Sanil v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 20TH DAY OF JULY 2018 / 29TH ASHADHA, 1940 CRL.A.No. 177 of 2012 (B) AGAINST THE JUDGMENT IN SC 358/2008 of III ADDL. SESSIONS COURT, KOLLAM, DATED 30.01.2012 APPELLANT/ACCUSED NO. 3 : - --------------------------------------------- SANIL, S/O.CHELLAPPAM, SATHEESH BHAVAN, CLAPPANA MURI, CLAPPANA VILLAGE, KOLLAM. BY ADVS.SRI.P.S. SREEDHARAN PILLAI SRI. ARJUN SREEDHAR SRI. ARUN KRISHNA DHAN SRI. JOSEPH GEORGE(MULLAKKARIYIL) SRI.T.K. SANDEEP RESPONDENT/COMPLAINANT: - --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION SRI. SURESH BABU THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.07.2018 ALONG WITH CRL. APPEAL Nos. 304/2012, 364/2012, 381/2012 AND CRL. APPEAL (V) No.356/2012. THE COURT ON 20.07.2018 DELIVERED THE FOLLOWING: DMR/- ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** --------------------------------------------------------------- Crl.Appeal Nos. 177, 304, 364, 381 of 2012 & Crl. Appeal (V) No. 356 of 2012 --------------------------------------------------------------Dated this the 20[th] day of July, 2018 ## J U D G M E N T ## **Somarajan, J.** Aggrieved by the judgment of conviction and order of sentence under Sections 143, 147, 148 and 304 Part I read with Section 149 IPC in Sessions Case No.358/2008 of the Sessions Court, Kollam, accused Nos.1 to 6 came up with three separate appeals (Accused Nos.1, 2 and 4 in Crl. Appeal No.381/2012, Accused No.3 in Crl. Appeal No.177/2012 and Accused Nos.5 and 6 in Crl. Appeal No.364/2012). The State Government also came up with Crl. Appeal No.304/2012 challenging the finding of guilt for a lesser offence under Section 304 Part I IPC instead of Section 302 IPC and the quantum of sentence awarded. The legal heirs of the victim also came up with Crl. Appeal (V) No.356/2012 aggrieved by the conviction and sentence for a lesser offence under Section 304 Part I IPC instead of Section 302 IPC. Crl.Appeal No. 177/2012 & con. Cases 2 2. The alleged incident was happened due to political enmity. It was on 19.07.2007 at 3.30 p.m. the accused themselves formed into an unlawful assembly with the common object to do away the victim, attacked the victim with deadly weapons at the road margin of Vallikavu - Idayanambalam road in front of the shop room of one Nujumudeen (PW13). The accused are active workers of RSS (Rashtriya Swayam Seva Sangam) and the victim was an active worker of SFI and DYFI. The accused persons came there in two bikes and attacked the victim. The accused No.1 along with other accused took the victim forcibly to the margin of the Public Road and attacked with iron rods and screw driver. The victim was removed to the Government Hospital, Karunagappally, from there he was referred to Medical College Hospital, Thiruvananthapuram, and succumbed to the injuries at 3.20 a.m. on the next day, ie. 20.07.2007. Crl.Appeal No. 177/2012 & con. Cases 3 3. By relying on the oral testimony of PWs 1 to 3 and 13, the occurrence witnesses, the medical evidence adduced through PW13 and PW20 and recovery of weapons used for inflicting injuries, the learned Sessions Judge found all the accused guilty of offence punishable under Sections 143, 147, 148 and 304 Part I read with Section 149 IPC and convicted thereunder and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- with a default sentence of rigorous imprisonment for a further period of six months for the offence under Section 304 Part I IPC, rigorous imprisonment for 2 months for the offence under Section 143 IPC and rigorous imprisonment for 6 months for the offence under Section 148 IPC with a direction to run substantive sentence concurrently. Set off was also allowed. No separate sentence was awarded for the offence under Section 147 IPC. 4. PWs 1 to 3 and 13 claimed to be the eye witnesses to the alleged incident. PW13 is the shop owner Nujumudeen. Crl.Appeal No. 177/2012 & con. Cases 4 PW1 is the person who came to the place of occurrence while the alleged incident was going on. PW2 is another eye witness to the alleged incident. PW1 testified that he had seen the alleged incident when he was proceeding in a bicycle. On hearing some hue and cry, he proceeded to the place of occurrence and had seen the victim Ajayaprasad lying in front of the shop room of Nujumudeen. He had seen an indiscriminate attack on the victim by accused No.3 using a screw driver and stamping on his body several times. Then he took a saffron shawl and twisted around the neck of the victim and pulled his body towards opposite