1977 Supreme(SC) 303

SUPREME COURT OF INDIA
P.K. GOSWAMI AND N.L. UNTWALIA, JJ.
Kishore Singh and another, Appellants
Versus
The State of M.P., Respondent.
Criminal appeal No. 399 of 1974,
D/- 10-10-1977.
Advocates Appeared
Mr. D. Mukherjee, Sr. Advocate (Mr. B. P. Singh, Advocate with him) for Appellants; M/s. I. N. Shroof and H. S. Parihar, Advocates, for Respondent.

Headnote:

SC Act, 1970 - Section 2 – Indian Penal Code – Section 302/34 – Constitution of India, 1950 - Article 134 (1) (c) - Order of acquittal – offence of murder - Whether appeal before High Court under Section 417 (1) of old Code was competent since appellants were not entirely acquitted in trial but convicted of a minor offence after having been charged for a major offence which is permissible under Section 238 of the old Code - Whether appellants are entitled as of right to appeal to this Court under Section 2 of the Act - Whether injuries were such as were likely to cause death in ordinary course of nature - PW 12 performed the operation on July on third day of the occurrence - Whether injuries caused by appellants were sufficient in ordinary course of nature to cause death - An appeal shall lie to SC from any judgment final order of sentence in a Criminal proceeding of a High Court in territory of India if High Court - Has on appeal reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or imprisonment for a period of not less than ten years - Has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than ten years - It is clear that if on appeal against an order of acquittal High Court sets aside acquittal and convicts an accused and sentences him to imprisonment for life or to a period of not less than ten years accused is entitled as of right to appeal to this Court under Section 2 (a) of the Act - In this particular case appellants were tried under Sec. 302/34 I.P.C. for murder and under Section 307/34, I.P.C. for attempt to murder - Court are not concerned with the sentence of five years under Sec. 307/34, IPC in this appeal which runs concurrently with other sentence - Sessions Judge acquitted them of charge of murder but convicted them under Section 325 read with Section 34, I.P.C – Held, Court may very briefly advert to the material facts necessary to appreciate this submission - Appellant was armed with an axe - Court are not concerned with their father who was said to be in their company with a stick but has since been acquitted - On date of occurrence which was on July both the appellants attacked and caused grievous injuries on his person using and the blunt side of axe - Died in the hospital on August after recovering from a surgical operation for his head injuries - PW 6 who first examined the deceased could not say whether injuries were such as were likely to cause death in the ordinary course of nature - Performed the operation on July on third day of the occurrence - He found depressed fracture of the temporal bone - Four pieces of bone were removed during operation as these were causing compression to brain - He opined that injuries to the skull were likely to cause death in ordinary course of nature without any treatment - Deceased recovered from operation but unfortunately died after a month of occurrence on August as stated earlier who held the post mortem examination was of opinion that death was due to injury to scalp and chest and its complications which were due to same - He also opined that injuries found on dead body were sufficient in his opinion to cause death in the ordinary course of nature - Distinction between culpable homicide and murder has always to be carefully borne in mind while dealing with a charge under Section 302, I.P.C. Under category of unlawful homicides fall both cases of culpable homicide amounting to murder and those not amounting to murder - Culpable homicide is not murder when case is brought within the five exceptions to Section 300, I.P.C. But even though none of the said five exceptions are pleaded or prima facie established on the evidence on record prosecution must still be required under law to bring the case under any of four clauses of Section 300. I. P. C. to sustain charge of murder - If prosecution fails to discharge this onus in establishing any one of four clauses of Section 300, I. P. C. charge of murder would not be made out and case may be one of culpable homicide not amounting to murder as described under S. 299, I. P. C - Court will have to judge objectively from nature of the injuries and other evidence including the medical opinion as to whether injuries intentionally inflicted by appellants on deceased were sufficient in ordinary course of nature of cause death - In judging whether injuries inflicted are sufficient in ordinary course of nature to cause death possibility that skilful and efficient medical treatment might prevent fatal result is wholly irrelevant - Having regard to entire evidence and circumstances of case and in view of somewhat hesitant medical opinion with regard to cause of death given by three doctors and the further fact that deceased died a month after the occurrence court think that clause 3rdly of Sec. 300, I. P. C. has not been established beyond reasonable doubt in this case - Evidence fulfils one of ingredients of Section 299 namely that appellants caused the death by doing an act with intention of causing such bodily injury as is likely to cause death as deposed to by Surgeon - Appeal is dismissed