KISHORE SINGH & ANR. versus THE STATE OF MADHYA PRADESH

KISHORE SINGH & ANR.

THE ST TE OF MADHYA PRADESH

October 10, 1977

[P. K. GOSWAMI AND N. L. UNTWAUA, JJ.]

Supreme Court (Enlargement of Criminal Appelltfle Jurisdic:tion) Act, 1970, (Criminal Procedure Code 1973 sec. 379)-Certificate under Art. 134 (l)(c) of the Constitution is unnecessary i11 case falling 11/s. 2 of tlie 1970 Act.

·Appeal ujs. 417(1) of Criminal Procedure Code, 1898-Acwsed aC(/Uitted of major offence but conl'icted of minor offence-Being still conviction albeit under minur charge-W/1ether case of acquittal for the purpose of. $. 417(1) of tire Code and 11/s. 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. -

The appellants attacked Jawahar, the deceased, and also one Pooran :Smgn on July 28, 1968 and cr,.used grievous injuries on the person of the deceaseel using the 'sabbal' and the blunt side of the axe with which they were armect . Jawahar died in the hospital on August 27, 1968 after recoverinf trom surgical operation for his head injuries. Pooran Singh also received grievous injuries. P.W. 6, the doctor, who first examined the deceased could not say in his evidence whether the injuries were such as were "likely to cause death" in the ordinary course of nature. P.W. 12, the doctor who performed the sur-gical operation opined that the injuries to the skull found on the deceased were likely to cause death in the ordinary course of nature without any treatment. P.W. 13, the doctor who conducted the autopsy, opined that the injuries touna on the dead body were sufficient to cause death in the ordinary course of nature. The appellants were tried u/s. 302/34 l.P.C. for the murder ot Jawabar and u/s. 307/34 l.P.C. for attempt to murder Pooran Singh. They were convicted u /s. 307 / 34 I.P.C. and sentenced to rigorous imprisonment tor five years; but acquitted of the chan~e under s. 302134 I.P.C. They were. t however, convicted u /s. 325 r/w 34 I.P.C. and sentenced to four years n gor-t ous imprisonment. On appeal by the State u/s. 417(1) of the 1898 Code, the High Court accepting the a-ppeal, set aside the order of conviction uts. ' 325/34 l.P.C. and convicted the appellants u/s. 302/34 I.P.C. and sentenceel ~them to life imprisonment. The High Court granted certificate to the appel-~ !ants under 134(1)(c) of the Constitution.

Dismissing the appeal and modifying the conviction and sentence to that u/s. 304 (Part l/ 34 LP.C.), the Court,

HELD : ( 1) If on appeal against a·n order of acquittal the High Comt sets aside the acquittal and convicts an accused and sentences him to impn-sonment for life or to period not less than ten years, the accmed is entitled. as of right, to appeal to this Court u/s. 2(a) of the Act. 1970. The High Court is not right in holding thait certificate is necessary under Art. 134 ( I )( c) of tho Constitution when the appellants had rieht u/ s. 2 of the Act. {636 H, 637 A- DJ

(2) It is clear from the language employed both in s. 417 ( 1) of the Criminal Procedure Code of 1898 and s. 2(a) of the Act of .1970 that. \\lien an accused is acquitted of major charge, but convicted under minor cnarge it is still an acquittal under the major charge which can be challenged by the Sta-te before the High Court in an appeal u/s. 417(1) of the old Code. The sa111e principle will apply in the case of s. 2(a) of the Act, if person has been acquitted by the trial court under major charge and the High Court on appeal sets aside the :i.couittal under the major charge a.nd sentences the person to imprisonmerrt for life or to sentence of not less than ten years. [638 A--BJ

( 3) The distinction between culpable homicide (section 299 !PC) and ~u rde_r (sec~on 300 IPC) is ah\ays to be carefully borne in mind while deal-ing with clinr.Re under s. 302 JPC. Under the category of unlawful homici-des fall both cases of culpable homicide amountini: to murder and those not amounting to murder. . Culpable homicide is not murder when the case is brought within the five exceptions to s. 300 I.P.C. But, even tbouRh none of <he said five exceptions are pleaded or prima acie established on ·tlie evidence on record , the prosecution must still be required under the Jaw to bring the case under a11y of the four clauses of s. 300 I.P.C., to :mstain the charge o! murder. ff the prosecution fails to discharge this onus in establishing anyone of the four clauses of s. 300 J.P.C., namely, firstly to fourthly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described u/s 299 I.P.C. [639 C--EJ

( 4) _The distinction between the expression "likely to cause death" and · "sufficient in the ordinary course of nature to cause dea th" is significant although rather fine and sometimes deceptive.

