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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NOS.532-533 OF 2013 (Arising out of S.L.P. (Crl.) Nos. 5099-5100 of 2012)

Khachar Dipu @ Dilipbhai Nakubhai      .. Appellant

Versus

State of Gujarat                           ... Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. In these appeals, the appellant, original accused No.  

1,  has called in question the legal  propriety of the  

judgment of conviction and order of sentence passed  

by the High Court of Gujarat in Criminal Appeal No.  

950 of 2009 whereby the Division Bench has allowed  

the appeal of the State and converted the conviction  

under Section 304 Part-I of the Indian Penal Code (for  

short ‘IPC’) recorded by the learned trial Judge to that

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of  an offence punishable  under Section 302 of  IPC  

and sentenced him to undergo life imprisonment and  

further the defensibility of the decision of dismissal of  

Criminal  Appeal  No.  1075  of  2009  wherein  the  

appellant had assailed the judgment and conviction  

and order of sentence dated 5.3.2009 passed by the  

learned  Additional  Sessions  Judge,   Bhavnagar  in  

Sessions case No. 166 of 1998.

3. The  factual  score  which  led  to  the  trial  of  the  

appellant  along with  two others  is  that  three days  

prior  to  the  date  of  occurrence,  i.e.,  21.5.1998,  

accused Nos.  1 and 2,  namely,  Khachar  Dipu alias  

Dilipbhai  Nakubhai  and Vahtubhai  Nakubhai,  had a  

dispute  regarding  dumping  of  manure  with  the  

brother  of  the  complainant  and  there  were  

altercations  which  led  to  an  inimical  relationship  

between  the  parties.   On  the  date  of  occurrence,  

when the deceased Shambhubhai, the brother of the  

complainant,  was going to his  field by cycle about  

9.00 p.m. on 20.05.1998, the accused No. 1, with the  

intention  of  extinguishing  the  life  spark  of  the  

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deceased, dashed the motor vehicle No. GJ-7-U-2385  

from behind and when the deceased was thrown off  

from his cycle, the accused No. 1 tied him behind the  

motor vehicle and dragged him about 10 kilometers  

and threw the dead body on the Gadhada Road and  

destroyed  the  evidence.   The  other  two  accused  

persons abetted with the common intention to assist  

accused No. 1.  On an FIR being lodged, the criminal  

law was  set  in  motion  and after  investigation,  the  

accused  persons  were  arrested  and,  eventually,  a  

charge  sheet  for  offences  under  Sections  302/201  

read with Section 34 of the IPC was laid before the  

learned  Magistrate  who,  in  turn,  committed  the  

matter to the Court of Session.  The accused persons  

denied the charges and claimed to be tried.  

4. The  prosecution,  in  order  to  establish  its  case,  

examined 24 witnesses and exhibited 31 documents.  

The defence chose not to adduce any evidence.  

5. The  learned  Sessions  Judge,  on  analysis  of  the  

evidence, came to hold that the accused No. 1 was  

guilty  of  the offence punishable under Section 304  

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Part-I  of  IPC  and,  accordingly,  sentenced  him  to  

undergo rigorous imprisonment for  a period of  five  

years and to pay a fine of Rs.500/- and, in default, to  

suffer further simple imprisonment of one month.  As  

far as the other accused persons are concerned, they  

stood acquitted of the charges.  

6. Being  grieved  by  the  aforesaid  judgment,  the  

convicted persons and the State of Gujarat preferred  

Criminal Appeal Nos. 950 of 2009 and 1075 of 2009  

respectively.  The High Court took note of the earlier  

quarrel that had taken place between the parties, the  

injuries  on  the  dead  body,  the  evidence  of  the  

prosecution  witnesses,  the  material  brought  on  

record relating to the incident, and accepting the fact  

that the motor vehicle had dashed against the cycle  

ridden  by  the  deceased  and  further  analyzing  the  

reasoning ascribed by the learned trial Judge, opined  

that  the  learned  Sessions  Judge  had  flawed  in  

recording the conviction under Section 304 Part-I of  

IPC and not under Section 302 of IPC.  The High Court  

opined that it was not a case of accident inasmuch as  

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the  injuries  on  the  whole  body  had  effectively  

