section 149 IPC to one  

under  Section 304 Part  II  IPC read with Section  

149 IPC is erroneous and legally unsustainable.  In  

support  of  her  submissions   she  relied  on  the  

decisions of this Court in Mahesh Balmiki alias  

Munna vs. State of M.P. (2000)1 SCC 319 and  

Arun Nivalaji More vs. State of Maharashtra  

(2006) 12 SCC 613.   

13.      The prosecution has examined PW 7 Shera  

Ram, PW 2, Mandi Lal, PW6 Dhuri and PW11 Balu  

Ram  as  having  witnessed  the  occurrence.  PW7

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Shera Ram and PW 11 Balu  Ram are the younger  

brothers of deceased Shivji Ram and PW6 Dhuri is  

their  sister.  PW 7 Shera Ram  was also  injured  

during the occurrence and according to  him on  

the occurrence day namely on 29.5.1983 at 10.30  

a.m.  Shivji  Ram  and  both  his  brothers  were  

repairing/re-erecting  the  fencing  in  their   Patta  

Land  and  accused  persons  Bhera  Ram,  Sadula  

Ram and  his  sons  Mohan  Ram and  Surja  Ram,  

Gordhan   Ram,  Nanak  Ram  and  Chuna  Ram  

armed with weapons entered into Bara from south  

side and started dismantling the fence and they  

questioned  the  same by  saying  that  they  have  

obtained Patta from Panchayat and at that time  

Bhera Ram and Surja Ram inflicted Barchhi blow  

on the head of Shivji Ram as a result of which he  

fell down and all the accused attacked him with  

their weapons and when he intervened accused  

Mohan Ram inflicted barchhi blow on the left side  

of his head and accused  Chuna Ram inflicted jei

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blow  on  his  right  leg  and  other  accused  also  

started  beating  him whereupon  his  sister  Dhuri  

came  running  and  fell  upon  him  in  order  to  

protect  him  and  the  accused  persons  also  

threatened PW 11 Balu Ram and PW2 Mangi Lal  

and being frightened they stood by the side  of  

the road and saw the occurrence and  Shivji Ram  

died on the spot.  PW7 Shera Ram sustained as  

many as 11 injuries on his person as a result of  

the attack made by all the accused on him at the  

time of occurrence. PW 11 Balu Ram was involved  

in the fencing of the land along with his brothers  

and his presence in the occurrence place cannot  

doubted.  PW 2 Mangi Lal happened to be with  

Shivji Ram in his land and he has witnessed the  

occurrence.  He is an independent witness.  On  

seeing the attack made by the accused on her  

brothers PW 6 Dhuri  came running and tried to  

protect  Shera  Ram  by  falling  upon  him.   The  

testimonies of PW2 Mangi Lal, PW6 Dhuri, PW11

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Balu Ram are natural cogent and in all  material  

particulars  corroborated  the  testimony  of  PW7  

Shera Ram.  Accepting their testimonies it is clear  

that during the occurrence all the seven accused  

as members of unlawful assembly have inflicted  

injuries  with  their  weapons  on  deceased  Shivji  

Ram and PW 7 Shera Ram.

14.      Shivji  Ram  died  of  homicidal  violence  is  

established by the medical evidence adduced in  

the  case.   PW9  Dr.  Moti  Lal  Mishra  conducted  

autopsy on the body of Shivji Ram and found on  

the head an incised wound of 6½” x ½” deep upto  

brain and on internal examination the destruction  

of the elements of the brain.  He also found eight  

other injuries on the other parts of the body.  He  

issued  Exh.  P33  post  mortem  report  and  

expressed  opinion  that  the  death  has  occurred  

due to destruction of the elements of brain and  

shock  due   to  excessive  bleeding.   In  the  oral

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testimony  PW9  Dr.  Moti  Lal  Mishra  has  

categorically stated that injury No.1 found on the  

head was itself sufficient to cause death.  There is  

no doubt that Shivji Ram died of injuries sustained  

during the occurrence.   It  is  further  relevant  to  

note that PW9 Dr. Moti Lal Mishra examined PW7  

Shera  Ram immediately  after  the  occurrence in  

Nokha  hospital  and  found  11  injuries  on  him.  

Ex.P.32  is  the  injury  report  issued  by  him  

mentioning the injuries.  According to him all the  

injuries are simple in nature.

