SANJAY Vs STATE OF U.P.
Bench: T.S. THAKUR,R. BANUMATHI
Case number: Crl.A. No.-000011-000011 / 2016
Diary number: 9414 / 2013
Advocates: ABHISHEK GUPTA Vs
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 11 OF 2016 (Arising out of S.L.P. (Crl.) No.3896 of 2013)
SANJAY ..Appellant
Versus
STATE OF UTTAR PRADESH ..Respondent
WITH
CRIMINAL APPEAL NO. 12 OF 2016 (Arising out of S.L.P. (Crl.) No.3897 of 2013)
NARENDRA ..Appellant
Versus
STATE OF UTTAR PRADESH ..Respondent
J U D G M E N T
R. BANUMATHI, J.
Leave granted in both the special leave petitions.
2. These criminal appeals have been filed assailing the
impugned judgment dated 30.08.2012 passed by the High Court of
Judicature at Allahabad dismissing the criminal appeals
No.2188/2007 and 2561/2007 upholding the conviction of the
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appellant Narendra for offences under Sections 302, 307 read with
Section 34 IPC and Section 452 IPC and also the sentence of life
imprisonment, ten years imprisonment with fine of Rs.5,000/- and
three years imprisonment with fine of Rs.1,000/- respectively. The
High Court also confirmed the conviction of the appellant Sanjay
under Section 302 read with Section 34 IPC, Section 307 read with
Section 34 IPC and Section 452 IPC and sentence of life
imprisonment, ten years imprisonment with a fine of Rs.5,000/-
and three years imprisonment with a fine of Rs.1,000/-
respectively.
3. Case of the prosecution is that appellant-Sanjay is the
brother of deceased Roop Singh. According to PW-2 Sheela wife of
Roop Singh, after selling his land to Narendra, Sanjay was insisting
his brother Roop Singh to sell his land to Narendra for which Roop
Singh refused, due to which appellant-Sanjay is said to have
developed enmity towards Roop Singh. On the intervening night of
10/11.08.1998 at 3.00 a.m., Roop Singh and his wife Sheela were
sleeping in their chowk and a lantern was lit in the house.
Appellants–Narendra and Sanjay along with another person armed
with tamancha (pistol) came to the house of Roop Singh.
Appellant-Narendra fired multiple bullets at Roop Singh and Roop
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Singh sustained bullet injury in his head. Sanjay fired at PW-2
Sheela and she sustained bullet injuries at neck, abdomen and her
right leg. Hearing sounds of bullets, the complainant-Partap Singh
and one Ompal and several other persons rushed to the spot and
on seeing them, the appellants Narendra, Sanjay and the third
assailant fled away from the scene. On the basis of the complaint
lodged by Partap Singh at Police Station Sardhana, Meerut, case
was registered in Crime No. 387/1998 for offences under Sections
307 and 452 IPC. Injured victims were sent to Primary Health
Centre, Sardhana, Meerut for treatment. Roop Singh (deceased)
was admitted at Safdarjung Hospital, Delhi and after treatment,
Roop Singh was discharged from the hospital on 25.09.1998.
Subsequently, Roop Singh developed complications, Roop Singh
was taken for check up to Delhi and Roop Singh died on
13.10.1998. Ram Pal gave written information about the death of
injured Roop Singh to the police and Section 302 IPC was added to
the FIR. After completion of investigation, chargesheet was filed
against the appellants for offences under Sections 302, 307 and
452 IPC.
4. To substantiate the charges against the appellants,
prosecution examined nine witnesses and exhibited twenty five
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documents and material objects. Upon appreciation of evidence,
the learned Additional Sessions Judge, Meerut vide judgment dated
17.03.2007 found the appellants guilty for offences under Section
302 IPC read with Section 34 IPC and Section 307 IPC read with
Section 34 IPC and Section 452 IPC and they were sentenced to
suffer life imprisonment, ten years imprisonment with a fine of
Rs.5,000/- and three years imprisonment with a fine of Rs.1,000/-
respectively. The trial court ordered that half of the fine amount be
paid to PW-2 Sheela as compensation. Aggrieved by the verdict of
conviction, the appellants filed criminal appeals before the High
Court of Judicature at Allahabad which were dismissed vide
common impugned judgment dated 30.08.2012 upholding the
conviction and sentence imposed upon the appellants as aforesaid.
Aggrieved, the appellants have preferred these appeals assailing the
conviction and sentence imposed on them.
