SANJAY Vs. STATE OF U.P.
Section 34 - Acts done by several persons in futherance of common intention
Section 302 - Punishment for murder
Section 452 - House- trespass alter preparation for hurt, assault or wrongful restraint
Section 304 - Punishment for culpable homicide not amounting to murder
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 11 of 2016, Judgment Date: Jan 06, 2016
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 11 OF 2016
(Arising out of S.L.P. (Crl.) No.3896 of 2013)
SANJAY ..Appellant
Versus
STATE OF UTTAR PRADESH ..Respondent
WITH
CRIMINAL APPEAL NO. 12 OF 2016
(Arising out of S.L.P. (Crl.) No.3897 of 2013)
NARENDRA ..Appellant
Versus
STATE OF UTTAR PRADESH ..Respondent
J U D G M E N T
R. BANUMATHI, J.
Leave granted in both the special leave petitions.
2. These criminal appeals have been filed assailing the impugned
judgment dated 30.08.2012 passed by the High Court of Judicature at
Allahabad dismissing the criminal appeals No.2188/2007 and 2561/2007
upholding the conviction of the appellant Narendra for offences under
Sections 302, 307 read with Section 34 IPC and Section 452 IPC and also the
sentence of life imprisonment, ten years imprisonment with fine of
Rs.5,000/- and three years imprisonment with fine of Rs.1,000/-
respectively. The High Court also confirmed the conviction of the
appellant Sanjay under Section 302 read with Section 34 IPC, Section 307
read with Section 34 IPC and Section 452 IPC and sentence of life
imprisonment, ten years imprisonment with a fine of Rs.5,000/- and three
years imprisonment with a fine of Rs.1,000/- respectively.
3. Case of the prosecution is that appellant-Sanjay is the brother
of deceased Roop Singh. According to PW-2 Sheela wife of Roop Singh, after
selling his land to Narendra, Sanjay was insisting his brother Roop Singh
to sell his land to Narendra for which Roop Singh refused, due to which
appellant-Sanjay is said to have developed enmity towards Roop Singh. On
the intervening night of 10/11.08.1998 at 3.00 a.m., Roop Singh and his
wife Sheela were sleeping in their chowk and a lantern was lit in the
house. Appellants–Narendra and Sanjay along with another person armed with
tamancha (pistol) came to the house of Roop Singh. Appellant-Narendra
fired multiple bullets at Roop Singh and Roop Singh sustained bullet injury
in his head. Sanjay fired at PW-2 Sheela and she sustained bullet injuries
at neck, abdomen and her right leg. Hearing sounds of bullets, the
complainant-Partap Singh and one Ompal and several other persons rushed to
the spot and on seeing them, the appellants Narendra, Sanjay and the third
assailant fled away from the scene. On the basis of the complaint lodged
by Partap Singh at Police Station Sardhana, Meerut, case was registered in
Crime No. 387/1998 for offences under Sections 307 and 452 IPC. Injured
victims were sent to Primary Health Centre, Sardhana, Meerut for treatment.
Roop Singh (deceased) was admitted at Safdarjung Hospital, Delhi and after
treatment, Roop Singh was discharged from the hospital on 25.09.1998.
Subsequently, Roop Singh developed complications, Roop Singh was taken for
check up to Delhi and Roop Singh died on 13.10.1998. Ram Pal gave written
information about the death of injured Roop Singh to the police and Section
302 IPC was added to the FIR. After completion of investigation,
chargesheet was filed against the appellants for offences under Sections
302, 307 and 452 IPC.
4. To substantiate the charges against the appellants, prosecution
examined nine witnesses and exhibited twenty five documents and material
objects. Upon appreciation of evidence, the learned Additional Sessions
Judge, Meerut vide judgment dated 17.03.2007 found the appellants guilty
for offences under Section 302 IPC read with Section 34 IPC and Section 307
IPC read with Section 34 IPC and Section 452 IPC and they were sentenced to
suffer life imprisonment, ten years imprisonment with a fine of Rs.5,000/-
and three years imprisonment with a fine of Rs.1,000/- respectively. The
trial court ordered that half of the fine amount be paid to PW-2 Sheela as
compensation. Aggrieved by the verdict of conviction, the appellants filed
criminal appeals before the High Court of Judicature at Allahabad which
were dismissed vide common impugned judgment dated 30.08.2012 upholding the
conviction and sentence imposed upon the appellants as aforesaid.
Aggrieved, the appellants have preferred these appeals assailing the
conviction and sentence imposed on them.
