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CASE NO.: Appeal (crl.)  299 of 1997

PETITIONER: State of Rajasthan                                               

RESPONDENT: Dhool Singh                                              

DATE OF JUDGMENT: 18/12/2003

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.

       On 15.7.1989 Magan PW-1 lodged a complaint with Police  Station Pahada alleging that on the previous day at about 9 p.m. the  respondent herein \026 Dhool Singh \026 had caused serious injuries with  a sharp-edged weapon to Amar Singh son of Shankar Singh in a  field known as Pahada which incident according to the complaint  was noticed by Ramesh PW-4. The attack in question was alleged to  be due to the dispute between the respondent herein and deceased  Amar Singh as to the right of the deceased to graze his cattle on the  land belonging to the respondent. It is based on the said complaint  that after investigation the Police of Pahada Police Station filed a  chargesheet against the respondent herein for offences punishable  under section 302 IPC as also under sections 4 and 25 of the Arms  Act. Learned Sessions Judge-II, Udaipur, in Sessions Case No.58 of  1989 after trial found the respondent herein guilty of the offences  charged against him and sentenced him to undergo life  imprisonment and a fine of Rs.200 for an offence under section 302  IPC, in default to undergo simple   imprisonment for a period of 15  days. He also found the respondent guilty of offence punishable  under section 4 read with 25 of the Arms Act and awarded  punishment of 6 months’ simple imprisonment with a fine of Rs.200  in default to undergo simple imprisonment for 15 days.         Being aggrieved by the said judgment and conviction by the  trial court the respondent herein preferred an appeal before the High  Court of Judicature at Rajasthan at Jodhpur. In the said appeal the  High Court accepting the prosecution case as to the incident in  question and the role of the respondent herein in causing death of the  deceased came  to the conclusion that the offence alleged against the  respondent would not fall under section 302 IPC but would come  under section 304 Part II IPC, hence modified the conviction to the  one under section 304 Part II IPC and held that the sentence already  undergone would be sufficient. In regard to the offence under  section 4 read with section 25 of the Indian Arms Act, it agreed with  the findings of the trial court and modified the said sentence also to  the period already undergone but directed the respondent to pay a  fine of Rs.500 in default to undergo one month imprisonment.         It is against the said judgment of the High Court  modifying  the conviction and sentence, the State of Rajasthan is in appeal  before us. This appeal came up for final hearing on 13.11.2003 when we  found that the respondent was not represented by any counsel,  therefore, we thought it necessary to appoint an amicus curiae to  assist the Court in this appeal, hence we requested Mr. N.C. Kochar,  learned senior counsel to act as an amicus curiae which he readily  accepted.

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In view of the fact that the finding of both the courts below as  regards the incident in question leading to the death of Amar Singh  has become final, there being no challenge to the same from the  respondent, the only question that arises for our consideration is  whether the High Court was justified in coming to the conclusion  that on facts of this case the prosecution has failed to establish the  case against the respondent that it falls under section 300 IPC  requiring a punishment provided for in section 302 IPC or the act of  the respondent is such that it would attract only a punishment  provided under section 304 Part II IPC as held by the High Court. As stated above it is the finding of two courts below that due  to the injury caused by the respondent to the deceased with a sword  measuring about 3 ft. in length the deceased suffered an injury on his  neck which injury was described by PW-10 the doctor who  conducted the post mortem as follows :

"Incised wound 9.0 cm x 3.0 cm x 2.5 cm on  transversally placed on left side of neck Thyroid  Cartilage is cut. Transversally on left side  sternoclinoid muscle External Jugalar   Vein  Internal Jugalar Vein and common carotid Artery  cut completely.

Margin of wound is clear cut deep staining  Gaping and swelling of surrounding tissue. Wound  is Ante Mortem in nature."

The cause of death according to this witness was "cut on the  neck and the excess bleeding and the heart failure."  The trial court on this aspect of the case came to the  conclusion that the prosecution has proved that the respondent  herein knowing well the consequences of his act, committed the  offence of killing Amar Singh, while doing so, came to the  following conclusion :

"Thus, by perusing the above analysis, it is  proved that the prosecution has proved the issue  Point No.2 wherein the accused Dhool Singh well  knowing has committed the offence of killing  Amar Singh. The accused had attacked on the neck  of the deceased. He knew very well that neck is  very tender place and has applied the sharp  weapon for such offence. Therefore, it has to be  agreed that well knowing with an open mind that if  he attacks the deceased with the motive of killing,  he should commit it by attacking the deceased with  a sword for killing him. Therefore, the prosecution  has been successful in proving the Issue point  No.2."

