KHACHAR DIPU @ DILIPBHAI NAKUBHAIversusSTATE OF GUJARAT

                    [2013] 5 S.C.R. 341

        KHACHAR DIPU @ DILIPBHAI NAKUBHAI                       A
                              v.
                   STATE OF GUJARAT
           (Criminal Appeal Nos.532-33 of 2013)
                      APRIL 04, 2013
                                                                B
   [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

      Penal Cqde, 1860- s.302 - Murder-Appellant and two
other accused - Deceased was going to tiis field on cycle -
Appellant dashed motor vehicle from behind - Deceased was C
thrown off from his cycle - He was then tied behind the motor
vehicle and dragged for considerable distance - Few days
earlier, the accused had quarrelled with the deceased and had
threatened him - Conviction of appellant uls.304 Part I by trial
court - Altered to that u/s.302 by High Court - On appeal, D
held: Post mortem report showed injuries on vital parts of the
deceased's body, the face was crushed and further there were
marks of dragging - A quarrel or altercation has its own
triviality but it gets magnified when the dashing of the vehicle
is proven and the nature of the injuries caused on the E
deceased is taken note of - That apart, there is evidence that
the body was dragged - Intention to cause bodily injury
proved - Injuries sufficient in the ordinary course of nature to
cause death - No flaw in the analysis made by the High Court
for altering the conviction u/s.304 Pert I recorded by the trial F
Judge to that u/s.302.

    Evidence - Witness - Hostile witness - Appreciation of.

    A-1 (appellant) and A-2 had a dispute with the
deceased {the brother of the complainant). Few days later, G
when the deceased was going to his field on cycle about
9.00 p.m., A-1, allegedly with the intention of killing him,
dashed motor vehicle from behind and when the
deceased was thrown off from his cycle, A-1 tied him
                             341                                H
    342      SUPREME COURT REPORTS            [2013] 5 S.C.R.


A   behind the motor vehicle and dragged him about 10
    kilometers and threw the dead body on the road and
    destroyed the evidence. The other two accused persons
    allegedly abetted the crime with common intention to
    assist A-1.
B
       The trial court held A-1 guilty under Section 304 Part-
  1 of IPC and, accordingly, sentenced h-im to undergo
  rigorous imprisonment for five years. The other accused
  persons were, however, acquitted. On appeal by the
  State, the High Court held that it was not a case of
C accident; and that the intention to cause d~ath was
  proved by material evidence, oral as well as documentary
  and accordingly converted the conviction of A-1
  (appellant) to that of an offence punishable under Section
  302 of IPC and sentenced him to undergo life
D imprisonment. The acquittal of A-2 and A-3 was, however,
  not interfered with by the High Court.

          Dismissing the appeals, the Court

       HELD: 1. The post mortem report show that there
E were injuries on the vital parts of the body, the face was
  crushed and further there were marks of dragging which
  were found on the upper part of the body and on the
  back, and the private part was crushed. PW-16, who
  conducted the post-mortem in his evidence, has
F categorically stated that on the body there were marks
  of dragging which was on the front part of the body and
  on the back. The evidence in this regard has totally gone
  unchallenged. PW-15, Scientific Officer, has deposed that
  on the rear part of the bumper of the vehicle, there were
G skin pieces stuck and blood masses were seen. The
  scientific report of FSL confirms that the back side of the
  cycle had a colour mark of the front side of the motor
  vehicle. Thus, dashing of the cycle by the motor·vehiole
  in question is established by this scientific evidence also.
H There is sufficient proof that after the accident, there was
KHACHAR DIPU @ DILIPBHAI NAKUBHAI v. STATE 343
              OF GUJARAT
dragging of the deceased by the vehicle in question. The A
trial Judge has not accepted the allegation of dragging
of the deceased solely on the basis that no injuries were
caused on the wrist. He has totally ignored the other
evidence collected by the Investigating Officer on the site,
the opinion of the doctor that the injuries were caused B
by the accident and dragging of the body and the F.S.L.
report. [Paras 9, 10] [349-E-F; 350-F, G-H; 351-A, D-G]

