Holding

Wazir Singh is guilty of murder under Section 302 IPC, while Darbara Singh and Dalip Singh are guilty of culpable homicide not amounting to murder under Section 304 Part II IPC read with Section 34.

Summary

The incident occurred on 10 November 1979 when Wazir Singh, armed with a kulhari, and his accomplices Darbara Singh and Dalip Singh attacked Sadha Singh, inflicting a fatal incised wound and multiple blunt injuries. The trial court convicted all three under Section 302/34 IPC and sentenced them to life imprisonment, while two other accused were acquitted. On appeal, the Supreme Court examined whether the three appellants shared the common intention to cause death, given that only Wazir Singh inflicted the vital injury, and whether the others could be held liable for culpable homicide not amounting to murder under Section 304 Part II IPC. Relying on consistent medical evidence linking each appellant to the injuries and attributing knowledge that the concerted assault could cause death, the Court held Wazir Singh guilty of murder (Section 302 IPC) and the other two guilty of culpable homicide not amounting to murder (Section 304 Part II IPC) read with Section 34. Accordingly, Wazir Singh's life sentence was upheld, and Darbara Singh and Dalip Singh were sentenced to seven years rigorous imprisonment each.

Issues considered

The extent to which common intention under Section 34 IPC can be imputed to co‑accused who did not inflict the vital injury but participated in the assault.
Whether the appellants can be convicted of murder under Section 302 IPC or of culpable homicide not amounting to murder under Section 304 Part II IPC.
The relevance of medical evidence and weapon recovery in attributing specific injuries to each accused.
The appropriate modification of conviction and sentence in view of the differentiated roles of the appellants.

Legislation cited

Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 304, s. 323, s. 34

Subjects

murderculpable homicide not amounting to murdercommon intentionSection 34 IPCSection 302 IPCSection 304 Part II IPCmedical evidenceweapon attributionsentencingmodification of conviction

Judgment

A DARBARA SINGH AND ANOTHER ETC.
v.
STATE OF HARYANA AND ORS.

APRIL 21, 1992

B [MADAN MOHAN PUNCHHI ANDS. C. AGRAWAL, JJ.)

Indian Penal Code, 1860:
-
Sections 34,148,149,302,304 and 323:

C Murder-Common intention-Inflicting injuries with knowledge that the
injuries may cause the death of victim-&cept one, other accused did not
have such knowledge-Effect of-Modification of sentence in respect of those
accused-Accused who had knowledge and who inflicted vital injury-Ab-
sence of common intention in causing such injury-Sentenc~Altered. --(,
D The appellants and two others were charged .with and tried for
ofTen~es under Sections 148, 302, 149 and 323/149 IPC for causing the
murder of one S and causing simple hurts to one R, both related to the
accu.sed. The Trial Judge acquitted one of the five accused since no part
of the actual occurrence except exhortations were attributed to him and
E convicted the o~er four accused under section 302/34 and 323/34 IPC, and
sentenced them to life imprisonment and 6 months rigorous imprisonment
respectively.

On appeal, the High Court acquitted one more accused on the
ground that the medical evidence did not corroborate the claim that he
F used his kirpan with force as alleged by the prosecution. The appeal
preferred by the complainant against this acquittal, was dismissed by this
Court.

The other three accused whose conviction and sentenc~ were con·
G firmed by the High Court, have preferred the present appeals.
It was contended on behalf of the appellants that the prosecution
case has been discredited by the Courts rendering the same unacceptable
resulting in the acquittal of two accused and for the same reasons, they
also deserved a·cquittal. It was also contended that the evidence.regarding
H recovery of weapons did not inspire confidenct.
586 r-
I -
DARBARA SINGH v. STAIB 587

Disposing of the appeals, this court, A
HELD: 1. There may be a tendency here and there to implicate a
person in addition to·actual assailants in a crime but substitution is rare
and that cannot be the case here. As is evident the parties are closely related.
The crime was committed in broad day light. The witness is a stamped
witness. There was no reason for the prosecution to falsely evolve a case B
against the appellants. The medical evidence is consistent and corrobora-
tive in connecting all the three appellants. On the eye-witness account and
th~ corroboration it receives from medical evidence, their guilt is estab-
lished even if the evidence of recovery of weapon is kept aside. (592 C-G]

