RAMANLAL AND ANR.versusSTATE OF HARYANA

                     [2015) 7 S.C.R. 147


                   RAMANLAL ANDANR.                              A
                              v.
                    STATE OF HARYANA
             (Criminal Appeal No. 2279 of 2009)
                                                                 B
                        MAY 15, 2015
         [T. S. THAKUR AND R. F. NARIMAN, JJ.]
      Penal Code, 1860 - ss. 148, 323, 325 and 304 (Part I)
- Prosecution ulss. 148, 323, 325 and 302 rlw s. 149- Of ten c
accused - Trial court convicted all the accused - High Court
confirmed the conviction of 4 of the accused while acquitted
rest of them - On appeal, held: Prosecution proved its case
qua the appellants-accused - However, since the incident
was without premeditation and a sudden
                                     ..., ,..
                                              fight upon a sudden D
quarrel and since the injuries were inflicted in the heat of
passion without taking any undue advantage or acting in a
cruel and unusual manner - Therefore, by invoking
Exception 4 to s. 300 the offence will not'fall uls. 302 but uls.
304 (Part I) - Since the number of accused was reduced to E
only 4 due to acquittal of 6 of the accused, the appellants
also cannot be convicted with the aid of s. 149 - The
conviction of appellant-accused 'H' is converted from s. 3021
149 to s. 304 (Part I) - Other appellants-accused are acquitted
u/s. 3021149 while their conviction ulss. 325 and 323 F
confirmed.

     Partly allowing the appeals, the Court

       HELD: 1. There is nothing in the evidence to G
probablise the defence version that the incident in
question had taken place on account of an attempt on
the part of the deceased to sodomise 'J'. There are no
tell tale signs of any such attempt having been made.
Not only that, the defence has not taken care to examine H
                           147
148      SUPREME COURT REPORTS               [2015] 7 S.C.R.


A 'J', the alleged victim of the attempted act as a witness
  to prove that any such attempt was at all made by the
  deceased. [Para 6) [153-H; 154-A-B]

       2. The provisions of Section 149 IPC are no longer
B available to the prosecution for convicting the appellants
  whose number is reduced to 4 consequent upon the
  acquittal of the remaining accused persons. In the
  present case, the prosecution had named all those
  constituting the unlawful assembly, but, only four of
C those named were eventually convicted, thereby
  reducing the number to less than five. There is no
  evidence to suggest that any one, apart from the persons
  named in the charge-sheet were members of the unlawful
  assembly, but, were either not available or remained
D unidentified. Such being the position, the conviction of
  the appellants with the help of Section 149 IPC does not
  appear to be legally sustainable. [Para 12) [161-~·E]
                                                  ..   .·   ..
      Mohan Singh v. State of Punjab AIR 1963 SC 174:
E     1962 Suppl. SCR 848; Nagamalleswara Rao (K) and
      Ors. v. State ofAndhra Pradesh (1991) 2 SCC 532: 1991
      (1) SCR 875 - relied on.

        3.1 The fact that accused 'H' had inflicted a single
F injury on the head of the deceased, showed that there
  was no intention to kill the deceased, other injuries
  inflicted by the remaining accused being only simple in
  nature. The offence could not, therefore, be graver than
  culpable homicide not amounting to murder punishable
G u/s. 304 (Part-I) IPC. [Para 13) [161-H; 162-A-B]

      Virsa Singh v. State of Punjab AIR 1958 SC 465:1958
      SCR 1495- relied on.

        3.2 Even when the act may not have been committed
H
     RAMANLAL ANDANR. v. STATE OF HARYANA                       149


with the intention of causing death, the same was                A
intended to cause such bodily injury as was likely to
cause death, within the meaning of Section 304 Part I.
However, the circumstances of the present case leave
no manner of doubt that the incident was without any
pre-meditation and a sudden fight upon a sudden                  B
quarrel. The injuries upon the deceased were inflicted
in the heat of passion and without the appellant taking
any undue advantage or acting in a cruel or unusual
manner. The fact situation of the case, therefore, attracts
Exception 4 to s. 300 especially when in terms of               C
explanation to Exception 4, it is immaterial in such cases
which party offers the provocation or commits the first
assault. That being so, the offence committed by the
author of the injury is not murder but culpable homicide
                                                                0
not amounting to murder punishable u/s. 304 IPC.
Therefore, the conviction of the appellants u/s. 302 r/w.
Section 149 IPC and the sentence of imprisonment for
life awarded to them is set aside. Appellant 'H' is, instead,
convicted u/s. 304 Part-I. [Paras 16, 17 and 18] [164-B-H]      E

