http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (crl.)  1721 of 2007

PETITIONER: Hari Yadav

RESPONDENT: State of Bihar

DATE OF JUDGMENT: 14/12/2007

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T [Arising out of SLP (Crl.) No. 5256 of 2007] S.B. SINHA,  J :

       Leave granted.

1.      Appellant is before us aggrieved by and dissatisfied with a judgment  dated 21st January, 2004 passed by a Division Bench of the Patna High  Court in Criminal Appeal No. 341 of 1991  arising out of the judgment of  conviction and sentence dated 2nd September, 1991 passed by Additional  District and Sessions Judge XIth, Gaya, in Sessions Trial No. 12 of 1991.       2.      A land dispute arose between the accused and the prosecution  witnesses in relation to a piece of land bearing plot No. 1/555 of  village   Gamahariya.  While measurement of the said land was going on, both the  parties, viz., Kameshwar Yadav and Chander Dusadh, claimed their right  thereupon, on the basis of purchases made by them under their respective  registered deeds of sale.  

3.      A quarrel ensued between both the parties.  Kameshwar Yadav  exhorted others to eliminate Chander Dusadh. It was followed by an assault  on Kali Dusadh by a hard and blunt object by him.   Jaldhari  Yadav   assaulted Kali Dusadh on his right arm.  Parmeshwar Yadav assaulted him  on his back.  Appellant herein inflicted a farsa blow on the head of Chander  Dusadh, the deceased.  Kameshwar Yadav gave another blow on his hand by  a hard and blunt object.  As alarm was raised by Kali Dusadh, whereupon  assailants fled from the field.  They allegedly resorted to firing also.       4.      Thereafter, injured Chander Dusadh  was taken to the Police Station in  an unconscious state.       5.      A First Information Report in regard to the said incident was lodged at  10 pm on 11th August, 1981.  Appellant amongst others was named therein.    The prosecution during trial examined a number of witnesses in support of  its case.  PW 1, Bisu Bhuiya categorically stated  about infliction of garassa  blow by Hari Yadav and lathi blow by Kameshwar Yadav on the deceased.     Role played by  Kameshwar Yadav, Kishun Yadav, Hari Yadav,  Parmeshwar Yadav, Bhuja Yadav, Rohan Yadav and Gopal Yadav  in  inflicting injuries on Kali Dusadh were also categorically stated by him in  his deposition.       6.      Similarly, Barat  Dusadh   (P.W 3) deposed about the role played by  the Appellant in inflicting a farsa blow on the head of Chander Dusadh,   having been exhorted to do so by his father.  He not only stated in details in  regard to the mode and manner in which the incident took place but also the  cause thereof.   Similar is the evidence of Aminullah Khan (PW 5)  and Gazi  Khijer Heyat (P.W 6).         7.      P.W. 8 Dr. M.K. Sinha,  who conducted the post mortem examination

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

on the dead body of the deceased, in his report noticed three ante mortem  injuries which are as under:      \023(i) Recently healed liner wound  of length   4\024 over top of head.  On dissection underlined  tissues were found infiltrated with blackish blood  clot.  There was fracture of both parietal bones.   On removal of skull cap, there was presence of  extradural and subdural haemotoma over superior  surface of both cerebral hemisphere.  Brain and  meninges were found grossly congested.      (ii) Healed abrasion over front of lower on  part of the right knee with presence of dry, black   scale over the area, size 1-1/4\022 x =\022.      (iii) Swelling over antero lateral aspect of  right arm upper part size 2-1/2\024 circumference.\024       8.      On  analyzing the materials brought on records, the Learned Sessions  Judge found the appellant guilty of commission of offence under Section  302   of the  Indian Penal Code.  The Learned Judge, however, while  considering the facts and circumstances of each of the accused at the time of  occurrence  imposed a sentence of ten years\022 rigorous imprisonment under  Section 302 of the Indian Penal Code to accused Kameshwar Yadav and  Hari Yadav and one year\022s rigorous imprisonment  to  Jaldhari Yadav  and  Parmeshwar Yadav and Kameshwar Yadav under Section 323  of the Indian  Penal Code.       9.      Three Criminal Appeals were preferred by the accused persons.  The  High Court dismissed the said appeals, but keeping in view the fact that  the  Learned Sessions Judge committed a serious error in imposing the  punishment of 10 years\022 rigorous imprisonment for commission of an  offence under Section 302 of the Indian Penal Code, imposed the sentence of  rigorous imprisonment for life.   Appellant is, thus,  before us.       10.     Mr. Sushil Kumar, learned Senior Counsel appearing on behalf of the  appellant, inter alia, would submit that the occurrence having taken place on  11.8.1981 and the death of deceased having taken place on 1.9.1981, the  appellant cannot be stated to have committed any offence under Section 302.   It was pointed  that according to the Doctor,  the deceased  left the hospital  on 27.8.1981 without  his permission and thus he might have died of some  other disease in between  the period 27.8.1981  and 1.9.1981.    The Learned  Counsel submitted that keeping in view the injuries suffered by the  deceased, the same were possibly caused by a lathi.       11.     Mr. Gopal Singh, learned counsel appearing on behalf  of the state on  the other hand, supported the impugned judgment.   

