Calcutta High Court (Appellete Side)
Md. Anwar vs The State Of West Bengal on 5 May, 2026
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
C.R.A. 327 of 2009
Md. Anwar
-Vs-
The State of West Bengal
With
CRA 339 of 2009
Sudhir Shaw
-vs-
The State of West Bengal
With
CRA 347 of 2009
Anup Shaw
-vs-
The State of West Bengal
With
CRA 359 of 2009
Bikash Paswan
-vs-
The State of West Bengal
For the Appellant : Mr. Abhijit Kumar Adhaya
Ms. Sudeshna Basu
Ms. Banani Bhattacharya
Ms. Upasana Das
(In CRA 327 of 2009)
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For the Appellant : Mr. Arindam Sen
Mr. Saurav Basu
Mr. Asit Bera
(In CRA 347 of 2009 & CRA 359 of 2009)
For the Appellant : Mr. Pritam Roy
Ms. Arushi Rathore
Ms. Triparna Roy
(In CRA 339 of 2009)
For the State : Ms. Faria Hossain
Mr. Anand Keshari
Judgment on : 05.05.2026
Ananya Bandyopadhyay, J.:-
1. These appeals are preferred against the judgment and order dated
30.04.2009 passed by the Learned Additional Sessions Judge, 6 th Fast Track
Court, Bichar Bhavan, Calcutta in Sessions Trial No.1 of October, 2007
arising out of Sessions Case No.68/2007, thereby convicting the appellants
i.e., Anup Shaw, Sudhir Shaw under Section 304 (Part-II)/34 of the Indian
Penal Code and sentencing them to suffer rigorous imprisonment for 6 years
each and also to pay a fine of Rs.3,000/- each in default to suffer further
rigorous imprisonment for 6 months each and others appellants i.e., Bikash
Paswan, Md. Anwar under Sections 324/34 of the Indian Penal Code and
sentencing them to suffer rigorous imprisonment for 3 years and also to pay
a fine of Rs.2,000/- each in default to suffer further rigorous imprisonment
for 6 months each.
2. The prosecution case precisely stated on 30.04.2007 at about 16:15 hours
two groups of boys brawled over positioning in a playground at Lovers Lane
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and K.P. Road beside Race-Course Ground, where a group of boys including
the appellants were playing cricket and another group were to playing
football simultaneously. Altercation aggravated when the group of boys i.e.
the victims and the deceased in requested the appellants playing cricket to
remove the stone which was not removed. Eventually, it was removed by the
group of boys who had come to play football i.e. the victims and the
deceased. The group of boys playing cricket formed an unlawful assembly
being armed with stumps, cricket bats and brick bats and in furtherance of
the common object assaulted those group of boys playing football as a result
Md. Abir @ Md. Imran sustained severe head injury and Raja @ Md. Samir
and Majid Alam also sustained injury. Md. Abir @ Md. Imran was removed to
S.S.K.M. Hospital and there from to B.M. Birla Heart Research Centre where
Md. Abir @ Md. Imran was declared brought dead and Majid Alam and Md.
Samir @ Raja, the two injured persons were admitted at Ekbalpur Nursing
Home.
3. On the basis of the statement of one Saddam Hossain (PW-2), Hastings P.S.
Case No.94 dated 30.04.2007 was initiated against 15/20 unknown persons
including the appellants for the offence under Sections 148/149/324/302 of
the Indian Penal Code for investigation.
4. During the investigation 7 persons were arrested namely Bikash Paswan,
Kushu Shaw, Md. Anwar, Anwar Ahmed, Anup Shaw, Sukdeb Dolui and
Sudhir Kr. Shaw. Out of those 7 persons during identification parade, 2
persons namely Sukdeb Dolui and Kushu Shaw were not identified. The
other 5 persons facing trial were duly identified by the witnesses. So, on
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completion of the investigation charge-sheet was submitted against 5
persons namely Bikash Paswan, Md. Anwar, Anwar Ahmed, Anup Shaw and
Sudhir Kr. Shaw for the offence under Sections 148/149/324/304(Part-II) of
the Indian Penal Code with a further prayer implicating two accused persons
namely Kushu Shaw and Sukdeb Dolui be discharged for want of sufficient
evidence. On receipt of the charge-sheet, the aforesaid accused persons were
discharged by the Ld. Court of Metropolitan Magistrate, 11 th Court, Calcutta
vide order dated 27.07.2007.
5. Charges were framed against 5 appellants namely Bikash Paswan, Md.
Anwar, Anwar Ahmed, Anup Shaw and Sudhir Shaw under Sections
148/149/324/304 (Part-II) of the Indian Penal Code to which they pleaded
not guilty and claimed to be tried.
6. In order to prove its case, the prosecution examined as many as 21
witnesses and examined certain documents while the defence had also
examined five witnesses.
7. The Learned Advocates for the appellant/Md. Anwar in CRA 327 of 2009
submitted as follows:-
i. "The prosecution examined as many as 19 witnesses to prove the case
but the accused examined none.
ii. PW-2 Saddam Hossain whose evidence-in-chief says that Md. Abir @
Md. Imran fell down and there was a quarrel for removing of big stone
that was lying there. That in his cross-examination he stated that at the
time of T.I. Parade no similar persons were mixed up with the suspects.
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He further stated that he was at home and his grandparents told him to
go to P.S.
iii. That witness further stated that he saw the accused in the Maidan as
well as in the jail. A suggestion was given that the accused was shown
to the witness outside the Court but he denied so.
iv. PW-7, Tariq Hussain denied the fact that he was assaulted by Md.
Anwar.
v. PW-8 Sk. Sikandar could not and/or did not identify the assailant who
assaulted Md. Abir @ Md. Imran.
vi. PW-17, the Learned Magistrate who held T.I Parade about two months
after the incident i.e., on 04.06.2007 that Sadam Hussain identified the
appellant by touching his hand on their head and said that the
appellant assaulted Majid Alam by fist and blows. The Learned
Magistrate in his cross examination did not mentioned that U.T.P's meet
with the other suspects were of similar age, same height and in similar
dress. He also stated that during the T.I Parade witnesses did not say
anything before him and also did not obtain any signature of the
suspect in the T.I. Parade Memo.
vii. PW-14 and PW-15 were the doctors who treated Md. Abir @ Md. Imran
who brought dead. PW-15 in his examination in chief stated that there
was fracture in parietal and occipital suture and no other injury could
be detected. He opined that the death was due to the effect of head
injury. He was his cross examination stated that he did not mentioned
in the post-mortem report as to whether the death was due to
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accidental, homicidal or suicidal. He volunteered that it was not
possible to give exact time of death.
viii. PW-16 was also another doctor attached to Ekbalpore Nursing Home,
he did not give out any statement only as to the fact to the report which
bears the handwriting of Dr. T.N Wangdi.
ix. Under Section 313 of Criminal Procedure Code was not done properly
and the circumstances were not put clearly to show that the accused
committed any offence.
x. From the scanning of entire evidence on record and from the statement
made under Section 313 of Criminal Procedure Code, it was evident
that the present appellant did not commit any offence and the death
was due to injuries on the head which may be a fall on a big stone
upon which he fell and which caused injuries on his head.
xi. The appellant submitted that the appellant was in custody for about 2
years and 7 months which covers his total sentence of 3 years under
Section 324/34 of Indian Penal Code. The appellant also submitted that
he had paid fine and as such he had completed the sentence that was
pronounced by the Learned Judge although not admitting that he had
committed any offence nor was present at the place of occurrence at the
time of offence.
Therefore, the appellant prays that he may be acquitted from the
charges levelled against him including return of the fine".
8. The Learned Advocates for the appellant/Anup Shaw in CRA 347 of 2009
and the appellant/Bikash Paswan in CRA 359 of 2009 submitted as follows:-
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i. "The instant case viz. Hastings Police Station Case No.94 of 2007 dated
30.04.2007 culminating into Sessions Case No.68 of 2007
corresponding to Sessions Trial No. 01 of October 2007 was registered
on the basis of the statement of one Saddam Hossain (who has been
examined as PW-2) alleging inter alia that on 30.04.2007, at about
16:00 hours Saddam Hossain himself along with one Raja (PW-9),
Majid Alam (PW-5), Sajad, Chotu alias Wasim Aslam (PW-4), Shoab
alias Md. Soheb (PW-6) and Vicky alias Tarique Hossain alias Tarik
Hossain (PW-7) and others all are of Ebrahim Road, Kolkata football
beside Race Course Ground in between K.P. Road, Kolkata - 700023
went to play and Lover's Lane. It was alleged that after reaching there
they could find that 15-20 persons were playing cricket there and they
allegedly requested them to remove one big stone from the field which
was kept on the opposite side of the three stumps as this was causing
problem for them to play football. It was further alleged that as a result
of this an altercation ensued and it was again alleged that those
persons became furious and suddenly attacked the complainant party
with cricket bats, stumps, brick bats, etc, and as result of which, one
Md. Abir alias Md. Imran, son of Md. Rafique of 26/1B, Ekbalpore
Road, Kolkata-700023 sustained injury on his person at about 16:15
hours and fell down on the ground. Md. Sameer alias Raja (PW-9) and
Majid (PW5) also sustained injuries. Sk. Javed (PW-11), Mehbooh
Ahmed (not examined) and one Imtiaz (PW-10) removed Md. Abir alias
Md. Imran to SSKM Hospital in a taxi whereas Saddam Hossain along
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with Shoab and Vicky removed two injured persons Sk. Raja and majid
to Ekbalpore Nursing Home. Lastly it was alleged that subsequently the
said Saddam Hossain came to know that Md. Abir alias Md. Imran at a
later stage was removed to BM Birla Heart Research Centre where he
allegedly expired. (Statement of Saddam Hossain, treated to be the
complaint to register the First Information Report.
ii. It was pertinent to mentioned that all the alleged assailants were
unknown to the complainant as well as other alleged eye witnesses
and injured witnesses. No specific name of the alleged assailants was
ever mentioned in the First Information Report.
Medical Evidences:
iii. Saddam Hossain (PW-2), Chotu alias Wasim Aslam (PW-4), Majid Alam
(PW-5) (injured witness), Shoab alias Md. Soheb (PW-6), Vicky alias
Tarique Hossain alias Tarik Hossain (PW-7), Sk. Sikandar (PW-8), Md.
Sameer alias Raja (PW-9) (injured witness) all have specifically stated
about the altercation and due to scuffle Md. Abir alias Md. Imran fell
down on the ground and confirms presence of a big stone at the spot.
The inquest report which was specified only one injury i.e. on the right
chest, hospital border, measuring 2" x 2". Sub Inspector B.T. Karmakar
(PW-19) of Alipore Police Station, who allegedly held the inquest over
the dead body of Md. Abir alias Md. Imran, has categorically mentioned
during his cross examination for appellant Bikash Paswan to the effect
that he did not saw any other injury apart from the injury on the chest,
further confirmed that there was no bandage in any other body part. Be
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it noted that in the inquest report that it was specifically mentioned that
the dead body of Md. Abir alias Md. Imran, was identified by the
witnesses present over there to be that of the deceased.
iv. At that juncture it was most relevant to refer to the evidence of Dr.
Bikash Mukherjee (PW-15), who held post-mortem over the corpse of the
deceased and found the following injuries:
a) Abrasion tip of left shoulder measuring 3" x 1".
b) Abrasion ¼" x ¼" in the middle of left side of neck.
c) Abrasion ½" x ½", 1" below the left elbow.
d) An occipital suture facture.
e) Evidence of subdural hemorrhage on both sides of the brain, it
was specifically mention by PW-15 that no other injury could be
detected and specifically opined that the death was due to the
injury, ante mortem in nature.
v. Keeping in view the self-contradictory statements of these two
witnesses, viz. PW-19 and PW-15, it was doubtful as to whether the
deceased was ever taken to B.M. Birla Heart Research Institute where
he claimed to have expired and the inquest was done.
vi. It was most pertinent to mention that according to the post mortem
report, the injuries noted to have been sustained by the deceased as
mentioned in details hereinabove, it had been specifically deposed by
the post-mortem doctor PW-15, during his cross examination for
Appellant Sudhir Shaw and Anup Shaw that "occipital is on the back
side of the head. The injury on the occipital may be caused due to fall
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from height on stone or some hard substance. If a person is pushed
forcibly and he falls on some hard substance including stone, this
injury may be caused on occipital region. It is correct that among all the
injuries the injury as mentioned at serial no. 4 viz. (An occipital suture
facture) in the PM report is vital. I have not mentioned in the PM report
as to whether the death was due to accidental, homicidal or
suicidal.........."
In view of the aforesaid deposition of the PW-15, the post mortem
doctor and keeping in view the evidences of Saddam Hossain (PW-2),
Chotu alias Wasim Aslam (PW-4), Majid Alam (PW-5) (injured witness)
Shoab alias Md. Soheb (PW-6), Vicky alias Tarique Hossain alias Tarik
Hossain (PW-7), Sk. Sikandar (PW-8), Md. Sameer alias Raja (PW-9)
(injured witness), the most reasonable possibility of accidental death of
the deceased, Md. Abir alias Md. Imran, during scuffle by falling on the
stone or hard surface of the land cannot be ruled out. It is not out of
place to mention that each of the witnesses as mentioned hereinabove,
specific suggestions were put during their cross examination concerning
the accidental death of Md. Abir alias Md. Imran, by falling on stone
during alleged scuffle.
vii. It was the settled position of law that if two views concerning the
involvement of the accused persons in commission of the crime are
reasonably possible keeping in view the evidences laid down during
trial, the view which was most favourable to the accused person was to
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be adopted. In that regard the appellants wish to rely on the following
judgments.
Non Seizure of any alleged weapon of offence:
viii. It was the specific evidence of the investigating officer (PW21) that after
reaching the place of occurrence, he seized some articles viz. One Stone
and brickbat in presence of witnesses. Further on the spot the said
stone and brickbat were packed, sealed and labeled. He also claimed
to have made search to seize the offending weapons, bat and stump
but he did not get at the spot. It had been specifically admitted by the
investigating officer during his further cross examination for accused
Anwar Ahmed on 20.11.2008, that it was correct that no instrument
regarding the cricket was recovered from the house of any of the
accused persons.
ix. Therefore it can safely be concluded that the alleged assault, as
attempted to be projected by the so called eye witnesses, could not be
proved by the prosecution due to non-seizure of the incriminating
articles as alleged and hence such improbability of such version of the
eye witnesses consequently probabalizes the possibility of the
accidental death of Md. Abir alias Md. Imran, by falling on stone or
hard surface of the playground.
Identification of Bikash Paswan
x. During test identification parade, the appellant Bikash Paswan was
identified by Md. Sameer alias Raja (PW-9), Shoab alias Md. Soheb
(PW-6) and Sk. Sikandar (PW-8).
