Holding

The appellant’s act amounted to murder under Section 302 IPC and his conviction was upheld; no common intention was established against the other accused.

Summary

The appellant, armed with a knife, inflicted three blows on the victim who had been restrained by two co‑accused after a dispute over a Rs 5 loan. The victim died from injuries to the chest and back. The trial court convicted the appellant under Section 302 of the Indian Penal Code for murder and acquitted the other three accused, holding that common intention under Section 34 was not proved. On appeal, the High Court upheld the conviction, and the appellant challenged the judgment before the Supreme Court. The Supreme Court examined the medical and eyewitness evidence, rejected the contention that the injuries could be attributed to multiple weapons, and found the death to be homicidal caused by the appellant’s intentional blows. It held that the facts satisfied the elements of murder, not merely culpable homicide under Section 304 Part II, and affirmed the conviction while confirming that no common intention could be inferred against the other accused.

Issues considered

Whether the death constitutes murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 Part II.
Whether the prosecution proved a common intention under Section 34 against the three co‑accused.
Whether the medical evidence contradicts the ocular testimony and its impact on the charge.
Whether the testimony of PW 7 was admissible despite not being recorded under Section 161 CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 161
Indian Penal Code, 1860s. 300, s. 302, s. 304, s. 34

Subjects

murderIPC 302culpable homicideSection 34common intentionmedical evidenceeyewitness testimonyconviction upheld

Judgment

A LAB HA
v.
STATE OF UTTRANCHAL

APRIL 27, 2007

B [S.B. SINHA, AND MARKANDEY KATJU, JJ.)

t
Penal Code, 1860:

Sections 302-Murder-Two persons caught hold of victim, third one
C gave an exhortation and appellant inflicted 3 knife blows on him including
one on vital part-Death of victim-Held, Courts below rightly held that
death of victim was homicidal in nature and was caused by appellant-His
conviction and sentence u/s 302 maintained-Trial court was right in opining
that a case of common intention was not made against other accused-Their
D acquittal upheld.

Appellant and 3 others were prosecuted for an offence punishable under
Section 302/34 IPC. The prosecution case was that 'U' had advanced Rs.Si-
to 'M'. When 'U' asked 'M' to pay the said amount back, the latter started
abusing him. Meanwhile mother of appellant came there and gave an
E exhortation whereupon 'M' and 'R' caught hold of 'U' and the appellant
inflicted 3 knife blows on him. The victim after running a short distance fell
down. The incident was witnessed by PW4, PW-7 and PWl, the father of the
deceased, who were returning from market. The victim was taken to the
hospital, where he was declared dead. The trial court convicted the appellant
F under s.302 and acquitted the remaining three holding that the prosecution
could not be able to prove that they had a common intention to commit the
offence. The High Court having dismissed the appeal of the convicted accused,
he filed the present appeal.

Dismissing the appeal, the Court
G
HELD: 1.1. In view of the medical evidence and the testimony of the eye
witnesses, there is no reason to disagree with the findings of the courts below
that the death of the victim was homicidal in nature and the same was caused
by the appellant (Paras 6, 10 and 13) (829-F; 830-D, G)

H 826
LAB HA v. STATE OF UTIRANCHAL 827
1.2. The First Information Report was lodged almost immediately after A
the occurrence. P.W.4 is a relative of the P.W.1. They were coming back
together from the market Both of them saw the entire incident and supported
the prosecution case. Reliance was not placed upon the testimony of P.W.7 by
the trial judge as some statements made by him before the Court had not been
made before the Investigating Officer under Section 161 of the Code of
Criminal Procedure, 1973. The approach of the Court in this behalfalthough B
may not be entirely correct, but in the facts and circumstances of the case,
even on the testimony of other witnesses the prosecution has proved its case
against the appellant [Para 9 and 8) [830-A-C)

2.1. The submission that only a case under Section 304 (Part II) IPC C
has been made out, cannot be accepted. The appellant was carrying a big knife.
The intention to cause death and/or to cause an injury which is likely to cause
death is evident from the fact that the first blow was given by the appellant on
a vital part of the body namely 5 cm below the nipple. He inflicted three blows
in quick succession. He took undue advantage of bis position as the deceased
was being held by two other accused. Therefore, it cannot be said that there D
had been no debasement or appellant did not take undue advantage of the
situation and/or there was a total absence of cruelty. Further, there being no
provocation on the part of the deceased, it is not a case where only an offence
under Section 304 (Part II) of the Indian Penal Code is made out.
(Paras 14, 16, 17 and 20) (830-H; 831-D, E, G] E
2.2. The trial judge was right in opining that a case of common intention
has not been made out as against the other accused persons, as nobody probably
in their wildest dream could have though that a petty dispute relating to demand
ofRs.5 by the deceased, would lead to his death at the hands of the appellant
(Para 16) [831-C) F
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 638 of
2007. .