direction by grounding his hip with his foot. Accused No.2 hit on his right wrist, leg and knee with another iron pipe. By that time, the victim fell down on the road side. The accused No.3 inflicted injury by using a screw driver all over his body. Accused No.4 by using an iron pipe hit on his right elbow. Accused No.5 also hit on his right arm by using an iron pipe. Accused No.6 hit on his left wrist using an iron pipe. Crl.Appeal No. 177/2012 & con. Cases 5 5. The medical evidence adduced shows that the victim succumbed to the injuries at 3.20 a.m. on the next day, i.e. 20.07.2007, at Medical college Hospital, Thiruvananthapuram. The ante-mortem injuries noted in Exhibit P15 post mortem certificate comes to 64, but the actual number is more than 64 as some of the injuries were grouped and numbered together. The ante mortem injuries noted are as follows:- _“1. Contusion 14x2x1.5 cm, on the back of trunk across the midline, the upper end 15cm below the hairline. Atlanto occipital joint dislocated backwards._ _Brain oedematous. Petechiae present in the white matter._ _2. Contusion 5x2.5x1.8cm, vertical, on the back of right shoulder, the upper end 3.5 cm outer to root of neck._ _3. Fracture of 2[nd] thoracic vertebra, oblique, involving the body. Spinal cord underneath softened._ _4. Abrasion 0.7x0.3cm obliquely placed on the right side of abdomen, the lower inner end 12cm to the_ Crl.Appeal No. 177/2012 & con. Cases 6 _right of midline and 25cm below collar bone._ _5. Abrasion 0.7x0.2cm, on the right side of chest oblique, its upper inner end 15cm outer to midline and 5 3m below the front fold of armpit._ _6. Pallor 11x5 cm, on the front of neck across the midline, the upper margin 10cm below the lower border of jaw bone._ _Flap dissection of neck was done under bloodless field. The subcutaneous tissue underneath appeared normal. A horizontal linear tear of length 0.9cm was seen in the left common carotid artery. Other neck structures including muscles, vessels, hyoid bone and cartilages appeared intact and normal._ _7. Contusion 7x5x0.3cm, on the back of tongue with petechiae at places._ _8. Two abraded contusions 5.5x0.5x0.4cm and 4.5x0.5x0.2cm, 0.7cm apart obliquely placed on the left side of chest, 11 cm outer to midline and 8cm below collar bone._ _9. Abraded contusion 2.2x0.7x0.3cm, obliquely placed on the outer aspect of right arm 10cm below the top of shoulder._ _10. Lacerated puncture wound 0.8x0.5x3.3 cm on the outer aspect right elbow, directed obliquely_ Crl.Appeal No. 177/2012 & con. Cases 7 _outwards through the muscle plane with a graze abrasion 0.5cm broad around with an upward extension of 0.8x0.5cm on the lower end._ _11. Two abraded contusions 2x0.5x0.3cm and 1.5x0.5x0.3cm, 0.6cm apart extending downwards from the lower outer end of injury No.10._ _12. Abrasion 2.5x0.8cm, obliquely placed on the back of right elbow._ _13. Two contusions 3x0.5x0.3cm each, 0.6cm apart, obliquely placed on the outer aspect of right forearm incorporating a lacerated puncture wound 0.6x0.5x0.5cm with an abrasion of 0.8cm broad at the outer margin and 0.4cm broad at other place and showed a contusion of 1.5x0.5x0.3cm at the outer aspect of the boarder area of abrasion. The wound was placed 8cm below elbow and was directed downwards and outwards._ _14. Abrasion 5.5x0.4cm oblique, on the back of right forearm, the lower end 6cm above wrist._ _15. Lacerated puncture wound 0.6x0.5x0.7cm on the back of right hand, 3cm below the root of index finger with a contusion of 8x6x1.5cm around. The upper margin of contusion was 5cm below wrist. First metacarpal of index finger and ring finger showed fracture._ Crl.Appeal No. 177/2012 & con. Cases 8 _16. Multiple small abrasions over an area of 2x2cm on the outer aspect of right thigh, 44 cm above knee._ _17. Abrasion 0.3x0.3 cm on the outer aspect of right thigh 15cm below the lower end of injury No.16._ _18. Two contusions 3.5x0.5x0.5 cm and 4.5x0.5x0.5 cm with a central pallor of 1cm, horizontally placed on the outer aspect of right thigh 36cm above knee._ _19. Abrasion 6.5x0.5cm, horizontal on the front of right thigh 21 cm above knee._ _20. Two abrasions 1.5x0.3 cm and 2.8x0.3cm, 1.2cm apart in the same oblique plane on the outer aspect of right thigh, the lower back end of the longer one was 3cm above knee._ _21. Abrasion 0.5x0.5cm, on the outer aspect of right thigh 1.5cm below the lower back end of injury No.20._ _22. Two contusions 4x0.5x0.8cm and 7x0.5x0.8cm, 0.8cm apart horizontally placed on the front and inner aspect of right