Holding

Section 428 Cr.P.C. permits the period of detention during investigation, inquiry or trial to be set off against the sentence in each case separately; the words "of the same case" refer only to the detention related to that particular case and do not preclude set‑off in another case.

Summary

The respondent was convicted in two separate offences and was arrested on the same day, remaining in jail as an under‑trial prisoner for both cases. Each trial court granted him set‑off under Section 428 of the Criminal Procedure Code (Cr.P.C.) for the period of pre‑sentence detention. The jail authorities, relying on a 1974 Government resolution, refused release on the ground that set‑off could be claimed only once. The High Court allowed the petition, holding that the respondent was entitled to set‑off in both cases. The State appealed. The Supreme Court examined the language of Section 428, particularly the phrase "of the same case," and held that it merely refers to the pre‑sentence detention connected with the case for which the sentence is imposed, not to a restriction on claiming set‑off in another case. Consequently, the Court affirmed that the respondent could claim set‑off in each conviction, overruling the jail authorities' restriction and dismissing the State's appeal.

Issues considered

The scope of Section 428 Cr.P.C. – whether the phrase "of the same case" limits set‑off to a single case only.
Whether an accused convicted in two distinct cases can claim set‑off under Section 428 for both convictions.
The effect of the 1974 Government of Maharashtra resolution restricting set‑off to the maximum period in one case.
The relationship between Sections 427 and 428 Cr.P.C. in granting concurrent or consecutive sentences.

Legislation cited

Code of Criminal Procedure, 1973s. 427, s. 428

Subjects

Section 428set‑offunder‑trial detentiondouble benefitcriminal procedureconcurrent sentencesinterpretation of statutes

Judgment

r
'

A STATE OF MAHARASHTRA AND ANR.

NAJAKAT ALIA MUBARAK ALI

MAY 9, 2001

B [K.T. THOMAS, R.P. SETHI AND S.N. PHUKAN, JJ.]

Code of Criminal Procedure. 1973:

Section 428-Requisites for applica1io11 of-Set off-Entitlement to- ~--
C Accused involved in two separate offences for which he lvas arrested-
Conviction-Set off in respect of both the cases-Legality qf-Held, section
428 Cr. P.C. does not contain any indication that if an accused was in jail
as an under-trial prisoner in a second case, the benefit of set off lvould be
denied to him in respect of the second case-Statue not making any distinction
D between the first case and second case for application of the said section-
Words "of the same case" occurring therein not to be understood as suggesting
that set off is allowable only if the earlier jail life was undergone by an
accused exclusively for the case in which the sentence is imposed-Section
427. t-

E Respondent was involved in two separate offences for which he was
arrested. After being charge sheeted in both the cases, he was tried separately.
He \vas convicted in the first case and was held to be entitled to th~ ~et off
under Section 428 of the Criminal Procedure Code by Sessions Court.
Subsequently, he was convicted in the other case also and was again held
entitled to the set off under Section 428 Cr.P.C. In due course, respondent
»
F prayed for his release as according to him he had already served the sentences I
imposed on him in both the cases7 The jail authorities, however, placing
reliance upon a Resolution dated 7.9.1974 adopted by the State Government,
refused to release him on the ground that he could-not be given set off in
the second case as he had been given set off in the first case. Respondent
G filed a petition in High Court which was allowed holding that respondent was
entitled to benefit of Section 428 Cr.P.C. in both the cases for the period of
detention undergone by him during investigation, inquiry and trial. Hence .., I

the present appeal by the State.

On behalf of the State, it was contended that the words 'of the same
H case' occurring in Section 428 Cr.P.C. afforded sufficient indication that the
600 -
STATE OF MAI IARASllTRA 1·. NA.Ii\ KAT J\1.1,\ MUBJ\RJ\K ALI 60 I

benefit was intended to cover only for one case and not more than that. A
Dismissing the appeal by majority the Court

HELD: (Per Thomas, J.)

I. t. Section 428 of the Criminal Procedure Code does not contain any B
indication that if the prisoner was in jail as an under-trial prisone1• in a
second case the benefit envisaged in the Section would be denied to him in
respect of the second case. The said Section permits the accused to have the
period undergone by him in jail as an under-trial prisoner set off against
the period of sentence imposed on him irrespective of whethi:r he was in jail
in connection with the same during that period. 1608-B; 610-GI C
1.2. The words 'of the same case' in Se~tion 428 Cr.P.C. are not to be
understood as suggesting that the set off is allowable only if the earlier jail
life was undergone by him exclusively for the case in which the sentence is
imposed. The period during which the accused was in prison sub§equent to
the inception of a p!lrticulnr case, should be credited towards the period of D
imprisonment awarded as sentenre in that particular case. It is immaterial
that the pri,soner was undergoing sentence of imprisonment in another .:ase
-+ also during the said period. The words 'of the same case' were used to refer
to the pre-sentence period of detention undergone by hint. Nothing more can
be made out of the collocation of those words. 1609-G-H I E
1.3. The two requisites postulated in Section 428 Cr.P.C. are: 4

(I) During the stage of investig11tlon, inquiry or trial of a particular
case the prisoner should have been in jail at least for a certain period.