15.      Telephonic information about the occurrence  

was  given  to  Nokha  Police  Station  by  some  

unknown  person  on  29.5.1983  itself  and  PW13  

Attar Ali Khan after making Exh.P54 entry in the  

Roznamcha, immediately went to the occurrence  

place and found Shivji Ram lying dead and Shera  

Ram with injuries.   He recorded Exh.P9 statement  

of Shera Ram and sent him to Nokha hospital for

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treatment  and  forwarded  the  statement  to  the  

Police Station for registering the case Exh.P55 is  

the First  Information Report.  He also seized jeis  

used by the accused from the occurrence place  

under  Exh.P34  Mazhar.    There  is  no  delay  in  

registering  case  and  there  is  no  flaw  in  the  

investigation.

16.      It  is  true that  the accused party had land  

dispute  with  the  victim  party.   The  Collector  

ordered conversion of subject land into abadi and  

on the applications made by Shivji Ram and his  

two brothers, Pattas were issued as evident from  

P12, P16, P17, P20, P21 and P24.  Accused Bhera  

Ram preferred appeals against the grant of Patta  

to Panchayat Samiti at the first instance and they  

came to be dismissed and the revision preferred  

before the Collector was pending.  PW8 Sarpanch  

Dhura Ram and PW5 record keeper Hanuman Das  

have stated so.  Thus the evidence shows that the

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accused  party  was  desirous  to  get  the  subject  

land to themselves and were taking legal steps to  

achieve it.  On coming to know of the fencing put  

by Shivji Ram and his brothers they were annoyed  

and went there to remove the fencing.  While they  

were dismantling the fencing, Shivji Ram and his  

brothers came there and objected to it by saying  

that  they  have  obtained  Patta  and  a  sudden  

quarrel erupted.     

17.       A fight suddenly takes place for which both  

parties are more or less to be blamed and it is a  

combat whether with or without weapons.  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.   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.

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Out of the 9 injuries, only injury no.1 was held to  

be of grievous nature, which was sufficient in the  

ordinary course of nature to cause death of the  

deceased.   The assaults were made at random.  

Even  the  previous  altercations  were  verbal  and  

not physical.   The earlier  disputes over land do  

not appear to have assumed the characteristics of  

physical combat.  This goes to show that in the  

heat  of  passion  upon  a  sudden  quarrel  the  

accused  persons  had  caused  injuries  on  the  

deceased.   That  being  so  the  Exception  4  to  

Section 300 IPC is applicable.  The fact situation  

bears great similarity to that in Ghapoo Yadav &  

Ors.  vs.  State of M.P. (2003) 3 SCC 528.

18.         Looking at the nature of injuries sustained by  

the  deceased  and  the  circumstances  as  

enumerated  above  the  conclusion  is  irresistible  

that  the  death  was  caused  by  the  acts  of  the  

accused done with the intention of causing such  

bodily  injury  as  is  likely  to  cause  death  and

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therefore the offence would squarely come within  

the first part of Section 304 IPC and the appellants  

would  be  liable  to  be  convicted  for  the  said  

offence. The conviction of the appellants/accused  

under Section 304 Part II read with Section 149 IPC  

by the High Court is liable to be set aside.

19.           We  are  of  the  considered  view  that  

imposition  of  7  years  rigorous  imprisonment  on  

each  of  the  appellants  for  the  conviction  under  

Section  304  Part  I  IPC  would  meet  the  ends  of  

justice.   We  sustain  the  other  conviction  and  

sentences imposed on the appellants.  We are also  

of the view that the appellants are not entitled for  

release on probation.

20.             In the result Criminal Appeal No.1990 of  

2010, 1991 of 2010 and 1992 of 2010 preferred by  

the  State  of  Rajasthan  against  the  accused  

persons Nanak Ram, Mohan Ram and Surja Ram  

are  partly  allowed  and  their  conviction  for  the

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offence  under  Section  304  Part  II  IPC  read  with  

Section  149  IPC  and  the  sentences  of  5  years  

rigorous  imprisonment  each  are  set  aside   and  

instead they are convicted for the offence under  

Section 304 Part I read with Section 149 IPC and  

sentenced  to  undergo  seven  years  rigorous  

imprisonment  each.   All  other  convictions  and  

sentences imposed on them by the High Court are  

maintained. Criminal Appeal No.1985 of 2010 and  

342 of 2011 are dismissed.                   

                                                  …………………………….J .

(T.S. Thakur)

……………………………J. (C. Nagappan)

New Delhi; February 26, 2014.