- 2. Out of 13 injuries on the dead body six were incised wounds and
the remaining were blunt weapon injuries. Amongst the incised wounds the
c
first one was by itself sufficient in the ordinary course of nature to cause
death of the deceased. That injury was positively attributed to the appel-
lant in the second case who opened the attack but the remaining five
incised wounds were not positively attributed to him alone. It can safely D
be assumed that some may have fallen to his share to be inflicted and
others to the co-accused who has since been acquitted. Even though the
Doctor has stated that all the incised wounds could have been caused by
-/
Kulhar P.I, that by itself cannot go to conclude that all the incised wounds
were caused by the appellant in the second case. Since he inflicted the first E
incised wound on the head of the deceased, which was sufficient by itself
i°n the ordinary course to cause death, he has rendered himself liable to be
adjudged guilty under section 302 IPC. [592·-H; 593 A-C]

3. Since extensive damage had been done to the limbs of the deceased
after the infliction of vital injury No.I, it can safely be inferred that despite F
the assailants' chosing non-vital parts of the body for inflicting those
injuries, they must be attributed the knowledge that by their concerted act
they were likely to cause death of the deceased, for which act they could be
punished under section 304 Part-II of the Indian Penal Code. The act was
done while the deceased was alive. The outcome of injury No.I may or may G
not have been perceived by the assailants except the appellant in the
second case, but they were satisfied in chosing and inflicting injuries on
non-vital parts which. injuries were caused by breaking the bones of his
arms and legs. (593 F-H]

4. Due to his young age, being in teens, the appellant in the first case H
588 SUPREME COURT REPORTS (1992) 2 S.C.R.

A may have acted under the inOuence of his paternal uncl.e, viz., the appellant
in the second case. Though he .shared the common intention of causing
extensive injuries to the deceased and injuries to P.W.4 he may not have
. shared the common intention of causing death. but can definitely be
attributed the knowledge that by his concerted act the victim could die.
Similarly the share cropper had acted under the inOuence of his employers
B but cannot be said to be a co-participant in intentionally causing the death
of the death of the deceased. He too must be attributed the knowledge that
by his act in concert with others he was likely to cause the death of the
deceased. Also, no injury on any vital part of the body of the deceased was
attributed to either of these accused. Accordingly, these appellants are held
C guilty of offence under section 304 part II IPC, read with section 34 IPC,
and not under section 302 IPC. (594 A-DJ

5. The conviction of the appellant in second case is altered to a plain
one under section 302 IPC and his life sentence is maintained. His convic-
tion and sentence under section 323/34 is also sustained. The conviction of
D the other appellants are altered to one under section 304 Part II IPC read
with section 34 IPC for which a sentence of seven years rigorous imprison-
ment is imposed on each of them. (594 D, E]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No .. -
E 715 of 1981.
WITH

Criminal Appeal No. 716 Of 1981.

From the Judgment and Order dated 15.5.1981 of the Punjab and
F Haryana High Court in Criminal Appeal No. 419 (DB) of 1980.

U. R. Lalit, A. N. Mulla, S. K. Sabharwal and 0. K. Khullar for the
Appellants.

G l.S. Goyal for the Respondent. _

The Judgment of the Court was delivered by

PUNCHHI, J. These two appeals are directed against the judgment
and order of May 15, 1981 passed by a Division Bench of the Punjab and
H Haryana High Court in Criminal Appeal No.419·DB of 1981.
DARBARA SINGH v. STATE [PUNCHHI, J.] 589

The appellants are three in number. They are Wazir Singh, his A
nephew Darbara Singh and share-cropper (seeri) Dalip Singh. These three, ,
together'with Mohinder Singh the brother of Wazir Singh and father of
Darbara Singh, as also one Avtar Singh, Wazir Singh's father-in-law's '
brother, stood trial before the Sessions J.u~ge, Bhiwani for offences under
sections 148, 302/149 and 323/149 I.P;C. for having caused the murder of.' B
Sadha Singh, paternal cousin of Wazir Singh and Mohinder Singh accused,
as also to have caused simple hurts to Ranjit Singh, PW4 sister's son of the
deceased. The learned Sessions Judge acquitted Avtar Singh taking the
view that since the Investigating Officer could not recover the gun, the
weapon of offence, from him in spite of interrogation, his name had been
introduced by the prosecution in order to complete the alleged unlawful C
assembly, convenient and handy as it was because of relationship with ,
deceased. Avtar Singh was attributed no part in the actual occurrence
except exhortations. The remaining four accused were convicted under
sections 302/34 and 323/34 1.P.C.. and were sentenced to life imprisonment
and six. months rigorous imprisonment respectively. In appeal the High 'D
Court acquitted Mohinder Singh accused taking the view that though he
was stated to have used his kirpan with force, the medical evidence did not
corroborate this version because Dr. B.M. Kapur, PW-2, who performed
/ the autopsy of the deceased, opined that the injuries which apparently were
kirpan injuries could only be caused l:iy the tip of the kirpan suggesting that
much force had not been used. The High Court then went on to agree with · E
!
the opinion of Dr. Kapur to say that all the incised wounds on the deceased
-+ could have been caused by Kulhari Ex.Pl. This kulhari was suggested to
have been used by Wazir Singh appellant towards commission of the crime.
On that premise the High Court let off Mohinder Singh recording the
opinion that his participation was doubtful. For lack of corroboration of p 1