      4. The conviction of other three appellants-accused
for offences punishable under Sections 325 and 323 of
the IPC and the sentence awarded to them shall stand
affirmed. [Para 18] [165-B-G]
                                                                F
                Case Law Reference

1962 Suppl. SCR 848         relied on.         Para 10

1991 (1) SCR 875            relied on.         Para 11          G
1958 SCR 1495               relied on.         Para 14

    CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 2279 of 2009.
                                                                H
150        SUPREME COURT REPORTS                  [2015) 7 S.C.R.


A          From the Judgment and Order dated 07. 05.2009 of the
      High Court of Punjab & Haryana at Chandigarh in Criminal
      Appeal No. 631-DB of 2000.

                                WITH
B
           Criminal Appeal No. 1351of2010

           Bhagwati Prasad, Fakhruddin, Sanjeev Bhatnagar,
      Pushpinder Singh, Manju Jaitley, Ram Niwas Buri, Divya
      Mishra, N. Annapoorani for the Appellants.
c
           Arun Kumar, AAG, Kamal Mohan Gupta, Sanjay Kumar
      Visen, M. Qamaruddin for the Respondent.

           The Judgment of the Court was delivered by
D
           T. 5. THAKUR, J. 1. These two appeals by special
  leave assail a common judgment and order dated 7th May,
  2009 passed by a Division Bench of the High Court of Punjab
  and Haryana at Chandigarh whereby Criminal Appeal No.631
E of 2000 filed by the appellants challenging their conviction for
  offencespunishable under Sections 323, 325, 302 read with
  Section 149 of the IPC has been dismissed and the sentence
  of lite imprisonment awarded to each one of them by the trial
  Court affirmed. -
F
         2. The prosecution case in a nutshell is that on 2"d July,
  1998 at about 10 O' clock in the morning Ved Pal and his
  brother Gopal, now deceased, were watering their fields in
  village Doongriwala, district Faridabad in the State of Haryana.
G At about 12.00 noon Jai Pal, son of Nihar Singh entered their
  field in which the two brothers had grown their paddy crop.
  Deceased-Gopal appears to have objected to Jai Pal's
  trespass into the paddy crop to which objection Jai Pal gave
  an abusive reply insisting that he would pass through the paddy
H crop regardless of Gopal's objection. While this altercation
      RAMANLAL ANDANR. v. STATE OF HARYANA                           151
                [T. S. THAKUR, J.]

 was going on between deceased-Gopal and Jai Pal, 10 to 12            A
 persons appeared on the spot armed with lathis, pharsas and
 ballams. They included Har Chand, Digamber and Bhagat
 Singh sons of Jairam; Rajbir, Lal and Bhola sons of Har Chand;
 Jagdish son of Girraj; Rattan Lal son of Jagdish; Naresh and
 Rajkumar sons of Ramesh all Jats by caste and residents of           B
 village Doongriwala. They are alleged to have given a lalkara
 to eliminate Ved Pal and deceased Gopal and assaulted both
 of them causing several injuries including an injury on the head
 of the deceased-Gopal that felled him to the ground. The injured
were removed to the hospital at Hodal for treatment where             C
Ved Pal made a statement which was made before ASI Narain
Singh that led to the registration of a case against the persons
aforementioned for offences punishable under Sections 148,
 149, 323 and 307 of the IPC. With Gopal succumbing to the
                                                                      0
injuries in the Escorts Hospital at Faridabad, the offence under
Section 307 of the IPC was converted into one of murder
punishable under Section 302 of the IPC. Investigation by the
police led to the arrest of accused Har Chand, Digambar and
Jagdish on 3rd July, 1998. Several recoveries from the accused        E
persons are said to have been made in the -course of
investigation which culminated in filing of a charge-sheet
against ten persons in all excluding Bhagat Singh son of Jai
Ram who even though named in the FIR, was foun"tl innocent
while Jai Pal being a juvenile was referred to the Juvenile Court     F
at Faridabad. The net result was that nine out of those named
in the FIR only were eventually committed to face the trial before
the Additional Sessions Judge at Faridabad for offences under
Sections 148, 323, 325 and 302 read with Section 149 of the
IPC. At the trial, Bhagat Singh son of Jai Ram was also added        G
as an accused under Section 319 of the Cr. P. C, taking the
number of those accused to face the trial to ten in all.