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xi. According to Md. Sameer alias Raja (PW-9), Bikash Paswan assaulted
injured witness Majid Alam (PW-5) but Majid Alam (PW-5) could not
identify Bikash Paswan. Since Majid Alam (PW-5) allegedly could
identify appellant Anup Shaw. Further, Majid Alam (PW-5) did not state
who assaulted him. Even Majid Alam (PW-5) did not state who
assaulted Md. Sameer alias Raja (PW-9). Further, Majid Alam (PW-5)
could not produce his discharge certificate during trial and even he did
not hand over his blood stained wearing apparels to the police.
xii. Again the injured witness Majid Alam (PW-5) has admitted that "it is
correct that I have appeared in the court twice and thrice before my
evidence in this court" hence, the identification of appellant Bikash
Paswan during trial by Majid Alam (PW-5) loses all its value in the light
of his such specific admission.
Arguments concerning Test Identification Parade
xiii. It appeared from the evidence of PW-17 Anil Kumar Prasad, the then
Metropolitan Magistrate, 14th Court, Calcutta, held test identification
parade on 04.06.2007 which was admittedly 35 days after the alleged
incident and such delay has not been explained by the investigating
officer by adducing evidence showing cogent reason.
xiv. The following particulars can be brought out from the evidence of PW-17
regarding the mode and manner of holding test identification parade of
the accused persons of the present case:-
a) The test identification parade was held of all the accused
persons at a time in a single row.
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b) The entire test identification was held and concluded from 3:50
pm till 4:25 pm on 04.06.2007 at Presidency Correctional Home
and altogether seven witnesses i.e., PW-2, PW-7, PW-9, PW-4,
PW-6, PW-5 and PW-8 participated in the test identification
parade within such a short span of 35 minutes.
c) During cross-examination of PW-17 for appellants Anup Shaw
and Sudhir Shaw, it is specifically admitted -
a. It was not specifically mentioned in the report that the
under trial prisoners mixed with the suspects were of
similar age, same height, of same sex and of similar dress.
All the identifying witnesses viz. Saddam Hossain (PW-2),
Chotu alias Wasim Aslam (PW-4), Majid Alam (PW-5)
(injured witness), Shoab alias Md. Soheb (PW-6), Vicky
alias Tarique Hossain alias Tarik Hossain (PW-7), Sk.
Sikandar (PW-8), Md. Sameer alias Raja (PW-9) (injured
witness), have accepted that fact.
b. It was further not mentioned in the report that after the
identification by one witness, the position or the places of
the suspects were changed.
c. It was not mentioned in the report that the suspects were
offered to stand at the places of their choice at the time of
test identification parade.
d. It was also not mentioned in the report that the suspects
were offered to wear the dress of their choice.
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e. Lastly, the signatures of any of the suspects were not
obtained on the test identification memo.
xv. In view of the aforesaid admission and/or admitted position as
admitted in the evidence of the PW-17, the outcome of the test
identification parade so held in the present case was absolutely
vitiated for non-compliance of the legal mandates as per the settled
position of law and therefore the benefit of doubt ought to have been
extended to the appellants in respect of the present case.
xvi. Further, delay in holding test identification parade of the suspects
without having any cogent explanation to that effect, the same itself
vitiates the very essence of the test identification parade.
Regarding free fight and alleged assault by the appellants:-
xvii. Saddam Hossain (PW-2), Chotu alias Wasim Aslam (PW-4), Majid Alam
(PW-5) (injured witness), Shoab alias Md. Soheb (PW-6), Vicky alias
Tarique Hossain alias Tarik Hossain (PW-7), Sk. Sikandar (PW-8), Md.
Sameer alias Raja (PW-9) (injured witness) during their examination
have not specifically mentioned as to who assaulted whom and
specifically who had assaulted the deceased and at best it can be
concluded that there was a free fight over the issue of playing games
amongst a large number of persons belonging to two or more groups out
of which the deceased Md. Abir alias Md. Imran, might have sustained
accidental injury resulting to his death. None of these acts can very well
be said to be premeditated and the same took place on the spur of the
moment. Under no stretch of imagination it can be said the accused
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persons have shared common intention amongst themselves either to
cause culpable homicide of the deceased or voluntarily causing hurt by
dangerous weapons or means within the meaning of Section 324 of the
Indian Penal Code.
None of the above witnesses have deposed that the accused persons
jointly and/or severally that they have in any way facilitated and/or
promoted the commission of the alleged offences. More so when none of
the witnesses have said as to which of the accused have played the
role to what extent.
Argument relating to sentence
xviii. In view in the judgment and order of sentence dated 30.04.2009,
appellant Anup Shaw had been convicted under Section 304 Part II
read with Section 34 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for 6 years whereas Bikash Paswan was
convicted under Section 324 read with 34 of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for 3 years.
xix. It appeared from the record that the appellant Bikash Paswan was
arrested on 30.04.2007 whereas the appellant Anup Shaw was
arrested on 01.05.2007 and they remained in custody during trial and
only on 18.08.2009 Anup Shaw was granted bail by this Hon'ble Court
under Section 389 of the Code of Criminal Procedure and ultimately got
released from custody on 21.08.2009 and hence Anup Shaw suffered
detention of 2 years 4 months and 5 days whereas Bikash Paswan
was granted bail on 24.06.2009 by this Hon'ble Court under Section
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389 of the Code of Criminal Procedure and ultimately stood released
from custody on 13.07.2009 and hence Bikash Paswan suffered
detention of 2 years 2 months and 14 days. The incident took place
way back in 2007 which was almost 18 years back when all the
accused persons were of tender age and since such a long time has
already lapsed, it was prayed that the quantum of sentence may be
considered leniently, keeping in view the fact that both the appellants
have already suffered substantive detention in connection with the
present case.
Conclusion
In view of the above argument, appellant Anup Shaw (CRA 347 of
2009) and appellant Bikash Paswan (CRA 359 of 2009) may be
acquitted from their respective charges of conviction for the ends of
justice".
9. The Learned Advocate for the State submitted as follows:-
i. "The present case arises out of Hastings P.S. Case No.94 dated
30.04.2007 related to a dissension that started over a position or place
of a playground between the accused persons group and another victim
persons group on 30.04.2007 at about 16:15 hrs. The appellants
Bikash Paswan, Mohammad Anwar, Anwar Ahmed, Anup Shaw,
Sudhir Shaw allegedly assaulted the victims Saddam Hussein (PW-2)
Wasim Aslam (PW-4) Majid Alam (PW-5) Md. Sohel (PW-6) Jarik
Hussain (PW-7) Sk. Sikandar (PW-8) Md. Samir (PW-9) with cricket bat
and wicket, bricks, stones and stumps on the playground causing hurt
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by dangerous means and inducing culpable homicide not amounting to
murder and as a consequence 5 persons were Sent for trial and
prosecuted under section 304 (Part-2)/324/34 of the Indian Penal Code
1973 during Session Trial Number 1st October, 2007. Thereafter, 21
prosecution witnesses were examined including injured person, the
medical officer and the investigating officer subsequently after
considering the evidence on record. The Learned Trial Court had
acquitted Anwar Ahmed and convicted Anup Shaw, Sudhir Shaw were
found guilty to the charge of the offence under Section 304 (Part-2)/34
and Bikash Paswan, Mohammad Anwar found guilty to the charge of
the offence under Section 324/34 of the Indian Penal Code 1973.
Therefore, the appellants Anup Shaw and Sudhir Shaw were
sentenced to suffer Rigorous imprisonment for 6 years each and to pay
fined Rs.3,000/-. And Mohammad Anwar and Bikash Paswan were
sentenced to suffer rigorous imprisonment for 3 years and fined
Rs.2,000/-.
ii. The present appeal had been preferred against the judgement and
order dated 30.04.2009 in Session Trial No.1 /October/ 2007 arising
out of Hastings P.S. Case No.94 dated 30.04.2007 under Section(s)
148/149/324/302 of the Indian Penal Code 1973. Where in the
appellants convicted under Section 304 (Part-2)/34 and 324/34 of the
Indian Penal Code 1973 and out of 4, 2 of them sentenced to suffer
rigorous imprisonment for 6 years and pay fine of Rs.3,000/- and other
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two of them sentenced rigorous imprisonment for 3 years and pay fine
of Rs.2,000/-.
iii. It was submitted that the conviction of the appellants under Section 304
(Part-2)/324/34 of the Indian Penal Code, 1973 stands fully justified
as PW-2, PW-4, PW-5, PW-6, PW-7, PW-8, PW-9 clearly deposed that the
appellants assaulted them with a cricket bat, bricks, stone, stumps
resulting in culpable homicide not amounting to murder causing hurt by
dangerous means and such testimony of the injured persons has a
strong evidentiary value. Although the F.I.R., also narrated a
subsequent attack on the complainants alleging assaulted with cricket
bat, bricks, stone, stumps the core incident of causing hurt by
dangerous means, culpable homicide not amounting to murder remains
firmly proved through consistent eyewitnesses testimony and medical
corroboration.
iv. Any attempt to create doubt about the genesis of the F.I.R., was
irrelevant, the case of assault resulted to hurt by dangerous means and
culpable homicide not amounting to murder to the victims on the
playground which remains consistently credible and corroborated by
the evidence of PW-2, PW-4, PW-5, PW-6, PW-7, PW-8, PW-9.
v. It was incorrect that there was no one present at the time of occurrence
PW-2, PW-4, PW-5, PW-6, PW-7, PW-8, and PW-9 were independent
witness who accompanied the injured persons to the hospital.
vi. The medical evidence substantially corroborates the assault and
culpable homicide not amounting to murder. PW-14, the first examined
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doctor who examined Md. Abir @ Md. Imran on 30.04.2007 who
declared him brought dead. He has proved Exbt.-3. PW-15, on
01.05.2007 had conducted the post-mortem over the dead body of Md.
Abir where he found five injuries on examination and had opined that
the death was due to effect of head injury ante-mortem in nature the
post-mortem report was proved by him which was Exbt.-6.
On 30.04.2007, PW-16 had proved that injury report Exbt.-7 and
Exbt.-7/1 in respect of injured Md. Samir and Majid Alam respectively.
The medical findings clearly aligned with and reinforced the
eyewitnesses in the account of assault and culpable homicide not
amounting to murder. Severity of the injuries of PW-2, PW-4, PW-5, PW-
6, PW-7, PW-8, and PW-9 leaves no scope for doubt.
vii. The contention was that the medical documents were improperly
exhibited and was completely devoid of merit. When the Doctor who
examined the victim Md. Abir has deposed and supported the Head
injury which was ante-mortem in nature and also examined Md. Samir,
Majid Alam had deposed and supported the injury. Therefore, it was a
settled principle that procedural or technical lapses could not be
permitted particularly when the oral evidence of the medical officer and
the injured witnesses stands cleared and consistent in various
judgements it had been held that insistence on rigid technical test could
not override credible direct evidence which establishes the offence
beyond reasonable doubt.
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viii. Conclusion:- In the circumstances, the prosecution has established all
essential ingredients of Sections 304 (Part-2)/324 read with Section 34
of the Indian Penal Code beyond reasonable doubt. The Learned trial
court meticulously appreciated the evidence, and no perversity or legal
infirmity exists in its judgement. Accordingly, the present appeal is
liable to be dismissed, and the conviction and sentence of the
appellants should be maintained".
10. A circumspection of the prosecution witnesses revealed as follows:-
i. PW-1 deposed he was a photographer and posted at Photography
Section, D.D. Lalbazar. He had taken the photograph of the P.O. as
identified by S.I. A.S. Nayek, the I.O. of the case. The said two
photographs were proved by him, which were marked as Mat. Exbt.-I
and Mat. Exbt.-II and its negatives were marked as Mat. Exbt.-I/1
and Exbt.-II/1 respectively.
ii. PW-2 deposed he was the informant and an eye witness. He along
with PW-5, PW-6, PW-7 and others including the deceased went to
play football opposite to Race Course. According to PW-2, the accused
persons were already engaged in playing cricket in the playground.
PW-2 and other witnesses requested the accused persons to remove
the stone but when the accused persons did not remove the stone, the
witnesses again requested to remove the stone but the accused
persons started assaulting the witnesses. PW-2 categorically stated
that the accused persons assaulted the deceased with cricket bat,
stump, bricks and stones. Due to assault deceased fell. Deceased was
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subsequently removed to hospital by PW-11, Mehemud, Ahmed and
PW-10. PW-2 also stated that he along with other witnesses took PW-
9 and PW-5 to Ekbalpore Nursing Home as they were also injured due
to assault by the accused persons. PW-2 also stated that he
subsequently went to Hastings P.S. being accompanied by his relative
where he lodged complaint which was reduced into writing by the
police officer. PW-2 also stated that he identified all the accused
persons in jail.
iii. During cross-examination PW-2, on behalf of accused Anup Shaw and
Sudhir Shaw stated that quarrel between the parties started when the
accused persons refused to remove the stone. It was the prosecution
case that the quarrel between the parties started when the accused
persons refused to remove the stone after the witnesses asked them to
remove the stone. Suggestion was given to PW-2 that during quarrel
deceased was pushed and he fell on the stone sustained injuries and
it was also suggested that due to scuffling between the parties
accused Anup Shaw sustained injury.
On behalf of accused Md. Anwar it appeared that PW-2 was
specifically asked during cross-examination about the manner of
identification during T.I.P. but he proposed to deal with the point
regarding the identification in T.I.P. separately.
During the cross-examination on behalf of accused Anwar Ahmed
specific question was raised about PW-2 going to police station and
22
lodged the F.I.R. PW-2 during cross-examination stated that he went
to B.M. Birla Hospital at about 04:00/04:30 p.m. to saw the deceased.
iv. PW-3 deposed he was a S.I. of police and works as a Plan Maker
attached with Plan Making Section, D.D. Lalbazar. He had prepared
the final plan in respect of the P.O. as identified by S.I. A.S. Nayek,
the I.O. of the case. He had prepared sketch map, plan and blue print,
were marked as Exbt.-2, Exbt.-2/1 and Exbt.-2/2 respectively.
v. PW-4 deposed he was one of the eye witnesses. He had also stated
that at about 04:00 p.m. on 30.04.07 he went to play football at Race
Course with PW-2, PW-5, PW-6, Sajad, Vicky, and the deceased and
others. On reaching to the ground, they saw that appellants were
playing cricket. There was a big stone, so they requested the
appellants/accuseds and others to remove the stone as they wanted
to play football but they did not remove the stone. So as the
appellants/accuseds and others did not remove the stone, they
started removed it but at that time the appellants started assaulted
them with the cricket bat and stump. The appellants assaulted the
victim/deceased surrounded him and he fell down on the ground. PW-
5 and PW-9 were also injured, so he along with others removed them
to Ekbalpur Nursing Home. Subsequently, he learnt from local people
that the victim was shifted to R.G. Kar Hospital and thereafter to B.M.
Birla where he died.
vi. During cross-examination PW-4, on behalf of accused Anwar Ahmed
stated that they were 8 to 10 in numbers when they went to play
23
football. He also stated during cross-examination that he cannot say
how many persons were playing cricket and specifically stated that he
had withdrawn himself when they were assaulted the deceased and
the witnesses.
During the cross-examination on behalf of accused Bikash Paswan
certain formal questions were asked to PW-4 about his intimacy with
PW-2. During cross examination of PW-4 specifically stated that he
went back to his locality after leaving PW-5 and PW-9 at Nursing
Home.
