VIJAY SINGH Vs STATE OF M.P.
Bench: CHANDRAMAULI KR. PRASAD,JAGDISH SINGH KHEHAR
Case number: Crl.A. No.-000444-000444 / 2008
Diary number: 36226 / 2007
Advocates: RAJESH Vs
C. D. SINGH
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.444 OF 2008
VIJAY SINGH & ANR. …APPELLANTS
VERSUS
STATE OF MADHYA PRADESH …RESPONDENT
J U D G M E N T
CHANDRAMAULI KR. PRASAD,J.
In the present appeal by way of special
leave, we are concerned with appellants Vijay
Singh and Hari Singh.
According to the prosecution, on 16th of June,
1992 at about 6.30 A.M., a report was lodged by
the informant, Pohap Singh (PW-1), alleging that
while he was at his house, his father Bhagirath
(deceased) was returning home after answering the
nature’s call and at that time, 11 accused persons
including appellant no. 2 Hari Singh armed with
farsa and appellant no. 1 Vijay Singh armed with a
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ballam and other accused armed with axes
surrounded him. Seeing this, according to the
informant, his mother Prema Bai (PW-2), his wife
Sheela (PW-3) and grandfather Jagannath (PW-6)
went to rescue him, whereupon informant Pohap
Singh was assaulted by lathi by one of the
accused. Meanwhile, appellant no. 2, Hari Singh
inflicted an injury on the neck of the deceased
with farsa upon which he fell down. Thereafter,
all the accused assaulted the deceased with the
weapons with which they were armed. It is the
case of the prosecution that appellant no. 1,
Vijay Singh caused an injury with a ballam near
the eye of the deceased and he died on the spot.
On the basis of the report given by Pohap
Singh, a case under Section 147, 148 and 302/149
of Indian Penal Code, 1860 (hereinafter referred
to as “the IPC”) was registered. Police after
usual investigation submitted the charge-sheet
against all 11 accused persons and ultimately they
were committed to the Court of Sessions to face
the trial. The Sessions Judge acquitted 9 of the
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11 accused and convicted the appellants herein for
commission of offence under Section 302 of the IPC
and sentenced them to imprisonment for life. The
learned Judge found the allegations as to the
infliction of injuries, on the head and neck of
the deceased by specific weapon such as ballam by
appellant no.1 and farsa by appellant no.2
respectively, to have been corroborated by the
medical evidence. Hence, the two appellants were
convicted and sentenced as above.
On appeal, the High Court confirmed their
conviction and sentence and while doing so,
observed as follows:
“5………Dr. Kapil Dev Singh, who has performed the postmortem of the deceased on 16.6.1992 and found as many as six injuries on the body of the deceased, out of which injury No.1 is caused by some pointed object near the face of the deceased. Thus, the injury attributed to Vijay Singh is corroborated. The other injury was incised wound on the body of the deceased. All the injuries were caused by sharp and edged weapons. As per opinion of Doctor injury No. 1 was sufficient to cause death of the deceased…………
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6. After perusal of the statements of PW-1, PW-2 and PW-3, we find that the Sessions Court rightly convicted the present appellants. So far as the other accused are concerned the Doctor has specifically stated that except the injury No.1 which is attributed to Vijay Singh, all other injuries were caused by the same weapon. Thus, the other injuries are attributed to Hari Singh. Moreso, the witness could not point out which of the injuries were caused by other accused, hence, acquitted the other accused. But so far as the present appellants are concerned, there are specific allegation against them for causing injuries to the deceased.
“Underling ours”
Aggrieved by the same, the appellants are
before us.
At the outset, while assailing the conviction
of the appellants, Mr. Rajesh learned counsel
appearing for the appellants, submits that the
High Court erred in holding that excepting injury
no. 1, all other injuries are attributable to Hari
Singh. He draws our attention to the evidence of
PW-2 Prema Bai and PW-3 Sheela, who claim to be
the eye-witnesses to the occurrence and have
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clearly stated in their evidence that the
appellant Hari Singh gave farsa blow on the neck
of the deceased and other accused persons (since
acquitted) have also assaulted the deceased with
farsa.
We have gone through the evidence of the eye-
witnesses and from their testimony it is evident
that appellant Vijay Singh had caused one injury
to the deceased by ballam whereas appellant Hari
Singh caused one injury on the neck by farsa.
They have also testified that other accused had
also given farsa blows to the deceased. In the
face of it, the High Court clearly erred in
holding that excepting injury no. 1, all other
injuries were caused by the appellant Hari Singh.