medical evidence the High Court also observed that it was quite probable
that like Avtar Singh, acquitted co-accused, Mohinder Singh accused too
had been brought in as an accused. As a result the three appellants
remained convicted and sentenced. So they are here before us.

G
Criminal Appeal No.714 of 1981 was preferred by Ranjit Singh
complainant against acquitted co-accused Mohinder Singh but this appeal
was dismissed by us on 8-4-1992 for non-prosecution because learned
-{ counsel for that appellant stated that he had no instructions. So Mohinder
Singh remained acquitted. H
590 SUPREME COURT REPORTS [1992] 2 S.C.R.

A The occurrence took place on November 10, 1979 at 12.30 P.M. in
the open fields of Village Kikral. Deceased Sadha Singh was present in his
fields taking out grass while deceased's nephew Ranjit Singh P.W.4 was
present ploughing the deceased's field. Close by in their own fields were
Jagir Singh P.W.5 and Malkiat Singh P.W.6. At that juncture Mohinder
B Singh acquitted co-accused armed with a sword, Wazir Singh armed with
a kulhari, Darbara Singh and Dalip Singh, ·armed with lathis each and
Avtar Singh acquitted co-accused armed with a gun came together towards
the deceased and opened assault on him. Wazir Singh appellant started
and gave a kulhari blow on the head of the deceased whereas Mohinder
Singh acquitted co-accused gave injuries by kirpan. Dalip Singh and Dar-
C hara Singh appellants inflicted l~thi blows, Avtar Singh acquitted co-ac-
cused raised exhortations. When Ranjit Singh P.W. interfered he was given
lathi blows by Dalip Singh and Darbara Singh, appellants. J~gir Singh and
Malkiat Singh P.Ws. who sa:w the occurrence came running to the place
and found Sadha Singh lying injured seriously. Sadha Singh and Ranjit
D Singh victims were brought by Jagir Singh and Malkiat Singh P.Ws. in
injured condition to Rural Dispensary, Siwani which is at a distance ~f 5
kilometers from the place of occurrence. Dr. Ram Kishan P.W.3 Incharge
of the Dispensary, after examining and giving first aid to Sadha Singh
advised him to be taken to Civil Hospital, Bhiwani as his condition was
serinus. Ranjit Singh P.W. however was admitted in the Rural Dispensary
E Siwani, Siwani police was informed about the arrival of both the them.
Sadha Singh was taken ~o Civil Hospital, Bhiwani, where he was found
dead. Dr. Gambhir P.W.1 sent message to the police station informing the -+
Bhiwani police about the arrival of the dead body. Sub Inspector Sadhu
Singh P.W.12 on the basis of message of Dr. Ram Kishan P.W.3 went to
F Rural Dispensary, Siwani where he recorded the statement of Ranjit Singh
P.W.4 at 4.15 p.m. First Information Report ori the basis of the said
statetnent was recorded at the Police Station at 5.30 p.m. The special report
reached the Magistrate at Bhiwani on 11-11-1979.

