# [1978] 1 S.C.R. 635

- **Citation:** [1978] 1 S.C.R. 635
- **Court:** Supreme Court of India
- **Decided:** 1977-10-10
- **Bench:** P. K. Goswami, N. L. Untwaua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1978-1-s-c-r-635-7305
- **Pages:** 6

## Headnote

635
•
Supreme Court (Enlargement of
Criminal Appelltfle
Jurisdic:tion)
Act,
1970, (Criminal Procedure Code 1973 sec. 379)-Certificate under Art. 134
(l)(c) of the Constitution is unnecessary i11 a case falling 11/s. 2 of tlie 1970
Act.
A
B
·Appeal ujs. 417(1) of Criminal Procedure Code, 1898-Acwsed aC(/Uitted
of a major offence but conl'icted of a minor offence-Being still a conviction
C
albeit under a minur charge-W/1ether a case of acquittal for the purpose of.
$. 417(1) of tire Code and 11/s. 2(a) of the Supreme Court (Enlargement of

## Text

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..
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.
~ - )
KISHORE SINGH & ANR.
v .
THE ST A TE OF MADHYA PRADESH
October 10, 1977
[P. K. GOSWAMI AND N. L. UNTWAUA, JJ.]
635
•
Supreme Court (Enlargement of
Criminal Appelltfle
Jurisdic:tion)
Act,
1970, (Criminal Procedure Code 1973 sec. 379)-Certificate under Art. 134
(l)(c) of the Constitution is unnecessary i11 a case falling 11/s. 2 of tlie 1970
Act.
A
B
·Appeal ujs. 417(1) of Criminal Procedure Code, 1898-Acwsed aC(/Uitted
of a major offence but conl'icted of a minor offence-Being still a conviction
C
albeit under a minur charge-W/1ether a case of acquittal for the purpose of.
$. 417(1) of tire Code and 11/s. 2(a) of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970.
-
The appellants attacked Jawahar, the deceased, and also one Pooran :Smgn
on July 28, 1968 and cr,.used grievous injuries on the person of the deceaseel
using the 'sabbal' and the blunt side of the axe with which they were armect .
Jawahar died in the hospital on August 27,
1968 after
recoverinf trom a
surgical operation for his head injuries.
Pooran Singh also received grievous
D
injuries.
P.W. 6, the doctor, who first examined the deceased could not say
in his evidence whether the injuries were such as were "likely to cause death"
in the ordinary course of nature. P.W. 12, the doctor who performed the surgical operation opined that the injuries to the skull found on the deceased were
likely to cause death in the ordinary course of nature without any treatment.
P.W. 13, the doctor who conducted the autopsy, opined that the injuries touna
on the dead body were sufficient to cause death in the
ordinary course of
nature. The appellants were tried u/s.
302/34 l.P.C. for the murder ot
E
Jawabar and u/s. 307/34 l.P.C. for attempt to murder Pooran Singh.
They
were convicted u /s. 307 / 34 I.P.C. and sentenced to rigorous imprisonment tor
five years; but acquitted of the chan~e under s.
302134 I.P.C. They were.
t however, convicted u /s. 325 r/w 34 I.P.C. and sentenced to four years n gort ous imprisonment.
On appeal by the State u/s. 417(1) of the
1898 Code,
the High Court accepting the a-ppeal, set aside the order of conviction uts.
' 325/34 l.P.C. and convicted the appellants u/s. 302/34 I.P.C. and sentenceel
~them to life imprisonment. The High Court granted certificate to the appel-
~ !ants under 134(1)(c) of the Constitution.
F
Dismissing the appeal and modifying the conviction
and
sentence to that
u/s. 304 (Part l/ 34 LP.C.), the Court,
HELD : ( 1) If on appeal against a·n order of acquittal
the
High Comt
sets aside the acquittal and convicts an accused and sentences him to impnsonment for life or to a period not less than ten years, the accmed is entitled.
G
as of right, to appeal to this Court u/s. 2(a) of the
Act. 1970.
The High
Court is not right in holding thait a certificate is necessary under Art. 134 ( I )( c)
of tho Constitution when the appellants had a rieht u/ s. 2 of the Act.
