NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 147 OF 2009

Sompal Singh & Anr.                          …Appellants

Versus

State of U.P.                                  …Respondent  

J U D G M E N T

Dr. B.S. Chauhan, J.

1. This  appeal  has  been  preferred  against  the  

impugned  judgment  and  order  dated  24.5.2007  of  the  High  

Court of Judicature at Allahabad in Criminal Appeal No. 2681  

of 1982, by which the High Court has affirmed the judgment  

and  order  passed  by  the  IInd  Additional  Sessions  Judge,  

Budaun dated 12.10.1980 in S.T. No. 540 of 1980, wherein the  

trial  court  had  convicted  the  appellants  alongwith  other  

accused  Jaganant  Singh,  Sahaab  Singh  and  Meharban  Singh  

under Sections 148, 323, 149, 324/149 of the Indian Penal  

Code, 1860 (hereinafter referred to as the `IPC’) and also  

under Sections 320/149 IPC.  All the accused were sentenced  

to undergo RI for one year under Section 148 IPC and were  

further convicted for six months RI under Sections 324/149  

IPC and for another six months RI under Sections 323/149 IPC  

and all of them were also stood convicted under Sections  

302/149 for imprisonment for life.  

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2. The  High  Court  has  converted  the  aforesaid  

conviction and also acquitted all of them for the offence  

punishable under Sections 302/149 IPC.  Kunwar Pal Singh and  

Sahaab Singh  have been sentenced for ten years RI under  

Section 304-I IPC and the other  remaining convicts were  

held guilty under Sections 148, 323, 324/149 IPC and reduced  

their sentences.  

3. So  far  as  the  present  appeal  is  concerned,  it  

relates only to two appellants i.e. Sompal Singh and Kunwar  

Pal Singh.  Sompal Singh is reported to have served out the  

sentence of 1-1/2 years awarded to him and in view of the  

statement  made  by  Shri  Ratnakar  Desh,   learned  senior  

counsel appearing on behalf of the appellants, his appeal is  

dismissed  as  having  become  infructuous.   So,  we  have  to  

consider the case of remaining sole appellant Kunwar Pal  

Singh, the second appellant who has been convicted under  

Section 304-I IPC and sentenced to 10 years RI.   

4. The facts and circumstances giving rise to this  

appeal are that:

A. Shanker Singh, the complainant, was irrigating his  

agricultural field by Persian Wheel (Rahat)  on 21.5.1980.  

At about 11.00 AM, the cattle of Jaganant Singh reached on  

the well and started drinking water.  As a result of which  

the water drain got damaged and this ultimately resulted in  

exchange of words between Shanker Singh and Jaganant Singh.  

Both of them subsequently finished their agricultural work  

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and came to the village at their respective houses.   

B. On  the  same  day,  both  the  appellants  alongwith  

Meharban  Singh,  Sahaab  Singh  and  Jaganant  Singh  attacked  

Shanker Singh at around 2.00 p.m.  Kunwar Pal Singh and  

Sahaab Singh had Kanta, Sompal Singh had a ballam, Jaganant  

Singh had bhala and Meherban Singh had a lathi.  When Bhoop  

Singh,  Pooran  Singh  and  Mukku  Singh,  family  members  of  

Shanker  Singh,  tried  to  save  him,  they  also  suffered  

injuries at the hands of the accused.  Hearing the hue and  

cries, witnesses Bahadur Singh (PW.8), Hakim Singh (PW.9)  

and many other persons arrived at the place of occurrence.  

On seeing this, the accused ran away.  

C. Shanker Singh, injured, dictated a report to his  

nephew Rajbir Singh and when taken to the police station  

Wazirganj  in  bullock-cart,  he  handed  over  the  same  to  

Constable Vidya Ram (PW.6), on the basis of which an FIR was  

registered for riot and assault.  Shanker Singh, injured, as  

well as Mukku Singh, Bhoop Singh and Pooran Singh, injured  

persons were also examined.  Shanker Singh was admitted in  

the  hospital  where  he  succumbed  to  the  injuries  on  

24.5.1980.   The  postmortem  was  conducted  on  his  body  on  

25.5.1980.

 D. On  conclusion  of  the  investigation,  chargesheet  

was  filed  and  after  conclusion  of  the  trial,  they  stood  

convicted and sentenced by the trial court as referred to  

herein above.  

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E. Aggrieved, two appeals i.e. Criminal Appeal Nos.  

2681 of 1982 and 2687 of 1982,  were filed by the convicts  

which have been partly allowed by the High Court vide common  

judgment and order dated 24.5.2007.  

Hence, this appeal.  