Mr. Rajesh, then submits that the appellants
can be held guilty under Section 302 of the IPC
only when it is proved that the injuries inflicted
by them have resulted into death. He refers to
the evidence of PW-7 Dr. Kapil Dev Singh and
submits that according to his opinion, the death
occurred because of excessive bleeding and shock
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on account of all the injuries found on the person
of the deceased. He points out that this doctor
had found 5 injuries on the person of the deceased
and all those injuries cannot be attributed to the
present appellants. Mr. Rajesh further points out
that even if it is assumed that appellant Vijay
Singh had assaulted the deceased with ballam on
the face and appellant Hari Singh by farsa on the
neck, they cannot be held guilty under Section 302
of the IPC as those injuries only did not cause
death.
Mr. C.D. Singh, learned counsel for the
State, on the other hand, submits that since the
doctor in evidence has stated that injury no. 1
was sufficient to have caused death, the High
court rightly convicted the appellants. In any
view of the matter, according to Mr. Singh, the
deceased died of various injuries caused to him
during the occurrence, and therefore, the
appellants can well be convicted under Section 302
with the aid of Section 34 of the IPC.
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True it is that the High Court, while
upholding the conviction of the appellants, has
observed that “as per the opinion of the doctor,
injury no. 1 was sufficient to cause death of the
deceased”. We have gone through the evidence of
PW-7 Dr. Kapil Dev Singh. PW-7 in his evidence
stated that during the post-mortem examination, he
found the following injuries on the person of the
deceased:
“1.Depressed fracture with contusion with open wound cutting front parietal bone 4” x 1½” x bone deep on right side.
2. Incised wound on cheek cutting auxiliary bone 5”x 1/2” x bone deep right side.
3. Incised wound of the size 4” x ½” x muscle deep and cutting breathing pipe and major blood arteries on right side.
4. Incised wound on superior collar bone right side, 5” x ½” cutting breathing pipe.
5. Incised wound right side on the face cutting right jaw bone size 3” x ½” x bone deep.”
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As regards the cause of death, he has stated
as follows:
“In my opinion, all the injuries were caused by sharp and blunt weapon. In my opinion cause of death is excessive bleeding and shock….”
Thus, the doctor has altogether found 5
injuries on the person of the deceased and the
death had occurred due to excessive bleeding and
shock on account thereof. Therefore, it cannot be
said that only injury no.1 was the cause of the
death. Hence, we are constrained to observe that
the High Court committed serious error by holding
that injury no. 1 was sufficient to cause death of
the deceased.
Nonetheless from the evidence of the
prosecution witnesses what is proved beyond doubt
is that appellant Vijay Singh caused injury on the
face of the deceased by ballam and appellant Hari
Singh on neck by farsa. In this backdrop, we
proceed to consider the nature of offence. It is
relevant here to mention that no charge under
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Section 34 IPC has been framed against the
appellants. Even if we assume in favour of the
State, as contended by Mr. Singh, that it is
possible to hold the appellants guilty under
Section 302 read with Section 34 of the IPC in the
absence of charge, in our opinion, for that the
prosecution will have to prove that injuries
attributable to the appellants or any of them were
the cause of death. As observed earlier, the
appellants had caused one injury each, whereas the
deceased had sustained five injuries. According
to the doctor, death had occurred on account of
shock and excessive bleeding due to the injuries
caused on the person of the deceased. Therefore,
the death had not taken place as a result of the
injuries caused by the appellants or any one of
them. Hence, they cannot be held guilty under
Section 302 IPC simplicitor or with the aid of
Section 34 IPC.
However, the prosecution has been able to
prove that the appellants have assaulted the
deceased with ballam and farsa, which are
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dangerous weapons. Further, the appellants had
caused grievous injuries on the person of the
deceased. Hence, they may not be held guilty
under Section 302 or 302 read with Section 34 IPC,
but surely their acts come within the mischief of
Section 326 IPC. Accordingly, we modify the
appellants’ conviction and hold them guilty under
Section 326 IPC and sentence them to undergo
rigorous imprisonment for 10 years each and fine
of Rs.5,000/- each, in default to suffer
imprisonment for six months. We have been told
that both the appellants have already remained in
custody for more than the period of their
sentence. If that be so, they be released
forthwith unless required in any other case.
In the result, the appeal is partly allowed,
the conviction and sentence of the appellants
under Section 302 IPC is set aside, instead they
are convicted under Section 326 IPC and sentenced
to the period as above with the direction
aforesaid.
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………………………………………………………………J (CHANDRAMAULI KR. PRASAD)
………………………………………………………………J (JAGDISH SINGH KHEHAR)
NEW DELHI, MARCH 25, 2014.
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