VIJAY SINGH & ANRversusSTATE OF MADHYA PRADESH

                       [2014] 3 S.C.R. 830

A                     VIJAY SINGH & ANR
                                v.
                 STATE OF MADHYA PRADESH
               (Criminal Appeal No 444 of 2008)
                        MARCH 25, 2014
B
             [CHANDRAMAULI KR. PRASAD AND
               JAGDISH SINGH KHEHAR, JJ.]

        PENAL CODE, 1860:
c
        s.326- Death of a person by injuries caused by several
  persons ..- Conviction and sentence u/s 302 of two upheld by
  HJgh Court-Held: Appellants had caused one injury each,
  whereas deceased had sustained five injuries -- According to
D doctor, death had occurred on account of shock and
  excessive bleeding due to the injuries caused on the person
  of deceased -- Thus, death had not taken place as a result of
  injuries caused by appellants or any one of them -- Therefore,
  they cannot be held guilty u/s 302 simplicitor or with the aid
  of s.34 -- But their acts come within the mischief of s. 326 -
E Accordingly, their conviction is modified and they are held
  guilty uls 326 and sentenced to rigorous imprisonment for 10
  years and fine of Rs.5,0001- each.

       The two appellants and 9 others were prosecuted for
F committing the murder of the father of PW1 by causing
  injuries on his person. The trial court acquitted the said
  9 persons and convicted and sentenced the appellants
  u/s 302 IPC. The High Court confirmed the judgement
  and the order.
G
       Partly allowing the appeal, the Court

          HELD: 1.1 From the evidence of the eye-witnesses,
    it is evident that appellant no.1 had caused one injury to

H                               830
     VIJAY SINGH & ANR. v. STATE OF MADHYA            831
                    PRADESH
the deceased by ballam whereas appellant no.2 caused         A
one injury on the neck by farsa. They have also testified
that other accused had also given farsa blows to the
deceased. In the face of it, the High Court clearly erred
in holding that excepting injury no. 1, all other injuries
were caused by appellant no.2. [para 7] [834-C-E]            B

       1.2 From the evidence of the prosecution witnesses
  what is proved beyond doubt is that the appellants
  caused one injury each on the person of the deceased.
  It is relevant to mention that no charge u/s 34 IPC has C
  been framed against the appellants. PW-7 has deposed
  that during the post-mortem examination, he found 5
  injuries on the person of the deceased, and the death had
  occurred due to excessive bleeding and shock on
  account thereof. Thus, it cannot be said that only injury
  no.1 was the cause of the death. Therefore, the death had D
  not taken place as a result of the injuries caused by the
  appellants or any one of them and, as such, they cannot
  be held guilty u/s 302 IPC simplicitor or with the aid of
  s.34 IPC. The High Court, thus, committed serious error
· by holding that injury no. 1 was sufficient to cause death E
  of the deceased. [para 10, 11 and 12] [835-D; 836-A-F]

      1.3 However, the prosecution has been able to prove
 that the appellants have assaulted the deceased with
 ballam and farsa, which are dangerous weapons. F
 Further, the appellants had caused grievous injuries on ·
 the person of the deceased. Their acts come within the
 mischief of s.326 IPC. Accordingly, the appellants'
 conviction is modified. Their conviction u/s 302 IPC is set
 aside and they are held guilty u/s 326 IPC and sentenced G
 to rigorous imprisonment for 1O years and a fine of
 Rs.5,000/- each. [para 14-15] [836-G-H; 837-A-B]
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
 No. 444 of 2008.
                                                             H
    832      SUPREME COURT REPORTS                 [2014) 3 S.C.R

A       From the Judgment and Order dated 14.09.2007 of the
    High Court of Madhya Pradesh, Jabalpur Bench Gwalior in
    Criminal Appeal No. 37 of 1995.

          Rajesh for the Appellants.
B         C.D. Singh, Sakshi Kakkar for the Respondent.

          The Judgment of the Court was delivered by

      CHANDRAMAULI KR. PRASAD, J. 1. In the present
C appeal by way of special leave, we are concerned with
  appellants Vijay Singh and Hari Singh.