thigh the inner end 19cm above knee._ _23. Contusion 3x0.5x0.5cm vertical incorporating multiple small abrasions over an area of 5x1cm at_ Crl.Appeal No. 177/2012 & con. Cases 9 _the lower end, and the lower end was 19cm above knee._ _24. Contusions 6x0.3x0.5cm and 7x0.3x0.5cm, 0.7cm apart obliquely placed on the outer aspect of right thigh, 3cm above knee._ _25. Multiple abrasions over an are of 2.5x0.5cm, on the front of right knee._ _26. Abraded contusion 3.5x0.8cm, vertical on the outer aspect of right knee._ _27. Multiple small abrasions over an are of 3.5x1cm, on the lower inner aspect of right knee._ _28. Superficial lacerated wound 1x0.6m with an abrasion of 0.6cm broad around on the front of right leg 29cm above ankle extending upwards with another superficial lacerated wound 0.5x0.5cm and an abrasion of 0.6cm broad around._ _29. Two contusions 1.5x1x0.3cm and 1x0.5x0.3cm, 0.5cm apart, vertical on the front of right leg, upper one 10cm below knee._ _30. Three lacerated puncture wounds 1.7x0.8x8.2cm and 1.7x0.8x9.2cm and_ _1.8x0.7x0.3cm arranged in an oblique line at 1.2cm and 0.2cm apart on the outer and front aspect of right leg and all showed abrasion 0.8x0.6cm broad around, and the lower one was 17cm above ankle._ Crl.Appeal No. 177/2012 & con. Cases 10 _All the punctured wounds were directed outwards and downwards._ _31. Contusion 3x2x0.5cm, on the outer aspect of right leg 14cm below knee._ _32. Lacerated puncture wound 1.5x0.8x7.5cm vertical with a superficial lacerated wound 2.5x0.8cm, extending upwards from the upper inner margin, the lower end was 15cm above ankle. Wound was directed downwards and backwards._ _33. Multiple superficial lacerated wounds 6x1.5cm, extending obliquely outwards from a point of 1.7cm, outer to the lower margins of injury No.32._ _34. Abraded contusion 2x1x0.8cm, on the inner aspect of right ankle._ _35. Contusion 2.5x1.5x0.8cm, on the back of right leg, 18cm above heel._ _36. Abraded contusion 7x2.5x0.7cm, on the inner aspect of right thigh 16cm above knee._ _37. Graze abrasion 3x2cm, obliquely placed on the back of right thigh, 14cm above knee._ _38. Lacerated puncture wound 1.4x0.7x7.7 cm with an abrasion of 0.5cm broad on the outer margin and 0.3cm broad on the inner margin, on the front of right leg, the lower inner end 10cm above ankle. Wound was directed downwards and backwards._ Crl.Appeal No. 177/2012 & con. Cases 11 _Soft tissues was found crushed and fat was found coming out through the wound._ _39. Lacerated puncture wound 1.3x0.8x13.2 cm vertical on the front of left leg the lower end 24.5cm above ankle with an abrasion of 0.4cm broad around. Wound was directed downwards and outwards._ _40. Lacerated puncture wounds 0.7x0.4x12.4cm on the front of left leg 0.8cm below the lower end of injury No.40. Wound was directed downwards and outwards._ _41. Two contusions 10x0.5x0.8cm and 9x0.5x0.6cm, 0.8cm apart extending, obliquely upwards and outwards from a point 3.5cm outer to the previous injury._ _42. Contusion 4x2x0.9cm, on the outer aspect of left ankle. Ankle joint dislocated with oedema around._ _43. Abrasion 0.6x0.5cm, on the inner aspect of left leg 7cm above ankle._ _44. Abrasion 1.3x1.2cm on the inner aspect of left leg 11 cm above ankle._ _45. Contusion 5x2x1.8cm on the outer aspect of left leg 12 cm above ankle._ _46. Abrasion 0.5x0.5cm, on the front of left leg 9cm_ Crl.Appeal No. 177/2012 & con. Cases 12 _below knees, underneath both bones fractured and muscles crushed._ _47. Abrasion 1.x0.5cm, on the inner aspect of left leg 3cm below knee._ _48. Contusion 2.5x1x1.8cm on the front of left leg 3cm below knee._ _49. Abrasion 1x0.5cm on the front of left knee._ _50. Abrasion 2.5x1.5cm, on the front of left thigh 24cm above knee._ _51. Healing wound 2x1cm, on the outer aspect of left thigh 32cm above knee._ _52. Contusion 9x8x1.8cm on the back of left hand just below wrist with an abrasion of 0.5x0.5cm broad, 0.5cm above the root of ring finger._ _53. Abrasion 3.5x0.5cm, oblique on the outer aspect of left wrist._ _54. Contusion 4x3.5x0.8cm, on the inner aspect of left forearm, 14cm above wrist._ _55. Contusion 5.5x0.5x1.4cm and 6x0.5x1.4cm with a central pallor of 1.1cm on the middle of back of left forearm 9cm above elbow with a lacerated wound of 0.5x0.5x0.4cm, in the upper inner end._ _56. Contusion 10x0.5cm and 9x0.5cm, 0.8cm apart, on the inner aspect of left forearm the upper end 3cm below elbow._ Crl.Appeal No. 177/2012 & con. Cases 13 _57. Contusion 11x2x1.4cm on the outer aspect of left forearm, the upper end