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PETITIONER: KISHORE SINGH & ANR.

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH

DATE OF JUDGMENT10/10/1977

BENCH:

ACT: Supreme    Court   (Enlargement   of   Criminal    Appellate Jurisdiction) Act, 1970, (Criminal Procedure Code 1973  sec. 379)-Certificate  under Art. 134 (1)(c) of the  Constitution is unnecessary in a case falling u/s. 2 of the 1970 Act. Appeal u/s. 417(1) of Criminal Procedure Code,  1898-Accused acquitted  of  a  major offence but  convicted  of  a  minor offence-Being  still  a  conviction  albeit  under  a  minor charge-Whether  a  case of acquittal for the purpose  of  s. 417(1)  of  the  Code and u/s. 2(a)  of  the  Supreme  Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

HEADNOTE: The appellants attacked Jawahar, the deceased, and also  one Pooran  Singh on July 28, 1968 and caused grievous  injuries on  the  person of the deceased using the ’sabbal’  and  the blunt  side of the axe with which they were armed.   Jawahar died  in  the hospital on August 27, 1968  after  recovering from  a  surgical operation for his head  injuries.   Pooran Singh also received grievous injuries. P.W. 6. the  doctor, who  first  examined  the  deceased could  not  say  in  his evidence  whether the injuries were such as were "likely  to cause death" in theordinary course of nature.  P.W. 12, the doctor who performed the surgical operation opined that  the injuries  to the skull found on the deceased were likely  to cause  death  in the ordinary course of nature  without  any treatment.   P.W. 13, the doctor who conducted the  autopsy, opined  that  the  injuries  found on  the  dead  body  were sufficient to cause death in the ordinary course of  nature. The appellants were tried u/s. 302/34 I.P.C. for the  murder of  Jawahar  and u/s. 307/34 I.P.C. for  attempt  to  murder Pooran  Singh.  They were convicted u/s. 307/34  I.P.C.  and sentenced  to  rigorous  imprisonment for  five  years;  but acquitted  of-the charge under s. 302/34 I.P.C.  They  were, however,  convicted u/s. 325 r/w 34 I.P.C. and sentenced  to four  years rigorous imprisonment.  On appeal by  the  State u/s.  417(1) of the 1898 Code, the High Court accepting  the appeal, set aside the order of conviction u/s. 325/34 I.P.C. and   convicted  the  appellants  u/s.  302/34  I.P.C.   and sentenced them to life imprisonment.  The High Court granted certificate  to  the  appellants  under  134(1)(c)  of   the Constitution. Dismissing  the  appeal  and modifying  the  conviction  and sentence to that u/s. 304 (,Part 1/34 I.P.C.), the Court, HELD  : (1) If on appeal against an order of  acquittal  the High Court sets aside the acquittal and convicts an  accused and  sentences him to imprisonment for life or to  a  period not  less  than ten years, the accused is  entitled,  as  of right,  to appeal to this Court u/s. 2(a) of the Act,  1970. The High Court is not right in holding that a certificate is