During cross-examination on behalf of accused Sudhir Shaw and
Anup Shaw, PW-4 specifically stated that accused persons were
already playing cricket when they reached the ground. He had also
stated in the cross-examination that accused persons started
assaulted the witnesses when they started removed the stone.
vii. PW-5 was one of the eye witnesses to the occurrence who also
sustained injuries due to the assault by the accused persons. PW-5
supported the version about the occurrence as stated by PW-2 and
PW-4 and he also specifically stated that due to assault by the
accused persons he sustained injuries by the side of his left eye and
head. He also stated that PW-9 also sustained injuries on his head
due to assault by the accused persons. He had specifically stated that
along with PW-9 he was admitted at nursing home for two days and
he also identified all the accused persons in the Court. He stated that
he had identified accused Anup Shaw in jail during T.I. Parade.
24
viii. During cross-examination PW-5 on behalf of accused Anwar Ahmed
stated that the prescription and the discharge certificate of nursing
home where he remained admit may be with his parents. He also
stated during cross examination that the stone was kept in the
boundary of the cricket field of the accused persons. He had further
stated during cross-examination that when the accused persons were
assaulting them, they fled away from that place to save themselves.
He had also stated during cross-examination that when they were fled
away, they saw deceased lying on the ground. He had denied the
suggestion that he sustained injuries due to the fall from the cycle.
During cross examination on behalf of accused Anup Shaw and
Sudhir Shaw, PW-5 specifically denied the suggestion that due to the
scuffling between the witnesses and the accused persons deceased fell
on the stone and sustained injuries.
During cross examination on behalf of accused Md. Anwar, he was
asked question about the T.I. P. and he denied the suggestion that the
accused persons were shown by the police officer before the T.I.
Parade.
ix. PW-6 had corroborated other witnesses about the manner of
occurrence and according to him when they were removed the stone
they were assaulted by the accused persons. He had also stated that
when he running away along with others to save themselves and while
running he saw that the deceased was injured on his head and fell on
the ground. He also accompanied other witnesses including PW-5 and
25
PW-9 to Ekbalpur Nursing Home. During his evidence PW-6
specifically stated that accused Anup Shaw assaulted the deceased.
x. During cross-examination on behalf of accused Anwar Ahmed PW-6
stated that he did not state before the police that the stone was kept
on the opposite side of the stump. Remaining portion of the cross
examination was more or less general in nature.
During cross-examination of PW-6 on behalf of accused Md.
Anwar, he was asked question about the T.I.P., which he had already
highlighted that he should deal the same separately.
The cross-examination on behalf of accused Anup Shaw and
Sudhir Shaw PW-6 specifically stated that the stone was kept in the
middle of the field where they were to play football.
xi. PW-7 deposed he was an eye witness to the occurrence, had
supported the versions of other witnesses as discussed above. He had
specifically stated that deceased was assaulted with the cricket bat
and the deceased immediately fall down on the ground. The assault
according to PW-7 started by the accused persons when the witnesses
were attempting to remove the stone. He also specifically stated that
he and other witnesses ran away from the place. He had also stated
about the assault on PW-5 and PW-9.
xii. During the cross-examination, on behalf of accused Anup Shaw and
Sudhir Shaw, PW-7 stated that the stone was kept by the accused
persons to mark boundary. He had denied the suggestion about the
quarrel between the witnesses and the accused persons.
26
During cross-examination, on behalf of accused Anwar Ahmed
PW7 stated he along with PW-4, Soadb, Sikendar, Raja and Majid
went by bus in order to taken injured witnesses in the nursing home
at Ekbalpore. He stated that PW-5 and PW-9 were medically treated
after they reached at about 05:30/05:45 p.m. He had stated that the
injury to PW-9 was stitched in his presence. He had denied the
suggestion that on being tutored by the family member of the
deceased, he had deposed falsely.
xiii. PW-8 had also corroborated the evidence of other above mentioned
witnesses and according to him also he went with other witnesses to
play football. He had stated that the accused persons started
assaulting them when they started removied the bricks. He had also
stated about the manner in which the deceased was assaulted. He
had specifically stated about the assault on PW-9, PW-5, PW-2, PW-4
and PW-6. He had also stated about the assault on deceased as a
result of which the deceased fell on the ground.
xiv. During cross-examination, on behalf of Md. Anwar, PW-8 stated that
even though he was injured but was not treated by any doctor. He
had denied the suggestion by the defiance that prior to T.I. Parade
suspects was shown to him by the police. He had also stated that he
identified accused Md. Anwar, Anwar Ahmed and Bikash Paswan in
T.I. Parade.
xv. PW-9 was another eye witness to the occurrence, who also sustained
injury due to the assault by the accused persons. He had also
27
supported the version of the other witnesses about the occurrence
and he also stated that while removing the stone the accused persons
started assaulting them and as a result of which he sustained
bleeding injury on his head and ear. The deceased was also assaulted.
He had specifically stated about the manner of assault on the
deceased and further stated that he along with other witnesses went
to Ekbalpur Nursing Home where he and PW-5 were admitted for two
days. He had identified accused Bikash Paswan, Anup Shaw and Md.
Anwar during T.I. Parade and in the Court.
xvi. During cross-examination, on behalf of accused Anup Shaw and
Sudhir Shaw PW-9 denied that he stated to the police about the
altercation between the parties. He denied the suggestion that the
deceased fell down on the stone and he was injured.
During cross-examination on behalf of accused Md. Anwar, he was
mainly asked about the manner of identification in T.I. Parade. During
the cross-examination on behalf of accused Anwar Ahmed PW-9 had
stated that when they reached Moidan, they saw the accused persons
were preparing to play cricket but no cricket match was going on.
xvii. PW-10 deposed he resided at 29B, Ekbalpur Road. The deceased was
the son of the elder sister of his wife. On 30.04.07 in the evening
when he was at home, local people informed him over telephone that
the deceased was lying on the ground near the Race Course. On
hearing, he immediately rushed to that ground but the deceased was
not there and he learnt that the deceased was already taken to
28
hospital. So, he went to P.G. and saw that the victim/deceased lying
on a stretcher and he was already dead. He was a staff of B.M. Birla
Hospital and so he took him B.M. Birla hospital, where doctor on saw
him and told him that the victim was already dead. At B.M. Birla
Hospital doctor issued a document declaring the victim's dead, which
was marked as Exbt.-3. On the following day, police came to mortuary
and they wrote a document about the condition of the dead body. The
signature of the witness on the inquest report was marked as Exbt.-
4/1.
xviii. During cross-examination PW-10 stated that he could not say the
specific time he reached Moidan near Race Course. He went by Byke.
There were no one on the ground who were known to him. It would
have taken 20/30 minutes from his house to Moidan and from
Moidan to P.G. Hospital. He saw the deceased at emergency unit of
the hospital. He did not talk to the doctor in the emergency unit of the
hospital. He did not ask any doctor in the emergency to treat the
deceased. It will take about 10/15 minutes from P.G. Hospital to B.M.
Birla by vehicle.
Police did not ask for his wearing apparel which he had worn on
that day.
He worked as a ward boy at B.M. Birla. He did not take any
permission from any doctor of S.S.K.M. Hospital or P.G. Hospital to
shift the body from P.G. Hospital to B.M. Birla. He did not knows as to
29
exactly what time the deceased was taken from Moidan to P.G.
Hospital before he reached to Moidan.
He did not make any statement before the police excepting the
signature put by him at B.M. Birla mortuary in the inquest report.
xix. PW-11 deposed he resided at Ekbalpur. He had gone to Moidan on
being informed by a man that one man was lying in that Moidan. He
went there and saw the deceased to whom he knew as he was resident
of Ekbalpur. He shifted the deceased from the ground by a taxi to P.G.
Hospital.
xx. During cross-examination PW-11 stated that he made a statement
before the police.
xxi. PW-12 and PW-13 were declared hostile by the prosecution.
xxii. PW-14 deposed he was posted at B.M. Birla Heart Research Centre as
a post-graduate trainee. On 30.04.2007 he was on duty at Coronary
Care Unit. He had examined the deceased and declared him brought
dead. He prepared a report and put his signature, was marked as
Exbt.-3 and Exbt.-3/1 respectively.
xxiii. During his cross-examination PW-14 stated that he was not an
attending doctor or salary doctor of B.M. Birla Heart Research Centre.
He was aware about the norms to be followed when a patient was
brought at B.M. Birla Heart Research Centre. If it was urgent case,
the patient was directly brought to CCU and the patient party in the
meantime informed at reception. All the patients of emergency were
taken to CCU to diagnosis the exact problem. As per the official duty
30
roster he was on duty at CCU. When a patient was brought at CCU,
after examination of the said patient further action if required then
the reception was informed by the doctor examined the patient. The
document Exbt.-3 was only maintained in the official record which
was written by him.
It was correct that in Exbt.-3, it was not mentioned specifically
who stated the history of the case. Patient was declared brought dead
on 30.04.2007.
xxiv. PW-15 deposed he was posted at Calcutta Medical College and
Hospital as Demonstrator in the department of Forensic and State
Medicine. On 01.05.2007, he was on duty at Alipore Police Morgue.
On 01.05.2007, he held the post mortem over the dead body of the
deceased at Alipore Police Morgue. During the post-mortem
examination he found the following injuries:-
a) Abbression tip of left shoulder measuring 3" x 1".
b) Abbression ¼" x ¼" in the middle of left side of neck.
c) Abbression ½" x ½", 1" below the left elbow.
d) Parital and occipital suture fracture.
e) Evidence of subdural hemorrhage both side of brain.
No other injury could be detected. On examination he opined that the
death was due to effect of head injury, ante-mortem in nature. He
prepared the post-mortem report of the deceased which was marked
as Exbt.-6.
31
xxv. During cross-examination PW-15 stated that the occipital was on the
back side of head. The injury on the occipital might be caused due to
fall from height on stone or some heard substance. If a person was
pushed forcibly and he falls on some hard substance including stone,
that injury might be caused on occipital region. It was correct that
among all the injuries the injury as mentioned as serial no.4 in the
P.M. report was vital. He had not mentioned in the P.M. report as to
whether the death was due to accidental, homicidal or suicidal. It was
correct that he had not mentioned the specific time of death of the
deceased.
Police sent some relevant papers to the morgue from which he
mentioned that case reference and the particulars. From the said
police document he learnt about the history of the case. The
document which was referred by him was death certificate which he
had also mentioned in the P.M. report that the information was
furnished as per death certificate. He had not mentioned in the P.M.
report about the condition of the dead body whether it was brought
from cold storage or it was fresh or it was decomposed.
xxvi. PW-16 deposed on 30.04.2007 he was attached with Ekbalpur
Nursing Home as a Medical Superintendent. On that day, one Md.
Samir was examined by Dr. Tshering Namgyal Wangdi at emergency
unit of Ekbalpur Nursing Home Pvt. Ltd. The police information case
sheet was written by Dr. Tshering Namgyal Wangdi. Dr. T.N. Wangdi
on examination of the said Md. Samir appeared to had mentioned the
32
injury, which was marked as Exbt.-7. Majid Alam was examined by
the said doctor on the same day, which report was marked as Exbt.-
7/1.
xxvii. During his cross-examination PW-16 stated that he did not personally
treated that two patients appeared from those two documents. The
time of attendance was mentioned in those two reports was 10:50
p.m., and 10:55 p.m., respectively. It was correct that apart from
those two medical reports there were no other documents of Ekbalpur
Nursing Home written by Dr. Tshering Namgyal Wangdi. The name of
the Dr. Tshering Namgyal Wangdi was written in capital letter in the
two reports and there was no signature of the said doctor.
He could not say whether those two reports were written by the
said Dr. Tshering Namgyal Wangdi, not it was written by some staff of
the Nursing Home.
xxviii. PW-17 deposed he was the Ld. Magistrate who held the T.I. Parade on
04.06.2007 at the Presidency Correctional Home Compound at
Alipore, in connection with case reference bearing G.R. Case No.958 of
2007.
First identifying witness was PW-2 and the identification by the
said witness was held at 03:50 p.m. That witness identified the
suspects Anup Shaw, Sudhir Shaw and Md. Anwar. On being asked
that witness stated that on 30.04.07 at about 04/04:30 p.m., the
incident took place and on that time he was in the field. An
altercation was held and during the altercation accused Anup Shaw
33
assaulted the deceased by a cricket bat and accused Sudhir Shaw
assaulted the deceased by wicket and accused Md. Anwar assaulted
Majid Alam with fists and blows for which he could identify the
suspects. The T.I.P. Memo in respect of the witness, PW-2 was
marked as Exbt.-8.
Thereafter, witness Taruk Hossain @ Vicky was called at 03:55
p.m. on the same day and he identified only one suspect Anup Shaw.
On being asked that witness stated that on 30.04.07, the incident
took place and on that time he was present in the field and saw that
accused Anup Shaw was assaulted the deceased by wicket for which
he could identify the suspect Anup Shaw. The T.I.P. Memo in respect
of the witness Taruk Hossain @ Vicky was marked as Exbt.-8/1.
Then, witness Md. Samir @ Raja was called at 04:00 p.m. on the
same day and he identified the suspect Anup Shaw, Md. Anwar and
Bikash Paswan. On being asked that witness stated that on 30.04.07,
the incident took place and the accused Anup Shaw was assaulted
the deceased by cricket bat and he tried to separate him but the
deceased was assaulted by accused by Md. Anwar by stump. Accused
Bikash Paswan assaulted one Md. Majid Alam, Soheb with bat and
stump for which he could identify the suspect. The T.I.P. report in
respect of the witness Md. Samir @ Raja was marked as Exbt.-8/2.
Thereafter, witness Washim Aslam @ Chhatu was called and he
identified only one suspect namely Anup Shaw. He also made a
statement which he had recorded and also the procedure followed by
34
him while holding the identification parade. The T.I.P. report in
respect of the witness Washim Aslam @ Chhatu was marked as Exbt.-
8/3.
Thereafter, witness Md. Soheb was called and he identified the
suspects namely Anup Shaw, Md. Anwar, Bikash Paswan and Sudhir
Shaw. He also made a statement which he had recorded and also the
procedure followed by him while holding the identification parade.
The T.I.P. report in respect of the witness Md. Soheb was marked as
Exbt.-8/4.
Thereafter, witness Majid Alam was called and he identified only
one suspect namely Anup Shaw. He also made a statement which he
had recorded and also the procedure followed by him while holding
the identification parade. The T.I.P. report in respect of the witness
Majid Alam was marked as Exbt.-8/5.
Thereafter, witness Sk. Sikandar was called and he identified the
suspects namely Md. Anwar, Bikash Paswan and Anwar Ahmed. He
also made a statement while identifying the suspect and he had
recorded the same. The T.I.P. report in respect of the witness Sk.
Sikandar was marked as Exbt.-8/6.