Now about the motive. The grand-father of Sadha Singh deceased
G had four sons, Chanan Singh, Bishan Singh, Kishan Singh and Makhan
Singh. The eye-witnesses Malkiat Singh and Jagir Singh are the sons of
Chanan Singh. Sadha Singh deceased was the son of Bishan Singh.
Mohinder Singh acquitted co-accused and Wazir Singh appellant are sons
of Kishan Singh. Makhan Singh the fourth son was married to Harnam
H Kaur but had no m.ade issue. It appears that Makhan Singh on September
DARBARA SINGH v. STATE [PUNCHHI, J.] 591

--( 20, 1975 executed an agreement to sell his lands in some proportions to A
the three families of his brothers, but Mohinder Singh acquitted co-accused
wanted to purchase all the land of Makhan Singh. The agreement ultimate-
ly did not materialise .. Thereafter there is history of acrimony and illwill
between the parties itching to obtain the land of Makhan Singh. Besides
Wazir Singh appellant got lodged FIR against Sadha Singh deceased in
May, 1977 accusing him of an attack and of having stolen away his motor
B
y
cycle. Such were the strained relations which provided the motive of the
crime.

The post mortem of Sadha Singh deceased performed by Dr. B.M.
Kapur P.W.2 revealed 13 injuries on his body. The first one was an incised c
wound 2" x 11.z" over the left side of the forehead, on dissection of which it
was found to be a fracture of the frontal bone. There was also extra dural
~ haemotoma and fracture of the skull on the left side. The other injuries
were either incised wounds or blunt weapon injuries. They were on non-
J
vital parts of the body. There were, however, compound and diverse
fractures of both'.bones of both the legs as well as that of both the arms.
D
The cause of death then opined by Dr. Kapur was, due to shock and
haemorrhage on account of multiple injuries, which was sufficient to cause
death in the ordinary course of nature. At the trial however Dr. Kapur went
on to add that injury No.1 could individually be sufficient in the ordinary
course of nature to cause death. He also opined that injuries other than E
~ injury No.1 collectively were sufficient to cause death in the ordinary
course of nature even if one were to exclude injury No.1. Dr. Kapur further
opined that all the incised wounds could be caused by kulhari P.1. Dr. Ram

-- Kishan P.W.3 on examination found Ranjit Singh having five injuries on his
pers0n which were simple in nature and were caused by a blunt weapon.
Four of them were contusions which were sizeable and one was an
F

--<'
- ..(
abrasion.

During the investigations the weapons of the offence were recovered
by the Investigating Officer at the instance of recovery statements made by
the accused persons respectively. G

The entire bundle of evidence was produced before the Court of
Sessions which led to the result above indicated. Learned counsel for the
--{ appellants individually as. well as collectively at the first instance pressed
into service reasons for the acquittal of Avtar Singh and Mohinder Singh H
592 SUPREME COURT REPORTS (1992] 2 S.C.R.

A co-accused to contend that the prosecution case has been discredited by
the courts below rendering it unacceptable. Highlighting this aspect it was r
contended that the complainant party apparently had spread their net wide
and had dragged in Avtar Singh acquitted co-accused just in order to lay
charge of unlawful assembly and Mohinder Singh co-accused to share the
incised injuries, when those injuries could have been caused by one weapon
B like kulhari Ex.Pl. On that basis it was .asserted that P.W.s having told lies.
y·
the entire prosecution case deserved throwing out. Beside it was urged that
the evidence regarding recovery of weapons did not inspire confidence.
These argume.nts even though attractive do not appeal to us. There may be
a tendency here and there to implicate a person in addition to actual
c assailants in a crime but substitution is rare and that cannot be the case
here. As is evident the parties are closely related. The crime was committed
in broad day light. Ranjit Singh is a stamped witness. There was no reason
.__.r
for the prosecution to falsely evolve a case against the appellants. Now here
there are two types of injuries on the deceased being inci~ed wounds and
D blunt weapon injuries totalling 13 in number. This is suggestive of at least
two assailants respectively armed with suitable weapons, to be responsible
for these injuries. Buf when these seven blunt weapon injuries of the
deceased are added to five blunt weapon injuries of Ranjit Singh P.W. and
the extensive damage caused seen, it becomes evident that there were more
than one assailant inflicting blunt weapon injuries. Thus there were three
E assailants as is evident from the result. Besides shortly before the occur-
rence Ranjit Singh P.W. was ploughing the field and it is expected of a
ploughman to be carrying a stick. The very fact that he did not claim to
---+-
have used any goes to confirm that he was a victim of two assailants who

F
could use their blunt weapons against him as well as against the deceased.
The medical evidence is thus consistent and corroborative in connecting
all the three appellants, that is, in Wazir Singh having used his kulhari and
-
Dalip Singh and Darbata Singh having used their lathis in the commission
of the crime. On the eye-witness account and the corroboration it receives ---
from medical evidence, their guilt is established even if the evidence of )-/
recovery of weapons is kept aside. We have thus no reason to question the
G ultimate result arrived at by the Higli Court though we have olir doubts
about the reasoning employed by it to acquit Mohinder Sin~ co-accused. I