On the above basis it found the respondent guilty of an  offence punishable under section 302 and consequently awarded  the  lesser of the two sentences provided under the said section by  imposing life imprisonment. The High Court per contra came tot he conclusion that the act  of the respondent causing injury to the deceased which led to his  death would not be one punishable under section 302 IPC but would  be one falling under section 304 Part II IPC hence modified the  sentence as stated above. While coming to this conclusion the High  Court held that the fact that the accused inflicted only one injury,  suggests that his intention was not to cause death but it was merely  to cause an injury with a sharp-edged weapon. It accepted the  argument addressed on behalf of the respondent that Exception I to  section 300 would not apply to the facts of the case because the  respondent did not act with an intention of causing death. For this

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purpose it relied on the fact that the respondent had inflicted only  one blow on the deceased. It also came to the conclusion that the  respondent could not even have the intention to cause such bodily  injury which he knew to be likely to cause the death of the deceased.  This finding of the High Court was purportedly based on the  statement of the doctor who according to the High Court had not  stated that the injury actually found on the neck of the deceased was  sufficient in the ordinary course of nature to cause death. The High  Court proceeded to come to the conclusion that in the absence of  medical evidence to the above effect it would be unsafe to hold that  the injury actually found on the neck of the deceased was sufficient  in the ordinary course of nature to cause death, hence it modified the  conviction from section 302 to 304 Part II, IPC. Having heard learned counsel for the parties and examined the  records of the appeal we are unable to agree with the finding of the  High Court both in law and on facts. The observations of the High  Court that the doctor in this case has not spoken about the fact that  the injury caused by the respondent would in the ordinary course be  sufficient to cause death, is contrary to the actual evidence of PW-10  the doctor which part of the evidence of the doctor we have  extracted hereinbelow :  "In my opinion, the cause of the death was  due to the incised wound cut on the neck and the  excess bleeding and the heart failure."

From the above, it is clear that the opinion of the doctor as to  the cause of death was the incised cut wound on the neck which led  to the excess bleeding and heart failure. This evidence has been  improperly construed by the High Court as  there being no opinion  of the doctor in regard to the cause of death, therefore, as stated  above, this finding of the High Court is contrary to the medical  evidence. In regard to the finding of the High Court that the prosecution  has not even established that the respondent herein had acted with an  intention of causing death of the deceased we must note that the  same is based on the fact that the respondent had dealt a single blow  which according to the High Court took the act of the respondent  totally outside the scope of Exception I to section 300 IPC. Here  again we cannot agree with the finding of the High Court. The  number of injuries is irrelevant. It is not always the determining  factor in ascertaining the intention. It is the nature of injury, the part  of body where it is caused, the weapon used in causing such injury  which are the indicators of the fact whether the respondent caused  the death of the deceased with an intention of causing death or not.  In the instant case it is true that the respondent had dealt one single  blow with a sword which is a sharp-edged weapon measuring about  3 ft. in length on a vital part of body namely the neck. This act of the  respondent though solitary in number had severed sternoclinoid  muscle, external jugular vein, internal jugular vein and common  carotid artery completely leading to almost instantaneous death. Any  reasonable person with any stretch of imagination can come to the  conclusion that such injury on such a vital part of the body with a  sharp-edged weapon would cause death. Such an injury in our  opinion not only exhibits the intention of the attacker in causing the  death of the victim but also the knowledge of the attacker as to the  likely consequence of such attack which could be none other than  causing the death of the victim. The reasoning of the High Court as  to the intention and knowledge of the respondent in attacking and  causing death of the victim, therefore, is wholly erroneous and  cannot be sustained. Mr. Kochar, learned senior counsel as an amicus curiae  however, supported the judgment of the High Court by contending  that the prosecution has failed to establish the fact that the  respondent has caused this injury with a sword measuring 3 ft. as  stated above. He pointed out that though a sword was said to have