From the Final Judgment and Order dated 12.06.2006 of the High Court
, ofUttaranchal at Nainital in Criminal Appeal No. 1281 of2001 (Old No. 1442 G
of 1987.

Vinay Singh, J.P. Tripathi and V. N. Raghupathy for the Appellants.

Reepak Kans~! and Jatinder Kumar Bhatia for the Respondent.

The Judgment of the Court was delivered by H
828 SUPREME COURT REPORTS (2007] 5 S.C.R.

A S.B. SINHA, J. Leave granted. .. .
l. One Umra advanced a petty sum of Rs. 5 to Multana by way of loan.
On 31. I 0.1985 at about 9 p.m., he asked him to pay the said amount back to
him. What was his response thereto is not known. Multana, however, started
hurling abuses on him. Bechni, the mother the appellant came there and said
B "UMRA DO KAUDI KA LAD.KA HAI, ISKO MITII MAIN MILA DO. MAIN
ISKI EENT SE EENT BAJA DUNGA" Whereupon Multana and Ranjeet caught
hold of the deceased. Appellant was carrying a big knife with him. He inflicted
three blows on the deceased with the said knife. The deceased ran towards
his house pressing his abdomen by his hands. He could not run for a long
C distance. He fell down, P. W. l, Amar Singh, father of the deceased who had .
been coming back to his house alongwith P.W. 4, Jeet Singh from the market
witnessed the entire incident. It was also witnessed by P.W. 7, Birsa Singh.
The deceased was taken to the hospital immediately. He, however, was declared
dead. A First Information Report was lodged in regard to the said incident
by Amar Singh at 10.40 p.m. in the Dehradun Police Station.
D
2. On completion of the Investigation, all the four accused were
chargesheeted. Appellant was charged for commission of "murder" of the
deceased. He was convicted and sentenced to rigorous imprisonment. Other
three accused, however, were acquitted by the learned Trial Judge opining
that the prosecution has not been able to prove that they had a common
E intention to cause the said offence. An appeal preferred by the appellant
against the said judgment of conviction and sentence was dismissed by the
High Court by reason of the impugned judgment. Appellant is, thus, before
us.

3. Mr. Vinay Singh, learned counsel appearing on behalf of the appellant
F would, in support of this appeal, submit that the prosecution case should not
be accepted inasmuch as;

(I) The medical evidence is contrary to the ocular evidence, as not
only no injury was found ori the abdomen of the deceased, two other
injuries were found on his back.
G
(II) According to doctor more than one weapon might have been
used.

(III) P.W. 7, Bisra Singh having not been relied upon by the Trial
Judge, P. W. 4, Jeet Singh having seen only Bisra Singh and nobody
H else, his testimony should not have been relied upon.
LABHA v. STATE OF UTTRANCHAL [S.B. SINHA, J.] 829
(IV) In any event, having regard to the facts and circumstances of the A
case, a case of commission of offence under Section 302 of the Indian
Penal Code has not been made out but one under Ilnd Part of Section
304, as the offence was committed (i) without any pre-meditation, (ii)
without any undue cruelty, (iii) At the spur of the moment on sudden
provocation, and (iv) there was no debasement on the part of the B
appellant.

4. The deceased suffered three injuries at the hands of the appellant
which are as under:-

1. Punctured wound with clean cut margins 4cm x I Y, cm x heart
cavity deep, cutting the 6th rib pleura and apex of peri cardium C
and heart. I 00 ml of blood in pericardia) cavity; on the left side
of front of chest 6 cm below the left nipple, I Y, cm away from
nipple line.

2. Incised wound 2 Y, cm X I cm X I cm deep as the outer part of D
back 5 ems below the posterior axillary fold.

+ 3. Punctured wound with clean cut margins 5 cm X 2cm X 7cm deep
on the back of chest directed upwards and anteriorly cutting the
muscles of back, intercoastal muscles, pleura and piercing 2cm in
the left upper lobe of lung in its lower part. A litre of fluid blood E
found in the thoracic cavity."