(2) He should have been sentenced to a term of imprisonment in that
F
case. 1609-CJ

If the above two conditions zre satisfied then the operative part of the
provision comes into play i.e if the sentence of imprisonment awarded is
longer than the period of detention undergone by him during the stages of G
investigation, inquiry or trial, the convicted person need undergo only the
balance period of imprisonment after deducting the earlier period from the
total period of imprisonment awarded. The words 'if any' in the Section
amplifies that if there is no balance period left after such deduction the
convict will be entitled to be set free from jail, unless he is required in any
other case. 1609-Df H
602 SUPREME COURT REPORTS [2001J 3 S.C.R.

A K.C. Das v. The State, (1979) Criminal Law Journal 362; Lalrinfela v.
State of Mizoram and Ors., (1982) Criminal Law Journal 1793; Gedala
R9111ulu Naidu v. State of A.P. and Anr., (1982) Criminal Law Journal 2186
and Chinnasamy v. State of Tamil Nadu and Ors., (1984) Criminal Law
Journal 447, affirmed.

B Raghbir Singh v. State of Haryana, 11984)4 SCC 348, dissented.

2. A penumbra of the succeeding Section 428 Cr.P.C. can be glimpsed
through the former provision, viz. Section 427 Cr.l>.C. deals with instances
wherein one person in sentenced in a case when he has already been
undergoing the sentence in another case. Thus, the sentences of life
C imprisonment imposed on the same person in two different convictions would
converge into one and thereafter it would flow through one stream alone.
Even if the sentence in one of those two cases is not imprisonment for life
but only a lessor term the convergence will take place and the post
convergence flow would be through the same channel. ln all other cases, it
D is left to the court to decide whether the sentences in two different convictions
should merge into one period or not. If no order is passed by the cm1rt the
two sentences would run one after the other. 1607-E-H]

Per Phukan, J. (Supplementing) :

E t. The provision as contained in Section 428 Cr.P.C. is couched in
clear
~
and. unambiguous language and states the period of detention
.
which it
allows fo be set off against the term of imprisonment imposed on the accused
on conviction must be one undergone by him during investigation, inquiry
or trial in connection with the "same case'', in which, he has been convicted.
Any other period which is not connected with the said case cannot be said
F to be reckonable for set off. (611-C)

Per Sethi, J (Disenting) :

I. A plain reading of Section 428 Cr.P.C. makes it clear that the period
G of detention which the Section permits to be set off against the term of
· imprisonment, imposed on the accused upon conviction, must be during the
investigation, inquiry or trial in connection with the same case in which he
has been convicted. Generally speaking the "same case" would thus mean
"same transaction" for which the accused has been tried. Two different
criminal cases,. therefore, cannot be treated to be the "same case" in relation
H to an accused for the purposes of determining the applicability of Section
I
_)-.

STATE OF MAHARASHTRA v. NAJAKAT ALIA MUBARAK ALI 603

428 of the Code. The words "same case" appearing in the Section are A
ejusdem generis to the preceding words "investigation, inquiry or trial". If
__,__ the period of detention relating to investigation, inquiry or trial is in a
different case that would not ipso facto entitle the accused to claim the
benefit of Section 428 but that may permit him to persuade the Court to pass
an appropriate order in terms of Section 427, keeping in view the period of .B
his under-trial detention in other. cases as well. [615-G-H; 616-A-BI

Champa/al Poonjaji Shah v. State of Maharashtra, AIR (1982) SC 791
and Shabbu and Anr. v. State of UP. and Anr.. (1982) Crl. L.J. l 757, relied
J on.

Raghbir Singh v. State of Haryana, [19841 4 SCC 348, affirmed.
c
Lalrinfela v. State of Mizoram and Ors., (1982) Crl. L.J. 1793; Gedo/a
Ramulu Naidu v. State of A.P. and Anr., (1982) Crl. Law Journal 2186;
Chinnasamy v. State of Tamil Nadu and Ors., (1984) Crl. Law Journal 447
and K.C. Das v. The State, (1979) Crl. Law Journal 362, Impliedly overruled. D
Govt. ofAndhra Pradesh and Anr. v. AnneVenkateswara Rao, etc., AIR
(1977) SC 1096 = 119771 3 SCC 298; State of Maharashtra v. Champa/al
Poonjaji Shah, AIR (1981) SC 1675; Mr. Boucher Pierre Andre v.
Superintendent, Central Jail Tihar, AIR (1975) SC 164 and Sura) Bhan v. Om
Prakash, AIR (1976) SC 648. E
Nasim v. State of UP., (1978) All L.J. 1284; K.C. Das v. State, (1979)
Crl. L.J. 362; Jaswant Lal Harjivan Das Dholkia v. State, (1979) Crl L.J.
971 and Mohan latv. State of V.P., (1979) Luck LJ 272, referred to.