The next point urged was with regard to trature of the offence
committed by the appellants. We notice that out of 13 injuries on the dead '
H body of Sadha Singh, six were incised wounds and the remaining were blunt
t-
DARBARA SINGH v. STATE [PUNCHHI, J.) 593

weapon injuries. Amongst the incised wounds the first one above-described :A
was by itself sufficient in the ordinary course of nature to cause death of
the deceased. That injury was positively attributed to Wazir Singh appellant
who opened the attack but the remaining five incised wounds were not
positively attributed to Wazir Singh appellant alone. It can safely be
assumed that some may have fallen in his share to be inflicted and others
to Mohinder Singh co-accused who has since been acquitted. Even though
B
Dr. B.M. Kapur has stated that all the incised wounds could have been
caused by kulhar P.1 but that by itself cannot go on to conclude that all
the incised wounds were caused by Wazir Singh appellant. Distinguishing
the role assigned to Wazir Singh in this manner, we take the view that on
the infliction of the first incised wound on the head of the deceased, which c
was· sufficient by itself in the ordinary course of nature to cause death, and
death did ensue, Wazir Singh appellant bas rendered himself liable to be
adjudged guilty under section 302 LP .C.

Dr. B.M. Kapur has further opined that leaving aside injury No.1, b
injuries nos.2 to 13 were collectively sufficient to cause death in the
ordinary course of nature. In this collection we have five mcised wounds
and seven blunt weapon injuries. The blunt weapon injuries are fractures
of bones of both the arms and legs. Even though some of -those blunt
weapon injuries are extensive and grievious in nature because of the
fracture of bones of the left fore-arm, right fore-arm, elbow, left leg and E
.rig~t l~g, these by themselves cannot in the facts and circumstances of this
case, be said to have been inflicted by the assailants other than Wazir Singh1

appellant with the intention of causing death, or in ratification of the act '
of Wazir Singh appellant. But since extensive damage had been done to
the limbs of Sadha Singh, after the infliction of vital injury No.1, it can F
safely by inferred that despite the assailant's-chosing non-vital parts of the
body for inflicting those injuries, they must be attributed the knowlege that
by their concerted act they were likely to cause death of the decease, for
which act they could be punishable under Section 304 Part-II of the Indian
Penal Code. The act was done while sadha Singh was alive. The outcome
of injury No.1 may or may not have been perceived by assailants other than G
Wazir Singh but they were satisfied in. cbosing and inflicting injuries on
non-vital parts of the body of Sadha Singh, which injuries were breaking
bones of bis arms and legs.

We have leaned towards this view also for the reason that Darbara H
594 SUPREME COURT REPORTS (1992) 2 S.C.R.

A Singh, due to his young age being in teens, may have acted under the
influence of his paternal uncle Wazir Singh, appellant and though he
shared the common intention of causing extensive injuries to deceased
Sadha Singh and injuries to Ranjit Singh P.W. he may not have shared the
common intention of causing the former's death but can definitely be
attributed the knowledge that by his concerted act Sadha Singh could die.
B Similarly Dalip Singh, a share cropper of his employer, Wazir Singh and
Mohinder Singh, perhaps had acted under the influence of his employers
y
but cannot in these facts be said to be a co-participant in intentionally
causing the death of Sadha Singh. He too must be attributed. the !::nowledge
that by his act in concert with others he was likely to cause the death of
c the deceased. It is worth reminding that neither of the two accused Dar-
bara Singh and Dalip Singh are attributed any injury on any vital part of
the body of the deceased. Thus on the above analysis Darbara Singh and
Dalip Singh, appellants are held guilty for offence under section 304 Part
II IPC, read with Section 34 IPC.

D Resultantly we alter the conviction of Wazir Singh appellant to a
plain one under section 302 IPC and maintain his life sentence. His
conviction and sentence· under Section 323/34 is also sustained. The con-
victions of Darbara Singh and Dalip Singh appellants are altered to one
under Section 304 Part II IPC read with Section 34 IPC for which sentence
E of seven years rigorous imprisonment is imposed on each of them. The
appeals stand disposed of accordingly.

G.N. Appeals disposed of.