at the outer aspect of elbow. Left elbow joint dislocated backwards._ _58. Contusion 6x0.5x0.5cm and 5.5x0.5x0.8cm with a central pallor of 1cm, on the outer aspect of left elbow with an abrasion of 0.5x0.5cm, at the inner end._ _59. Two contusions 8x0.5cm, and 6.5x0.5cm, 0.8cm apart obliquely placed on the outer aspect of left arm, the front end 5.5cm above elbow._ _60. Abrasion 0.5x0.5cm, on the left side of shoulder, 6cm inner to the tip._ _61. Graze abrasion 3.2x2.7cm, on the left side of back of trunk, 5cm below the tip of shoulder incorporating a lacerated puncture wound 0.8x0.5x1.2cm._ _62. Lacerated puncture wound 0.8x0.5x4.4cm, oblique, on the back of trunk, with a graze abrasion of 3.2x2.7cm around. The upper end of graze abrasion was 5cm below the tip of shoulder. Wound was directed upwards and inwards._ _63. Abrasion 0.8x0.5cm, on the left side of back, 2.5cm outer to midline and 30cm above natal cleft._ _64. Multiple small abrasions over an area of 2.5x2cm, on the right side of back 5cm outer to_ Crl.Appeal No. 177/2012 & con. Cases 14 _midline and 16cm above natal cleft.”_ 6. PW20 is the Doctor who conducted post mortem examination on the body of the deceased and the cause of death is stated to be multiple injuries sustained by the victim. 7. There were three occurrence witnesses involved in the instant case. All of them are in agreement with respect to the manner in which the alleged incident happened. PW1 came to the place while the incident was going on. But, the genesis of the alleged incident was clearly narrated by PWs 2,3 and 13, who had seen the entire episode. All of them are in agreement with respect to the respective overt act of accused Nos.1 to 6. It is the accused persons who came there in two bikes and accused No.1 made an altercation that they are RSS persons and that they would kill all of them and caught hold on the victim and pulled him out of the shop with the assistance of other accused persons and inflicted injury by using an iron pipe. PWs 1 to 3 and 13 are in agreement with respect to the respective overt act of accused Nos. 1 to 6. It Crl.Appeal No. 177/2012 & con. Cases 15 was submitted that PW1 is a strong associate of victim involved in several criminal activities by relying on Exhibits D14, D18 and D19. Several other grounds were also raised challenging the credibility of PW1. In fact, what is deposed by PW1 is perfectly in tune with the oral evidence tendered by PWs 2, 3 and 13, the three occurrence witnesses. PW2 had undergone a lengthy cross examination, but no contradiction or material omission, much less any omission, was brought out except Exhibit D8 with respect to the pronunciation of the word 'screw driver'. PW3 had given full support to PW2 regarding the genesis of the incident and the manner in which the alleged incident happened. He had deposed each and every overt act of accused. Both PW2 and PW3 had given a complete narration with respect to the alleged incident. Nothing was brought out to discredit their oral testimony. PW13 is the shop owner Nujumudeen, who is also in agreement with PWs2 and 3 and had given full support to their oral testimony. Crl.Appeal No. 177/2012 & con. Cases 16 8. The main substratum of the prosecution case assailed by the accused mainly on the reason that in the FIS given by PW13 there is a correction by which the word 'iron rod' was struck off by substituting the word 'iron pipe'. The FIR was registered by 8.00 p.m., within five hours after the alleged incident which was happened by 3.30 p.m, and it was received by the concerned Magistrate on the next day itself. There may be corrections in the FIR or in the FIS while drawing the same and if it was found effected during its recording or its preparation it will not affect its probative value. In fact, the correction is not at all material as there may not be much difference in the user of the word 'iron pipe' or 'iron rod'. Such a mistake is quite probable and normal when the FIS was given within few hours by a person who had witnessed the homicidal attack. 