Himachal Pradesh High Court
Prem Singh vs State Of H.P on 21 June, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
Neutral Citation No. ( 2024:HHC:3771 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 17 of 2022 Reserved on: 16.05.2024 .
Date of Decision: 21.06.2024
Prem Singh ...Appellant.
Versus
State of H.P. ..Respondent.
Coram
Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Appellant : Mr. Sahil Malhotra, Advocate.
For the Respondent/State : Mr. Sanjay Dutt Vasudeva, Deputy Advocate General.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 16.09.2021, passed by learned Additional Sessions Judge-II, Solan (learned Trial Court) vide which the appellant (accused before learned Trial Court) was convicted of the commission of an offence punishable under Section 302 of Indian Penal Code (in short 'IPC') and order dated 29.09.2021, vide which he was sentenced to undergo imprisonment for life and pay a fine of ₹20,000/- and in case of default of payment of fine to further undergo rigorous imprisonment for six months. (Parties shall 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 21/06/2024 20:35:22 :::CIS 2hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal .
are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 302 of IPC. It was asserted that an intimation was received in the police station on 31.03.2015 from CHC, Kunihar that one woman was brought in an injured condition. An entry (Ext. PW3/A) was recorded in the Police Station. SI-Vijay Kumar (PW18), HC-Girish, Constable-Bal Chand (PW13), and LC Kiran went to CHC Kunihar for verification of the information. They found Sonu Devi (since deceased) admitted to the hospital. SI Vijay Kumar filed an application (Ext. PW18/A) for obtaining the MLC of the victim. Dr. Abhishek Sharma (PW19) conducted her medical examination and found that there was a sharp weapon injury on the skull bone on the right side of the temporal region. The patient was unconscious and unfit to make the statement. He referred the patient to IGMC, Shimla for further management and issued the MLC (Ext. PW19/A). Shakeel Ahmed (PW12) made a statement to Vijay Kumar stating that he and other workers were working with Om Prakash-Contractor (PW15) for ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 3 peeling the khair wood. Accused Prem Singh and his family members were also employed by Om Prakash. The accused resided at Baniya Devi in Kunihar in a tent with his family members. The .
informant-Shakeel Ahmed was peeling the khair wood on 31.03.2015 at about 6:00 pm. Victim Sonu Devi, wife of the accused, was also working on the spot. The accused went to Sonu and dragged her towards his tent. He picked up an axe kept near the tent and inflicted an injury on her head. The accused ran away towards Kunihar. The informant ran towards the tent, where Sonu Devi was lying unconscious. The axe was still embedded in her head. Shakeel Ahmed removed the axe. The daughters of the victim were also present. The informant brought the victim Sonu Devi to Kunihar Hospital for treatment. The statement (Ext. PW6/A) was reduced into writing and was sent to the Police Station, where FIR (Ext.PW6/B) was registered. SI-Vijay Kumar conducted the investigation. He went to the spot and prepared the site plan (Ext.
PW18/B) as per the spot position. He took the photographs (Ext.
PW18/C1 to Ext. PW18/C5). He lifted the blood stains lying on the soil and wood on the spot with the help of cotton. The cotton containing blood stain was sealed in a plastic container with seal 'H'. It was seized vide memo (Ext. PW15/A). Shakeel Ahmed ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 4 handed over the axe lying on the spot. SI Vijay Kumar prepared the sketch of Axe (Ext. PW12/B) and sealed the axe in a parcel with 9 seals of seal 'H'. The axe was seized vide memo (Ext. PW12/A). The .
informant handed over a blood-stained Dhattu and Dupatta, which were put in a parcel and the parcel was sealed with 9 seals of seal 'H'. It was seized vide memo (Ext. PW12/C). Sample seals (Ext .PW12/D & Ext. PW12/E) were taken on separate pieces of cloth and the seal was handed over to witness Om Prakash after the use.
The accused was arrested on 01.04.2015. Vijay Kumar received information from IGMC, Shimla that the victim Sonu had died. He conducted the inquest on the dead body and prepared the reports (Ext. PW1/A and Ext. PW1/B). He filed an application (Ext. PW14/A) for conducting the post-mortem examination of the dead body. Dr. Dhruv Gupta (PW14) conducted the post-mortem examination of the dead body and found that the cause of the death was septicemia shock leading to multiple organ failure. He preserved the blood and the viscera. He issued the report (Ext. PW14/B). The blood sample and viscera were handed over to the police official accompanying the dead body. SI-Vijay Kumar took the photographs (Ext. PW18/C6 to Ext. PW18/C9) of the dead body. He filed an application (Ext. PW18/D) for recording the statements of ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 5 Sapna and Bipna, daughters of the victim and accused. Learned Judicial Magistrate, First Class, Arki recorded their statements (Ext. PW1/C and Ext. PW9/A). Vijay Kumar also filed an application .
(Ext. PW18/E) to record the statement of Shakeel Ahmed. Learned Judicial Magistrate, First Class, Arki recorded his statement (Ext.
PW12/F). The statements were also videographed and the video recording was transferred to the CD (Ext. PW18/F). Vijay Kumar filed an application (Ext. PW10/A) before Halka Patwari for issuing the documents relating to the spot. Heera Singh (PW10)-Patwari -
issued a copy of Aks Shajra Latha (Ext. PW10/B) and Jamabandi (Ext. PW10/C). These were seized vide memo (Ext. PW10/D).
3. Vijay Kumar filed an application (Ext. PW16/B) for obtaining the treatment and death summary of the deceased. A treatment summary (Ext. PW16/A) was issued. The case property was sent to FSL, Junga for analysis. The results of analysis (Ext. PX and Ext. 'PY') were issued, in which it was shown that human blood was detected on the Axe, Dhattu, and Dupatta, blood lifted from the spot and the DNA profile obtained from the axe matched with the DNA profile obtained from the blood sample of the victim.
The statements of the remaining witnesses were recorded as per their version and after the completion of the investigation, the ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 6 challan was prepared and presented before the learned Judicial Magistrate, First Class, who committed it to the learned Sessions Judge for trial.
.
4. Learned Sessions Judge assigned the case to learned Additional Sessions Judge-II, Solan who framed the charge for the commission of an offence punishable under Section 302 of IPC.
The accused pleaded not guilty and claimed to be tried.