      2. Some of the witnesses had turned hostile during
trial. However, it is well settled in raw that the evidence C
of the hostile witness can be relied upon by the
prosecution as well as by the defence. The High Court
has referred to the depositions of two witnesses, namely,
PW-20, and PW-21. On a careful scrutiny of the
testimonies of the said two witnesses, it Is seen that both
of them have categorically deposed that the motor D
vehicle involved in the accident had dashed against the
cycle of the deceased as a result of which he had fallen
down. In cross-examination by the accused, they have
not paved the path of variance in this regard. Their
evidence support the prosecution version that the motor E
vehicle had dashed against the cycle. One of the
witnesses has not identified the accused in court but the
other witness, PW-20 has identified. That apart, as far as
the identification of the accused is concerned, there is
ample evidence on record to support the same. The F
singular purpose of referring to the testimonies of these
two witnesses is that the incident did occur and the
accused had dashed the vehicle against the cycle. [Paras
11, 12] [352-D-E; 353-C-F]

    Rameshbhai Mohanbhai Kofi and Others v. State of G
Gujarat (2011) 11 SCC 111: 2010 (14) SCR 1; Bhagwan
Singh v. State .of Haryana {~ 976) 1 SCC1 389: '1976 (2) SCR
921; Rabindra Kumar Dey v. State of Orissa (1976) 4 'SCC
233: 1977 ( 1 ) SCR 439; Syad Akbar v. State of Kamataka H
    344     SUPREME COURT REPORTS              [2013] 5 S.C.R.


A   (1980) 1 sec 30; Khujji v. state of M.P. (1991) 3 sec 627:
    1991 (3) SCR 1; State of U.P. v. Ramesh Prasad Misra (1996)
    10 SCC 360: 1991 (3) SCR 1; Ba/u Sonba Shinde v. State
    of Maharashtra (2002) 7 SCC 543: 2002 (2) Suppl. SCR
    135; Gagan Kanojia v. State of Punjab (2006) 13 SCC 516;
B   Radha Mohan Singh v. State of U.P. (2006) 2 SCC 450: 2006
    (1) SCR 519; Sarvesh Narain Shukla v. Daroga Singh (2007)
    13 SCC 360: 2007 (11) SCR 300 and Subbu Singh v. State
    (2009) 6 sec 462: 2009 (7) SCR 383 - relied on.

       3. The High Court has taken note of the injuries and
C the conduct of the accused persons and opined that it
  is a bru,tal murder. It accepted the prosecution version of
  murder, regard being had to the effective crushing of the
  body intentionally and dragging of the same to cause
  death. The High Court held that there was intention on
D the ground that dashing of the motor vehicle and
  dragging was with the intention to inflict such bodily
  injury that was sufficient to cause death in the ordinary
  course of nature. To put it differently, the High Court has
  brought the case under Section 300 "thirdly" of the IPC.
E The accused had not taken the plea that there was an
  accident because of bad light or due to the negligence
  of the deceased. He has taken the plea of complete denial.
  Under these circumstances, the evidence of the son of
  the deceased, PW-18, gains significance. He has deposed
F that there was a quarrel between the accused and the
  deceased relating to dumping of garbage and his father
  was threatened by the accused. The said evidence has
  gone unchallenged. Such a quarrel or altercation has its
  own triviality but it gets magnified when the dashing of
G the vehicle is proven and the nature of the injuries caused
  on the deceased is taken note of. That apart, there is
  evidence that the body was dragged. Thus, it can safely
  be concluded that the intention to cause bodily injury is
  actually found to have been proved and such injuries are
H sufficient in the ordinary course of nature to cause death.
 KHACHAR DIPU @ DILIPBHAI NAKUBHAI v. STATE 345
               OF GUJARAT

When such injuries are inflicted, it will be travesty of      A
justice to hold that it was an accident without the
intention to cause death. There is no flaw in the analysis
made by the High Court for altering the conviction under
Section 304 Part I of IPC recorded by the trial Judge to
that under Section 302 of IPC. [Paras 14, 15, 19, 20] [354-   e..
C-E; 357-F-G; 358-A-D]