9. The next ground raised is that in Exhibit P13 wound certificate the number of persons involved was originally stated as twenty, then it was corrected as five. It was Crl.Appeal No. 177/2012 & con. Cases 17 contended that being the early document, it has its own probative value and what is recorded by the Doctor in the wound certificate is relevant. PW18, the Doctor who had drawn Exhibit P13 wound certificate had narrated the circumstances under which the number of persons shown as twenty and its correction that he had heard somebody saying about twenty persons, but later on it is understood as five persons and hence the correction was effected then and there. The remand report submitted was also brought to our notice in order to show that nothing was mentioned with respect to the user of screw driver. It is not necessary that the remand report should contain all details of the alleged incident. The non inclusion of one of the weapons used for the commission of offence in the remand report, thus, is not fatal to the prosecution. It was also submitted that in Exhibit P19 series of search memo, permission was sought to detect iron pipes and sword stick. But, no sword stick is seen involved in the crime. Search memo is a part of procedure to be adopted by the Crl.Appeal No. 177/2012 & con. Cases 18 investigating agency for collection of evidence and what is material is the collection of evidence and not what is stated in the search memo. 10. There are corresponding injuries noted in the post mortem examination report showing the specific overt act of each and every accused. It was submitted that none of the occurrence witnesses specified the number of blows struck on the victim by each accused. When there is a massive attack, it may not be possible to identify each and every blows with its precision and it is humanly impossible to narrate each and every blows struck on the victim in its sequence by each and every accused in a massive attack. The screw driver which was recovered based on the confession statement alleged to have been given by accused No.3 while under police custody found to be stained by 'O' group of human blood, the blood group of the victim. 11. The medical evidence assailed on the ground that the cause of death is not specifically recorded in the post Crl.Appeal No. 177/2012 & con. Cases 19 mortem examination report, but there is only a general statement that the victim died due to multiple injuries and hence it would stand outside the purview of Section 45 of the Evidence Act. The injuries noted as ante mortem comes to 64 in numbers, which includes abrasions, contusions etc. The Doctor who conducted post mortem examination had given oral evidence as PW20 and based on the entries in Exhibit P15 post mortem examination certificate, she had given expert opinion regarding the cause of death. Injury Nos.1, 6 and 46 are sufficient to cause death in its ordinary course of nature. Injury Nos.10, 13, 30, 32, 38, 39, 40 and 62 are lacerated punctured wounds and she is of the opinion that those injuries could be possible by the impact of a screw driver. Injury No.6 is a soft ligature could be possible by the impact of MO5 and injury No.5 also could be possible by the impact of MO5. Injury No.3 is also possible by beating with MO2 and MO3. Injury No.1 is possible by pulling the neck twisted with MO5 and grounding with the foot over the hip. The possibility of Crl.Appeal No. 177/2012 & con. Cases 20 origin of other injuries also spoken by PW20. The medical evidence adduced fully and completely supports the oral testimony of PWs 2, 3 and 13 and also the main substratum of prosecution case. 12. The motive behind the crime was also established by the prosecution as the victim was an active worker of SFI and DYFI - Students Union and the Youth Wing associated with Communist Party of India (Marxist) and accused persons are active workers of RSS. The altercation made by accused No.1 while unleashing attack on the victim along with other accused would sufficiently show the motive behind the crime as spoken by PWs 2, 3 and 13. 13. Then the question comes whether the homicidal death of the victim would come under the purview of Section 300 IPC and whether it would fall under any of the exceptions attached to it. The learned Sessions Judge found that the evidence tendered by the prosecution will not show that the accused inflicted grievous injuries on the vital part of the Crl.Appeal No. 177/2012 & con. Cases 21 victim by using deadly weapons. But the bodily injuries likely to cause death are intentionally caused by the accused which have resulted in the death of the victim and hence the offence would fall under Part I of Section 300 IPC, without entering into any finding whether it would attract any of the four clauses to Section 300 IPC and whether there is application of any of the exceptions attached to it. Injury Nos.1, 6 and 46 are sufficient to cause death in its ordinary course of nature and it could be possible to cause injury No.1 by stretching and pulling