Dhirendra Kumar @ Dhiroo vs State Of Uttarkhand

on 1st April, 1983 at Village Jantanwala. On 2 nd April, 1983

at 9.05 A.M., Mani Ram father of the deceased (who died

during pendency of proceedings before the trial Court)

lodged FIR to the effect that on 28th March, 1983, the

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deceased had gone to the house of the accused to

celebrate holi. In the night, the accused came to the house

of the complainant to assault the deceased alleging that he

had knocked the door of his aunt Kumari Sunita in the night

with evil intention when she was alone in her house. With

the intervention of Mani Ram and PW 7 Raj Kumari, wife of

the deceased, the accused was prevented from dragging

the deceased out of the house but the accused left the

house with a threat. On 1st April, 1983 when the deceased

went to the nearby Dehradun city, he did not return home

at the night. In the morning PW2 Lal Singh told him that the

deceased was seen with the accused at 7.30 P.M. in the

night. Further, Lakhi Ram PW 4 and Bahadur Singh PW 3

told him that the accused was seen beating the deceased

with a stone at 8.30 P.M. One Jagdish Singh told him that he

had seen the dead body near the bank of the river near the

field of Ratan Singh.

3. After registering the FIR, the investigation was

conducted by SO Rajpal Singh PW 11. Post mortem was

conducted by Dr. I.F. Nath PW6. After completing the

investigation, the accused was sent up for trial.

4. The prosecution examined as many as 12 witnesses.

The accused in his statement under 313 Cr.P.C. took the

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plea that he was falsely implicated as he was member of

Yuvak Gram Kalyan Samiti and he had made complaint to

the District Magistrate against illegal distillation of liquor

which made the police inimical to him. He had also made a

complaint against illegal dealings of the contractors in

selling Government cement which had made contractors

inimical to him. He examined his brother, DW 1 Vijendra

Kumar Sharma in support of

his version.

5. After considering the evidence on record, the trial

Court convicted and sentenced the appellant which has

been affirmed by the High Court.

6. We have heard learned counsel for the parties.

7. Main contention urged on behalf of the appellant is

that the evidence of Bahadur Singh PW 3 and Lakhi Ram PW

4 as eye witnesses is not reliable as if they had seen the

occurrence as claimed, they could not have kept quiet in the

night. It was further submitted that the alleged motive was

far fetched and could not be believed. It was finally

submitted that the case was covered by Exception 4 to

Section 300 as it was a case of sudden fight in which both

the parties threw stone at each other and thus the case falls

under Section 304 Part II. Reliance has been placed on

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judgment of this Court in Ankush Shivaji Gaikwad vs.

State of Maharashtra1.

8. We have given due consideration to the rival

submissions and perused the record.

9. As far as reliability of evidence on record is concerned,

we are of the view that re-appreciation of evidence is not

called for in an appeal under Article 136 of the Constitution

in absence of patent illegality or perversity merely because

a different view could also be taken. In the present case,

both the courts below have found the evidence of PW 3

Bahadur Singh and PW 4 Lakhi Ram to be reliable. Evidence

of PW 7 Raj Kumari widow of the deceased has also been

believed with regard to the earlier incident furnishing

motive to the accused. PW 2 Lal Singh has also

corroborated the version given by the eye witnesses by

stating that he had seen the accused and deceased

together just before the occurrence. The defence version of

the accused has not been found to be reliable. The view

taken by the courts below is certainly a possible view for

accepting the evidence led by the prosecution in support of

its version. We thus do not find any reason to reject the

prosecution version. There is enough evidence to prove

1 2013 (6) SCC 770

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that the accused appellant was responsible for causing the

death of the deceased.

10. Only other question which remains to be considered is

the nature of offence. Learned counsel for the appellant

submitted that the accused also received injuries which

showed the case to be of free fight. The injuries found on

the person of the accused by PW 1 Dr. D.M. Kala are as

follows :

“1. Abraded contusion 3 x 2.5 cm. just above right eyebrow.

2. Abraded contusion 8 cm. x 2.5 cm. on right side of face inusilry the area just below and lateral to right eye.

3. Abrasion 4 cm. x 1 cm., on right side of face 2 cms. From right angle of mouth.

In the opinion of Medical Officer, the injuries were caused by hard blunt object or friction about one day before Injury No.1 and 2 was kept under observation while Injury No.3 was simple.”

11. On the other hand, the injury noticed on the body of

the deceased is as follows :

“1.The face and head is flattened from side to side. There are multiple irregular lacerated wounds all over. The face is disfigured and right eye could not be made out. All the bones of skull, base of skull and mandible are pulverized and the brain matter is seen flowing out from all the wounds. In the opinion of Medical Officer, the death of the deceased was caused due to shock and hemorrhage as a result of ante mortem injury. The doctor has also opined that the injury may

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be caused by stone in between 8:00 to 9:00 p.m. on 01.04.1983.”

12. The nature of injuries suffered by the deceased does

not show that the injury was suffered accidentally. There

are multiple wounds and the face is disfigured. The bones

are pulverized. The brain matter was flowing out from all

wounds. Seen in the light of previous motive, the accused

can be said to have caused the death by acting in a cruel

manner. In a plea of sudden fight, the burden to show that

the case falls under Exception 4 to Section 300 I.P.C. is on

the accused. No doubt even without leading positive, the

plea can be substantiated from the material on record.

13. In the present case, there is nothing on record to

establish free fight. Plea of the accused is of false

implication. From the circumstances taken as a whole, only

possible inference is that the accused has inflicted the fatal

injury with a view to cause death. The injuries on the head

have been caused with full force. There is prior enmity. It

was not a case of any sudden quarrel or sudden provocation

or in the heat of passion.

14. Judgment in Ankush does not advance the case of the

appellant. In the said case, the accused were walking near

the field of the deceased when a dog barked at them. The

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accused hit the dog with an iron pipe and on objection being

raised by the deceased there was exchange of hot words

which led to a scuffle in the course of which one of the

accused hit the deceased with iron pipe which he was

already carrying. Thus, it was a case of a sudden fight on

account of barking of the dog belonging to the deceased.

There was no previous enmity. Barking of the dog triggered

the incident and intervention of the deceased led to a

quarrel culminating into the fatal injury on a

vital part.

15. Question whether a case falls under Section 302 or

304 has to be decided from case to case depending on

factors like the circumstances in which the incident takes

place, the nature of weapon used and whether weapon was

carried or was taken from the spot and whether the assault

was aimed on vital part of the body; the amount of force

used; whether the deceased participated in the sudden

fight; whether there was any previous enmity; whether

there was any sudden provocation; whether the attack was

in the heat of passion; whether the person inflicting the

injury took any undue advantage or acted in a cruel or

unusual manner. The list of circumstances is not exhaustive

and there may be several other circumstances with

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reference to individual cases. Applying these tests to the

present case, we are unable to accept the defence on behalf

of the appellant. It was a case of previous enmity and the

nature of injury suggests intention to cause death or a fatal

injury on a vital part of the body with full force sufficient to

cause death. In these circumstances, we do not find any

ground to interfere.

The appeal is accordingly dismissed.

..……..…………………………….J. [DIPAK MISRA]

...….………………………………..J. [ ADARSH KUMAR

GOEL ]

NEW DELHI FEBRUARY 26, 2015

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