2003 Supreme(SC) 1296

2003(8) Supreme 850
SUPREME COURT OF INDIA
(From Rajasthan High Court)
N. Santosh Hegde & B.P. Singh, JJ.
State of Rajasthan -Appellant
versus
Dhool Singh -Respondent
Criminal Appeal No. 299 of 1997
Decided on 18-12-2003
Counsel for the Parties :
For the Appellant : Amit Shukla, V.N. Raghupathy, Advocates.
For the Respondent : N.C. Kochar, Sr. Advocate (AC), Adolf Mathew, Advocate.

IMPORTANT POINT
In a murder case number of injuries is irrelevant and is not always the determining factor in ascertaining the intention and it is the nature of injury, part of body where it is caused and weapon used which are indicators of fact whether accused had intention or not.

Headnote:(i) Indian Penal Code, 1860-Section 302-Respondent accused inflicted sword blow injury on neck of deceased-High Court in appeal converted offence to one under Section 304 Part II IPC-State appeal-High Court held that since accused inflicted only one injury which suggested that he had no intention to cause death-Reasoning was erroneous and could not be sustained-Injury by sharp edged weapon like sword had resulted in almost instantaneous death-Such injury exhibited intention of attacker as well as knowledge as to likely consequence of such attack.

       Held : 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. (Para 13)

       (ii) Indian Penal Code, 1860-Section 302-Accused inflicted sword blow injury on neck of deceased-High Court converted offence to one under Section 304 Part II IPC-State appeal-Defence contention that sword had not been produced in Court hence it could be said that accused used dangerous weapon-Doctor had found that deceased had suffered cut incised wound causing extensive damage and was caused by sharp edged weapon-Non-production of weapon would not be of help to accused.

       Held : 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. (Para 14)

       (iii) Indian Penal Code, 1860-Section 302-Accused inflicted single sword blow on neck of deceased-Cause of death was "cut on the neck and the excessive bleeding and heart failure"-According to doctor if proper medical care were provided injured could have survived-Effect-Section 300 does not contemplate a situation of miraculous survival.

       Held : 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. (Para 14)

       (iv) Indian Penal Code, 1860-Section 302-Sentence-High Court altered conviction under Section 304 Part II IPC and imposed sentence for period already undergone without even noticing what was period already undergone-Discretion in matter of sentence is not whimsical and is controlled by law and by judicial discretion.

       Held : 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. (Para 18)