Sompal Singh & Anr vs State Of U.P

Sompal Singh & Anr. …Appellants

Versus

State of U.P. …Respondent

J U D G M E N T

Dr. B.S. Chauhan, J.

1. This appeal has been preferred against the

impugned judgment and order dated 24.5.2007 of the High

Court of Judicature at Allahabad in Criminal Appeal No. 2681

of 1982, by which the High Court has affirmed the judgment

and order passed by the IInd Additional Sessions Judge,

Budaun dated 12.10.1980 in S.T. No. 540 of 1980, wherein the

trial court had convicted the appellants alongwith other

accused Jaganant Singh, Sahaab Singh and Meharban Singh

under Sections 148, 323, 149, 324/149 of the Indian Penal

Code, 1860 (hereinafter referred to as the `IPC’) and also

under Sections 320/149 IPC. All the accused were sentenced

to undergo RI for one year under Section 148 IPC and were

further convicted for six months RI under Sections 324/149

IPC and for another six months RI under Sections 323/149 IPC

and all of them were also stood convicted under Sections

302/149 for imprisonment for life.

1

2. The High Court has converted the aforesaid

conviction and also acquitted all of them for the offence

punishable under Sections 302/149 IPC. Kunwar Pal Singh and

Sahaab Singh have been sentenced for ten years RI under

Section 304-I IPC and the other remaining convicts were

held guilty under Sections 148, 323, 324/149 IPC and reduced

their sentences.

3. So far as the present appeal is concerned, it

relates only to two appellants i.e. Sompal Singh and Kunwar

Pal Singh. Sompal Singh is reported to have served out the

sentence of 1-1/2 years awarded to him and in view of the

statement made by Shri Ratnakar Desh, learned senior

counsel appearing on behalf of the appellants, his appeal is

dismissed as having become infructuous. So, we have to

consider the case of remaining sole appellant Kunwar Pal

Singh, the second appellant who has been convicted under

Section 304-I IPC and sentenced to 10 years RI.

4. The facts and circumstances giving rise to this

appeal are that:

A. Shanker Singh, the complainant, was irrigating his

agricultural field by Persian Wheel (Rahat) on 21.5.1980.

At about 11.00 AM, the cattle of Jaganant Singh reached on

the well and started drinking water. As a result of which

the water drain got damaged and this ultimately resulted in

exchange of words between Shanker Singh and Jaganant Singh.

Both of them subsequently finished their agricultural work

2 and came to the village at their respective houses.

B. On the same day, both the appellants alongwith

Meharban Singh, Sahaab Singh and Jaganant Singh attacked

Shanker Singh at around 2.00 p.m. Kunwar Pal Singh and

Sahaab Singh had Kanta, Sompal Singh had a ballam, Jaganant

Singh had bhala and Meherban Singh had a lathi. When Bhoop

Singh, Pooran Singh and Mukku Singh, family members of

Shanker Singh, tried to save him, they also suffered

injuries at the hands of the accused. Hearing the hue and

cries, witnesses Bahadur Singh (PW.8), Hakim Singh (PW.9)

and many other persons arrived at the place of occurrence.

On seeing this, the accused ran away.

C. Shanker Singh, injured, dictated a report to his

nephew Rajbir Singh and when taken to the police station

Wazirganj in bullock-cart, he handed over the same to

Constable Vidya Ram (PW.6), on the basis of which an FIR was

registered for riot and assault. Shanker Singh, injured, as

well as Mukku Singh, Bhoop Singh and Pooran Singh, injured

persons were also examined. Shanker Singh was admitted in

the hospital where he succumbed to the injuries on

24.5.1980. The postmortem was conducted on his body on

25.5.1980.

D. On conclusion of the investigation, chargesheet

was filed and after conclusion of the trial, they stood

convicted and sentenced by the trial court as referred to

herein above.

3 E. Aggrieved, two appeals i.e. Criminal Appeal Nos.

2681 of 1982 and 2687 of 1982, were filed by the convicts

which have been partly allowed by the High Court vide common

judgment and order dated 24.5.2007.

Hence, this appeal.

