State Of Rajasthan vs Shera Ram @ Vishnu Dutta

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1502 OF 2005

State of Rajasthan ...

Appellant

Versus

Shera Ram @ Vishnu Dutta ...

Respondent

J U D G M E N T

Swatanter Kumar, J.

1. Respondent Shera Ram @ Vishnu Dutta was charged for

committing an offence under Sections 302, 295 and 449 of the

Indian Penal Code, 1860 (for short `IPC') and was sentenced to

undergo imprisonment for life by the Additional Sessions

Judge-1, Jodhpur vide judgment dated 7th June, 2000.

However, upon appeal, he came to be acquitted of all the

offences by a Division Bench of the High Court of Rajasthan

vide order dated 21st February, 2004 primarily on the ground

that at the time of incident, he was a person of unsound mind

within the meaning of Section 84 IPC and was directed to be

detained in safe custody in an appropriate hospital or a place

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of custody of non-criminal lunatics as would be provided to

him by the State Government under the direct supervision of

the Jail Authorities till the time he was cured of his mental

illness and infirmity.

2. Aggrieved from the said judgment, the State of Rajasthan

has presented this appeal by way of a special leave petition.

3. Before we proceed to dwell upon the merits of the case and

the legal issues involved in the present appeal, a reference to

the case of the prosecution would be necessary. According to

the prosecution, on 10th March, 1999 at about 7.15 a.m.,

while Pujari Tulsi Das (now deceased) was in the

Raghunathji's temple, the respondent abruptly hurled a stone

on his head resulting into his instantaneous death. The

respondent also damaged the idol and other properties of the

temple. This all was unprovoked. The incident was

witnessed by the villagers including PW-6 Santosh, PW-11

Narsingh Ram and PW-16, Smt. Tiku Devi.

4. PW-2, Ghan Shyam Das Daga reported the matter to the

police immediately. Upon receipt of the information, the police

registered a case under Section 302 IPC and proceeded with

the investigation. Besides recording statements of number of

witnesses, the Investigating Officer also prepared the site plan

and the inquest memo. The body of the deceased was sent for

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post-mortem which was performed by PW-20, Dr. C.P. Bhati,

who prepared the post-mortem report Ext. P-37.

5. After investigation, the police filed the challan upon which,

the respondent was committed to the appropriate Court of

Sessions for trial. The charge-sheet was filed under Sections

302, 295 and 449 IPC, as already noticed. The respondent

denied the charges leveled against him and claimed trial.

6. The prosecution examined as many as 23 witnesses to

prove its case. The material piece of evidence appearing in

the case of the prosecution against the respondent were put to

him and his statement was recorded by the learned Trial

Court under Section 313 of the Code of Criminal Procedure,

1973 (for short `Cr.PC'). According to the respondent, his

mental condition right from the year 1992-1993 was not good

and occasionally he suffered from fits of insanity. He had

undergone treatment for the same. He has stated that in the

jail also, he was receiving the treatment. To put it simply, he

claimed the defence of insanity under Section 84 IPC. The

defence also examined DW-2, Dr. Vimal Kumar Razdan and

DW-1, Bhanwar Lal, brother of the respondent who had

produced records to show that the respondent was a person

suffering from insanity of mind. The learned Trial Court

rejected the plea of defence of insanity and convicted the

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respondent.

7. The respondent preferred an appeal against the judgment

and order of conviction by the Trial Court which resulted in

his acquittal vide order dated 21st February, 2004 with the

afore-noticed directions to the State Government. Dissatisfied

from the said judgment, the State has preferred the present

appeal.

8. As is evident from the above-noted facts, it is an appeal

against the judgment of acquittal. The plea of insanity raised

by the respondent has been accepted by the High Court

resulting in his acquittal.

9. A judgment of acquittal has the obvious consequence of

granting freedom to the accused. This Court has taken a

consistent view that unless the judgment in appeal is contrary

to evidence, palpably erroneous or a view which could not

have been taken by the court of competent jurisdiction

keeping in view the settled canons of criminal jurisprudence,

this Court shall be reluctant to interfere with such judgment

of acquittal.

