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                                                                                     REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 185  of 2016 (@ SLP(Crl.) No.967 of 2015)

State of Madhya Pradesh        ...                   Appellant  

versus

Goloo Raikwar and Anr.                ...           Respondent(s)

J U D G M E N T

C. NAGAPPAN, J.

1 Leave granted.  

2 This  appeal  is  preferred  against  the  judgment  dated  

26.9.2012 passed by  the  High Court  of  Madhya Pradesh  

Principal seat at Jabalpur in Criminal Appeal No. 1797 of  

2004 whereby the High Court partly allowed the appeal filed  

by  the  respondents/accused,  by  setting  aside  their  

conviction under Section 302 IPC and convicted them for  

the  offence  under  Section  304  Part  I  IPC  and  thereby

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reducing their sentence from life imprisonment to Rigorous  

Imprisonment for 10 years.

3 Briefly the facts are as follows :  Deceased Hari Choudhary  

is  the uncle  of  PW1 Kallu Choudhary.   On 15.8.2000 at  

about 3.30 p.m. both  of them were going to eat betel and  

on  their  way  they  saw  respondent  no.1/accused  Golu,  

respondent no.2/accused Bhura and three other  accused  

namely Puttu @ Ram Charan, Gabbar and Bedilal  armed  

with weapons, coming and accused Bhura hurled  country  

bomb at them.  On explosion they fell down and accused  

Bhura dealt a blow of sword to PW1 Kallu and the other  

accused  also assaulted him with their weapons.  PW1 saw  

the accused persons assaulting Hari Choudhary with their  

weapons.  He ran and informed PW3 Ram Niwas, brother of  

Hari  and  they  carried  injured  Hari  to  Victoria  Hospital,  

Jabalpur  where  he  was  declared  dead.   On  telephonic  

information  PW10  Sub-Inspector  R.B.  Soni  reached   the  

hospital and recorded Exh.P1 complaint given by PW1 Kallu  

and prepared Exh.P2 Murg Report.  He conducted inquest

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and prepared Exh.P3 Inquest Report and gave requisition  

for  conducting  post-mortem.   He  also  sent  injured  PW1  

Kallu for medical examination.

4 Dr. Ashok Kumar Jain conducted the autopsy and  found  

following injuries on the body of Hari:

i) Incised wound 3” x ½” muscle deep on right  cheek

ii)  Incised  wound  4”  x  ½”  x  bone  deep  on  left  cheek extending up to ear.  The pinna of the ear  was cut.

iii) Incised wound on right knee joint posteriorly to  lateral  aspect.   Joint  disarticulated.  Patella  hanging  with  the  help  of  tendon.   Vessels,  nerves and other soft tissues severed.

iv)  Incised  wound  3”  x  ¾”  x  bone  deep  over  occipital  region obliquely placed. Clotted blood  matting the skull hair.

v)     Swelling of blue colour on the right shoulder on  the back side 6” in length.

vi) Linear  abrasion  over  left  side  of  chest  lateral  aspect 4” in length, bluish in colour.

Injuries  No.1,2,3  and  4  were  caused  by  hard  and sharp object.   Injuries  No.5 and 6 might  have been caused by hard and blunt object.  All  the  injuries  were  ante  mortem in  nature  and  were sufficient to cause death.  In the opinion of  Dr.  Jain,  cause  of  death  was  excessive  haemorrhage  from Injury  No.3.   The  death of  deceased was homicidal.

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5  PW10 Sub-Inspector Soni,  after registering a case under  

Section  302  IPC  and  Section  3(2)(v)  of  Scheduled  

Caste/Scheduled Tribe (Prevention of Atrocities) Act against  

the accused persons and after investigation filed the charge-

sheet.  After committal the Sessions Court framed charges  

against both the respondents herein and accused Puttu @  

Ram  Charan.   Accused  Gabbar  and  Bedilal  were  

absconding.   The  trial  court  convicted  the  respondents  

herein for the offence under Section 302 IPC and acquitted  

them for  the  offence  under  Section  3(2)(v)  of  the  SC/ST  

(P.A.) Act  and sentenced each of them to life imprisonment  

and to pay a fine of  Rs.1000/- each in default to undergo  

one month simple imprisonment for the charge of murder.  

At the same time the trial court acquitted accused Puttu @  

Ram Charan of the charges.  Challenging the same, both  

the respondents herein preferred appeal and the High Court  

altered the  conviction  and sentence  as  mentioned  above.  

Aggrieved by the same the State has preferred the present  

appeal.

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6 The learned counsel for the appellant State submitted that  

the view taken by the High Court is patently erroneous in  

law as the offence under Section 302 IPC was clearly made  

out.  It is his further submission that the High Court has  

committed an error in holding that injury no.3 was not on  

vital part of the body and the other injuries were not fatal in  

nature, and therefore,  intention to commit murder of  the  

deceased cannot be held established. According to him the  

accused attacked the deceased by hard and sharp weapons  

at  the time of  occurrence resulting in  his  death and the  

offence  of  murder  is  clearly  made  out.   Per  contra  the  

learned counsel  appearing for  the  respondents  supported  

the view taken by the High Court and submitted that the  

impugned judgment is sustainable in law.