crushed  the  entire  body  and  it  could  not  have  

happened  if  the  motor  vehicle  had  only  dashed  

against cycle from behind.   The High Court further  

opined  that  had  it  been  a  case  of  negligence  in  

driving, the accused would not have lifted the body  

of the deceased after dashing his vehicle against the  

cycle of the deceased.   The Division Bench further  

proceeded  to  state  that  the  muscle  tissues  found  

from the bumper of the motor vehicle coupled with  

the condition of the body of the deceased and the  

fact  that  it  was  left  on  the  road  with  the  motor  

vehicle at  a distance of about 10 to 15 kms away  

from  where  it  had  dashed  gave  credence  to  the  

prosecution version that it  was not a case of mere  

dashing of the motor vehicle with the cycle and the  

findings of the learned Sessions Judge pertaining to  

absence of pre-meditation to cause death was totally  

against normal prudence, and therefore, the findings  

recorded  by  the  learned  Sessions  Judge  were  

perverse  and  the  intention  to  cause  death  was  

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proved  by  material  evidence,  oral  as  well  as  

documentary.  Considering the totality of facts and  

circumstances, the Division Bench concluded that the  

learned Sessions Judge was in error in holding that A-

1 was guilty of offence under Section 304 Part-I of IPC  

and not under Section 302 of IPC.   

7. Be it noted, the High Court chose not to interfere with  

the  acquittal  of  the  accused  A-2  and  A-3  as  the  

allegations  were  not  established  and,  accordingly,  

allowed the appeal preferred by the State in part.  As  

far as the appeal preferred by the accused-appellant  

A-1 is concerned, it was dismissed.

8. We have heard Mr. Harshit S. Tolia, learned counsel  

for the appellant, and Ms. Jesal, learned counsel for  

the respondent in both the appeals.

9. The  issues  that  arise  for  consideration  in  these  

appeals are whether the accused-appellant is entitled  

to a judgment of complete acquittal or the conviction  

and sentence as recorded by the learned trial Judge  

is absolutely justified in the obtaining factual matrix  

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which did not warrant interference by the High Court  

while  entertaining  the  appeal  by  the  State  by  

converting the conviction under Section 304 Part-I of  

the  IPC  to  Section  302  of  the  IPC  and  sentencing  

thereunder.   To  appreciate  the  said  issues,  it  is  

necessary to refer to the post mortem report which  

would  show  the  injuries  on  the  deceased.   On  a  

perusal  of  the  same,  it  appears  that  there  were  

injuries on the vital parts of the body, the face was  

crushed and further  there  were marks  of  dragging  

which were found on the upper part of the body and  

on the back, and the private part was crushed.  The  

High  Court,  in  its  judgment,  has  enumerated  the  

injuries in seriatim which we reproduce: -

          “1.     Destruction of brain and skull.

2. Destruction  of  face  and  its  bone  (crushing)

3. Crushing of all ribs on Rt. Side and some  ribs on left side.  

4. CLW over left leg just below knee, above  ankle joint.

5. Abrasion  all  over  front  part  of  chest,  abdomen, leg and hand, liner mark with  contaminated of road metal.  

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6. Fracture of all ribs with sternum

7. Fracture  on  Rt.  Femur  bone  at  lower  end.  

8. Fracture of numerous at it’s upper part.  

9. Abrasion  over  heel  of  Rt.  Leg  up  to  bone.  

10. Abrasion over the finger of both hand.  

11. Abrasion on front of abdomen at lateral  side and back of abdomen. All part.

12. Abrasion  all  over  thoracial  part  back  side.  

13. Abrasion over knee joint and middle side  of Rt. Leg upto muscle deep.

14. The skull was fractured and crushed and  the portion of brain was hanging out.  It  was also crushed.  The road metal was  also  found  therefrom.   Lungs,  heart,  brain, all vital parts were crushed.  