    3. In support of its case, the prosecution examined as
many as ten witnesses. These included the first informant Ved H
152       SUPREME COURT REPORTS                   [2015) 7 S.C.R.


A Pal examined as PW-1; Prakash examined as PW-2; Kishan
  Singh examined as PW-3; Satbir Singh examined as PW-4
  and Ors. HK Mishra, VR Gupta and SP Jayant examined as
  PWs 5, 6 and 10 respectively. The remaining witnesses
  happened to be police officials including the investigating
B officer. The accused did not lead any evidence in defence. In
  their statements recorded under Section 313 of the Cr.P.C.,
  they alleged false implication. It was further alleged that Jai
  Prakash and Har Chand alone were present on the spot at the
  time of the incident and that the remaining nine accused
C persons had been falsely implicated. Their further case was
  that on the fateful day Jai Pal was watering his fields when
  deceased Gopal tried to commit sodomy upon him. Har Chand
  noticed this attempt of the deceased and objected to it,
  whereupon deceased Gopal inflicted a lathi blow upon the
0
  person of Har Chand. Har Chand, in exercise of the right of
  private defence and with a view to rescuing Jai Pal, inflicted a
  lathi blow on de9eased Gopal, while Jai Pal caused injuries to
  Ved Pal in the incident.
E       4. The Trial Court appraised the evidence adduced by
  the prose·cution and came to the conclusion that the
  depositions of PW1-Ved Pal and PW2-Prakash were
  completely reliable. The Trial Court rejected the contention
F urged on behalf of the accused persons that the delay in the
  lodging of the Fl R was not satisfactorily explained or that the
  prosecution ought to suffer on account of its failure to explain
  the injuries sustained by the accused persons. The Trial Court
  also rejected the contention that there was no motive for the
G commission of the offence or that there was any contradiction
  between the medical and ocular evidence led in the case. The
  Trial Court on that reasoning sentenced all the ten accused
  persons arraigned before it to undergo imprisonment for life
  under Section 302 of the IPC and a fine of Rs.5,000/-each. In
H default of payment of fine, they were directed to undergo further
      RAMANLAL ANDANR. v. STATE OF HARYANA                         153
                [T. S. THAKUR, J.]

rigorous imprisonment for a period of one year each. They A
were also sentenced to under rigorous imprisonment for a
period of one year and a fine of Rs.1,000/- with a default
sentence of three months each under Section 325 of the IPC.
For the offences punishable under Sections 323 and 148 of
the IPC the accused were sentenced to pay a fine of B
Rs.1,000/- each. No default sentence in regard to those
offences was, however, awarded.

       5. Aggrieved by the conviction and sentence awarded to
them, the appellants filed Criminal Appeal No.631 of 2000 C
 before the High Court of Punjab and Haryana at Chandigarh,
which was disposed of along with Criminal Revision No.345
of 2001 filed by Ved Pal-the first informant by a common
judgment and order impugned in these appeals. The High
Court upon a reappraisal of the evidence adduced at the trial D
came to the conclusion that the appeal filed by Digamber,
Rajbir, Lala, Bhola, Jagdish and Raj Kapoor deserved to be
allowed, while the same deserved dismissal qu~rti~r Chand,
Raman Lal, Naresh and Bhagat Singh. That is precisely the
backdrop in which Har Chand, Raman Lal, Naresh and Bhagat E
Singh are before us in these appeals by special leave assailing
their conviction and the sentence awarded to them.
                                                    1
      6. On behalf of the appellants it was argued tfi aYlhe courts
 below had fallen in error in convicting the appellants l;>y placing F
an implicit reliance upon the depositions of PW1 ~Ved Pal and
 PW2-Prakash and in the process, ignoring the defence version
about the genesis of the incident. It was contended that the
incident had occurred on account of an attempjed act of
sodomy by the deceased upon Jaipal to which the appellant- G
Har Chand had objected resulting in lathi blows being inflicted
                                                     •V •
by the two sides rivals to each other. The argument needs
notice only to be rejected. We say so because th~~e is nothing
in the evidence to probablise the defence vers!On that the H
154       SUPREME COURT REPORTS                   [2015] 7 S.C.R.


