Ashok Kumar vs State

Badar Durrez Ahmed, J.—These appeals are directed against the judgment dated 06.08.94 and the order on sentence dated 08.08.94 passed by the learned Additional Sessions Judge, Shahdara, Delhi in Sessions Case No. 341/88 arising out of the FIR No. 399/88 registered at PS Shahdara, Delhi. Both the accused were charged under Sections 307/302/34 of the Indian Penal Code, 1860 (hereinafter referred to as the IPC). The learned Additional Sessions Judge convicted the appellants for the offence punishable u/s 302 read with Section 34 IPC as well as u/s 324/34 IPC. As a result, both the accused were sentenced to life imprisonment with fine of Rs. 500/- each for the offence u/s 302/34 IPC in default of payment of which they were directed to undergo sentence of one year each. The appellants were also sentenced to imprisonment for one year with fine of Rs. 500/- each for the offence u/s 324/34 IPC and in default of payment of fine they were required to undergo three months imprisonment.

The appellants have been in custody since they were arrested in 1986 till they were granted bail in 1994 by virtue of the order dated 08.12.1994. In other words, they had, by then, already spent over 8 years in custody.

The learned Counsel for the appellants straightaway submitted that they are not challenging the finding that the incident took place in the manner it did. They are only challenging the conviction u/s 302 as against their contention that the applicable provision is Section 304 Part II IPC. In this case, the death of Rajinder Singh was caused by the two appellants. Rajinder as well as his brother PW-3 Gurdip Singh as also the present appellants were all students of class 9C in the Senior Secondary School, Babarpur. As per the testimony of PW-3, on 16.8.1986 at about 2.30-3.00 p.m. when the brothers Gurdip Singh and Rajinder Singh, who were new in the school, were sitting in the class-room, the appellants came towards them and gave them fist blows and asked them whether they were sikhs. On their responding that they were hindus and belonged to the village, appellant Ashok told that it did not matter whatever they might be but in case they wanted to stay in the school they would have to salute them. Rajinder and Gurdip Singh complained to the teacher who called appellant Ashok and scolded him. It is also the case of the prosecution that the said appellant was so arrogant that he started abusing the teacher himself. Then the teacher complained to the class teacher Mr. Ram Kumar who caught hold of Ashok by his arm and turned him out of the class-room. After school hours, Rajinder and Gurdip informed their other brother Iqbal and their father about this incident. On 18.8.1986 Iqbal Singh went to the school at about 1.30 p.m. and complained to the physical training teacher who assured him that he would make appellant Ashok understand the situation in the proper perspective. Thereafter Iqbal Singh returned home.

In the class room, the appellants Ashok and Vishnu Dutt told Gurdip Singh that it was not proper for them to have complained against them. They caught hold of Gurdip by his hair, threw him on the ground and threatened that on that day they would not allow them to go back to their home alive after school. A complaint was made to the Physical Training Instructor who scolded both the appellants and sent them away.

The brothers Rajinder Singh and Gurdip Singh left for their house at about 3.30p.m. As they came out of the gate of the school, the appellants Ashok and Vishnu Dutt came in front of them all of a sudden. Vishnu Dutt exhorted Ashok thereupon Ashok took out a knife. Vishnu Dutt caught hold of Rajinder Singh and Ashok inflicted knife blows on Rajinder on his thigh and right buttock twice or thrice. When Gurdip Singh tried to save his brother Rajinder Singh both the appellants attacked Gurdip Singh. Vishnu is alleged to have caught hold of him and Ashok gave the knife blows. Gurdip suffered injuries on his right arm and left buttock. Both the accused succeeded in running away from the spot along with their knives.

Mr. K.K. Sud, the learned senior counsel appearing on behalf of the appellant Ashok Kumar as well as the learned Counsel appearing on behalf of the appellant Vishnu Dutt Sharma submitted that this was a case which clearly fell u/s 304 Part II IPC and was not a case of murder punishable u/s 302 IPC. He referred to the testimony of PW-11 Dr. Bharat Singh who conducted the post-mortem examination. Referring to the said testimony he indicated that following injuries were found on the body of the Rajinder Singh deceased:

One incised stab wound on the back of right thigh upper part 9 1/2'' above the right poplitea'' fosse .Wound was placed horizontally; size of the wound was 1/ 1/4'' x 1/2'' x? wound was spindle shape. Blood was oozing out from the wound; margins were regular and clean cut.

