Vinod Kumar vs Amritpal @ Chhotu on 30 November, 2021

Supreme Court of India

Vinod Kumar vs Amritpal @ Chhotu on 30 November, 2021

Author: Ajay Rastogi

Bench: Ajay Rastogi, Abhay S. Oka

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                                                                           REPORTABLE




                                      IN THE SUPREME COURT OF INDIA

                                    CRIMINAL APPELLATE JURISDICTION

                                    CRIMINAL APPEAL NO. 1519 OF 2021
                                   (Arising out of SLP (Crl.) No.9185 of 2016)



                VINOD KUMAR                                          ..… APPELLANT

                                                  v.

                AMRITPAL @ CHHOTU & ORS.                             ..... RESPONDENTS



                                              J U D G M E N T

ABHAY S. OKA, J.

Leave granted.

FACTUAL ASPECTS

1. The respondent nos.1 to 5 are the accused who were

prosecuted for the offences punishable under Sections 147, 364,
Signature Not Verified

Digitally signed by

302/149, 201 and 323/149 of the Indian Penal Code (for short
Charanjeet kaur
Date: 2021.11.30
16:47:35 IST
Reason:

“IPC”).

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2. The Sessions Court convicted the respondent nos.1 to 5 (the

accused) for all the aforesaid offences. They were sentenced to

undergo imprisonment for life for the offence punishable under

Sections 302 read with 149 of IPC. For the other offences, lesser

punishments were imposed. All the sentences were ordered to run

concurrently. For the offence punishable under Sections 302, the

accused were directed to pay a fine of Rs.10,000/- each. They were

also directed to pay fine for other offences. Out of the fine amount, a

sum of Rs.70,000/- was directed to be paid to the widow of the

deceased.

3. Being aggrieved by the Judgment and order of the Sessions

Court, the accused preferred an appeal before the High Court of

Rajasthan. By the impugned Judgment and order dated 18 th July

2016, while maintaining the conviction of the accused for the

offences punishable under Sections 147, 364, 201 and 329/149 of

IPC, the conviction of the accused for the offence punishable under

Sections 302 of IPC was brought down to the offence punishable

under Section 304 Part II of IPC and the accused were sentenced to

undergo rigorous imprisonment for 8 years. The fine amount was

not disturbed.

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4. The appellant, who is the first informant, has taken an exception

to the impugned Judgment and order of the High Court. He is the

brother of a victim of the offence Vijay Singh (PW1). The allegation

against the accused is also of committing murder of Balveer Singh.

Vijay Singh (PW1) was injured in the incident.

5. From the impugned Judgment and order, it appears that the

learned counsel for the accused while arguing the appeal

challenged only the conviction of the accused for the offence

punishable under Section 302 of IPC. The learned counsel

appearing for accused without challenging the incident and

participation of the accused in the incident, made a submission

before the High Court that the offence established against the

accused was the one punishable under Section 304 Part II of IPC.

The accused did not challenge the conviction for the other offences.

SUBMISSIONS

6. Mr. Manish K. Bishnoi, the learned counsel appearing for the

appellant has taken us through the impugned Judgment and order

of the High Court. His submission is that the injuries on the person

of the deceased were on vital parts of his body. He pointed out that
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6th to 10th ribs of the deceased were found to be fractured and right

lung was ruptured. Moreover, there was an injury to his liver. He

pointed out the opinion of the medical board that injuries to the vital

parts like right lung and liver led to excessive bleeding and shock,

which was the cause of death. He submitted that the High Court

proceeded on erroneous footing that there were no injuries on the

vital parts of the body of the deceased. He further submitted that

none of the exceptions to Section 300 of IPC were applicable. He

also pointed out that before throwing the body of the deceased into

a canal, his face was completely smashed by the accused. He

submitted that “thirdly” in Section 300 of IPC was applicable. Dr.

Manish Singhvi, the learned Senior Counsel appearing for the State

of Rajasthan, supported the appellant.