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necessary under Art. 134(1) (c) of the Constitution when the appellants had a right u/s. 2 of the Act. [636 IT, 637 A-D] (2)It  is  clear  from the language employed  both  in  s. 417(1) of the Criminal Procedure Code of 1898 and s. 2(a) of the  Act  of 1970 that, when an accused is  acquitted  of  a major charge, but convicted under a minor charge it is still an acquittal under the major charge which can be  challenged by the Stale before the High Court in an appeal u/s.  417(t) of the old Code.  The same principle will apply in the  case of s. 2(a) of the Act, if a person has been acquitted by the trial  court  under  a major charge and the  High  Court  on appeal  sets aside the acquittal under the major charge  and sentences  the  person  to imprisonment for  life  or  to  a sentence of not less than ten years. [638 A-B] 4-951SCI/77 636 (3)The distinction between culpable homicide (section  299 IPC) and murder (section 300 IPC) is always to be  carefully borne in mind while dealing with a charge under s. 302  IPC. Under the category of unlawful homicides fall both cases  of culpable   homicide  amounting  to  murder  and  those   Pot amounting  to murder.  Culpable homicide is not murder  when the  case  is brought within the five exceptions to  S.  300 I.P.C. But, even though none of the said five exceptions are pleaded  or  prima  facie established  on  the  evidence  on record, the prosecution must still be required under the law to  bring the case under any of the four clauses of  s.  300 I.P.C., to sustain the charge of murder. If          the prosecution  fails  to discharge this onus  in  establishing anyone of ’the"our  clauses  of  s.  300  I.P.C.,   namely, firstly to fourthly, the charge of murderwould  not   be made  out and the case may be one of culpable  homicide  not amounting to murder as described u/s 299 I.P.C. [639 C-E] (4)The distinction between the expression "likely to cause death"  and "sufficient in the ordinary course of nature  to cause  death"  is  significant  although  rather  fine   and sometimes deceptive. (5)With  regard  to the second part of thirdly of  s.  300 IPC,  namely, where the bodily injury is sufficient  in  the ordinary  course  of  nature to  cause  death,  the  court’s enquiry  is not confined to the intention of the accused  at that stage of judicial evaluation, once the intention of the accused  to cause the injury has already  been  established. The court will have to judge objectively from the nature  of the  injuries  and  other evidence,  including  the  medical opinion  as to whether the injuries intentionally  inflicted on  the deceased were sufficient in the ordinary  course  of nature  to  cause death.  In judging whether  the  in-juries inflicted are sufficient in the ordinary course of nature to cause  death,  the possibility that skillful  and  efficient medical  treatment might prevent the fatal result is  wholly irrelevant. [639 F-H, 640 A] Virsa Singh v. The State of Punjab [1958] SCR 1495 at  1501. reiterated. In  the instant case : (i) clause thirdly of s.  300  I.P.C. has  not been established beyond reasonable doubt; (ii)  the evidence  fulfils one of the ingredients of s. 299,  namely, that  the appellants caused the death by doing an  act  with the intention of causing such bodily injury as is likely  to cause death as deposed by the.  Surgeon, P.W. 12; and  (iii) it  is  a fit case where the conviction  of  the  appellants should be u/s. 304 (Part I) I.P.C. [640 B-D] [The  Court convicted the appellants u/s. 304 (Part I)  read with  s.  s.  34  I.P.C. and sentenced  them  to  ten  years rigorous  imprisonment; the sentence of the appellants  u/s.

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307/34 I.P.C. is to run concurrently with this]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 399 of 1974. From  the Judgment and Order dated 24-8-1974 of  the  Madhya Pradesh High Court in Criminal Appeal No. 693 of 1969. D.   Mukherjee and B. P. Singh for the Appellants. I.   N. Shroff and H. S. Parihar for the Respondent. The Judgment of the Court was delivered by GOSWAMI, J.-This appeal on certificate under Article  134(1) (c)  of the Constitution is from the judgment of the  Madhya Pradesh High Court.  The certificate was granted as the High Court  thought  that  the appellants were  entitled,  as  of right, to a grant of certificate in view of section 2 of the Supreme    Court   (Enlargement   of   Criminal    Appellate Jurisdiction) Act, 1970 (briefly the Act). The High Court is not right in holding that a certificate is necessary  under Article 134(1) (c) of the  Constitution  if the  appellants have, a right of appeal under section  2  of the Act. it will therefore be necessary to 637 consider  whether the appellants are entitled, as of  right, to appeal to ibis Court under section 2 of the Act. Section 2 of the Act reads as follows               "2. Without prejudice to the powers  conferred               on the Supreme Court by clause (1) of Art. 134               of  the Constitution, an appeal shall  lie  to               the  Supreme  Court from any  judgment,  final               order of sentence in a criminal proceeding  of               a High Court in the territory of India if  the               High Court-               (a)   has  on  appeal  reversed  an  order  of               acquittal  of an accused person and  sentenced               him   to   imprisonment   for   life   or   to               imprisonment for a period of not less than ten               years;               (b)   has  withdrawn for trial  before  itself               any  case  from any court subordinate  to  its               authority and has in such trial convicted  the               accused   person   and   sentenced   him    to               imprisonment for life or to imprisonment for a               period of not less than ten years." It is clear that if on appeal against an order of  acquittal the  High  Court sets aside the acquittal and  convicts  an accused  and sentences him to imprisonment for life or to  a period of not less than ten years, the accused is  entitled, as of right, to, appeal to this Court under section 2 (a) of the Act. In  this  particular case the appellants  were  tried  under section  302/  34 IPC for the murder of  Jawahar  and  under section  307/34 IPC for attempt to murder Pooran Singh.   We are  not  concerned with the sentence of  five  years  under section  307/34  IPC in his appeal which  runs  concurrently with the other sentence.  The Sessions Judge acquitted  them of the charge of murder of Jawahar but convicted them  under section  325 read with section 34 IPC.  Indeed  the  Session Judge clearly stated that-               "Raghubir   Singh   and  Kishore   Singh   are               acquitted  of  the charge under  section  302               r.w. section 34 Indian Penal Code but they are               convicted  under section 325 r.w.  section  34               Indian Penal Code] for their acts of  violence