One incised stab wound on the front of right thigh 5'' below the anterior iliac spine placed horizontally, size of the wound was 1/4'' x 2/10'' x? Wound was of spindle shape. Blood was oozing out from the wound; margins were regular and clear cut:

Abrasion on the sacral area size 1/2'' x 1/4'' brown in colour.

Referring to injuries No. 1 to 2, the learned Counsel submitted that although there are two incised stab wounds on the right thigh, the same were caused by one stroke and that injury No. 2 was the exit wound qua injury No. 1. This, he submitted, is what PW-11 Dr. Bharat Singh himself stated in his examination in chief, where he stated that injuries No. 1 to 2 were caused by a sharp object and in one stroke. In fact, the testimony of said doctor would be material for deciding as to whether this case fell u/s 302 IPC or it was a case u/s 304, Part II IPC. The same, to the relevant extent, is reproduced herein below:

Dissection of right thigh showed that external injury No. 1 was directed interiorly .There was clotted blood in the soft tissues of thigh; muscles and small blood vessels were cut in the track of the wound which was reaching on the front side of the thigh from the medial side of thigh bone on the anterior aspect of right thigh track of wound No. 1 was involving right femoral artery which was partly cut and was gapping(sic). Finally the track of wound was joining wound No. 2 which was exit of injury No. 1. Clotted blood was present all alongwith track of the wound - Total length of track of wound was 5''. Injuries No. 1 & 2 were caused by sharp object and in one stroke. Injury No. 3 was caused by friction on hard surface. Injury No. 1 was sufficient to cause death in ordinary course of nature. Death was due to haemorrhage and shock, resulting from injuries to right thigh.

The said witness, PW-11 Dr. Bharat Singh, in his cross-examination also stated that injuries No. 1 and 2 were caused in one stroke. In so far as injury No. 3 is concerned, it was possibly due to fall on a hard surface. He also stated that injury No. 1 was possibly caused by a double edged sharp weapon as it was spindle shaped. The learned Counsel appearing for the appellants placed reliance on the following decisions in support of their contentions:

(i) Gokul Parashram Patil Vs. State of Maharashtra,

(ii) Paramjit Singh and Another Vs. State,

Mr. Dudeja, the learned Counsel appearing for the State supported the Trial Court judgment and order on sentence and contended that the appellants have been rightly convicted by the Trial Court for the offence punishable u/s 302 IPC. He submitted that the injuries caused to the deceased were, in the ordinary course of nature, sufficient to have caused death. Consequently, he submitted that the appeals be dismissed.

We have considered the submissions made by the learned Counsel for the parties. We have also examined the testimony of PW-3 Gurdip Singh and gone through the other evidence on record and we feel that insofar as the incident itself is concerned, the same stands established. The only question before us is whether the appellants have been rightly convicted for the offence punishable u/s 302 or ought to have been convicted u/s 304, Part II IPC. It is clear from the testimony of PW-11 Dr. Bharat Singh that although there are two incised stab wounds on the right thigh, the same were caused by one stroke and therefore it would have to be regarded as a single blow. Apart from this, we also find that the injury was caused to a non-vital part of the body, namely the upper right thigh. It so happens that the said injuries not only cut through the muscles and small blood vessels but also partly cut the femoral artery in the right thigh. It is because of the cut of the femoral artery that the deceased ultimately lost his life due to haemorrhage and shock as opined by PW-11 Dr. Bharat Singh. In Virsa Singh Vs. The State of Punjab, , the Supreme Court observed as under:

To put it shortly, the prosecution must prove the following facts before it can bring a case u/s 300 "thirdly'':

First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder u/s 300 ''thirdly''. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.

(underlining added)

In Gokul Parashram Patil (supra), the said decision has been explained as under:

The gist of the dictum of this Court in that case is that if an injury is held to have been intended by the assailant and is further found to be sufficient in the ordinary course of nature to cause death, it would attract clause thirdly of Section 300 of the Code and that, therefore, its author would be liable to punishment u/s 302 thereof.

In Gokul Parashram Patil (supra), the Supreme Court further noted that the question which therefore arose was whether the particular injury which was found to be sufficient in the ordinary course of nature to cause death was an injury intended by the appellant. The Supreme Court in that case answered the question in the negative. The circumstances before the Supreme Court were that there was a solitary blow given by the appellant therein to the deceased on the left clavicle, which was a non-vital part of the body. The said blow also cut the superior venacava. The Supreme Court observed:

...It would be too much to say that the appellant knew that the superior venacava would be cut as a result of that wound. Even a medical man perhaps may not have been able to judge the location of the superior venacava with any precision of that type. The fact that the venacava was cut must, therefore, be ascribe to a non- intentional or accidental circumstance.