10. Dr. Kanjibhai, PW-16, who conducted the autopsy on  

the  dead  body,  has  opined  that  the  injuries  were  

possible in vehicular accident or if the vehicle is run  

over  the  body.   He  has  deposed  that  even  after  

death, if the body was dragged or the vehicle runs  

over the body, the injuries could have been caused.  

The cross-examination was focused to elicit from this  

witness about the absence of marks on the wrist part  

of  the  deceased  to  demolish  the  version  of  the  

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prosecution to the extent that the deceased was tied  

behind the vehicle and was dragged on the road.    In  

fact,  the said  witness  has categorically  stated that  

there  were  marks  of  dragging  on  the  body  of  the  

deceased.   PW-15,  Kishorebhai  Chhaganal  Naina,  

Scientific Officer, has deposed that on the rear part  

of the bumper of the vehicle, there were skin pieces  

stuck  and  blood  masses  were  seen.   On  an  

examination  of  the  cycle,  he  has  found  that  the  

motor  vehicle  had  collided  with  the  cycle  and  

thereafter, the orange colour of the front bumper of  

the motor vehicle was seen stuck on the back of the  

fan.  He had taken into custody 7 articles, namely,  

two pieces of blood stained tar cotton thread, clothes  

of the deceased, skin pieces from the motor vehicle  

No. GJ-7-U-2385, cotton thread rubbed on the rear of  

the motor vehicle, the blood stained cotton thread, a  

coloured  iron  piece  from  the  front  of  the  motor  

vehicle near the bumper, and rear part of the cycle  

on which the orange colour of the motor vehicle was  

stuck.  He had given suggestion for sending the same  

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to the Forensic Science laboratory at Junagarh.  The  

items suggested along with several other items were  

sent  by  the  Investigating  Officer  to  the  Forensic  

Science Laboratory and the said report was exhibited  

during the trial as Exhibit-44.  It is revealed from the  

said  report  that  the  skin  that  was  sent  for  

examination was human skin.  As regards the cotton  

thread, the report mentioned that blood was found.  

The scientific  report  of  FSL confirms that  the back  

side of the cycle had a colour mark of the front side  

of the motor vehicle.  Thus, dashing of the cycle by  

the motor vehicle in question is established by this  

scientific  evidence  also.  We  have  referred  to  the  

same only to highlight as there is sufficient proof that  

after  the  accident,  there  was  dragging  of  the  

deceased by the vehicle in question.  Learned trial  

Judge has not accepted the allegation of dragging of  

the deceased solely on the basis that no injuries were  

caused on the wrist.  He has totally ignored the other  

evidence collected by the Investigating Officer on the  

site, the opinion of the doctor that the injuries were  

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caused by the accident and dragging of the body and  

the F.S.L. report.  In our considered opinion, there is  

definite material on record to come to the conclusion  

that the body was dragged but it cannot be said with  

certainty about the distance.   It  is worthy to note  

that the dead body was found at a distance of  10  

kms.,  but  it  is  not  necessary  to  establish  that  the  

accused had dragged the deceased for about 10 kms.  

suffice it  to say that there is  evidence to establish  

that  the  body  was  dragged  for  a  considerable  

distance.  Dr. Kanjibhai, PW-16, who conducted the  

post-mortem in his evidence, has categorically stated  

that on the body there were marks of dragging which  

was on the front part of the body and on the back.  

The  evidence  in  this  regard  has  totally  gone  

unchallenged.  The finding of the learned trial Judge  

is solely based on the fact that there was no mark  

which would indicate that the wrists were tied.  It is  

useful to note here that the accused had not taken  

the plea that there was an accident.  On the contrary,  

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he  has  taken  the  plea  of  complete  denial  of  the  

occurrence.    

