DHIRENDRA KUMAR @ DHIROOversusSTATE OF UTIARAKHAND

                    [2015] 2 S.C.R. 903


            DHIRENDRA KUMAR @ DHIROO                            A
                             v.
               STATE OF UTIARAKHAND

           (Criminal Appeal No. 1848 of 2008)                   B

                   FEBRUARY 26, 2015

  [DIPAK MISRA AND ADARSH KUMAR GOEL, JJ.]

     Penal Code, 1860: s.302 - Murder by hitting with stone     C
on head - Conviction uls.302 by courts below - Held:
Evidence of witnesses with regard to earlier incident of
altercation between deceased and the accused-appellant
furnishing motive to the accused - There was previous
                                                                0
enmity - Evidence of eye witnesses supporting the
prosecution case and found reliable - It was not case of
sudden fight or sudden provocation or in the heat of
passion- There was enough evidence to prove that
appellant was responsible for causing death of the              E
deceased - The injuries on the accused did not establish
free fight - Nature of injuries on the deceased suggested
intention to cause death or fatal injury on the vital part of
the body with full force sufficient to cause death - View
taken by courts below a possible view - No interference         F
called for.

    Constitution of India, 1950: Article 136 - Scope of.

    Dismissing the appeal, the Court
                                                                G
     HELD: 1. Re-appreciation of evidence is not called
for in an appeal under Article 136 of the Constitution
in absence of patent illegality or perversity merely

                            903                                 H
904        SUPREME COURT REPORTS                [2015) 2 S.C.R.


A · because a different view could also be taken. In the
    instant case, both the courts below found the evidence
    of PW 3 and PW 4 to be reliable. Evidence of PW 7
    widow of the deceased was also believed with regard
    to the earlier incident furnishing motive to the accused.
B PW 2 also corroborated th~ version given by the eye
    witnesses by stating that he had seen the accused and
    deceased together just before the occurrence. The
    defence version of the accused was not found to be
    reliable. The view taken by the courts below was
C certainly a possible view for accepting the evidence led
    by the prosecution in support of its version. Thus, there
    was no reason to reject the prosecution ver:sion. There
    was enough evidence to prove that the accused
    appellant was responsible for causing the death of the
0
    deceased. [Para 9] [908-C-F]

           2. The nature of injuries suffered by the deceased
      did not show that the injury was suffered accidentally.
      There were multiple wounds and the face was
E     disfigured. The bones are pulverized. The brain matter
      was flowing out from all wounds. Seen in the light of
      previous motive, the accused can be said to have
      caused the death by acting in a cruel manner. In a plea
F     of sudden fight, the burden to show that the case falls
      under Exception 4 to Section 300 l.P.C. is on the
      accused. No doubt even without leading positive, the
      plea can be substantiated from the material on record.
      In the present case, there was nothing on record to
G     establish free fight. Plea of the accused was of false
      implication. The circumstances taken as a whole would
      lead to only possible inference that the accused has
      inflicted the fatal injury with a view to cause death. The
      injuries on the head were caused with full force. There
H     was prior enmity. It was not a case of any sudden
    DHIRENDRA KUMAR @ DHIROO v. STATE OF                    905
               UTTARAKHAND

quarrel or sudden provocation or in the heat of passion. A
[Paras 12 and 13] [909-G-H; 910-A-C]
     3. Question whether a case fell under Section 302
or 304 has to be decided from case to case depending
on factors like the circumstances in which the incident 8
takes place, the nature of weapon used and whether
weapon was carried or was taken from the spot and
whether the assault was aimed on vital part of the body;
the amount of force used; whether the deceased
participated in the sudden fight; whether there was any c
previous enmity; whether there was any sudden
provocation; whether the attack was in the heat of
passion; whether the person inflicting the injury took
any undue advantage or acted in a cruel or unusual
manner. The list of circumstances is not exhaustive and · 0
there may be several other circumstances with
reference to individual cases. Applying these tests to
the instant case, the defence on behalf of the appellant
is not acceptable. It was a case of previous enmity and
the nature of injury suggested intention to cause death E
or a fatal injury on a vital part of the body with full force
sufficient to cause death. In these circumstances, there
was no ground to interfere. [Para 15] [910-G-H; 911-A-
C] .
    ,Ankush Shivaji Gaikwad vs. State of Maharashtra 2013    F
(6) sec 770: 2013 (8) SCR 863 - relied on.
                 Case Law Reference

    2013 (8) SCR 863           relied on.      Para 7
                                                             G
   CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 1848 of 2008.

