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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1502 OF 2005

State of Rajasthan …  Appellant

Versus

Shera Ram @ Vishnu Dutta          …  Respondent

J U D G M E N T

Swatanter Kumar, J.

1. Respondent Shera Ram @ Vishnu Dutta was charged for  

committing an offence under Sections 302, 295 and 449 of the  

Indian Penal Code, 1860 (for short ‘IPC’) and was sentenced to  

undergo  imprisonment  for  life  by  the  Additional  Sessions  

Judge-1,  Jodhpur  vide  judgment  dated  7th June,  2000.  

However,  upon  appeal,  he  came  to  be  acquitted  of  all  the  

offences by a Division Bench of the High Court of Rajasthan  

vide order dated 21st February, 2004 primarily on the ground  

that at the time of incident, he was a person of unsound mind  

within the meaning of Section 84 IPC and was directed to be  

detained in safe custody in an appropriate hospital or a place

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of custody of non-criminal lunatics as would be provided to  

him by the State Government under the direct supervision of  

the Jail Authorities till the time he was cured of his mental  

illness and infirmity.

2. Aggrieved from the said judgment, the State of Rajasthan  

has presented this appeal by way of a special leave petition.    

3. Before we proceed to dwell upon the merits of the case and  

the legal issues involved in the present appeal, a reference to  

the case of the prosecution would be necessary.   According to  

the  prosecution,  on  10th March,  1999  at  about  7.15  a.m.,  

while  Pujari  Tulsi  Das  (now  deceased)  was  in  the  

Raghunathji’s temple, the respondent abruptly hurled a stone  

on  his  head  resulting  into  his  instantaneous  death.    The  

respondent also damaged the idol and other properties of the  

temple.    This  all  was  unprovoked.    The  incident  was  

witnessed  by  the  villagers  including  PW-6  Santosh,  PW-11  

Narsingh Ram and PW-16, Smt. Tiku Devi.

4. PW-2, Ghan Shyam Das Daga reported the matter to the  

police immediately.  Upon receipt of the information, the police  

registered a case under Section 302 IPC and proceeded with  

the investigation.   Besides recording statements of number of  

witnesses, the Investigating Officer also prepared the site plan  

and the inquest memo.   The body of the deceased was sent for

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post-mortem which was performed by  PW-20, Dr. C.P. Bhati,  

who prepared the post-mortem report Ext. P-37.

5. After investigation, the police filed the challan upon which,  

the  respondent  was  committed  to  the  appropriate  Court  of  

Sessions for trial.  The charge-sheet was filed under Sections  

302, 295 and 449 IPC, as already noticed.  The respondent  

denied the charges leveled against him and claimed trial.   

6. The  prosecution  examined  as  many  as  23  witnesses  to  

prove its case.   The material piece of evidence appearing in  

the case of the prosecution against the respondent were put to  

him  and  his  statement  was  recorded  by  the  learned  Trial  

Court under Section 313 of the Code of Criminal Procedure,  

1973 (for  short  ‘Cr.PC’).    According to the  respondent,  his  

mental condition right from the year 1992-1993 was not good  

and occasionally  he  suffered from fits  of  insanity.   He  had  

undergone treatment for the same.   He has stated that in the  

jail also, he was receiving the treatment.   To put it simply, he  

claimed the defence of  insanity under Section 84 IPC.  The  

defence  also examined DW-2, Dr. Vimal Kumar Razdan and  

DW-1,  Bhanwar  Lal,  brother  of  the  respondent  who  had  

produced records to show that the respondent was a person  

suffering  from  insanity  of  mind.  The  learned  Trial  Court  

rejected  the  plea  of  defence  of  insanity  and  convicted  the

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respondent.    

7. The respondent preferred an appeal against the judgment  

and order of conviction by the Trial Court which resulted in  

his  acquittal  vide  order  dated 21st February,  2004 with the  

afore-noticed directions to the State Government.  Dissatisfied  

from the said judgment, the State has preferred the present  

appeal.

8. As is  evident from the  above-noted facts,  it  is  an appeal  

against the judgment of acquittal.   The plea of insanity raised  

by  the  respondent  has  been  accepted  by  the  High  Court  

resulting in his acquittal.

9. A  judgment  of  acquittal  has  the  obvious  consequence  of  

granting freedom to the accused.   This Court has taken a  

consistent view that unless the judgment in appeal is contrary  

to  evidence,  palpably  erroneous  or  a  view  which  could  not  

have  been  taken  by  the  court  of  competent  jurisdiction  

keeping in view the settled canons of criminal jurisprudence,  

this Court shall be reluctant to interfere with such judgment  

of acquittal.