(5) With regard to the second part of thirdly of $. 300 IPC, namely, where the bodily injury is sufficient in the ordinary course of nature to cause death, the court's enquiry is not confined to the intention of the accused at that stage of judicia~ e\•aluation, once the intention of the accused to cause the injury has already been established. The court will have to judge objectively from the natmc of the injuries and other evidence, including the medic:.J opinion as to whether the injuries intentionally inflicted on the deceased were suffi-cient in the ordinary course of nature to cause· death. In judging whether the injuries inl1icted are sufficient in the ordinary course of nature to cause death. the possihility that skilful and efficient medical treatment might prevent the fatal result i ~ wholcly irrele-vant. [639 F-H, 640 AJ

Virs11 Singh v. The State of Prmiab [1958) SCR 1495 at 1501, reiterated.

Jn the instant case : (i) clause thirdly of s. 300 J.P.C. has not been estab-lished beyond reasonable doubt; (ii) the evidence fulfils one of the ingredients of s. 299, namelv:. that the appellants caused the death by doing an act with the intention of causin!! such bodily injury as is likely to cause death as· dePos-ed by the- Surgeon, P.W. 12; and (iii) it is fit case where the coi:viction of the appellants should be u / s. 304 (Part I) J.P.C. [640 B-D]

[Th:.: Court convicted the appellants u/s. 304 (Part I) read with s. :o. 34 l.P.C. and sentenced them to ten years rigorous imprisonment; the senter.ce of the appellants u/s. 307 /34 J.P.C. is to nm concurrently with this.1

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 399 of J 974.

From the Judgment and Order dated 24-8-1974 of the Madh.ya Pra-desh High Court in Criminal Appeal No. 693 of 1969.

D. Mukherjee and B. P. Singh for the Appellants.

I. N. Shro.fj and H. S. P(irihar for the Respondent.

The Judgment of the Court was delivered by

GosWAMI, J.-This appeal on certificate under Article 134(1) (c) of the Constitution is from the judgment of the Madhya Pradesh High Court. The certificate was granted as the High Court thought that the appellants were entitled, as of right, to grant of certifi~a~e in view of section 2 of the Supreme Court (Enlargement of Cr1mmal Appellate Jurisdiction) Act, 1970 (briefly the Act).

The High Court is not right in holding that certificate is necessary unoer Article 134( I) ( c) of the Constitution if the appellants have right of appeal under section 2 of the Act. It will therefore be necessary to

consider whether the appellants are entitled, as of right, to appeal to Jhis Court under section 2 of the Act.

Section 2 of the Act reads as follows :-

"2. Without prejudice to the powers conferred on the Sup-reme Court by clause (1) of Art. 134 of the Constitu-tion, an appeal shall lie to the Supreme Court from any judgment, final order of sentence in criminal proceed-.ding of High Court in the territory of India if the High Court-

(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or to imprisonment for period of not Jess than ten years;

(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to imprisonment for life or to imprisonment for period of not less than ten years."

It is clear that if on appeal against an order of acquittal the High Court sets aside the acquittal and convicts an accused and sentences him to imprisonment for life or to period of not less than ten years, the accused is entitled, as of right, to appeal to this Court under section 2(a) of the Act.

Tn this particular case the appellants were tried under section 302/ 34 IPC for the murder of Jawahar and under section 307 /34 IPC for attempt to murder Pooran Singh. We are not concerned with the sen-tence of five years under section 307 /34 IPC in his appeal which runs councurrently with the other sentence. The Sessions Judge acquitted them of the charge of murder of Jawahar but convicted them under section 325 read with section 34 JPC. Indeed the Session Judge clearly stated that-

"Raghubir Singh and Kishore Singh are acquitted of the charge under section 302 r.w. section 34 Indian Penal Code · but they are convicted under section 325 r.w. section 34 Indian Penal Codel for their acts of violence against Jawahar and are sentenced to 4(four) years rigorous imprisonment."

The judgment.of the trial court was delivered on 29th Angust. 1969. The State appealed to the High Court against the acqnittal of the murder charge under section 417 (I) of the Code of Criminal Procedure. 1898 (briefly the old Code) which governs this case.

The short question that arises for consideration is as to whether the appeal before the High Conrt under section 417 ( l) of the old Code was competent since the appellants were not entirely acquitted in the trial but convicted of minor offence after having been charged for major offence which is permissible under section 238 of the old Code. Being still conviction. albeit under minor charge, will it be case of acq1!it-tal for the pnrpose of section 417 ( 1) of the old Code and under sechon

2(a) of the Act ? That is the question. The same question will also arise under section 2(a) of the Act since the High Court set aside the acquittal and altered the conviction under section 325/34 IPC to one under section 302/34 IPC and sentenced them to imprisonment for life.

Having given our anxious consideration to the language employed both in section 417(1) of the old Code and Section 2(a) of the Act we are of opinion that when an accused is acquitted of major charge hut convicted under minor charge, it is still an acquittal under the major charge which can be challenged by the State before the High Court in an appeal under section 417 (1) of the old Code. The same principle will apply in the case of section 2~a) of the Act if person had been acquitted by the trial court under major charge and the High Court on appeal sets aside the acquittal under the major charge and sentences the person to imprisomnent for life or to sentence of not less then ten years. The accused will then be entitled, as of right, to appeal to this Court under section 2(a) of the Act. In this view of the matter the certificate was-unnecessary iu this case and we will treat this appeal as one under section 2(a) of the Act.