5. Shri  Ratnakar  Dash,  learned  senior  counsel  

appearing on behalf of the appellant, has submitted that the  

High Court after appreciating the evidence on record came to  

the  correct  conclusion  that  injuries  had  been  caused  to  

Shanker Singh with Kanta by giving two blows on the head and  

one of them had been given by the present appellant Kunwar  

Pal Singh and another by Sahaab Singh.  The injuries caused  

by each of them separately were not  sufficient to cause  

death.  It was the cumulative effect of both the injuries  

that Shanker Singh had died.  There had been no intention to  

kill Shanker Singh, as nobody could prevent the accused to  

cause further injuries.  Thus, the case falls within the  

ambit of Section 304-II IPC and even if the appellant is  

convicted under Section 304-I IPC, the sentence of 10 years  

is  disproportionate to the offence committed by him.  Thus,  

the appeal deserves to be allowed to that extent.   

6. On  the  contrary,  Shri  Gaurav  Bhatia,  learned  

Additional  Advocate  General  for  the  State  of  U.P.,  has  

opposed the appeal contending that the injury caused by the  

appellant was grievous in nature and sufficient to cause  

death.  Therefore, as the High Court has already converted  

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the conviction from Section 302 IPC to Section 304 Part-I  

IPC and sentence has been reduced from life imprisonment to  

10  years,  no  further  interference  is  warranted  and  the  

appeal is liable to be dismissed.  

7. We have considered the rival submissions made by  

the learned counsel for the parties and perused the records.  

8. The appeal lies in a very narrow compass and is to  

be  decided  considering  as  what  could  be  the  nature  of  

offence   and  what  could  be  the  appropriate  

punishment/sentence for the same, taking into account the  

injury caused by the appellant to Shanker Singh (deceased)  

as the other injured witnesses had suffered injuries at the  

hands of the other co-accused with whom we are not concerned  

at all.   

9. The injuries found on the person of Shanker Singh  

(deceased) are as given below:  

(

(1) Incised wound 9 c.m. X 1 c.m. X bone deep on  

the right skull, 7 c.m. from the right ear.  

(2) Incised wound 7 c.m. X 1 c.m. X bone deep on  

the mid-line of skull, 8 c.m. away from injury No.  

1.  

(3) Contusion 6 c.m. X 2 c.m. on the left anterior  

chest below the left nipple.  

(4)  Contusion 8 c.m. X 2 c.m.  middle of right  

thigh.  

(5) Contusion 4 c.m. X 2 c.m. on the left back of  

shoulder.

  Injuries Nos. l and 2 were caused by some sharp  

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edged object and injuries Nos. 3, 4 and 5 were  

caused by some blunt object.  They were half days  

old in duration.  The doctor also prepared the  

injury report Ex.Ka-15.   

In the opinion of Dr. V.K. Mehta (PW.7), Medical  

Officer at Saidpur Primary Health Centre, injuries nos. 1  

and 2 had been caused by some sharp edged weapon and other  

injuries had been caused by  blunt object.    

10. The  trial  court  after  appreciating  the  entire  

evidence, came to the conclusion that Kunwar Pal Singh - the  

appellant was responsible for causing only one injury on the  

head as the other injury on the head had been caused by  

Sahaab Singh.  However, considering the entire evidence on  

record the court came to the conclusion that Shanker Singh  

died in the hospital next day on account of the aforesaid  

injuries  caused  by  the  accused  persons.  The  prosecution  

witness  established  that  the  accused  persons  formed  an  

unlawful assembly armed with lathis and other lethal weapons  

and in order to prosecute common object of such assembly  

they voluntarily caused serious injuries to Shanker Singh  

causing his death and they also voluntarily caused simple  

injuries to Bhoop Singh, Mikhu Singh and Pooran Singh. Thus,  

on the basis of the prosecution witness, ocular and medical  

it was established that all the accused persons were guilty  

for the offences punishable under Sections 147, 148, 302,  

324 and 323 IPC all read with Section 149 IPC.  

11. In  appeal,  the  High  Court  re-appreciated  the  

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entire evidence and came to the conclusion that appellant  

Kunwar Pal Singh and accused Sahaab Singh were responsible  

for  causing  injuries  on  the  head  of  the  deceased  with  

‘Kanta’. The deceased survived for two days after receiving  

such incised wounds on his dead and died after three days of  

the incident and the common object of the unlawful assembly  

was to belabor the deceased. Considering the common object  

of the assembly it was not possible to draw an inference  

that there was no intention to murder the deceased or cause  

him such bodily injury as was sufficient in the ordinary  

course  of  nature  to  cause  death.  The  force  applied  

inflicting the injury was such that if it did not make the  

deceased even unconscious and he remained alive for three  

days  prior  to  his  death  the  victim  was  in  physical  and  

mental  condition  to  dictate  an  FIR  of  the  incident,  and  

therefore it was not a case where the conviction of any of  

the accused could be affirmed under Section 302/149 IPC,  

rather it was a case for conviction under Section 304 Part I  

IPC  simplicitor.   Using  sharp  edged  weapon  on  the  head  

indicates that Kunwar Pal Singh and Sahaab Singh accused  

knew that death might ensue because of the assault made by  

them.   