5. The prosecution examined 19 witnesses to prove its case. Sapna (PW1), Bipna (PW9) and Shakeel Ahmed (PW12) are the eyewitnesses. Tara Chand (PW2) is the owner of the land, who proved that he had rented the land to Om Prakash and accused had set up a tent on the land. Constable-Chaman Thakur (PW3) was working as an M.C. in Police Post, Kunihar with whom the case property was deposited and who sent it to Police Station, Arki.
Constable Dalip Kumar (PW4) carried the case property from the Police Post, Kunihar to the Police Station, Arki. LC-Amrita (PW5) carried the case property from Police Station Arki to the Forensic Science Laboratory, Junga. ASI-Jeet Ram (PW6) signed the FIR.
LC-Rekha (PW7) carried the case property from the hospital to the police station. HC-Rakesh Kumar (PW8) was working as MHC with whom, the case property was deposited. Heera Singh (PW10) was ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 7 posted as patwari, who issued the documents of the land. SI-
Kulwant Singh (PW11) prepared the challan. Constable Bal Chand (PW13) carried the rukka from the spot to the Police Station. Dr. .
Dhruv Gupta (PW14) conducted the post-mortem examination of the deceased. Om Prakash (PW15) is the contractor, who had employed the accused, deceased, informant and other persons. Dr Gian Chand (PW16) treated the victim in the hospital. SI-Hari Bhagat Negi (PW17) prepared the supplementary challan. SI-Vijay Kumar (PW18) conducted the investigation. Dr Abhishek Sharma (PW19) conducted the medical examination of the victim.
6. The accused in his statement recorded under Section 313 of Cr.P.C. stated that informant Shakeel Ahmed deposed falsely against him. A quarrel had taken place between him and Shakeel Ahmed because Shakeel Ahmed was alluring Bipna (daughter of the accused). The other witness deposed falsely at the instance of Shakeel Ahmed. He was against the relationship between Shakeel Ahmed and Bipna. No defence was sought to be adduced by the accused.
7. Learned Trial Court held that the testimonies of the witnesses corroborated each other. There was nothing in their cross-examination to show that they were deposing falsely. Two of ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 8 the eyewitnesses were the daughters of the accused and the deceased. The minor contradictions in the testimonies were not sufficient to discard them. The defence version that the victim .
slipped and sustained injuries was not probable. The defence taken in the statement recorded under Section 313 of Cr.P.C. that the accused had enmity with Shakeel Ahmed was not suggested to any person and was an afterthought. Therefore, the accused was convicted and sentenced as aforesaid.
8. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused has filed the present appeal asserting that the learned Trial Court failed to properly appreciate the evidence led before it. The accused had no reason to assault the victim. The investigating officer associated the related persons and no reason was assigned for not associating any independent person. The presence of the victim's daughter on the spot was suspect. The informant was at a distance of about 500 meters from the spot as per his statement and it was not possible for him to see the incident from such a great distance. The victim remained alive for almost 20 days after sustaining injuries. She died due to septicemia and not due to the injuries sustained by her. The negligence of the medical officers in the treatment of the victim ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 9 cannot be ruled out. The victim's daughters were under the influence of Shakeel Ahmed and their testimonies should have been scrutinized with greater care. There was a delay in sending .
the case property to the FSL. The victim had sustained only a single injury and the accused could not have been held liable for the commission of murder. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
9. We have heard Mr. Sahil Malhotra, learned counsel for the appellant/accused and Mr. Sanjay Dutt Vasudeva, learned Deputy Advocate General, for the respondent/State.
10. Mr Sahil Malhotra, learned counsel for the appellant/accused submitted that the prosecution has failed to prove its case beyond a reasonable doubt. The defence taken by the accused that a false case was made at the instance of Shakeel Ahmed is highly probable. The independent witnesses were not examined even though, they were present on the spot. Shakeel Ahmed could not have witnessed the incident from a distance of about 500 meters. He submitted in the alternative that even if the prosecution case is accepted as correct, the same does not constitute murder and will constitute culpable homicide not ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 10 amounting to murder. He relied upon the judgments of Karnataka High Court in Shashirekha versus State of Karnataka, 2020 SCC Online Kar 1538 and Bombay High Court in Shaikh Javed and anr.
.
versus State of Maharashtra, Criminal Appeal No. 730 of 2016 decided on 23.01.2020 in support of his submissions.
11. Mr Sanjay Dutt Vasudeva, learned Deputy Advocate General, for the respondent/State supported the judgment and order passed by the learned Trial Court and submitted that no interference is required with the same. The witnesses cannot be called to be interested as they were related not only to the victim but to the accused as well. The testimonies of the witnesses corroborated each other in material particulars and minor contradictions are not sufficient to discard them. Learned Trial Court had repelled every contention raised before it and there is no infirmity in the judgment and order passed by it. Hence, he prayed that the appeal be dismissed.
12. We have given considerable thought to the submissions and have gone through the records carefully.
13. Informant Shakeel Ahmed (PW12) stated that he was working with Om Prakash-Contractor in the year 2015 with other persons. Prem Singh and his family members were also working ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 11 with Om Prakash. Accused Prem Singh was residing with his family in a tent. The accused and other persons were peeling Khair wood on 31.03.2015 at about 6:00 pm. The accused was scolding his son .
and when the victim resisted him, an altercation started between them. Prem Singh picked up an axe and inflicted a blow on her head. He ran away towards Kunihar. The informant went to the spot and found that the victim was unconscious. He removed the axe from the head of the victim and kept it near the wall. The victim's daughters were also present on the spot. He picked up the victim and took her to Civil Hospital, Kunihar. He informed the contractor and the contractor further informed the police.
14. He stated in his cross-examination that he did not remember the date but the incident occurred at about 6:00 pm. 10- 12 persons were working on the spot. He was working at a distance of half a kilometre from the tent of the accused. Navodaya Vidyalaya and Baniya Devi Village are located near the spot. He denied that no incident had taken place in his presence or that the victim's daughter were not present on the spot.
15. His testimony is corroborated by Sapna (PW1). She stated that she was residing with the accused and her other family members at Baniya Devi, Kunihar. They were engaged in the ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 12 peeling of khair wood. The work was being carried out near her tent. On 31.03.2015, the accused came near the tent and started abusing the victim. He dragged her (victim) towards the tent and .
picked up an axe. He gave a blow with an axe on her head. She shouted for help, on which, Shakeel Ahmed came to the spot, who removed the axe from the head of the victim. He also took the victim to Civil Hospital, Kunihar. She stated in her cross-
examination that the accused was her stepfather. The incident took place at about 5-5:30 pm. She could not tell the number of houses located in the village-Baniya Devi. She admitted that Jawahar Navodaya Vidyalaya was ahead of the village Baniya Devi.
