IMPORTANT POINT
Where in an incident when there was no premeditation accused assaulted victim by lathis and stones and fracture of 12th and 13th rib caused puncture of liver which injury was accidental rather than intended and was the cause of death, offence would fall under Section 304 Part II IPC and not under Section 302 IPC.

Headnote:Indian Penal Code, 1860-Sections 302/149, 147 and 323/149-Appellants, seven in number, assaulted deceased with lathi and stones and some of them trampled on his body in the field after he was chased and over powered-Deceased died on spot-Conviction under by Courts below-Appeal-Considerable evidence to prove participation of appellants-Question of nature of offence-Occurrence had its genersis in a trivial matter i.e. unintended hitting of PW 5 by stick of appellant No. 2 when parties were dancing in a Flag Ceremony in temple-Appellants had not come prepared for incident and what happened was not premeditated-Doctor who conducted post mortem had not found any injury sufficient in ordinary course of nature to cause death though victim had suffered several facture injury-Fracture of 12th and 13th rib which penetrated liver resulting in profuse bleeding was the cause of death-That injury was not intended by appellants and was at best accidental-Section 300 "thirdly" IPC was not attracted-Appellants were guilty of culpable homicide not amounting to murder punishable u/s 304 Part II IPC-Appellants awarded sentence of 5 years imprisonment.
Held : Occurrence took place suddenly. There was no premeditation on the part of the appellants and quarrel really arose from a trivial issue. The parties had danced all night and nothing untoward had happened except this small incident. Thereafter they proceeded towards their respective villages. It is not the case of the prosecution that the appellants were armed with deadly weapons. Some of them were carrying lathis, as are usually carried by the tribals in that part of the State, and had not made any special preparation for the assault. Some others had just picked up stones when the deceased was overpowered, and assaulted him. It is, no doubt, true that they assaulted the deceased in such a manner that the deceased suffered several fractures, but the injury which caused the death of the deceased was the one suffered by him on account of the rib bone puncturing the liver. We are convinced that this injury was not intended by the appellants, and the injury suffered by the deceased on his liver was at best accidental. We therefore, hold that Section 300 "thirdly" IPC is not attracted, and it cannot be said that the appellants intended to cause any injury to the liver which perhaps proved fatal. There is no evidence to suggest that any of the other injuries suffered by him was sufficient to cause death in ordinary course of nature. The question then is under which provision of the IPC the appellants should be punished. Counsel for the State submits that even if the case does not fall under Section 300 "thirdly" IPC it would certainly fall under Section 304 Part II IPC. Even if we say that the appellants had no intention to cause death they certainly knew that such bodily injury was likely to cause death. He, therefore, submits that even if the appellants may not be found guilty of culpable homicide amounting to murder, they are certainly guilty of culpable homicide not amounting to murder punishable under Section 304 Part II IPC. (Paras 10 and 11)

JUDGMENT

B.P. Singh, J.-There are seven appellants in this Appeal who have impugned the judgement and order of the High Court of Madhya Pradesh at Jabalpur dated 2nd September, 1998 in Criminal Appeal No. 1035 of 1989. The High Court by its impugned judgement and order dismissed the appeal preferred by them and upheld the judgement and order of the First Additional Sessions Judge, Sehore in Sessions Trial No. 74 of 1988 finding them guilty of the offence punishable under Section 302 read with Section 149 IPC and sentencing them to imprisonment for life. The appellants were also found guilty of the offences under Sections 147 and 323 read with Section 149 IPC and sentenced to undergo one year, and six months, rigorous imprisonment respectively for those offences.

2. The facts of the case are that in connection with the Flag Ceremony performed near the Hanuman Temple, the villagers had assembled from different villages. They danced the whole night in celebration. The party of the complainant was dancing to the beating of drums of one Nanla (PW 5) while the appellants and others were dancing in a separate group. It appears that inadvertently the stick of Khuman Singh, Appellant No. 2 hit PW 5 on his face. There was protest from Nanla, and it appears that an altercation followed the protest. However, the groups dispersed thereafter. Rayla (since deceased) had intervened to pacify the parties. Thereafter the villagers took prasad and started to proceed towards their respective villages. According to the prosecution, the complainant party was chased by the appellants who caught hold of Nanla (PW 5). There was protest from deceased Rayla and others. It appears that appellant No. 1 gave a lathi blow to Bair Singh (PW 1). The chase continued and ultimately in the field of Samadh Miyan, Rayla, the deceased was over-powered and was assaulted with lathi and stones. It is the case of the prosecution that some of the accused trampled on his body as a result of which he died on the spot.

3. The First Information Report was lodged by PW1 and after investigation the appellants were put on trial. There is considerable evidence on record to prove the participation of the appellants. The evidence also establishes the genesis and manner of occurrence as stated by the prosecution.

4. Learned Counsel for the appellant s submitted that even if the prosecution case is accepted to be true, the nature of injuries caused, the weapons used, the genesis of the occurrence and the trivial dispute which give rise to the occurrence, belie the case of the prosecution that the appellants intended to cause the death of the deceased. She submits that none of the injuries caused was by itself sufficient in the ordinary course of nature to cause death, and at best death resulted on account of the unintended injury to the liver caused by fracture of a rib bone which punctured the liver. According to her, injury to the liver, which appears to be the cause of the death, was not intended by the appellants. According to her, the offence made out may be one under Section 326 or Section 324 IPC.

5. On the other hand, Counsel for the State submitted that a large number of injuries were inflicted on the deceased by the appellants. The appellants must have known that such large number of injuries caused by them would result in the death of the victim in the ordinary course of nature. He, therefore, submitted that the case clearly comes under Section 302 IPC. To be more precise he submits that the case would fall under Section 300 "thirdly" IPC.

6. We have gone through the evidence on record and have noticed the features of the case. Firstly, the occurrence has its genesis in a trivial matter namely the unintended hitting of Nanla (PW5) by the stick of appellant No.2 when they were dancing at the festival. There was some protest giving rise to exchange of abuses and altercation but the matter rested there. Thereafter, the parties took prasad and proceeded to their respective

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2004 Supreme(SC) 1468

Cases Referred (1)