    From the Judgment and Order dated 17.11.2007 of the
High Court of Uttrakhand at Nainital in· Crl. Appeal No~ 158 H
906        SUPREME COURT REPORTS               [2015] 2 S.C.R.


A     of 2007.

         Hema Sahu, Rajendra Sahu, C. L. Sahu for the
      Appellant.

          Jatinder Kumar Bhatia for the Respondent.
B
          The Judgment of the Court was delivered by

      ADARSH KUMAR GOEL J. 1 This appeal has been
  preferred against the judgment and order dated 171h
C November, 2007 passed by the High Court of Uttarakhand
  at Nainital in Criminal Appeal No.158 of 2007 upholding the
  conviction of the appellant under Section 302 of the Indian
  Penal Code and sentence to undergo life imprisonment.

o        2. Case of the prosecution is that the appellant caused
    the death of Surat Singh deceased with a stone at 8.30 P.M.
    on 1st April, 1983 at Village Jantanwala. On 2nd April, 1983
    at 9.05 A.M., Mani Ram father of the deceased (who died
    during pendency of proceedings before the trial Court)
E ·lodged FIR to the effect that on 28th March, 1983, the
    deceased had gone to the house of the accused to
    celebrate holi. In the night, the accused came to the house
    of the complainant to assault the deceased alleging that he
    had knocked the door of his aunt Kumari Sunita in the night
F with evil intention when she was alone in her house. With
   the intervention of Mani Ram and PW 7 Raj Kumari, wife
    of the deceased, the accused was prevented from dragging
   the deceased out of the house but the accused left the
    house with a threat. On 181 April, 1983 when the deceased
G went to the nearby Dehradun city, he did not return home
   at the night. In the morning PW2 Lal Singh told him that
   the deceased was seen with the accused at 7.30 P.M. in
   the night. Further, Lakhi Ram PW 4 and Bahadur Singh
H PW 3 told him that the accused was seen beating the
      DHIRENDRA KUMAR @ DHIROO v. STATE OF                   907
       UTTARAKHAND [ADARSH KUMAR GOEL J.]

 deceased with a stone at 8.30 P.M. One Jagdish Singh told A
 him that he had seen the dead body near the bank of the
 river near the field of Ratan Singh.

      3. After registering the FIR, the investigation was
  conducted by SO Rajpal Singh PW 11. Post mortem was B
· conducted by Dr. l.F. Nath PW6. After completing the
  investigation, the accused was sent up for trial.

      4. The prosecution examined as many as 12 witnesses.
 The accused in his statement under 313 Cr.P.C. took the C
 plea that he was falsely implicated as he was member of
 Yuvak Gram Kalyan Samiti and he had made complaint to
 the District Magistrate against illegal distillation of liquor
 which made the police inimical to him. He had also made
 a complaint against illegal dealings of the contractors in o
 selling Government cement which had made contractors
 inimical to him. He examined his brother, DW 1 Vijendra
 Kumar Sharma in support of his version.

     5. After considering the evidence on record, the trial E
 Court convicted and sentenced the appellant which has
 been affirmed by the High Court.

     6. We have heard learned counsel for the parties.

        7. Main contention urged on behalf of the appellant is F
   that the evidence of Bahadur Singh PW 3 and Lakhi Ram
   PW 4 as eye witnesses is not reliable as if they had seen
   the occurrence as claimed, they could not have kept quiet
   in the night. It was further submitted that the alleged motive
   was far fetched and could not be believed,. It was finally G
.· submitted that the case was covered by Exception 4 to
   Section 300 as it was a case of sudden fight in which both
   the parties threw stone at each other and thus the case falls
   under Section 304 Part 11. Reliance has been placed on H
908         SUPREME COURT REPORTS              [2015] 2 S.C.R.


A judgment of this Court in Ankush Shivaji Gaikwad vs.
  State of Maharashtra 1•
         8. We have given due consideration to the rival
      submissions and perused the record.
B
       9. As far as reliability of evidence on record is
  concerned, we are of the view that re-appreciation of
  evidence is not called for in an appeal under Article 136 of
  the Constitution in absence of patent illegality or perversity
c merely because a different view could also be taken. In
  the present case, both the courts below have found the
  evidence of PW 3 Bahadur Singh and PW 4 Lakhi Ram to
  be reliable. Evidence of PW 7 Raj Kumari widow of the
  deceased has also been believed with regard to the earlier
o incident furnishing motive to the accused. PW 2 Lal Singh
  has also corroborated the version given by the eye
  witnesses by stating that he had seen the accused and
  deceased together just before the occurrence. The defence
  version of the accused has not been found to be reliable.
E The view taken by the courts below is certainly a possible
  view for accepting the evidence led by the prosecution in
  support of its version. We thus do not find any reason to
  reject the prosecution version. -There is enough evidence
  to prove that the accused appellant was responsible for
F causing the death of the deceased.