A incident in question had taken place on account of an attempt
  on the part of Gopal to sodomise Jaipal. There are no tell tale
  signs of any such attempt having been made. Not only that,
  the defence has not taken care to examine Jaipal the alleged
  victim of the attempted act as a witness to prove that any such
B attempt was at all made by the deceased-Gopal. We have,
  therefore, no hesitation in rejecting the argument that the
  defence version was a probable version which could not be
  given credence. The courts below have, in our opinion, rightly
  rejected the defence version for which there was no factual
C foundation whatsoever in the evidence.

         7. It was next argued by learned counsel for the appellants
  that with the acquittal of 6 out of 10 accused persons, the charge
  that the appellants constituted an unlawful assembly ought to
D fail and as an inevitable consequence thereof, the conviction
  of the appellants for murder with the help of Section .149 of the
  IPC rendered unsustainable. It was contended that acquittal
  of other accused persons alleged to be members of the
  unlawful assembly, implied that the said accused had been
E falsely implicated in the case or that they, even if physically
  present on the spot as alleged, did not share the common
  object of the convicted accused.
        8. Section 141 of the IPC defines unlawful assembly as
 F under:

       "141. Unlawful assembly.-An assembly of five or
       more persons is designated an "unlawful assembly", if
       the common object of the persons composing that
 G     assembly is-

       (First) - To overawe by criminal force, or show of
       criminal force, 1[the Central or any State Government
       or Parliament or the Legis-lature of any State], or any
 H     public servant in the exercise of the lawful power of such
     RAMANLAL ANDANR. v. STATE OF HARYANA                      155
               [T. S. THAKUR, J.]

  public servant; or                                            A

  (Second) - To resist the execution of any law, or of any
  legal process; or

  (Third, - To commit any mischief or criminal trespass,
                                                                B
  or other offence; or

  (Fourth) - By means of criminal force, or show of
  criminal force, to any person, to take or obtain
  possession of any property, or to deprive any person of
  the enjoyment of a right of way, or of the use of water or    c
  other incorporeal right of which he is in possession or
  enjoyment, or to enforce any right or supposed right; or

  (Fifth) - By means of criminal force, or show of criminal
  force, to compel any person to do what he is not legally      D
  bound to do, or to omit to do what he is legally entitled
  to do.

  Explanation.-An assembly which was not ·unlawful
  when it assem-bled, may subsequently become an                E
  unlawful assembly."

      9. In terms of Section 149 of the IPC every member of an
unlawful assembly is guilty of the offence committed by any
other member of the assembly in prosecution of the common F
object. Section 149 of the IPC reads:

  "149. Every member of unlawful assembly guilty of
  offence commit-ted in prosecution of common
  object.-lf an offence is committed by any member of          G
  an unlawful assembly in prosecution of the common
  object of that assembly, or such as the members of that
  assembly knew to be likely to be committed in
  prosecution of that object, every person who, at the time
  of the committing of that offence, is a member of the         H
156            SUPREME COURT REPORTS                    [2015] 7 S.C.R.


A          same assembly, is guilty of that offence."

             10. The question is whether acquittal of some of the
      accused persons reducing the number of those convicted to
      less than 5 has the effect of taking the case out of the purview
B     of Section 149 (supra). A Constitution Bench of this Court has
      in Mohan Singh v. State of Punjab1 examined that question
      and authoritatively answered the same. The prosecution story
      in that case also was that on the date of the incident 5 accused ·
      persons composed an unlawful assembly and that in
C     prosecution of the common object of the said assembly, they
      committed rioting while armed with deadly weapons. The
      prosecution alleged that in pursuance of the common object
      of the assembly Gurdip Singh was murdered and injuries
      caused to Harnam Singh. The prosecution alleged that
D     although the fatal injury was inflicted by only one of the accused
      persons on Gurudip Singh's head since the same was in
      prosecution of the common object of unlawful assembly, all
      those who were members of the assembly were guilty under
      Section 302 read with Section 149 of the IPC. On behalf of the
E     defence it was argued that the constructive criminal liability
      under Section 149 did not arise once two of the accused who
      were alleged to be members of that assembly were acquitted
      thereby reducing the number comprising the assembly to three
F     persons only. This Court while dealing with that contention
      conceived of three possible situations and the legal position
      applicable to each one of such situations. This Court observed:
           "8. The true legal position in regard to the essential
           ingredients of an offence specified bys. 149 are not in
G          doubt. Section 149 prescribes for vicarious or
           constructive criminal liability for all members of an
           unlawful assembly where an offence is committed by
           any member of such an unlawful assembly in
H     1
          AIR 1963 SC 174
   RAMANLAL ANDANR. v. STATE OF HARYANA                       157
             [T. S. THAKUR, J.]