10. The penal laws in India are primarily based upon  

certain fundamental procedural values, which are right to fair  

trial and presumption of innocence.   A person is presumed to  

be innocent till proven guilty and once held to be not guilty of

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a criminal charge, he enjoys the benefit of such presumption  

which  could  be  interfered  with  only  for  valid  and  proper  

reasons.    An  appeal  against  acquittal  has  always  been  

differentiated  from  a  normal  appeal  against  conviction.  

Wherever there is perversity of facts and/or law appearing in  

the  judgment,  the  appellate  court  would  be  within  its  

jurisdiction  to  interfere  with  the  judgment  of  acquittal,  but  

otherwise such interference is not called for.   We may refer to  

a  recent  judgment  of  this  Court  in  the  case  of  State  of  

Rajasthan,  Through  Secretary,  Home  Department  v.  Abdul   

Mannan [(2011) 8 SCC 65], wherein this Court discussed the  

limitation upon the powers of the appellate court to interfere  

with the judgment of acquittal and reverse the same.

11. This  Court  referred to  its  various judgments and  

held as under:-

“12. As is evident from the above recorded findings,  the  judgment  of  conviction  was  converted  to  a  judgment of acquittal by the High Court.  Thus, the  first and foremost question that we need to consider  is, in what circumstances this Court should interfere  with the judgment of acquittal.   Against an order of  acquittal,  an appeal  by the State  is  maintainable  to  this Court only with the leave of the Court.   On the  contrary, if  the judgment of  acquittal  passed by the  trial  court  is  set  aside  by  the  High  Court,  and the  accused is sentenced to death, or life imprisonment or  imprisonment for more than 10 years, then the right  of appeal of the accused is treated as an absolute right  subject  to  the  provisions  of  Articles  134(1)(a)  and  134(1)(b) of the Constitution of India and Section 379

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of the Code of Criminal Procedure, 1973.   In light of  this, it is obvious that an appeal against acquittal is  considered on slightly different parameters compared  to an ordinary appeal preferred to this Court.

13.  When  an  accused  is  acquitted  of  a  criminal  charge, a right vests in him to be a free citizen and  this Court is very cautious in taking away that right.  The  presumption  of  innocence  of  the  accused  is  further  strengthened  by  the  fact  of  acquittal  of  the  accused under our criminal jurisprudence. The courts  have  held  that  if  two  views  are  possible  on  the  evidence adduced in the case, then the one favourable  to  the  accused,  may  be  adopted  by  the  court.  However,  this  principle  must  be  applied  keeping  in  view the facts and circumstances of  a case and the  thumb  rule  is  that  whether  the  prosecution  has  proved  its  case  beyond  reasonable  doubt.  If  the  prosecution  has  succeeded  in  discharging  its  onus,  and the error in appreciation of evidence is apparent  on the face of the record then the court can interfere  in the judgment of acquittal to ensure that the ends of  justice are met. This is the linchpin around which the  administration of criminal justice revolves.

14. It is a settled principle of criminal jurisprudence  that the burden of proof lies on the prosecution and it  has to prove a charge beyond reasonable doubt. The  presumption of innocence and the right to fair trial are  twin  safeguards available  to  the  accused under  our  criminal justice system but once the prosecution has  proved  its  case  and  the  evidence  led  by  the  prosecution, in conjunction with the chain of events  as are stated to have occurred, if, points irresistibly to  the  conclusion  that  the  accused  is  guilty  then  the  court  can  interfere  even  with  the  judgment  of  acquittal.  The judgment of  acquittal  might be based  upon  misappreciation  of  evidence  or  apparent  violation of settled canons of criminal jurisprudence.

15. We may now refer to some judgments of  this  Court on this issue. In State of M.P. v. Bacchudas, the  Court was concerned with a case where the accused  had been found guilty of an offence punishable under  Section 304 Part II read with Section 34 IPC by the  trial court; but had been acquitted by the High Court  of Madhya Pradesh. The appeal was dismissed by this

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Court, stating that the Supreme Court’s interference  was called for only when there were substantial and  compelling  reasons  for  doing  so.  After  referring  to  earlier  judgments,  this  Court  held  as  under:  (SCC  pp. 138-39, paras 9-10)