10. The penal laws in India are primarily based upon

certain fundamental procedural values, which are right to fair

trial and presumption of innocence. A person is presumed to

be innocent till proven guilty and once held to be not guilty of

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a criminal charge, he enjoys the benefit of such presumption

which could be interfered with only for valid and proper

reasons. An appeal against acquittal has always been

differentiated from a normal appeal against conviction.

Wherever there is perversity of facts and/or law appearing in

the judgment, the appellate court would be within its

jurisdiction to interfere with the judgment of acquittal, but

otherwise such interference is not called for. We may refer to

a recent judgment of this Court in the case of State of

Rajasthan, Through Secretary, Home Department v. Abdul

Mannan [(2011) 8 SCC 65], wherein this Court discussed the

limitation upon the powers of the appellate court to interfere

with the judgment of acquittal and reverse the same.

11. This Court referred to its various judgments and

held as under:-

"12. As is evident from the above recorded findings,

the judgment of conviction was converted to a

judgment of acquittal by the High Court. Thus, the

first and foremost question that we need to consider

is, in what circumstances this Court should interfere

with the judgment of acquittal. Against an order of

acquittal, an appeal by the State is maintainable to

this Court only with the leave of the Court. On the

contrary, if the judgment of acquittal passed by the

trial court is set aside by the High Court, and the

accused is sentenced to death, or life imprisonment or

imprisonment for more than 10 years, then the right

of appeal of the accused is treated as an absolute right

subject to the provisions of Articles 134(1)(a) and

134(1)(b) of the Constitution of India and Section 379 6

of the Code of Criminal Procedure, 1973. In light of

this, it is obvious that an appeal against acquittal is

considered on slightly different parameters compared

to an ordinary appeal preferred to this Court.

13. When an accused is acquitted of a criminal

charge, a right vests in him to be a free citizen and

this Court is very cautious in taking away that right.

The presumption of innocence of the accused is

further strengthened by the fact of acquittal of the

accused under our criminal jurisprudence. The courts

have held that if two views are possible on the

evidence adduced in the case, then the one favourable

to the accused, may be adopted by the court.

However, this principle must be applied keeping in

view the facts and circumstances of a case and the

thumb rule is that whether the prosecution has

proved its case beyond reasonable doubt. If the

prosecution has succeeded in discharging its onus,

and the error in appreciation of evidence is apparent

on the face of the record then the court can interfere

in the judgment of acquittal to ensure that the ends of

justice are met. This is the linchpin around which the

administration of criminal justice revolves.

14. It is a settled principle of criminal jurisprudence

that the burden of proof lies on the prosecution and it

has to prove a charge beyond reasonable doubt. The

presumption of innocence and the right to fair trial are

twin safeguards available to the accused under our

criminal justice system but once the prosecution has

proved its case and the evidence led by the

prosecution, in conjunction with the chain of events

as are stated to have occurred, if, points irresistibly to

the conclusion that the accused is guilty then the

court can interfere even with the judgment of

acquittal. The judgment of acquittal might be based

upon misappreciation of evidence or apparent

violation of settled canons of criminal jurisprudence.

15. We may now refer to some judgments of this

Court on this issue. In State of M.P. v. Bacchudas, the

Court was concerned with a case where the accused

had been found guilty of an offence punishable under

Section 304 Part II read with Section 34 IPC by the

trial court; but had been acquitted by the High Court

of Madhya Pradesh. The appeal was dismissed by this

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Court, stating that the Supreme Court's interference

was called for only when there were substantial and

compelling reasons for doing so. After referring to

earlier judgments, this Court held as under: (SCC

pp. 138-39, paras 9-10)