5. Shri Ratnakar Dash, learned senior counsel

appearing on behalf of the appellant, has submitted that the

High Court after appreciating the evidence on record came to

the correct conclusion that injuries had been caused to

Shanker Singh with Kanta by giving two blows on the head and

one of them had been given by the present appellant Kunwar

Pal Singh and another by Sahaab Singh. The injuries caused

by each of them separately were not sufficient to cause

death. It was the cumulative effect of both the injuries

that Shanker Singh had died. There had been no intention to

kill Shanker Singh, as nobody could prevent the accused to

cause further injuries. Thus, the case falls within the

ambit of Section 304-II IPC and even if the appellant is

convicted under Section 304-I IPC, the sentence of 10 years

is disproportionate to the offence committed by him. Thus,

the appeal deserves to be allowed to that extent.

6. On the contrary, Shri Gaurav Bhatia, learned

Additional Advocate General for the State of U.P., has

opposed the appeal contending that the injury caused by the

appellant was grievous in nature and sufficient to cause

death. Therefore, as the High Court has already converted

4 the conviction from Section 302 IPC to Section 304 Part-I

IPC and sentence has been reduced from life imprisonment to

10 years, no further interference is warranted and the

appeal is liable to be dismissed.

7. We have considered the rival submissions made by

the learned counsel for the parties and perused the records.

8. The appeal lies in a very narrow compass and is to

be decided considering as what could be the nature of

offence and what could be the appropriate

punishment/sentence for the same, taking into account the

injury caused by the appellant to Shanker Singh (deceased)

as the other injured witnesses had suffered injuries at the

hands of the other co-accused with whom we are not concerned

at all.

9. The injuries found on the person of Shanker Singh

(deceased) are as given below:

(1) Incised wound 9 c.m. X 1 c.m. X bone deep on the right skull, 7 c.m. from the right ear. (2) Incised wound 7 c.m. X 1 c.m. X bone deep on the mid-line of skull, 8 c.m. away from injury No.

1.

(3) Contusion 6 c.m. X 2 c.m. on the left anterior chest below the left nipple.

(4) Contusion 8 c.m. X 2 c.m. middle of right thigh.

(5) Contusion 4 c.m. X 2 c.m. on the left back of shoulder.

Injuries Nos. l and 2 were caused by some sharp

5 edged object and injuries Nos. 3, 4 and 5 were caused by some blunt object. They were half days old in duration. The doctor also prepared the injury report Ex.Ka-15.

In the opinion of Dr. V.K. Mehta (PW.7), Medical

Officer at Saidpur Primary Health Centre, injuries nos. 1

and 2 had been caused by some sharp edged weapon and other

injuries had been caused by blunt object.

10. The trial court after appreciating the entire

evidence, came to the conclusion that Kunwar Pal Singh - the

appellant was responsible for causing only one injury on the

head as the other injury on the head had been caused by

Sahaab Singh. However, considering the entire evidence on

record the court came to the conclusion that Shanker Singh

died in the hospital next day on account of the aforesaid

injuries caused by the accused persons. The prosecution

witness established that the accused persons formed an

unlawful assembly armed with lathis and other lethal weapons

and in order to prosecute common object of such assembly

they voluntarily caused serious injuries to Shanker Singh

causing his death and they also voluntarily caused simple

injuries to Bhoop Singh, Mikhu Singh and Pooran Singh. Thus,

on the basis of the prosecution witness, ocular and medical

it was established that all the accused persons were guilty

for the offences punishable under Sections 147, 148, 302,

324 and 323 IPC all read with Section 149 IPC.

11. In appeal, the High Court re-appreciated the

6 entire evidence and came to the conclusion that appellant

Kunwar Pal Singh and accused Sahaab Singh were responsible

for causing injuries on the head of the deceased with

‘Kanta’. The deceased survived for two days after receiving

such incised wounds on his dead and died after three days of

the incident and the common object of the unlawful assembly

was to belabor the deceased. Considering the common object

of the assembly it was not possible to draw an inference

that there was no intention to murder the deceased or cause

him such bodily injury as was sufficient in the ordinary

course of nature to cause death. The force applied

inflicting the injury was such that if it did not make the

deceased even unconscious and he remained alive for three

days prior to his death the victim was in physical and

mental condition to dictate an FIR of the incident, and

therefore it was not a case where the conviction of any of

the accused could be affirmed under Section 302/149 IPC,

rather it was a case for conviction under Section 304 Part I

IPC simplicitor. Using sharp edged weapon on the head

indicates that Kunwar Pal Singh and Sahaab Singh accused

knew that death might ensue because of the assault made by

them.