She was not aware of the topography of the area and she had visited the place for a short time before the incident in connection with the work. She had worked for about 3 months with Om Prakash. Shakeel Ahmed was also working as a labourer. The accused had consumed alcohol and he was not discharging his duties. She admitted that the accused called them near the tent.
She denied that her mother slipped and fell on the axe.
16. Bipna Devi (PW9) stated that she, her sister and her parents were employed by Om Prakash to peel the khair wood at Baniya Devi. They were residing in a tent. On 31.03.2015, she, her ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 13 sister and her mother were peeling the wood. The accused called the victim at about 5:30 pm. He started abusing her (the victim).
She and her sister tried to stop the accused. The accused inflicted a .
blow with an axe on the head of the victim and she fell. She cried for help. Shakeel Ahmed came to the spot and took the injured to the hospital. She stated in his cross-examination that she had not counted the number of the labourers working on the spot. There was a village and a school near the place of the incident. She was with her mother. She denied that the victim died due to a fall and that she was making an incorrect statement.
17. It was submitted that there are material contradictions in the statements of the witnesses. Informant-Shakeel Ahmed stated that the incident started with the scolding of the victim's son, whereas the daughters of the victim did not state any such fact. There is indeed a discrepancy regarding this fact between the statements of the informant-Shakeel Ahmed and the victim's daughters. However, that is not sufficient to discard the prosecution case. It is the specific case of the prosecution that the informant was working at some distance; therefore, he would not have seen the complete incident, whereas, the victim's daughters were with her and they would be in a position to see the incident ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 14 completely. In any case, the failure to prove the cause of the incident will not be fatal to the prosecution case. The present case is based upon the direct testimonies of the eyewitnesses where the .
motive is not important and the accused cannot claim acquittal merely because the motive was not established.
18. It was submitted that there is a discrepancy regarding the time. The informant stated that the incident took place at about 6:00 pm, whereas the victim's daughter stated that the incident took place at about 5:30 pm. This discrepancy is not sufficient to discard the prosecution's version. Nobody remembers the time by looking at the watch and people give different estimations of the time. Hon'ble Supreme Court noticed this fact in Bharwada Bhoginbhai Hirji Bhai versus State of Gujarat 1983 (3) SCC 217 wherein it was held:
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a videotape is replayed on the mental screen.
(2) Ordinarily, it so happens that a witness is overtaken by events, the witness could not have anticipated the occurrence, which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind, ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 15 whereas it might go unnoticed on the part of another. (4) By and large, people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the .
conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to the exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guesswork impulsively at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals, which varies from person to person.
(6) Ordinarily, a witness cannot be expected to recall accurately the sequence of events, which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts gets confused regarding the sequence of events or fills up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of psychological defence mechanism activated on the spur of the moment." (Emphasis supplied)"
19. This position was reiterated in Balu Sudam Khalde and another Versus State of Maharashtra AIR 2023 SC 1736, wherein it was observed as under:-
"25. The appreciation of ocular evidence is a hard task. There is no fixed or straightjacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 16 enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once .
that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which did not have this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 17 approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is .
replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence, which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to the exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events, which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination by counsel and out of nervousness mix up facts, get confused regarding the sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 18 sometimes operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the latter statement, even if the latter statement is at variance with the former to some extent it would not be helpful to contradict that witness."
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)]
20. It was submitted that many people were working on the spot and the investigating officer did not associate them. This is fatal to the prosecution case. This submission cannot be accepted.
It was laid down by the Hon'ble Supreme Court in Rajesh Yadav Vs State of U.P. 2022 Cri. L.J. 2986 that non-examination of the witnesses will not vitiate the prosecution. It was observed:-
"31. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and their importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. The onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it. The aforesaid ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 19 settled principle of law has been laid down in Sarwan Singh v. State of Punjab, (1976) 4 SCC 369:
"13. Another circumstance which appears to have weighed heavily with the Additional Sessions Judge was .
that no independent witness of Salabatpura had been examined by the prosecution to prove the prosecution case of assault on the deceased, although the evidence shows that there were some persons living in that locality like the 'pakodewalla', hotel walls, shopkeeper and some of the passengers who had alighted at Salabatpura with the deceased. The Additional Sessions Judge has drawn an adverse inference against the prosecution for its failure to examine any of those witnesses. Mr Hardy has adopted this argument. In our opinion, the comments of the Additional Sessions Judge are based on a serious misconception of the correct legal position. The onus of proving the prosecution case rests entirely on the prosecution and it follows as a logical corollary that the prosecution has complete liberty to choose its witnesses if it is to prove its case. The court cannot compel the prosecution to examine one witness or the other as its witness. At the most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But it is not the law that the omission to examine any and every witness even on minor points would undoubtedly lead to rejection of the prosecution case or drawing of an adverse inference against the prosecution. The law is well-settled that the prosecution is bound to produce only such witnesses as are essential for the unfolding of the prosecution narrative. In other words, before an adverse inference against the prosecution can be drawn it must be proved to the satisfaction of the court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and were therefore material to prove the case. It is not necessary for the prosecution to multiply witness after witness on the same point; it is the quality rather than the quantity of the evidence that matters. In the instant case, the evidence of the eyewitnesses does not suffer ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 20 from any infirmity or any manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted a large crowd had gathered and some of the members of the crowd had actually seen the occurrence and were cited .
as witnesses for the prosecution and then withheld. We must not forget that in our country there is a general tendency amongst the witnesses in mofussil to shun giving evidence in courts because of the cumbersome and dilatory procedure of our courts, the harassment to which they are subjected by the police and the searching cross-examination which they have to face before the courts. Therefore nobody wants to be a witness in a murder or any serious offence if he can avoid it. Although the evidence does show that four or five persons had alighted from the bus at the time when the deceased and his companions got down the bus, there is no suggestion that any of those persons stayed on to witness the occurrence. They may have proceeded to their village homes..."