5. Learned counsel for the appellants contended that as the
deceased Roop Singh had already transferred his land to Partap Singh (PW-1)
about one and a half years prior to the occurrence and therefore it is
improbable that Sanjay would have insisted his brother Roop Singh to sell
his land also to appellant-Narendra and as such the motive suggested by the
prosecution is not a probable one. It was further submitted that death of
Roop Singh as seen from the evidence of Dr. Laxman Das (PW-9) when Roop
Singh was discharged from the hospital his condition was stable and two
months thereafter Roop Singh died due to septicaemia and therefore
conviction of the appellants under Section 302 IPC is not sustainable.
6. Per contra, Mr. Ratnakar Dash, learned Senior Counsel for the
respondent contended that death of Roop Singh was the direct result of the
multiple bullet injury inflicted by the appellants and the head injury
caused by the appellants was sufficient in the ordinary course of nature to
cause death and the courts below rightly convicted the appellants under
Section 302 IPC and the same cannot be interfered. Learned Senior Counsel
submitted that as the deceased Roop Singh sustained bullet injuries on his
head, intention to cause death can be inferred from the situs and nature of
the injury and the weapon used.
7. Case of the prosecution as seen from the evidence is that
appellants-Sanjay and Narendra and one unidentified assailant armed with
countrymade pistols entered the house of deceased Roop Singh at the wee
hours-3.00 a.m. on 11.08.1998. It is alleged that the appellant-Sanjay
fired four times at his sister-in-law-Sheela (PW-2) wife of the deceased
and Narendra fired one gun shot on the deceased-Roop Singh. Roop Singh was
operated at Safdarjung Hospital, Delhi and was discharged on 25.09.1998 and
he was taken back to his home at village Sardhana. When injured Roop
Singh was taken to Delhi for check up, he died on the way to hospital on
13.10.1998, PWs 1 and 2 have consistently spoken about the overt act of the
appellants. PW-2-Sheela is an injured witness and her version stands on a
higher footing. The testimony of the injured witness coupled with the fact
that the complaint was promptly lodged by the complainant-Partap Singh
within one and half hours of the incident lends assurance to the
prosecution case. As the prosecution version is unassailable, by order
dated 18.04.2013, this Court issued notice limited to the question of
nature of the offence committed by the appellants.
8. In the light of the specific contention advanced by the
appellants that after the attack the deceased survived for sixty two days
after his surgery discharged in stable condition, the only issue which
needs to be examined is whether conviction of the appellants under Section
302 IPC is sustainable.
9. Dr. Laxman Das (PW-9), Neuro Surgeon at Safdarjung Hospital,
Delhi who examined injured Roop Singh on 12.08.1998 found one wound of
insertion of bullet in the head mid frontal region of Roop Singh which
measured 2 cm x 2 cm. PW-9 conducted the operation on 15.09.1998 and bullet
was extracted from the supra cellar part of the head of Roop Singh. PW-9
stated at the time of admission of Roop Singh in the hospital on
12.08.1998, general condition of the patient was serious and that the
injuries received in the head was dangerous to his life. Dr.
Laxman Das (PW-9) opined that condition of the deceased at the time of
discharge from the hospital on 25.09.1998 was not critical and his
condition was stable. In the instant case, admittedly, deceased Roop Singh
died after sixty two days of the fateful incident. PW-3-Dr. M.C. Gulecha,
who conducted the post-mortem examination on the body of deceased-Roop
Singh opined that the cause of death was septicaemia which was due to the
wounds sustained by him prior to his death.
10. Learned counsel for the appellants submitted that since Roop
Singh died more than two months after the date of the occurrence and that
he was discharged from the hospital in good condition and septicaemia might
have set in due to lack of proper care after he was discharged from the
hospital and therefore the appellants cannot be said to have caused the
death of deceased and the conviction under Section 302 IPC is not
sustainable.
11. Learned Senior Counsel for the respondent contended that second
appellant-Narendra inflicted serious injuries on the forehead of the
deceased and fire shots with intention to kill the deceased and the
intention to cause death can be inferred from the situs of the injury and
that the act was sufficient in the ordinary course of nature to cause
death. Reliance was placed upon the judgment of this Court in Jagtar Singh
And Anr. vs. State of Punjab, (1999) 2 SCC 174 and Dhupa Chamar And Ors.
vs. State of Bihar, (2002) 6 SCC 506.
12. In Jagtar Singh’s case (supra), Harbans Singh gave gandasa blow
on the left side of the head of deceased-Naib Singh, Jagtar Singh inflicted
khapra blow to the deceased. The incident happened on 23.09.1991 and the
injured succumbed to his injuries even while he was undergoing treatment at
PGI Hospital Chandigarh on 09.10.1991. In the said case, it was brought
out from evidence that the deceased succumbed to injuries even while he was
undergoing treatment and in such facts and circumstances, court drew
inference that the injuries were sufficient in the ordinary course of
nature to cause the death. In Dhupa Chamar’s case (supra), Dhupa Chamar
gave a bhala blow on the left side of neck of Ram Patia Devi and she fell
down and died instantaneously. Accused No.2-Tokha Ram assaulted Dharam
Chamar in the abdomen with bhala and he was rushed to the hospital
whereupon he was declared brought dead. On the basis of nature of injuries
inflicted which resulted in the instant death of the deceased persons and
other circumstances, court held that the intended injury was sufficient in
the ordinary course of nature to cause death and convicted the accused for
the offences under Section 302 IPC.