"9. There is no embargo on the appellate

court reviewing the evidence upon which an

order of acquittal is based. Generally, the order

of acquittal shall not be interfered with because

the presumption of innocence of the accused is

further strengthened by acquittal. The golden

thread which runs through the web of

administration of justice in criminal cases is

that if two views are possible on the evidence

adduced in the case, one pointing to the guilt

of the accused and the other to his innocence,

the view which is favourable to the accused

should be adopted. The paramount

consideration of the court is to ensure that

miscarriage of justice is prevented. A

miscarriage of justice which may arise from

acquittal of the guilty is no less than from the

conviction of an innocent. In a case where

admissible evidence is ignored, a duty is cast

upon the appellate court to reappreciate the

evidence where the accused has been

acquitted, for the purpose of ascertaining as to

whether any of the accused really committed

any offence or not. (See Bhagwan Singh v.

State of M.P.) The principle to be followed by

the appellate court considering the appeal

against the judgment of acquittal is to interfere

only when there are compelling and substantial

reasons for doing so. If the impugned judgment

is clearly unreasonable and relevant and

convincing materials have been unjustifiably

eliminated in the process, it is a compelling

reason for interference. These aspects were

highlighted by this Court in Shivaji Sahabrao

Bobade v. State of Maharashtra, Ramesh

Babulal Doshi v. State of Gujarat, Jaswant

Singh v. State of Haryana, Raj Kishore Jha v.

State of Bihar, State of Punjab v. Karnail

Singh, State of Punjab v. Phola Singh, Suchand

Pal v. Phani Pal and Sachchey Lal Tiwari v.

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State of U.P.

10. When the conclusions of the High Court

in the background of the evidence on record

are tested on the touchstone of the principles

set out above, the inevitable conclusion is that

the High Court's judgment does not suffer from

any infirmity to warrant interference."

16. In a very recent judgment, a Bench of this Court

in State of Kerala v. C.P. Rao decided on 16-5-2011,

discussed the scope of interference by this Court in an

order of acquittal and while reiterating the view of a

three-Judge Bench of this Court in Sanwat Singh v.

State of Rajasthan, the Court held as under:

"13. In coming to this conclusion, we are

reminded of the well-settled principle that when

the court has to exercise its discretion in an

appeal arising against an order of acquittal, the

court must remember that the innocence of the

accused is further re-established by the

judgment of acquittal rendered by the High

Court. Against such decision of the High Court,

the scope of interference by this Court in an

order of acquittal has been very succinctly laid

down by a three-Judge Bench of this Court in

Sanwat Singh v. State of Rajasthan 212. At SCR

p. 129, Subba Rao, J. (as His Lordship

then was) culled out the principles as follows:

`9. The foregoing discussion yields the

following results: (1) an appellate court has full

power to review the evidence upon which the

order of acquittal is founded; (2) the principles

laid down in Sheo Swarup case afford a correct

guide for the appellate court's approach to a

case in disposing of such an appeal; and (3) the

different phraseology used in the judgments of

this Court, such as (i) "substantial and

compelling reasons", (ii) "good and sufficiently

cogent reasons", and (iii) "strong reasons", are

not intended to curtail the undoubted power of

an appellate court in an appeal against

acquittal to review the entire evidence and to

come to its own conclusion; but in doing so it

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should not only consider every matter on

record having a bearing on the questions of fact

and the reasons given by the court below in

support of its order of acquittal in its arriving

at a conclusion on those facts, but should also

express those reasons in its judgment, which

lead it to hold that the acquittal was not

justified'."

17. Reference can also be usefully made to the

judgment of this Court in Suman Sood v. State of

Rajasthan, where this Court reiterated with approval

the principles stated by the Court in earlier cases,

particularly, Chandrappa v. State of Karnataka.

Emphasising that expressions like "substantial and

compelling reasons", "good and sufficient grounds",

"very strong circumstances", "distorted conclusions",

"glaring mistakes", etc. are not intended to curtail the

extensive powers of an appellate court in an appeal

against acquittal, the Court stated that such

phraseologies are more in the nature of "flourishes of

language" to emphasise the reluctance of an appellate

court to interfere with the acquittal. Thus, where it is

possible to take only one view i.e. the prosecution

evidence points to the guilt of the accused and the

judgment is on the face of it perverse, then the Court

may interfere with an order of acquittal."