7. Gp. Capt. Karan Singh Bhati, the learned counsel representing

the accused pointed out that there is no evidence on record to show

that objects like iron rod and sticks were used to assault the

deceased as even PW1 Vijay Singh has not deposed to that effect

in his examination-in-chief. He submitted that no weapons were

used to attack the deceased. He submitted that the fact that there

was no intention on the part of the accused to kill deceased Balveer
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Singh is clear from the fact that the accused took Balveer Singh to a

doctor. Moreover, the accused took PW1 Vijay Singh to a common

relative and they had tea in the house of the common relative. He

would, therefore, submit that correct view has been taken by the

High Court that the offence punishable under Section 302 of

culpable homicide amounting to murder was not made out.

8. Before we deal with the submissions, we may note here that

when the petition was heard on 11 th November 2021, we found that

before the High Court, the accused had not challenged their

participation in the incident and the submissions were confined to

bringing down the offence punishable under Section 302 to Section

304 Part II. Therefore, we made a query to the learned counsel

appearing for the respondents-accused to ascertain whether the

respondents-accused want to argue on merits for acquittal. On 16 th

November 2021, the learned counsel Gp. Capt. Karan Singh Bhati,

on instructions, stated that the accused wanted to take the same

stand which was urged before the High Court.

CONSIDERATION OF SUBMISSIONS
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9. Though the incident has been admitted by the accused, for the

sake of completion, we are referring to the prosecution case which

can be gathered from the deposition of Vijay Singh (PW1), the

injured witness. On 5th October 2005, PW1 along with deceased

Balveer Singh had been to Hanumangarh. In the evening, they took

a train for returning to their village Sherekan. While they were

walking towards their house from the railway station, they found that

the accused nos. 1, 2, 3 and 5 were standing near the railway

crossing and they started walking with the deceased Balveer Singh

and PW1. On the way, a Tata Sumo vehicle was parked in which the

accused no.4 was sitting. The accused no.4 pulled hair of Vijay

Singh and the accused no.5 pushed him into the vehicle. The

accused nos.1 to 3 pushed Balveer Singh into the said vehicle.

Thereafter, the vehicle proceeded towards Hanumangarh. The

accused nos. 2 and 3 had put hands on the mouth of Balveer Singh

and PW1 respectively. In the vehicle, the accused nos.4 and 5

started beating the deceased and PW1. The vehicle was taken to

Hanumangarh. The vehicle reached near Saim nullah. Thereafter,

the vehicle was taken on an unmetalled road and was stopped in an

open field. After the vehicle stopped, the accused banged Balveer
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Singh flat on the ground and they started assaulting Balveer Singh.

The accused no.1 had put hand on the mouth of PW1 and the

accused no.5 started assaulting him. PW1 begged before the

accused to spare him. They continued to beat Balveer Singh. When

the accused noticed a light of a vehicle approaching the place, they

put both the deceased as well as PW1 in the vehicle. By that time,

Balveer Singh had become unconscious. They took Balveer Singh

to the house of a doctor at Salemgarh Masani. After noticing serious

condition of deceased Balveer Singh, the doctor advised that

Balveer Singh should be taken to Hanumangarh. Thereafter, the

vehicle was taken to residence of uncle of the accused no.4 where

the tank of the vehicle was filled in. The accused thereafter took the

vehicle near a canal and stopped the vehicle as the wheel got

punctured. By that time, Balveer Singh had died. The accused took

out the body of Balveer Singh from the vehicle and by using pieces

of bricks lying nearby, they smashed the face of body so that it

could not be identified. Thereafter, they threw the body of the

deceased to the canal and the clothes were also thrown into the

canal by attaching bricks to it. The accused moved with PW1 to the

residence of one Kanwar Sain who was related to the parties. As
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the said relative was not aware about the incident, he offered tea to

them. After the accused disclosed the incident, the said relative

asked them to leave his house.

10. The accused had threatened PW1 not to disclose the incident

to any one. They told him that if he discloses the incident, he would

suffer the same fate which was suffered by the deceased. When

they left the place of Kanwar Sain, the accused nos.1 to 3 were in

the vehicle. On the way, the accused nos.2 and 3 boarded a bus

and the accused no.1 took PW1 to Hanumangarh Town Police

Station. The police admitted PW1 to hospital. Thereafter, the police

prepared a report and signatures of PW1 were taken.