prosecution of the common object of that assembly or           A
such as the members of that assembly knew to be likely
to be committed in prosecution of that object. It would
thus be noticed that one of the essential ingredients of
section 149 is that the offence must have been
committed by any member of an unlawful assembly,               8
and S.141 makes it clear that it is only where five or
more persons constituted an assembly that an unlawful
assembly is born. provided. of course: the other
requirements of the said section as to the common
object of the persons composing that assembly are              c
satisfied. In other words, it is an essential condition of
an unlawful assembly that its membership must be five
or more. The argument, therefore, is that as soon as
the two Piara Singhs were acquitted, the
                                                              D
membership of the assembly was reduced from five
to three and that made s. 141 inapplicable which
inevitably leads to the result that S. 149 cannot be
invoked against the appellants. In our opinion, on
the facts of this case, this argument has to be                E
upheld. We have already observed that the point raised
by the appellants has to be dealt with on the assumption
that only five persons were named in the charge as
persons composing the unlawful assembly and
evidence led in the course of the trial is confined only       F
to the said five persons. If that be so, as soon as two
of the five named persons are acquitted, the
assembly must be deemed to have been composed
of only three persons and that clearly cannot be
regarded as an unlawful assembly."                            G

9. In dealing with the question as to the applicability of
S. 149 in such cases it is necessary to bear in mind the
several categories of cases which come before the
Criminal Courts for their decision. If five or more persons   H
158       SUPREME COURT REPORTS                 [2015] 7 S.C.R..


A     are named in the charge as composing an unlawful
      assembly and evidence adduced by the prosecution
      proves that charge against all of them, that is a very
      clear case where S. 149 can be invoked. It is, however,
      not necessary that five or more persons must be
B     convicted before a charge under S. 149 can be
      successfully brought ,home to any members of the
      unlawful assembly It may be that less than five persons
      may be charged and convicted under S.3021149 ifthe
      charge is that the persons before the Court, along with
c     others named constituted an unlawful assembly; the
      other persons so named may not be available for trial
      along with their companions for the reason, for instance,
      that they have absconded. In such a case, the fact that
      less than five persons are before the Court does not
D
      make section 149 inapplicable for the simple reason
      that both the charge and the evidence seek to prove
      that the persons before the court and others number
      more than five in all, and as Such, they together
E     constitute an unlawful assembly Therefore, in order to
      bring home a charge under S. 149 it is not necessary
      that five or more persons must necessarily be brought
      before the court and convicted. Similarly, less than five
      persons may be charged under s. 149 if the prosecution
F     case is that the persons before the Court and others
      numbering in all more than five composed an unlawful
      assembly, these others being persons not identified and
      so not named. In such a case, if evidence shows that

G
      .
      the persons before the c;ourt along with unidentified and
      un-named assailants or members composed an
      unlawful assembly, tryqse before the Court, can be
      convicted under section 149 though the unnamed. and
      unidentified persons ar~ not traced and charged. Cases
      may also arise where in the charge, the prosecution
H     names five or more -persons and alleges that they
   RAMAN LAL ANDANR. v. STATE OF HARYANA                       159
              [T. S. THAKUR, J.]

constituted an unlawful assembly. In such cases, if both        A
the charge and the evidence are confined to the persons
named in the charge and out of the persons so named
two or more are acquitted leaving, before the court less
than five persons to be tried, then s. 149 cannot be
invoked. Even in such cases, it is possible that though         B
the charge names five or more 'persons is composing
an unlawful assembly, evidence may nevertheless
show that the unlawful assefnbiy consisted of some
other persons as well who were not identified and so not
named. In such cases, either the trial court or even the        c
High Court in appeal may be able to come to the
conclusion that the acquittal of some of the persons
named in the charge and tried will not necessarily
displace the charge under section 149 because along
                                                                D
with the two or three persons convicted were others who
composed the unlawful assembly but who have not been
identified and so have not been named. In such cases
the acquittal of one or more persons named in the
charge does not affect the validity of the charge under         E
section 149 because-on the evidence the court offacts
is able to reach the conclusion that the persons
composing the unlawful assembly nevertheless wer:e
five or more than five. It is true that in the last category
ofcases, the court will have to be very careful in reaching     F
the said conclusion. But there is no legal bar which
prevents the court from reaching such a conclusion.
The failure to refer in the charge to other members of
the unlawful assembly un-named and unidentified may
conceivably raise the point as to whether prejudice            G
would be caused to the persons before the Court by
reason of the fact that the charge did not indicate that
un-named persons also were members of the unlawful
assembly. But apart from the question of such prejudice
which may have to be careful/f'Considered, there is no          H
160          SUPREME COURT REPORTS                 (2015] 7 S.C.R.


