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CASE NO.: Appeal (crl.)  637 of 2007

PETITIONER: Ambaram

RESPONDENT: State of M.P

DATE OF JUDGMENT: 27/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.    637             2007 [Arising out of S.L.P. (Crl.) No.  5006 of 2006]

S.B. SINHA, J.         Leave granted.

       Appellant herein was convicted for commission of an offence under  Section 148, 302/149 of the Indian Penal Code alongwith several other  persons namely Hukum, Girdhari, Patiram, Narayan and Prahlad.   

       Prosecution case shortly stated is as under:-

       Savitribai and other members of her family were sitting in the  courtyard of the former’s house at about 4 p.m. on 2.3.1991.   Prahladsingh,  Ambaram, Patiram, Hukum, Narayan and Girdhari were drinking liquor.  They started hurling filthy abuses.  Savitribai came out from her house and  asked them to behave themselves.  They adopted a hostile stance.  They  started assaulting her, causing injuries inter alia by throwing stones.  When  Accused Hukum hurled a stone at her, Prem Singh, brother of Savitribai  intervened.  He was caught by them.   Hukum pelted a stone at him causing  injury on his head. Ambaram, who was carrying an axe, inflicted a blow on  his head from its  blunt side.  Other accused persons entered her house.   Patiram brought a bow and arrow and shot an arrow at Premsingh.   He fell  down unconscious. One Chandrakalabai pulled out that arrow.  Others who  were returning from the weekly market intervened.  At least six of them  namely Himmatsingh, Gendalal, Mansingh, Kamalasingh, Savitribai and  Phool Singh were injured by the appellants.

       Some of the accused persons in the process also appeared to have  suffered injuries.  It is alleged that not only the aforementioned persons  suffered injuries at the hands of the accused, even the tiles of the roof of  Savitribai’s house were also damaged.

       Prem Singh succumbed to his injuries on 3.3.1991.

       Homicidal nature of death of Prem Singh is not disputed.   The  learned Sessions Judge upon consideration of the materials brought on  record by the prosecution held the appellants guilty of commission of an  offence under Section 302/149 of the Indian Penal Code.   The High Court,  however, convicted only Ambaram, Hukum and Prahlad under Section  302/34 of the Indian Penal Code.  Appellant Girdhari was convicted under  Section 324 of the Indian Penal Code.

       Only appellant Ambaram is before us.   

       A limited notice was issued by this Court in regard to the nature of  offence.   

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       Mr. Anis Ahmed Khan, learned counsel appearing on behalf of the  appellant would submit that keeping in view the fact that the appellant has  assaulted merely with the blunt portion of the axe, whereby no vital injury  was caused; only an offence under part II of the Section 304 of the Indian  Penal Code is made out.    

       Dr. N.M. Ghatate, learned senior counsel appearing on behalf of the  respondent, on the other hand, would submit that the appellant and others  having been armed with various lethal weapons and having not only caused  the death of one person but injuries to six others, it is not a case where clause  fourthly appended to Section 300 of the Indian Penal Code would be  applicable.

       The deceased Prem Singh received the following ante-mortem  injuries;- "I. A punctured wound in his abdomen 2" below  umbilical region measuring 1" x >" x cavity deep.    The wound has punctured the small intestine and  caused injury of the size >" x =" x through and  through.  Omentum and small intestine had also come  out.

II.     Two Lacerated wound on the occipital region  measuring 1"x = x <" and another wound 1"x =" x  <".  "    

       At least one of the injuries is attributed to the appellant.   The injuries  found on the person of the deceased both by Dr. N.K. Pancholi in his injury  report as also in the post-mortem report,  support the prosecution case.

       Appellant, took an active part in assaulting the deceased Prem Singh.  From the materials on record, it appears that he actively associated himself  in the entire episode.   Ambaram and Prahlad assaulted the deceased with  axe whereas Patiram shot an arrow.    They have been allegedly shouting  ’kill-kill’.   Apart from that, it appears that Ambaram, the appellant had also  assaulted Himmat Singh on his head.  There was absolutely no reason as to  why the appellant together with others would assemble for taking drinks in  front of the house of the deceased and that too armed with such lethal  weapons.    They were merely asked not to create a nuisance and to behave  themselves as they had been hurling abuses in filthy languages.   It was not a  case where PW-9, Savitribai gave any provocation. She was unarmed.   She  was a lady, still then she was assaulted.  Intervention by the deceased being  her brother at that stage cannot be said to be unusual.   It is, therefore, not a  case where injuries were caused on a sudden provocation or in a fit of anger.  Appellant does not claim a right of private defence.  He is said to have been  injured but no medical  certificate was produced.

