Holding

The conviction under Section 302 read with Section 34 IPC stands; the alteration to Section 307 IPC is set aside.

Summary

The deceased, Jyoti, was found dead with her hands and face tied and twelve ante‑mortem injuries on her body. The trial court convicted the accused under Section 302 read with Section 34 of the Indian Penal Code (IPC) for murder. On appeal, the Rajasthan High Court altered the conviction to Section 307 IPC (attempt to murder), relying on a claim that there was no injury on the deceased and that "mechanical" injury was absent. The Supreme Court held that the High Court’s reasoning displayed a classic non‑application of mind, as medical and post‑mortem evidence clearly established the presence of injuries. Consequently, the Supreme Court restored the trial court’s murder conviction and set aside the High Court’s alteration to Section 307.

Issues considered

What is the appropriate conviction under the IPC – murder (s.302 r/w s.34) or attempt to murder (s.307) – given the evidence of injuries on the deceased?

Legislation cited

Indian Penal Code, 1860s. 302, s. 307, s. 34, s. 397, s. 458, s. 460

Subjects

murderattempt to murderIPCconviction alterationnon‑application of mindforensic evidence

Judgment

[2008] 10 S.C.R. 649
)

STATE OF RAJASTHAN A
v.
GULAB SINGH AND ORS.
' (Criminal Appeal No. 1049 of 2008)
JULY 10, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ ..]

Penal Code, 1860 - ss. 302 rlw 34, 307:
Murder..,. Conviction by Trial Court under s. 302 rlw 34 -
High Court altered. conviction to s.307 observing that there C
wa$ no injury on body of the deceased and 'mec~anica/' injµry
was absent - On appeal, held: There was clear non-applica-
tion of mind by High Court - It is not understandable as to
what the High Court meant by tfie expression 'mechanical
injury', particularly when evidence of the doctor and the post- D
mortem report showed that there were 12 injuries on body of
the deceased and each one of them wc,s described to be ante-
mortem - Judgment of Trial Court restored.
The prosecution case was that the. deceased was
found lying dead with her hands and mouth/face tied with E
cloth. Trial Court convicted the accused-Respondents
under s.302 r/w s.34 IPC. On appeal, High Court altered
the conviction to s.307 IPC primarily on the ground that
... there was no injury on the person of the deceased, as
' allegedly accepted by the Public Prosecutor. Hence the F
present appeal.
Allowing the appeal, the Court
HELD: 1. On a bare reading of the High Court'~ or-
der, it is clear that it is a classic case of non-application of G
mind. [Para 7) [653-D]
2. From the evidence of the doctor and the post-
mortem report, it is clear that -there were 12 injuries no-
649 H
650 SUPREME COURT REPORTS [2008] 10 S.C.R.

A ticed on the body of the deceased and each one of them
was described to be ante-mortem. It is not clear as to how
the High Court observed that there was no injury on the
body of the deceased. Still more surprising is the obser-
vation of High Court that "mechanical" injury being ab-
B sent, it would be unjust, if the arg'ument of the accused is 'f..- "-
not given some weightage. It. is not understood as to what
the High Court meant by the expression 'mechanical in-
jury'. It is unfortunate that a Division Bench of the High
Court came to such atrocious and fallacious conclusion.
c The judgment of the trial Court is restored and the High
· Court's order so far it relates to alteration of conviction
from s.302 read with s.34 to s.307 IPC is set aside. [Para
8] [653-F, G & H; .654-A & B]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
D No. 1049 of 2008
From the Judgment and final Order dated 15.7.2005 of
the High Court of Judicature for Rajasthan at Jodhpur in D.B.
Crl. Appeal No. 198/2002
E V. Madhukar, Rajesh Kumar and Aruneshwar Gupta for
the Appellant. ·

The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Leave granted.
F 2. Challenge in this appeal is to the order passed by a
Division Bench of the Rajasthan High Court, Jodhpur, altering
the conviction of the respondent for offence punishable under
Section 302 read with Section 34 of the Indian Penal Code,
1860 (in short the 'IPC') to Section 307 IPC. However, the con-
G viction under Sections 458 and 460 IPC were maintained. The
substantive sentences in respect of the offences were reduced
to the period already undergone.
3. The trial Court i.e. learned Sessions Judge (Fast Track),
H Rajsamand had convicted respondents 1 to 4 for offences pun-
STATE OF RAJASTHAN v. GULAB SINGH 651
& ORS. [DR. ARIJIT PASAYAT, J.]
)

ishable under Section 302 read with Section 34 and Sections A
460, 458 and 397 of IPC and various other sentences in re-
spect of the other offences.
4. Prosecution version in a nutshell is as follows:
~
Sessions case in question arose from the first information B
report (exhibit P-5) which was presented by the complainant
Shri Prakash Chand (PW-4) before the police incharge of
Arakshi Kendra, Rajsamand on 11.7.1999. It was stated therein
that on 11.7.1999 in the morning at around 6.30 a commotion
was taking place outside the house of Dali Chand father of Naval c
Ram. The complainant went to the house of Dali Chand and
saw that Smt. Jyoti wife of Dali Chand was lying dead there,
whereas her hands and mouth/face were tied with cloth. Inside
the room the hands and legs of Dali Chand were also found
tied. Thereafter, Roop Singh untied his hands and legs. Goods
~ D
were lying scattered inside the room. The children of Da~i Chand
live in Bombay and Dali Chand was having a shop of controlled
commodities. This incident was stated to have been commit-
ted by some unknown persons.
After the presentation of the aforesaid complaint, case E
No.479/99 for offences punishable under Sections 460/458 IPC
was registered and investigation commenced.
""' In the course of the investigation the investigating officer
recorded the statement of the complainant Prakash Chand. The
).
injured Dali Chand was admitted in the hospital at Rajsamand F
and Udaipur for treatment. His injury report exh.P-4 was re-
. ceived. His x-ray was also conducted. After inspection of the
place of the incident, spot memo exh.P-14 was prepared. The
panchayatnama memo of the dead body of the deceased
Jyotibai Exh.P-1 was prepared. The clothes which had been G
..., used to tie the hands and the mouth of the deceased were hav-
ing blood on them and, therefore, they were seized as evidence
vide exh. P-7. After conducting the post mortem of the dead
body of the deceased the report Exh.P-3 was taken on record.
Her dead body was handed over to her heirs for cremation vide H
652 SUPREME COURT REPORTS [2008] 10 S.C.R.