5. P.W. 2, Dr. Ajay Krishna, who had conducted the post-mortem
examination, opined that the injuries Nos. I and 2 were sufficient in ordinary
course to cause death. So far as injury No. 3 is concerned, according to him,
the same was directed from down to upward. F
6. The doctor did not categorically state that in causing the injuries
aforementioned, two different instruments have been used as according to
him;

" .. .Injuries Nos. (ii) and (iii) could be caused by the one and same G
. instrument as also from different instruments ... "

7. He, however, stated that the length and breadth of the injury would
depend upon the force at which the weapon was used and if the blow of the
instrument is light, it would not go deeper and in that case breadth shall be
comparatively more. H
830 SUPREME COURT REPORTS [2007) 5 S.C.R.

A 8. The First Infonnation Report was lodged almost immediately after the
occurrence. P. W. 1 in his deposition supported the prosecution case in its
entirely. P.W.4 is a relative of the P.W. I. They were coming back together from
the market. Both of them saw the entire incident. Both of them stated that
whereas Ranjeet and Multana caught hold the deceased, Appellant took out
B a knife and inflicted blows on the deceased. The accused, however, ran away
when P.W. 1 started shouting.

9. Reliance was not placed upon the testimony of P.W. 7 by the learned
Trial Judge as some statements made by him before the Court had not been
made before the Investigating Officer under Section 161 of the Code of
C Criminal Procedure. The approach of the Court in his behalf although may not
be entirely correct, but in the facts and circumstances of this case, we are of
the opinion that even on the testimony of other witnesses the prosecutrix may
be held to have proved its case.

10. The statement of P. W. 4 that he saw Birsa Singh alone must be taken
D into consideration with his other statements namely;

11. He and P.W. I were coming back from the market together:'When
he stated about the presence of Birsa Singh alone, he must have meant that
the latter was he only outsider who was present at the scene of occurrence
and noticed the entire incident.
E
12. Submission of the learned counsel in regard to the fact that there
was only one injury in the front and two injuries on the back do not militate
against the prosecution story. Suffice it to say that one injury was 5 cm below
the nipple and if the same had been described as the injury in he abdomen
by P.W. 1 and P.W. 4 no serious exception thereto can be taken. Neither P.W.
F 1 nor P.W. 4 stated that the appellant caused all the three injuries on the front
portion of the person of the deceased.

13. What was stated was that the injuries were inflicted in quick
succession (the expression used in the vernacular was "Palak Jhapakte"). It
G must hav~ taken him by surprise. We, therefore do not find any reason to
disagree with the findings of the courts below that the death of Umra was
homicidal in nature and the same was caused by the appellant.

14. Coming to the submission of the learned counsel that only a case
under Section 304 part II of the Indian Penal Code has been made out, we
H see no reason to accept the same. 'Fourthly' appended to Section 300 of the
LABHA v. STATE OF UTTRANCHAL [S.B. SINHA, J.] 831
Indian Penal Code provides that the culpable homicide would not be murder A
if it was committed without pre-meditation in a sudden fight, in a heat of
passion being sudden quarrel and the accused had not acted in a cruel and
unusual manner.

15. The first ingredient of the said provision namely absence of pre-
meditation exists in the instant case but it cannot be said that there was a B
sudden fight, in the sense that the deceased was armed or made any
provocative statement. As the prosecution story goes, it was the mother of
Multana who gave a..'1 exhortation. What was the occasion therefore, we do
not know.

16. The learned Trial Judge was right in opining that a case of common C
intention has not been made out as against the other accused persons, as
nobody probably in their wildest dream could h.ave thought that a petty
dispute relating to demand of Rs. 5 by Umra from the deceased, would lead
to his death at the hands of the appellant. Appellant, however, was carrying
a big knife. He inflicted three blows repeatedly in quick succession. He took D
undue advantage of his position as the deceased was being held by two other
accused.

17. The intention to cause death and/or to cause an injury which is
likely to cause death is evident from the fact that the first blow was given
on a vital part of the body namely 5 cm below the nipple. E
18. Two other blows might have landed on the side of the outer part
of the back below the posterior auxiliary fold and the back of chest as the
deceased on receipt of the first blow, must have moved to his right being in
pain.
F
19. The effect of the blows was such that he even could not go beyond
a few paces.

20. We, therefore, are of the opinion that it cannot be said that there
had been no debasement or appellant did not take undue advantage of the
situation and/or there was a total absence of cruelty. We are, further, of the G
' opinion that there being no provocation on the part of the deceased, it is not
a case where only an offence under Section 304 part II of the Indian Penal
Code is made out. In appeal, for the aforementioned person is dismissed.

R. P. Appeal dismissed. H