32. This Court has reiterated the aforesaid principle in Gulam Sarbar v. State of Bihar, (2014) 3 SCC 401:
"19. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but the quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on the value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in probate cases, where the law requires the examination of at least one attesting witness, it has been held that the production of more witnesses does not carry any ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 21 weight. Thus, the conviction can even be based on the testimony of a sole eyewitness, if the same inspires confidence. (Vide Vadivelu Thevar v. State of Madras [AIR 1957 SC 614: 1957 Cri LJ 1000], Kunju v. State of T.N. [(2008) 2 SCC 151: (2008) 1 SCC (Cri) 331], Bipin Kumar .
Mondal v. State of W.B. [(2010) 12 SCC 91: (2011) 2 SCC (Cri) 150: AIR 2010 SC 3638], Mahesh v. State of M.P. [(2011) 9 SCC 626 : (2011) 3 SCC (Cri) 783], Prithipal Singh v. State of Punjab [(2012) 1 SCC 10 : (2012) 1 SCC (Cri) 1] and Kishan Chand v. State of Haryana [(2013) 2 SCC 502 :
(2013) 2 SCC (Cri) 807: JT (2013) 1 SC 222].)"
21. In Appabhai and another Vs. State of Gujarat AIR 1988 SC 696, the incident had taken place at the bus stand. It was contended that independent witnesses were not examined and the prosecution case was doubtful. It was held by the Hon'ble Supreme Court that the prosecution case cannot be doubted due to the non-
examination of the independent persons. It was observed:
11. In light of these principles, we may now consider the first contention urged by the learned counsel for the appellants.
The contention relates to the failure of the prosecution to examine independent witnesses. The High Court has examined this contention but did not find any infirmity in the investigation. It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. The experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that a crime like a civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 22 is indeed unfortunate, but it is there everywhere whether - in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent .
witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
22. Therefore, in view of the binding precedent of the Hon'ble Supreme Court, the prosecution cannot be doubted because of the non-examination of the independent persons.
23. It was submitted that the informant stated that he was working at a distance of half a kilometre from the place of the incident, which is contrary to the site plan (Ext. PW18/B), wherein, the place, where the informant was working is shown as point 'C' at a distance of about 25 feet. Not much advantage can be derived from the site plan and the place 'C' shown in the same because the information disclosed to the Investigating Officer during the investigation is not admissible. It is admitted that the Investigating Officer was not present on the spot at the time of the incident, therefore, the place shown by him in the site plan is based upon the information received from other persons. It was laid down by the Hon'ble Supreme Court in Jagdish Narain v. State of U.P., (1996) 8 SCC 199: 1996 SCC (Cri) 565 that the site plan is ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 23 inadmissible to prove what was told by the eyewitnesses to the investigating officer in view of the bar contained in Section 162 of Cr.P.C. It was observed:
.
9. In responding to the next criticism of the trial court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot wherefrom the shots were allegedly fired by the appellants and its resultant effect upon the investigation itself, the High Court observed that such failure did not detract from the truthfulness of the eyewitnesses and only amounted to an omission on the part of the Investigating Officer. In our opinion, neither the criticism of the trial court nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site plan an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872 the former's evidence would be admissible to corroborate the latter in accordance with Section 157 CrPC (sic Evidence Act). However, such a statement made to a police officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) CrPC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan, PW 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eyewitnesses it could not have been admitted in evidence ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 24 being hit by Section 162 CrPC. The law on this subject has been succinctly laid down by a three-judge Bench of this Court in Tori Singh v. State of U.P. [AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580] In that case it was contended on behalf of the appellant therein that if one looked at the .
sketch map, on which the place where the deceased was said to have been hit was marked, and compared it with the statements of the prosecution witnesses and the medical evidence, it would be extremely improbable for the injury which was received by the deceased to have been caused on that part of the body where it had been actually caused if the deceased was at the place marked on the map. In repelling the above contention this Court observed, inter alia:
"... the mark on the sketch map was put by the Sub- Inspector who was obviously not an eyewitness to the incident. He could only have put it there after taking the statements of the eyewitnesses. The marking of the spot on the sketch map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub- Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot, but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during the investigation."
(emphasis supplied)
10. While on this point, it will be pertinent to mention that if in a given case the site plan is prepared by a draftsman -- and not by the Investigating Officer -- entries therein regarding the place from where shots were fired or other details derived from other witnesses would be admissible as ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 25 corroborative evidence as has been observed by this Court in Tori Singh case [AIR 1962 SC 399 : (1962) 1 Cri LJ 469 :
(1962) 3 SCR 580] in the following passage:
"This Court had occasion to consider the admissibility of .
a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commission of the offence, the draftsman put down the places in the map, in Santa Singh v. State of Punjab [AIR 1956 SC 526: 1956 Cri LJ 930]. It was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by Section 162 of the Code of Criminal Procedure."
(emphasis supplied)
24. Thus, not much advantage can be derived from the site plan.
25. Even otherwise, no person measures the distance with the help of the scale and every person gives an estimation of the distance, which may or may not be correct. Therefore, the testimony of the informant cannot be discarded on the ground that he claimed to be working at a distance of 500 meters from the spot.
26. The statements of these witnesses corroborated each other in material particulars. The statements are also corroborated by the previous statements recorded by the learned Judicial Magistrate, wherein the detail of the incident was given in the same manner as has been given in the Court.
::: Downloaded on - 21/06/2024 20:35:22 :::CIS 2627. The axe was sent to the Forensic Science Laboratory and it was found to be containing human blood. The blood was analyzed for DNA. Report (Ext. 'PX') was issued, in which it was .
shown that the DNA profile obtained from the axe matched with the DNA profile obtained from the blood sample of the victim. This shows that the axe was used for the commission of crime. This report also corroborates the testimonies of the eyewitnesses.
28. It was submitted that there was a delay in sending the sample to FSL. The blood sample was retained on 20.04.2015 by Dr. Dhruv Gupta whereas it was sent to FSL on 03.05.2015 by LC-
Rekha Devi. It was not suggested to LC-Rekha Devi (PW7) that there was tampering with the case property, which means that her testimony was accepted as correct. It was suggested to Rakesh Kumar (PW8) in the cross-examination that he had received the parcel in a tampered condition but he denied this suggestion. A denied suggestion does not amount to any proof and no advantage can be derived from the same. The report of analysis (Ext. 'PY') shows that the seals were found to be intact, which shows that there was no tampering with the case property. It was held in Baljit Sharma vs. State of H.P 2007 Latest HLJ 707, where the report of analysis shows that the seals were intact, the case of the ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 27 prosecution that the case property remained intact is to be accepted as correct. It was observed:
"A perusal of the report of the expert Ex.PW8/A shows that .
the samples were received by the expert in a safe manner and the sample seal separately sent tallied with the specimen impression of a seal taken separately. Thus, there was no tampering with the seal and the seal impressions were separately taken and sent to the expert also."