{636 H, 637 A- DJ
(2) It is clear from the language employed both in s. 417 ( 1) of
the
Criminal Procedure Code of 1898 and s. 2(a) of the Act of .1970 that. \\lien
an accused is acquitted of a major charge, but convicted under a minor cnarge
it is still an acquittal under the major charge which can be challenged by the
Sta-te before the High Court in an appeal u/s. 417(1) of the old Code. The
sa111e principle will apply in the case of s. 2(a) of the Act, if a person has
been acquitted by the trial court under a major charge and the High Court on
appeal sets aside the :i.couittal
under the major charge a.nd
sentences the
person to imprisonmerrt for life or to a sentence of not less than ten years.
[638 A--BJ
4-951SC-I/ 77
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636
SUPRE~IE COURT REPORTS
[1978] 1 S.C.R.
( 3) The distinction between culpable homicide (section 299 !PC)
and
~u rde_r (sec~on 300 IPC) is ah\ays to be carefully borne in mind while dealing with a clinr.Re under s. 302 JPC. Under the category of unlawful homicides fall both cases of culpable homicide amountini: to murder and those not
amounting to murder. . Culpable homicide is not murder when the case is
brought within the five exceptions to s. 300 I.P.C.
But, even tbouRh none of
<he said five exceptions are pleaded or prima f acie established on ·tlie evidence
on record , the prosecution must still be required under the Jaw to bring the
case under a11y of the four clauses of s. 300 I.P.C., to :mstain the charge o!
murder.
ff the prosecution fails to discharge this onus in establishing anyone
of the four clauses of s. 300 J.P.C., namely, firstly to fourthly, the charge of
murder would not be made out and the case may be one of culpable homicide
not amounting to murder as described u/s 299 I.P.C. [639 C--EJ
( 4) _The distinction between the expression "likely to cause death"
and ·
"sufficient in the ordinary course of nature to cause dea th" is significant although
rather fine and sometimes deceptive.
(5) With regard to the second part of thirdly of $. 300 IPC, namely, where
the bodily injury is sufficient in the ordinary course of nature to cause death,
the court's enquiry is not confined to the intention of the accused at that stage
of judicia~ e\•aluation, once the intention of the accused to cause
the
injury
has already been established.
The court will have to judge objectively from
the natmc of the injuries and other evidence, including the medic:.J opinion
as to whether the injuries intentionally inflicted on the deceased
were sufficient in the ordinary course of nature to cause· death. In judging whether the
injuries inl1icted are sufficient in the ordinary course of nature to cause death.
the possihility that skilful and efficient medical treatment might
prevent the
fatal result
i ~ wholcly irrele-vant. [639 F-H, 640 AJ
Virs11 Singh v. The State of Prmiab [1958) SCR 1495 at 1501, reiterated.
Jn the instant case : (i) clause thirdly of s. 300 J.P.C. has not been established beyond reasonable doubt; (ii) the evidence fulfils one of the ingredients
of s. 299, namelv:. that the appellants caused the death by doing an act with
the intention of causin!! such bodily injury as is likely to cause death as· dePosed by the- Surgeon, P.W. 12; and (iii) it is a fit case where the coi:viction of
the appellants should be u / s. 304 (Part I) J.P.C. [640 B-D]
[Th:.: Court convicted the appellants u/s. 304 (Part I) read with s. :o. 34 l.P.C.
and sentenced them to ten years rigorous imprisonment; the senter.ce of the
appellants u/s. 307 /34 J.P.C. is to nm concurrently with this.1
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
399
of J 974.
From the Judgment and Order dated 24-8-1974 of the Madh.ya Pradesh High Court in Criminal Appeal No. 693 of 1969.
D. Mukherjee and B. P. Singh for the Appellants.
I. N. Shro.fj and H. S. P(irihar for the Respondent.
The Judgment of the Court was delivered by
GosWAMI, J.-This appeal on certificate under Article 134(1) (c)
of the Constitution is from the judgment of the Madhya Pradesh High
Court.
The certificate was granted as the High Court thought that the
appellants were entitled, as of right, to a grant of certifi~a~e in view
of
section 2 of the Supreme Court (Enlargement of Cr1mmal Appellate
Jurisdiction) Act, 1970 (briefly the Act).
The High Court is not right in holding that a certificate is necessary
unoer Article 134( I) ( c) of the Constitution if the appellants have a right
of appeal under section 2 of the Act. It will therefore be necessary to
,
..
y
!
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KISHORE Sl~GH v. M. P. STATE (Goswami, J)
637
consider whether the appellants are entitled, as of right, to appeal
Jhis Court under section 2 of the Act.