7 The respondents have not challenged their conviction. The  

trial  court,  as  already  noticed,  had  convicted  the  

respondents of the offence of murder.  The High Court has  

disagreed with the Trial Court and held the offence was not  

‘murder’ but one under  Section 304-I of the Indian Penal

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Code.   The  High  Court  reached  this   conclusion  on  the  

following reasoning:   

“17.  On  perusal  of  the  evidence  of  Dr.  Ashok  Kumar Jain (PW-6) it seems that injuries No.1 and  2, which were caused on right and left cheeks of  deceased  by     sharp  edged  weapons,  were  not  grievous.   Similarly,  injury  No.4,  which  was  an  incised wound on the occipital region of the skull  was bone deep.  Though there was bleeding from it,  but the bone was not found cut. Injuries No.5 and  6  were  respectively  swelling  and  abrasions  on  shoulder  and  chest.  No.  underneath  organ  was  found  damaged.  No  doubt  Dr.  Jain  stated  that  injuries  found  on  the  body  of  deceased  were  sufficient  to  cause  his  death,  but  he  did  not  mention  this  fact  in  the  postmortem  report  (Ex.P/10).   In  Ex.P/10  as  well  as  in  court  he  specifically  stated  that  the  cause  of  death  of  deceased  was  excessive  haemorrhage  from  the  injury No.3 which was on the knee.

18. In view of the above medical evidence, in our  opinion,  it  cannot  be  held  established  with  certainty  that  appellants  intended  to  commit  murder  of  the  deceased,  but,  since  they  caused  number  of  injuries  by  sharp  edged  weapons  to  deceased and the injury No.3 proved fatal, it can be  held  that  appellants  assaulted  deceased  with  an  intention of causing such bodily injuries to him as  were likely to cause his death making them liable  to be punished under Section 304-I of the Indian  Penal Code”.

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8. We  are  unable  to  appreciate  and  accept  this  

reasoning.   When  the  deceased  along  with  PW1  Kallu  

Choudhary were going to eat betals  respondents/accused  

came  from  the  front  side  and  second  respondent  Bhura  

pelted country bomb at them and inflicted blow of sword  on  

Hari  and  the  other  accused  assaulted  Hari  with  sword,  

Gupti  and  Kankur  and  they  also  attacked  PW1  Kallu  

Choudhary with weapons.  Hari was soiled in blood and was  

moaning and on being taken to hospital, was declared dead.  

Injuries no.1 to 4 found on the body of Hari were incised  

wounds and 3rd and 4th of them were inflicted on the right  

knee joint  and head respectively.   Dr.  Ashok Kumar Jain  

who  conducted  the  autopsy  has  stated  that  the  injuries  

found on the body were sufficient to cause death.  It was  

pointed  out  that  the  cause  of  death  was  excessive  

haemorrhage from injury no.3 which was on the knee.

9. In  State  of  Andhra  Pradesh  vs.  Rayavarapu  

Punnayya and Anr. (1976) 4 SCC 382), this Court had to  

deal with a similar situation. In that case, the accused 5 in

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number beat the victim with sticks on the legs and arms of  

the  deceased  and  when  hospitalized  the  deceased  

succumbed  to  his  injuries.   The  medical  officer  who  

conducted the autopsy opined that the cause of death was  

shock and haemorrhage resulting from multiple injuries and  

said injuries were cumulatively sufficient to cause death in  

the ordinary course of nature.   Question arose whether in  

such a case when no significant injury had been inflicted on  

a vital part of the body, and the weapons used were sticks  

and the accused could not be said to have the intention of  

causing  death,  the  offence  would  be  ‘murder’  or  merely  

‘culpable homicide not amounting to murder’.   This Court  

answered the question in these terms:

“39.  …….  .  All  these  acts  of  the  accused  were  preplanned  and  intentional,  which,  considered  objectively in the light of the medical evidence, were  sufficient in the ordinary course of nature to cause  death.   The  mere  fact  that  the  beating  was  designedly confined by the assailants to the legs and  arms, or that none of the multiple injuries inflicted  was individually sufficient in the ordinary course of  nature  to  cause  death,  will  not  exclude  the  application  of  clause  thirdly  of  Section  300.   The  expression “bodily injury” in clause thirdly includes  also its plural, so that the clause would cover a case

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where  all  the  injuries  intentionally  caused  by  the  accused  are  cumulatively sufficient  to  cause  the  death in the ordinary course of nature, even if  none  of  those  injuries  individually measures  upto  such  sufficiency.  The sufficiency spoken of in this clause,  as already noticed, is the high probability of death in  the ordinary course of nature, and if such sufficiency  exists and death is caused and the injury causing it  is  intentional,  the  case  would  fall  under  clause  thirdly of Section 300.  All the conditions which are  a prerequisite for the applicability of this clause have  been established   and the offence committed by the  accused, in the instant case was ‘murder’.”   

10. In the present case, the fact that the accused hurled  

country made bombs, has been established.   The incised  

injuries caused to Hari were intentional and were sufficient  

to cause death in the ordinary course of  nature even if  it  

cannot  be  said  that  his  death  was  intended.   This  is  

sufficient to bring the case within thirdly of Section 300.

11. For the foregoing reasons, we are of the opinion that  

the High Court was in error in altering the conviction of the  

respondents/accused from one under  Section 302 to  that  

under  Section  304-I  Indian  Penal  Code.   Accordingly,  we  

allow this appeal and set aside the impugned judgment and  

restore  the  judgment  of  the  trial  court  convicting  the

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respondents/accused  for  the  offence  of  murder,  with  a  

sentence of imprisonment for life.  The respondents/accused  

are directed to surrender before the trial court to serve out  

the remaining sentence, failing which the trial court would  

forthwith issue warrants of arrest and send them to jail.   

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

                      (Jagdish Singh Khehar)

                    ……..…..……………………J.     (C.Nagappan)

New Delhi; March 02, 2016