29. Similar is the judgment in Hardeep Singh vs. State of Punjab 2008(8) SCC 557 wherein it was held:
"It has also come on evidence that till the date the parcels of the sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the previously mentioned seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium, which was recovered from the possession of the appellant. In that view of the matter, a delay of about 40 days in sending the samples did not and could not have caused any prejudice to the appellant."
30. In State of Punjab vs. Lakhwinder Singh 2010 (4) SCC 402 the High Court had concluded that there could have been tampering with the case property since there was a delay of seven days in sending the report to FSL. It was laid down by the Hon'ble Supreme Court that case property was produced in the Court and there was no evidence of tampering. Seals were found to be intact, which would rule out the possibility of tampering. It was observed:
"The prosecution has been able to establish and prove that ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 28 the aforesaid bags, which were 35 in number, contained poppy husk and accordingly the same were seized after taking samples therefrom which were properly sealed. The defence has not been able to prove that the aforesaid seizure and seal put in the samples were in any manner tampered .
with before it was examined by the Chemical Examiner.
There was merely a delay of about seven days in sending the samples to the Forensic Examiner and it is not proved as to how the aforesaid delay of seven days has affected the said examination when it could not be proved that the seal of the sample was in any manner tampered with. The seal having been found intact at the time of the examination by the Chemical Examiner and the said fact having been recorded in his report, a mere observation by the High Court that the case property might have been tampered with, in our opinion is based on surmises and conjectures and cannot take the place of proof.
17. We may at this stage refer to a decision of this Court in Hardip Singh v. State of Punjab reported in (2008) 8 SCC 557 in which there was a delay of about 40 days in sending the sample to the laboratory after the same was seized. In the said decision, it was held that in view of cogent and reliable evidence that the opium was seized and sealed and that the samples were intact till they were handed over to the Chemical Examiner, the delay itself was held to be not fatal to the prosecution case. In our considered opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case in this regard.
18. The case property was produced in the Court and there is no evidence to show that the same was ever tampered with."
31. Similar is the judgment of the Hon'ble Supreme Court in Surinder Kumar vs. State of Punjab, (2020) 2 SCC 563, wherein it was held:-
10. According to learned senior counsel for the appellant, Joginder Singh, ASI to whom Yogi Raj, SHO (PW-3) handed ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 29 over the case property for producing the same before the Illaqa Magistrate and who returned the same to him after such production was not examined, as such, link evidence was incomplete. In this regard, it is to be noticed that Yogi Raj SHO handed over the case property to Joginder Singh, .
ASI, for production before the Court. After producing the case property before the Court, he returned the case property to Yogi Raj, SHO (PW-3) with the seals intact. It is also to be noticed that Joginder Singh, ASI was not in possession of the seals of either the investigating officer or Yogi Raj, SHO. He produced the case property before the Court on 13.09.1996 vide application Ex.P-13, the concerned Judicial Magistrate of First Class, after verifying the seals on the case property, passed the order Ex.P-14 to the effect that since there was no judicial malkhana at Abohar, the case property was ordered to be kept in safe custody, in Police Station Khuian Sarwar till further orders. Since Joginder Singh, ASI was not in possession of the seals of either the SHO or the Investigating Officer, the question of tampering with the case property by him did not arise at all.
11. Further, he has returned the case property, after production of the same, before the Illaqa Magistrate, with the seals intact, to Yogi Raj, SHO. In that view of the matter, the Trial Court and the High Court have rightly held that the non-examination of Joginder Singh, did not, in any way, affect the case of the prosecution. Further, it is evident from the report of the Chemical Examiner, Ex.P-10, that the sample was received with seals intact and that the seals on the sample were tallied with the sample seals. In that view of the matter, the chain of evidence was complete." (Emphasis supplied)
32. Hence, the delay in sending the samples to FSL will not be fatal.
33. Even otherwise, the defence did not dispute the fact that the victim had sustained injury with the axe. It was suggested to the eyewitnesses that the victim slipped and fell on the axe, ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 30 which shows that the defence is admitting the fact that the victim had sustained injury with the axe. Hence, any delay in sending the sample will not affect the prosecution case adversely.
.
34. It was submitted that the learned Trial Court erred in relying upon the testimonies of the victim's daughters. This submission overlooks the fact that they are not only daughters of the victim, they are the daughters of the accused as well. Their mother had died and they would tend to lose by deposing against the accused as there would be no one to look after them. Hence, they had no reason to depose against the accused but every reason to support the accused.
35. The accused asserted in his statement recorded under Section 313 of Cr.P.C. that he had quarrelled with Shakeel Ahmed, who was enticing Bipna (PW9); however, this fact was not suggested to Sapna or Bipna. Therefore, there is no evidence in support of the plea taken by the accused under Section 313 of Cr.P.C. and the learned Trial Court had rightly discarded the same.
36. It was submitted that the victim had died about 20 days after the incident. The cause of death was septicemia, which shows that the victim was not treated properly in the hospital. This submission will not help the defence. Explanation-II to Section ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 31 299 provides that when death is caused by a bodily injury, the person who causes such bodily injury shall be deemed to have caused the death even though by resorting to proper remedies and .
skilful treatment, the death might have been prevented; hence, it is not permissible for the accused to say that the accused could have been saved by skilful medical treatment or that the treatment of the victim was not proper.
37. Dr. Dhruv Gupta (PW14) who conducted the post-
mortem examination specifically stated that injury found in the head region of the deceased was possible with the axe (Ext.P1).
According to his opinion, the cause of death was septicemia shock leading to multiple organ failure in a case of head injury. It means that the cause of death was relatable to the head injury. Septicemia and multiple organ failure arose because of the head injury; hence, the death was related to the head injury and no advantage can be derived from the submission that the deceased could have been saved by proper medical treatment. Dr Gian Chand (PW16) treated the deceased. He stated that the patient was being managed conservatively. She developed wound sepsis and fever on 3 rd day.