2. The object of criminal justice system is to reform the criminal but F
not to encourage him for the repetition of crime. Penology has a twin object
i.e. (i) punishing the criminal to avoid repetition of crime and (ii) to endeavour
for his reform.wherever possible. Discretion of treating under-trial detention
period may be relevant consideration for the Court while passing orders in
terms of Section 427 of the Code but the accused cannot be permitted to G
claim set off of the under-trial period undergone by him in connection with
other cases. The fall out of the interpretation giving the benefit of detention
during invest~ation, inquiry and trial in one case, in the other case, may
also tempt the investigating agencies not to arrest the accused for the
commission of the second offence pending conclusion of the trial.and passing
j of sentence in the first case. After conviction and sentence in a criminal H
'
604 SUPREME COURT REPORTS [2001) 3 S.C.R.

A case, if arrested in the second case, the accused shall not be entitled to claim
the benefit of Section 428 of the Code because the sentence, upo~ conviction,
can obviously be not equated with the period of detention contemplated under
Section 428 of the Code. 1619-B-E-G I

Maru Ram v. Union of India, (19811 1 SCC 106, referred to.
13
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
617 of 200 I.

From the Judgment and Order dated 13.11.98 of the Bombay High Court
.(,
in Crl. Application No. 3154 of 1998.
c
S.M. Jadhav, S.S. Shinde and S.V. Deshpande for the Appellants.

Ms. Aparna Bhat, (A.C.), N.P. Midha and Jawahar Raja for the
Respondeht.

D The Judgments of the Court were delivered by

THOMAS, J. Leave granted.

An accused has been convicted and sentenced to imprisonment in two t-
criminal cases. As he was arrested on the same day in connection with both
E the cases he remained in jail as an under-trial prisoner during the same period
in both cases. The question mooted in this appeal is this: Is it permissible for
him to claim the benefit of set off envisaged in Section 428 of the Code of
Criminal Procedure (for short 'the Code') in both cases? As the High Court
of Bombay has answered the question in the affirmative by the impugned
judgment th is appeal is filed by the State of Maharashtra in challenge of the
F said view of the High Court.

A two Judge Bench of this Court has made observations in Raghbir
Singh v. Siate of Haryana, [1984] 4 SCC 348 that on the fact situation in the
said case the accused cannot claim a double benefit. In other words, learned
Judges held that the accused can have the benefit of set off in one of those
G
cases but not in both. When the said dec?sion was cited before the High
Court, the learned Single Judge who rendered the. impugned judgment has
stated that on tJ1e facts in the case of Raghubir Singh (suprl!) the question ·
in issue involve<:! here never arose. Learned Judge expressed the view that
~
~
the accused. is "entitled to the benefit of set off in the second case as well
H where he was in custody during the cours~ of the trial". When the special
~
J-
STATE OF MAl-IARASHTRAv. NA.IA KAT ALIA MUBARAK ALI [THOMAS, .I.] 605

leave petition in this case came up for consideration on 20.1.2000, we felt that A
since Raghbir Singh was decided by a two Judge Bench it would be appropriate '
that this matter is heard by a larger Bench so that a fresh look can be made
on Section 428 of the Code.

As the accused respondent was benefited by the decision of the High
Court he would have been released from jail. That might be the reason why B
he did not enter appearance in this appeal despite notice served on him. So
we appointed Ms. Aparna Bhatt, Advocate, as amicus curiae. She presented
the case for the accused very effectively after looking up all the decisions
pertaining to the subject. We are indeed immensely grateful to her and we
record our appreciation for the help rendered by her. · C
The facts out of which the aforesaid question has winched to the fore
can be stated briefly thus: Respondent accused was tried in two cases. One
was numbered S.C.230 of 1995 and the other as S.C.313 of 1996. He was
arrested on 21.9.1995 in connection with both cases. The Sessions Judge who
convicted him in S.C. 230 of 1995 on 3.4.1998, while sentencing him, directed D
that the accused would be entitled to the set off under Section 428 of the
Code.

-r Subsequently a Sessions Court (we are not sure whether the same
Sessions Court or a different one) convicted him in S.C.323 of 1998 on
23.7.1998 and sentenced him to certain tenns of imprisonment. The Sessions E
Judge concerned observed therein that the accused is entitled to the set off
under Section 428 of the Code.