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             against  Jawahar and are sentenced to  4(four)               years rigorous imprisonment." The  judgment  of  the trial court  was  delivered  on  29th August, 1969.  The State appealed to the High Court  against the  acquittal of the murder charge under section 417(1)  of the Code of Criminal Procedure, 1898 (briefly the old  Code) which governs this case. The  short question that arises for consideration is  as  to whether  the  appeal  before the High  Court  under  section 417(1)  of the old Code was competent since  the  appellants were not entirely acquitted in the trial but convicted of  a minor offence after having been charged for a major  offence which  is  permissible under section 238 of  the  old  Code. Being still a conviction. albeit under a minor charge. will it be a case of acquittal for the purpose of section 417  (1 ) of the old Code and under section 638 2(a)  of the Act ? That is the question.  The same  question will  also  arise under section 2 (a) of the Act  since  the High   Court  set  aside  the  acquittal  and  altered   the conviction  under  section 325/34 IPC to one  under  section 302/34 IPC and sentenced them to imprisonment for life. Having  given  our  anxious consideration  to  the  language employed both in section 417(1) of the old Code and  Section 2(a)  of the Act we are of opinion that when an  accused  is acquitted  of  a major charge but convicted  under  a  minor charge,  it  is still an acquittal under  the  major  charge which  can be challenged by the State before the High  Court in  an  appeal under section 417 (1) of the old  Code.   The same  principle  will apply in the case of section  2(a)  of the,  Act  if  a person had been acquitted  sets  aside  the acquittal  under  the  major charge and the  High  Court  on appeal  sets aside the acquittal under the major charge  and sentences  the  person  to imprisonment for  life  or  to  a sentence of not less then ten years.  The accused will  then be  entitled,  as of right, to appeal to  this  Court  under section  2(a)  of the Act.  In this view of the  matter  the certificate  was unnecessary in this case and we will  treat this appeal as one under section 2 (a) of the Act. Mr.D. Mookherjee appearing on behalf of the appellants has addressedus  only  on the question of untenability  of  the conviction under section302/34  IPC.  According to  counsel this is a clear case under section325/34 IPC and the  trial court was right in holding accordingly. We  may very briefly advert to the material facts  necessary to appreciate this submission.  Appellant Kishore Singh  was armed  with a ’sabbal’ and Raghubir Singh with an  axe.   We are  not concerned with their father Bhaiyalal who was  said to  be  in  their company with a stick but  has  since  been acquitted.  On the date of occurrence which was on July  28, 1968,  at 3.30 P.M.,, both the appellants  attacked  Jawahar and  caused  grievous  injuries  on  his  person  using  the ’sabbal’ and the blunt side of the axe.  Jawahar died in the hospital  on  August  27,  1968,  after  recovering  from  a surgical operation for his head injuries.  Dr. D. N. Malviya (PW 6) who first examined the deceased could not sty whether the injuries were such as were likely to cause death in  the ordinary course of nature.  Dr. P. K. Jain (PW 12) performed the operation on Jawahar on July 30, 1968, on the third  day of  the  occurrence.   He found depressed  fracture  of  the temporal bone.  Four pieces of bone were removed during  the operation as these were causing compression to the brain.   He opined  that the injuries to the skull were likely to  cause death   in  the  ordinary  course  of  nature  without   any