Antibiotics were given but the fever increased. The patient became critical and died. A possible cause of death was septic meningitis ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 32 with septicemia with suspected hypothalamic injury-induced hyperpyrexia. She died due to the injuries sustained by her. He denied that the patient was not treated properly due to the heavy .
workload. The death was caused by the injury and infection in the brain. IGMC, Shimla is a good State-run hospital. He specifically denied that the deceased died due to negligence or she would have been saved by the proper treatment.
38. Dr. Gian Chand (PW16) had attended to the patient and was the best person to state the cause of the death. There is nothing in his statement to show that he is making any incorrect statement. His statement that the death was caused by the complication arising out of the injury is supported by the statement of Dr Dhruv Gupta, who conducted the post-mortem examination; therefore, it was duly proved that the cause of death was a head injury suffered by the victim.
39. In Nga Paw v. Emperor 1936 SCC OnLine Rang 88: AIR 1936 Rang 526: 1937 Cri LJ 103, the victim died due to gangrene, caused by some dirty substance coming into contact with the injury. It was laid down by Rangoon High Court that this would not absolve the accused of the murder. It was observed:
::: Downloaded on - 21/06/2024 20:35:22 :::CIS 33"4. It is however clear that he did not die from the injuries but died from the gangrene which set in consequence of some dirty substance, such as a bandage or the da with which the injuries were caused, coming into contact with one injury. Although it is undoubtedly the case that the .
injuries were not the direct cause of death, nevertheless, Explanation 2 to S. 299, I.P.C., makes it clear that the person who caused the injuries must be held to have caused Kyaw Hla's death."
40. It was submitted that the time lapse between the injury and the death would be sufficient to break the chain of causation. It was laid down by the Hon'ble Supreme Court in Prasad Pradhan vs. State of Chhattisgarh 2023 (1) SCR 241 that where the medical officer stated that the death was caused due to the injuries sustained by the deceased, the accused will be liable despite the lapse of time between the incident and the death. It was observed:
"25. During the hearing, the appellant's counsel had urged that Vrindawan died 20 days after the attack, and the lapse of such a time shows that the injuries were not suffi-
cient to cause death in the ordinary course of nature. On this aspect, there are several judgments, which emphasize that such a lapse of time, would not per se constitute a determi-
native factor to diminish the offender's liability from the offence of murder to that of culpable homicide, not amount- ing to murder. In Om Parkash v. State of Punjab, 1992 (3) SCR 921 the death occurred 13 days after the attack; the accused was convicted of murder. Similarly, in Patel Hiralal Joitaram v. State of Gujarat, 2002 (1) SCC 22 the death occurred a fort- night after the attack, and in Sudarshan Kumar (supra), the death occurred 12 days after the attack.
26. There can be no stereotypical assumption or formula that where death occurs after a lapse of some time, the in- juries (which might have caused the death), the offence is ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 34 one of culpable homicide. Every case has its unique fact situ- ation. However, what is important is the nature of the injury, and whether it is sufficient in the ordinary course to lead to death. The adequacy or otherwise of medical attention is not a relevant factor in this case, because the doctor who con-
.
ducted the post-mortem clearly deposed that death was caused due to cardiorespiratory failures, as a result of the injuries inflicted upon the deceased. Thus, the injuries and the death were closely and directly linked."
41. It was submitted that it was a case of free fight. The in-
cident started suddenly, and a case for the commission of of-
fences punishable under Section 304 of IPC was made out. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in Kesar Singh vs. State of Haryana 2008 (15) SCC 753 that the word fight means something more than a verbal quarrel. It was observed:
"The word "fight" is used to convey something more than a verbal quarrel. It postulates a bilateral transaction in which blows are exchanged. In order to constitute a fight, it is nec-
essary that blows should be exchanged even if they all do not find their target. [Ratanlal and Dhirajlal, Vol 2, page 1364, Footnote 4] No material in this regard has been brought on record. In Para 14 of the Learned Sessions Judge's judgment, it is explicitly stated that the contention of the accused (that the deceased had an altercation with the accused's labour- ers) was baseless. The High Court says that the accused have not produced any evidence in support of their contention that there was an altercation between the two groups. Fur-
ther, the contention of the prosecution (that when the de- ceased merely asked the accused to leave free some passage- way, and the accused exhorted that the deceased must be taught a lesson and proceeded to hit him on the head with the reverse side of the kassi) has been accepted by the courts ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 35 below. There was, thus, no fight far less any sudden fight. Provocation per se is not a fight. Asking somebody to do something again may not be a provocation. Expressing a de- sire that some passage may be left may not be considered to be a demand. Hence, in this case, there is nothing on facts to .
show that a "sudden fight" and "heat of passion", as envis-
aged under Exception 4 to S.300, had developed."
42. Similar is the judgment in Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat, (2003) 9 SCC 322 wherein it was observed:
"11. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) not covered by the first excep- tion, after which its place would have been more appropri- ate. The Exception is founded upon the same principle, for in both there is an absence of premeditation. But, while in the case of Exception 1, there is total deprivation of self-control, in the case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to do deeds, which they would not otherwise do. There is provoca-
tion in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Ex- ception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sud-
den fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to uni- lateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight sud- denly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 36 of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offend- ers having taken undue advantage or acted in a cruel or un- usual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the in-
.
gredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. The heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked them- selves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more per- sons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the of- fender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"."
43. This position was reiterated in Prasad Pradhan (supra) and it was held:
"22. The question then is - was there a "sudden quarrel" be- tween the deceased and the appellants so that the case would not be murder, but culpable homicide, in terms of Exception 4 ("if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and with- out the offender having taken undue advantage or acted in a cruel or unusual manner"). In the opinion of this court, there was no "sudden quarrel". The testimonies of the two important eyewitnesses, PW1 and PW2, establish that when the deceased was levelling the septic tank on his property, the accused/appellants started abusing him; he asked them not to. The appellants, who were on the adjacent property, climbed the wall, entered the deceased's house, and attacked him with axes. These facts do not constitute a "sudden ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 37 quarrel", given that the appellants abused the deceased, in an unprovoked manner, and then they went to where he was, armed with axes, and assaulted him. Arguendo, even if the facts are assumed to disclose that there was a sudden fight, it cannot be said that the accused failed to act in a .
cruel manner, or did not take undue advantage. This is be-
cause they were armed: a fact which shows pre-meditation on their part. Moreover, they both attacked Vrindavan on the head, which is a vital part of the body, thus taking undue ad-
vantage of their situation."