11. At this juncture, we may scrutinize the oral evidence  

on record.  Apart from the testimony of Bhimjibhai,  

PW-1, there is other evidence on record which can be  

taken  aid  of.   It  is  noticeable  that  some  of  the  

witnesses had turned hostile  during trial.  The High  

Court  has  referred  to  the  depositions  of  two  

witnesses, namely, Shantibhai Lakhmanbhai, PW-20,  

and Gobarbhai Bavubhai, PW-21.  It is well settled in  

law that the evidence of the hostile witness can be  

relied  upon  by  the  prosecution  as  well  as  by  the  

defence.    In  Rameshbhai  Mohanbhai  Koli  and  

Others v. State of Gujarat1, the said principle has  

been reiterated stating that:-

“16. It is settled legal proposition that the  evidence of a prosecution witness cannot  be  rejected  in  toto  merely  because  the  prosecution chose to treat him as hostile  and cross-examined him. The evidence of  such  witnesses  cannot  be  treated  as  effaced  or  washed  off  the  record  altogether but the same can be accepted  to the extent that their version is found to  be  dependable  on  a  careful  scrutiny  

1 (2011) 11 SCC 111

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thereof.  (Vide  Bhagwan Singh v.  State of  Haryana2,  Rabindra Kumar Dey v.  State of  Orissa3,  Syad Akbar v.  State of Karnataka4  and Khujji v. State of M.P.5)

17. In  State  of  U.P. v.  Ramesh  Prasad  Misra6 this  Court held that  evidence of a  hostile  witness  would  not  be  totally  rejected  if  spoken  in  favour  of  the  prosecution or the accused but required to  be  subjected  to  close  scrutiny  and  that  portion of the evidence which is consistent  with the case of the prosecution or defence  can  be  relied  upon.  A  similar  view  has  been  reiterated  by  this  Court  in  Balu  Sonba  Shinde v.  State  of  Maharashtra7,  Gagan Kanojia v.  State of Punjab8,  Radha  Mohan  Singh v.  State  of  U.P.9,  Sarvesh  Narain Shukla v. Daroga Singh10 and Subbu  Singh v. State11.”

12. On a careful scrutiny of the testimonies of the said  

two  witnesses,  it  is  seen  that  both  of  them  have  

categorically deposed that the motor vehicle involved  

in the accident had dashed against the cycle of the  

deceased as a result of which he had fallen down. It  

is interesting to note that in cross-examination by the  

accused, they have not paved the path of variance in  2 (1976) 1 SCC 389 3 (1976) 4 SCC 233 4 (1980) 1 SCC 30 5 (1991) 3 SCC 627 6 (1996) 10 SCC 360 7 ((2002) 7 SCC 543 8 (2006) 13 SCC 516 9 (2006) 2 SCC 450 10 (2007) 13 SCC 360 11 (2009) 6 SCC 462

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this regard.   In our opinion,  their  evidence support  

the prosecution version that the motor vehicle had  

dashed against the cycle.  We may note with profit  

that  one  of  the  witnesses  has  not  identified  the  

accused  in  court  but  the  other  witness,  PW-20,  

Shantibhai Lakhmanbhai, has identified. That apart,  

as  far  as  the  identification  of  the  accused  is  

concerned,  there  is  ample  evidence  on  record  to  

support the same.  The singular purpose of referring  

to the testimonies of these two witnesses is that the  

incident did occur and the accused had dashed the  

vehicle against the cycle.   

13. From  the  aforesaid  evidence  on  record,  certain  

aspects  became  clear:-  namely,  (i)  on  the  fateful  

night  at  9.00  p.m.,  the  deceased  was  going  on  a  

cycle,  (ii)  the  motor  vehicle  bearing  registration  

number No.  GJ-7-U-2385 belonging to the accused-

appellant  dashed against  the cycle,  (iii)  number  of  

injuries were sustained by the deceased,  (iv)  there  

was  dragging  of  the  deceased  after  the  accident  

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occurred, and  (v) the accused was involved in the  

commission of the crime.  