The witnesses were called one by one from outside of the jail gate
at the T.I.P. ground and he asked him to identify the suspect. After
the identification by the witnesses he kept outside the view and
hearing from the other identifying witnesses. The T.I.P. was conducted
without collusion of any person including the police personnel. The
35
arrangement for T.I.P. was made by the Controller at Presidency
Correctional Home.
xxix. PW-18 deposed he resided at 29/B/H/3, Ekbalpur Road, Calcutta -
23. He was a shoe maker. He knew the deceased. On 01.05.2007, he
along with Sk. Imtiaz had been inside the morgue of B.M. Birla and
one S.I. was there. They identified the dead body of the deceased
which was kept inside of that morgue of B.M. Birla. On their
identification, police prepared a report of the dead body of the
deceased which was marked as Exbt.-4/2.
xxx. PW-19 deposed on 01.05.2007, he was posted at Alipore P.S. as S.I. of
Police. On that date, he held inquest over the dead body the deceased
at B.M. Birla Heart Research Centre. He held the inquest in presence
of the witness namely Sk. Imtiaz and Md. Sarfaraz. The dead body
was identified to him by the Constable V167 K.C. Dey. After the
inquest was conducted by him. He prepared a inquest report which
was marked as Exbt.-4.
xxxi. During his cross-examination PW-19 stated that he did not removed
the bandage as mentioned in his inquest report to saw as to whether
there was any injury. He had not noted the document, sent by him
with the dead body for the post-mortem, in that inquest report. He did
not ask for taking the photographs of the dead body.
They received the requisition from Hastings P.S. for conducted the
inquest but he had not produced any G.D. Entry. He did not record
the statement of the two witnesses of inquest report. He had received
36
the document regarding the treatment from the hospital authority.He
had mentioned the time of the conducting the inquest in the inquest
report. He did not see any other injury apart from the injury on the
chest. There was no bandage in any other body part. He had not
mentioned the cause of death in the column no.5.
xxxii. PW-21 deposed he was a Sub-Inspector of Police, posted at Hastings
P.S. On 30.04.07, he received information over telephone to the affect
that there was a disturbance going on at Bekary road in front of
Stable. He made the G.D. Entry in respect of the information received
over telephone being G.D. entry No.2236 dated 30.04.07. After
recording the G.D., he rushed to the spot under the instruction of
O/C, Hastings P.S. On the spot i.e. Bekary Road in front of stable, he
saw a gathering about 30/40 people. One man from the gathered
namely Saddam Hossain came forward and he made a statement with
regard to the incident. He recorded his statement on the spot, which
was marked Exbt.-1.
In the meantime O/C, Hastings P.S. and AC1 (South Dev.) came to
the spot. The incident was disclosed to them and on hearing the same
he entrusted with investigation of that case by the O/C on the spot
itself. Thereafter he also interrogated Sk. Sikandar and recorded his
statement on the spot. He also recorded the statement of Wasim
Aslam PW-4. Thereafter he along with Sk. Sikandar and Saddam
Hossain went to B.M. Birla Heart Research Centre. He learnt that Md.
Abir was taken there but he was declared brought dead and so he
37
collected his death certificate. Thereafter on the same date he went to
S.S.K.M. Hospital from the B.M. Birla Heart Research Centre to verify
as to whether Md. Abir was treated there but he did not get any
document for treatment of S.S.K.M. Hospital in respect of Md. Abir.
Thereafter he went to the P.O. i.e. the playground situated between
Lovers Lane and Khidirpur road beside race course. From the P.O., he
seized some articles namely one stone and brick bat in presence of the
witnesses namely Surendar Chowhan and Talim Saha under a seizure
list which were marked as Exbt.-5. On the spot one stone and brick
bet were packed, sealed and labeled.
He also interrogated some passerby as they could not say anything
related to the incident, their statement was not recorded by him. He
also made search to seize the offensive weapons i.e. bat and stump
but he did not get at the spot. Thereafter he went to Ekbalpur Nursing
Home to interrogate and to record the statement of injured persons
namely Majid and Sk. Raja but as they were under treatment of the
doctor he could not record their statement on that date. So he
returned back to P.S. and at the P.S. he made a return G.D. bearing
No. 2240 dated 30.04.07. Thereafter he registered case on the basis of
the F.I.R., being Hastings P.S. Case No.94 dated 30.04.07 for the
offence under Sections 148/149/324/302 of the Indian Penal Code
against 15/20 unknown persons. Formal F.I.R., was drawn up and
the formal F.I.R., filled up by him and it bears his signature, which
was marked as Exbt.-9. He handed over the seized alamats to the
38
Malkhana. He sent a requisition to O/C, Alipore P.S. for holding
inquest over the dead body and the post mortem over the dead body
of Md. Abir Imran. He also sent a requisition for sending a plan maker
and photographer through A.C., D.D.I.
On 01.05.07 he went to Kantapukur Morgue and recorded the
statement of Constable Kartik Chandra Dey who identified the dead
body before the doctor who conducted the post mortem. Thereafter he
went to the P.O. and at the P.O., S.I., G.C. Gorai came to the spot and
he identified the P.O. to him. He prepared the rough sketch map.
Thereafter, he went back to the P.S. He left the P.S. with the Addl.
O/C, Hastings P.S. for further investigation being accompanied by SK.
Sikandar and Saddam Hossain and he arrested two accused persons
namely Bikash Paswan and Tushu Saha on being identified by Sk.
Sikandar and Saddam Hossain. On the arrest of accused Bikash
Paswan and Tushu Shaw he interrogated them and they took them to
the crossing of Sent George Terrace and Canel road and on being
identified by accused Bikash aswas and Tushu shaw from there he
arrested accused Md. Anwar and Anwar Ahmed. At the time of arrest
of those accused persons he had prepared the memo or arrest after
observing all the formalities. Thereafter he came back to P.S. along
with arrested accused persons. The four accused persons were put up
in the lock up.
On the same date i.e. on 01.05.07 at about 18:15 hrs., on receipt
of a source information he went to Hastings Crossing and he arrested
39
one another accused Sikdev Dolui and after observing all the
formalities. He prepared the memo of arrest and after arrest of the
accused, with the accused he came back to the P.S. On returned to
P.S., he learnt that S.I. A.C. Sarkar had arrested accused Anup Shaw.
During interrogation of Anup Shaw he learnt that he had injury on his
head. On the following day, the arrested accused persons were
produced before the Court of Ld. C.J.M.
He identified the seized articles which were seized by him i.e. the
big stone and the brick bat. At that stage the sealed packet was
opened by breaking the seal thread and from inside the packet three
pieces brick bats were taken out and witness on saw the same
identified that those were the said brick bats which were seized by
him and marked as Mat. Exbt.-IV/2 collectively. At the time of seizure
of those articles, the brick bats on the packet was labeled and the
label bearing his signature and the signature of two witnesses which
were marked as Mat. Exbt.-IV/2 collectively and Mat. Exbt.-IV/3
respectively.
Another sealed packet contained the big stone which was seized by
him. At that stage the sealed packet with label was opened by
breaking the seal and thread and on saw the same therein, the
witness identified saying that stone seized by him which was marked
as Mat. Exbt.-III/2 and witness identified his signature on the label
on the packet. The signature of the witness on the label on the packet
was marked as Mat. Exbt.-III/3.
40
xxxiii. DW-1, Bikash Paswan was one of the accused. He had stated that on
30.4.2007, he was in the hospital as his sister delivered a baby on
that date and he returned home from the hospital only at 8/8.30 p.m.
xxxiv. DW-2, Dr. Ujjal Kr. Roy was posted as Gynecologists at Sambhunath
Pandit Hospital on 30.4.2007. He had proved the discharge certificate
issued in the name of Rekha Paswan and had stated that the said
patient was admitted under his care.
xxxv. DW-3, Gouranga Sarkar was a constable and was posted at Hastings
PS. He had produced some medical document as called for by the
defence on behalf of accused Anup Shaw
xxxvi. DW-4, Dr. P.K. Sarkar was a professor in the department of surgery at
R.G. Kar Medical College and Hospital. On 04.05.07, he was posted as
Associate Professor in the department of surgery at S.S.K.M. Hospital.
He had proved O.P.D. ticket of SSKM Hospital and an emergency
ticket in the name of accused Anup Shaw which are Exbt.-B and
Exbt.-C respectively marked with objection.
xxxvii. DW-5 was accused Anup Shaw. He had stated that on 30.04.07 he
along with some other para boys went to Moidan adjacent to race
course to play cricket at about 2.30 p.m. But at about 04:30 p.m.,
while they were playing some other boys came there to play foot ball.
Those boys asked them to make the boundary short by keeping those
bricks inside kept by them as their boundary. When they said that
after their match is completed and they go, those boys could play foot
ball but they started scuffling with them due to which one of them fell
41
on the brick there. When they saw one of them fell on the ground they
started assaulting them due to which he sustained injury on his head.
He was treated at a hospital at Gardenrich. He had made a complaint
at Hastings P.S.
11. PW-4 materially corroborated PW-2. He specifically stated that the accused
persons assaulted the witnesses with cricket bat and stump when they
attempted to remove the stone and that the deceased was surrounded and
assaulted, causing him to fall on the ground. PW-4 also spoke about removal
of the injured persons to nursing home and subsequent transfer of the
deceased to R.G. Kar Hospital and thereafter to B.M. Birla Hospital where he
succumbed to the injuries. In cross-examination PW-4 reiterated that the
assault commenced when the witnesses started removing the stone.
12. PW-5 and PW-9, both injured witnesses, occupy a position of considerable
evidentiary significance. PW-5 stated that he sustained injuries on the side
of his left eye and head due to assault by the accused persons and that PW-9
also sustained head injuries. He identified the accused persons both during
T.I. Parade and in Court. PW-9 similarly stated that while removing the stone
the accused persons assaulted them causing bleeding injuries on his head
and ear. He too identified accused persons during T.I. Parade and in Court.
Their testimony carries intrinsic assurance because an injured witness
ordinarily does not shield the actual assailant and falsely implicate another.
13. PW-6, PW-7 and PW-8 substantially corroborated the prosecution narrative.
PW-6 stated that when they attempted to remove the stone the accused
persons assaulted them and while running away he saw the deceased
42
injured on his head and lying on the ground. PW-7 specifically stated that
the deceased was assaulted with cricket bat and immediately collapsed. PW-
8 corroborated the manner of assault and also spoke about injuries suffered
by PW-2, PW-4, PW-5, PW-6 and PW-9.
14. The medical evidence furnished by PW-15, the post-mortem doctor, is of
decisive significance. During post-mortem examination he found abrasion
injuries over the shoulder, neck and elbow together with parital and occipital
suture fracture and bilateral subdural haemorrhage. He unequivocally
opined that death was caused due to head injury which was ante-mortem in
nature. The injuries noted in the post-mortem report are entirely compatible
with the ocular version that the deceased was assaulted with hard and blunt
objects including cricket bat, stump and stones.
15. During cross-examination PW-15 stated that the occipital injury might be
caused if a person falls on a hard substance including stone. The defence
sought to rely heavily upon this answer. However, such statement merely
acknowledges a theoretical possibility. It does not nullify the direct ocular
testimony of multiple witnesses who consistently stated that the deceased
was assaulted prior to his fall. The medical evidence cannot be dissected in
fragments divorced from the surrounding circumstances. Even if the final
impact occurred due to a fall consequent upon assault, the chain of
causation remains intact.
16. The evidence relating to Test Identification Parade also substantially
strengthens the prosecution case. PW-17, the learned Magistrate who
conducted the T.I. Parade, deposed that the witnesses identified various
43
accused persons including Anup Shaw, Sudhir Shaw, Md. Anwar, Bikash
Paswan and Anwar Ahmed. He specifically stated that the witnesses were
called one by one and after identification they were kept away from the sight
and hearing of other identifying witnesses. He further stated that the T.I.
Parade was conducted without collusion with police personnel. The fairness
of the T.I. proceeding thus stands reasonably established.
17. The investigation conducted by PW-21 also cannot be said to suffer from any
infirmity affecting the core of the prosecution case. PW-21 deposed regarding
receipt of telephonic information, recording of G.D. Entry, visit to the place of
occurrence, recording of statements of witnesses, seizure of one big stone
and brick bats from the place of occurrence under seizure list Exhibit-5 and
registration of Hastings P.S. Case No.94 dated 30.04.2007 under Sections
148/149/324/302 of the Indian Penal Code. He further narrated the arrest
of accused persons and preparation of seizure labels. The seized materials
were later identified in Court.
18. The defence sought to create doubt by relying upon certain omissions in
investigation and certain answers extracted during cross-examination. It was
elicited that PW-19 did not remove the bandage during inquest and that PW-
15 did not specifically mention in the post-mortem report whether the death
was homicidal, accidental or suicidal. Such omissions, however, are not of
such nature as to destroy the otherwise cogent prosecution evidence.
Deficiencies in investigation do not necessarily enure to the benefit of the
accused unless prejudice is shown to have been caused or the foundation of
the prosecution case is rendered doubtful.
44
19. The defence version, however, suffers from inherent improbabilities when
tested against the totality of evidence. Firstly, the defence version does not
satisfactorily explain the severe cranial injuries including parital and
occipital fracture and bilateral subdural haemorrhage sustained by the
deceased. Secondly, the consistent testimony of numerous eye witnesses,
including injured witnesses, specifically attributes overt acts to the accused
persons. Thirdly, the identification evidence during T.I. Parade and before
Court substantially corroborates the prosecution witnesses. Lastly, the
defence version itself admits the occurrence of scuffling and the presence of
the parties at the place of occurrence, thereby narrowing the controversy to
the manner in which injuries were caused.
20. The prosecution case emerges from an incident which took place on
30.04.2007 at the Maidan adjacent to the Race Course, where a group of
young men including the deceased had gone to play football and found
another group, comprising the accused persons, occupying a portion of the
ground for playing cricket. The evidence on record reveals that the
immediate source of discord centred around certain stones and brick pieces
which had been placed to demarcate the cricket boundary. What began as a
disagreement over use of the playground rapidly escalated into physical
violence resulting in fatal head injuries to the deceased and injuries to
several prosecution witnesses.
21. The prosecution case fundamentally rests upon the testimony of a cluster of
eye witnesses, several of whom were themselves injured during the
occurrence. The genesis of the incident appears from the evidence of PW-2,
45
PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9. Their evidence consistently
discloses that on 30.04.2007 they had gone to the Maidan adjacent to the
Race Course for playing football and found the accused persons already
occupying the field for playing cricket. A dispute arose over removal of stones
and brick pieces kept on the field for demarcating the cricket boundary. The
prosecution witnesses consistently stated that when they attempted either to
remove the stone or requested the accused persons to do so, the accused
persons reacted violently and assaulted them with cricket bats, stumps,
stones and brick bats.
22. PW-2, the informant and one of the injured witnesses, furnished the
foundational narrative of the prosecution case. He stated that he, along with
PW-5, PW-6, PW-7 and the deceased, had gone to the Maidan for playing
football. According to him, the accused persons were already present there
for playing cricket. PW-2 stated that they requested the accused persons to
remove a stone lying on the field, but the request was refused. When the
witnesses themselves attempted to remove the obstruction, the accused
persons became aggressive and started assaulting them. PW-2 specifically
attributed assault upon the deceased by means of cricket bat, stump, stones
and bricks. He further stated that the deceased collapsed on the ground due
to such assault and was subsequently removed to hospital. He categorically
stated that the deceased was assaulted by the accused persons with cricket
bat, stump, bricks and stones and, as a consequence, fell on the ground. His
evidence further establishes that injured witnesses including PW-5 and PW-
46
9 were removed to Ekbalpur Nursing Home and thereafter he lodged the
complaint at Hastings Police Station.