Noting the earlier decisions of the Supreme Court in the case of Harjinder Singh alias Jinda Vs. Delhi Administration, and Laxman Kalu Nikalje Vs. The State of Maharashtra, . The Supreme Court observed as under:

In the former of these cases, the injury in question was a stab wound on the left thigh which had cut the femoral artery and vessels. In the latter, the damage caused consisted of a cut in the auxiliary (sic axilary) artery and veins. In each of the two cases it was held that although the injury which was found to be sufficient in the ordinary course of nature to cause death had resulted from a blow with a sharp-edged weapon, the same could not be said to have been intended, that the only injury which could be regarded as intentional was the superficial wound resulting directly from the blow, that the assailant could not be held guilty of an offence u/s 302 of the Code and that he was, on the other hand, guilty of a lesser offence falling under Part II of Section 304 thereof.

In Paramjit Singh (supra) which is a decision of a Division Bench of this Court, the decisions of the Supreme Court in Virsa Singh (supra) as well as in Laxman Kalu Nikalje (supra) were considered. The Division Bench observed as under:

20 In the present case statement of Dr. Bharat Singh, police surgeon (PW 9) is that on the body of Hardev Singh (deceased) there was one incised stab wound over right thigh and the said injury was ante-mortem caused by a sharp edged weapon having a single cutting edge and that the said injury was sufficient to cause death in the ordinary course of nature. It is, therefore, proved from the above statement that a bodily injury was present, that nature of injury was an incised wound and that the said injury was sufficient in the ordinary course of nature to have caused death. Therefore, the only thing to be seen is if there was an intention to inflict the particular bodily injury which caused death. Dr. Bharat Singh stated that it was on account of cutting of artery which caused haemorrhage and death of Hardev Singh. The relevant statement of Dr. Bharat Singh reads as under:

Normally, the place where Hardev Singh deceased received the injury, is not considered to be a vital part of the body. However, since in this case the large blood vessel was cut, it became fatal.

In the present case although injury (incised wound) was intentionally inflicted by Paramjit Singh yet there could not be any intention on his part that the injury should be such as would cut the blood vessel. In such circumstances the particular injury of cutting of blood vessel in this case was not intentional on the part of Paramjit Singh and therefore, this case is not covered by clause ''3rdly'' of Section 300 IPC. It was held by the Supreme Court in Laxman Kalu Nikalje v. The State of Maharashtra 1968 (3) SCR 85, where also the death was caused on account of cutting of an artery and injury was not on a vital part, it was held that the case did not fall in clause ''3rdly'' of Section 300 IPC and that the offence committed was punishable u/s 304 part II. That judgement of the Supreme Court is exactly on the similar facts. Therefore, in the present case Paramjit Singh committed an offence punishable u/s 304, part II IPC.

(underlining added)

In the present case also we find that the injuries that are present on the body of the deceased Rajinder Singh was caused by one stroke as stated by PW-11 Dr. Bharat Singh. It is also evident that apart from cutting of muscles and small blood vessels the stab injury also partly cut the femoral artery. It does not appear to us that it was the intention of the accused to inflict the injury in such a way as to specifically cut the femoral artery of the deceased Rajinder Singh. Thus, following the dictum of the decisions in the case of Gokul Parasram Patil (supra), Harjinder Singh (supra) and Laxman Kalu Nikalje (supra) and Paramjit Singh (supra) we feel that the appellant ought to have been convicted u/s 304 Part II. Consequently we set aside the conviction of the appellants for the offence punishable u/s 302/34 IPC and substitute the same by Section 304 Part II/34 thereof. Since the appellants have already undergone a period of over 8 years each in custody, we think that would be sufficient punishment for the offence u/s 304 Part II/34 IPC. The appeals stand partly allowed as indicated above. The result of this is that the appellants are convicted u/s 304 Part II read with Section 34 IPC, however, their sentences are reduced from life imprisonments to the periods already undergone. The conviction u/s 324/34 is maintained. Since the appellants have already been granted the benefit of Section 428 Cr.P.C., they have already served out that part of the sentence. Their bail bonds stands cancelled and the sureties stand discharged. These appeals stand disposed of.