12. There is a very thin but a fine distinction between

an appeal against conviction on the one hand and acquittal on

the other. The preponderance of judicial opinion of this Court

is that there is no substantial difference between an appeal

against conviction and an appeal against acquittal except that

while dealing with an appeal against acquittal the Court keeps

in view the position that the presumption of innocence in

favour of the accused has been fortified by his acquittal and if

the view adopted by the High Court is a reasonable one and

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the conclusion reached by it had its grounds well set out on

the materials on record, the acquittal may not be interfered

with. Thus, this fine distinction has to be kept in mind by the

Court while exercising its appellate jurisdiction. The golden

rule is that the Court is obliged and it will not abjure its duty

to prevent miscarriage of justice, where interference is

imperative and the ends of justice so require and it is essential

to appease the judicial conscience.

13. Also, this Court had the occasion to state the

principles which may be taken into consideration by the

appellate court while dealing with an appeal against acquittal.

There is no absolute restriction in law to review and re-look

the entire evidence on which the order of acquittal is founded.

If, upon scrutiny, the appellate court finds that the lower

court's decision is based on erroneous views and against the

settled position of law then the said order of acquittal should

be set aside. {See State (Delhi Administration) v. Laxman Kumar

& Ors. [(1985) 4 SCC 476], Raj Kishore Jha v. State of Bihar &

Ors. [AIR 2003 SC 4664], Inspector of Police, Tamil Nadu v.

John David [JT 2011 (5) SC 1] }

14. To put it appropriately, we have to examine, with

reference to the present case whether the impugned judgment

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of acquittal recorded by the High Court suffers from any legal

infirmity or is based upon erroneous appreciation of evidence.

15. In our considered view, the impugned judgment

does not suffer from any legal infirmity and, therefore, does

not call for any interference. In the normal course of events,

we are required not to interfere with a judgment of acquittal.

16. Having deliberated upon the above question of law,

we may now proceed to discuss the merits of the case in hand.

The High Court after consideration of the entire evidence

produced by the prosecution, affirmed the finding that the

incident as alleged by the prosecution had occurred and the

respondent had hurled a stone on the head of Pujari Tulsi Das

which resulted in his death. This being a finding of fact based

upon proper appreciation of evidence, does not call for any

interference by us.

17. The corollary that follows from the above is whether

having committed the charged offence, the respondent is

entitled to the benefit of the general exception contained in

Section 84, Chapter IV of the IPC? Section 84 states that

nothing is an offence which is done by a person who, at the

time of doing it, by reason of unsoundness of mind, is

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incapable of knowing the nature of the act, or that what he is

doing is either wrong or contrary to law.

18. It is obvious from a bare reading of this provision

that what may be generally an offence would not be so if the

ingredients of Section 84 IPC are satisfied. It is an exception

to the general rule. Thus, a person who is proved to have

committed an offence, would not be deemed guilty, if he falls

in any of the general exceptions stated under this Chapter.

19. To commit a criminal offence, mens rea is generally

taken to be an essential element of crime. It is said furiosus

nulla voluntus est. In other words, a person who is suffering

from a mental disorder cannot be said to have committed a

crime as he does not know what he is doing. For committing

a crime, the intention and act both are taken to be the

constituents of the crime, actus non facit reum nisi mens sit

rea. Every normal and sane human being is expected to

possess some degree of reason to be responsible for his/her

conduct and acts unless contrary is proved. But a person of

unsound mind or a person suffering from mental disorder

cannot be said to possess this basic norm of human behavior.