the body of the victim by twisting around the neck with a shawl like MO5 and pinioned his hip with his foot. Injury No.1 discloses contusion 14x2x1.5cm on the back of trunk across the midline, the upper end 15cm below the hairline. It is also reported that atlanto occipital joint dislocated backwards. It is opined by the Doctor that concussion of spinal cord cannot be ruled out due to atlanto occipital joint dislocation. Attached to injury No.1 it is reported that brain found to be oedematous and petechiae present in the white Crl.Appeal No. 177/2012 & con. Cases 22 matter. This would show the extensive nature of injury No.1 and its consequences to the brain and spinal cord. It was submitted that no injury was caused on any vital part of the victim, though the number of injuries comes to 64 or more and it has no consequence while adjudging whether it would come under the purview of any of the exceptions to Section 300 IPC. 14. It was also submitted that the number of injuries may not be a decisive factor taking reliance from a Three Judge Bench decision of the Apex Court in **Atul Thakur v. State of Himachal Pradesh (2018 KHC 6019)** . The proposition laid down is that the number of injuries by itself would not be a decisive factor. That does not mean that the number of injuries and independent blows struck on the victim are not relevant while considering the application of any of the exceptions to Section 300 IPC. 15. The injury No.1 is so fatal as it has caused atlanto occipital joint dislocation causing the brain oedematous. Crl.Appeal No. 177/2012 & con. Cases 23 Petechiae present in the white matter. Injury Nos.2 and 3 could be possible by beating with iron pipes - MO2 and MO3 - and it may lead to paralysis of lower limbs, according to the Doctor who conducted post mortem examination on the body of the deceased. Injury Nos.10, 13, 30, 32, 38, 39, 40 and 62 are lacerated punctured wounds and these injuries can be caused by stabbing with MO4 screw driver, according to PW20. Injury No.6 and injury No.46, besides injury No.1 are sufficient in its ordinary nature to cause death. It is also opined by the Doctor that the punctured wounds and the contusions are collectively sufficient in the ordinary course of nature to cause death. Injury No.10 is having a depth of 3.3cms. Injury No.13 is two contusions incorporating a lacerated punctured wound with abrasions. Injury No.30 is three lacerated punctured wounds, each of them having 8.2cm, 9.2cm and 0.3cm depth. Injury No.32 is having a depth of 7.5cm, 7.7cm to injury No.38, 13.2cm to injury No.39, 12.4cm to injury No.40 and 4.4cm to injury No.62. All these injuries are either directed Crl.Appeal No. 177/2012 & con. Cases 24 downwards and outwards or upwards and inwards. This would _prima facie_ show the high force applied while inflicting the above said injuries. All these injuries are penetrated through the tissues/muscles to a depth ranging from 3.3cm to 13.2cm. All the punctured wounds are having a depth of more than 7.5cm except injury Nos. 10 and 62. But none of these injuries are on any vital part of the victim. The opinion given by the Doctor that the punctured wounds and contusions are collectively sufficient in the ordinary course of nature to cause death would be relevant when there is indiscriminate attack with a screw driver, though not on the vital part, causing several deep punctured wounds all over his body. Injury Nos.3, 15 and 46 are fractures. Dislocation of elbow joint by virtue of injury No.57 also reported. Injury No.3 is on the vestibule. Injury No.13 is on the outer aspect of right forearm. The weapons used for inflicting injuries are a screw driver and iron pipes which are deadly in nature. On analysis of the nature of attack, weapon used and the number of Crl.Appeal No. 177/2012 & con. Cases 25 independent blows, the following would emerge:- (i) All the accused persons were found to be armed with weapons - iron rods and screw driver. (ii) The victim was unarmed at the time of alleged incident. (iii) The number of assailants comes to six in number. But, the victim was alone at the time of commission of offence. (iv) A pre meditated commission of offence is well evident. (v) Accused No.1 made an altercation that they are the workers of RSS and they would kill him presumably on the reason that he is an active worker of SFI - DYFI. (vi) There were indiscriminate attack on the victim causing punctured wounds 8 in numbers (injury Nos.10, 13, 30, 32, 38, 39, 40 and 62) having a depth ranging from 3.3cm to 