NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1835 OF 2010  

SATISH KUMAR ….. APPELLANT(S)

VERSUS

THE STATE OF HARYANA ….. RESPONDENT(S)

J U D G M E N T

SANJIV KHANNA, J.

The impugned judgment dated September 19, 2008 passed

by the  Punjab  &  Haryana High  Court  affirms conviction  of  the

present appellant Satish Kumar and one Dhajja Ram for murder of

Shamsher under Section 302 read with Section 34 of the Indian

Penal Code (hereinafter referred to as the “Code”), for which the

appellant has been sentenced to imprisonment for life and fine of

Rs.  10,000/-  with default  stipulation to undergo further  rigorous

imprisonment for two years. The impugned judgment also affirms

conviction of Satish Kumar and Dhajja Ram under Section 506

read  with  Section  34  of  the  Code  for  which  they  have  been

sentenced to rigorous imprisonment for one year and fine of Rs.

1,000/-  each  with  default  stipulation  to  undergo  rigorous Criminal Appeal No. 1835 of 2010 Page 1 of 7

imprisonment  for  3  months  and  under  Section  323  read  with

Section 34 of the Code for which they have been sentenced to

undergo  rigorous  imprisonment  for  six  months  and  fine  of  Rs.

500/-  each,  and  in  default  to  undergo  further  rigorous

imprisonment for one month.      

2. It  appears  that  Dhajja  Ram  has  not  assailed  the  impugned

judgment passed by the Punjab & Haryana High Court.  In fact, it

was stated before us that perhaps he has been released on grant

of remission.  

3. As  far  as  involvement  of  the  present  appellant  in  the  offences

under  Sections 302,  506 and 323 read with  Section 34 of  the

Code is concerned, we find no ground and reason to interfere with

the findings recorded by the High Court affirming the findings of

the trial Court that Dhajja Ram and Satish Kumar had given ‘Lathi’

blows to deceased Shamsher as was stated by the deceased to

Surender (PW-2) on his way to the hospital and to ASI Sri Kishan

(PW-9),  which  statements  have  been  relied  upon  as  dying

declaration. Bharpoor (PW-7) and Sadhu Ram (PW-8), who had

gone  to  ease  themselves,  on  hearing  alarm  raised  by  the

deceased  Shamsher  had  returned  and  witnessed  the  incident.

They  have  also  deposed  on  the  involvement  of  the  appellant.

They along with Surender (PW-2) have also deposed as to the Criminal Appeal No. 1835 of 2010 Page 2 of 7

reason and motive for the violence, as the appellant and Dhajja

Ram  had  threatened  deceased  Shamsher  on  account  of  their

objections to the relations of a woman belonging to ‘Dahiya Gotra’

with a man of ‘Ohlan Gotra’.

4. The primary question which arises for consideration is whether the

conviction of the appellant for murder under Section 302 of the

Code is justified and correct, or it should be converted to Section

304 Part I of the Code.   

5. As per the dying declaration of the deceased, the appellant Satish

Kumar had given ‘Lathi’ blows on his waist and below the right

knee  whereas  Dhajja  Ram  had  given  ‘Lathi’  blows  on  his

thigh/knee of left leg and left hand. The medico-legal report Ex-PC

prepared by Dr. Jai Mala (PW-3) on 20th March, 2002 at about

9:15 a.m., had observed the following injuries on Shamsher, when

he was alive:

“1. A bruise reddish bluish in colour,  3 cm x 1cm in size was present on posterior aspect of left forearm in middle part along with swelling. No bleeding was present.  Tenderness was present.  Advised for  X- ray left forearm, A.P. lateral view.

2. A bruise reddish in colour, 10 cm x 1 cm in size was present on upper border of the right buttock region.

3. A bruise 4 cm x 1 cm in size, reddish in colour was present  below  right  knee  along  with  diffused swelling  involving  right  knee.  No  bleeding  was present.  Tenderness  was  present.  Advised  X-ray right knee, A.P and later view.

Criminal Appeal No. 1835 of 2010 Page 3 of 7

4. A bruise reddish in colour 4 cm x ½ cm in size was present on right upper back region. Advised X-ray chest right side.”

6. Subsequently,  condition  of  Shamsher  had  deteriorated  and  he

was  referred  to  Post  Graduate  Institute  of  Medical  Sciences,

Rohtak where he died on 21st March, 2002.  Dr. R.K. Nandal (PW-

4)  had conducted autopsy of  Shamsher  on March 22,  2002 at

about 12:05 p.m. and his post-mortem report Ex-PG, records:

“1. A contusion on left forearm, mid part posterior side, on  dissection,  infiltration  of  blood  in  surrounding tissues was present.