“9.  There  is  no  embargo  on  the  appellate  court  reviewing  the  evidence  upon  which  an  order of acquittal is based. Generally, the order  of acquittal shall not be interfered with because  the presumption of innocence of the accused is  further strengthened by acquittal.  The golden  thread  which  runs  through  the  web  of  administration  of  justice  in  criminal  cases  is  that if two views are possible on the evidence  adduced  in the case, one pointing to the guilt  of the accused and the other to his innocence,  the  view  which  is  favourable  to  the  accused  should  be  adopted.  The  paramount  consideration  of  the  court  is  to  ensure  that  miscarriage  of  justice  is  prevented.  A  miscarriage  of  justice  which  may  arise  from  acquittal of the guilty is no less than from the  conviction  of  an  innocent.  In  a  case  where  admissible evidence is ignored, a duty is cast  upon  the  appellate  court  to  reappreciate  the  evidence  where  the  accused  has  been  acquitted, for the purpose of ascertaining as to  whether  any of  the  accused really  committed  any  offence  or  not.  (See  Bhagwan  Singh  v.  State of  M.P.) The principle to be followed by  the  appellate  court  considering  the  appeal  against the judgment of acquittal is to interfere  only when there are compelling and substantial  reasons for doing so. If the impugned judgment  is  clearly  unreasonable  and  relevant  and  convincing  materials  have  been  unjustifiably  eliminated  in  the  process,  it  is  a  compelling  reason  for  interference.  These  aspects  were  highlighted by this Court in Shivaji Sahabrao  Bobade  v.  State  of  Maharashtra,  Ramesh  Babulal  Doshi  v.  State  of  Gujarat,  Jaswant  Singh v. State of Haryana, Raj Kishore Jha v.  State  of  Bihar,  State  of  Punjab  v.  Karnail  Singh, State of Punjab v. Phola Singh, Suchand  Pal  v.  Phani  Pal  and  Sachchey  Lal  Tiwari  v.

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State of U.P. 10. When the conclusions of the High Court  

in  the  background of  the  evidence  on record  are tested on the touchstone of the principles  set out above, the inevitable conclusion is that  the High Court’s judgment does not suffer from  any infirmity to warrant interference.”

16. In a very recent judgment, a Bench of this Court  in State of Kerala v. C.P. Rao decided on 16-5-2011,  discussed the scope of interference by this Court in an  order of acquittal and while reiterating the view of a  three-Judge Bench of this Court in Sanwat Singh v.  State of Rajasthan, the Court held as under:  

“13.  In  coming  to  this  conclusion,  we  are  reminded of the well-settled principle that when  the  court  has  to  exercise  its  discretion in  an  appeal arising against an order of acquittal, the  court must remember that the innocence of the  accused  is  further  re-established  by  the  judgment  of  acquittal  rendered  by  the  High  Court. Against such decision of the High Court,  the  scope  of  interference  by  this  Court  in  an  order of acquittal has been very succinctly laid  down by a three-Judge Bench of this Court in  Sanwat Singh v. State of Rajasthan 212. At SCR  p. 129,  Subba  Rao,  J.  (as  His  Lordship  then was) culled out the principles as follows:  

‘9.  The  foregoing  discussion  yields  the  following results: (1) an appellate court has full  power to review the evidence upon which the  order of acquittal is founded; (2) the principles  laid down in Sheo Swarup case afford a correct  guide  for  the appellate  court’s  approach to a  case in disposing of such an appeal; and (3) the  different phraseology used in the judgments of  this  Court,  such  as  (i)  “substantial  and  compelling reasons”, (ii) “good and sufficiently  cogent reasons”, and (iii) “strong reasons”, are  not intended to curtail the undoubted power of  an  appellate  court  in  an  appeal  against  acquittal  to review the entire evidence and to  come to its own conclusion; but in doing so it

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should  not  only  consider  every  matter  on  record having a bearing on the questions of fact  and the  reasons given by the  court  below in  support of its order of acquittal in its arriving  at a conclusion on those facts, but should also  express those reasons in its judgment, which  lead  it  to  hold  that  the  acquittal  was  not  justified’.”

17.  Reference  can  also  be  usefully  made  to  the  judgment  of  this  Court  in  Suman  Sood  v.  State  of  Rajasthan, where this Court reiterated with approval  the  principles  stated  by  the  Court  in  earlier  cases,  particularly,  Chandrappa  v.  State  of  Karnataka.  Emphasising  that  expressions  like  “substantial  and  compelling  reasons”,  “good  and  sufficient  grounds”,  “very  strong circumstances”,  “distorted conclusions”,  “glaring mistakes”, etc. are not intended to curtail the  extensive powers of  an appellate  court in an appeal  against  acquittal,  the  Court  stated  that  such  phraseologies are more in the nature of “flourishes of  language” to emphasise the reluctance of an appellate  court to interfere with the acquittal. Thus, where it is  possible  to  take  only  one  view  i.e.  the  prosecution  evidence  points  to  the  guilt  of  the  accused and the  judgment is on the face of it perverse, then the Court  may interfere with an order of acquittal.”