On 14.9.1998 the respondent accused sent an intimation to the jail
authorities that he is entitled to be released from jail since he has already
served the sentences imposed on him in both cases. But the jail authorities p
refused to release him on the premise that he could not claim the benefit of
set off in the second case "as he had been given set off in the first case".
The jail authorities did so on the strength of a Resolution dated 7.9.1974
adopted by the Government of Maharashtra. That resolution reads thus:

"If a prisoner is convicted in different cases, and different set off G
period is granted by different courts then in that case maximum period
of set off in one case should be granted to prisoners, as other set off
period will be merged in the set off which is the maximum."

When the prisoner challenged the decision of the jail authorities before
the High Court learned Single Judge observed that the construction placed H
606 SUPREME COURT REPORTS [2001'] 3 S.C.R.

A by the authorities on the said Government Resolution "is completely contrary
0

to the interpretation of Section 428 of the Code and the spirit of the section
itself." Learned Single Judge after ordering the prisoner to be released forthwith
from jail, directed the Government and the jail authorities "to review the cases
of all persons who continue to be in custody based on the Government
Resolution dated 7th September, 1994 within a period of two months' and to
B take steps to see that they are released within the said period of two months
(if not earlier released) based on the interpretation to Section 428 as now
given."

The respondent prisoner was released by the jail authorities before the
C Government of Maharashtra took up the matter to this Court. The State felt
that the High Court has gone wrong in giving the benefit of Section 428 of
the Code to the prisoner in two cases.

In Raghbir Singh v. State of Haryana, (supra) learned Judges considered
D a case in which an accused was convicted and sentenced to imprisonment for
7 years on 1.2.1980 as per the judgment rendered by a Sessions Judge, Kamal.
That accus~d was in judicial custody from 11.1.1980 in connection with
another case which was pending before a Metropolitan Magistrate, Delhi.
That second case also ended in conviction and the Metropolitan Magistrate t-
sentenced him to rigorous imprisonment for one year on 16.2.1981. That '
E accused claimed set off from I 1.1.1980 till the dates of conviction in each
cases. In that case the State conceded the claim of the accused in respect of
the period between 11.1.1980 to 1.2.1980. But the State contended that the
accused cou Id not get set off from 1.2.1980 till 16.2.1981 for the second case.
The said contention. was based on a departmental instructions issued by a.
State Government on 29.11.1975 to the effect that the period of detention
F undergone by a con.vict in execution of a sentence in one case should not
be set off against the term of imprisonment imposed on him in another case.
This Court upheld the said contention and the two Judge Bench made the
following observation:

"In such a case the period of detention is really a part of the period
G of imprisonment which he is undergoing having been sentenced earlier
for another offence. It is not the period of detention undergone by
him during the investigation, inquiry or trial of the same case-in which
he is later on convicted and sentenced to undergo imprisonment. He
cannot claim a double benefit under Section 428 of the Code i.e. the
H same period being counted as part of the period of imprisonment
STATE OF MAHARASHTRA 1•. NA.IA KAT ALIA MUBARAK ALI (THOMAS, J.] 607

imposed for committing the former offence and also being set off A
against the period of imprisonment imposed for committing the latter
offence as well."

As the said view is now sought to be reconsidered we shall examine
the position by reading Section 428 of the Code once again. The Section is
extracted below: B
"Period of detention undergone by the accused to be set off against
the sentence of imprisonment - Where an accused person has, on
conviction, been sentenced to imprisonment for a term not being
imprisonment in default of payment of fine, the period of detention,
if any, undergone by him during the investigation, inquiry or trial of C
the same case and before the date of such conviction shall be set off
against the term of imprisonment imposed on him on such conviction,
and the liability of such person to undergo imprisonment on such
conviction shall be restricted to the remainder, if any, of the term of
imprisonment imposed on him." D
The placement of that section just below Section 427 of the Code
tempts us to have a peep into the preceding· section, which deals with
instances wherein one person is sentenced in a case when he has already
been undergoing the sentence in another case. The first sub-section of
Section 427 says that the sentence in the second conviction shall commence E
at the expiration of the imprisonment to which the accused has been previously
sentenced, "unless the court directs that the subsequent sentence shall run
concurrently with such previous sentence." The second sub-section to ~ection
427 of the Code says that when a person already undergoing a sentence of
imprisonment for life is sentenced on a subsequent conviction to imprisonment
for a term or imprisonment for life, the subsequent sentence shall run F
concurrently with such previous sentence.