     Virsa Singh v. State of Punjab AIR 1958 SC 465: 1958
·scR 1495; State of Andhra Pradesh v. Rayavarapu
Punnayya and Another (1976) 4 SCC 382: 1977 (1) SCR           C
601; Rajwant v. State of kerala AIR 1966 SC 1874; Rampa/
Singh v. State of Uttar Pradesh (2012) 8 SCC 289: 2012 (7)
SCR 160; Vineet Kumar Chauhan v. State of U.P. (2007) 14
SCC 660: 2007 (13) SCR 727; Ajit Singh v. State of Punjab
(2011) 9 SCC 462: 2011 (12) · SCR 375 and Mohinder Pal
Jolly v. State of Punjab (1979) 3 SCC 30: 1979 (2) SCR 805    D
- referred to.
                     Case Law Reference:
 2010 (14) SCR 1              relied .on      Para 11
                                                              E
  1976 (2) SCR 921            relied on       Para 11
  1977 (1) SCR 439            relied on       Para 11
  (1980) 1 sec 30             relied on       Para 11
                                                              F
  1991 (3) SCR 1              relied on       Para 11
  1991 (3) SCR 1              relied on       Para 11
  2002 (2) Suppl. SCR 135     relied on       Para 11
  (2006) 13 sec 516           relied on       Para 11         G

  2006 (1) SCR 519            relied on       Para 11
  2007 (11) SCR 300           relied on       Para 11
  2009 (7) SCR 383            relied on       Para 11         H.
    346      SUPREME COURT REPORTS                [2013] 5 S.C.R.

A    1958 SCR 1495                  referred to      Para 15
     1977 (1) SCR ~01               referred to      Para 16
     AIR 1966 SC 1874               referred to      Para 16, 18

B    2012 (7) SCR 160               referred to      Para 18
     2007 (13) SCR 727              referred to      Para 18
     2011 (12) SCR 375              referred to      Para 18
     1979 (2) SCR 805               referred to      Para 18
c
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    Nos. 532-533 of 2013.

       From the Judgment & Order dated 12.04.2012 of the High
D Court of Gujarat at Ahmadabad in Criminal Appeal No. 1075
  of 2009 with Criminal Appeal No. 950 of 2009.

        Harshit S. Tolia, P.S. Sudheer, Rishi Maheshwari, Abu
    John Mathew for the Appellant.

E       Jesal, Nandini Gupta, Hemantika Wahi for the
    Respondent.

          The Judgment of the Court was delivered by

          DIPAK MISRA, J. 1. Leave granted.
F
       2. In these appeals, the appellant, original accused No. 1,
  has called in question the legal propriety of the judgment of
  conviction and order of sentence passed by the High Court of
  Gujarat in Criminal Appeal No. 950 of 2009 whereby the
G Division Bench has allowed the appeal of the State and
  converted the conviction under Section 304 Part-I of the Indian
  Penal Code (for short 'IPC') recorded by the learned trial Judge
  to that of an offence punishable under Section 302 of IPC and
  sentenced him to undergo life imprisonment and further the
H defensibility of the decision of dismissal of Criminal Appeal No.
KHACHAR DIPU@ DILIPBHAI NAKUBHAI v. STATE 347
       OF GUJARAT [DIPAK MISRA, J.]
1075 of 2009 wherein the appellant had assailed the judgment A
and conviction and order of sentence dated 5.3.2009 passed
by the learned Additional Sessions Judge, Bhavnagar in
Sessions case No. 166 of 1998.