11. It is necessary to note the injuries found on the body of the

deceased. Dr. Jaspal Badappa, PW3 deposed that there was a

medical board comprising of him and Dr. Brijesh Gaur, who was

working as a medical officer in a Government Hospital in

Hanumangarh town. Both of them conducted autopsy on the body

of the deceased. It is necessary to reproduce the relevant part of

the deposition of PW3 Dr. Jaspal Badappa. He described the

injuries on the person of the deceased as under:
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“1. There were multiple blue colour bruise marks over
the lower part of right hip to the back and front side of
right thigh and 3/4th part of the back and side portion
of the right leg.

2. There were multiple blue colour bruise marks over
the lower part of left hip to the back and front side of
left thigh and 3/4th part of the back and inner side
portion of the left leg and skin was also ruptured.

3. There were multiple blue colour bruise marks on the
front side of left thigh and skin, was also ruptured on
many parts.

4. There were multiple blue colour bruise marks at the
1/2th lower part of the chest and also on the back side
along with waist.

5. There was a wounded cut which crosses through
sternal notch of both sides of the neck to mastoid part
of the back side of ear. The muscles of neck, food
pipe and lungs were also ruptured. Both the arteries,
veins and ears and muscles were ruptured and on the
parts of temporal bone, frontal bone and forehead,
skin were ruptured to the extent of visibility of bones.
The bones of upper and lower jaw, nose and face
were visible as it was not covered by skin. The back
side of neck is attached with one piece of skin and
cervical bones of neck are clearly visible.

6. Mashed wound admeasuring 2 X 1 inch and bones
are visible on the part of left palm.

7. Mashed wound admeasuring 1.1/2 X 1/2 inch X
deep to the muscles, inner part bones are visible on
the part of left palm.

8. Mashed wound admeasuring 1 X 1/4 inch X deep
wound to the side portion of the left leg.

9. There were multiple marks of scar over dorsal part
of left hand.

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During the internal examination of head and
throat there was hair on the head, ruptured wound
running from sternal notch on both sides of neck were
visible and ruptured veins, arteries, windpipe, food
pipe, and muscles going from front and back side
along with the mastoid part of the back side of ear
where bone can be seen due to flayed skin. The
frontal bone, temporal bone, face, upper jaw, nose
bone and mandible bone of jaw are clearly visible. The
right eye was popped out whereas left eye was
closed. The cervical bones of neck are clearly visible
and the back side of neck is attached with a piece of
skin. The brain and its membrane are in healthy state.

During the examination of chest, hematoma was
found in the muscles of injured part and sixth to tenth
bone from the right side were found to be fractured
and multiple of right lung with its membrane was also
ruptured. The wind pipe and food pipe were ruptured
and both sides of chambers of heart were empty.

Blood clotting was found during the examination of
stomach. There was rupture mark in the stomach and
liver admeasuring 1/2 inch X 1/2 inch X 1/2 inch.

During the examination of genitals, testicles were
in swollen condition and penis was not injured.

During the examination, there was no skin over
the face of deceased as bones were visible and food
pipe and wind pipe were ruptured.”
( underlines added)

12. He deposed that according to the Board, the cause of death

was the infliction of injuries on the vital parts like lungs and liver

which resulted into excessive bleeding and shock. The witness

stated that injuries at Item no. 5 were not ante mortem.
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13. PW3 Dr.Jaspal Badappa was cross-examined by the advocate

for the accused. A suggestion was put to him that the injuries at Item

nos.1 to 4 may have been caused by collusion with a vehicle. He

denied the correctness of the said suggestion. He stated that the

fracture the ribs does result into death of a person if any damage is

caused to internal organs.

14. Though, the PW1 has not specifically stated that the injuries on

the deceased were inflicted by using iron rod or stick, there is no

dispute that the accused have caused the injuries.

15. Now the only question to be decided is whether the offence of

culpable homicide not amounting to murder is made out. In the

impugned Judgment and order, the High Court has proceeded on

the footing that the injuries caused to the deceased were on non-

vital parts of the body and therefore, there was no intention on the

part of the accused to kill the deceased. The High Court further

observed that the accused took deceased to a doctor also shows

that there was no intention on the part of the accused to kill the

deceased.

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16. The Offence of culpable homicide is defined under Section 299

of IPC. Culpable homicide is the genus and the offence of murder

as defined under Section 300 of IPC is its species.

Sections 299 and 300 of IPC reads thus :-

“299. Culpable homicide. – Whoever causes death
by doing an act with the intention of causing death,
or with the intention of causing such bodily injury as
is likely to cause death, or with the knowledge that
he is likely by such act to cause death, commits the
offence of culpable homicide.”