5. Learned counsel for the appellants contended that as the
deceased Roop Singh had already transferred his land to Partap
Singh (PW-1) about one and a half years prior to the occurrence
and therefore it is improbable that Sanjay would have insisted his
brother Roop Singh to sell his land also to appellant-Narendra and
as such the motive suggested by the prosecution is not a probable
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one. It was further submitted that death of Roop Singh as seen
from the evidence of Dr. Laxman Das (PW-9) when Roop Singh was
discharged from the hospital his condition was stable and two
months thereafter Roop Singh died due to septicaemia and
therefore conviction of the appellants under Section 302 IPC is not
sustainable.
6. Per contra, Mr. Ratnakar Dash, learned Senior Counsel
for the respondent contended that death of Roop Singh was the
direct result of the multiple bullet injury inflicted by the appellants
and the head injury caused by the appellants was sufficient in the
ordinary course of nature to cause death and the courts below
rightly convicted the appellants under Section 302 IPC and the
same cannot be interfered. Learned Senior Counsel submitted that
as the deceased Roop Singh sustained bullet injuries on his head,
intention to cause death can be inferred from the situs and nature
of the injury and the weapon used.
7. Case of the prosecution as seen from the evidence is
that appellants-Sanjay and Narendra and one unidentified
assailant armed with countrymade pistols entered the house of
deceased Roop Singh at the wee hours-3.00 a.m. on 11.08.1998. It
is alleged that the appellant-Sanjay fired four times at his sister-in-
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law-Sheela (PW-2) wife of the deceased and Narendra fired one gun
shot on the deceased-Roop Singh. Roop Singh was operated at
Safdarjung Hospital, Delhi and was discharged on 25.09.1998 and
he was taken back to his home at village Sardhana. When injured
Roop Singh was taken to Delhi for check up, he died on the way to
hospital on 13.10.1998, PWs 1 and 2 have consistently spoken
about the overt act of the appellants. PW-2-Sheela is an injured
witness and her version stands on a higher footing. The testimony
of the injured witness coupled with the fact that the complaint was
promptly lodged by the complainant-Partap Singh within one and
half hours of the incident lends assurance to the prosecution case.
As the prosecution version is unassailable, by order dated
18.04.2013, this Court issued notice limited to the question of
nature of the offence committed by the appellants.
8. In the light of the specific contention advanced by the
appellants that after the attack the deceased survived for sixty two
days after his surgery discharged in stable condition, the only issue
which needs to be examined is whether conviction of the appellants
under Section 302 IPC is sustainable.
9. Dr. Laxman Das (PW-9), Neuro Surgeon at Safdarjung
Hospital, Delhi who examined injured Roop Singh on 12.08.1998
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found one wound of insertion of bullet in the head mid frontal
region of Roop Singh which measured 2 cm x 2 cm. PW-9
conducted the operation on 15.09.1998 and bullet was extracted
from the supra cellar part of the head of Roop Singh. PW-9 stated
at the time of admission of Roop Singh in the hospital on
12.08.1998, general condition of the patient was serious and that
the injuries received in the head was dangerous to his life.
Dr. Laxman Das (PW-9) opined that condition of the deceased at
the time of discharge from the hospital on 25.09.1998 was not
critical and his condition was stable. In the instant case,
admittedly, deceased Roop Singh died after sixty two days of the
fateful incident. PW-3-Dr. M.C. Gulecha, who conducted the post-
mortem examination on the body of deceased-Roop Singh opined
that the cause of death was septicaemia which was due to the
wounds sustained by him prior to his death.
10. Learned counsel for the appellants submitted that since
Roop Singh died more than two months after the date of the
occurrence and that he was discharged from the hospital in good
condition and septicaemia might have set in due to lack of proper
care after he was discharged from the hospital and therefore the
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appellants cannot be said to have caused the death of deceased
and the conviction under Section 302 IPC is not sustainable.
11. Learned Senior Counsel for the respondent contended
that second appellant-Narendra inflicted serious injuries on the
forehead of the deceased and fire shots with intention to kill the
deceased and the intention to cause death can be inferred from the
situs of the injury and that the act was sufficient in the ordinary
course of nature to cause death. Reliance was placed upon the
judgment of this Court in Jagtar Singh And Anr. vs. State of Punjab,
(1999) 2 SCC 174 and Dhupa Chamar And Ors. vs. State of Bihar,
(2002) 6 SCC 506.
12. In Jagtar Singh’s case (supra), Harbans Singh gave
gandasa blow on the left side of the head of deceased-Naib Singh,
Jagtar Singh inflicted khapra blow to the deceased. The incident
happened on 23.09.1991 and the injured succumbed to his injuries
even while he was undergoing treatment at PGI Hospital
Chandigarh on 09.10.1991. In the said case, it was brought out
from evidence that the deceased succumbed to injuries even while
he was undergoing treatment and in such facts and circumstances,
court drew inference that the injuries were sufficient in the
ordinary course of nature to cause the death. In Dhupa Chamar’s
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case (supra), Dhupa Chamar gave a bhala blow on the left side of
neck of Ram Patia Devi and she fell down and died
instantaneously. Accused No.2-Tokha Ram assaulted Dharam
Chamar in the abdomen with bhala and he was rushed to the
hospital whereupon he was declared brought dead. On the basis of
nature of injuries inflicted which resulted in the instant death of
the deceased persons and other circumstances, court held that the
intended injury was sufficient in the ordinary course of nature to
cause death and convicted the accused for the offences under
Section 302 IPC.