2. There was contusion of posterior side of left elbow joint, 3x2 cm.  On dissection fracture of humerous was seen.

3. The  contusion  on  right  buttuck,  10x1.2  cm,  on dissection, infiltration of blood was present.

4. A contusion on right knee joint front 4.5 x 2 cm on dissection, infiltration of blood was present.

5. A contusion on right upper back region, 4x1 cm in size.

6. On  dissection  of  head,  there  was  infiltration  of blood in whole the brain with clotted blood present at the base of skull, 80-100 cc.

7. There was dislocation of first cervical vertebral joint present.”  

   As per the post mortem, the head injury was sufficient cause

of death in ordinary course of nature.  

7. As  noticed  above,  the  dying  declaration  of  the  deceased  had

referred to ‘Lathi’ blows which were given on his legs, left hand

and waist and did not refer to any ‘Lathi’ blow on his head. The

Criminal Appeal No. 1835 of 2010 Page 4 of 7

medico-legal report Ex-PC prepared by Dr. Jai Mala (PW-3) also

does not refer to any head injury. Dr. R.K. Nandal (PW-4) who had

conducted the post mortem had testified that there was infiltration

of blood in the whole brain with clotted blood 80-100 cc present at

the base of skull. There was dislocation of first cervical vertebral

joint. All other organs were found healthy and pale. The cause of

death was the head injury. Importantly, Dr. R. K. Nandal (PW-4)

during the course of cross-examination had stated as under:

“Before  post  mortem,  only  police  papers  of  inquest proceedings before me with initial summary.  Bed Head ticked was not produced before me.  It is not necessary that just after dislocation of first cervical patient would die within very short period.  Death is also not certain in case of dislocation of first cervical.   I  am MBBS and M.D (Gynaecologist).   It  is incorrect that detection of dislocation of first cervical is not possible without X-ray. Volunteered it is possible in post mortem examination. It is incorrect to say that only Neurologist expert can find  out  its  dislocation  of  cervical  and not  any  other medical  officer.   It  is  correct  that  first  cervical  is surrounded by  a ring of  fibrous tissues.   Dislocation can also be due to sudden severe jerk.  It is incorrect that my opinion regarding cause of death may not be correct.”

8. Clearly,  therefore,  there  is  inconsistency  between  the  dying

declaration,  medico-legal  report  Ex-PC  and  the  post  mortem

report Ex-PG. Further, cross-examination of Dr. R.K. Nandal  (PW-

4)  exposits contradiction as to whether the injury in question was

sufficient to cause death in normal course of nature. Benefit  of

Criminal Appeal No. 1835 of 2010 Page 5 of 7

doubt  in  view of  the ambiguity  and contradictions must  go the

appellant.   

9. In view of the aforesaid, we do not think that the condition and

mandate of third clause of Section 300 of the Code that the bodily

injury intended to be inflicted was sufficient in ordinary cause of

nature to cause death has been proved and established beyond

doubt. Pertinently,  it  is under this clause alone that the present

appellant has been convicted for murder under Section 302 read

with Section 300 of the Code and sentenced to life imprisonment.

Accordingly,  the  conviction  of  the  appellant  Satish  Kumar  is

converted from Section 302 to Part I of Section 304 of the Code.

Other convictions are maintained and not interfered.   

10. Turning to the question of sentence for the offence under Section

304 Part I, we find that the appellant was released on bail vide

order dated July 22, 2011, which refers to Jail Custody Certificate

dated  September  16,  2010  that  the  appellant  had  undergone

sentence of seven years on the date of issue. The appellant has

been on bail since then. We do not think that the appellant should

be again incarcerated and sent to jail.  

11. We would, therefore, partly allow the present appeal by converting

the conviction of the appellant from Section 302 to Section 304

Criminal Appeal No. 1835 of 2010 Page 6 of 7

Part  I  of  the  Code  for  imprisonment  to  the  period  already

undergone. The appellant would, however, be liable to pay a fine

of  Rs.  1,000/-  in  default  of  which  he  would  undergo  simple

imprisonment for one month. As stated above, the conviction and

sentence of the appellant for other offences is maintained.  

......................................J. (INDU MALHOTRA)

......................................J. (SANJIV KHANNA)

NEW DELHI; OCTOBER 3, 2019.

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