44. In the present case, the prosecution evidence establishes that the accused had dragged the victim to the tent.
Even the statement of Shakeel Ahmed only shows that there was a verbal exchange between the accused and the victim; hence, the same will not fall within the definition of the free fight.
45. It was submitted that a single injury was caused and the intention to commit murder cannot be inferred. The injury was caused on the head, a vital part of the body by means of an axe causing damage to the brain, which ultimately resulted into death.
It was laid down by the Hon'ble Supreme Court in Virsa Singh vs. State of Punjab AIR 1958 SC 465 that once the existence of the injury is proved, the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. It was observed:
'16. ... The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he in- tended to inflict the injury that is proved to be present. If he ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 38 can show that he did not, or if the totality of the circum- stances justifies such an inference, then, of course, the in- tent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended .
to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here nor there. The ques- tion, so far as the intention is concerned, is not whether he intended to kill or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evi- dence or the circumstances warrant an opposite conclu-
sion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or other- wise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in ques-
tion.
17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justifies an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the of-
fence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as se- rious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The differ- ence is not one of law but one of fact; ....'"
46. Similarly, it was held in Singapagu Anjaiah vs. State of A.P., (2010) 9 SCC 799 that causing injury to the vital part of the body can lead to an inference that the accused intended to cause the death of the deceased. It was observed:
::: Downloaded on - 21/06/2024 20:35:22 :::CIS 39"16. In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the na- ture of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a .
vital part of the body i.e. the head for causing the injury which had caused multiple fractures of the skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant in- tended to cause the death of the deceased."
47. It was held in Kesar Singh (supra) that a single blow on the vital part of the body will not preclude the intention. It was ob-
served:
The case cited by the accused in Jai Prakash v. State (Delhi Administration), (1991) 2 SCC 32, where there was an alterca- tion and exchange of hot words between the accused and the deceased. Then, the appellant took out a Kirpan (Churra) from his waist and stabbed the deceased in the chest. The accused contended that since there was an altercation and during the same, he suddenly whipped out a kirpan and in-
flicted only one injury, it was reasonable to infer that he would not have intended to cause that particular injury, and consequently, Clause Thirdly of Section 300 is not attracted. This contention was overruled by the Court. In Bhagwan Ba- hadur v. State of Maharashtra, 2007 (11) SCALE 519, this Court opined:
"It cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, and part of the body where the blow was given are some of the factors to be considered."
Hence, the mere fact that a single blow was administered doesn't preclude the existence of intention.
::: Downloaded on - 21/06/2024 20:35:22 :::CIS 4048. Similarly, it was held in Vasanta vs. State of Maharashtra 1984 (Supp1) SCC 648 that a single knife blow on the chest of the victim will amount to murder. It was held:
.
"It appears that there was some verbal altercation as a result of which the deceased had caught the hand of the accused, whereupon the accused assaulted the deceased with a knife with very great force according to medical evidence. In view of the medical evidence and injuries received by the de- ceased, the case squarely falls within four corners of S. 302, I. P. C. Mr Lalit, however, submits that the case falls under Section 304, Part 2, I. P. C. in view of serious altercations be- tween the parties as held by the trial Court. We are, however, unable to agree with this contention because there is noth-
ing to show that the altercation was of such a serious nature which could cause sudden provocation. Secondly, the nature of the injury, namely, the stab in the chest which resulted in the fracture of the 6th rib and injured the heart and the lung and which according to the doctor was given with great force showed that it was most cruel and therefore the case squarely falls under S. 302, I. P. C. We are in complete agree- ment with the High Court that the offence falls under Sec.
302, I. P. C. and the appellant was, therefore, rightly con- victed by the High Court."
49. Similar is the judgment in Pulicherla Nagaraju @ Na-
garaja Reddy vs. State of Andhra Pradesh 2006 (11) SCC 444 wherein it was observed:
"The fact that the accused gave only one blow, by itself, would not mitigate the offence to one of culpable homicide not amounting to murder. There are several cases where a single blow inflicted by the accused, resulting in death has been found to be sufficient for conviction under Section 302. We may refer to a few of them, namely, Virsa Singh v. State of Punjab AIR 1958 SC 465, Gudar Dusadh v. State of Bihar AIR 1972 SC 952, Vasanta v. State of Maharashtra 1984 Supp. SCC ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 41 648, Jai Prakash v. State (Delhi Administration) 1991 (2) SCC 32 and State of Karnataka v. Vedanayagam 1995 (1) SCC 326.
27. In Virsa Singh (supra), this Court held that culpable homicide is murder under Section 300 clause Thirdly, if the .
prosecution should establish four elements _ (i) the pres-
ence of a bodily injury, (ii) the nature of such bodily injury,
(iii) intention on the part of the accused to inflict that par-
ticular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was in- tended; and (iv) the injury was sufficient to cause death in the ordinary course of nature (this part of an enquiry being purely objective and inferential, nothing to do with the in-
tention of the offender). Dealing with the question, as to how intention is to be inferred, Vivian Bose, J. succinctly stated :
"In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry neces-
sarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted x x x x The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justifies such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he in- tended to inflict it. Whether he knew of its seriousness or intended some consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill or to inflict an injury of a particular degree of seriousness, but whether he in- tended to inflict the injury in question; and once the ex- istence of the injury is proved the intention to cause it will be presumed unless the evidence or the circum- stances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law.::: Downloaded on - 21/06/2024 20:35:22 :::CIS 42
Whether the wound is serious or otherwise, and if seri- ous, how serious, is a totally separate and distinct ques- tion and has nothing to do with the question whether the prisoner intended to inflict the injury in question."
.
28. The following legal position regarding single blow in-
jury, was summed up in Jagrup Singh v. The State of Haryana AIR 1981 SC 1552 thus:
"There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting the death must always necessarily reduce the offence to cul- pable homicide not amounting to murder punishable un- der section 304, Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances neg- ativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause Firstly or clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force em- ployed and the circumstances attendant upon the death."
29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will de-
cide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of fruit, the straying of cattle, the quarrel of children, the ut-
terance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspi- cion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spec- trum, there may be cases of murder where the accused at- tempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punish-
::: Downloaded on - 21/06/2024 20:35:22 :::CIS 43able under section 304 Part I/II, or cases of culpable homi- cide not amounting to murder, are treated as murder pun- ishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of .
the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of a sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and un- usual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other spe- cial circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.