In the case of Surendra Mishra v. State of Jharkhand [(2011) 3

SCC(Cri.) 232], the Court was dealing with a case where the

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accused was charged for an offence under Section 302 IPC and

Section 27 of the Arms Act. While denying the protection of

Section 84 of the IPC to the accused, the Court held as under:-

"9. In our opinion, an accused who seeks exoneration

from liability of an act under Section 84 of the Indian

Penal Code is to prove legal insanity and not medical

insanity. Expression "unsoundness of mind" has not

been defined in the Indian Penal Code and it has

mainly been treated as equivalent to insanity. But

the term insanity carries different meaning in different

contexts and describes varying degrees of mental

disorder. Every person who is suffering from mental

disease is not ipso facto exempted from criminal

liability. The mere fact that the accused is conceited,

odd, irascible and his brain is not quite all right, or

that the physical and mental ailments from which he

suffered had rendered his intellect weak and affected

his emotions or indulges in certain unusual acts, or

had fits of insanity at short intervals or that he was

subject to epileptic fits and there was abnormal

behavior or the behavior is queer are not sufficient to

attract the application of Section 84 of the Indian

Penal Code."

20. From the above-stated principles, it is clear that a

person alleged to be suffering from any mental disorder cannot

be exempted from criminal liability ipso facto. The onus would

be on the accused to prove by expert evidence that he

is suffering from such a mental disorder or mental condition

that he could not be expected to be aware of the consequences

of his act.

21. Once, a person is found to be suffering from mental

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disorder or mental deficiency, which takes within its ambit

hallucinations, dementia, loss of memory and self-control, at

all relevant times by way of appropriate documentary and oral

evidence, the person concerned would be entitled to seek

resort to the general exceptions from criminal liability.

22. Epileptic Psychosis is a progressing disease and its

effects have appropriately been described in the text book of

Medical Jurisprudence and Toxicology by Modi, 24th Ed. 2011

where it states as follows:-

"Epileptic Psychosis. - Epilepsy usually occurs from

early infancy, though it may occur at any period of

life. Individuals, who have had epileptic fits for

years, do not necessarily show any mental

aberration, but quite a few of them suffer from

mental deterioration. Religiousity is a marked

feature in the commencement, but the feeling is only

superficial. Such patients are peevish, impulsive

and suspicious, and are easily provoked to anger on

the slightest cause.

The disease is generally characterized by short

transitory fits of uncontrollable mania followed by

complete recovery. The attacks, however, become

more frequent. There is a general impairment of the

mental faculties, with loss of memory and self-

control. At the same time, hallucinations of sight

and hearing occur and are followed by delusions of a

persecuting nature. They are deprived of all moral

sensibility, are given to the lowest forms of vice and

sexual excesses, and are sometimes dangerous to

themselves as well as to others. In many long-

standing cases, there is a progressive dementia or

mental deficiency.

True epileptic psychosis is that which is associated

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with epileptic fits. This may occur before or after

the fits, or may replace them, and is known as pre-

epileptic, post-epileptic and masked or psychic

phases (psychomotor epilepsy)

Post-Epileptic Mental Ill-health - In this condition,

stupor following the epileptic fits is replaced by

automatic acts of which the patient has no

recollections. The patient is confused, fails to

recognize his own relatives, and wanders aimlessly.

He is terrified by visual and auditory hallucinations

of a religious character and delusions of

persecution, and consequently, may commit crimes

of a horrible nature, such as thefts, incendiarism,

sexual assaults and brutal murders. The patient

never attempts to conceal them at the time of

perpetration but on regaining consciousness may try

to conceal them out of fear."

23. Similar features of Epilepsy have been recorded in

the HWV COX Medical Jurisprudence and Toxicology (7th Edn)

by PC Dikshit.

24. Reverting to the facts of the present case, it may be

noted that no witness of the prosecution including the

Investigating Officer stated anything with regard to the mental

condition of the respondent. However, the respondent not

only in his statement under Section 313 Cr.P.C. took up the

defence of mental disorder seeking benefit of Section 84 IPC

but even led evidence, both documentary as well as oral, in

support of his claim. He examined Dr. Vimal Kumar Razdan,

DW-2, who deposed that he had examined the respondent and

had given him treatment. He, also, produced the examination

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report in regard to the treatment of the respondent, Ext.D-5,

which was prepared in his clinic.