300. Murder. – Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention
of causing death, or—

Secondly —If it is done with the intention of
causing such bodily injury as the offender knows to
be likely to cause the death of the person to whom
the harm is caused, or—

Thirdly —If it is done with the intention of causing
bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary
course of nature to cause death, or—

Fourthly —If the person committing the act knows
that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is
likely to cause death, and commits such act without
any excuse for incurring the risk of causing death or
such injury as aforesaid.”

Exception 1.—When culpable homicide is not
murder.—Culpable homicide is not murder if the
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offender, whilst deprived of the power of self-control
by grave and sudden provocation, causes the death
of the person who gave the provocation or causes the
death of any other person by mistake or accident.

The above exception is subject to the following
provisos:—

First.—That the provocation is not sought or
voluntarily provoked by the offender as an excuse for
killing or doing harm to any person.

Secondly.—That the provocation is not given by
anything done in obedience to the law, or by a public
servant in the lawful exercise of the powers of such
public servant.

Thirdly.—That the provocation is not given by
anything done in the lawful exercise of the right of
private defence.

Explanation.—Whether the provocation was grave
and sudden enough to prevent the offence from
amounting to murder is a question of fact.

Exception 2.—Culpable homicide is not murder if the
offender in the exercise in good faith of the right of
private defence of person or property, exceeds the
power given to him by law and causes the death of
the person against whom he is exercising such right
of defence without premeditation, and without any
intention of doing more harm than is necessary for
the purpose of such defence.

Exception 3.—Culpable homicide is not murder if the
offender, being a public servant or aiding a public
servant acting for the advancement of public justice,
exceeds the powers given to him by law, and causes
death by doing an act which he, in good faith,
believes to be lawful and necessary for the due
discharge of his duty as such public servant and
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without ill-will towards the person whose death is
caused.

Exception 4.—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.

Explanation.—It is immaterial in such cases which
party offers the provocation or commits the first
assault.

Exception 5.—Culpable homicide is not murder when
the person whose death is caused, being above the
age of eighteen years, suffers death or takes the risk
of death with his own consent.”

(underline supplied)

Now, the question is whether in the present case, the offence of

culpable homicide not amounting to murder is made out. Obviously

in this case, none of the exceptions to Section 300 are applicable.

The issue which is required to be examined is whether the case will

be covered by “thirdly” in Section 300. On this aspect, we will make

a reference to a decision of this Court in the case of Virsa Singh v.

The State of Punjab1 which has stood the test of time.

Paragraphs 12 and 13 of the said decision which are locus

classicus read thus: –

1 AIR 1958 SC 465 = 1958 SCR 1495
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“12. To put it shortly, the prosecution must prove
the following facts before it can bring a case
under S. 300, “Thirdly”;

First, it must establish, quite objectively, that a
bodily injury is present;

Secondly, the nature of the injury must be
proved; These are purely objective investigations.

Thirdly, it must be proved that there was an
intention to inflict that particular bodily injury, that is
to say, that it was not accidental or unintentional, or
that some other kind of injury was intended.

Once these three elements are proved to be
present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of
the type just described made up of the three
elements set out above is sufficient to cause death
in the ordinary course of nature. This part of the
enquiry is purely objective and inferential and has
nothing to do with the intention of the offender.

13. Once these four elements are established by
the prosecution (and, of course, the burden is on the
prosecution throughout) the offence is murder
under S. 300, “Thirdly. It does not matter that there
was no intention to cause death. It does not matter
that there was no intention even to cause an injury
of a kind that is sufficient to cause death in the
ordinary course of nature (not that there is any real
distinction between the two). It does not even matter
that there is no knowledge that an act of that kind
will be likely to cause death. Once the intention to
cause the bodily injury actually found to be present
is proved, the rest of the enquiry is purely objective
and the only question is whether, as a matter of
purely objective inference, the injury is sufficient in
the ordinary course of nature to cause death. No
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one has a licence to run around inflicting injuries
that are sufficient to cause death in the ordinary
course of nature and claim that they are not guilty of
murder. If they inflict injuries of that kind, they must
face the consequences; and they can only escape if
it can be shown, or reasonably deduced that the
injury was accidental or otherwise unintentional.”

