http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (crl.)  616 of 2007

PETITIONER: Sheik Rafi

RESPONDENT: State of Andhra Pradesh & Anr

DATE OF JUDGMENT: 24/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Crl.) No.  5952 of 2006]

S.B. SINHA, J.

       Leave granted.

       Appellant herein and the deceased said Shaik Baji were brothers.    PW-3 (Abdul Munaff) and PW-4 (Shaik Abdul Ghouse) were also brothers.    PW-2 is the mother of the appellant and the deceased.   They are resident of  village Nandula Peth, in the town of Tenali in the State of Andhra Pradesh.    The family was owner of a shopping complex.   Deceased was running his  pump repairing business in one of the shop rooms situated at the first floor  of the said Complex.    Deceased was allegedly insisting for partition of the  joint property.   In the morning of the fateful day i.e. 9.11.1998, he allegedly  picked up a quarrel with PW-2 in regard to his share in the property.  On  refusal to do so, she was allegedly assaulted.   A quarrel also allegedly took  place by and between the deceased and the appellant at about 5 p.m. on the  said day.  Appellant chased him with a knife.   The deceased ran and came in  front of the casualty room of the hospital at Tenali,  whereafter Appellant is  said to have caught and inflicted injuries by stabbing him indiscriminately.     

       PW-1 (P. Subbarao), a constable working in Pattabipuram Police  Station,  while going to attend to his duties, found some people gathered on  the street, and saw the appellant stabbing the deceased with a knife.  A  driver attached to the Sub-Divisional Police Officer named Konduri Sridhar  (PW-7) also came to the scene of occurrence.   PW-1 caught hold of the  appellant, and snatched away the knife from his hands.   Officers of the  Police Station were informed by Sridhar (PW-7) about the incident.  

        The deceased, was treated by the casualty staff of the hospital.  However, PW-1 came to learn there about his death  about 10 minutes.    Thereafter, Shri K. Venkatarao, PW-15, In charge of the Tenali Police  Station, thereafter visited the place of occurrence.  Appellant was handed  over to him and a written complaint was lodged by PW-1.   The knife with  which the offence was committed was also seized.  In regard to the said  occurrence, the First Information Report was recorded at about 6.30 p.m.    

       Upon completion of investigation, the Investigating Officer submitted  the chargesheet and the appellant was ultimately put to trial.   He was found  to be guilty of commission of an offence under Section 302 of the Indian  Penal Code.   

       The incident was also witnessed inter alia by PW-5 ( Kota Bosu Babu)  and PW-7 (Konduri Sridhar).   Their presence at the scene of occurrence and  being eye witnesses thereto is not in dispute.  Brothers of the appellant as  also PW-3 and PW4 and also their mother PW-2, however, did not support  the prosecution case,  the reason wherefor, is obvious.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

       The High Court also found the appellant guilty of commission of the  said offence and dismissed his appeal.  

         This Court had issued a limited notice in regard to the nature of the  offence.

          Mr. P.H. Parekh, learned counsel appearing on behalf of the  appellant would submit that the appellant cannot be said to have committed  an offence under Section 302 of the Indian Penal Code, but only under Part- II of Section 304 thereof.   Backdrop of the events for the purpose of  determining the nature of the offences, it was urged, must be kept in mind  and in this behalf emphasis been laid on the fact that the deceased picked up  quarrel with his mother in the morning and with the appellant in the evening  in regard to partition of the property. It was also pointed out that the  deceased was a rowdy element.     

       The learned counsel appearing on behalf of the State, however, would  support the impugned judgment.    

       The short question which arises for consideration before us, therefore,  is as to whether in the facts and circumstances of this case, the appellant was  guilty of commission of an offence only under Part-II of Section 304 of the  Indian Penal Code and not Section 302 thereof.    

       Although, in a given case, the number of injuries on the person of the  deceased may not be the determinative factor, the same, however, is  relevant.   19 injuries have been inflicted by the appellant, as had been found  by the autopsy surgeon, which are ; 1.      Incised wound present 5" above the front of the  right wrist size of 1" x =" x <" Horizontal and  Antemortem.

2.      Incised wound present 2" below the right elbow  on back side in a size of 5" x 2" x =" horizontal  antemortem.

3.      Incised wound present 2" below the right elbow  joint front side of 2" x 1" x 1/2" oblique  antemortem.

4.      Incised wound present upper half of right arm  insize of 2" x 1" x 1" horizontal antemortem.

5.      Incised wound present in right Epigastric region  in a size of 2" x =" x =" oblique antemortem.

6.      An incised wound present 2" below the right  knee 4" x 2" x 2" horizontal antemortem.

7.      Incised wound present middle of the back of  right thigh 4" x 2" x 2" vertical antemortem.

8.      An incised wound present right lumbar region  3" x 2" x 1" oblique antemortem.

9.      An incised wound present posterior aspect of  right knee joint 2" x2" x 1/2" vertical antemortem.

10.     An abrasion is present on left hand thumb 1" x  1/2" antemortem.

11.     An incised wound present in between left index  and middle finger 2" x 2" antemortem.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

12.     An incised wound present medial aspect of  middle left forearm 1" x 1" horizontal antemortem.

13.     An incised wound present back of the left  shoulder 2" x 1/2" x 1/2" antemortem.

14.     Incised wound present left side of the chest  above and nipple 1"x1/2" x2 horizontal  antemortem penetrating type.