25. According to the statement of this doctor and the

prescription, the respondent was suffering from Epilepsy and

while describing post epileptic insanity, this witness stated

that after the epileptic attack, a patient behaves like an insane

person and he is unable to recognise even the known persons

and relatives. During this time, there is a memory loss and

the patient can commit any offence. In the prescription, Ext.

D-3, issued by Dr. Ashok Pangadiya, it was stated that the

patient was suffering from the fits disease and symptoms of

behavioral abnormality. Two types of medication on the basis

of diagnosis of epileptic disease and other one for insanity

were prescribed to the respondent who continued to take these

medicines, post epileptic insanity.

26. Another witness who was produced by the defence

was DW-1, Bhanwar Lal, the brother of the respondent.

According to this witness, the respondent was suffering from

mental disorder since 1993. He stated that when he gets the

fits of insanity, he can fight with anybody, hit anybody and

even throw articles lying around him. At the initial stage, Dr.

Devraj Purohit had treated him. Then Dr. V.K. Razdan treated

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him and thereafter, in Jaipur, Dr. Ashok Pagadiya/Pandharia

also treated him. Even when he was in jail, he was under

treatment. He produced the prescription slips i.e. Exts. D3

and D4. This witness has also stated that on the date of

occurrence at about 6.00 - 6.30 a.m., Shera Ram/respondent

was not feeling well and, in fact, his condition was not good.

Even at home he had broken the electricity meter and the

bulbs. When the people at home including the witness tried

to stop him, he had beaten DW-1 on his arm and after hitting

him on the face he had run away.

27. This oral and documentary evidence clearly shows

that the respondent was suffering from epileptic attacks just

prior to the incident. Immediately prior to the occurrence, he

had behaved violently and had caused injuries to his own

family members. After committing the crime, he was arrested

by the Police and even thereafter, he was treated for insanity,

while in jail.

28. Thus, there is evidence to show continuous mental

sickness of the respondent. He not only caused death of the

deceased but also on the very same day injured and caused

hurt to his family members including DW-1. His statement

made under Section 313 Cr.PC is fully corroborated by oral

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and documentary evidence of DW-2 and Ext. D-3 and D-4.

Though, the High Court has not discussed this evidence in

great detail, but this being an admissible piece of evidence,

can always be relied upon to substantiate the conclusion and

findings recorded by the High Court.

29. In other words, the High Court on the basis of the

documentary and oral evidence has a taken a view which was

a possible and cannot be termed as perverse or being

supported by no evidence. The finding of the High Court,

being in consonance with the well settled principles of criminal

jurisprudence, does not call for any interference. More so, the

learned counsel appearing for the State has not brought to our

notice any evidence, documentary or otherwise, which could

persuade us to take a contrary view i.e. other than the view

taken by the High Court.

30. Another aspect of this case which requires

consideration by this Court is that the case of the prosecution

suffers from legal infirmity. In fact, the prosecution has failed

to prove beyond reasonable doubt that the injury inflicted by

the respondent upon the deceased was sufficient in the

ordinary course of nature to cause death. It is the case of the

prosecution that the respondent had hurled a stone which had

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caused injury (lacerated wound on the left side of the forehead)

whereupon the deceased fell on the ground and subsequently

collapsed. The injury is said to be 2'' x =" x upto bone,

transversely Lt. side of forehead and another lacerated wound

2" x =" x <" near injury No.1 towards the forehead. These

are the injuries which the deceased is stated to have suffered.

In addition, abrasion of 1 cm x 1 cm on the left eyebrow was

also present. According to the doctor, all these injuries were

ante mortem in nature and the cause of death was shock and

haemorrhage due to head injury.

31. In the statement of PW-20, Dr. C.P. Bhati, it is

nowhere stated that the injuries caused by the respondent

were sufficient in the ordinary course of nature to cause death.

It is also not recorded in the post-mortem report, Ext. 37.

