Penal Code, 1860 – ss. 304 Part I, 300 Exception 4, 302 r/w 34 – Murder – Parties assembled to settle land dispute – Exchange of words resulting in scuffle between the parties – Appellant G brought axe from the room – Appellant S held the victim from arms and G inflicted axe blow to victim on his head – Appellants also sustained injuries – Complaint lodged after five days – Victim succumbed to his injuries a month later – Conviction of accused G u/s. 302 and accused S u/s. 302 r/w s. 34 and sentenced accordingly – Upheld by the High Court – On appeal, held: Since both the accused sustained injuries in the incident, non-explanation of injuries sustained by the accused assumes significance – There was no provocation from either side – Exchange of words resulted in scuffle – Evidence of the doctor that the victim was drunk at the time of the incident – It was in this circumstance, appellant G went inside the room and brought an axe and hit on the head of the victim – No clear evidence as to who started the attack – Both the parties were unarmed – Though accused G used the axe but victim survived for about one month – Appellants thus, did not take undue advantage of the same – There was also a delay of five days in lodging the FIR – Act of the accused would fall under “exception 4” to s. 300 – Weapon used in the manner in which the injury was inflicted clearly establish that the appellants intended to cause the injury which was sufficient in the ordinary course of nature to cause death – In view thereof, the conviction of the appellants u/s. 302 read with s.
34 modified to one u/s. 304 Part-I and sentenced to imprisonment for seven years.
Partly allowing the appeals, the Court
HELD: 1.1 When there was exchange of words, there was a scuffle between both the parties. In the same transaction where AND ANR.
‘H’ was attacked, the accused party also sustained injuries. Apart from the stray, the statement made by the complainant in the FIR, the prosecution has not offered any explanation for the injuries sustained by the accused. Since both the accused sustained injuries in the incident, non-explanation of injuries sustained by the accused assumes significance. Having regard to the injuries sustained by the accused, the trial court and the High Court ought to have made an effort in searching out genesis of the occurrence. [Para 12][368-H; 369-A-B]
Takhaji Hiraji v. Thakore Kubersing Chamansing and Others (2001) 6 SCC 145 – referred to.
1.2 From the evidence, it is clear that both families have assembled and they were talking near the tubewell to resolve the land dispute. There was no provocation from either side. In his evidence, PW-6 has clearly stated that there was exchange of words which resulted in scuffle between both the parties. It has come from the evidence of the doctor that ‘H’ was drunk at the time of the incident. It is in this circumstance, appellant ‘GS’ had gone inside the room adjacent to the tubewell and brought an axe and hit on the head of deceased ‘H’. Accused also sustained injuries in the same incident. [Para 13][369-C-D]
1.3 There is no clear evidence as to who started the attack. Both the parties were unarmed. When there was exchange of words between both the parties, accused ‘GS’ went inside the room and brought an axe and caused head injuries to ‘H’. From the post-mortem certificate, it is seen that deceased ‘H’ sustained head injuries with multiple fractures, right fronto temporal and temporo parietal region in the right fronto temporo parietal region of the brain, haemorrhagic contusions in bilateral temporal region and right parietal region. However, deceased ‘H’ survived for about one month and he succumbed to injuries on 01.12.2007. Though accused ‘GS’ used the axe which is a formidable weapon, but ‘H’ survived for about one month. The appellants therefore cannot be said to have taken undue advantage of the same. There was also a delay of five days in lodging the FIR; the reason being, talks were still going on for settling the matter. Considering the totality of the circumstances, the act of the accused would fall under “Exception 4” to Section 300 IPC. [Para 14][369-E-H] Bhuyan v. State of Orissa (2004) 11 SCC 395 :
[2004] 3 Suppl. SCR 395 – referred to.
1.4 The third clause of Section 300 IPC consists of two parts. Under the first part, it must be proved that there was an intention to inflict the injury that is present and under the second part, it must be proved that the injury was sufficient in the ordinary course of nature to cause death. The deceased sustained head injuries with multiple fractures, right fronto temporal and temporo parietal region infarct in the right fronto temporo parietal region of the brain, hemorrhagic contusions in bilateral temporal region and right parietal region. The weapon used in the manner in which the injury was inflicted clearly establishes that the appellants intended to cause the injury which is sufficient in the ordinary course of nature to cause death. Having regard to the facts and circumstances of the case, the conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part-I IPC and the appellants are sentenced to undergo imprisonment for seven years. [Paras 17-19][371-DE; 372-B-C, D] Nankaunoo v. State of Uttar Pradesh (2016) 3 SCC
317 : [2016] 4 SCR 627 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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