23. The cross-examination of PW-2 does not dilute the essential substance of his
testimony. The defence suggested that during a quarrel the deceased was
pushed and accidentally fell upon a stone. PW-2 denied the suggestion.
Significantly, the defence suggestion itself accepts the existence of a
confrontation at the place and time alleged by the prosecution. The
controversy, therefore, is not with regard to the occurrence of the incident,
but with regard to the manner in which the fatal injury was sustained.
24. PW-4 materially corroborated the testimony of PW-2. He stated that when
the witnesses attempted to remove the stone from the field, the accused
persons assaulted them with cricket bat and stump. PW-4 further stated
that the deceased was surrounded and assaulted and thereafter fell on the
ground. He also spoke about removal of PW-5 and PW-9 to Ekbalpur Nursing
Home and the transfer of the deceased to hospital. During cross-
examination, PW-4 reiterated that the accused persons initiated the assault
when the witnesses attempted to remove the stone. His evidence remained
unshaken on this aspect.
25. The testimony of PW-5 and PW-9 possesses added evidentiary value because
both of them were injured during the occurrence. PW-5 stated that he
sustained injuries on the side of his left eye and head due to assault by the
accused persons and that PW-9 also suffered injuries on his head. He stated
that both of them were admitted to nursing home for two days. PW-5
identified the accused persons both during T.I. Parade and before the Court.
47
PW-9 similarly stated that the accused persons assaulted them while they
were removing the stone and that he sustained bleeding injuries on his head
and ear. He too identified the accused persons during T.I. Parade and in
Court.
26. The significance of the evidence of PW-5 and PW-9 lies not merely in the fact
that they sustained injuries, but in the natural assurance that accompanies
the testimony of a witness who himself suffers during the incident. Their
presence at the place of occurrence stands established beyond uncertainty.
Their evidence also dispels the defence suggestion that the prosecution
witnesses were subsequently introduced or falsely implicated the accused
persons.
27. PW-6, PW-7 and PW-8 further reinforced the prosecution narrative. PW-6
stated that the accused persons assaulted the witnesses when they
attempted to remove the stone and that while running away he saw the
deceased injured on his head and lying on the ground. PW-7 specifically
stated that the deceased was assaulted with cricket bat and immediately fell
on the ground. PW-8 stated that the accused persons assaulted the deceased
and several prosecution witnesses including PW-2, PW-4, PW-5, PW-6 and
PW-9 and the injuries suffered by them. Their evidence demonstrates
continuity in the prosecution account and excludes the possibility of a
fabricated version subsequently developed through deliberation.
28. Certain variations do appear in the testimony of the witnesses regarding
peripheral details, such as the exact positioning of the stone, whether cricket
was actively being played or preparations were being made for a match and
48
the precise sequence in which some witnesses fled from the field. Such
variations are wholly consistent with ordinary human perception. A truthful
account narrated by multiple witnesses seldom unfolds in mechanical
uniformity. The law does not require reproduction of events with
mathematical precision. What assumes significance is whether the witnesses
remain consistent on the essential features of the prosecution case. In the
present matter, the evidence uniformly establishes that the altercation arose
over removal of the cricket boundary markers and that the accused persons
thereafter assaulted the deceased and the injured witnesses.
29. Though minor variations appear regarding whether cricket was actively being
played or preparations for cricket were underway, such discrepancies are
wholly natural and insignificant. Human recollection is not expected to
reproduce events with photographic precision. What remains consistent
throughout the evidence is the central narrative that the dispute originated
over the cricket boundary marked by stones or brick pieces and that the
accused persons assaulted the deceased and the injured witnesses during
the altercation.
30. The formal witnesses lend support to the prosecution structure. PW-1 proved
the photographs of the place of occurrence while PW-3 proved the sketch
map and plan of the place of occurrence. PW-10 and PW-11 proved the
removal of the deceased to hospital. PW-14, attached to B.M. Birla Heart
Research Centre, proved that the deceased was brought dead and the
corresponding document was marked as Exhibit-3.
49
31. The medical evidence furnishes substantial corroboration to the ocular
testimony. PW-15, the post-mortem doctor, found abrasion injuries over the
shoulder, neck and elbow together with parital and occipital suture fracture
and bilateral subdural haemorrhage. He opined that death was caused due
to head injury which was ante-mortem in nature. The nature of injuries
noted in the post-mortem report unmistakably indicates the application of
significant force upon the head of the deceased.
32. During cross-examination, PW-15 stated that injury to the occipital region
might occur if a person fell on a hard surface such as a stone. The defence
attempted to derive support from this answer in order to advance the theory
of accidental fall. Such argument does not withstand scrutiny when
examined in the context of the evidence as a whole. The doctor merely
acknowledged a possible mechanism by which such injury could occur. He
did not state that the injuries were necessarily accidental. More importantly,
the prosecution witnesses consistently stated that the deceased was
assaulted before he fell. Therefore, even if impact with the ground
contributed to the fatal injury, the fall itself formed part of the assaultive
transaction initiated by the accused persons.
33. The evidence relating to Test Identification Parade lends further assurance to
the prosecution case. PW-17, the learned Magistrate who conducted the T.I.
Parade, stated in detail the procedure followed during identification.
According to him, the witnesses were called individually, kept outside the
hearing and visibility of each other after identification and the parade was
conducted without interference from police personnel. Several witnesses
50
identified accused persons including Anup Shaw, Sudhir Shaw, Md. Anwar,
Bikash Paswan and Anwar Ahmed. The fairness of the T.I. proceedings could
not be seriously impeached during cross-examination.
34. The investigative evidence also aligns with the prosecution version. PW-21,
the Investigating Officer, stated that after receiving telephonic information
regarding disturbance near Bekary Road, he recorded G.D. Entry and
rushed to the place of occurrence, recorded the statement of the informant,
visited the hospital, seized stones and brick bats from the place of
occurrence and registered Hastings P.S. Case No.94 dated 30.04.2007 under
Sections 148/149/324/302 of the Indian Penal Code. The seized stone and
brick bats were subsequently produced and identified before the Court. The
seizure assumes significance because the eye witnesses consistently stated
that stones and brick pieces were used during the assault.
35. The seizure of stones and brick bats from the place of occurrence assumes
importance because the eye witnesses consistently stated that such objects
were used during the assault. The recovery therefore provides corroborative
assurance to the prosecution version.
36. The evidence adduced on behalf of the defence does not substantially impair
the prosecution case. DW-1 attempted to establish that accused Bikash
Paswan was at the hospital where his sister had delivered a child. DW-2, Dr.
Ujjal Kr. Roy proved the discharge certificate relating to Rekha Paswan.
However, the evidence falls short of establishing a complete and
uninterrupted alibi covering the relevant time of occurrence. The plea of alibi
must exclude every reasonable possibility of presence at the place of
51
occurrence. The defence evidence does not attain such certainty. However,
the evidence merely establishes that Rekha Paswan was admitted under his
care. It does not conclusively establish the continuous presence of accused
Bikash Paswan at the hospital during the relevant time of occurrence. The
plea of alibi must be proved with absolute certainty so as to completely
exclude the possibility of presence of the accused at the place of occurrence.
The defence evidence falls substantially short of such standard.
37. DW-3 produced certain medical documents relating to accused Anup Shaw
while DW-4 proved O.P.D. ticket and emergency ticket of S.S.K.M. Hospital
relating to accused Anup Shaw. The defence attempted to use these
documents to suggest that accused Anup Shaw himself sustained injuries
during the altercation. However, mere existence of injuries on an accused
person does not probabilise innocence. In a free fight or violent altercation
injuries on either side are not uncommon. The defence did not establish that
such injuries were of such nature as would probabilise the prosecution
version being wholly false.
38. DW-5, accused Anup Shaw himself, entered the witness box and stated that
while they were playing cricket some boys came there to play football and
requested them to shorten the boundary by removing the bricks. According
to him, when they declined, scuffling ensued and one of the boys fell upon
the bricks. He further stated that thereafter they themselves were assaulted
and he sustained injury on his head.
39. The defence version, however, does not satisfactorily explain the extensive
cranial injuries sustained by the deceased. Nor does it account for the
52
consistent testimony of multiple eye witnesses, including injured witnesses,
who specifically attributed overt acts to the accused persons. The defence
evidence, at its highest, establishes that there was mutual confrontation
between the parties. It does not probabilise that the deceased sustained fatal
injuries solely by accidental fall independent of assault.
40. An additional feature of significance is that the prosecution witnesses had no
discernible reason to falsely implicate the accused persons while allowing the
actual perpetrators to escape. The incident occurred in broad daylight on a
public playground. Several witnesses sustained injuries. Their conduct
immediately after the occurrence, including removal of the injured to
hospital and lodging of complaint without delay, appears natural and
consistent with the ordinary course of human behaviour.
41. The cumulative effect of the evidence leaves no reasonable uncertainty
regarding the participation of the accused persons in the assault. The
prosecution evidence derives support from four interlocking circumstances:
first, the consistent ocular testimony of multiple eye witnesses; second, the
evidence of injured witnesses whose presence at the scene is firmly
established; third, the medical findings which corroborate the nature of
assault described by the witnesses; and fourth, the identification evidence
and seizure of incriminating materials from the place of occurrence.
42. Viewed in its entirety, the evidence establishes that the quarrel over removal
of stones and brick pieces from the playground culminated in a concerted
assault by the accused persons upon the deceased and the prosecution
witnesses, during which the deceased sustained fatal head injuries. The
53
defence version does not create a competing probability sufficient to displace
the prosecution case.
43. The central question which falls for determination in the present appeal is
whether the evidence adduced by the prosecution satisfies the constituent
ingredients of the offences punishable under Sections 304 Part II/34 and
324/34 of the Indian Penal Code and whether the learned Trial Court was
justified in recording conviction thereunder. The answer, in the considered
view of this Court, must be rendered in the affirmative.
44. The prosecution evidence, when evaluated in its legal and factual
continuum, establishes three foundational circumstances with sufficient
clarity: first, that the appellants actively participated in the assault upon the
deceased and the injured witnesses; secondly, that the assault was carried
out jointly and in concert; and thirdly, that the nature of the assault was
such as to attract the knowledge contemplated under Section 304 Part II of
the Indian Penal Code.
45. The Hon'ble Supreme Court, in the case of SHRIKRISHNA vs. STATE OF
MADHYA PRADESH1 has made the following observations: -
"5.1.2. While Section 302 deals with the punishment of murder,
Section 304 is about punishment for culpable homicide not
amounting to murder. The offence under Section 304, IPC is
punishable in its Part I as well as in Part II. When the prosecution
proves the death of the person in question and further that such
1
2026 SCC OnLine SC 42
54
death was caused by the act of the accused, and that the accused
knew that such act is likely to cause death, the offence would be
punishable under Section 304 Part II.
5.1.3. Section 304, IPC has two parts namely; Section 304 Part I and
Section 304 Part II. The distinction between these two Parts of
Section 304, IPC is required to be considered having regard to the
provisions of Sections 299 and 300, IPC. Whether the offender had
intention to cause death or he had no such intention brings out the
vital distinction.
....
5.4. The High Court was correct in its approach in holding the
appellant guilty for the offence punishable under Section 304 Part II,
IPC by assessing the individual role on his part. Having regard to the
evidence on record regarding the role played by the appellant and the
injuries caused by him on the head of the deceased by using lathi, he
could be presumed to have acted with an intention to cause death or
such bodily injury which he knew that it would be of such kind and
nature that would cause, in ordinary course, the death of the person
to whom it is caused. However, the degree of the offence in the facts
and circumstances of the case, could not be said to be partaking the
offence of murder under Section 302, but the offence committed
would be punishable under Section 304 Part II, IPC.
5.5. The way as the sequence of events happened in the instant case
and since the offence by the appellant was committed in the midst of
commotion and group clash, it could be legitimately inferred that the
appellant acted without any premeditation as such to cause the
death of Ram Singh, although in eye of law, having regard to the kind
of weapon used and the nature of injury inflicted, which
corresponded to the weapon used, knowledge could be inferred in
law. Even according to the prosecution, the incident occurred when
the deceased came to the house of the appellant, to question him,
when some others also gathered and there was a free fight. In fact,
the appellant suffered serious injuries to his head in the same
transaction.
5.6. For the aforesaid reasons, the impugned judgment and order of
the High Court convicting the appellant for the offence under Section
55
304 Part II, IPC is justified and warrants no interference. It is
sustained.”
46. The Hon’ble Supreme Court, in the case of HUSSAINBHAI ASGARALI
LOKHANDWALA vs. STATE OF GUJARAT2, has made the following
observations :-
“23. In so far Hussainbhai is concerned, what is discernible from the
record is that he was a young man of 18 years of age at the time of the
incident studying in Class 12. There was a history of matrimonial
dispute between his sister and brother-in-law Abbasbhai. It is natural
for a young man to be emotionally upset to see his sister allegedly ill-
treated by her in-laws and when the deceased and Abbasbhai came to
their residence leading to the ruckus, it is not difficult to visualize the
state of mind of Hussainbhai as well of his father Asgarali. The tension
was building up since morning as Abbasbhai was first insisting that
his wife Oneja should come to his house and then insisting on the
cupboard key of the Ahmedabad house to be handed over to him. It is
important to note that the incident had taken place inside the
residence of Asgarali (and then spilling over onto the street infront)
and not in the residence of Idrishbhai. It is quite possible that as a
young man, Hussainbhai was overcome by emotion which led him to
physically attack the deceased and his son (brother-in-law). The fact
that the incident was not premeditated is buttressed by the happening
thereof inside the residence of Asgarali. Besides there was only a stab
wound each on the stomach of the deceased and PW-5. The knife was
not directed by Hussainbhai at the upper portion of the bodies of the
deceased and PW-5.
24. We are in agreement with the view taken by the High Court that
the entire incident had occurred in the heat of the moment and that
neither party could control their anger which ultimately resulted into
the fateful incident.
25. That being the position and since the High Court had brought
down the charge from Section 304 Part I IPC to Section 304 II IPC, we
feel that it would be in the interest of justice if the sentence of the
appellant HussainbhaiAsgarali Lokhandwala is further modified to the
2
2024 INSC 609
56period of incarceration already undergone by him while maintaining
the conviction.”
47. The Hon’ble Supreme Court, in the case of DATTATRAYA vs. STATE OF
MAHARASHTRA3 has made the following observations:-
“21. From every available evidence, which was placed by the
prosecution, it is a case where a sudden fight took place between the
husband and wife. The deceased at that time was carrying a
pregnancy of nine months and it was the act of pouring kerosene on
the deceased that resulted in the fire and the subsequent burn
injuries and the ultimate death of the deceased. In our considered
opinion, this act at the hands of the appellant will be covered under
the Fourth Exception given under Section 300IPC i.e. “Culpable
homicide is not murder if it is committed without premeditation in a
sudden fight in the heat of passion upon a sudden quarrel and
without the offender having taken undue advantage or acted in a
cruel or unusual manner”.
22. The act of the appellant is not premeditated, but is a result of
sudden fight and quarrel in the heat of passion. Therefore, we convert
the findings of Section 302 to that of 304 Part II, as we are of the
opinion that though the appellant had knowledge that such an act
can result in the death of the deceased, but there was no intention to
kill the deceased. Therefore, this is an offence which would come
under Part II not under Part I of Section 304IPC.”