       1O. Only other question which remains to be considered
  is the nature of offence. Learned counsel for the appellant
  submitted that the accused also received injuries which
G showed the case to be of free fight. The injuries found on
  the person of the accused by PW 1 Dr. D.M. Kala are as
  follows :


H     1 2013 ce> sec 110
     DHIRENDRA KUMAR @ DHIROO v. STATE OF                      909
      UTTARAKHAND [ADARSH KUMAR GOEL J.]

     "1.     Abraded contusion 3 x 2.5 cm. just above A
    right eyebrow.

    2. Abraded contusion 8 cm. x 2.5 cm. on right side of
    face inusi/ry the area just below and lateral to right eye.
                                                                  B
    .3. Abrasion 4 cm. x 1 cm., on right side of face 2 ems.
     From right angle of mouth.

    In the opinion of Medical Officer, the injuries were
    caused by hard blunt object or friction about one day
    before Injury No. 1 and 2 was kept under observation C
    while Injury No.3 was simple."

     11. On the other hand, the injury noticed on the body
of the deceased is as follows :
                                                             D
     "1. The face and head is flattened from side to side.
     There are multiple irregular lacerated wounds all over.
     The face is disfigured and right eye could not be made
     out. All the bones of skull, base of skull and mandible
     are pulverized and the brain matter is seen flowing out E
     from all the wounds.

    In the opinion of Medical Officer, the death of the
    deceased was caused due to shock and hemorrhage
    as a result of ante mortem injury. The doctor has also        F
    opined that the injury may be caused by stone in
    between 8:00 to 9:00 p.m. on 01.04.1983."

     12. The nature of injuries suffered by the deceased
does not show that the injury was suffered accidentally. G
There are multiple wounds and the face is disfigured. The
bones are pulverized. The brain matter was flowing out
from all wounds. Seen in the light of previous motive, the
accused can be said to have caused the death by acting
in a cruel manner. In a plea of sudden fight, the burden to H
910        SUPREME COURT REPORTS               [2015) 2 S.C.R.


A     show that the case falls under Exception 4 to Section 300
      1.P.C. is on the accused. No doubt even without leading
      positive, the plea can be substantiated from the material
      on record.

B      13. In the present case, there is nothing on record to
  establish free fight. Plea of 'the accused is of false
  implication. From the circumstances taken as a whole, only
  possible inference is that the accused has inflicted the fatal
  injury with a view to cause death. The injuries on the head
C have been caused with full force. There is prior enmity. It
  was not a case of any sudden quarrel or sudden
  provocation or in the heat of passion.

       14. Judgment in Ankush does not advance the case
o of the appellant. In the said case, the accused were walking
  near the field of the deceased when a dog barked at them.
  The accused hit the dog with an iron pipe and on objection
  being raised by the deceased there was exchange of hot
  words which led to a scuffle in the course of which one of
E the accused hit the deceased with iron pipe which he was
  already carrying. Thus, it was a case of a sudden fight on
  account of barking of the dog belonging to the deceased.
  There was no previous enmity. Barking of the dog triggered
  the incident and intervention of the deceased led to a
F quarrel culminating into the fatal injury on a vital part.

       15. Question whether a case falls under Section 302
  or 304 has to be decided from case to case depending on
  factors like the circumstances in which the incident takes
G place, the nature of weapon used and whether weapon was
  carried or was taken from the spot and whether the assault
  was aimed on vital part of the body; the amount of force
  used; whether the deceased participated in the sudden fight;
  whether there was any previous en'llity; whether there was
H any sudden provocation; whether the attack was in the heat
     DHIRENDRA KUMAR @ DHIROO v. STATE OF                      911
      UTIARAKHAND [ADARSH KUMAR GOEL J.]

of passion; whether the person inflicting the injury took any A
undue advantage or acted in a cruel or unusual manner.
The list of circumstances is not exhaustive and there may
be several other circumstances with reference to individual
cases. Applying these tests to the present case, we are
unable to accept the defence on behalf of the appellant. It B
was a case of previous enmity and the nature of injury
suggests intention to cause death or a fatal injury on a vital
part of the body with full force sufficient to cause death. In
these circumstances, we do not find any ground to interfere.
                                                                c
    The appeal is accordingly dismissed.

Devika Gujral                              Appeal dismissed.