  12. Undoubtedly, both the said injuries have been on  

the skull.  The first injury is 7 Cm. away from the right  

ear, however, the second injury is 8 Cm. away from injury  

no.1.  Much arguments have been advanced as what is the  

meaning of bone deep. In case, the injury is caused on the  

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part of the body other than head, it can be measured as  

skin deep.  If injury is deep to certain extent, it may cut  

muscles and then may go upto the bone.  In case of head  

injury, if the injury remains superfluous, it is generally  

described as skull deep. On the head, there is hair which  

rooted to the skin with bulp.  There are cartilages below  

the skin and then comes cranium.  

13. The gravity of the injury is to be determined in  

view of the provisions contained in Section 320 IPC, which  

read:   

“Grievous hurt – The following kinds of hurt only  

are designated as “grievous”:-

Firstly – …………..

                    xxx         xxx          xxx

                                Sixthly - Permanent disfiguration of the head or face.

 Seventhly -Fracture or dislocation of a bone or  

tooth.

Eighthly – Any hurt which endangers life or which  

causes  the  sufferer  to  be  during  the  space  of  

twenty days in severe bodily pain, or unable to  

follow his ordinary pursuits.   

14. So far as the instant case is concerned, clauses  

sixthly  and  seventhly  may  be  relevant.  Nature  of  the  

injuries is to be determined taking into consideration the  

intense suffering to which it gives rise and the serious  

disability which it causes the sufferer.  However, in clause  

seventhly, as the term ‘fracture’ has been referred to, it  

may  be  necessary  that  the  bone  is  broken.  Mere  abrasion  

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would not amount to fracture.  Even a cut that does not go  

across the bone cannot be termed as a fracture of the bone.  

But if the injury is grave even partial cut of the skull  

vault (root or chamber) may amount to a fracture. However,  

clause eighthly refers to the injuries which are not covered  

under any one of the above clauses firstly to seventhly of  

the section. However, it labels the injuries as grievous if  

it endangers life or it causes the sufferer to be during the  

space of 20 days in severe bodily pain or which causes the  

sufferer to be during the space of 20 days unable to follow  

his ordinary pursuits and all the three clauses have to be  

read  independently.   This  is  a  very  thin  and  subtle  

demarcation  line  between  ‘hurt  which  endangers  life’  and  

‘injury as is likely to cause death’. Therefore, sometimes  

it becomes very difficult as to whether a person is liable  

under Section 325 IPC for causing grievous hurt or under  

Section  304  IPC  for  culpable  homicide  not  amounting  to  

murder when the injury results in the death of the victim.  

In the present case, the injuries nos. 1 and 2 are beyond  

`hurt which endanger life’ and clearly falls in the category  

of ‘injuries as are likely to cause death’ even though each  

injury may not be individually sufficient to cause death.  

15. The High Court has set aside the conviction under  

Section  302  read  with  Section  149  IPC  and  the  finding  

attained finality to that extent. There is ample evidence on  

record to draw the conclusion that the injury caused by the  

appellant was not sufficient to cause death independently.  

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In such a fact-situation, the conviction of the appellant as  

recorded by the High Court under Section 304 Part I IPC is  

upheld. However, in the facts of the case as the incident  

occurred about thirty four years ago, sentence is reduced to  

seven  years.  The  appeal  stands  disposed  of  with  the  

aforesaid modification.  

                        ......................J.      (Dr. B.S. CHAUHAN)

                          .....................J.                              (A.K. SIKRI)  

New Delhi,                                         May 16, 2014

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ITEM NO.1A               Court No.2             SECTION II

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                     CRIMINAL APPEAL NO(s). 147 OF 2009

SOMPAL SINGH & ANR.                               Appellant (s)

                VERSUS

STATE OF U.P.                                     Respondent(s)

(With office report)

Date: 16/05/2014  This Appeal was called on for pronouncement of      judgment today.

For Appellant(s)                     Mr. Irshad Ahmad,Adv.                     Mr. Samir Ali Khan ,Adv

For Respondent(s) Mr. Gaurav Bhatia, AAG Mr. Aviral Saxena, Adv.

                    Mr. Anuvrat Sharma,Adv.

Hon'ble Dr. Justice B.S. Chauhan pronounced  the  judgment  of  the  Bench  comprising  of  His  Lordship and Hon'ble Mr. Justice A.K. Sikri.

The appeal is disposed of in terms of the  signed non-reportable judgment.

  (DEEPAK MANSUKHANI) (M.S. NEGI)   Court Master  Assistant Registrar

(Signed non-reportable judgment is placed on the file)

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