2002 Supreme(SC) 757

2002(6) Supreme 12
SUPREME COURT OF INDIA
(From Patna High Court)
Umesh C. Banerjee & B.N. Agrawal, JJ.
Dhupa Chamar & Ors. -Appellants
versus
State of Bihar -Respondent
Criminal Appeal No. 1087 of 2000
Decided on 2-8-2002
Counsel for the Parties :
For the Appellants : Aman Lekhi, Rajesh Pathak, Pramod Jalan, S.R. Setia, Advocates.
For the Respondent : Saket Singh and B.B. Singh, Advocates.

IMPORTANT POINT
When 7 persons are tried under Section 302/149 IPC and Court acquitted three then remaining four can also be not convicted under Sections 302/149 IPC as if number of accused persons becomes less than 5, there cannot be said to be any unlawful assembly.

Headnote:(i) Indian Penal Code, 1860-Sections 302 and 148-Offences under-Appellant No. 1 is said to have inflicted a single blow of Bhala on the left side of the neck of Ram Patia Devi and the same was pulled out forcibly from the neck as a result of which she fell down and died instantaneously-Contention that when death is caused by a single blow, clause thirdly of Section 300 IPC is not attracted-Whether correct? (No)-Case law referred to highlight principles (See paras 6 to 14).

       Held : Keeping in mind the aforesaid principles, if we examine facts of the present case, Clause Thirdly of Section 300 is fully attracted. It appears that the accused persons came armed with deadly weapons and there was an altercation and exchange of hot words whereafter appellant No. 1 assaulted victim Ram Patia Devi with a bhala causing injury on the chest rupturing important blood vessels and cutting of aorta and other artery resulting in her instantaneous death. At this stage, it would be useful to refer to injury on Ram Patia Devi as found by the doctor, who held post mortem examination on her dead body, which runs thus:

       "One penetrating wound 2½ " x 1" x 4" deep on the apex of [L] chest just below the [L] clavicle, cutting, skin, muscle and important blood vessels, e.g. area of aorta.

       On body the chest, the injury was found behind the stain with cutting of arch of aorta and the subclavian artery resulting in profuse haemorrhage.

       Grievous in nature

       Caused by - sharp cutting pointed weapon.

       Within 12 hours.

       In my opinion, the death was due to cardiac Respiratory failure as a result of severe haemorrhage and shock due to the rupture of great veins as mentioned above."

       In view of the nature of injury whereby important blood vessels were ruptured inasmuch aorta and artery were cut and when the doctor opined that death was caused as a result of severe haemorrhage and shock due to the rupture of great veins, undoubtedly, it can be reasonably inferred therefrom that such a solitary injury inflicted upon the deceased was sufficient to cause death in the ordinary course of nature. The above circumstance would show that accused intentionally inflicted the injury and the same would indicate such a state of mind of the appellant-Dhupa Chamar that he aimed and inflicted the injury with deadly weapon. In the absence of evidence or reasonable explanation to show that this appellant did not intend to inflict injury by bhala in the chest with that degree of force sufficient to rupture important blood vessel and cutting of aorta and other artery, it would be perverse to conclude that he did not intend to inflict that injury that he did. When once the ingredient intention is established then the offence would be murder as the intended injury was sufficient in the ordinary course of nature to cause death. Therefore, inevitable conclusion would be that appellant No. 1-Dhupa Chamar has committed the offence of murder and not culpable homicide not amounting to murder. This being the position, we do not find that the High Court has committed any error in upholding conviction of appellant No.1-Dhupa Chamar under Section 302 of the Penal Code. (Paras 15, 16 and 17)

       (ii) Indian Penal Code, 1860-Section 302/149-Seven persons charged -Acquittal of 3 and conviction of four-Whether there can be unlawful assembly in such a case? (No)-Result-Conviction under Section 302/149 set aside but conviction under other sections maintained-Order accordingly.

       Held : We are of the opinion that in view of the fact that three accused persons referred to above were acquitted by the trial court itself of the charge under Section 302/149 out of the seven accused persons and no other person is said to have participated in the occurrence as mentioned in the prosecution case and evidence, and as the number of accused persons becomes less than five, there cannot be said to be any unlawful assembly, as such conviction of appellant Nos. 2 to 4 under Section 302/149 becomes unwarranted. In relation to conviction of these appellants under other sections, learned counsel appearing on their behalf could not point out any infirmity. He, however, submitted that under these sections, the maximum sentence that has been awarded is one year and as they have served out more than that, they should be directed to be released forthwith. We find force in this submission as it has been pointed out that Tokha Chamar-appellant No.2 has remained in jail for a period of seven years and each of the appellant No.3-Doma Chamar and appellant No. 4-Adalat Chamar two years three months. In the result, appeal of appellant No-1-Dhupa Chamar fails and the same is accordingly dismissed. Appeal of appellant No. 2-Tokha Chamar, appellant No. 3-Doma Chamar and appellant No. 4-Adalat Chamar is allowed in part, their conviction and sentence under Section 302/149 of the Penal Code are set aside and they are acquitted of this charge. Their convictions and sentences under other sections are confirmed, but as they have already served out the sentences awarded thereunder, they are directed to be released forthwith if not required in any other case. (Paras 18, 19 and 20)