48. The Hon’ble Supreme Court, in the case of ANBAZHAGAN vs. STATE4,has
made the following observations:-
“60. Few important principles of law discernible from the aforesaid
discussion may be summed up thus:-
(1) When the court is confronted with the question, whatoffence the
accused could be said to have committed, the true test is to find out
the intention or knowledge of the accused in doing the act. If the
intention or knowledge was such as is described in Clauses (1) to (4) of
Section 300 of the IPC, the act will be murder even though only a3
(2024) 14 SCC 286
4
2023 SCC OnLine SC 857
57single injury was caused. To illustrate : ‘A’ is bound hand and foot. ‘B’
comes and placing his revolver against the head of ‘A’, shoots ‘A’ in his
head killing him instantaneously. Here, there will be no difficulty in
holding that the intention of ‘B’ in shooting ‘A’ was to kill him, though
only single injury was caused. The case would, therefore, be of murder
falling within Clause (1) of Section 300 of the IPC. Taking another
instance, ‘B’ sneaks into the bed room of his enemy ‘A’ while the latter
is asleep on his bed. Taking aim at the left chest of ‘A’, ‘B’ forcibly
plunges a sword in the left chest of ‘A’ and runs away. ‘A’ dies shortly
thereafter. The injury to ‘A’ was found to be sufficient in ordinary
course of nature to cause death. There may be no difficulty in holding
that ‘B’ intentionally inflicted the particular injury found to be caused
and that the said injury was objectively sufficient in the ordinary
course of nature to cause death. This would bring the act of ‘B’ within
Clause (3) of Section 300 of the IPC and render him guilty of the
offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accusedmay fall
within Clauses (1) to (4) of Section 300 of the IPC, the act of the
accused which would otherwise be murder, will be taken out of the
purview of murder, if the accused’s case attracts any one of the five
exceptions enumerated in that section. In the event of the case falling
within any of those exceptions, the offence would be culpable homicide
not amounting to murder, falling within Part 1 of Section 304 of the
IPC, if the case of the accused is such as to fall within Clauses (1) to
(3) of Section 300 of the IPC. It would be offence under Part II of
Section 304 if the case is such as to fall within Clause (4) of Section
300 of the IPC. Again, the intention or knowledge of the accused may
be such that only 2nd or 3rd part of Section 299 of the IPC, may be
attracted but not any of the clauses of Section 300 of the IPC. In that
situation also, the offence would be culpable homicide not amounting
to murder under Section 304 of the IPC. It would be an offence under
Part I of that section, if the case fall within 2nd part of Section 299,
while it would be an offence under Part II of Section 304 if the case fall
within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused personfalls within
the first two clauses of cases of culpable homicide as described in
Section 299 of the IPC it is punishable under the first part of Section
304. If, however, it falls within the third clause, it is punishable under
the second part of Section 304. In effect, therefore, the first part of this
section would apply when there is ‘guilty intention,’ whereas the
58
second part would apply when there is no such intention, but there is
‘guilty knowledge’.
(4) Even if single injury is inflicted, if that particular injurywas
intended, and objectively that injury was sufficient in the ordinary
course of nature to cause death, the requirements of Clause 3rdly to
Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classesof cases: (i)
when the case falls under one or the other of the clauses of Section
300, but it is covered by one of the exceptions to that Section, (ii) when
the injury caused is not of the higher degree of likelihood which is
covered by the expression ‘sufficient in the ordinary course of nature
to cause death’ but is of a lower degree of likelihood which is generally
spoken of as an injury ‘likely to cause death’ and the case does not fall
under Clause (2) of Section 300 of the IPC, (iii) when the act is done
with the knowledge that death is likely to ensue but without intention
to cause death or an injury likely to cause death. To put it more
succinctly, the difference between the two parts of Section 304 of the
IPC is that under the first part, the crime of murder is first established
and the accused is then given the benefit of one of the exceptions to
Section 300 of the IPC, while under the second part, the crime of
murder is never established at all. Therefore, for the purpose of
holding an accused guilty of the offence punishable under the second
part of Section 304 of the IPC, the accused need not bring his case
within one of the exceptions to Section 300 of the IPC.
(6) The word ‘likely’ means probably and it is distinguishedfrom more
‘possibly’. When chances of happening are even or greater than its not
happening, we may say that the thing will ‘probably happen’. In
reaching the conclusion, the court has to place itself in the situation of
the accused and then judge whether the accused had the knowledge
that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC)
and murder (Section 300 of the IPC) has always to be carefully borne
in mind while dealing with a charge under Section 302 of the IPC.
Under the category of unlawful homicides, both, the cases of culpable
homicide amounting to murder and those not amounting to murder
would fall. Culpable homicide is not murder when the case is brought
within the five exceptions to Section 300 of the IPC. But, even though
none of the said five exceptions are pleaded or prima facie established
59
on the evidence on record, the prosecution must still be required
under the law to bring the case under any of the four clauses of
Section 300 of the IPC to sustain the charge of murder. If the
prosecution fails to discharge this onus in establishing any one of the
four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the
charge of murder would not be made out and the case may be one of
culpable homicide not amounting to murder as described under
Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause
thirdly of Section 300 is to be applied, the assailant must intend the
particular injury inflicted on the deceased. This ingredient could rarely
be proved by direct evidence. Inevitably, it is a matter of inference to be
drawn from the proved circumstances of the case. The court must
necessarily have regard to the nature of the weapon used, part of the
body injured, extent of the injury, degree of force used in causing the
injury, the manner of attack, the circumstances preceding and
attendant on the attack.
(9) Intention to kill is not the only intention that makes aculpable
homicide a murder. The intention to cause injury or injuries sufficient
in the ordinary cause of nature to cause death also makes a culpable
homicide a murder if death has actually been caused and intention to
cause such injury or injuries is to be inferred from the act or acts
resulting in the injury or injuries.
(10) When single injury inflicted by the accused results inthe death of
the victim, no inference, as a general principle, can be drawn that the
accused did not have the intention to cause the death or that
particular injury which resulted in the death of the victim. Whether an
accused had the required guilty intention or not, is a question of fact
which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had theintention
to cause death of any person or to cause bodily injury to him and the
intended injury is sufficient in the ordinary course of nature to cause
death, then, even if he inflicts a single injury which results in the
death of the victim, the offence squarely falls under Clause thirdly of
Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused hadguilty
intention or guilty knowledge in a case where only a single injury is
inflicted by him and that injury is sufficient in the ordinary course of
60
nature to cause death, the fact that the act is done without
premeditation in a sudden fight or quarrel, or that the circumstances
justify that the injury was accidental or unintentional, or that he only
intended a simple injury, would lead to the inference of guilty
knowledge, and the offence would be one under Section 304 Part II of
the IPC.”
49. The Hon’ble Supreme Court, in the case of KRISHNAMURTHY vs. STATE5,
has made the following observations:-
“11. In view of the above, and having regard to the role played by the
appellant, to the use of the weapons and to the injuries suffered by
the deceased, we are of the considered opinion that it could not be
said by any stretch of imagination that the appellant had an intention
to cause such injuries to the deceased Samidurai so as to cause his
death. In our opinion, at the most it could be said that he had
committed the alleged act with the knowledge that such act was likely
to cause death. Therefore, his case would fall under Section 304 Part
II IPC and not under Section 302IPC.
12. Accordingly, this appeal is allowed to the extent and in the
manner that the conviction of the appellant is altered to that of the
offence punishable under Section 304 Part II IPC. The appellant is
accordingly sentenced to imprisonment for a term of 10 years and to
pay a fine in the sum of Rs 10,000. The appellant has already
undergone imprisonment for a longer term. Thus, the appellant may
be released immediately.”
50. The Hon’ble Supreme Court, in the case of MAJOR SINGH vs. STATE OF
PUNJAB & ANR.6 has made the following observations :-
“12. The prosecution has established that the death of the deceased
was homicidal. As per the post mortem report, the deceased had
suffered eight injuries. Dr. Aman Kapoor (PW 2) states in the report
that the main injury was on the head and both the eye witnesses
Sukhraj Singh (PW 3) and Charanjit Singh (PW4) have claimed the
appellant had hit their father on his head with a ‘Bahi’. The recovery of
‘Bahi’, i.e. the weapon used to cause the fatal injury to the deceased5
(2022) 8 SCC 664
6
[2022] 6 S.C.R. 800.
61
was recovered by police only after the appellant had confessed about
the place of hiding.
13. We are, thus, satisfied that the prosecution has, beyond
reasonable doubt, established the occurrence in the manner as set up.
The deceased died due to the injury caused by accused. The only
question which requires our consideration is with regard to whether
the case falls within the ambit of culpable homicide amounting to
murder punishable under section 302 IPC as has been held by High
Court or it was culpable homicide not amounting to murder
punishable under section 304 IPC, as has been pleaded by the counsel
for the appellant in the alternative.
14. Distinction between whether an offence is culpable homicide
amounting to murder or culpable homicide not amounting to murder
has been dealt by this Court recently in the case of Mohd. Rafiq vs.
State of Madhya Pradesh3 after taking into consideration earlier
judgments on the point. The Court held that even though it is difficult
to distinguish whether the punishment for offence would fall under
section 302 or section 304 of IPC, there is a subtle distinction of
degree of intention and knowledge involved in both the crimes.
Relevant paragraphs of the judgment are reproduced below:
Para 13 The considerations that should weigh with courts, in
discerning whether an act is punishable as murder, or
culpable homicide, not amounting to murder, were outlined in
Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra
Pradesh. This court observed that:
“29. Therefore, the Court should proceed to decide the pivotal
question of intention, with care and caution, as that will
decide whether the case falls under Section 302 or 304 Part I
or 304 Part II. Many petty or insignificant matters plucking of
a fruit, straying of cattle, quarrel of children, utterance of a
rude word or even an objectionable glance, may lead to
altercations and group clashes culminating in deaths. Usual
motives like revenge, greed, jealousy or suspicion may be
totally absent in such cases.
There may be no intention. There may be no premeditation. In
fact, there may not even be criminality. At the other end of the
spectrum, there may be cases of murder where the accused
attempts to avoid the penalty for murder by attempting to put
62forth a case that there was no intention to cause death. It is
for the courts to ensure that the cases of murder punishable
under Section 302, are not converted into offences punishable
under Section 304 Part I/II, or cases of culpable homicide not
amounting to murder are treated as murder punishable under
Section 302.
The intention to cause death can be gathered generally from a
combination of a few or several of the following, among other,
circumstances; (i) nature of the weapon used; (ii) whether the
weapon was carried by the accused or was picked up from the
spot; (iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury; (v)
whether the act was in the course of sudden quarrel or
sudden fight or free for all fight; (vi) whether the incident
occurs by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or whether the
deceased was a stranger; (viii) whether there was any grave
and sudden provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of passion; (x)
whether the person inflicting the injury has taken undue
advantage or has acted in a cruel and unusual manner; (xi)
whether the accused dealt a single blow or several blows. The
above list of circumstances is, of course, not exhaustive and
there may be several other special circumstances with
reference to individual cases which may throw light on the
question of intention.”
15. Intention plays a vital role in criminal jurisprudence. An offence
may not be said to be committed if the prosecution fails to prove the
intention to commit that crime. Intention is pivotal to decide whether
the accused has committed culpable homicide amounting to murder or
culpable homicide not amounting to murder. Along with intention,
knowledge and the degree of crime, i.e. how the deceased was killed,
plays an important role in deciding.
16. In the present case, the appellant had no intention to kill his
uncle. Lack of intention can easily be seen through the acts committed
by the appellant. He was furious about getting yelled by his uncle a
day before, which acted as a provocation for the accused. The
appellant was armed with a wooden leg of the cot in his hand which
cannot be termed as a dangerous weapon.
63
He had given a single blow to the deceased and therefore it cannot be
said that the appellant had intention of killing the deceased who was
his own uncle. Maybe he wanted to punish his uncle for the
reprimand, he received the previous day. Further it cannot be said that
the appellant had the knowledge that the deceased would die through
a single blow.
17. We are thus of the opinion that the deceased is not liable to be
convicted under section 302 IPC but would be liable to be convicted
under section 304 PartII IPC.”
51. The Hon’ble Supreme Court in the case ofSTATE OF RAJASTHAN vs.
LEELA RAM @ LEELA DHAR7made the following observations:-
“12. In Mahesh Balmiki Alias Munna v. State Of M.P . (2000) 1 SCC
319, this Court while deciding the question of whether a single blow
with a knife on the chest of the deceased would attract Section 302
IPC, held thus:
“9. … there is no principle that in all cases of a single blow
Section 302 IPC is not attracted. A single blow may, in some
cases, entail conviction under Section 302 IPC, in some cases
under Section 304 IPC and in some other cases under Section
326 IPC. The question with regard to the nature of offence has
to be determined on the facts and in the circumstances of
each case. The nature of the injury, whether it is on the vital
or non-vital part of the body, the weapon used, the
circumstances in which the injury is caused and the manner
in which the injury is inflicted are all relevant factors which
may go to determine the required intention or knowledge of
the offender and the offence committed by him. In the instant
case, the deceased was disabled from saving himself because
he was held by the associates of the appellant who inflicted
though a single yet a fatal blow of the description noted above.
These facts clearly establish that the appellant had the
intention to kill the deceased. In any event, he can safely be
attributed the knowledge that the knife-blow given by him was
so imminently dangerous that it must in all probability cause
death or such bodily injury as is likely to cause death.”
7
2019 13 SCC 13
64
….
“15. In Pulicherla Nagaraju Alias Nagaraja Reddy v. State Of A.P .
(2006) 11 SCC 444, this Court while deciding whether a case falls
under Section 302 or 304 Part I or 304 Part II IPC, held thus:
“29. Therefore, the court should proceed to decide the pivotal
question of intention, with care and caution, as that will
decide whether the case falls under Section 302 or 304 Part I
or 304 Part II. Many petty or insignificant matters — plucking
of a fruit, straying of cattle, quarrel of children, utterance of a
rude word or even an objectionable glance, may lead to
altercations and group clashes culminating in deaths. Usual
motives like revenge, greed, jealousy or suspicion may be
totally absent in such cases. There may be no intention. There
may be no premeditation. In fact, there may not even be
criminality. At the other end of the spectrum, there may be
cases of murder where the accused attempts to avoid the
penalty for murder by attempting to put forth a case that
there was no intention to cause death. It is for the courts to
ensure that the cases of murder punishable under Section
302, are not converted into offences punishable under Section
304 Part I/II, or cases of culpable homicide not amounting to
murder, are treated as murder punishable under Section 302.
The intention to cause death can be gathered generally from a
combination of a few or several of the following, among other,
circumstances: (i) nature of the weapon used; (ii) whether the
weapon was carried by the accused or was picked up from the
spot; (iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury; (v)
whether the act was in the course of sudden quarrel or
sudden fight or free for all fight; (vi) whether the incident
occurs by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or whether the
deceased was a stranger; (viii) whether there was any grave
and sudden provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of passion; (x)
whether the person inflicting the injury has taken undue
advantage or has acted in a cruel and unusual manner; (xi)
whether the accused dealt a single blow or several blows. The
above list of circumstances is, of course, not exhaustive and
there may be several other special circumstances with
65reference to individual cases which may throw light on the
question of intention. Be that as it may.”
