IN THE SUPREME COURT OF  INDIA           CRIMINAL APPELLATE JURISDICTION   

     CRIMINAL APPEAL NO. 212   OF 2008

NIVRUTTI & ORS. ..  APPELLANT(S)

vs.

STATE OF MAHARASHTRA ..  RESPONDENT(S)

O R D E R

This appeal arises out of the following facts:

On 9th May, 2004, the marriage of the daughter of one Bhausaheb,  

the  brother  of  Ashok  PW.1,  was  to  be  solemnized  in  village  Janephal,  

District Aurangabad. Ashok PW.1,  arranged  a  water tanker on the 6th May,  

2004.  As the tanker was being taken towards Ashok's house the accused  

appellants, obstructed the way by putting stones and thorny bushes.  The  

accused also abused PW.12 Dada Saheb and the deceased Nana Saheb.

Ashok reached the village at about 9.30 a.m. and was told by the deceased  

not  to  take  the  tanker  to  his  well,  as  planned  as,   the  appellants  had  

obstructed  the  passage  in  that  direction.  The  tanker  was  accordingly  

brought to its destination by some other route by Nana Saheb. Nana Saheb  

and   Ashok,  thereafter,  went  to  police  station  Shioor  for  lodging  a  

complaint with respect to the behaviour of the appellants and while they  

were returning from the police station they were waylaid by the appellants,  

Nivrutti armed  

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with  an  iron  rod  and  all  the  others  with  sticks.   They  also  attacked

Nanasaheb with their weapons on which he became unconscious and fell  

to the ground.  He was, thereafter, removed  to the hospital by some of the  

witnesses  and  an  FIR  was   lodged  at  Police  Station  Shioor.  On  the  

completion  of  the  investigation  the appellants  were  brought to  trial  for  

offences punishable under Section 302 and 323 read with Section 34 of the  

IPC and were sentenced to undergo life imprisonment for the main offence  

and for three months for the offence udner Section 323/34 of the IPC.

This judgment has been confirmed by the High court in appeal.  

This appeal by way of special leave is before us today.

The  learned  counsel  for  the  appellants  has  raised  only  one  

argument during the course of hearing.  He has submitted that  from the  

evidence on record it was clear that a case under Sec.302/34 IPC was not  

spelt out as there was no intention whatsoever to murder Nana Saheb, as  

the intention  was  only to  cause  him hurt  as  he  was  a  busy body and  

creating difficulties for all and sundry. He has submitted that as per  

the Doctor's evidence all seven injuries were prima facie simple in nature

on non-vital  parts  of  the  body and it  was  only injury No.6  to  the  lung  

detected during the post mortem examination which was the  

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cause of  the death.   He has also  submitted that  from a reading of  the  

occular  evidence it  was  apparent  that  no intention to cause death was  

made out  and that  the only purpose of  the  appellant  was  to teach  the  

deceased  a  lesson  for  the  purpose  of   correcting  his   behaviour.  The  

learned counsel has also relied upon (1973) 3 SCC 466 (Ram Lal vs. Delhi  

Admn.) and (2002) 7 SCC 33 (Bhima @ Bhimrao Sida Kamble and Others  

vs. State of Maharashtra) in support of his case.   

The  learned  counsel  for  the  respondent-State  has,  however,  

submitted that the evidence of five eye witnesses had uniformly made out

a case of murder and as the appellants had tried to restrain and obstruct  

the removal of Nanasaheb  to the hospital or to the police station to lodge  

a report after he had been injured,  the intention on the part of the accused  

was  writ  large.   He has also submitted that  the animosity between  the  

parties stood proved from the criminal and other litigation that had ensued  

between them and which was the motive for the incident that happened on  

the crucial day.  He has also submitted that the nature of the injury was a  

sine qua non for determining the nature of offence  and the intention on  

the part  of  the  accused  was   a  secondary consideration.   The  learned  

counsel has relied on Virsa Singh vs. State of Punjab  1958 SCR 1495 for  

this assertion.

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We have heard learned counsel for the parties and gone through

the record.  We find from the evidence that the  appellant Nivrutti alone  

was armed with an iron rod and the others were armed with sticks.  We  

have also gone through the post- mortem report and observe the following  

injuries on the dead body:

“1.Contused abrasion over right lateral  aspect  of neck inferior  to  right angle of Mandible, size ½ cm, ½ cm blackish discolouration,  contused abrasion over left side of chin of the size ½ cm. Floor was  brownish, scap present.

2 Imprint  type  of  contusion  over  right  thigh  anteriorly,  two  in  number, blackish discolouration, size 10 x 2-1/2 cm. Each.

2 Type  of  contusion  over  left  leg,  posterior  laterally,  three  in  number, size 55 x 2-1/2cms., 8 x 2-1/2 cm., 11x2/1/2cm. Respectively  blackish discolouration:

4 Contusion  over  left  knee,  size  12x4  ½  cm.  With  blackish  discolouration:

4 Imprint type of contusion over left thigh, size 6 x 2-1/2 cm.

6 Imprint  type of  contusion  over right  scapular  region of  back,  blackish size 7x1-1/2 cm.

7 Imprint  tyupe of contusion over black,  obligque with  blackish  discolouration, size 23 cm x 2-01/2 cm.

7 Imprint type of contusion over left scapular region extending to  left arm, blackish discolouration, size 17 x 2-1/2 cms.”