13.2cm. All the punctured wounds having a depth of more than 7.5cm except injury Nos.10 and 62. All these injuries Crl.Appeal No. 177/2012 & con. Cases 26 were produced by using a screw driver. (vii) Injury Nos.1,6 and 46 are sufficient to cause death in its ordinary course of nature. The accused No.1 stretched his body by pulling the body of the victim by twisting around his neck with a shawl (MO5) and grounded his hip with his foot so as to stretch the body to the opposite direction to the maximum possible extent which has resulted in injury No.1 causing dislocation to atlanto occipital joint backwards resulting oedematous brain. It would _prima facie_ show the force applied while stretching his body to the opposite direction by twisting a shawl around his neck and holding the other end with his foot. A violent frantic attack soaked with anger and enmity is well evident. Injury No.6 is the result of hit with iron pipe which is on the vital part of the victim (front of neck across the midline just 20cm below the lower border of jaw bone) having a measurement of 11x5cm. Flap dissection of neck revealed a horizontal linear tear of 9cm in left common carotid artery. Injury No.46 is a both bone Crl.Appeal No. 177/2012 & con. Cases 27 fracture to the left leg crushing the muscles. Expert opinion given through PW20, the Doctor who conducted autopsy on the body of deceased, is that these three injuries are sufficient to cause death in its ordinary course of nature. (viii) Injury Nos.2 and 3 are the result of hit with iron pipe. Injury No.2 is on the right shoulder just 3.5cm outer to the root of neck and injury No.3 is the fracture to second thoracic vertebrae oblique involving the body spinal cord underneath soften. These two injuries are sufficient to lead paralysis of lower limbs, according to the Doctor who conducted autopsy on the body of the deceased. It is really on a vital part of the victim, but expert opinion in that behalf was not brought out through the expert witness, PW20, by the prosecution. (ix) The number of ante mortem injuries comes to more than 64 as some of the injuries are grouped together in Exhibit P15 post mortem examination report, out of which 8 injuries are lacerated punctured wounds. Three other injuries reported Crl.Appeal No. 177/2012 & con. Cases 28 are also sufficient to cause death in its ordinary course of nature. 16. In the instant case, except one injury all others are not on the vital part. The assailants, 6 in numbers, attacked the victim with iron pipes and screw driver. Except two injuries, all other punctured wounds are caused by the impact of screw driver having a depth of more than 7.5cm. Various bone fractures were reported. Injury No.46 is on the left leg causing both bone fracture and crushing of muscles. Injury No.1 is so serious as his body was stretched so as to cause brain oedematous due to the impact of dislocation of atlanto occipital joint. Intention to cause death or to cause such injury sufficient to cause death cannot be inferred in the absence of any injury to any vital part of the victim. All injuries inflicted, though some are very serious in nature including both bone fracture and punctured wounds, will not satisfy the intention to cause death or to cause such injuries sufficient to cause death except injury No.1 and the alleged stretching of body. Injury Crl.Appeal No. 177/2012 & con. Cases 29 No.1 is the result of the alleged act of accused No.3 by stretching the body of the victim to opposite direction by tying MO5 around his neck and grounding his hip with his foot. It may be the result of a frantic attack on the victim and it is too difficult to draw an inference that injury No.1 was caused with the knowledge that it may cause death in its ordinary nature. 17. In a case before the Apex Court in **Rajinder v. State of Haryana ((2006) 5 SCC 425)** wherein the accused after a declaration that he would teach a lesson to the victim shot on his right thigh, it was held that the offence would come under the purview of Section 304 Part I IPC. 18. In **Kapur Singh v. State of Pepsu [1956 KHC 459]** a Three Judge Bench of the Supreme Court had the occasion to consider a case wherein as many as eighteen injuries were inflicted on the arms and legs of the deceased with grandasa while his companion held the head of the deceased, wherein conviction under Section 302 IPC was converted into part I of Section 304 IPC. The relevant portion Crl.Appeal No. 177/2012 & con. Cases 30 ## of the judgment is extracted below for reference: _“...... It