     3. The factual score which led to the trial of the appellant
                                                                    8
along with two others is that three days prior to the date of
occurrence, i.e., 21.5.1998, accused Nos. 1 and 2, namely,
Khachar Dipu alias Dilipbhai Nakubhai and Vahtubhai
Nakubhai, had a dispute regarding dumping of manure with the
brother of the complainant and there were altercations which
led to an inimical relationship between the parties. On the date    C
of occurrence, when the deceased Shambhubhai, the brother
of the complainant, was going to his field by cycle about 9.00
p.m. on 20.05.1998, the accused No. 1, with the intention of
extinguishing the life spark of the deceased, dashed the motor
vehicle No. GJ-7-U-2385 from behind and when the deceased           D
was thrown off from his cycle, the accused No. 1 tied him behind
the motor vehicle and dragged him about 10 kilometers and
threw the dead body on the Gadhada Road and destroyed the
evidence. The other two accused persons abetted with the
common intention to assist accused No. 1. On an FIR being           E
lodged, the criminal law was set in motion and after
investigation, the accused persons were arrested and,
eventually, a charge sheet for offences under Sections 302/201
read with Section 34 of the IPC was laid before the learned
 Magistrate who, in turn, committed the matter to the Court of      F
Session. The accused persons denied the charges and
claimed to be tried.

    4. The prosecution, in order to establish its case,
examined 24 witnesses and exhibited 31 documents. The G
defence chose not to adduce any evidence.

     5. The le.arned Sessions Judge, on analysis of the
evidence, came to hold that the accused No. 1 was guilty of
the offence punishable under Section 304 Part-I of IPC and,
accordingly, sentenced him to undergo rigorous imprisonment         H
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A   for a period of five years and to pay a fine of Rs.500/- and, in
    default, to suffer further simple imprisonment of one month. As
    far as the other accused persons are concerned, they stood
    acquitted of the charges.

B       6. Being grieved by the aforesaid judgment, the convicted
  persons and the State of Gujarat preferred Criminal Appeal
  Nos. 950 of 2009 and 1075 of 2009 respectively. The High
  Court took note of the earlier quarrel that had taken place
  between the parties, the injuries on the dead body, the evidence
  of the prosecution witnesses, the material brought on record
C relating to the incident, and accepting the fact that the motor
  vehicle had dashed against the cycle ridden by the deceased
  and further analyzing the reasoning ascribed by the learned trial
  Judge, opined that the learned Sessions Judge had flawed in
  recording the conviction under Section 304 Part-I of IPC and
D not under Section 302 of IPC. The High Court opined that it was
  not a case of accident inasmuch as the injuries on the whole
  body had effectively crushed the entire body and it could not
  have happened if the motor vehicle had only dashed against
  cycle from behind. The High Court further opined that had it
E been a case of negligence in driving, the accused would not
  have lifted the body of the deceased after dashing his vehicle
                                     0

  against the cycle of the deceased. The Division Bench further
  proceeded to state that the muscle tissues found from the
  bumper of the motor vehicle coupled with the condition of the
F body of the deceased and the fact that it was left on the road
  with the motor vehicle at a distance of about 10 to 15 kms away
  from where it had dashed gave credence to the prosecution
  version that it was not a case of mere dashing of the motor
  vehicle with the cycle and the findings of the learned Sessions
G Judge pertaining to absence of pre-meditation to cause death
  was totally against normal prudence, and therefore, the findings
  recorded by the learned Sessions Judge were perverse and
  the intention to cause death was proved by material evidence,
  oral as well as documentary. Considering the totality of facts
H and circumstances, the Division Bench concluded that the
KHACHAR DIPU @ DILIPBHAI NAKUBHAI v. STATE 349
     · OF GUJARAT [DIPAK MISRA, J.]

learned Sessions Judge was in error in nolding that A-1 was A
guilty of offence under Section 304 Part-I of IPC and not under
Section 302 of IPC.

     7. Be it noted, the High Court chose not to interfere with
the acquittal of the accused A-2 and A-3 as the allegations were    8
not established and, accordingly, allowed the appeal preferred
by .the State in part. As far as the appeal preferred by the
accused-appellant A-1 is concerned, it was dismissed.