13. However, in the instant case, it is apparent that the
death occurred sixty two days after the occurrence due to
septicaemia and it was indirectly due to the injuries sustained by
the deceased. The proximate cause of death on 13.10.1998 was
septicaemia which of course was due to the injuries caused in the
incident on 11.08.1998. As noted earlier, as per the evidence of
Dr. Laxman Das (PW-9), Roop Singh was discharged from the
hospital in good condition and he survived for sixty two days. In
such facts and circumstances, prosecution should have elicited
from Dr. Laxman Das (PW-9) that the head injury sustained by the
deceased was sufficient in the ordinary course of nature to cause
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death. No such opinion was elicited either from Dr. Laxman Das
(PW-9) or from Dr. Gulecha (PW-3). Having regard to the fact that
Roop Singh survived for sixty two days and that his condition was
stable when he was discharged from the hospital, the court cannot
draw an inference that the intended injury caused was sufficient in
the ordinary course of nature to cause death so as to attract clause
(3) of Section 300 IPC.
14. In Ganga Dass alias Godha vs. State of Haryana, 1994
Supp (1) SCC 534, the accused gave iron pipe single blow on the
head of the deceased and the deceased died eighteen days after the
occurrence due to septicaemia and other complications, the
conviction of the appellant under Section 302 IPC was altered by
this Court to Section 304 Part II IPC. This Court observed as
under:-
“6. We find considerable force in this submission. As stated above the occurrence took place on November 18, 1988 and the deceased died 18 days later on December 5, 1988 due to septicaemia and other complications. The Doctor found only one injury on the head and that was due to single blow inflicted with an iron pipe not with any sharp-edged weapon. Having regard to the circumstances of the case, it is difficult to hold that the appellant intended to cause death nor it can be said that he intended to cause that particular injury. In any event the medical evidence shows that the injured deceased was operated but unfortunately some complications set in and ultimately he died because of cardiac failure etc. Under these circumstances, we set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict him under Section 304 Part II IPC and sentence him to undergo six years’ RI. The sentence of fine of
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Rs.2000 along with default clause is confirmed. Accordingly the appeal is partly allowed.”
15. In the instant case, the appellants used firearms
countrymade pistol and fired at Roop Singh at his head and the
accused had the intention of causing such bodily injury as is likely
to cause death. As the bullet injury was on the head, vital organ,
second appellant intended of causing such bodily injury and
therefore conviction of the appellant is altered from Section 302 IPC
to Section 304 Part I IPC. The learned counsel for the appellant-
Sanjay submitted that it was only Narendra who fired at Roop
Singh at his head, appellant-Sanjay fired on Sheela (PW-2) on her
neck, stomach and leg. Learned counsel for the appellant-Sanjay
contended that as Sanjay fired only at Sheela, he could not have
been convicted for causing death of Roop Singh under Section 302
IPC read with Section 34 IPC. There is no force in the above
contention. The common intention of the appellants is to be
gathered from the manner in which the crime has been committed.
Both the appellants came together armed with firearms in the wee
hours of 11.08.1998. Both the appellants indiscriminately fired
from their countrymade pistols at Roop Singh-deceased and Sheela
(PW-2) respectively. The conduct of the appellants and the manner
in which the crime has been committed is sufficient to attract
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Section 34 IPC as both the appellants acted in furtherance of
common intention. The conviction of the appellant-Sanjay under
Section 302 IPC read with Section 34 IPC is modified to conviction
under Section 304 Part I IPC.
16. Conviction of the appellants-Narendra and Sanjay
under Section 302 IPC and Section 302 IPC read with Section 34
IPC respectively is modified to Section 304 Part I IPC and Section
304 Part I IPC read with Section 34 IPC respectively and each of
them are sentenced to undergo rigorous imprisonment for ten years
and the same shall run concurrently alongwith sentence of
imprisonment imposed on the appellants. Conviction of the
appellants for other offences and the respective sentence of
imprisonment imposed on the appellants and fine is affirmed. The
appeals are partly allowed to the above extent.
……………………CJI. (T.S. THAKUR)
.………………………J. (R. BANUMATHI)
New Delhi; January 06, 2016
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