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Doctor Salunke PW.8, in his deposition stated that injuries Nos.1-5 were  

simple and 6-8 would also be simple in normal circumstances,  but  injury  

No.6 which was on the Scapular region, had apparently caused an internal  

injury on the lung which was the cause of death. He clarified that except  

the internal injury below injury No.6 which was the cause of death, all the  

injuries  were  simple  and  on  non-vital  parts  of  the  body.  It  is  also

significant that there is no evidence on record to indicate as to who was  

the author of this injury as omnibus allegations have been made against  

all the appellants.  

Some  argument  was  raised  by  the  learned  counsel  for  the  

respondent  State  that  the  intention  on  the  part  of  the  appellants  was  

something much more than a mere intention to cause hurt as  (after the  

injuries had been caused),  they had obstructed the removal of the injured  

to the hospital and the evidence of Ashok and other PWs was clear and  

explicit on this aspect.  We find this assertion to be of no merit.  We see  

from a reading of the judgment of the High Court that the story with regard  

to the alleged  restraint and obstruction has been disbelieved,   as this  

story had not been given in the police  statements and  was  a  glaring  

improvement during the trial.

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The learned counsel for the respondent has, however, brought to  

our notice the evidence of PW.2 Zumberbai and PW.3 Rajender Kashinath  

Jaagdale and submittd that these two witnesses had categorically and at  

every stage and without any contradiction supported the story with regard  

to  the  obstruction.  We  have  gone  through  the  evidence  of  these  two  

witnesses  very carefully with  the help of  learned  counsel  and find that  

these two witnesses also had not made any mention with regard to this  

matter in their statements under Sec.161 of the Cr.P.C. and the evidence in  

Court  on this  aspect  was  also  (as in  the case  of  the  other witnesses  

mentioned by the High Court),  a glaring improvement.  The evidence of  

PW.2  and  PW.3  also,  therefore,  does  not  advance  the  case  of  the  

prosecution.

We have also gone through the judgment cited by the learned

counsel.  In Ram Lal vs. Delhi Admn. (Supra) a Bench of this Court laid  

down  the  broad principle  that  where  several  accused  armed with  non-

lethal  weapons  with  the  common  intention  of  causing  grievous  hurt  

caused the death of an individual,   the matter would fall within Sec.325 of  

the IPC and not under Sec.302. In  Bhima @ Bhimrao Sida's case  (supra)  

this is what this Court had to say in para 9:

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“When a large number of persons were armed only with sticks or  pelted stones which  they could find anywhere  either  near  the  fields  on  or  their  way  and  it  was  not  established  as  to  who  specifically  attacked  whom,  it  is  not  clear  as  to  whether  the

intention  was  to  cause  death.   It  is  more  probable  that  the  intention was to give a hard beating only.  Even if we accept the  case that the deceased Vithal was pursued right up to the wada,  the object of the mob was to teach him a stern lesson who is  said to be a bully in the village.  In the circumstances and in the  light of evidence, we must hold that the reasonable inference to  be drawn  is  that  the common object  was  to commit  offences  under Section 323 and Section 325 read with Sections 147/149  IPC and not under Section 302 read with Section 149 IPC.  The  trial Court as well as the High Court appear to have lost sight of  crucial aspects.”

We find that the facts of the case before us today are largely akin  

to the facts in  Bhima's case.  In fact the present case is somewhat on a  

better footing as the evidence in the cited case was that after causing the  

initial injuries on the person of the deceased, the accused  had pursued  

the deceased right up to the Wada.  We also find that in both the afore  

cited cases some of the injuries had been caused on vital parts of the body  

such as the head.  In the present matter we observe that there is no injury  

on any vital part of the body, there is no evidence as to who had caused  

injury No.6 and that the story with regard to the obstruction put in the way

of Nanasaheb's removal from the site is  not borne out by the prosecution  

evidence and in any case has been disbelieved even by the High Court.  

We,  

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however, feel that as one of the appellants Nivrutti, had been armed with  

an  iron  rod,  the  present  matter  would  fall  within  the  ambit  of  Section  

326/34  of  the IPC.  We have also  considered the judgment cited  by the  

learned counsel for the respondent  i.e.  Virsa Singh's case (supra) where  

the question posed was as to whether one injury inflicted in the abdomen  

would  make  the  matter  fall  within  Sec.302  or  304  Part-I.   It  is  in  this  

connection that the observation was  made that  the nature of  the injury  

alone should be looked at and not the intention. In any case Virsa Singh's  

judgment has been reconsidered and explained in several other judgments

and the effect thereof has been watered down substantially.   

We, accordingly, partly allow this appeal, set aside the conviction  

of the appellants under Sec.302/34 IPC and alter it to one under Sec.326/34  

IPC and reduce the sentence to 5 years R.I.; the  default clause and the  

conviction under Section 323/34 of the IPC  to remain as it is.

                     .................J.          (HARJIT SINGH BEDI)

.................J.                                      (J.M. PANCHAL) New Delhi, July 29, 2009.