Thus, the sentence of life imprisonment imposed on the same person
in two different convictions would converge into one and thereafter it would
flow through one stream alone. Even ifthe sentence in one of those two cases· G
is not imprisonment life but only a lessor term the convergence will take place
and the post converget;ice flow would be through the same channel. In all
·. other cases, it is left to the court to decide whether the sentences in two
different convictions should merge into one period or not. If no order is
passed by the court the two sentences would run one after the other. No
doubt Section 427 is intended to provide amelioration to the prisoner. When H
60,8 SUPREME COURT REPORTS [200 l] 3 S.C.R.

A such amelioration is a statutory operation in cases falling under the second
sub-section it is a matter of choice for the court when the cases fall within
the first sub-section. Nonetheless, the entire secti9n is aimed at providing
amelioration to a prisoner. Thus a penumbra of the succeeding section can
be glimpsed through the former provision.

B The purpose of Section 428 of the Code is also for advanci!1g amelioration
to the prisoner. We may point out that the section does not contain any
indication that if the prisoner was in jail as an under-trial prisoner in a second
case the benefit envisaged in the section would be denied to him in respect
of the second case. However, learned counsel for the appellant contended
C that the words "of the same case" in the section wou!Q. afford sufficient
indication that the benefit is intended to cover only for one case and not more
than that. It must be remembered that the ideology enshrined in Section 428
was introduced for the first time only in the Code of Criminal Procedure, 1973.
For understanding the contours of the legislative measure involved in that
section, it is advantageous to have a look at the Objects and Reasons for
D bringing the above legislative provision. We therefore extract the same here:

"The Committee has noted the distressing fact that in many cases
.accused persons are kept in prison for very long period as under-trial
prisoners and in some cases the sentence of imprisonment ultimately
awarded is a fraction of the period spent in jail as under-trial prisoner.
E Indeed, there may even be cases where such a person is acquitted.
No doubt, sometimes courts do take into account the period of
detention undergone as under-trial prisoner when passing sentence
and occasionally the sentence of imprisonment is restricted to the
period already undergone. But this is not always the case so that in
many cases the accused person is made to suffer jail life for a period
F out of all proportion to the gravity of the offence or even to the
punishment provided in the statute. The Committee has also noted
that a large number of persons in the overcrowded jails of today are
under-trial prisoners. The new clause seeks to remedy this
unsatisfact01y state of affairs. The new clause provides for the setting
G off of the period of detention as an under-trial prisoner against the
sentence of imprisonment imposed on him. The Committee trusts that
the provision contained in the new clause would go a long way to
mitigate the evil."
{emphasis supplied)

H The purpose is therefore clear that the convicted person is given the
STATE Of MAHARASHTRA v. NA.IA KAT ALIA MUBARAK ALI [THOMAS, .I] 609
,·
right to_ reckon the period of his sentence of imprisonment from the date he A
was in jail as an under-trial prisoner. In other words, the period of his being
), in jail as an under-trial prisoner_ would be added as a part of the period of
,..· / imprisonment to which he is sentenced. We may now decipher the two
requisites postulated in Section 428 of the Code.

(1) During the stage of investigation, inquiry or trial of a particular B
case the prisoner should have been in jail at least for a certain
period.

(2) He should have been sentenced to a term of imprisonment in
that case.
c
If the above two conditions are satisfied then the operative part of the
provision comes into play i.e. if the sentence of imprisonment awarded is .
longer than the period of detention undergone by him during the stages of
investigation, inquiry or trial, the convicted person need undergo only the
balance period of imprisonment after deducting the earlier period from the
total period of imprisonment awarded. The words "if any" in the section D
amplifies that if there is no balance period left after such deduction the
convict will be entitled to be set free from jail, unless he is required in any
other case. In other words, if the convict was in prison, for whatever reason,
during the stages of investigation, inquiry or trial of a particular case and was
later convicted and sentenced to any term of imprisonment in that case the E
earlier period of detention undergone by him should be counted as part of
the sentence imposed on him.

In the above context it is apposite to point out that very often it
happens when an accused is convicted in one case under different counts
of offences and sentenced to different terms of imprisonment under each such F
count, all such sentences are directed to run concurrently. The idea behind
it is that the imprisonment to be suffered by him for one count of offence will,
in fact and in effect be imprisonment for other count as well.

Reading Section 428 of the Code in the above perspective, the words G
"of the same case" are not to be understood as suggesting that the set off
is allowable only if the earlier jail life was undergone by him exclusively for
the case in which the sentence is impose_d. The period during which the
accused was in prison subsequent to the inception of a particular case,
). should be credited towards the period of imprisonment awarded as sentence
in that particular case. It is immaterial that the prisoner was undergoing H
610 SUPREME COURT REPORTS (200 I) 3 S.C.R.

A sentence of imprisonment in another case also during the said period. The
words "of the same case" were used to refer to the pre-sentence period of
detention undergone by him. Nothing more can be made out of the collocation
of those words.