Act

Mr. D. Mookherjee appearing on behalf of the appellants has ad-

dressed us only on the question of untenability of the conviction under section 302/34 IPC. According to counsel this is clear case under section 325 /34 IPC and the trial court was right in holding accordingly. We may very briefly advert to the material facts necessary to ap-preciate this submission. Appellant Kishore Singh was armed with 'sabbal' and Raghubir Singh with an axe. We are not concerned with their father Bhaiyalal who was said to be in their company with stick but has since been acquitted. On the date of occurrence which was on July 28, 1968, at 3.30 P.M.,, both the aPPellants attacked Jawahar and caused grievous injuries on his person using the 'sabbal' and the blunt side of the axe. J awahar died in the hospital on August 27, 1968, after recovering from surgical operation for his head injuries. Dr. D. N. Malviya (PW 6) who first examined the deceased could not say whether the injuries were such as were likely to cause death in the ordinary course of nature. Dr. P. K. Jain (PW 12) performed the operation on Jawahar on July 30, 1968, on the third day of the occurrence. He found depressed fracture of the temporal bone. Four pieces of bone were removed during the operation as these were causing compression to the brain. He opined that the injuries to the skull were likely to cause death in the ordinary course of nature without any treatment. The deceased recovered from the operation but unfortunately died after month of the occurrence on August 27, 1968, as stated earlier. Dr. C.N. Dafal (PW 13) who held the post mortem examination was of opinion that death was due to injury to scalp and chest and its complica-tions which were due to the same. He also opined that the injuries found on the dead body were sufficient in his opinion to cause death in the ordinary course of nature.

Relying on the above medical evidence Mr. Mookerjee submits that the charge under section 302 IPC has not been made out against the appellants. According to counsel the medical evidence is not definite

as to whether the injuries cansed by the appellants were sufficient in the ordinllry course of nature to Cause death. In other words, be submits that the present case does not come under the clause '3rdly' of section 300 IPC to warrant charge of murder.

We may, therefore, read that clause :

"300. Except in the cases hereinafter excepted, cnlpable homi-cide is murder . . . . . . . .

3rdly.-if it (if the act by which the death is caused) is done, with the intention of causing bodily in-jury to any person and the bodily injury in-tended to be inflicted is sufficient in the ordi-nary course of nature to cause death."

The distinction between culpable homicide (section 299 IPC) and murder (section 300 IPC) has always to be carefully borne in mind while dealing with charge under section 302 IPC. Under the cate-gory of unlawful homicides fall both cases of culpable homicide amount-ing to murder and those not amounting to murder. Culpable homicide is not murder when the case is brought within the five exceptions to sec-1ion 300 IPC. But even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prose-cution must still be required under the law to bring the case under any of the four clauses of section 300 IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of section 300 IPC, namely, lstly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under section 299 IPC.

On the facts and circumstances of the present case in order to sus-tain the charge under section 302 !PC the prosecution has to estab-lish the ingredients of the clause "3rdly' under section 300 !PC.

That both the appellants caused injuries on the vital parts of the body of the deceased with dangerous weapons has been fully established. lt is absolutely clear on the evidence that both the appellants intended to cause the bodily injuries to the deceased. Thus the first part of

"3rdly" is established.

With regard to the second part of "3rdly", namely, whether the bodily injury is sufficient in the ordinary course of nature to cause death, the court's enquiry is not confined to the intention of the accused at that stage of judicial evaluation, once the intention of the accused to cause the injuries has already been established (see Virsa Singh v. The State of Punjab)('). The court will have to judge objectively from the nature of the injuries and other evidence, including the medical opinion, as to whether the injuries intentionally inflicted by the appel-lants on the deceased were sufficient in the ordinary course of nature to cause death. In judging whether the injuries inflicted are sufficient in the ordinary course of nature to cause death, the possibility that skilful

.and efficient medical treatment might prevent the fatal result is wholly irrelevant.

Having regard to the entire evidence and the circumstances of the case and in view of the somewhat hesitant medical opinion with regard to the cause of death given by the three doctors and the further fact that the deceased died month after the occurrence. we think that clause "3rdly" of section 300 IPC has not been established beyond reasonable doubt in this case. The evidence fulfils one of the ingredients of sec-tion 299, namely, that the appellants caused the death by doing an act with the intention of causing such bodily injury as is likely to cause death as deposed to by the Surgeon (PW 12).The distinction between the expression "likely to cause death" and "sufficient in the ordinary course of nature to cause death" is significant sentence of the appellants under section 307 /34 IPC will run concur-of the somewhat discrepant medical opinion the appellants are entitled to the benefit and we hold that it is fit case where the conviction of the appellants should be under section 304 (Part 1) IPC. Both the appel-lants are, therefore, convicted under section 304 (Part l) read with >ection 34 IPC and sentenced to ten years' rigorous imprisonment. The sentence of the appellants under section 307 /34 IPC will run concur-D rently with this sentence. The appeal is dismissed with the above modi-fication of the conviction and sentence.

Appeal disnussed.