12. There is a very thin but a fine distinction between  

an appeal against conviction on the one hand and acquittal on  

the other.   The preponderance of judicial opinion of this Court  

is that there is no substantial  difference between an appeal  

against conviction and an appeal against acquittal except that  

while dealing with an appeal against acquittal the Court keeps  

in  view  the  position  that  the  presumption  of  innocence  in  

favour of the accused has been fortified by his acquittal and if  

the view adopted by the High Court is a reasonable one and

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the conclusion reached by it had its grounds well set out on  

the materials on record, the acquittal  may not be interfered  

with.   Thus, this fine distinction has to be kept in mind by the  

Court while exercising its appellate jurisdiction.   The golden  

rule is that the Court is obliged and it will not abjure its duty  

to  prevent  miscarriage  of  justice,  where  interference  is  

imperative and the ends of justice so require and it is essential  

to appease the judicial conscience.  

13. Also,  this  Court  had  the  occasion  to  state  the  

principles  which  may  be  taken  into  consideration  by  the  

appellate court while dealing with an appeal against acquittal.  

There is no absolute restriction in law to review and re-look  

the entire evidence on which the order of acquittal is founded.  

If,  upon  scrutiny,  the  appellate  court  finds  that  the  lower  

court’s decision is based on erroneous views and against the  

settled position of law then the said order of acquittal should  

be set aside. {See State (Delhi Administration) v. Laxman Kumar   

& Ors. [(1985) 4 SCC 476], Raj Kishore Jha v. State of Bihar &  

Ors.  [AIR  2003 SC 4664],  Inspector  of  Police,  Tamil  Nadu v.   

John David [JT 2011 (5) SC 1] }

14. To put it appropriately, we have to examine, with  

reference to the present case whether the impugned judgment

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of acquittal recorded by the High Court suffers from any legal  

infirmity or is based upon erroneous appreciation of evidence.  

15. In  our  considered  view,  the  impugned  judgment  

does not suffer from any legal infirmity and, therefore, does  

not call for any interference.   In the normal course of events,  

we are required not to interfere with a judgment of acquittal.

16. Having deliberated upon the above question of law,  

we may now proceed to discuss the merits of the case in hand.  

The  High  Court  after  consideration  of  the  entire  evidence  

produced  by  the  prosecution,  affirmed  the  finding  that  the  

incident as alleged by the prosecution had occurred and the  

respondent had hurled a stone on the head of Pujari Tulsi Das  

which resulted in his death.   This being a finding of fact based  

upon proper  appreciation of  evidence,  does not  call  for  any  

interference by us.

17. The corollary that follows from the above is whether  

having  committed  the  charged  offence,  the  respondent  is  

entitled to the  benefit  of  the general  exception contained in  

Section 84, Chapter IV of  the IPC?   Section 84 states that  

nothing is an offence which is done by a person who, at the  

time  of  doing  it,  by  reason  of  unsoundness  of  mind,  is

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incapable of knowing the nature of the act, or that what he is  

doing is either wrong or contrary to law.

18. It is obvious from a bare reading of this provision  

that what may be generally an offence would not be so if the  

ingredients of Section 84 IPC are satisfied.  It is an exception  

to  the  general  rule.  Thus,  a  person who  is  proved  to  have  

committed an offence, would not be deemed guilty, if he falls  

in any of the general exceptions stated under this Chapter.

19. To commit a criminal offence, mens rea is generally  

taken to be an essential element of crime.   It is said furiosus  

nulla voluntus est.  In other words, a person who is suffering  

from a mental disorder cannot be said to have committed a  

crime as he does not know what he is doing.   For committing  

a  crime,  the  intention  and  act  both  are  taken  to  be  the  

constituents of the crime,  actus non facit reum nisi mens sit   

rea.   Every  normal  and  sane  human  being  is  expected  to  

possess some degree of reason to be responsible for his/her  

conduct and acts unless contrary is proved.   But a person of  

unsound  mind  or  a  person  suffering  from  mental  disorder  

cannot be said to possess this basic norm of human behavior.  