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treatment.The deceasedrecovered  from the  operation  but unfortunately died after a month ofthe  occurrence   on August  27, 1968, as stated earlier. Dr. C.N. Dafal (PW  13) who  held  the post mortem examination was of  opinion  that death was due to injury to scalp and chest and its complica- tions  which were due to the same.  He also opened that  the injuries  found  on  the dead body were  sufficient  in  his opinion to cause death in the ordinary course of nature. Relying on the above medical evidence Mr. Mookerjee  submits that the charge under section 302 IPC has not been made  out against  the appellants.  According to counsel  the  medical evidence is not definite 639 as  to  whether the injuries caused by the  appellants  were sufficient in the, ordinary course of nature to cause death. In  other words, be submits that the present case  does  not come under the clause ’3rdly’ of section 300 IPC to  warrant a charge of murder. We may, therefore, read that clause               "300,.    Except  in  the  cases   hereinafter               excepted, culpable homicide is murder.........               3rdly.-if it (if the act by which the death is               caused) is done, 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." The distinction between culpable homicide (section 299  IPC) and  murder  (section 300 IPC) has always  to  be  carefully borne in mind while dealing with a charge under section  302 IPC.   Under  the category of unlawful homicides  fall  both cases  of culpable homicide amounting- to murder  and  those not  amounting to murder.  Culpable homicide is  not  murder when the case is brought within the five exceptions to  sec- tion  300  IPC.   But  even though none  of  the  said  five exceptions  are pleaded or prima facie established  on  the evidence  on record, the prosecution must still be  required under  the  law  to bring the case under  any  of  the  four clauses of section 300 IPC to sustain the charge of  murder. If   the  prosecution  fails  to  discharge  this  onus   in establishing any one, of the four clauses of section 300 IPC namely,  1stly to 4thly, the charge of murder would  not  be made  out and the case may be one of culpable  homicide  not amounting to murder as described under section 299 IPC. On the facts and circumstances of the present case in  order to sustain the charge under section 302 IPC the, prosecution has  to  establish the ingredients of  the,  clause  "3rdly’ under section 300 IPC. That both the appellants caused injuries on the vital  parts of the body of the deceased with dangerous weapons has  been fully  established.  It is absolutely clear on the  evidence that  both  the  appellants intended  to  cause  the  bodily injuries to the deceased.  Thus the first part of "3rdly" is established. With  regard to the second part of "3rdly", namely,  whether the  bodily injury is sufficient in the ordinary  course  of nature  to cause death, the court’s enquiry is not  confined to  the intention of the accused at that stage  of  judicial evaluation,  once the intention of the accused to cause  the injuries  has already been established (see Virsa  Singh  v. The  State  of Punjab) (1).  The court will  have  to  judge objectively  from  the  nature of  the  injuries  and  other evidence,  including the medical opinion, as to whether  the injuries  intentionally inflicted by the appellants  on  the deceased were sufficient in the ordinary course of nature to

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cause death.  In judging whether the injuries inflicted  are sufficient in the ordinary course of nature to cause  death, the possibility that skilful (1)  [1958] S.C.R. 1495 at 1501. 640 and  efficient  medical treatment might  prevent  the  fatal result is wholly irrelevant. Having  regard to the entire evidence and the  circumstances of  the  case and in view of the somewhat  hesitant  medical opinion with regard to the cause of death given by the three doctors and the further fact that the deceased died a  month after  the  occurrence,  we think  that  clause  "3rdly"  of section  300 IPC has not been established beyond  reasonable doubt  in  this  case.   The evidence  fulfils  one  of  the ingredients  of  section 299, namely,  that  the  appellants caused  the  death  by doing an act with  the  intention  of causing  such bodily injury as is likely to cause  death  as deposed to by the Surgeon (PW 12). The  distinction  between the expression "likely  to  cause, death" and ,,sufficient in the ordinary course of nature  to cause death" is significant sentence of the appellants under section   307/34  IPC  will  run  concur  of  the   somewhat discrepant  medical opinion the appellants are  entitled  to the  benefit  and we hold that it is a fit  case  where  the conviction  of  the appellants should be under  section  304 (Part 1) IPC.  Both the appellants are, therefore, convicted under  section  304 (Part 1) read with section  34  IPC  and sentenced to ten years’ rigorous imprisonment.  The sentence of the appellants under section 307/34 IPC will run  concurs rently with this sentence.  The appeal is dismissed with the above modification of the conviction and sentence. S.R.                         Appeal dismissed. 641