     8. We have heard Mr. Harshit S. Tolia, learned counsel for
the appellant, and Ms. Jesal, learned counsel for the respondent C
in both the appeals.                                    ·

       9. Th'e issues that arise for consideration in these app~als
are whether the accused-appellant is entitled to a judgment of
complete acquittal or the conviction and sentence as recorded D
by the learned trial Judge is absolutely justified in the obtaining
factual matrix which did not warrant interference by the High
Court while entertaining the appeal by the State by converting
the conviction under Section 304 Part-I of the IPC to Section
302 of the IPC and sentencing.thereunder. To appreciate the E
said issues, it is necessary to refer to the post mortem report
which would show the injuries on the deceased. On a perusal
of the same, it appears that there were injuries on the vital parts
of the body, the face was crushed and further there were marks
of dragging which were found on the upper part of the body and F
on the back, and the private part was crushed. The High Court,
 in its judgment, has enumerated the injuries in seriatim which
we reproduce: -

      "1.   Destruction of brain and skull.
                                                                    G
      2.    Destruction of face and its bone (crushing)

      3.    Crushing of all ribs on Rt. Side and some ribs on
            left side.

      4.    CLW over left leg just below knee, above ankle joint.   H
    350        SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A         5.     Abrasion all over front part of chest, abdomen, leg
                 and hand, liner mark with contaminated of road
                 metal.

          6.     Fracture of all ribs with sternum
B         7.     Fracture on Rt. Femur bone at lower end.

          8.     Fracture of numerous at it's upper part.

          9.     Abrasion over heel of Rt. Leg up to bone.
c         10.    Abrasion over the finger of both hand.

          11.    Abrasion on front of abdomen at lateral side and
                 back of abdomen. All part.

          12.    Abrasion all over thoracial part back side.
D
          13.    Abrasion over knee joint and middle side of Rt. Leg
                 upto muscle deep.

          14.    The skull was fractured and crushed and the portion
E                of brain was hanging out. It was also crushed. The
                 road metal was also found therefrom. Lungs, heart,
                 brain, all vital parts were crushed.
       10. Dr. Kanjibhai, PW-16, who conducted the autopsy on
  the dead body, has opined that the injuries were possible in
F vehicular accident or if the vehicle is run over the body. He has
  deposed that even after death, if the body was dragged or the
  vehicle runs over the body, the injuries could have been
  caused. The cross-examination was focused to elicit from this
  witness about the absence of marks on the wrist part of the
G deceased to demolish the version of the prosecution to the
  extent that the deceased was tied behind the vehicle and was
  dragged on the road. In fact, the said witness has categorically
  stated that there were marks of dragging on the body of the
  deceased. PW-15, Kishorebhai Chhaganal Naina, Scientific
H Officer, has deposed that on the rear part of the bumper of the
KHACHAR DIPU @ DILIPBHAI NAKUBHAI v. STATE 351
       OF GUJARAT [DIPAK MISRA, J.]
vehicle, there were skin pieces stuck and blood masses were           A
seen. On an examination of the cycle, he has found that the
motor vehicle had collided with the cycle and thereafter, the
orange colour of the front bymper of the motor vehicle was seen
stuck on the back of the fan. He had taken into custody 7
articles, namely, two pieces of blood stained tar cotton thread,      B
clothes of the deceased, skin pieces from the motor vehicle No.
GJ-7-U-2385, cotton thread rubbed on the rear of the motor
vehicle, the blood stained cotton thread, a coloured iron piece
from the front o( the motor vehicle near the bumper, and rear
part of the cycle on which the orange colour of the motor vehicle     c
was stuck. He had given suggestion for sending the same to
the Forensic Science laboratory at Junagarh. The items
suggested along with several other items were sent by the
Investigating Officer to the Forensic Science Laboratory and
the said report was exhibited during the trial as Exhibit-44. It is
                                                                      0
revealed from the said report that the skin that was sent for
examination was human skin. As regards the cotton thread, the
report mentioned that blood was found. The scientific report of
FSL confirms that the back side of the cycle had a colour mark
of the front side of the motor vehicle. Thus, dashing of the cycle
by the motor vehicle in question is established by this scientific    E
evidence also. We have referred to the same only to highlight
as there is sufficient proof that after the accident, there was
dragging of the deceased by the vehicle in question. Learned
trial Judge has not accepted the allegation of dragging of the
deceased solely on the basis that no injuries were caused on          F
the wrist. He has totally ignored the other evidence collected
by the Investigating Officer on the site, the opinion of the doctor
that the injuries were caused by the accident and dragging of
the body and the F.S.L. report. In our considered opinion, there
is definite material on record to come to the conclusion that the     G
body was dragged but it cannot be said with certainty abou~
the distance. it is worthy to note that the dead body was found
at a distance of 10 kms., but it is not necessary to establish
that the accused had dragged the deceased for about 10 kms.
suffice it to say that there is evidence to establish that the body   H
    352       SUPREME COURT REPORTS                  [2013) 5 S.C.R.