..
A. Exh.P-2. From the place of the incident bloodstained stones
and control sample stoneswere seized in res11ectwhereof exh.P-
.."'!'<(.
8 was prepared. Statements of the witnesses were recorded. A
list of stolen articles was prepared. Chance prints were taken
from the place ·of the incident. Accused Guiab Singh, Uday ,,...

B Singh, Nathu Singh and Laxman Singh were arrested. Gold and -.,,._
'
silver articles along with cash of Rs.24,400/- were. recovered at
their instance. Thereafter, jewellery was recovered at the in-
stance of accused Dhooi Singh and Shambu Singh. In this re-
gard exhs. P-10 to Exh.P-13 were prepared. The place of the
c incident was pointed out by the accused i!l·respectwhereofexhs.
P.,49.to 52 was prepHred. The accused were identified by.the (
witness-Dali Chand and thereafter the seized case property in 1
the case were also identified in respect whereof exh. P-67 to
72 were prepared. Bloodstained clothes· and stones were sent
for FSL examination to Forensic Sciences Laboratory Udaipur.
D
The place of the .incident was photographed. After necessary ~
.investigation sufficient evidence was found against accused
Guiab Singh, Uday Singh, Nathu Singh. for offenees punishable
under Sections 460, 458, 302 IPC and against accused Dhool
Singh, Moti,.Singh, Shambu Singh for offences under Sections
E 414, 411, 1208 IPC. The station in charge, Rai Nagar filed a
charge sheet against the above named. accused persons be-
fore the Court of learned Chief Judicial Magistrate, Rajsamand.
Case. was committed to the Court of Sessions.

F In order to substantiate the accusations the prosecution
examined· 1s witnesses. The doctor who examined. the de- ...
ceased found 12 injuries on the body of the deceased. Placing ,..
reliance on the prosecution version :in the light of the evidence
led the learned trial Judge recorded the conviction and imposed
sentence as afore-stated.
G
. It is to be noted that one Shambhu Singh was· sentenced
to one year's rigorous imprisonment and fine of Rs.1,000/- for .,..
the offence punishable under Section 411 IPC was imposed. In
the app~al before the High Court he was not a party. The High
H Court .altered the conviction primarily on the ground t~at there
STATE OF RAJASTHAN v. GULAB SINGH 653
& ORS. [DR. ARIJIT PASAYAT, J.]
• was no injury on the person of the deceased, as allegedly ac- A
cepted by learned Public Prosecutor.
5. Learned counsel for the appellant-State submitted that
the reasoning of the High Court is utterly fallacious as there was
no question of the learned Prosec.utor feebly agreeing that there
, ~ was no injury on the person of the deceased. In fact, the evi- B
dence of doctor to which reference has been made by the trial
Court is clear to the extent that there were 12 injuries on the
body of the deceased. In the post-mortem report also 12 inju-
ries were indicated. lt is, therefore, submitted that the High Court
was clearly in error in altering the conviction from Section 302 c
read with Section 34 IPC to Section 307 IPC.
6. There is no appearance on behalf of the respondents in
spite of service of notice.
7. On a bare reading of the High Court's order it is clear D
that it is a classic case of non-application of mind. The only
conclusion indicated by the High Court to alter the conviction
reads as follows:
"Learned PP feebly agrees that there was no injury on the
person of the deceased. Mechanical injury being absent E
it would be unjust if the arguments of the learned counsel
for the appellants is not given some weightage. In this
background offence under Section 307 IPC would be
clearly made out because in that process there was an
attempt by virtue of which one of the victims have died." F
~

8. As rightly submitted by learned counsel for the State
that from the evidence of the doctor to which reference has been
made by the trial Court and the post-mortem report, it is .clear
that there were 12 injuries noticed on the body of the deceased
G
and each one of them was described to be ante-mortem. It is
not clear as to how the High Court observed that there was nt>
...
injury on the body of the deceased. Still more surprising is the
observation that "mechanical" injury being absent it would be
unjust, if the argument of the learned counsel for the accused is
H
654 SUPREME COURT REPORTS [2008] 10 S.C.R.

A not given some weightage. It is not understood as to what the
High Court· meant by the expression 'mechanical injury'. It is
unfortunate that a Division Bench of the High Court has come to
such atrocious andJallacious conclusions. The appeal deserves
.to be allowed which we di rec~. The judgment of the trial Court is
13 restored and, therefore·, the High Court's order- so, far it relates
to alteration of conviction from Section 302 read with Section
34 to Section 307 IPC stands set aside. The respondent shall
surrender to custody forthwith to serve the remainder of sen-
tence.

C 9. The appeal is allowed.

B.B.B. Appeal allowed.