14. The learned trial  Judge had convicted  the  accused  

under  Section  304  Part  I  of  IPC  as  there  was  no  

previous deliberation or pre-meditation on the part of  

the accused and there was no evidence that the dead  

body was dragged upto 10 kms.   The High Court, as  

is  noticeable,  accepted  the  prosecution  version  of  

murder, regard being had to the effective crushing of  

the body intentionally and dragging of the same to  

cause death.  

15. One aspect that has to be seen is whether the High  

Court was justified in saying that there was intention.  

Such a view has been expressed on the ground that  

dashing of the motor vehicle and dragging was with  

the  intention  to  inflict  such  bodily  injury  that  was  

sufficient  to  cause death in  the ordinary  course of  

nature.    To  put  it  differently,  the  High  Court  has  

brought the case under Section 300 “thirdly”.   In this  

context, we may refer with profit to the decision in  

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Virsa Singh v. State of Punjab12 wherein Vivian  

Bose, J., speaking for a three-Judge Bench, laid down  

what is required for the prosecution to prove to bring  

the case under the said clause.  It has been stated  

therein  that  first,  it  must  be  established,  quite  

objectively, that a bodily injury is present; Secondly,  

the nature of the injury must be proved and 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;  and  once  these  three  

elements  are  proved  to  be  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.  

Thereafter,  in  that  case,  it  has  been  stated  as  

follows:-  12 AIR 1958 SC 465

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“Once these four elements are established  by  the  prosecution  (and,  of  course,  the  burden is  on the prosecution throughout)  the offence is  murder  under Section 300  “thirdly”. It does not matter that there was  no  intention  to  cause  death.  It  does  not  matter that there was no intention even to  cause an injury of a kind that is sufficient  to  cause death in  the ordinary  course of  nature  (not  that  there  is  any  real  distinction between the two).  It  does not  even  matter  that  there  is  no  knowledge  that  an  act  of  that  kind  will  be  likely  to  cause death. Once the intention to cause  the  bodily  injury  actually  found  to  be  present is proved, the rest of the enquiry is  purely objective and the only question is  whether,  as  a  matter  of  purely  objective  inference,  the  injury  is  sufficient  in  the  ordinary course of nature to cause death.  No  one  has  a  licence  to  run  around  inflicting  injuries  that  are  sufficient  to  cause  death  in  the  ordinary  course  of  nature and claim that they are not guilty of  murder. If they inflict injuries of that kind,  they  must  face  the  consequences;  and  they can only escape if it can be shown, or  reasonably  deduced,  that  the  injury  was  accidental or otherwise unintentional.”

16. In  State  of  Andhra  Pradesh  v.  Rayavarapu  

Punnayya and Another13, after referring to the rule  

laid  down  in  Virsa  Singh’s  case (supra)  and  

Rajwant v. State of kerala14, the Court proceeded  

to  enunciate  that  whenever  a  court  is  confronted  

with the question whether the offence is ‘murder’ or  13 (1976) 4 SCC 382 14  AIR 1966 SC 1874

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‘culpable homicide not amounting to murder’, on the  

facts  of  a  case,  it  will  be  convenient  for  it  to  

approach the problem in three stages. The question  

to be considered at the first stage would be, whether  

the accused has done an act by doing which he has  

caused the death of  another.  Proof  of  such causal  

connection between the act of the accused and the  

death,  leads  to  the  second  stage  for  considering  

whether  that  act  of  the  accused  amounts  to  

“culpable homicide” as defined in Section 299. If the  

answer to this question is prima facie found in the  

affirmative, the stage for considering the operation  

of Section 300, Penal Code, is reached. This is the  

stage at which the court should determine whether  

the facts proved by the prosecution bring the case  

within the ambit  of  any of  the four  clauses of  the  

definition of ‘murder’ contained in Section 300. If the  

answer to this question is in the negative the offence  

would  be  ‘culpable  homicide  not  amounting  to  

murder’,  punishable  under  the  first  or  the  second  

part  of  Section  304,  depending,  respectively,  on  

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whether  the  second or  the  third  clause of  Section  

299  is  applicable.  If  the  question  is  found  in  the  

positive,  but  the  case  comes  within  any  of  the  

exceptions enumerated in Section 300, the offence  

would still  be ‘culpable homicide not amounting to  

murder’,  punishable under the first  part  of  Section  

304, Penal Code.