Various High Courts have expressed on this question. A Division Bench
B of Delhi High Court has dissented from a contrary view taken by a Single
Judge of that High Court and held in K. C. Das v. The State, ( 1979) Crim in al
Law Journal 362 that the statute does not make any distinction between the
first case and the second case for application of Section 428 of the Code. A
Division Bench of the High Court ofGauhati in lalrinfela v. State of Mizoram
C and Ors., (1982) Criminal Law Journal 1793 has adopted the same view. Lahiri l.
and Hansaria, JJ, said in the said decision that "if the accused is simultaneously
arrested and detained in two or more cases and on conviction obtains set off
for the period of his detention in the first case he is not ineligible to obtain
set off for the period in the subsequent cases; in each case the court is to
count the number of days the accused was in such detention 'separately and
D the liability to undergo imprisonment on conviction should be restricted to
the remainder of the terms of the imprisonment imposed on him in that case."

A Division Bench of the Andhra Pradesh High Court in Gedala Ramu1u
Naidu v. State of A.P. and anr., (1982) Criminal Law Journal 2186 and a
Division Bench of the Madras High Court in Chinnasamy v. State of Tamil
E Nadu and Ors., (1984) Criminal Law Journal 447 have also adopted the same
view in tune with the interpretation given by us. While speaking for the
Division Bench of the Madras High Natarajan, J (as he then was) has made
a survey of m~st of the decisions thus far rendered by different Hig;Ytourts
and opted to flow with the view adopted by all the other High Courts almost
p uniformly.

We,have no "reason to think that the High Courts mentioned above have
gone wrong in taking the view that Section 428 of the Code permits the
accused to have the period undergone by him in jail as an under-trial prisoner
set off against the period of sentence imposed on him irrespective of whether
G he was in jail in connection with the same case during that period. We
therefore, respectfully dissent from the view expressed by the two Judge
Bench of this Court in Raghbir Singh v. State of Haryana, (supra).
-
In the result we dismiss this appeal.

H PHUKAN, J. 1 had the advantage of going through the reasoned_
STATE OF MAHARASHTRA v. NAJAKA TALIA MUBARAK ALI [SETHI, .I.] 611

judgments of both my learned Brother Judges but with respect I am unable A
to accept the views expressed by my learned Brother Mr. Justice R.P. Sethi
. In . addition to the views expressed by my learned Brother Mr. Thomas, I
would like to add a para on the language of Section 428 of the Code of
Criminal Procedure:

The only question which according to me needs consideration is true B
effect of the expression "same case"as appearing in Section 428 of the Code
of Criminal Procedure. The provision is couched in clear and unambiguous
language and states that the period of detention which it allows to be set off
against the term of imprisonment imposed on the accused on conviction must
be one undergone by him during investigation, inquiry or trial in connection C
with the "same case'', in which he has been convicted . Any other period
which is not connected with the said case cannot be said to reckoneable to
be for set off. The view of learned Brother Mr. Justice Thomas according to
me accords the legislative intent. Acceptance of any other view would be
necessary either adding or subtracting words to the existing provision; which
would not be a proper procedure to be adopted while interpreting the provision D
in question.

I am, therefore, in respectful agreement with the views expressed by my
learned Brother Mr. Justlce Thomas.

SETHI, J. Despite perusing the lucid judgment of Thomas, J. from E
different angles a!!d being aware of its far reaching effects in the country, so
far as the under trial pdsoners are concerned, I could not persuade myself to.
agree with the interpretation given regarding the scope and implications of
Section 428 of the Code of Criminal Procedure, (hereinafter refetTed to as 'the
Code').
F
Section 428 of the Code was brought on the statute book for the first
time in 1973. It was incorporated in the light of the proposal put forward by
the Joint Select Committee appointed for that purpose. The Committee had
noted, with distress, that in many cases accused persons were kept in prison
for very long period as under-~rial prisoners and in some cases the sentence . G
of imprisonment, ultimately awarded, was a fraction of the period spent in jail
as under-trial prisoners. Despite the fact that sometimes courts had been
taking into account the period of detention undergone as under-trial prisoner's
while passing sentence and occasionally the sentence of imprisonment '
restricted to the period already undergone. But that was not always the case
as in many cases the accused persons were made to suffer jail life for a period H
612 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A out of propo11ion to the gravity of offence or even the punishment provided
under the statute. The Committee noted with concern that a large number of
persons in the over-crowded jails of the country were under-trial prisoners.
The Section was sought to remedy the said unsatisfactory state of affairs by
providing for setting off the period of detention as an under-trial prisoners
B against the sentence of imprisonment imposed on the accused.