A   was dragged for a considerable distance. Dr. Kanjibhai, PW-
    16, who conducted the post-mortem in his evidence, has
    categorically stated that on the body there were marks of
    dragging which was on the front part of the body and on the
    back. The evidence in this regard has totally gone unchallenged.
s   The finding of the learned trial Judge is solely based on the fact
    that there was no mark which would indicate that the wrists were
    tied. It is useful to note here that the accused had not taken the
    plea that there was an accident. On the contrary, he has taken
    the plea of complete denial of the occurrence.
C         11. At this juncture, we may scrutinize the oral evidence
    on record. Apart from the testimony of Bhimjibhai, PW-1, there
    is other evidence on record which can be taken aid of. It is
    noticeable that some of the witnesses had turned hostile during
    trial. The High Court has referred to the depositions of two
D   witnesses, namely, Shantibhai Lakhmanbhai, PW-20, and
    Gobarbhai Bavubhai, PW-21. It is well settled in law that the
    evidence of the hostile witness can be relied upon by the
    prosecution as well as by the defence. In Rameshbhai
    Mohanbhai Kofi and Others v. State of Gujarat, 1 the said
E   principle has been reiterated stating that:-
          "16. It is settled legal proposition that the evidence of a
          prosecution witness cannot be rejected in toto merely
          because the prosecution chose to treat him as hostile and
          cross-examlned him. The evidence of such witnesses
F         cannot be treated as effaced or washed off the record
          altogether but the same can be accepted to the extent that
          their version is found to be dependable on a careful
          scrutiny thereof. (Vide Bhagwan Singh v. State of
          Haryana 2 , Rabindra Kumar Dey v. State of Orissa 3 , Syad
G         Akbar v. State of Kamataka 4 and Khujji v. State of M.P. 5 )
    1.   (2011) 11sec111.
    2.   (1976) 1 sec 389.
    3.   (1976) 4 sec 233.
    4.   (1980) 1 sec 30.
H   s.   (1991) 3 sec 627.
KHACHAR DIPU @ DILIPBHAI NAKUBHAI v. STATE 353
       OF GUJARAT [DIPAK MISRA, J.]

     17. In State of UP. v. Ramesh Prasad Misra 6 this Court A
     held that evidence of a hostile witness would not be totally
     rejected if spoken in favour of the prosecution or the
     accused but required to be subjected to close scrutiny and
     that portion of the evidence which is consistent with the
     case of the prosecution or defence can be relied upon. A B
     simi!ar view has been reiterated by this Court in Balu
     Sonba Shinde v. State of Maharashtra 7 , Gagan Kanojia
     v. State of Punjab 8 , Radha Mohan Singh v. State ofU.P. 9 ,
     Sarvesh Narain Shukla v. Daroga Singh 10 and Subbu
     Singh v. State. 11 "                                      c
     12. On a careful scrutiny of the testimonies of the said two
witnesses, it is seen that both of them have categorically
deposed that the motor vehicle involved in the accident had
dashed against the cycle of the deceased as a result of which
he had fallen down. It is interesting to note that in cross- D
examination by the accused, they have not paved the path of
variance in this regard. In our opinion, their evidence support
the prosecution version that the motor vehicle had dashed
against the cycle. We may note with profit that one of the
witnesses has not identified the accused in court but the other E
witness, PW-20, Shantibhai Lakhmanbhai, has identified. That
apart, as far as the identification of the accused is concerned,
there is ample evidence on record to support the sanie. The
singular purpose of referring to the testimonies of these two
witnesses is that the incident did occur and the accused had F
dashed the vehicle against the cycle.