Section 2 of the Act reads as follows :-
"2. Without prejudice to the powers conferred on the Supreme Court by clause (1) of Art. 134 of the Constitution, an appeal shall lie to the Supreme Court from any
judgment, final order of sentence in a criminal proceed-
.ding of a High Court in
the territory of India if the
High Court-
(a) has on appeal reversed an order of acquittal of an
accused person and sentenced him to imprisonment
for life or to imprisonment for a period of not Jess
than ten years;
(b) has withdrawn for trial before itself any case from
any court subordinate to its authority and has in such
trial convicted the accused person and sentenced
him to imprisonment for life or to imprisonment for
a period of not less than ten years."
to
It is clear that if on appeal against an order of acquittal the High Court
sets aside the acquittal and convicts an accused and sentences him to
imprisonment for life or to a period of not less than ten years,
the
accused is entitled, as of right, to appeal to this Court under section
2(a) of the Act.
Tn this particular case the appellants were tried under section 302/
A
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c
n
34 IPC for the murder of Jawahar and under section 307 /34 IPC for
E
attempt to murder Pooran Singh.
We are not concerned with the sentence of five years under section 307 /34 IPC in his appeal which runs
councurrently with the other sentence. The Sessions Judge acquitted
them of the charge of murder of Jawahar but convicted them under
section 325 read with section 34 JPC. Indeed the Session Judge clearly
stated that-
"Raghubir Singh and Kishore Singh are acquitted of the
charge under section 302 r.w. section 34 Indian Penal Code ·
but they are convicted under section 325 r.w. section 34 Indian
Penal Codel for their acts of violence against Jawahar and are
sentenced to 4(four) years rigorous imprisonment."
The judgment.of the trial court was delivered on 29th Angust. 1969.
The State appealed to the High Court against the acqnittal of the murder
charge under section 417 (I) of the Code of Criminal Procedure. 1898
(briefly the old Code) which governs this case.
The short question that arises for consideration is as to whether the
appeal before the High Conrt under section 417 ( l) of the old Code was
competent since the appellants were not entirely acquitted in the trial
F
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but convicted of a minor offence after having been charged for a major
H
offence which is permissible under section 238 of the old Code.
Being
still a conviction. albeit under a minor charge, will it be a case of acq1!ittal for the pnrpose of section 417 ( 1) of the old Code and under sechon
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638
SUPREME COURT REPORTS
(1978] 1 S.C.R.
2(a) of the Act ? That is the question.
The same question will also
arise under section 2(a) of the Act since the High Court set aside the
acquittal and altered the conviction under section 325/34 IPC to
one
under section 302/34 IPC and sentenced them to imprisonment for
life.
Having given our anxious consideration to the language employed
both in section 417(1) of the old Code and Section 2(a) of the
Act
we are of opinion that when an accused is acquitted of a major charge hut
convicted under a minor charge, it is still an acquittal under the major
charge which can be challenged by the State before the High Court in
an appeal under section 417 (1) of the old Code. The same principle will
apply in the case of section 2~a) of the Act if a person had been acquitted
by the trial court under a major charge and the High Court on appeal
sets aside the acquittal under the major charge and sentences the person
to imprisomnent for life or to a sentence of not less then ten years. The
accused will then be entitled, as of right, to appeal to this Court under
section 2(a) of the Act.
In this view of the matter the certificate wasunnecessary iu this case and we will treat this appeal as one under section
2(a) of the Act.
Mr. D. Mookherjee appearing on behalf of the appellants has addressed us only on the question of untenability of the conviction under
section 302/34 IPC.
According to counsel this is a clear case under
section 325 /34 IPC and the trial court was right in holding accordingly.
We may very briefly advert to the material facts necessary to
appreciate this submission.
Appellant Kishore Singh was armed with a
'sabbal' and Raghubir Singh with an axe.
We are not concerned with
their father Bhaiyalal who was said to be in their company with a stick
but has since been acquitted.
On the date of occurrence which was on
July 28, 1968, at 3.30 P.M.,, both the aPPellants attacked Jawahar and
caused grievous injuries on his person using the 'sabbal' and the blunt
side of the axe. J awahar died in the hospital on August 27, 1968, after
recovering from a surgical operation for his head injuries.
Dr. D. N.