A        legal bar preventing the court of facts from holding that
         though the charge specified only five or more persons,
         the unlawful assembly in fact consisted of other persons
         who were not named and identified. That appears to be
         the true legal position in respect of the several
B        categories of cases which may fall to be tried when a
         charge under section 149 is framed."

                                            (emphasis supplied)

c           11. To the same effect is the decision of this Court in
      Nagamalleswara Rao (K) and Ors. v. State of Andhra
      Pradesh2 where this Court observed:

         "However, the learned Judges over-looked that since
         the accused who are convicted were only four in number
D
         and the prosecution has not proved the involvement of
         other persons and the courts below have acquitted all
         the other accused of all the offences, section 149 cannot
         be invoked for convicting the four appellants herein.
E        The learned Judges were not correct in stating that A 1,
         A2, AS and A 11 "can be held to be the members of the
         unlawful assembly along with some others unidentified
         persons' on the facts and circumstances of this case.
         The charge was not that accused 1, 2, 5 and 11 "and
F        others' or "and other unidentified persons" formed into
         an unlawful assembly but it is that ''you accused 1 to
         15" who formed into an unlawful assembly. It is not the
         prosecution case that apart from the said 15 persons
         there were other persons who were involved in the crime.
G        When the 11 other accused were acquitted it means
         that their involvement in the offence had not been
         proved. It would not also be permissible to assume or
         conclude that others named or unnamed acted
         conjointly with the charged accused in the case unless
H     2 (1991)2 SCC532
      RAMANLAL ANDANR. v. STATE OF HARYANA                    161
                [T. S. THAKUR, J.]

   the charge itself specifically said so and there was         A
   evidence to conclude that some others also were
   involved in the commission of the offence conjointly
   with the charged accused in furtherance of a common
   object."
                                                                8
       12. Applying the above principles to the case at hand,
we are of the view that the provisions of Section 149 of the
IPC are no longer available to the prosecution for convicting
the appellants whose number is reduced to 4 consequent upon
the acquittal of the remaining accused persons. The facts of C
the case at hand are not covered by situations one and two
referred to in Mohan Singh's case (supra). It is a case which,
in our opinion, falls more appropriately in situation three where
the prosecution had named all those constituting the unlawful
assembly, but, only four of those named were eventually D
convicted, thereby reducing the number to less than five. There
is no evidence to suggest that any one, apart from the persons
named in the charge-sheet were members of the unlawful
assembly, but, were either not available or remained
unidentified. Such being the position, the conviction of the E
appellants with the help of Section 149 of the IPC does not
appear to be legally sustainable.

      13. The third and the only other submission made by
learned counsel for the appellants related to the nature of the F
offence committed by Har Chand, the author of the fatal injury.
It was urged that the incident in question had taken place
without any pre-meditation in a sudden fight because of a
sudden quarrel following Jai Pal's insistence to enter the crop
growing field of the complainant. Injuries were caused by those G
involved in the fight to each other. Appellant-Har Chand had
not taken any undue advantage nor.had he acted in a cruel or
unusual manner. The case, therefore, fell within Exception 4
to Section 300 of the IPC. The fact that Har Chand had inflicted H
162       SUPREME COURT REPORTS                     [2015] 7 S.C.R.


A a single injury on the head of the deceased-Gopal showed
  that there was no intention to kill deceased-Gopal, other
  injuries inflicted by the remaining accused being only simple
  in nature. The offence, according to the learned counsel, could
  not, therefore, be graver than culpable homicide not amounting
B to murder punishable under Section 304 Part-II of the IPC.

        14. The locus classicus on the interpretation of Sections
  299 and 300 of the IPC is the often quoted decision of this
  Court in Virsa Singh v. State of Punjab3 where Vivian Bose,
C J. speaking for the Court, explained the ingredients that must
  be satisfied for a culpable homicide to amount to murder.
  Dealing with clause 'Thirdly' under Section 300 of the IPC, the
  Court explained the essentials of that clause in the following
  words:
D
      "12. To put it shortly, the prosecution must prove the
      following facts before it can bring a case under Section
      300 'thirdly';

E     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.