12.     Presence of the appellant at the scene of the incidence is beyond any  dispute.  The autopsy surgeon in his evidence while proving his report,  identified three injuries appearing on the person of the deceased.  Injury No.  1 was found to be grievous in nature and dangerous to life which was likely  to be caused by sharp weapon such as farsa whereas other injuries which  were simple in nature could have been caused by hard and blunt object (may  be lathi).  He was of the categorical opinion that the injury  No.1, in ordinary  course of nature, was sufficient to cause death.          13.     In cross examination his attention was drawn to the book \023Modi\022s  Medical Jurisprudence & Toxicology (22nd Edition).  In answer to a  question, he stated:       \023Linier abrasion can be possible by lathi as  well.  Volunteers it can also be caused by sharp  weapon.  If the margin of the wound is sharp, it is  inferred that it was caused by sharp weapon.\024       14.     We may notice that it was categorically stated by the said witness that  there was no provision for treatment of such injury and such cases are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

ordinarily referred to neuro surgeon at Ranchi.

15.     It appears that on 27.8.1981, a report was sent  that deceased died in  Gaya hospital on 1.9.1981.   

16.     Our attention has been drawn to one slip attached to the said report  wherein a prayer was made for insertion of Section 302 of Indian Penal  Code in the said case, which reads as under:      \023In continuation of Injury Report of Chandra  Gorait of Singh Pokhar, Sherghati I have to inform  you that he has developed unomiplagia        and he  left the hospital on 27.8.1981 without the  knowledge of undersigned.  He has not submitted  x-ray of right hand till now.  This is for  information and necessary action.\024

17.     Submission of the learned senior counsel Sh. Sushil Kumar  is that the  deceased  left hospital on 27.8.1981 without any information to the doctor   therefore, cannot be accepted.  The fact that the deceased died in the District  Hospital  is not in dispute.  We have noticed  hereinbefore that the Doctor  himself suggested that there was no provision for treatment of such patients  at Sherghatti.  Evidently, therefore, the relatives of the deceased took him to  the District Hospital for better treatment.   For the said purpose, the consent  of the doctor might not have been taken or brought to the personal  knowledge of the doctor concerned.

18.     It is, however, significant that the aforementioned quotation was made  from the purported note made by somebody  which formed part of the case  diary.  The said document was not proved.  Attention of the investigating  officer was not drawn thereto.   No such question appears to have been  raised before the High court.  We are really at a loss to understand as to how  reliance has been placed thereupon on the basis of a piece of paper which  appeared in the case diary.  We deprecate such a practice.

       It may be of some interest to notice that Dr. S.P. Gupta has used the  word \023unomiplagia\024.   We have not been able to find what it means in the  medical dictionary.

19.     Deposition of Dr. S.P. Gupta who was examined before the Learned  Sessions Judge as PW 10 has not been brought on record by the appellants.       The reason therefor appears to us as obvious.  Several unsustainable pleas  have been raised before the Trial Court on behalf of the appellant.  It appears  that at one point of time a plea of insanity has as also  his having no  relationship with the other accused, had also been taken.  It appears from the  records that he had also absconded for some time.

20.     Submission of Mr. Sushil Kumar that such an injury can be caused by  hard and blunt substance may be correct   in view of the statements made by   the autopsy surgeon but merely because there is a possibility in regard  thereto, the same by itself cannot be a ground for holding that ocular  evidence should be disbelieved.   There are  a large number of  authorities of  this Court which clearly show that in certain situations, the wound produced  by a blunt  instrument may similarly seem to be an incised one.   [See  Kailash  Vs. State of MP 2006 (9) SCALE 681].

21.     It was not a case where there was a sudden fight.  The accused came  prepared at the place of occurrence.  An altercation might have taken place  but not only repeated assaults were made, other witnesses also suffered  injuries.   

22.     Each case must be decided on its own facts as has been held in  Kailash (Supra).               The law in this regard was laid down in Kailash (supra) in the  following terms:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

       \023In Virsa Singh v. The State of Punjab  [1958)SCR 1495] wherein Vivian Bose, J. opined  that infliction of one injury by accused may be  sufficient to hold him guilty for commission of an  offence under Section 302 of the Indian Penal  Code stating:

       In considering whether the intention was to  inflict the injury found to have been inflicted, the  enquiry necessarily proceeds on broad lines as, for  example, whether there was an intention to strike  at a vital or a dangerous spot, and whether with  sufficient force to cause the kind of injury found to  have been inflicted.  It is, of course, not necessary  to enquire into every last detail as, for instance,  whether the prisoner intended to have the bowels  fall out, or whether  he intended to penetrate the  liver or the kidneys or the heart.  Otherwise, a man  who has no knowledge of anatomy could never be  convict, for, if he does not know that there is a  heart or a kidney or bowels, he cannot be said to  have intended to injure them.  Of course, that is not  the kind of enquiry.  It is broad-based and simple  and based on commonsense; the kind of enquiry  that \023twelve good men and true\024 could readily  appreciate and understand.         To put it shortly, the prosecution must prove  the following facts before it can bring a case under  Section 300. First, it must establish, quite  objectively, that a bodily injury is present; Secondly,  the   nature of the injury must be  proved;  These  are purely objective investigations. Thirdly, it must be proved that there was an  intention to inflict that particular bodily injury, that  is to say, that it was not accidental or  unintentional, or that some other kind of injury  was intended. Once these three elements are proved to present,  the enquiry proceeds further and, Fourthly, it must be proved that the injury of the  type just described made up of the three elements  set out above is sufficient to cause death in the  ordinary course of nature.  This part of the enquiry  is purely objective   and inferential and has nothing  to do with the intention of the offender.\024

23.     For the reasons aforementioned, there is no merit in this appeal, which  accordingly is dismissed.