1990 Supreme(SC) 458

SUPREME COURT OF INDIA
S.R. PANDIAN AND K. JAYACHANDRA REDDY, JJ.
Hem Raj, Appellant
Versus
The State (Delhi Administration), Respondent
Criminal Appeal No. 571 of 1976, D/- 23-8-1990.

IMPORTANT POINTThere is no illegality in convicting the appellant under Section 302IP.C. (Simplicitor) though there was a constructive charge against all the jour accused inclusive of appellant under Section 302 r/w 34 I.P.C.

Headnote:(i) Indian Penal Code, 1860 - Sections 302/34 and 392 - Appellant with 3 others charged for murdering Ravinder Kumar in furtherance of common intention - Three eyewitnesses - One, father of deceased who also suffered injury - Trial Court acquitted three others but convicted appellant under Section 302 I.P.C. (Simplicitor) - Whether appellant alone can be convicted on the evidence which was not believed for other acquitted accused? (Yes).

       Held: The fact that Ravinder had succumbed to the injury sustained by him on 5-10-1972 cannot be disputed. The actual occurrence is spoken to by P.Ws. 16, 17 and 21 of whom P.W.16 is the father of the deceased. The presence of P.W.16 at the scene cannot be disputed for the reasons-firstly that the occurrence took place in front of the house of P.W.-16 and secondly P.W. 16 himself sustained fracture on his nose on being hit with a stone. P.W.-17 is a neighbour of P.W.-16. P.W.-21 had gone to Arya Nagar to see his relation at the time of the occurrence. All these three witnesses consistently testify that the appellant stabbed the deceased with a knife. As the occurrence had taken place in broad day light, the question of identity of the appellant does not arise. On carefully scanning the evidence of these three witnesses, we, without any reservation, agree with the concurrent findings of the courts below that it was the appellant and appellant alone who inflicted the injury on the deceased. The learned counsel appearing on behalf of the appellant, besides attacking the testimony of these witnesses urged that when the major portion of the prosecution case relating to the participation of the other three accused has been disbelieved, there can be no justification to convict the appellant alone relying on the same evidence of the witnesses, especially when there was a constructive charge against all the accused under Section 302 read with Section 34 I.P.C. Both the contentions in our view do not merit consideration. The evidence of the eye witnesses for the reasons aforementioned inspires confidence and commands acceptance at the hands of this Court. Nothing tangible to discredit the testimony of these witnesses is brought on record. Coming to the other contention, we may say that there is no illegality in convicting the appellant under Section 302 (simplicitor) though there was a constructive charge against all the accused inclusive of appellant under Section 302 read with Section 34 I.P.C., since the evidence has disclosed that it was only the appellant who inflicted the injury which proved fatal. (Para 9A)

       (ii) Indian Penal Code, 1860 - Sections 302 or 304 Part II- Nature of offence: Appellant and his associates reprimanded mother of deceased and later picked up a quarrel with his father - Deceased was in prime youth came out to, help his father – Sudden quarrel started - Appellant gave a single stab, which landed on chest of deceased – Trial Court convicted under. Section 302 I.P.C. and sentenced to imprisonment for life-upheld by High Court -Whether correct? (No, conviction altered to Section 304 I.P.C. Part II and sentenced to 7 years imprisonment)

       Held: The question is whether the appellant could be said to have caused that particular injury, with the intention of causing death of the deceased. As the totality of the established facts and circumstances do show that the occurrence had happened, most unexpectedly in, a sudden quarrel and without pre-meditation during the course of which the appellant caused, a solitary injury, he could not be imputed with the intention, to cause death of the deceased or with the intention to cause that particular fatal injury; but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the, absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause 1II of Section 300 I.P.C. will be attracted. We are supported in this view by a series of decisions of this Court, namely, Jagrup Singh v. State of Haryana, 1981 (4) S.C.C. 616, Kulwant Rai v. State of Punjab, 1981 (4) S.C.C. 245, Randhir Singh v. State of Punjab, 1981 (4) S.C.C. 484, Gurmail Singh and others v. State of Punjab. 1982 (3) S.C.C. 184 and Jagtar Singh v. Slate of Punjab 1983 (2) S.C.C. 342. Following the ratio of the aforementioned decisions, we hold in the present case that the offence committed by the appellant is the one punishable under Section 304 Part II I.P.C. but not under Section 302 I.P.C. (Para 13)

       Held: In the result, we set aside the conviction under Section 302 and the sentence of imprisonment for life imposed therefore, instead convict him under Section 304 Part-II I.P.C. and sentence him to undergo rigorous imprisonment for a period of 7 years. In the result, the appeal is dismissed subject to the modifications as indicated above. We direct the appellant to surrender before the Trial Court to undergo the remaining un-served portion of the sentence. (Para 14)