…..
“18. The High Court has, in our view, proceeded entirely on the basis
of surmise in opining that the death was caused without premeditation
and on the spur of the moment. In arriving at that inference, the High
Court has evidently ignored the evidence, bearing upon the nature of
the incident, the consistent account that it was the respondent who
had inflicted the blow, the weapon of offence and the vital part of the
body on which the injury was inflicted. The fact that the co-accused,
Rajesh and Jagdish, have been acquitted by the trial court, is in our
view no reason to doubt the testimony of all the eyewitnesses which
implicated the respondent. The death was attributable to the assault
by the respondent on the deceased, during the course of the incident.
Having regard to the above facts and circumstances of the case, it is
evident that the injury which was caused to the deceased was [within
the meaning of Section 300 Fourthly] of a nature that the person
committing the act knew that it was so imminently dangerous that it
must in all probability cause death or such bodily injury as is likely to
cause death.”
52. The Hon’ble Supreme Court, in the case of AMIRUDDIN vs STATE (DELHI
ADMINISTRATION) (2009)8has made the following observations:-
“5. As far as the Trial Court is concerned, there is not much
discussion as to under which provision of law the accused shall be
convicted. He was convicted for the offence of murder. The High Court
has considered certain facts and come to the conclusion that the
offence is of murder. Two aspects of the evidence mainly weighed with
the High Court. Firstly that the accused had made an utterance to the
following effect:
‘YEH ROJ ROJ KI LARAI KHATAM KER DETA HOON’.
6. It is true that this utterance can mean that he wanted to eliminate
the victim but it can also mean in general parlance to bring an end to
the fight. This utterance in our considered view cannot lead to the
conclusion that the intention of the accused was to kill the deceased.
8
2019 SCC ONLINE SC 1295
66
There is only one blow given to the deceased and that blow was given
on the back of the deceased. Unfortunately, the blow was such that it
went through the back and cut the aorta. If it had missed the aorta,
probably the deceased would not have died.
7. We are of the view that the fact that there was a single blow and no
attempt was made to give another blow and there is no evidence to
show that the appellant was prevented from giving another blow
indicates that his intention was not to kill the deceased.
8. The second aspect of the matter is whether the act of giving the blow
with the knife was so imminently dangerous as to impute knowledge to
the accused that would lead to the death of the deceased. It bears
repetition that one blow was given and that too at the back. It cannot
be said that the blow was so imminently dangerous as to impute
knowledge to the appellant that he was committing such an act which
would cause the death of the deceased.
9. In view of the above discussion, we are of the view that the accused
should have been held guilty of committing the offence punishable
under Section Part II of Section 304, IPC.
53. The Hon’ble Supreme Court in the case of RAMPAL SINGH vs. STATE OF
UTTAR PRADESH9, has made the following observations: –
“23. An important corollary to this discussion is the marked
distinction between the provisions of Section 304 Part I and Part II of
the Code. Linguistic distinction between the two parts of Section 304
is evident from the very language of this section. There are two
apparent distinctions, one in relation to the punishment while other
is founded on the intention of causing that act, without any intention
but with the knowledge that the act is likely to cause death. It is
neither advisable nor possible to state any straitjacket formula that
would be universally applicable to all cases for such determination.
Every case essentially must be decided on its own merits. The Court
has to perform the very delicate function of applying the provisions of
the Code to the facts of the case with a clear demarcation as to under
what category of cases, the case at hand falls and accordingly punish
the accused.
9
(2012) 8 SCC 289
67
24. A Bench of this Court in Mohinder Pal Jolly v. State of
Punjab [(1979) 3 SCC 30 : 1979 SCC (Cri) 635 : AIR 1979 SC 577]
stating this distinction with some clarity, held as under:
“11. A question now arises whether the appellant was guilty under
Part I of Section 304 or Part II. If the accused commits an act while
exceeding the right of private defence by which the death is caused
either with the intention of causing death or with the intention of
causing such bodily injury as was likely to cause death then he
would be guilty under Part I. On the other hand if before the
application of any of the Exceptions of Section 300 it is found that
he was guilty of murder within the meaning of clause ‘Fourthly’,
then no question of such intention arises and only the knowledge
is to be fastened on him that he did indulge in an act with the
knowledge that it was likely to cause death but without any
intention to cause it or without any intention to cause such bodily
injuries as was likely to cause death. There does not seem to be
any escape from the position, therefore, that the appellant could be
convicted only under Part II of Section 304 and not Part I.”
25. As we have already discussed, classification of an offence into
either part of Section 304 is primarily a matter of fact. This would
have to be decided with reference to the nature of the offence,
intention of the offender, weapon used, the place and nature of the
injuries, existence of premeditated mind, the persons participating in
the commission of the crime and to some extent the motive for
commission of the crime. The evidence led by the parties with
reference to all these circumstances greatly helps the court in coming
to a final conclusion as to under which penal provision of the Code
the accused is liable to be punished.”
54. The Hon’ble Supreme Court, in the case of GURMUKH SINGH vs. STATE
OF HARYANA10 has made the following observations: –
“13. Section 304 IPC reads as under:
“304. Punishment for culpable homicide not amounting to murder.–
Whoever commits culpable homicide not amounting to murder, shall
be punished with imprisonment for life, or imprisonment of either
description for a term which may extend to ten years, and shall also
be liable to fine, if the act by which the death is caused is done with
the intention of causing death, or of causing such bodily injury as is
likely to cause death;
10
(2009) 15 SCC 635
68or with imprisonment of either description for a term which may
extend to ten years, or with fine, or with both, if the act is done with
the knowledge that it is likely to cause death, but without any
intention to cause death, or to cause such bodily injury as is likely to
cause death.”
14. This Court had an occasion to deal with cases of similar nature.
In Jagrup Singh v. State of Haryana [(1981) 3 SCC 616 : 1981 SCC
(Cri) 768] the accused had inflicted a single blow in the heat of
moment in a sudden fight with blunt side of gandhala on the head of
the deceased causing his death. According to the opinion of the
doctor this particular injury was sufficient in the ordinary course of
nature to cause death. But, according to this Court, the intention to
cause such an injury that was likely to cause death had not been
made out. This Court altered the conviction of the accused from
Section 302 IPC to Section 304 Part II IPC and the accused was
directed to suffer rigorous imprisonment for a period of seven years.
15. In Gurmail Singh v. State of Punjab [(1982) 3 SCC 185 : 1982 SCC
(Cri) 680] the accused had no enmity with the deceased. The accused
gave one blow with the spear on the chest of the deceased causing his
death. The injury was an incised wound. The Sessions Judge
convicted the accused under Section 302 IPC and sentenced him to
rigorous imprisonment for life. The High Court affirmed the same.
This Court, while taking into consideration the age of the accused
and other circumstances, converted the conviction from Section 302
IPC to one under Section 304 Part II IPC and sentenced him to suffer
rigorous imprisonment for five years and a fine of Rs 500, in default
to suffer rigorous imprisonment for six months.
16. In Kulwant Rai v. State of Punjab [(1981) 4 SCC 245 : 1981 SCC
(Cri) 826] the accused, without any prior enmity or premeditation, on
a short quarrel gave a single blow with a dagger which later proved to
be fatal. This Court observed that since there was no premeditation,
Part 3 of Section 300 of the Penal Code could not be attracted
because it cannot be said that the accused intended to inflict that
particular injury which was ultimately found to have been inflicted.
In the facts and circumstances of that case, the conviction of the
accused was altered from Section 302 to that under Section 304 Part
II IPC and the accused was sentenced to suffer rigorous
imprisonment for five years.
17. In Jagtar Singh v. State of Punjab [(1983) 2 SCC 342 : 1983 SCC
(Cri) 459] the accused on the spur of the moment inflicted a knife-
blow on the chest of the deceased. The injury proved to be fatal. The
doctor opined that the injury was sufficient in the ordinary course of
nature to cause death. This Court observed that:
69
“8. … The quarrel was of a trivial nature and even in such a trivial
quarrel the appellant wielded a weapon like a knife and landed a
blow in the chest. In these circumstances, it is a permissible
inference that the appellant at least could be imputed with a
knowledge that he was likely to cause an injury which was likely to
cause death.”
This Court altered the conviction of the appellant from Section 302
IPC to Section 304 Part II IPC and sentenced the accused to suffer
rigorous imprisonment for five years.
18. In Hem Raj v. State (Delhi Admn.) [1990 Supp SCC 291 : 1990
SCC (Cri) 713] the accused inflicted single stab injury landing on the
chest of the deceased. The occurrence admittedly had taken place on
the spur of the moment and in heat of passion upon a sudden
quarrel. According to the doctor the injury was sufficient in the
ordinary course of nature to cause death. This Court observed as
under:
“14. 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 premeditation
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 III
of Section 300 IPC will be attracted.”
This Court while setting aside the conviction under Section 302
convicted the accused under Section 304 Part II and sentenced him
to undergo rigorous imprisonment for seven years.
19. In Abani K. Debnath v. State of Tripura [(2005) 13 SCC 422 :
(2006) 2 SCC (Cri) 257] this Court, in somewhat similar
circumstances, while converting the sentence from Section 302 IPC to
one under Section 304 Part II IPC observed as under:
“5. This leads us to consider as to under what section of law A-1
Abani K. Debnath is liable to be convicted in the given facts of the
case. The prosecution evidence clearly discloses that the dao-blow
dealt by A-1 was preceded by a mutual quarrel. We have already
noted that there was no common intention to kill Ranjit Das. From
70the nature of injuries, it is disclosed that A-1 dealt only one dao-
blow perhaps on the spur of the moment. The incident had taken
place on 10-8-1990 and the deceased succumbed to the injury on
15-8-1990 after a lapse of 7 days. Taking the prosecution evidence
and medical evidence cumulatively, we are of the view that the
conviction of A-1 also cannot fall under Section 302 IPC but at the
most under Section 304 Part II. We accordingly convert the
sentence of A-1 Abani K. Debnath under Section 302 IPC to one
under Section 304 Part II IPC and sentence him to suffer RI for five
years. The fine amount imposed by the trial court and affirmed by
the High Court is maintained. It is stated at the Bar that A-1 has
undergone about 18 months’ imprisonment, if that is so, he will be
entitled to get the benefit of Section 428 CrPC.”
20. In another case Pappu v. State of M.P. [(2006) 7 SCC 391 : (2006)
3 SCC (Cri) 283] this Court observed as under:
“13. … The help of Exception 4 can be invoked if death is caused
(a) without premeditation; (b) in a sudden fight; (c) without the
offender’s having taken undue advantage or acted in a cruel or
unusual manner; and (d) the fight must have been with the person
killed. To bring a case within Exception 4 all the ingredients
mentioned in it must be found. It is to be noted that the ‘fight’
occurring in Exception 4 to Section 300 IPC is not defined in IPC. It
takes two to make a fight. Heat of passion requires that there must
be no time for the passions to cool down and in this case, the
parties have worked themselves into a fury on account of the
verbal altercation in the beginning. A fight is a combat between two
and more persons whether with or without weapons. It is not
possible to enunciate any general rule as to what shall be deemed
to be a sudden quarrel. It is a question of fact and whether a
quarrel is sudden or not must necessarily depend upon the proved
facts of each case. For the application of Exception 4, it is not
sufficient to show that there was a sudden quarrel and there was
no premeditation. It must further be shown that the offender has
not taken undue advantage or acted in cruel or unusual manner.
The expression ‘undue advantage’ as used in the provision means
‘unfair advantage’.
14. It cannot be laid down as a rule of universal application that
whenever one blow is given, Section 302 IPC is ruled out. It would
depend upon the weapon used, the size of it in some cases, force
with which the blow was given, part of the body on which it was
given and several such relevant factors.
15. Considering the factual background of the case at hand it will
be appropriate to convict the appellant under Section 304 Part II
IPC, instead of Section 302 IPC as has been done by the trial court
71
and affirmed by the High Court. Custodial sentence of eight years
would meet the ends of justice.
16. The appeal is allowed to the aforesaid extent.”
21. In the instant case, the occurrence had taken place on the spur
of the moment. Only the appellant Gurmukh Singh inflicted a single
lathi-blow. The other accused have not indulged in any overt act.
There was no intention or premeditation in the mind of the appellant
to inflict such injuries to the deceased as were likely to cause death
in the ordinary course of nature. On consideration of the entire
evidence including the medical evidence, we are clearly of the view
that the conviction of the appellant cannot be sustained under
Section 302 IPC, but the appropriate section under which the
appellant ought to be convicted is Section 304 Part II IPC.
22. Before we part with the case, we would like to clearly observe that
we are not laying down that in no case of single blow or injury, the
accused cannot be convicted under Section 302 IPC. In cases of
single injury, the facts and circumstances of each case have to be
taken into consideration before arriving at the conclusion whether the
accused should be appropriately convicted under Section 302 IPC or
under Section 304 Part II IPC.
23. These are some factors which are required to be taken into
consideration before awarding appropriate sentence to the accused.
These factors are only illustrative in character and not exhaustive.
Each case has to be seen from its special perspective. The relevant
factors are as under:
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur of the moment;
(c) The intention/knowledge of the accused while inflicting the blow
or injury;
(d) Whether the death ensued instantaneously or the victim died after
several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the accused;
(g) Whether the injury was caused without premeditation in a sudden
fight;
(h) The nature and size of weapon used for inflicting the injury and
the force with which the blow was inflicted;
(i) The criminal background and adverse history of the accused;
72
(j) Whether the injury inflicted was not sufficient in the ordinary
course of nature to cause death but the death was because of shock;
(k) Number of other criminal cases pending against the accused;
(l) Incident occurred within the family members or close relations;
(m) The conduct and behaviour of the accused after the incident.
Whether the accused had taken the injured/the deceased to the
hospital immediately to ensure that he/she gets proper medical
treatment?
These are some of the factors which can be taken into consideration
while granting an appropriate sentence to the accused.
24. The list of circumstances enumerated above is only illustrative
and not exhaustive. In our considered view, proper and appropriate
sentence to the accused is the bounded obligation and duty of the
court. The endeavour of the court must be to ensure that the accused
receives appropriate sentence, in other words, sentence should be
according to the gravity of the offence. These are some of the relevant
factors which are required to be kept in view while convicting and
sentencing the accused.
25. When we apply the settled principle of law which has been
enumerated in the aforementioned cases, the conviction of the
appellant under Section 302 IPC cannot be sustained. In our
considered view, the appellant-accused ought to have been convicted
under Section 304 Part II IPC instead of under Section 302 IPC.”
55. The Hon’ble Supreme Court, in the case of KALU RAM VS. STATE OF
RAJASTHAN11 has made the following observations: –
“7. But then, what is the nature of the offence proved against him? It
is an admitted case that the appellant was in a highly inebriated
stage when he approached the deceased when the demand for
sparing her ornaments was made by him. When she refused to oblige
he poured kerosene on her and wanted her to light the matchstick.