15.     Incised wound present below left axilla >" x  1/2" x 1/2" vertical.

16.     Incised wound present left epigastric region  with  protrusion intestines  antemortem.

17.     An incised wound present left inguinal region  3" x 1" x 2" vertical antemortem.

18.     An incised wound present lower half of left  thigh 3" above left knee.  4" x 2" x 1" vertical  antemortem.

19.     Incised wound present lateral aspect of left  thigh 1" x 1/2" x 1/2" vertical antemortem.  "

                Nature of the injuries and the different parts of the body of the  deceased whereupon the same were inflicted in our opinion clearly go to  show that the knife was indiscriminately used.   Injuries had been caused to  vital parts of the body of the deceased namely chest, abdomen.  His lung and  lever were also damaged.  

       Deceased evidently intended to cause grievous injuries to the  deceased.   He put resistance thereto as far as possible and in the process  suffered injuries on his arms, finger and thigh.

       The deceased was unarmed.  He was merely resisting infliction of  injuries on him by a knife and in the process the appellant also received  minor injuries and that too on his thigh, palm and shoulder.   Such minor  injuries received by the appellant were not required to be explained by the  prosecution.

       Incident did not take place at or near the house of the appellant.    Deceased might have picked up quarrel with his mother in the morning, but   the same by itself cannot be treated to be relevant for the purpose of  determining the nature of the offence.   Distinction between Section 299 and  Section 300 of the Indian Penal Code is well known.   What would amount  to a "murder" is stated in Section 300 of the Indian Penal Code.   What is  necessary for attracting the said provision inter alia would be that if the  person committing the act, knew that it is so imminently dangerous that it  must in all probability cause death or such bodily injury as is likely to cause  death.   

       Exceptions to the said rule would be attracted only when the offender  is deprived of his power of self control which is caused by grave and sudden  provocation by the deceased or any other person, or by mistake or accident.    Exceptions appended to Section 300 are subject to the provisos contained  therein.   Vivian Bose, J. in  Virsa Singh v State of Punjab [AIR 1958 SC  465], stated the law thus; "(12) To put it shortly, the prosecution must prove  the following facts before it can bring a case under  S. 300, "thirdly";  First, it must establish, quite objectively, that a  bodily injury is present;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

---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 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.  (13) Once these four elements are established by  the prosecution (and, of course, the burden is on  the prosecution throughout) the offence is murder  under S. 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. "

       In Vadla Chandraiah v State of A.P. [2006 (14) SCALE 108], this  Court stated the law, thus, "13.  The issue as to whether the case would fall  under Section 302 IPC or under Section 304 Part-II   thereof or not should be judged keeping in view  the aforementioned factual backdrop.   For the said  purpose, the term ’evidence brought on records’  must be considered in its entirety."

       See also Chandrappa & Ors. v State of Karnataka [2007 (3) SCALE  90].

       Each case, therefore, must be judged on its own facts.     

       Strong reliance has been placed by Mr. Parekh on Sukhbir Singh v  State of Haryana [(2002) 3 SCC 327], wherein this Court held as under:-

"The High Court has also found that the  occurrence had taken place upon a sudden quarrel  but as the appellant was found to have acted in a  cruel and unusual manner, he was not given the  benefit of such exception.   For holding him to  have acted in a cruel and unusual manner, the High  Court relied upon the number of injuries and their  location on the body of the deceased.   In the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

absence of the existence of common object, the  appellant cannot be held responsible for the other  injuries caused to the person of the deceased.   He  is proved to have inflicted two blows on the person  of the deceased which were sufficient in the  ordinary course of nature to cause his death.  The  infliction of the injuries and their nature proves the  intention of the appellant but causing of such two  injuries cannot be termed to be either in a cruel or  unusual manner. All fatal injuries resulting in  death cannot be termed as cruel or unusual for the  purposes of not availing the benefit of Exception 4  of Section 300 IPC. After the injuries were  inflicted and the injured had fallen down, the  appellant is not shown to have inflicted any other  injury upon his person when he was in a helpless  position.   It is proved that in the heat of passion  upon a sudden quarrel followed by a fight, the  accused who was armed with bhala caused injuries  at random and thus did not act in a cruel or unusual  manner."

       Apparently the said decision was rendered on its own facts.   We may,  however, notice that it came to be considered in Vadla Chandraiah (supra),  The distinctive feature herein are the injuries which have been caused in a  cruel and unusual manner.  Apart from the purported quarrel picked up by  the deceased with his mother, there is no other immediate provocation which  can be said to be the immediate cause leading to the assault.  The deceased  was chased and the injuries have been inflicted on a main road and that too  before a hospital.   It was caused in the evening before a large number of  persons.   He could have been caught and disarmed only by a constable.    Evidently others including PW-5 and PW-7 who had been witnessing the  occurrence, did not even dare to do so.

       Nineteen injuries caused in quick succession  cannot be  said to have  been caused as a result of grave and sudden provocation.   The very fact that  so many injuries were caused in quick succession and particularly where the  deceased being unarmed and in a helpless situation, is sufficient to indicate  that Sec. 300 "Thirdly" is attracted in this case.

       Reliance has also been placed by Mr. Parekh on Ram Swarup and  Others v State of Haryana etc. [1993 Supp. (4) SCC 344].   That was a case  where a plea of right of self defence was raised.  In that case a fight between  two parties took place.   Keeping in view the evidences brought on record,  this Court opined that the High Court adopted a wrong approach for judging  the case of bilateral clash in regard to the question as to which party was the  aggressor.     Having regard to the nature of defence raised therein, viz. right  of self defence, number of injuries were found to be not a relevant factor for  determination as to whether prosecution party or the accused party was the  aggressor.  This Court merely laid down that the question must be  determined on the factual matrix of each case.   The ratio of the said  decision, therefore, is clearly not attracted.

       We, therefore, are of the opinion that the prosecution has brought  materials on record to prove the charge of murder against the appellant.                  Therefore, there is no merit in this appeal.  It is dismissed accordingly.