In the case of Surendra Mishra v. State of Jharkhand [(2011) 3   

SCC(Cri.)  232], the Court was dealing with a case where the

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accused was charged for an offence under Section 302 IPC and  

Section 27 of the Arms Act.   While denying the protection of  

Section 84 of the IPC to the accused, the Court held as under:-

“9. In our opinion, an accused who seeks exoneration  from liability of an act under Section 84 of the Indian  Penal Code is to prove legal insanity and not medical  insanity.   Expression “unsoundness of mind” has not  been  defined  in  the  Indian  Penal  Code  and  it  has  mainly been treated as equivalent to insanity.   But  the term insanity carries different meaning in different  contexts  and  describes  varying  degrees  of  mental  disorder.   Every person who is suffering from mental  disease  is  not  ipso  facto  exempted  from  criminal  liability.   The mere fact that the accused is conceited,  odd, irascible and his brain is not quite all right, or  that the physical and mental ailments from which he  suffered had rendered his intellect weak and affected  his emotions or indulges in certain unusual acts, or  had fits of insanity at short intervals or that he was  subject  to  epileptic  fits  and  there  was  abnormal  behavior or the behavior is queer are not sufficient to  attract  the  application  of  Section  84  of  the  Indian  Penal Code.”

20. From the above-stated principles, it is clear that a  

person alleged to be suffering from any mental disorder cannot  

be exempted from criminal liability ipso facto.  The onus would  

be on the accused to prove by expert evidence              that he  

is suffering from such a mental disorder or mental condition  

that he could not be expected to be aware of the consequences  

of his act.

21. Once, a person is found to be suffering from mental

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disorder  or  mental  deficiency,  which takes  within  its  ambit  

hallucinations, dementia, loss of memory and self-control, at  

all relevant times by way of appropriate documentary and oral  

evidence,  the  person  concerned  would  be  entitled  to  seek  

resort to the general exceptions from criminal liability.   

22.   Epileptic  Psychosis  is  a  progressing  disease  and  its  

effects have appropriately been described in the text book of  

Medical  Jurisprudence and Toxicology by Modi, 24th Ed. 2011  

where it states as follows:-

“Epileptic Psychosis. – Epilepsy usually occurs from  early infancy, though it may occur at any period of  life.    Individuals,  who  have  had  epileptic  fits  for  years,  do  not  necessarily  show  any  mental  aberration,  but  quite  a  few  of  them  suffer  from  mental  deterioration.    Religiousity  is  a  marked  feature in the commencement, but the feeling is only  superficial.    Such patients are peevish,  impulsive  and suspicious, and are easily provoked to anger on  the slightest cause.

The  disease  is  generally  characterized  by  short  transitory  fits  of  uncontrollable  mania  followed by  complete recovery.   The attacks, however, become  more frequent.   There is a general impairment of the  mental  faculties,  with  loss  of  memory  and  self- control.   At the same time, hallucinations of  sight  and hearing occur and are followed by delusions of a  persecuting nature.  They are deprived of all moral  sensibility, are given to the lowest forms of vice and  sexual  excesses,  and  are  sometimes  dangerous  to  themselves as well  as to others.    In many long- standing cases, there is a progressive dementia or  mental deficiency.

True epileptic psychosis is that which is associated

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with epileptic fits.   This may occur before or after  the fits, or may replace them, and is known as pre- epileptic,  post-epileptic  and  masked  or  psychic  phases (psychomotor epilepsy)

Post-Epileptic  Mental  Ill-health  –  In  this  condition,  stupor  following  the  epileptic  fits  is  replaced  by  automatic  acts  of  which  the  patient  has  no  recollections.    The  patient  is  confused,  fails  to  recognize his own relatives, and wanders aimlessly.  He is terrified by visual and auditory hallucinations  of  a  religious  character  and  delusions  of  persecution, and consequently, may commit crimes  of  a horrible nature, such as thefts,  incendiarism,  sexual assaults and brutal murders.   The patient  never  attempts  to  conceal  them  at  the  time  of  perpetration but on regaining consciousness may try  to conceal them out of fear.”

23. Similar features of Epilepsy have been recorded in  

the  HWV COX Medical Jurisprudence and Toxicology (7th Edn)  

by PC Dikshit.

24. Reverting to the facts of the present case, it may be  

noted  that  no  witness  of  the  prosecution  including  the  

Investigating Officer stated anything with regard to the mental  

condition  of  the  respondent.   However,  the  respondent  not  

only in his statement under Section 313 Cr.P.C. took up the  

defence of mental disorder seeking benefit of Section 84 IPC  

but even led evidence, both documentary as well as oral, in  

support of his claim. He examined Dr. Vimal Kumar Razdan,  

DW-2, who deposed that he had examined the respondent and  

had given him treatment.  He, also, produced the examination

16

report in regard to the treatment of the respondent, Ext.D-5,  

which was prepared in his clinic.