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been recovered from the respondent the same was not produced in  the court nor was it established that it contained blood stains nor has  any witness identified the said weapon. In such a situation, therefore,  we cannot rely upon the fact that the respondent has used a  dangerous weapon. We are unable to accept this argument of the  learned counsel for the purpose of deciding whether the injury in  question was caused by a sword measuring 3 ft. as alleged by the  prosecution or by some other weapon. The doctor who was  examined to prove the injuries on the deceased has stated that the  injury in question was an incised cut wound causing extensive  damage to various blood vessels in the neck, leading to excess  bleeding. In our opinion, such an injury cannot but be caused by a  sharp edged weapon; be it a sword as alleged by the prosecution or  some other sharp-edged weapon. Assuming that the prosecution has  not established that this injury was caused by a particular sword as  alleged by it, it is clear that this injury has been caused by a sharp- edged cutting weapon; be it a sword or otherwise. The fact that the  respondent has caused this injury is accepted by both the courts  below which finding is not under challenge before us therefore it  goes without saying that the respondent has caused this injury with a  sharp-edged weapon hence the factum of not proving that those  injuries were caused by a particular sword measuring 3 ft. would not  in any manner prevent us from coming to the conclusion that the  injuries were caused by the respondent with such a weapon which  causes incised cut injuries, therefore, the argument of learned  counsel that non-production of the weapon would not establish an  offence under section 302, cannot be accepted. Learned counsel then  pleaded that according to the evidence of the doctor the cause of  death was not only due to the injury inflicted by the deceased but  was the cumulative effect of bleeding and heart failure, therefore, it  is not possible to come to the conclusion that a single injury caused  by the respondent could be the cause of death of the victim. We are  unable to accept this argument. The cause of death as explained by  the doctor is primarily due to the injury caused by the respondent.  Bleeding and the consequential heart failure are the effects of such  injury, therefore, they cannot be treated as different causes of death.  Learned counsel then submitted that according to the doctor, if  proper medical care were to be provided, the injured could have   survived. This, in our opinion, is a hypothetical answer given by the  doctor and is not something which is applicable to the facts of this  case. Even otherwise we are not in agreement with the views  expressed by the doctor that with the injury like the one suffered by  the victim, in the normal course he could have survived. Section 300  does not contemplate such a situation of miraculous survival. On the  contrary, it contemplates an ordinary situation and that is why the  Legislature had advisedly used the words : "bodily injury as the  offender knows to be likely to cause death." (emphasis supplied).  Therefore, from an understanding of the legislative intent of section  300 IPC, in our opinion, a culpable homicide becomes murder if the  attacker causes an injury which he knows is likely to cause death  and, of course, consequent to such injury, the victim should die. In  the instant case, all these ingredients have been established by the  prosecution beyond all reasonable doubt. Learned counsel then  relied on some judgments of this Court in Toran Singh v. State of  M.P. [2002 6 SCC 494], Ramchandra Ohdar v. State of Bihar [1999  9 SCC 97] and The State of Madhya Pradesh v. Kalu Ram & Anr.  [JT 2002 9 SC 416] to support his contention that the injuries caused  by the respondent in this case would attract only a punishment under  section 304 Part II IPC and not one imposable under Section 302. In the case of Ramchandra Ohdar (supra) this Court noticed  that the medical evidence was silent about the nature of injury  caused by the appellant therefore there being no material to assess  the nature of injury this Court came to the conclusion that the  offence in that case would fall under section 326 IPC. But that is not  the fact of this case where we have come to a definite conclusion

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about the nature of injury. As could be seen from the record the  intention and the knowledge of the respondent becomes clear which  would only indicate an offence punishable under section 302 and  none else therefore the above judgment in Ramchandra’s case  (supra) does not help the cause of the respondent. In the case of Kalu Ram (supra) this Court noticed the fact  that when the deceased suddenly came to intervene and save his  brother, one of the accused gave a katar blow on the stomach  therefore this Court on facts of that case came to the conclusion that  because of the suddenness of the events and the intervening factor of  the deceased, it was difficult to come to the conclusion that the blow  in question which was on the stomach cannot be treated as an act  falling under section 300 and would come under the illustrations  found in section 300 to take it out of the purview of section 302 IPC.  We do not think the said case decided on facts also would apply to  the case in hand. Of course, there is one similarity therefore even  this case would not in any manner assist the respondent in  supporting the judgment of the High Court. The judgment of this  Court in Toran Singh’s case (supra) was cited by learned counsel  to  point out that ordinarily this Court does not disturb or upset the  concurrent findings recorded by the trial court as affirmed by the  High Court entering into the domain of appreciation of evidence.  But from the very judgment it is noticed that where the findings of  the court or courts below are contrary to the evidence on record, it is  permissible for this Court to interfere under Article 136 of the  Constitution of India. In this case, it is to be noticed first of all that  there is not a concurrent finding regarding the offence committed by  the respondent by two courts below. The trial court rightly found the  respondent guilty of an offence punishable under section 302 and the  High Court on an erroneous appreciation of facts and law converted  the said conviction to one under section 304 Part II IPC which, for  the reasons stated hereinabove, we have held is not justifiable,  therefore, this decision also does not help the respondent.      Those are the decisions rendered on the facts of those cases  and would not help the respondent in supporting the judgment of the  High Court on the facts of this case. Before concluding, we must refer to a disturbing tendency  noticed by us very often in some of the judgments impugned before  this Court. As in this case in some appeals, we find the appellate or  revisional courts reduce the sentence while maintaining the  conviction to sentence already undergone without even noticing  what is the period already undergone. The courts should bear in  mind that there is a requirement in law that every conviction should  be followed by an appropriate sentence within the period stipulated  in law. Discretion in this regard is not absolute or whimsical. It is  controlled by law and to some extent by judicial discretion,  applicable to the facts of the case. Therefore, there is a need for the  courts to apply its mind while imposing sentence. In the instant case,  the court while convicting the respondent for an offence punishable  under Section 304 Part II of IPC which has maximum sentence upto  10 years thought it fit to impose the sentence already undergone  without even applying its mind as to why it should be less than 10  years or for that matter what is the sentence already undergone. We  seriously deprecate such misplaced generosity on the part of the  courts while imposing sentence.     For the reasons stated above this appeal is allowed, the  judgment and order of the High Court is set aside and that of the trial  court restored. The respondent will undergo the remainder of the  sentence imposed by the trial court.     The appeal is allowed.