The purpose of incorporating Section 428 was that period of detention
undergone by the accused be given set off against the sentence of
imprisonment imposed upon him in the same case .. Before the incorporation
of the aforesaid section, the accused, upon conviction, had to undergo the
C awarded sentence of imprisonment notwithstanding the length of period spent
by him in detention during investigation, inquiry or trial of the case.

Section 428 of the Code is preceded by Section 427 which provides that
when any person already undergoing sentence of imprisonment is sentenced
'9n a subsequent conviction of imprisonment, such imp~isonment shall
D commence at the expiration of the commencement to which he has be.en
previously sentenced, unless the court directs that the subsequent sentence
shall run concurrently with such previous sentence. (underlining supplied)
Section 427 of the Code thus authorises a court of law to direct the sentence
awarded by it to run concurrently, obviously keepin·g in view the facts and
circumstances pertaining to the case or the accused. His detention pending
E investigation, inquiry and trial in that case or some other ca~es being relevant
consideration while directing the st>ntences to run consecutively or
concurrently.

A plain readirig of Section 428 of the Code makes it clear that the period
of detention which the section permits to· be set off against the term of
F imprisonment, imposed on the accused upon convic,tion, must be during the
investigation, inquiry or trial in connection with the same case in which he
has been convicted. Dealing with the nature of detention for the purposes of
the section, this Court in Govt. of Andhra Pradesh & Anr. v. Anne
Venkateswara Rao, etc., AIR ( 1977) SC l 096 = [ 1977] 3 SCC 298 held:
G
"Section 428 provides that the period of detention of an accused as
an undertrial prisoner shall be set off against.the term of imprisonment
imposed on him on conviction. The section only provides for a "set
off', it does not equate an "undertrial detention or remand detention
with imprisonment on conviction". The provision as to set off expresses
H a legislative policy; this does not mean that it does away with' the
)·--
STATE OF MAHARASHTRA v. NA.IA KAT ALIA MUBARAK ALI [SETHI, .I ] 613

difference in the two kinds of detention and puts them on the same A·
f6oting for all purposes."
-.J,
In Champa/a/ Poonjaji Shah v. State of Maharashtra, AIR (1982) SC
791, where the petitioner was shown to have been detained firstly under the
provisions of MISA and later under the provisions of COFEPOSA and after
he was convicted by a Magistrate and his conviction was set aside by the B
High Court, the State filed an appeal by special leave, which was allowed by
this Court on August 12, 1981 (reported in AIR 1981SC1675) by setting aside
the Judgment of acquittal passed by the High Court and restoring that of the
_) trial magistrate convicting the accused under different heads of charges and
sentencing him to suffer imprisonment for various terms ranging from two
years to four years. Later in the review petition filed, it was submitted on
c
behalf of the accused that the total of the three periods of detention should
be set off against the imprisonment imposed upon him. Rejecting the
contention, the Court held:

"We are unable to agree with the submission of Shri Jethmalani. In the D
very case cited by the learned counsel, the Court negatived the
contention that the expression 'period of detention' in Sec. 428 Code
of Criminal Pr:.ocedure included the detention under the Prevention
Detention Act or the Maintenance of Internal Security Act. It was
observed (para 7):
E
"It is true that the section speaks of the period of detention undergone
by an accused person, but it expressly says that the detention
mentioned refers to the detention during the investigation, enquiry or
trial of the case in which the accused person has been convicted. The
section makes it clear that the period of detention which it allows to
be set off against the term of imprisonment imposed on the accused F
on conviction must be during the investigation, enquiry or trial in
connection with the 'same case' in which he has been convicted. We
therefore agree with the High Court that the period during which the
Writ Petitioners were in preventive detention cannot be set off under
S.428 against the term of imprisonment imposed on them" G
-t After holding that the period during which the petitioners therein
were in preventive detention could not be 'set off under Section 428
Code of. Criminal Procedure against the term of imprisonment imposed
j
on them, the Court went on to consider whether the period during
which the petitioners were in preventive detention could for any H
614 SUPREME COURT REPORTS (20011 3 S.C.R.

·A reason be considered as period during which the petitioners were in
detention as under-trial prisoners or prisoners serving out a sentence
on conviction. In the case of prisoner A.V. Rao, the Court held that J..

the period commencing from the date when he would have normally
been arrested pursuant to the First Information Report registered
against him should be reckoned as period of detention as an under-
B trial prisoner. In the case of another prisoner Krishnaiah it was held
that the period during which he was in preventive detention subsequent
to the conviction and sentence imposed upon him should be treated
as detention pursuant to conviction and sentence. Tl!e case before us
is altogether differenL The petitioner had been acquitted by the High
c Couf1 before any of the orders of detention were made against him.
There can be no· question of the detention being considered as
detention pursuant to conviction; nor can the detention be treated as
that of an undertrial. It is only in circumstances where the prisoner
would have unquestionably been in detention in connection with a
criminal case if he had not been preventively detained, his preventive
D detention might be reckoned as detention as an undertrial prisoner or
detention pursuant to conviction, for the purposes of S.428 Criminal
P.C."