This was a material piece of evidence which the prosecution

was expected to prove in order to bring home the guilt of the

respondent. This is a serious deficiency in the case of the

prosecution. Absence of this material piece of evidence

caused a dent in the case of the prosecution. The High Court

has not taken note of this important aspect of the case.

32. The learned counsel appearing for the respondent

placed reliance upon this evidence and strenuously contended

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that the respondent was entitled to acquittal on this basis

alone. We should not be understood to have stated any

absolute proposition of law, but in the facts and

circumstances of the present case, it was expected of PW-20 to

state before the Court as well as record the same in the post-

mortem report prepared by him i.e. Ext. 37, that the injuries

were sufficient in the ordinary course of nature to cause death

of the deceased.

33. Ex-facie, injuries do not appear to be so vital that

they could have resulted in the death of the deceased, but this

fact was required to be proved by expert evidence. The

counsel for the respondent relied upon a judgment of this

Court in the case of Ram Jattan and Others v. State of U.P.

[(1995) SCC (Cri) 169] where this Court held that it is not

appropriate to interfere with the conclusion that the injuries

are not sufficient to cause death unless they are so patent.

The Court held as under:-

"4. The learned counsel, however, further

submitted that in any event the offence committed

by the members of unlawful assembly cannot be

held to be one of murder and therefore the common

object of unlawful assembly was not one which

attracts the provision of Section 302 read with

Section 149 IPC. We find considerable force in this

submission. Though, in general, right from the first

report onwards the prosecution case is that all the

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12 accused armed with sharp-edged weapons and

lathis surrounded the three persons and inflicted

the injuries but from the doctor's report we find that

no injury was caused on the vital organs. So far as

Patroo is concerned, who got the report written by

PW 7 and gave it in the police station, we find 13

injuries but all of them were abrasions and

lacerated injuries on the legs and hands. The doctor

opined that all the injuries were simple. On Balli,

PW 8, the doctor found 12 injuries and they were

also on arms and legs. There was only one

punctured wound, injury No. 8 and it was not a

serious injury and it was also a simple injury. Now,

coming to the injuries on the deceased, the doctor

who first examined him, when he was alive, found

11 injuries. Out of them, injuries Nos. 1 and 2 were

punctured wounds. Injury No. 5 was an incised

wound and injury No. 6 was a penetrating wound.

All these injuries were on the upper part of the right

forearm and outer and lower part of right upper

arm. The remaining injuries were abrasions and

contusions. The doctor opined that except injuries

Nos. 7 and 9 all other injuries were simple. He did

not say whether injuries Nos. 7 and 9 were grievous

but simply stated that they were to be kept under

observation. The deceased, however, died the next

day i.e. 9-4-1974 and the post-mortem was

conducted on the same day. In the post-mortem

examination 11 external injuries were noted but on

the internal examination the doctor did not find any

injury to the vital organs. He, however, noted that

8th and 9th ribs were fractured. Now, coming to the

cause of death, he opined that death was due to

shock and haemorrhage. It is not noted that any of

the injuries was sufficient to cause death in the

ordinary course of nature. It could thus be seen that

neither clause 1stly nor clause 3rdly of Section 300

are attracted to the facts of this case. This

contention was also put forward before the High

Court but the learned Judges rejected this

contention observing that the fracture of 8th and

9th ribs must have resulted in causing death and

therefore these injuries must be held to be sufficient

in the ordinary course of nature to cause death. We

are unable to agree with this reasoning. In the

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absence of proof by the prosecution in an objective

manner that the injuries caused were sufficient in

the ordinary course of nature to cause death, the

same cannot be interfered with unless the injuries

are so patent. As we have noted above except

fracture of ribs there was no other injury to any of

the vital organs. As a matter of fact internally the

doctor did not notice any damage either to the heart

or lungs. Even in respect of these two injuries

resulting in fracture of the ribs, there were no

corresponding external injuries. Again as already

noted all the injuries were on the non-vital parts of

the body. The learned counsel for the State,

however, submitted that a forceful blow dealt on the

arm might have in turn caused the fracture of the

two ribs. Even assuming for a moment it to be so, it

is difficult to hold that from that circumstance

alone the common object of the unlawful assembly

of 12 persons to cause the death of the deceased is

established.