       We may, therefore, for the purpose of this case, notice the relevant  provisions of Section 299 and Section 300. Section 299 Section 300 A person commits culpable  homicide if the act by which  the death is caused is done - Subject to certain exceptions  culpable homicide is murder if  the act by which the death is  caused is done - Intention (a)  with the intention of  causing death ; or (1) with the intention of causing  death ; or

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(b)  with the intention of  causing such bodily injury as is  likely to cause death; or  (2) with the intention of causing  such bodily injury as the  offender knows to be likely to  cause the death of the person to  whom the harm is caused; or

(3) with the intention of causing  bodily injury to any person and  the bodily injury intended to be  inflicted is sufficient in the  ordinary course of nature to  cause death; or Knowledge (c)  with the knowledge that  the act is likely to cause death (4) with the knowledge that the  act is so imminently dangerous  that it must, in all probability,  cause death or such bodily injury  as is likely to cause death, and  commits such act without any  excuse for incurring the risk of  causing death or such injury as is  mentioned above.

       Whereas Clause (b) of Section 299 refers to clauses secondly and  thirdly of Section 300, the distinctive feature of the said provisions are well- known.                     Mr. Anis Ahmed Khan, submitted that only one injury was inflicted  by the appellant.  A similar question came up for consideration recently in  Shajahan & Ors. v State of Kerala & Anr. [2007 (3) SCALE 618] wherein it  was held that number of injuries is not decisive.   How and in what manner  injuries have been caused would be a relevant factor.

       Reliance has been placed by Mr. Anis Ahmed Khan on Raj Pal and  Others v State of Haryana [(2006) 9 SCC 678].   In that case, it was held;

"17.   Clause (b) of Section 299 does not postulate any  such knowledge on the part of the offender.   Instances  of cases falling under clause (2) of Section 300 can be  where the assailant causes death by a fist-blow  intentionally given knowing that the victim is suffering  from an enlarged liver, or enlarged spleen or diseased  heart and such blow is likely to cause death of that  particular person as a result of the rupture of the liver or  spleen or the failure of the heart, as the case may be.   If  the assailant had no such knowledge about the disease  or special fraity of the victim, nor an intention to cause  death or bodily injury sufficient in the ordinary course  of nature to cause death, the offence will not be murder,  even if the injury which caused the death, was  intentionally given.   In clause (3) of Section 300,  instead of the words "likely to cause death" occurring  in the corresponding clause (b) of Section 299, the  words "sufficient in the ordinary course of nature" have  been used.   Obviously, the distinction lies between a  bodily injury likely to cause death and a bodily injury  sufficient in the ordinary course of nature to cause  death.  The distinction is fine but real and if overlooked,  may result in miscarriage of justice.   The difference

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between clause (b) of Section 299 and clause (3) of  Section 300 is one of the degree of probability of death  resulting from the intended bodily injury.  To put it  more broadly, it is the degree of probability of death  which determines whether a culpable homicide is of the  gravest, medium or the lowest degree. The word  "likely" in clause (b) of Section 299 conveys the sense  of probability as distinguished from a mere possibility.    The words "bodily injury .... sufficient in the ordinary  course of nature to cause death" mean that death will be  the "most probable" result of the injury, having regard  to the ordinary course of nature.

18.     For cases to fall within clause (3), it is not  necessary that the offender intended to cause death, so  long as the death ensues from the intentional bodily  injury or injuries sufficient to cause death in the  ordinary course of nature.  Kalarimadathil Unni v. State  of Kerala is an apt illustration of this point. "

                                               (Emphasis Supplied)

       The said decision does not support Mr. Ahmed’s contention.   It runs  counter thereto.                  In any event, appellant was held to be carrying common intention.   Common intention may develop at the spot. Appellant acted on exhortation  made by others.  He participated in the entire occurrence.   He was carrying  a dangerous weapon.   He assaulted not only the deceased but also another.  

       We therefore, are of the opinion that no case had been made out for  interference with the impugned judgment. The appeal is dismissed  accordingly.