12. Undoubtedly, both the said injuries have been on

the skull. The first injury is 7 Cm. away from the right

ear, however, the second injury is 8 Cm. away from injury

no.1. Much arguments have been advanced as what is the

meaning of bone deep. In case, the injury is caused on the

7 part of the body other than head, it can be measured as

skin deep. If injury is deep to certain extent, it may cut

muscles and then may go upto the bone. In case of head

injury, if the injury remains superfluous, it is generally

described as skull deep. On the head, there is hair which

rooted to the skin with bulp. There are cartilages below

the skin and then comes cranium.

13. The gravity of the injury is to be determined in

view of the provisions contained in Section 320 IPC, which

read:

“Grievous hurt – The following kinds of hurt only are designated as “grievous”:-

Firstly – ………….. xxx xxx xxx

Sixthly - Permanent disfiguration of the head or face. Seventhly -Fracture or dislocation of a bone or tooth.

Eighthly – Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

14. So far as the instant case is concerned, clauses

sixthly and seventhly may be relevant. Nature of the

injuries is to be determined taking into consideration the

intense suffering to which it gives rise and the serious

disability which it causes the sufferer. However, in clause

seventhly, as the term ‘fracture’ has been referred to, it

may be necessary that the bone is broken. Mere abrasion

8 would not amount to fracture. Even a cut that does not go

across the bone cannot be termed as a fracture of the bone.

But if the injury is grave even partial cut of the skull

vault (root or chamber) may amount to a fracture. However,

clause eighthly refers to the injuries which are not covered

under any one of the above clauses firstly to seventhly of

the section. However, it labels the injuries as grievous if

it endangers life or it causes the sufferer to be during the

space of 20 days in severe bodily pain or which causes the

sufferer to be during the space of 20 days unable to follow

his ordinary pursuits and all the three clauses have to be

read independently. This is a very thin and subtle

demarcation line between ‘hurt which endangers life’ and

‘injury as is likely to cause death’. Therefore, sometimes

it becomes very difficult as to whether a person is liable

under Section 325 IPC for causing grievous hurt or under

Section 304 IPC for culpable homicide not amounting to

murder when the injury results in the death of the victim.

In the present case, the injuries nos. 1 and 2 are beyond

`hurt which endanger life’ and clearly falls in the category

of ‘injuries as are likely to cause death’ even though each

injury may not be individually sufficient to cause death.

15. The High Court has set aside the conviction under

Section 302 read with Section 149 IPC and the finding

attained finality to that extent. There is ample evidence on

record to draw the conclusion that the injury caused by the

appellant was not sufficient to cause death independently.

9 In such a fact-situation, the conviction of the appellant as

recorded by the High Court under Section 304 Part I IPC is

upheld. However, in the facts of the case as the incident

occurred about thirty four years ago, sentence is reduced to

seven years. The appeal stands disposed of with the

aforesaid modification.

......................J. (Dr. B.S. CHAUHAN)

.....................J. (A.K. SIKRI) New Delhi, May 16, 2014

10 ITEM NO.1A Court No.2 SECTION II

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CRIMINAL APPEAL NO(s). 147 OF 2009

SOMPAL SINGH & ANR. Appellant (s)

VERSUS

STATE OF U.P. Respondent(s)

(With office report)

Date: 16/05/2014 This Appeal was called on for pronouncement of judgment today.

For Appellant(s) Mr. Irshad Ahmad,Adv.

Mr. Samir Ali Khan ,Adv

For Respondent(s) Mr. Gaurav Bhatia, AAG Mr. Aviral Saxena, Adv.

Mr. Anuvrat Sharma,Adv.

Hon'ble Dr. Justice B.S. Chauhan pronounced the judgment of the Bench comprising of His Lordship and Hon'ble Mr. Justice A.K. Sikri.

The appeal is disposed of in terms of the signed non-reportable judgment.

(DEEPAK MANSUKHANI) (M.S. NEGI) Court Master Assistant Registrar

(Signed non-reportable judgment is placed on the file)

11