5. The common object has to be gathered or

inferred from the various circumstances like nature

of the weapons, the force used and the injuries that

are caused. After carefully going through the

medical evidence we find that it is difficult to

conclude that the common object was to cause the

death. The injuries on Patroo, PW 8 as well as on

the deceased were more or less of the same nature

except that in the case of deceased, there were few

punctured wounds which were not serious but only

simple. He died due to shock and haemorrhage the

next day. In any event there is no indication

anywhere in the evidence of the doctor or in the

post-mortem certificate that any of the injuries was

sufficient in the ordinary course of nature to cause

death. No doubt in his deposition the doctor, PW 4

has stated in the general way that these injuries

were sufficient to cause death in the ordinary

course of nature. We have already held that there

was no external injury which resulted in the

fracture of the ribs. In such an event clause 3rdly of

Section 300 IPC is not attracted. Likewise clause

1stly of Section 300 IPC is also not attracted i.e.

intentionally causing death. If their intention was to

23

cause death, they would have used the lethal

weapons in a different way and would not have

merely inflicted simple injuries on the non-vital

parts like legs and hands.

6. In the result we set aside the convictions of these

eight appellants under Section 302 read with

Section 149 IPC and the sentence for imprisonment

for life. Instead we convict them under Section 304

Part II read with Section 149 IPC and sentence each

of them to undergo rigorous imprisonment for five

years. The sentences and convictions imposed on

other counts are confirmed. The four other accused

who were convicted by the trial court as well as by

the High Court are not before us. However, we are

of the view that they must also get the same benefit.

They are Ram Chander (A-2), Dal Singhar (A-7),

Barai (A-8) and Birju (A-11). Accordingly their

convictions under Section 302 read with Section

149 IPC for imprisonment for life are set aside and

instead they are also convicted under Section 304

Part II read with Section 149 IPC and are sentenced

to undergo rigorous imprisonment for five years.

The other convictions and sentences imposed on

other counts are, however, confirmed.

34. Reliance was also placed upon the judgment of this

Court in the case of State of Rajasthan v. Kalu [(1998) SCC

(Cri.) 898], where in the post mortem examination of the

deceased, the cause of death was noticed as "acute peritonitis"

as a result of abdominal injuries. However, during the cross-

examination, Dr. Prem Narayna admitted that "peritonitis"

could have set in due to surgical complications also. The

Court took the view that the medical evidence, therefore, when

analysed in its correct perspective shows that the evidence

24

recorded by the High Court is correct to the effect that

prosecution had not proved that the injuries were sufficient in

the ordinary course of nature to cause death of the lady and

had acquitted the respondent. The Supreme Court declined

to interfere with the finding recorded by the High Court.

35. In the present case also, there is no documentary

or oral evidence to prove the fact that the injuries caused by

the respondent to the deceased were sufficient in the ordinary

course of nature to cause death. This, however, cannot be

stated as an absolute proposition of law and the question

whether the particular injury was sufficient in the ordinary

course of nature to cause death or not is a question of fact

which will have to be determined in light of the facts,

circumstances and evidence produced in a given case. (Ref.

Halsbury's Laws of India 5(2) Criminal Law-II).

There could be cases where injuries caused upon the body of

the deceased per se can irresistibly lead to the conclusion that

the injuries were sufficient to cause death in the ordinary

course of nature, while there may be other cases where it is

required to be proved by documentary and oral evidence.

Resultantly, it will always depend on the facts of each case.

Thus, in such cases, it may neither be permissible nor possible

25

to state any absolute principle of law universally applicable to

all such cases.

36. In view of our discussion above, we find no error in

the judgment under appeal. Thus, we have no hesitation in

dismissing the appeal and the same is hereby dismissed.

...................................J.

[Swatanter Kumar]

....................................J.

[Ranjana Prakash Desai]

New Delhi

December 1, 2011