25. According to the statement of this doctor and the  

prescription, the respondent was suffering from Epilepsy and  

while  describing  post  epileptic  insanity,  this  witness  stated  

that after the epileptic attack, a patient behaves like an insane  

person and he is unable to recognise even the known persons  

and relatives.  During this time, there is a memory loss and  

the patient can commit any offence.   In the prescription, Ext.  

D-3, issued by Dr. Ashok Pangadiya, it  was stated that the  

patient was suffering from the fits disease and symptoms of  

behavioral abnormality.  Two types of medication on the basis  

of  diagnosis  of  epileptic  disease  and  other  one  for  insanity  

were prescribed to the respondent who continued to take these  

medicines, post epileptic insanity.

26. Another witness who was produced by the defence  

was  DW-1,  Bhanwar  Lal,  the  brother  of  the  respondent.  

According to this witness, the respondent was suffering from  

mental disorder since 1993.   He stated that when he gets the  

fits of insanity, he can fight with anybody, hit anybody and  

even throw articles lying around him.  At the initial stage, Dr.  

Devraj Purohit had treated him. Then Dr. V.K. Razdan treated

17

him and thereafter, in Jaipur, Dr. Ashok Pagadiya/Pandharia  

also treated him.   Even when he was in jail, he was under  

treatment.  He produced the prescription slips i.e. Exts. D3  

and D4.   This witness has also stated that on the date of  

occurrence at about 6.00 – 6.30 a.m., Shera Ram/respondent  

was not feeling well and, in fact, his condition was not good.  

Even at  home he  had broken the  electricity  meter  and the  

bulbs.   When the people at home including the witness tried  

to stop him, he had beaten DW-1 on his arm and after hitting  

him on the face he had run away.

27. This oral and documentary evidence clearly shows  

that the respondent was suffering from epileptic attacks just  

prior to the incident.   Immediately prior to the occurrence, he  

had  behaved  violently  and  had  caused  injuries  to  his  own  

family members.  After committing the crime, he was arrested  

by the Police and even thereafter, he was treated for insanity,  

while in jail.

28. Thus, there is evidence to show continuous mental  

sickness of the respondent.   He not only caused death of the  

deceased but also on the very same day injured and caused  

hurt to his family members including DW-1.   His statement  

made under Section 313 Cr.PC is fully corroborated by oral

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and documentary evidence of  DW-2 and Ext.  D-3 and D-4.  

Though,  the High Court has not  discussed this evidence in  

great detail,  but this being an admissible piece of  evidence,  

can always be relied upon to substantiate the conclusion and  

findings recorded by the High Court.   

29. In other words, the High Court on the basis of the  

documentary and oral evidence has a taken a view which was  

a  possible  and  cannot  be  termed  as  perverse  or  being  

supported by no evidence.   The finding of  the High Court,  

being in consonance with the well settled principles of criminal  

jurisprudence, does not call for any interference.   More so, the  

learned counsel appearing for the State has not brought to our  

notice any evidence, documentary or otherwise, which could  

persuade us to take a contrary view i.e. other than the view  

taken by the High Court.

30. Another  aspect  of  this  case  which  requires  

consideration by this Court is that the case of the prosecution  

suffers from legal infirmity.   In fact, the prosecution has failed  

to prove beyond reasonable doubt that the injury inflicted by  

the  respondent  upon  the  deceased  was  sufficient  in  the  

ordinary course of nature to cause death.   It is the case of the  

prosecution that the respondent had hurled a stone which had

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caused injury (lacerated wound on the left side of the forehead)  

whereupon the deceased fell on the ground and subsequently  

collapsed.    The injury is  said to  be 2’’  x  ½”  x upto bone,  

transversely Lt. side of forehead and another lacerated wound  

2” x ½” x ¼” near injury No.1 towards the forehead.    These  

are the injuries which the deceased is stated to have suffered.  

In addition, abrasion of 1 cm x 1 cm on the left eyebrow was  

also present.    According to the doctor, all these injuries were  

ante mortem in nature and the cause of death was shock and  

haemorrhage due to head injury.

31. In  the  statement  of  PW-20,  Dr.  C.P.  Bhati,  it  is  

nowhere  stated  that  the  injuries  caused by  the  respondent  

were sufficient in the ordinary course of nature to cause death.  

It  is  also  not  recorded  in  the  post-mortem report,  Ext.  37.  

This was a material piece of evidence which the prosecution  

was expected to prove in order to bring home the guilt of the  

respondent.   This is a serious deficiency in the case of the  

prosecution.    Absence  of  this  material  piece  of  evidence  

caused a dent in the case of the prosecution.   The High Court  

has not taken note of this important aspect of the case.