30. In this case, as noticed above, the appellant was carrying a Barisa, a dangerous weapon. There was previous enmity. There was an earlier incident, about half an hour earlier when the father and brother of the deceased had been at- tacked by the appellant and his father. The deceased was unarmed. There was no provocation, sudden quarrel or fight. There was no indication of any cause for apprehension on the part of the appellant that the deceased may attack him. The stabbing was with great force, causing an injury on a vital part of the body, sufficient in the ordinary course of nature to cause death. The description of the injury and cause of death given by PW-11, who conducted the post mortem is telling:
"An incised injury 5 cm x 3 cm x 12 cm deep over right supra clavicular fossa above the medial end of right clavicle.. subclavian artery is sev-::: Downloaded on - 21/06/2024 20:35:22 :::CIS 44
ered... An incised injury 4cm x 1cm x 2cm deep over the apex of right lung... deceased would ap- pear to have died due to haemorrhage and shock due to injuries to the right subclavian artery and upper lobe of the right lung."
.
The intention to cause death or at all events intention of causing bodily injury which is sufficient in the ordinary course of nature to cause death was made out. The circum-
stances to bring the case under Exception (4) to Section 300 do not exist.
50. It was laid down by the Hon'ble Supreme Court in State of U.P. vs. Jai Dutt (2022) 3 SCC 184 that where the injury was caused to the head, a vital part of the body, the accused will be r liable for the commission of an offence punishable under section 302 of IPC.
It was observed:
"7.1 As per the deposition of Dr P.R. Mishra - PW8 who conducted the post-mortem, on the opening of the brain menages, found the brain congested with, subdural hematoma over both temporal lobes. As per the doctor the deceased died due to head injury no.1. The aforesaid injuries more particularly head injury no.1 was fatal and because of said injuries the deceased died. Merely because the de- ceased died after six days could not have been ground to set aside the conviction for the offence under Section 302 IPC and to convert it to Section 326 IPC. The deceased was first taken to the PHC, however, his condition was found to be serious and therefore, he was taken to the Lucknow Hospi- tal on 20.12.1983 and thereafter while under treatment he died on 26.12.1983 and the main cause of death was found to be the head injury no.1. At this stage, it is required to be noted that though the High Court has noticed the nine in- juries as noticed by Dr B.L. Katiyar of Medical Officer at PHC, the High Court has not at all noticed and/or consid- ered at all the antemortem injuries on the dead body of Ram Autar mentioned in the postmortem report. As ob-::: Downloaded on - 21/06/2024 20:35:22 :::CIS 45
served hereinabove and as per the medical evidence the cause of death was due to head injury no.1. The weapon was used on the head vital part of the body and ultimately the same proved to be fatal and the deceased died due to head injury no.1. Therefore, by no stretch of the imagination the .
case would fall under Section 326 IPC."
51. A similar situation arose in State of Rajasthan v.
Kanhaiya Lal, (2019) 5 SCC 639: (2019) 2 SCC (Cri) 674: 2019 SCC OnLine SC 519, wherein the accused gave a blow using an axe upon the head of the deceased. The High Court held that the offence was covered by Section 304(1) of the IPC and not Section 302 of the IPC.
This judgment was reversed by the High Court and it was held that merely because a single injury was caused by an axe is not sufficient to punish the accused with the commission of an offence punishable under Section 304(1) of IPC. It was observed:
"7.2. Now so far as the main reason given by the High Court while converting the conviction from Section 302 IPC to Section 304 Part I IPC i.e. it was a case of a single blow is concerned, it is required to be noted that the deceased had died because of single injury caused on his head by the accused by an axe. The aforesaid can hardly be a ground to convert the conviction from Section 302 IPC to Section 304 Part I IPC.
7.3. In Arun Raj [Arun Raj v. Union of India, (2010) 6 SCC 457 :
(2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that the nature of the weapon used and vital part of the body where the blow was struck, prove beyond reasonable doubt the intention of the ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 46 accused to cause the death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.
.
7.4. In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604: (2012) 1 SCC (Cri) 397], the death was caused by a single blow on the head of the deceased with a wooden pestle. It was found that the accused used a pestle with such force that the head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits the intention of the accused in causing the death of the victim but also knowledge of the accused in that regard. It is further observed by this Court that such an attack could be none other than for causing the death of the victim. It is observed that 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 such a weapon, would cause death.
7.5. A similar view is taken by this Court in the recent decision in Leela Ram [State of Rajasthan v. Leela Ram, (2019) 13 SCC 131] and after considering a catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether a case falls under Section 302 or Section 304 Part I or Section 304 Part II, this Court reversed the judgment [Leela Ram v. State of Rajasthan, 2008 SCC OnLine Raj 945] of the High Court (in that case also the judgment impugned was from the Rajasthan High Court) and convicted the accused for the offence under Section 302 IPC. In the same decision, this Court also considered Exception 4 of Section 300 IPC and observed in para 21 as under: (SCC para 21) "21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are : (i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel, and (iv) the ::: Downloaded on - 21/06/2024 20:35:22 :::CIS 47 offender should not have taken undue advantage or acted cruelly or unusually."
9. Another reason given by the High Court is that there was no repeated injury. The aforesaid can hardly be a ground to .
convert the conviction from Section 302 to Section 304 Part I IPC. A single blow on the vital part of the body like head and that too by deadly weapon axe and used with force which proved to be fatal, was sufficient to hold that it was a case of murder within the definition of Section 300 IPC."
52. Thus, the submission that the accused never intended to cause death and the case is not covered under Section 302 of IPC is not acceptable and the learned Trial Court had rightly convicted the accused of the commission of an offence punishable under Section 302 of IPC.
53. The judgments of the Bombay High Court in Shaikh Javed (supra) and the Karnataka High Court in Shashirekha (supra) cannot be relied upon in view of the binding precedents of the Hon'ble Supreme Court.
54. Learned Trial Court sentenced the accused to life imprisonment and to pay a fine of ₹20,000/-. It cannot be said to be excessive keeping in view the nature of the injury and the circumstances in which, it was caused. Hence, no interference is required with the sentence.
55. No other point was urged.
::: Downloaded on - 21/06/2024 20:35:22 :::CIS 4856. In view of the above, the present appeal fails and the same is dismissed.
(Vivek Singh Thakur) .
Judge (Rakesh Kainthla) Judge 21st June, 2024 (saurav pathania) ::: Downloaded on - 21/06/2024 20:35:22 :::CIS