Malviya (PW 6) who first examined the deceased could not say whether
the injuries were such as were likely to cause death in the ordinary
course of nature. Dr. P. K. Jain (PW 12) performed the operation on
Jawahar on July 30, 1968, on the third day of the occurrence. He found
depressed fracture of the temporal bone.
Four pieces of bone were
removed during the operation as these were causing compression to the
brain.
He opined that the injuries to the skull were likely to
cause
death in the ordinary course of nature without any treatment.
The
deceased recovered from the operation but unfortunately died after a
month of the occurrence on August 27, 1968, as stated earlier.
Dr.
C.N. Dafal (PW 13) who held the post mortem examination was of
opinion that death was due to injury to scalp and chest and its complications which were due to the same.
He also opined that the injuries
found on the dead body were sufficient in his opinion to cause death in
the ordinary course of nature.
Relying on the above medical evidence Mr. Mookerjee submits that
the charge under section 302 IPC has not been made out against the
appellants. According to counsel the medical evidence is not definite
KISHORE SINGH v. M. P. STATE (Goswami, !.)
63 9
as to whether the injuries cansed by the appellants were sufficient in the
A
ordinllry course of nature to Cause death.
In other words, be submits
that the present case does not come under the clause '3rdly' of section
300 IPC to warrant a charge of murder.
We may, therefore, read that clause :
"300. Except in the cases hereinafter excepted, cnlpable homicide is murder . . . . . . . .
B
3rdly.-if it (if the act by which the death is caused) 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."
The distinction between culpable homicide (section 299 IPC) and
murder (section 300 IPC) has always to be carefully borne in
mind
while dealing with a charge under section 302 IPC.
Under the category of unlawful homicides fall both cases of culpable homicide amounting to murder and those not amounting to murder.
Culpable homicide
is not murder when the case is brought within the five exceptions to sec1ion 300 IPC.
But even though none of the said five exceptions are
pleaded or prima facie established 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 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 IPC, namely, lstly 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 IPC.
On the facts and circumstances of the present case in order to sustain the charge under section 302 !PC the prosecution has to establish the ingredients of the clause "3rdly' under section 300 !PC.
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That both the appellants caused injuries on the vital parts of the
body of the deceased with dangerous weapons has been fully established.
lt is absolutely clear on the evidence that both the appellants intended
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to cause the bodily injuries to the deceased.
Thus the first part of
"3rdly" is established.
With regard to the second part of "3rdly", namely, whether the
bodily injury is sufficient in the ordinary course of nature to
cause
death, the court's enquiry is not confined to the intention of the accused
at that stage of judicial evaluation, once the intention of the accused to
G
cause the injuries has already been established (see Virsa Singh v.
The State of Punjab)(').
The court will have to judge objectively from
the nature of the injuries and other evidence, including the medical
opinion, as to whether the injuries intentionally inflicted by the appellants on the deceased were sufficient in the ordinary course of nature to
cause death.
In judging whether the injuries inflicted are sufficient in
the ordinary course of nature to cause death, the possibility that skilful
H
(!) [1958] S.C.R. 1495 at 1501.
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SUPREME COURT REPORTS
[1978) ! S.C.R.
.and efficient medical treatment might prevent the fatal result is wholly
irrelevant.
Having regard to the entire evidence and the circumstances of the
case and in view of the somewhat hesitant medical opinion with regard
to the cause of death given by the three doctors and the further fact that
the deceased died a month after the occurrence. we think that clause
"3rdly" of section 300 IPC has not been established beyond reasonable
doubt in this case.
The evidence fulfils one of the ingredients of section 299, namely, that the appellants caused the death by doing an act
with the intention of causing such bodily injury as is likely to cause
death as deposed to by the Surgeon (PW 12).
The distinction between the expression "likely to cause death" and
"sufficient in the ordinary course of nature to cause death" is significant
sentence of the appellants under section 307 /34 IPC will run concurof the somewhat discrepant medical opinion the appellants are entitled
to the benefit and we hold that it is a fit case where the conviction of the
appellants should be under section 304 (Part 1) IPC.
Both the appellants are, therefore, convicted under section 304 (Part l) read with
>ection 34 IPC and sentenced to ten years' rigorous imprisonment. The
sentence of the appellants under section 307 /34 IPC will run concurrently with this sentence. The appeal is dismissed with the above modification of the conviction and sentence.
S.R.
Appeal disnussed.