17. We may hasten to clarify that in the said case, the  

two-Judge  Bench  observed  that  the  aforestated  

principles are only broad guidelines and not cast-iron  

imperatives.  In most cases, their observance would  

facilitate the task of the court.  However, adding a  

word of caution, it observed that sometimes the facts  

are  so  intertwined  and  the  second  and  the  third  

stages so telescoped into each other that it may not  

be convenient to give a separate treatment to the  

matters involved in the second and third stages.   

18. Recently,  in  Rampal  Singh  v.  State  of  Uttar  

Pradesh15, after referring to the pronouncements in  

Rayavarapu  Punnayya  (supra),  Vineet  Kumar  

15 (2012) 8 SCC 289  

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Chauhan v. State of U.P.16, Ajit Singh v. State  

of Punjab17, and  Mohinder Pal Jolly v. State of  

Punjab18, the Court opined thus: -  

“The  evidence  led  by  the  parties  with  reference  to  all  these  circumstances  greatly helps the court in coming to a final  conclusion  as  to  under  which  penal  provision of the Code the accused is liable  to be punished. This can also be decided  from another point of view i.e. by applying  the “principle of exclusion”. This principle  could be applied while taking recourse to a  two-stage process of determination. Firstly,  the Court may record a preliminary finding  if  the accused had committed an offence  punishable  under  the  substantive  provisions of Section 302 of the Code, that  is,  “culpable  homicide  amounting  to  murder”. Then secondly, it may proceed to  examine  if  the  case  fell  in  any  of  the  Exceptions detailed in Section 300 of the  Code.  This  would  doubly  ensure that  the  conclusion  arrived  at  by  the  court  is  correct on facts and sustainable in law. We  are stating such a proposition to indicate  that  such  a  determination  would  better  serve the ends of criminal justice delivery.”

19. Regard being had to the aforesaid enunciation of law,  

it is to be seen whether the opinion expressed by the  

High  Court  is  correct  and  justified.   As  has  been  

stated hereinbefore, the High Court has taken note of  

16 (2007) 14 SCC 660 17 (2011) 9 SCC 462 18 (1979) 3 SCC 30

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the injuries and the conduct of the accused persons  

and  opined  that  it  is  a  brutal  murder.   At  this  

juncture, it is apt to note that the accused had not  

taken the plea that there was an accident because of  

bad light or due to the negligence of the deceased.  

He has taken the plea of  complete  denial.   Under  

these circumstances, the evidence of the son of the  

deceased,  Himmatbhai  Sambhubhai,  PW-18,  gains  

significance.   He  has  deposed  that  there  was  a  

quarrel  between  the  accused  and  the  deceased  

relating to dumping of garbage and his father was  

threatened by the accused.  The said evidence has  

gone unchallenged.  Such a quarrel or altercation has  

its  own  triviality  but  it  gets  magnified  when  the  

dashing of the vehicle is proven and the nature of  

the injuries caused on the deceased is taken note of.  

That  apart,  there  is  evidence  that  the  body  was  

dragged.  Thus, it can safely be concluded that the  

intention to cause bodily injury is actually found to  

have been proved and such injuries are sufficient in  

the ordinary course of nature to cause death.  When  

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such injuries are inflicted, it will be travesty of justice  

to hold that it was an accident without the intention  

to cause death.    

20. In view of the aforesaid premised reasons, we do not  

find any flaw in the analysis made by the High Court  

for reversing the conviction under Section 304 Part I  

of IPC recorded by the learned trial Judge to that of  

302  of  IPC  and,  accordingly,  we  concur  with  the  

same.  The resultant effect of the same is dismissal  

of both the appeals which we direct.  

    ……………………………….J. [K. S. Radhakrishnan]

……………………………….J.                                            [Dipak Misra] New Delhi; April 04, 2013

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