      13. From the aforesaid evidence on record, certain

6.   (1996) 10 sec 360.                                        G
7.   c2002) 7 sec 543.
a.   c2006) 13 sec 516.
9.   (2006) 2 sec 450.
10. (2007) 13 sec 360.
11. c2009) 6 sec 462.                                          H
    354     SUPREME COURT REPORTS                   (2013] 5 S.C.R.

A   aspects became clear:- namely, (i) on the fateful night at 9.00
    p.m., the deceased was going on a cycle, (ii) the motor vehicle
    bearing registration number No. GJ-7-U-2385 belonging to the
    accused-appellant dashed against the cycle, (iii) number of
    injuries were sustained by the deceased, (iv) there was
B   dragging of the deceased after the accident occurred, and (v)
    the accused was involved in the commissjon of the crime.

         14. The learned trial Judge had convicted the accused
    under Section 304 Part I of IPC as there was no previous
    deliberation or pre-meditation on the part of the accused and
C   there was no evidence that the dead body was dragged upto
    10 kms. The High Court, as is noticeable, accepted the
    prosecution version of murder, regard being had to the effective
    crushing of the body intentionally and dragging of the same to
    cause death.
D
       15. One aspect that has to be seen is whether the High
  Court was justified in saying that there was intention. Such a
  view has been expressed on the ground that dashing of the
  motor vehicle and dragging was with the intention to inflict such
E bodily injury that was sufficient to cause death in the ordinary
  course of nature. To put it differently, the High Court has brought
  the case under Section 300 "thirdly". In this context, we m'ay
  refer with profit to the decision in Virsa Singh v.. State of
  Punjab 12 wherein Vivian Bose, J., speaking for a three-Judge
F Bench, laid down what is required for the prosecution to prove
  to bring the case under the said clause. It has been stated
  therein that first, it must be established, quite objectively, that
  a bodily injury is present; Secondly, the nature of the injury must
  be proved and these are purely objective investigations; thirdly,
  it must be proved that there was an intention to inflict that
G particular bodily injury, that is to say, that it was not accidental
  or unintentional, or that some other kind of injury was intended;
  and once these three elements are proved to be present, the
  enquiry proceeds further; and fourthly, it must be proved that

H   12. AIR 1958 SC 465.
KHACHAR DIPU @ DILIPBHAI NAKUBHAI v. STATE 355
       OF GUJARAT [DIPAK MISRA, J.]
the injury of the type just described made up of the three A
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. Thereafter, in that case, it has been stated as
follows:-                                                          B

     "Once these four elements are established by the
     prosecution (and, of course, the burden is on the
     prosecution throughout) the offence is murder under
     Section 300 "thirdly". It does not matter that there was no         C
     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            D
     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 one has a licence to            E
     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         F
      injury was accidental or otherwise unintentional."

     16. In State of Andhra Pradesh v. Rayavarapu Punnayya
and Another13, after referring to the rule laid down in Virsa
Singh's case (supra) and Rajwant v. State of kerala 14, the Court
proceeded to enunciate that whenever a court is confronted with G
the question whether the offence is 'murder' or 'culpable
homicide not amounting to murder', on the facts of a case, it
 13. (1976) 4 sec 302.
 14. AIR 1966 SC 1874.                                                   H
        356      SUPREME COURT REPORTS                    [2013] 5 S.C.R.


A       will be convenient for it to approach the problem in three stages.
        The question to be considered at the first stage would be,
        whether the accused has done an act by doing which he has
        caused the death of another. Proof of such causal connection
        between the act of the accused and the death, leads to the
B       second stage for considering whether that act of the accused
        amounts to "culpable homicide" as defined in Section 299. If
        the answer to this question is prima tacie found in the
        affirmative, the stage for considering the operation of Section
        300, Penal Code, is reached. This is the stage at which the
C       court should determine whether the facts proved by the
        prosecution bring the case within the ambit of any of the four
        clauses of the definition of 'murder' contained in Section 300.
        If the answer to this question is in the negative the offence would
        be 'culpable homicide not amounting to murder', punishable
        under the first or the second part of Section 304, depending,
0
        respectively, on whether the second or the third clause of
        Section 299 is applicable. If the question is found in the positive,
        but the case comes within any of the exceptions enumerated
        in Section 300, the offence would still be 'culpable homicide
        not amounting to murder', punishable under the first part of
E       Section 304, Penal Code.