appears that the appellant intended to inflict on the arms and legs of the deceased such injuries as would result in the amputation of both the arms and both the legs of the deceased, thus wreaking his vengeance on the deceased for what his son, Bachan Singh, had done to his own son Pritam Singh. The fact that no injury was inflicted on any vital part of the body of the deceased goes to show in the circumstances of this case that the intention of the appellant was not to kill the deceased outright. He inflicted the injuries not with the intention of murdering the deceased, but caused such bodily injuries as, he must have known, would likely cause death having regard to the number and nature of the injuries.”_ 19. The number of injuries inflicted by the accused by itself cannot be a decisive factor and took support from a three Judge Bench decision of the Apex Court in **Atul Thakur v. State of Himachal Pradesh (2018 KHC 6019** ). 20. In another case the deceased sustained one incised injury on his back which caused injury to scapular and spinal Crl.Appeal No. 177/2012 & con. Cases 31 cord and another incised wound on his back just below the scapula causing injury to right lung and and pleura. The injuries were sustained in a scuffle. It was found by the Apex Court in **Dilip Kumar Mondal and Another v. State of West Bengal [(2015) 3 SCC 433]** that the case would come under the purview of Exception 4 to Section 300 IPC as it was happened in a scuffle between the parties without any pre meditation. ## 21. In **State of A.P. v. Rayavarapu Punnayya[(1976)** **4 SCC 382 = 1976 SCC (Cri) 659]** the Apex Court had to deal with a similar situation. In that case, the accused, 5 in number, beat the victim with sticks on his legs and arms and when hospitalized, the victim succumbed to the injuries. The medical officer who conducted the autopsy opined that the cause of death was shock and haemorrhage resulting from multiple injuries and the said injuries were cumulatively sufficient to cause death in the ordinary course of nature. The Apex Court had considered the question what would be the Crl.Appeal No. 177/2012 & con. Cases 32 legal impact when there is no fatal injury to the vital part of the victim and whether it would satisfy the requirement under Section 300 IPC to bring the matter within the purview of “murder”. The relevant portion of the judgment is extracted below fore reference: _“39.....All these acts of the accused were preplanned and intentional, which, considered objectively in the light of the medical evidence, were sufficient in the ordinary course of nature to cause death. The mere fact that the beating was designedly confined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death, will not exclude the application of clause Thirdly of Section 300. The expression “bodily injury” in clause Thirdly includes also its plural, so that the clause would cover a case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures up to such sufficiency. The sufficiency spoken of in this clause, as already noticed, is the high_ Crl.Appeal No. 177/2012 & con. Cases 33 _probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall under clause Thirdly of Section 300. All the conditions which are a prerequisite for the applicability of this clause have been established and the offence committed by the accused, in the instant case was 'murder'.”_ 22. The Apex Court in **State of Madhya Pradesh v. Goloo Raikwar and Another [(2016) 12 SCC 139]** had converted the conviction under Section 302 IPC into a one under Part I of Section 304 IPC reducing the sentence of life imprisonment to rigorous imprisonment for ten years following the proposition laid down in **Rayavarapu Punnayya's** case (supra). 23. Going by the legal position settled as above, we are of the considered view that the liability that can be fastened against the accused is only under Part I of Section 304 IPC and the sentence awarded for the said offence strikes a proper balance. No case of sudden fight or provocation for the offence Crl.Appeal No. 177/2012 & con. Cases 34 was brought out. On the other hand, the offence is a pre meditated one. All the accused were armed with deadly weapons which would squarely reveal their common object. The sentence awarded for the offence under Sections 143, 147 and 148 IPC also strikes a proper balance and hence the appeals deserve only a dismissal and we do so. In the result, all the appeals are hereby dismissed. Sd/- ## **A.M.SHAFFIQUE (JUDGE)** Sd/- ## **P. SOMARAJAN (JUDGE)** DMR/-