        2. According to the prosecution, on 16th of June, 1992 at
  about 6.30 A.M., a report was lodged by the informant, Pohap
  Singh (PW-1 ), alleging that while he was at his house, his father
D Bhagirath (deceased) was returning home after answering the
  nature's call and at that time, 11 accused persons including
  appellant no. 2 Hari Singh armed with farsa and appellant no.
  1 Vijay Singh armed with a ballam and other accused armed
  with axes surrounded him. Seeing this, according to the
E informant, his mother Prema Bai (PW-2), his wife Sheela (PW-
  3) and grandfather Jagannath (PW-6) went to rescue him,
  whereupon informant Pohap Singh was assaulted by lathi by
  one of the accused. Meanwhile, appellant no. 2, Hari Singh
  inflicted an injury on the neck of the deceased with farsa upon
F which he fell down. Thereafter, all the accused assaulted the
  deceased with the weapons with which they were armed. It is
  the case of the prosecution that appellant no. 1, Vijay Singh
  caused an injury with a ballam near the eye of the deceased
  and he died on the spot.
G        3. On the basis of the report given by Pohap Singh, a case
    under Section 147, 148 and 302/149 of Indian Penal Code,
    1860 (hereinafter referred to as "the IPC") was registered.
    Police after usual investigation submitted the charge-sheet
    against all 11 accused persons and ultimately they were
H
         VIJAY SINGH & ANR. v. STATE OF MADHYA                    833
        PRADESH [CHANDRAMAULI KR. PRASAD, J.]
     committed to the Court of Sessions to face the trial. The            A
     Sessions Judge acquitted 9 of the 11 accused and convicted
     the appellants herein for commission of offence under Section
     302 of the IPC and sentenced them to imprisonment for life.
4 .. The learned Judge found the allegations as to the infliction of
     injuries, on the head and neck of the deceased by specific           B
     weapon such as ballam by appellant no.1 and farsa by appellant
     no.2 respectively, to have been corroborated by the medical
     evidence. Hence, the two appellants were convicted and
     sentenced as above.

         4. On appeal, the High Court confirmed their conviction and      c
     sentence and while doing so, observed as follows:

         "5 ......... Dr. Kapil Dev Singh, who has performed the
         postmortem of the deceased on 16.6.1992 and found as
         many as six injuries on the body of the deceased, out of         D
         which injury No.1 is caused by some pointed object near
         the face of the deceased. Thus, the injury attributed to Vijay
         Singh is corroborated. The other injury was incised wound
         on the body of the deceased. All the injuries were caused
         by sharp and edged weapons. As per opinion of Doctor
                                                                          E
         injur~ No. 1 was sufficient to cause death of the
         deceased ............

         6. After perusal of the statements of PW-1, PW-2 and PW-
         3, we find that the Sessions Court rightly convicted the
         present appellants. So far as the other accused are              F
         concerned the Doctor has specifically stated that except
         the injury No.1 which is attributed to Vijay Singh, all other
         injuries were caused by the same weapon. Thus. the other
         injuries are attributed to Hari Singh. Moreso, _the witness
         could not point out which of the injuries were caused by         G
         other accused, hence, acquitted the other accused. But so
         far as the present appellants are concerned, there are
         specific allegation against them for causing injuries to the
         deceased.
                                                     "Underling ours"     H
    834       SUPREME COURT REPORTS                  [2014] 3 S.C.R.


A         5. Aggrieved by the same, the appellants are before us.

       6. At the outset, while assailing the conviction of the
  appellants, Mr. Rajesh learned counsel appearing for the
  appellants, submits that the High Court erred in holding that
  excepting injury no. 1, all other injuries are attributable to Hari
8
  Singh. He draws our attention to the evidence of PW-2 Prema
  Bai and PW-3 Sheela, who claim to be the eye-witnesses to
  the occurrence and have clearly stated in their evidence that
  the appellant Hari Singh gave farsa blow on the neck of the
C deceased and other accused persons (since acquitted) have
  also assaulted the deceased with farsa.

        7. We have gone through the evidence of the eye-
  witnesses and from their testimony it is evident that appellant
  Vijay Singh had caused one injury to the deceased by ballam
D whereas appellant Hari Singh caused one injury on the neck
  by farsa. They have also testified that other accused had also
  given farsa blows to the deceased. In the face of it, the High
  Court clearly erred in holding that excepting injury no. 1, all other
  injuries were caused by the appellant Hari Singh.
E
        8. Mr. Rajesh, then submits that the appellants can be held
  guilty under Section 302 of the IPC only when it is proved that
  the injuries inflicted by them have resulted into death. He refers
  to the evidence of PW-7 Dr. Kapil Dev Singh and submits that
  according to his opinion, the death occurred because of
F excessive bleeding and shock on account of all the injuries
  found on the person of the deceased. He points out that this
  doctor had found 5 injuries on the person of the deceased and
  all those injuries cannot be attributed to the present appellants.
  Mr. Rajesh further points out that even if it is assumed that
G appellant Vijay Singh had assaulted the deceased with ballam
  on the face and appellant Hari Singh by farsa on the neck, they
  cannot be held guilty under Section 302 of the IPC as those
  injuries only did not cause death.