When she failed to do so he collected the matchbox and ignited one
matchstick but when the flames were up he suddenly and frantically
poured water to save her from the tongues of flames. This conduct
cannot be seen divorced from the totality of the circumstances. Very
probably he would not have anticipated that the act done by him
would have escalated to such a proportion that she might die. If he
had ever intended her to die he would not have alerted his senses to11
(2000) 10 SCC 324
73bring water in an effort to rescue her. We are inclined to think that all
that the accused thought of was to inflict burns to her and to frighten
her but unfortunately the situation slipped out of his control and it
went to the fatal extent. He would not have intended to inflict the
injuries which she sustained on account of his act. Therefore we are
persuaded to bring down the offence from first degree murder to
culpable homicide not amounting to murder.
8. We therefore alter the conviction from Section 302 IPC to Section
304 Part II IPC. Both sides conceded that the appellant is continuing
in jail. We impose a sentence of rigorous imprisonment for seven
years on him. It is for the jail authorities to count whether the period
he had already undergone would be sufficient to complete the period
of sentence imposed by us and if so, the jail authorities shall release
him from jail. Otherwise he will continue in jail until completion of
the period of seven years of imprisonment. The appeal is disposed of
accordingly.”
56. The Hon’ble Supreme Court, in the case ofCHAMRU BUDHWA vs. STATE
OF MP12 has made the following observations :-
“3. The injury inflicted by the Appellant on the head of the deceased
proved fatal and both the Courts below came to the conclusion that
the Appellant was guilty of the offence under Section 302 of the Indian
Penal Code. The opinion of the doctor was that the injury inflicted by
the Appellant on the head of the deceased was sufficient in the
ordinary course of nature to cause death and that to cause such an
injury a heavy blunt weapon must have been used with moderate force
or a light weapon of that type must have been used with great force.
It was therefore held that the Appellant must have intended the actual
consequences of the blow given by him on the head of the deceased
and that fact together with the knowledge that the bones of an old man
are brittle and are likely to break was sufficient to establish the offence
under Section 302 of the Indian Penal Code against the Appellant.
4. It appears that the Appellant did not plead any exception mentioned
in Section 300 of the Indian Penal Code. The circumstances however
as found by the Courts below were that there was a severe exchange of
abuses between the parties preceding the incident, that during the12
AIR 1954 SC 652
74abuse the tempo rose and both the parties came out of their respective
houses in anger and that in the course of the quarrel the Appellant
dealt the fatal blow on the head of the deceased with his lathi. Even
though the circumstances were such as not to bring the case within
Exception 1 to Section 300 of the Indian Penal Code it appears that the
crime was committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the appellant’s
having taken undue advantage or acted in a cruel or unusual manner
thus bringing the case within Exception 4 thereto with the result that
the offence committed was culpable homicide not amounting to
murder. The Appellant therefore could not be convicted of having
committed an offence under Section 302 of the Indian Penal Code.
5. It now remains to consider whether the offence which he committed
falls within the first part or the second part of Section 304 of the
Indian Penal Code. When the fatal injury was inflicted by the Appellant
on the head of the deceased by only one blow given in the manner
alleged by the prosecution it could as well be that the act by which
death was caused was not done with the intention of causing death or
of causing such bodily injury as is likely to cause death. The act
appears to have been done with the knowledge that it was likely to
cause death, but without any intention to cause death or to cause
such bodily injury as is likely to cause death within the meaning of
Part II of Section 304 of the Indian Penal Code.”
57. Section 304 of the Indian Penal Code operates in the field of culpable
homicide not amounting to murder. Part II of the provision is attracted
where death is caused by an act done with the knowledge that it is likely to
cause death, though without intention to cause death or such bodily injury
as is likely to cause death. The distinction between “intention” and
“knowledge” is neither artificial nor merely semantic. The distinction is
rooted in the degree of mental awareness accompanying the act.
58. In the present matter, the evidence of PW-2, PW-4, PW-5, PW-6, PW-7, PW-8
and PW-9 consistently reveals that the appellants acted collectively during
the assault. They simultaneously participated in attacking the deceased and
75
the injured witnesses with available objects including bats, stumps, stones
and brick bats. The assault was neither isolated nor individualistic. It was a
concerted act emerging from a shared and contemporaneous purpose.
59. The existence of common intention is further reinforced by the manner in
which the appellants surrounded the deceased and jointly assaulted him.
The conduct of the accused persons before and during the occurrence
unmistakably demonstrates community of action and unity of purpose. Once
such common intention is established, each participant becomes vicariously
liable for the acts committed in furtherance of the shared intention.
60. The ingredients of Section 324 of the Indian Penal Code are equally satisfied
from the evidence on record. Section 324 of the Indian Penal Code
criminalises voluntarily causing hurt by dangerous weapons or means. The
expression “dangerous weapon or means” is not confined to conventional
weapons alone. The determination depends upon the manner of use and the
capacity of the object to inflict bodily harm.
61. In the present matter, the prosecution witnesses consistently stated that
cricket bats, stumps, stones and brick bats were used during the assault.
When used as instruments of violence, such objects undoubtedly acquire the
character of dangerous weapons or means within the meaning of Section 324
of the Indian Penal Code. PW-5 and PW-9 sustained injuries on the head and
face due to such assault. Their evidence remained unshaken during cross-
examination and stands corroborated by medical documentation.
62. The contention of the defence that the occurrence was merely a mutual
scuffle equally fails to advance the case of the appellants. The existence of a
76
quarrel or sudden provocation does not extinguish criminal liability where
the response assumes disproportionate and violent dimensions. The law
draws a distinction between a mere exchange of blows and an assault
involving dangerous weapons directed towards vital parts of the body. The
present case unmistakably falls within the latter category.
63. The evidence relating to identification of the accused persons also deserves
careful consideration. PW-17, the learned Magistrate who conducted the Test
Identification Parade, described the procedure adopted during the T.I.
proceedings with precision. The witnesses were called individually, isolated
from each other after identification and the proceedings were conducted
without police interference. Multiple witnesses identified the appellants
during T.I. Parade and subsequently reaffirmed such identification before the
Court.
64. The legal significance of a Test Identification Parade lies in its corroborative
value. Though substantive evidence is the identification before the Court, T.I.
Parade serves to strengthen the trustworthiness of witnesses who identify
previously unknown accused persons. In the present case, the identification
evidence assumes considerable reliability because it is supported not only by
T.I. proceedings but also by consistent ocular testimony and surrounding
circumstances.
65. The prosecution case also receives corroboration from the seizure of
incriminating materials. PW-21 seized stones and brick bats from the place
of occurrence under seizure list Exhibit-5. Such seizure directly corresponds
77
with the prosecution version regarding the weapons used during the assault.
The physical evidence thus aligns with the oral testimony.
66. The defence evidence does not create any substantive dent in the
prosecution case. The plea of alibi advanced through DW-1 and DW-2
remains inconclusive and incomplete. The evidence adduced does not
exclude the possibility of presence of accused Bikash Paswan at the place of
occurrence. Similarly, the medical documents relating to accused Anup
Shaw merely establish that he sustained injuries. They do not probabilise
innocence nor negate the prosecution version.
67. DW-5, accused Anup Shaw, admitted that there was a confrontation
regarding the cricket boundary and that one of the boys fell during the
altercation. Thus, even the defence version substantially acknowledges the
genesis of the incident spoken to by the prosecution witnesses. The
divergence lies only in the attempt to minimise the nature of assault and
attribute the fatal injury to accidental fall. Such defence, however, stands
contradicted by the overwhelming weight of ocular and medical evidence.
68. Section 304 of the Indian Penal Code operates in the field of culpable
homicide not amounting to murder. Part II of the provision is attracted
where death is caused by an act done with the knowledge that it is likely to
cause death, though without intention to cause death or such bodily injury
as is likely to cause death. The distinction between “intention” and
“knowledge” is neither artificial nor merely semantic. The distinction is
rooted in the degree of mental awareness accompanying the act.
78
69. Intention postulates a conscious objective directed towards a particular
consequence. Knowledge, on the other hand, denotes an awareness of the
probable consequences of an act, even though such consequence may not be
the desired end of the actor. Thus, where the surrounding circumstances
reveal absence of premeditated design to kill, yet disclose an assault of such
intensity and nature that death becomes a likely consequence known to the
assailants, culpability travels into the domain of Section 304 Part II of the
70. The evidence on record unmistakably reveals that the occurrence arose
spontaneously over a quarrel concerning removal of stones and brick pieces
placed on the playground for marking the cricket boundary. The materials
do not indicate prior enmity, pre-arranged conspiracy or premeditated design
to eliminate the deceased. At the same time, the conduct of the appellants
cannot be diluted into a mere minor altercation devoid of criminal
knowledge.
71. The prosecution witnesses consistently stated that the appellants assaulted
the deceased with cricket bats, stumps, stones and brick bats. The assault
was directed upon vulnerable parts of the body, particularly the head region.
PW-7 specifically stated that the deceased was assaulted with cricket bat
and immediately fell on the ground. PW-2, PW-4, PW-6 and PW-8 also spoke
about the assault upon the deceased by means of hard blunt objects.
72. The medical evidence of PW-15 assumes decisive significance in this context.
The post-mortem doctor found parital and occipital suture fracture together
with bilateral subdural haemorrhage. These are not superficial or accidental
79
injuries of trivial dimension. Cranial fracture accompanied by intracranial
haemorrhage necessarily indicates application of substantial force upon a
vital part of the body. The head is universally recognised as a vulnerable
region of the human anatomy and assault upon such region with hard blunt
objects inherently carries the likelihood of fatal consequence.
73. The knowledge attributable to the appellants must therefore be assessed not
in abstraction, but in the context of the weapon used, the part of the body
targeted and the degree of force employed. A group of persons assaulting
another with cricket bats, stumps, stones and brick bats cannot plausibly
claim absence of awareness regarding the likely consequence of such acts.
Even if death was not the intended objective, the knowledge that such
assault was likely to cause death clearly emerges from the surrounding
circumstances.
74. The defence sought to contend that the deceased may have sustained the
fatal injury by falling upon a stone during the scuffle. This argument does
not persuade the Court for multiple reasons.
75. Firstly, the ocular testimony of several eye witnesses consistently establishes
assault preceding the fall. Secondly, even the medical evidence does not
exclude assault as the cause of injury. The doctor merely acknowledged the
possibility that such injury might occur if a person fell upon a hard surface.
A hypothetical possibility elicited during cross-examination cannot displace
otherwise cogent ocular evidence. Thirdly, in criminal jurisprudence,
causation is not confined to the final physical impact alone. Where an
assault initiates the chain of events leading to death, criminal liability does
80
not stand interrupted merely because the fatal impact occurred upon
contact with the ground.
76. Thus, even assuming that the occipital injury was intensified due to impact
with the stone surface after the fall, the fall itself was the direct consequence
of the assault perpetrated by the appellants. The causal connection between
the unlawful act and the death of the deceased remains intact and
unbroken.
77. The conviction under Section 304 Part II of the Indian Penal Code, therefore,
stands firmly supported both on facts and in law.
78. The applicability of Section 34 of the Indian Penal Code also stands clearly
established from the evidence on record. Common intention is seldom
capable of direct proof and ordinarily manifests itself through conduct,
participation and surrounding circumstances. The law does not require proof
of long-standing premeditation. Common intention may develop suddenly
during the course of the occurrence itself.
79. In the present matter, the evidence of PW-2, PW-4, PW-5, PW-6, PW-7, PW-8
and PW-9 consistently reveals that the appellants acted collectively during
the assault. They simultaneously participated in attacking the deceased and
the injured witnesses with available objects including bats, stumps, stones
and brick bats. The assault was neither isolated nor individualistic. It was a
concerted act emerging from a shared and contemporaneous purpose.
80. The existence of common intention is further reinforced by the manner in
which the appellants surrounded the deceased and jointly assaulted him.
The conduct of the accused persons before and during the occurrence
81
unmistakably demonstrates community of action and unity of purpose. Once
such common intention is established, each participant becomes vicariously
liable for the acts committed in furtherance of the shared intention.
81. The ingredients of Section 324 of the Indian Penal Code are equally satisfied
from the evidence on record. Section 324 of the Indian Penal Code
criminalises voluntarily causing hurt by dangerous weapons or means. The
expression “dangerous weapon or means” is not confined to conventional
weapons alone. The determination depends upon the manner of use and the
capacity of the object to inflict bodily harm.
82. In the present matter, the prosecution witnesses consistently stated that
cricket bats, stumps, stones and brick bats were used during the assault.
When used as instruments of violence, such objects undoubtedly acquire the
character of dangerous weapons or means within the meaning of Section 324
of the Indian Penal Code. PW-5 and PW-9 sustained injuries on the head and
face due to such assault. Their evidence remained unshaken during cross-
examination and stands corroborated by medical documentation.
83. The contention of the defence that the occurrence was merely a mutual
scuffle equally fails to advance the case of the appellants. The existence of a
quarrel or sudden provocation does not extinguish criminal liability where
the response assumes disproportionate and violent dimensions. The law
draws a distinction between a mere exchange of blows and an assault
involving dangerous weapons directed towards vital parts of the body. The
present case unmistakably falls within the latter category.
82
84. The evidence relating to identification of the accused persons also deserves
careful consideration. PW-17, the learned Magistrate who conducted the Test
Identification Parade, described the procedure adopted during the T.I.
proceedings with precision. The witnesses were called individually, isolated
from each other after identification and the proceedings were conducted
without police interference. Multiple witnesses identified the appellants
during T.I. Parade and subsequently reaffirmed such identification before the
Court.
85. The prosecution evidence, therefore, forms a complete and internally
consistent evidentiary framework. The ocular testimony of multiple witnesses
remains mutually corroborative. The injured witnesses establish the
occurrence from within the zone of violence itself. The medical evidence
confirms the fatal nature of the head injuries. The T.I. Parade establishes
identity. The seizure of stones and brick bats reinforces the prosecution
version regarding the manner of assault. The defence evidence does not
generate any reasonable doubt capable of displacing the prosecution case.
86. In such circumstances, the Learned Trial Court correctly concluded that the
appellants, acting in furtherance of their common intention, voluntarily
caused hurt to the injured witnesses by dangerous weapons and further
committed culpable homicide not amounting to murder with the knowledge
that their acts were likely to cause death.
87. The conviction under Sections 304 Part II/34 and 324/34 of the Indian
Penal Code, therefore, does not suffer from any legal infirmity requiring
appellate interference. The findings recorded by the learned Trial Court are
83
fully supported by the evidence on record and by settled principles governing
criminal jurisprudence.
88. The appeal, accordingly, stands dismissed. The judgment of conviction and
order of sentence are affirmed.
89. Accordingly, these criminal appeals being CRA 327 of 2009, CRA 339 of
2009, CRA 347 of 2009, CRA 359 of 2009 are dismissed. However, the
sentence is modified to the extent of incarceration undergone by the
appellants.
90. There is no order as to costs.
91. Trial Court records along with a copy of this judgment be sent down at once
to the Learned Trial Court for necessary action.
92. Photostat certified copy of this order, if applied for, be given to the parties on
priority basis on compliance of all formalities.
(Ananya Bandyopadhyay, J.)