F     Thirdly, it must be proved that ther.e 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.

G     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
                               lh-
     just described made up of the three elements set out
H 3 AIR 1958 SC 465          .,.,..,.
      RAMANLAL ANDANR. v. STATE OF HARYANA                         163
                [T. S. THAKUR, J.]

   above is sufficient to cause death in the ordinary course        A
   of nature. This part of the enquiry is purely objective
   and inferential and has nothing to do with the intention
                                     0




   of the offender."

      15. The Court then goes on to explain the third ingredient    B
referred to the above passage and makes the following
observations which bring home the essence of the third
ingredient in simple words:       J 21

    ''The question is not whether the prisoner intended to          c
   inflict a serious injury or a trivial one but whether he
   intended to inflict the injury that is proved to be present.
   If he can show that he did not, or if the totality of the
   circumstances justify such an inference, then, of course,
   the intent that the section requires is not proved. But if       D
   there is nothing beyond the injury and the fact that the
   appellant inflicted it, the only possible inference is that
   he intended to inflict it. Whether he knew of its
   seriousness, or intended serious consequences, is
   neither here nor there. The question, so far as the              E
   intention is concerned, is not whether he intended to
   kill, or to inflict an injury of a particular degree of
   seriousness, but whether he intended to inflict the injury
   in question; and once the existence of the injury is
   proved the intention to cause it will be presumed unless         F
   the evidence or the circumstances warrant an opposite
   conclusion."

       16.Applying the above to the case at hand, we have no
difficulty in holding that keeping in view the nature of the injury, G
the vital part of the body on which the same was inflicted and
the weapon used by the accused appellant-Har Chand, and
the medical evidence, that the saicfinjury was sufficient in the
ordinary course to cause death, culpable homicide would, in
the case at hand, tantamount to murder but for the application H
164           SUPREME COURT REPORTS                 [2015] 7 S.C.R.


A of Exception 4 to Section 300. The question, however, is
  whether Exception 4 really applies and, if so, whether the injury
  was inflicted with the intention of causing death or of causing
  such bodily injury as is likely to cause death. The circumstances
  of the case to which we have referred in the earlier part of this
B judgment, however, leave no manner of doubt that the incident
  was without any pre-meditation and a sudden fight upon a
  sudden quarrel. The injuries upon the deceased were inflicted
  in the heat of passion and without the appellant taking any
  undue advantage or acting in a cruel or unusual manner. The
C fact situation of the case, therefore, attracts Exception 4
  especially when in terms of explanation to Exception 4, it is
  immaterial in such cases which party offers the provocation or
  commits, the first assault. That being so, the offence committed
  by the author of the injury is not murder but culpable homicide
0
  not amounting to murder punishable under Section 304 of the
   IPC.

       17. Coming then to the question whether the act
  committed by Har Chand-appellant was with intention to cause
E death or of causing such bodily injury as was likely to cause
  death, we are of the opinion that even when the act may not
  have been committed with the intention of causing death, the
  same was intended to cause such bodily injury as was likely to
F cause death, within the meaning of Section 304 Part I.

             18. In the result, we allow these appeals in part and to
      the following extent:

         1.   The conviction of the appellants under Section 302
G             read with Section 149 IPC and the sentence of
              imprisonment for life awarded to them is set aside.

        2.     Appellant Har Chand is, instead, convicted under
               Section 304 Part-I and sentenced to undergo rigorous
H              imprisonment for a period of eight years and a fine of
        RAMANLAL ANDANR. v. STATE OF HARYANA                          165
                  [T. S. THAKUR, J.]

         Rs.5000/-. In default payment offine he shall undergo A
         further imprisonment for a period of six months. His
         conviction and sentence for offences punishable under
         Section 325 shall remain unaffected and so also the
         fine and default sentence awarded to him.
                                                                   B
   3.   The conviction of Appellants-Raman Lal, Naresh and
         Bhagat Singh for offences punishable under Sections
         325 and 323 of the IPC and the sentence awarded to
         them shall stand affirmed. They shall be set free ,unless
         required in connection of any other case, as they have C
         already undergone the imprisonment awarded to
         them.

Kalpana K. Tripathy                         Appeals partly allowed.

                                                                       D