        17. We may hasten to clarify that in the said case, the two-
  Judge Bench observed that the aforestated principles are only
  broad guidelines and not cast-iron imperatives. In most cases,
F their observance would facilitate the task of the court. However,
  adding a word of caution, it observed that sometimes the facts
  are so intertwined and the second and the third stages so
  telescoped into each other that it may not be convenient to give
  a separate treatment to the matters involved in the second and
G third stages.

             18. Recently, in Rampa/ Singh v. State of Uttar Pradesh, 15
        after referring to the pronouncements in Rayavarapu Punnawa


H       15. c2012) s sec 2ss.
    I
 KHACHAR DIPU @ DILIPBHAI NAKUBHAI v. STATE 357
    .   OF GUJARAT [DIPAK MISRA, J.]
(supra), Vineet Kumar Chauhan v. State of U.P. 16, Ajit Singh         A
v. State of Punjab, 17 and Mohinder Pal Jolly v. State of
Punjab 18, the Court opined thus: -

    "The evidence led by the parties with reference to all these
    circumstances greatly helps the court in coming to a final 8
    conclusion as to under which penal provision of the Code
    the accused is liable to be punished. This can also be
    decided from another point of view i.e. by applying the
    "principle of exclusion". This principle could be applied
    while taking recourse to a two-stage process of C
    determination. Firstly, the Court may record a preliminary
    finding if the accused had committed an offence
    punishable under the substantive provisions of Section 302
    of the Code, that is, "culpable homicide amounting to
    murder''. Then secondly, it may proceed to examine if the
    case fell in any of the Exceptions detailed in Section 300 D
    of the Code. This would doubly ensure that the conclusion
    arrived at by the court is correct on facts and sustainable
    in law. We are stating such a proposition to indicate that
    such a determination would better serve the ends of
    criminal justice deliv~ry."                                  E

       19. Regard being had to the aforesaid enunciation of law,
it is to be seen whether the opinion expressed by the High Court
is correct and justified. As has been stated hereinbefore, the
High Court has taken note of the injuries and the conduct of the      F
accused persons and opined that it is a brutal murder. At this
juncture, it is apt to note that the accused had not taken the plea
that there was an accident because of bad light or due to the
negligence of the deceased. He has taken the plea of complete
denial. Under these circumstances, the evidence of the son of         G
the deceased, Himmatbhai Sambhubhai, PW-18, gains
significance. He has deposed that there was a quarrel between
16. (2007) 14 sec 660.
11. (2011) s sec 462.
1a. (1979) 3 sec 30.                                                  H
    358      SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A the accused and the deceased relating to dumping or garbage
  and his father was threatened by the accused. The said
  evidence has gone unchallenged. Such a quarrel or altercation
  has its own triviality but it gets magnified when the dashing of
  the vehicle is proven and the nature of the injuries caused on
B the deceased is taken note of. That apart, there is evidence
  that the body was dragged. Thus, it can safely be concluded
  that the intention to cause bodily injury is actually found to have
  been proved and such injuries are sufficient in the ordinary
  course of nature to cause death. When such injuries are
c inflicted, it will be travesty of justice to hold that it was an
  accident without the intention to cause death.

       20. In view of the aforesaid premised reasons, we do not
  find any flaw in the analysis made by the High Court for
  reversing the conviction under Section 304 Part I of IPC
D recorded by the learned trial Judge to that of 302 of IPC and,
  accordingly, we concur with the same. The resultant effect of
  the same is dismissal of both the appeals which we direct.

    B.B.B.                                     Appeals dismissed.