Penal Code, 1860: s.300 thirdly – Prosecution case was that respondent 1 to 5-accused were guilty of killing victim-deceased – Trial court convicted respondents-accused inter alia for offence punishable u/ss.302/149 – High Court altered conviction u/s.302 to one u/s.304 Part II holding that the injuries caused to deceased were on non-vital parts of the body and, therefore, there was no intention on part of accused to kill the deceased – High Court further observed that the accused took deceased to a doctor which showed that there was no intention on their part to kill the deceased – Appeal by informant (brother of victim) – Held: The factum of bodily injuries and its nature was duly established – Apart from the injuries on non-vital parts, there were fractured ribs on the right side and the right lung was ruptured – Even the wind pipe and food pipe were ruptured – There was an injury to liver – The cause of death as certified by the medical board was excessive bleeding due to injuries on vital parts like right lung as well as liver and the resultant shock – Deposition of eye witness that one of the accused held deceased who was lying flat on the ground and at least three accused persons assaulted him – Therefore, injuries on the chest which resulted into fracture of five ribs and rupture of right lung cannot be said to be accidental or unintentional – Therefore, even the third element in s.300 was established –Once prosecution established existence of three ingredients forming a part of “thirdly” in s. 300, it is irrelevant whether there was an intention on the part of the accused to cause death – Even the knowledge that an act of that kind is likely to cause death is not necessary to attract “thirdly” – Clause “thirdly” of s.300 applies in this case – High Court committed gross error in applying s.304 Part II – Judgment of trial court is restored.
Allowing the appeal, the Court
HELD: 1. In this case, none of the exceptions to Section
300 are applicable. The issue which is required to be examined is whether the case will be covered by “thirdly” in Section 300. The case of Virsa Singh v. The State of Punjab has stood the test of time. Paragraphs 12 and 13 of the said decision: “...the prosecution must prove the following facts before it can bring a case under S. 300, “Thirdly”; first, it must establish, quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved; these are purely objective investigations; thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.” [Para 16][964-B-F]
Virsa Singh v. The State of Punjab AIR 1958 SC 4654 : [1958] SCR 1495 – relied on.
1.2 The first two elements laid down in paragraph 12 have been established in this case as the factum of bodily injuries and its nature have been duly established. The question is whether the third element of intention to inflict the particular bodily injuries was present. As narrated by PW2, he along with deceased were forcibly taken in a vehicle. When the vehicle reached unmetalled road, it was stopped. Thereafter, the accused banged the deceased flat on the ground. While the accused no.1 was holding the deceased, accused nos.4 and 5 started assaulting deceased. There was no scope for the deceased to resist. Thereafter, the accused started assaulting him. Apart from the injuries on non-vital parts, there was a fracture of 6th to 10th ribs on the right side and the right lung was ruptured. Even the wind pipe and food pipe were ruptured. There was an injury to liver. The cause of death as certified by the Board was excessive bleeding due to injuries on vital parts like right lung as well as liver and the resultant shock. Therefore, it is impossible to say that the injuries on the chest which resulted into fracture of 5 ribs and rupture of right lung were accidental or unintentional. Therefore, even the third element was established. Once the prosecution establishes the existence of the three ingredients forming a part of “thirdly” in Section 300, it is irrelevant whether there was an intention on the part of the accused to cause death. The absence of intention to kill is not relevant in the facts of the case, the injuries found by PW3 on the face of the deceased which were not the ante mortem injuries establish that before throwing the body of the deceased in a canal, his face was completely smashed by the accused. The fact that accused after killing deceased went to a common relative will not be of any assistance to the accused. The view taken by High Court that the offence under Section 300 was not made out is not even a possible view which could have been taken on the basis of the evidence on record. The judgment and order of the Sessions Court will have to be restored. [Paras 17, 18, 20, 21][965-D-H; 966-A, B, E-G]
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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