13. However, in the instant case, it is apparent that the death
occurred sixty two days after the occurrence due to septicaemia and it was
indirectly due to the injuries sustained by the deceased. The proximate
cause of death on 13.10.1998 was septicaemia which of course was due to the
injuries caused in the incident on 11.08.1998. As noted earlier, as per
the evidence of Dr. Laxman Das (PW-9), Roop Singh was discharged from the
hospital in good condition and he survived for sixty two days. In such
facts and circumstances, prosecution should have elicited from Dr. Laxman
Das (PW-9) that the head injury sustained by the deceased was sufficient in
the ordinary course of nature to cause death. No such opinion was elicited
either from Dr. Laxman Das (PW-9) or from Dr. Gulecha (PW-3). Having
regard to the fact that Roop Singh survived for sixty two days and that his
condition was stable when he was discharged from the hospital, the court
cannot draw an inference that the intended injury caused was sufficient in
the ordinary course of nature to cause death so as to attract clause (3) of
Section 300 IPC.
14. In Ganga Dass alias Godha vs. State of Haryana, 1994 Supp (1)
SCC 534, the accused gave iron pipe single blow on the head of the deceased
and the deceased died eighteen days after the occurrence due to septicaemia
and other complications, the conviction of the appellant under Section 302
IPC was altered by this Court to Section 304 Part II IPC. This Court
observed as under:-
“6. We find considerable force in this submission. As stated above the
occurrence took place on November 18, 1988 and the deceased died 18 days
later on December 5, 1988 due to septicaemia and other complications. The
Doctor found only one injury on the head and that was due to single blow
inflicted with an iron pipe not with any sharp-edged weapon. Having regard
to the circumstances of the case, it is difficult to hold that the
appellant intended to cause death nor it can be said that he intended to
cause that particular injury. In any event the medical evidence shows that
the injured deceased was operated but unfortunately some complications set
in and ultimately he died because of cardiac failure etc. Under these
circumstances, we set aside the conviction of the appellant under Section
302 IPC and the sentence of imprisonment for life awarded thereunder.
Instead we convict him under Section 304 Part II IPC and sentence him to
undergo six years’ RI. The sentence of fine of Rs.2000 along with default
clause is confirmed. Accordingly the appeal is partly allowed.”
15. In the instant case, the appellants used firearms countrymade
pistol and fired at Roop Singh at his head and the accused had the
intention of causing such bodily injury as is likely to cause death. As
the bullet injury was on the head, vital organ, second appellant intended
of causing such bodily injury and therefore conviction of the appellant is
altered from Section 302 IPC to Section 304 Part I IPC. The learned
counsel for the appellant-Sanjay submitted that it was only Narendra who
fired at Roop Singh at his head, appellant-Sanjay fired on Sheela (PW-2) on
her neck, stomach and leg. Learned counsel for the appellant-Sanjay
contended that as Sanjay fired only at Sheela, he could not have been
convicted for causing death of Roop Singh under Section 302 IPC read with
Section 34 IPC. There is no force in the above contention. The common
intention of the appellants is to be gathered from the manner in which the
crime has been committed. Both the appellants came together armed with
firearms in the wee hours of 11.08.1998. Both the appellants
indiscriminately fired from their countrymade pistols at Roop Singh-
deceased and Sheela (PW-2) respectively. The conduct of the appellants and
the manner in which the crime has been committed is sufficient to attract
Section 34 IPC as both the appellants acted in furtherance of common
intention. The conviction of the appellant-Sanjay under Section 302 IPC
read with Section 34 IPC is modified to conviction under Section 304 Part I
IPC.
16. Conviction of the appellants-Narendra and Sanjay under
Section 302 IPC and Section 302 IPC read with Section 34 IPC respectively
is modified to Section 304 Part I IPC and Section 304 Part I IPC read with
Section 34 IPC respectively and each of them are sentenced to undergo
rigorous imprisonment for ten years and the same shall run concurrently
alongwith sentence of imprisonment imposed on the appellants. Conviction
of the appellants for other offences and the respective sentence of
imprisonment imposed on the appellants and fine is affirmed. The appeals
are partly allowed to the above extent.
……………………CJI.
(T.S. THAKUR)
.………………………J.
(R. BANUMATHI)
New Delhi;
January 06, 2016