H         9. Mr. C.D. Singh, learned counsel for the State, on the
    VIJAY SINGH & ANR. v. STATE OF MADHYA                    835
   PRADESH [CHANDRAMAULI KR. PRASAD, J.]
other hand, submits that since the doctor in evidence has stated     A
that injury no. 1 was sufficient to have caused death, the High
court rightly convicted the appellants. In any view of the matter,
according to Mr. Singh, the deceased died of various injuries
caused to him during the occurrence, and therefore, the
appellants can well be convicted under Section 302 with the          B
aid of Section 34 of the IPC.

     10. True it is that the High Court, while upholding the
conviction of the appellants, has observed that "as per the
opinion of the doctor, injury no. 1 was sufficient to cause death    C
of the deceased". We have gone through the evidence of PW-
7 Dr. Kapil Dev Singh. PW-7 in his evidence stated that during
the post-mortem examination, he found the following injuries on
the person of the deceased:

     "1.Depressed fracture with contusion with open wound            D
     cutting front parietal bone 4" x 1%" x bone deep on right
     side.

     2. Incised wound on cheek cutting auxiliary bone 5"x 1/2"
     x bone deep right side.
                                                                     E
     3. Incised wound of the size 4" x %" x muscle deep and
     cutting breathing pipe and major blood arteries on right
     side.

     4. Incised wound on superior collar bone right side, 5" x F
     %"cutting breathing pipe.                                ·

     5. Incised wound right side on the face cutting right jaw
     bone size 3" x %"x bone deep."

     As regards the cause of death, he has stated as follows:        G

     "In my opinion, all.the injuries were caused by sharp and
     blunt weapon. In my opinion cause of death is excessive
     bleeding and shock .... "
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    836     SUPREME COURT REPORTS                  [2014] 3 S.C.R.


A      11. Thus, the doctor has altogether found 5 injuries on the
  person of the deceased and the death had occurred due to
  excessive bleeding and shock on account thereof. Therefore,
  it cannot be said that only injury no.1 was the cause of the
  death. Hence, we are constrained to observe that the High
B Court committed serious error by holding that injury no. 1 was
  sufficient to cause death of the deceased.

          12. Nonetheless from the evidence of the prosecution
    witness.es what is proved beyond doubt is that appellant Vijay
    Singh caused injury on the face of the deceased by ballam and
C   appellant Hari Singh on neck by farsa. In this backdrop, we
    proceed to consider the nature of offence. It is relevant here to
    mention that no charge under Section 34 IPC has been framed
    against the appellants. Even if we assume in favour of the State,
    as contended by Mr. Singh, that it is possible to hold the
D   appellants guilty under Section 302 read with Section 34 of the
    IPC in the absence of charge, in our opinion, for that the
    prosecution will have to prove that injuries attributable to the
    appellants or any of them were the cause of death. As observed
    earlier, the appellants had caused one injury each, whereas the
E   deceased had sustained five injuries. According to the doctor,
    death had occurred on account of shock and excessive
    bleeding due to the injuries caused on the person of the
    deceased. Therefore, the death had not taken place as a result
    of the injuries caused by the appellants or any one of them.
F   Hence, they cannot be held guilty under Section 302 IPC
    simplicitor or with the aid of Section 34 IPC.

       13. However, the prosecution has been able to prove that
  the appellants have assaulted the deceased with ballam and
G farsa, which are dangerous weapons. Further, the appellants
  had caused grievous injuries on the person of the deceased.
  Hence, they may not be held guilty under Section 302 or 302
  read with Section 34 IPC, but surely their acts come within the
  mischief of Section 326 IPC. Accordingly, we modify the
  appellants' conviction and hold them guilty under Section 326
H
    VIJAY SINGH & Ar~R. v. STATE OF MADHYA                     837
   PRADESH [CHANDRAMAULI KR. PRASAD. J.]
IPC and sentence them to undergo rigorous imprisonment for             A
10 years each and fine of Rs.5.000/- each, in default to suffer
imprisonment for six months. We have been told that both the
appellants have already remained in custody for more than the
period of their sentence. If that be so, they be released forthwith
unless required in· any other case.                                    B

     14. In the result, the appeal is partly allowed, the conviction
and sentence of the appellants under Section 302 IPC is set
aside, instead they are convicted under Section 326 IPC and
sentenced to the period as above with the direction aforesaid.         C

R.P.                                      Appeal Partly Allowed.