32. The learned counsel appearing for the respondent  

placed reliance upon this evidence and strenuously contended

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that  the  respondent  was  entitled  to  acquittal  on  this  basis  

alone.    We  should  not  be  understood  to  have  stated  any  

absolute  proposition  of  law,  but  in  the  facts  and  

circumstances of the present case, it was expected of PW-20 to  

state before the Court as well as record the same in  the  post-

mortem  report  prepared  by him i.e. Ext. 37, that the injuries  

were sufficient in the ordinary course of nature to cause death  

of the deceased.

33. Ex-facie,  injuries do not appear to be so vital that  

they could have resulted in the death of the deceased, but this  

fact  was  required  to  be  proved  by  expert  evidence.    The  

counsel  for  the  respondent  relied  upon  a  judgment  of  this  

Court in the case of  Ram Jattan  and Others v. State  of U.P.   

[(1995)  SCC (Cri)  169] where  this  Court  held  that  it  is  not  

appropriate to interfere with the conclusion that the injuries  

are not sufficient to cause death unless they are so patent.  

The Court held as under:-

“4.  The  learned  counsel,  however,  further  submitted that in any event the offence committed  by  the  members  of  unlawful  assembly  cannot  be  held to be one of murder and therefore the common  object  of  unlawful  assembly  was  not  one  which  attracts  the  provision  of  Section  302  read  with  Section 149 IPC. We find considerable force in this  submission. Though, in general, right from the first  report onwards the prosecution case is that all the

21

12 accused armed with sharp-edged weapons and  lathis  surrounded the  three  persons and inflicted  the injuries but from the doctor's report we find that  no injury was caused on the vital organs. So far as  Patroo is concerned, who got the report written by  PW 7 and gave it in the police station, we find 13  injuries  but  all  of  them  were  abrasions  and  lacerated injuries on the legs and hands. The doctor  opined that all  the injuries were simple. On Balli,  PW 8, the doctor found 12 injuries and they were  also  on  arms  and  legs.  There  was  only  one  punctured wound,  injury  No.  8  and it  was not  a  serious injury and it was also a simple injury. Now,  coming to the injuries on the deceased, the doctor  who first examined him, when he was alive, found  11 injuries. Out of them, injuries Nos. 1 and 2 were  punctured  wounds.  Injury  No.  5  was  an  incised  wound and injury No. 6 was a penetrating wound.  All these injuries were on the upper part of the right  forearm and  outer  and  lower  part  of  right  upper  arm.  The  remaining  injuries  were  abrasions  and  contusions. The doctor opined that except injuries  Nos. 7 and 9 all other injuries were simple. He did  not say whether injuries Nos. 7 and 9 were grievous  but simply stated that they were to be kept under  observation. The deceased, however, died the next  day  i.e.  9-4-1974  and  the  post-mortem  was  conducted  on  the  same  day.  In  the  post-mortem  examination 11 external injuries were noted but on  the internal examination the doctor did not find any  injury to the vital organs. He, however, noted that  8th and 9th ribs were fractured. Now, coming to the  cause of  death,  he  opined that  death was due to  shock and haemorrhage. It is not noted that any of  the  injuries  was  sufficient  to  cause  death  in  the  ordinary course of nature. It could thus be seen that  neither clause 1stly nor clause 3rdly of Section 300  are  attracted  to  the  facts  of  this  case.  This  contention  was  also  put  forward  before  the  High  Court  but  the  learned  Judges  rejected  this  contention observing  that  the  fracture  of  8th and  9th ribs must have resulted in causing death and  therefore these injuries must be held to be sufficient  in the ordinary course of nature to cause death. We  are  unable  to  agree  with  this  reasoning.  In  the

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absence of proof by the prosecution in an objective  manner that the injuries caused were sufficient in  the ordinary course of  nature to cause death, the  same cannot be interfered with unless the injuries  are  so  patent.  As  we  have  noted  above  except  fracture of ribs there was no other injury to any of  the vital organs. As a matter of fact internally the  doctor did not notice any damage either to the heart  or  lungs.  Even  in  respect  of  these  two  injuries  resulting  in  fracture  of  the  ribs,  there  were  no  corresponding  external  injuries.  Again  as  already  noted all the injuries were on the non-vital parts of  the  body.  The  learned  counsel  for  the  State,  however, submitted that a forceful blow dealt on the  arm might have in turn caused the fracture of the  two ribs. Even assuming for a moment it to be so, it  is difficult to hold that from that  circumstance  alone the common object of the unlawful assembly  of 12 persons to cause the death of the deceased is  established.