(underline supplied)

17. The first two elements laid down in paragraph 12 have been

established in this case as the factum of bodily injuries and its

nature have been duly established. The question is whether the

third element of intention to inflict the particular bodily injuries was

present. As narrated by PW2, he along with deceased Balveer

Singh were forcibly taken in a vehicle. When the vehicle reached

unmetalled road, it was stopped. Thereafter, the accused banged

deceased Balveer Singh flat on the ground. While the accused no.1

was holding Balveer Singh, the accused nos.4 and 5 started

assaulting deceased Balveer Singh. There was no scope for

Balveer Singh to resist. Thus, he was taken out of the vehicle and

was forced to lie down on the ground. Thereafter, the accused

started assaulting him. Apart from the injuries on non-vital parts,

there was a fracture of 6th to 10th ribs on the right side and the right

lung was ruptured. Even the wind pipe and food pipe were
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ruptured. There was an injury to liver. The cause of death as

certified by the Board was excessive bleeding due to injuries on vital

parts like right lung as well as liver and the resultant shock. Going

by the version of PW2, one of the accused held deceased Balveer

Singh who was lying flat on the ground and at least three accused

persons assaulted him. Therefore, it is impossible to say that the

injuries on the chest which resulted into fracture of 5 ribs and

rupture of right lung were accidental or un-intentional. Therefore,

even the third element was established. From the evidence of PW3

Dr. Jaspal Badappa, it can be gathered that the injuries on the vital

parts like right lung and liver which resulted into bleeding and shock

were sufficient to cause the death in the ordinary cause of nature.

18. Once the prosecution establishes the existence of the three

ingredients forming a part of “thirdly” in Section 300, it is irrelevant

whether there was an intention on the part of the accused to cause

death. As held by this Court in the case of Virsa Singh (supra), it

does not matter that there was no intention even to cause the injury

of a kind that is sufficient to cause death in ordinary course of

nature. Even the knowledge that an act of that kind is likely to cause
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death is not necessary to attract “thirdly”. Hence, it follows that

clause “thirdly” of Section 300 will apply in this case.

19. We are constrained to observe that the High Court adopted an

easy method of accepting the only contention canvassed that the

offence made out was culpable homicide not amounting to murder.

As noticed earlier, the High Court ignored that there were injuries on

the vital parts of the body of the deceased. The High Court did not

notice that all the elements of “thirdly” in Section 300 were

established.

20. It was argued that the accused took the deceased to a doctor

which shows the absence of intention to kill him. Apart from the fact

that for the reasons recorded above, the absence of intention to kill

is not relevant in the facts of the case, the injuries found by PW3 on

the face of the deceased which were not the ante mortem injuries

establish that before throwing the body of the deceased in a canal,

his face was completely smashed by the accused. The fact that

accused after killing deceased Balveer Singh went to a common

relative will not be of any assistance to the accused.
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21. The view taken by High Court in the impugned Judgment and

order that the offence under Section 300 was not made out is not

even a possible view which could have been taken on the basis of

the evidence on record. As we are of the view that the High Court

has committed a gross error by applying Section 304 Part II of IPC,

the Judgment and order of the High Court will have to be set aside

and the judgment and order of the Sessions Court will have to be

restored.

22. We hold that the learned Additional District and Session Judge

was right in convicting the accused for the offence punishable under

Section 302/149 of IPC. Accordingly, the appeal is allowed by

setting aside the impugned Judgment of the High Court dated 18 th

July 2016. We restore the Judgment and order dated 26 th

September 2011 in Session Case No.04/2006 passed by the

learned Additional District and Session Judge (Fast Track) No. 1

Hanumangarh, Rajasthan. Therefore, the substantive sentence and

the fine imposed by the Court of Sessions for the offence

punishable under Section 302/149 of IPC is restored.
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23. We direct the accused to surrender before the Trial Court

within a period of six weeks from today. If they fail to surrender

within six weeks from today, action be taken by the Trial Court for

arresting them in accordance with law. They shall undergo

remaining period of sentence in terms of the judgment of the Trial

Court dated 26th September 2011.

………..…………………J
(AJAY RASTOGI)

………..…………………J
(ABHAY S. OKA)
New Delhi;

November 30, 2021.