5.  The  common  object  has  to  be  gathered  or  inferred from the various circumstances like nature  of the weapons, the force used and the injuries that  are  caused.  After  carefully  going  through  the  medical  evidence  we  find  that  it  is  difficult  to  conclude that the common object was to cause the  death. The injuries on Patroo, PW 8 as well as on  the deceased were more or less of the same nature  except that in the case of deceased, there were few  punctured wounds which were not serious but only  simple. He died due to shock and haemorrhage the  next  day.  In  any  event  there  is  no  indication  anywhere  in  the  evidence  of  the  doctor  or  in  the  post-mortem certificate that any of the injuries was  sufficient in the ordinary course of nature to cause  death. No doubt in his deposition the doctor, PW 4  has stated in  the  general  way that  these  injuries  were  sufficient  to  cause  death  in  the  ordinary  course of nature. We have already held that there  was  no  external  injury  which  resulted  in  the  fracture of the ribs. In such an event clause 3rdly of  Section 300 IPC is  not  attracted.  Likewise  clause  1stly of  Section 300 IPC is  also not  attracted i.e.  intentionally causing death. If their intention was to

23

cause  death,  they  would  have  used  the  lethal  weapons  in  a  different  way  and  would  not  have  merely  inflicted  simple  injuries  on  the  non-vital  parts like legs and hands.

6. In the result we set aside the convictions of these  eight  appellants  under  Section  302  read  with  Section 149 IPC and the sentence for imprisonment  for life. Instead we convict them under Section 304  Part II read with Section 149 IPC and sentence each  of them to undergo rigorous imprisonment for five  years.  The sentences and convictions  imposed on  other counts are confirmed. The four other accused  who were convicted by the trial court as well as by  the High Court are not before us. However, we are  of the view that they must also get the same benefit.  They  are  Ram  Chander  (A-2),  Dal  Singhar  (A-7),  Barai  (A-8)  and  Birju  (A-11).  Accordingly  their  convictions  under  Section  302  read  with  Section  149 IPC for imprisonment for life are set aside and  instead they are also convicted under Section 304  Part II read with Section 149 IPC and are sentenced  to  undergo  rigorous  imprisonment  for  five  years.  The  other  convictions  and  sentences  imposed  on  other counts are, however, confirmed.

34. Reliance was also placed upon the judgment of this  

Court in the case of  State  of  Rajasthan  v.  Kalu [(1998) SCC  

(Cri.)  898],  where  in  the  post  mortem  examination  of  the  

deceased, the cause of death was noticed as “acute peritonitis”  

as  a  result of abdominal injuries. However, during the cross-

examination,  Dr.  Prem Narayna  admitted   that  “peritonitis”  

could have set in due to surgical  complications also.    The  

Court took the view that the medical evidence, therefore, when  

analysed  in  its  correct  perspective  shows  that  the  evidence

24

recorded  by  the  High  Court  is  correct  to  the  effect  that  

prosecution had not proved that the injuries were sufficient in  

the ordinary course of nature to cause death of the lady and  

had acquitted the respondent.   The Supreme Court declined  

to interfere with the finding recorded by the High Court.

35. In the present case also, there is no documentary  

or oral evidence to prove the fact that the injuries caused by  

the respondent to the deceased were sufficient in the ordinary  

course of nature to cause death.   This, however, cannot be  

stated  as  an  absolute  proposition  of  law  and  the  question  

whether  the  particular  injury was sufficient  in  the  ordinary  

course of nature to cause death or not is a question of fact  

which  will  have  to  be  determined  in  light  of  the  facts,  

circumstances and evidence produced in a given case.  (Ref.  

Halsbury’s Laws of India 5(2) Criminal Law-II).    

There could be cases where injuries caused upon the body of  

the deceased per se can irresistibly lead to the conclusion that  

the  injuries  were  sufficient  to  cause  death  in  the  ordinary  

course of nature, while there may be other cases where it is  

required  to  be  proved  by  documentary  and  oral  evidence.  

Resultantly, it will always depend on the facts of each case.  

Thus, in such cases, it may neither be permissible nor possible

25

to state any absolute principle of law universally applicable to  

all such cases.

36. In view of our discussion above, we find no error in  

the judgment under appeal.  Thus, we have no hesitation in  

dismissing the appeal and the same is hereby dismissed.

…................................J.                                                           [Swatanter Kumar]

  .…................................J.                               [Ranjana Prakash Desai]

New Delhi December 1, 2011