A perusal of the section unambiguously indicates that only such accused
E is entitled to its benefit of that period of detention which he has undergone
during the investigation, enquiry or trial of the same case. It does not
contemplate of the benefit of set-off of the period of detention during
investigation, inquiry or trial in any other case. The purpose and object of
the section, as pointed out by Brother Thomas, J., is aimed at providing
amelioration to a prisoner in a case where he has been in detention for no
F fault of his. The section, however, does not intend to give any benefit or
bonus to an accused guilty of commission of more than one crime by treating
the period of detention during investigation, inquiry and trial in one case as
that period in the other cases also for the purposes of set-off in the sentence.
Such an entitlement requires the judicial determination which can be adjudicated
G by a court awarding the sentence in exercise of its powers under Section 427
of the Code. The words "period of detention, if any, undergone by him during
the investigation, inquiry or trial of the same case" are important to indicate
the paramount concern and intention of the legislature to protect the interests
of under-trial prisoners by giving them the set-off of that period in "that
case", at the conclusion of the trial. The Section makes it clear that the period
H of detention which it allows to be set off against the term of imprisonment
STATE OF MAHARASHTRA r. NA.li\Ki\T Al.Ii\ MUBARAK ALI !SETHI, .1 J 6J5

imposed on the accused, on conviction, must be during the investigation, A
inquiry or trial in connection with the same case in which he has been
convicted.

By introducing the prov1s10n of set off, the legislature intended to
mitigate, to a great extent, the hardship caused to the accused persons by B
reason of their being unable to come out on bail during the trial period. While
interpreting Section 428 of the Code, the underlying object of the Section
cannot be lost sight of. Any set off claimed under Section 428 has necessarily
to be within the terms of the Section and not beyond it. No accused person
can claim that irrespective of the terms of Section 428 of the Code, he is
entitled to the benefit of set-off in each and every case. A bare reading of C
the Section indicates that an accused person who has been convicted and
sentenced to imprisonment for a term is entitled to claim set off of the period
of detention undergone by him during the investigation, inquiry or trial of the
same case against the term of imprisonment imposed on him on such conviction.
The section has imposed some restrictions for a convicted person claiming D
the benefit of set off which ate as under:-

(i) The imprisonment should be for a term.

(ii) The imprisonment should not be one awarded in default of payment
of fine.,
E
(iii) The period of detention undergone by the accused person during
the investigation, inquiry or trial should relate to the ~ame case in
which he is convicted and sentenced to undergo imprisonment for a
term.

The dictionary meaning of the word "same" is identical; referring to a F
person or thing just mentioned; the same thing as previously mentioned. It
generally refers to the last preceding antecedents; one and the same; not
distinct. Generally speaking the "same case" would thus mean "same
transaction" for which the accused has been tried. Two different criminal
cases, therefore, cannot be treated to be the "the same case" in relation to G
an accused for the purposes of determining the applicability of Section 428
of the Code. ·

The accused tried for various offences in one trial can be held to be
entitled to the benefit of Section 428 of the Code being tried for the "same
case''. The words "same case" appearing in the section are ejusdem generis H
--(

616 SUPREME COURT REPORTS 12001] 3 S.C.R.

A to the preceding words "investigation, enquiry or tr.ial". If the period of
detention relating 'to investigation, enquiry or trial is in a different case that
would not ipso facto entitle the accused to claim the benefit of Section 428 .._
but that may perm it him to persuade the court to pass an ~ppropriate orders
in terms of Section 427, keeping in view the period of his under-trial detention
in other cases as well. It is the need of the time that the court convicting the
B accused should develop a healthy practice of specifying in the order the total
period of pre-conviction detentions that he has undergone in that case or in
some other case for the purposes of awarding the sentence upon conviction.

In Shabbu & Anr. v. State of UP. & Anr., (1982) Crl.L.J. 1757 a Full
C Bench of the Allahabad High Court held:

"It is thus obvious that Section 428 Cr.P.C., is intended to relieve the
anguish of undertrials for their prolonged detention in jail during the
investigation, inquiry or trial of a case. Its object is to confer a special
benefit upon a convict whereby his liability to undergo the
D imprisonment, ultimately imposed upon him in a case, stands reduced
by the period during which he has remained In jail as an under-trial
prisoner in the same case. It simply aims at setting off or crediting the
period of pre- conviction detention of the accused of a case towards
the sentence ultimately awarded to him after his conviction in that
very case."
E
After referring to the judgments of this Court in Mr. Boucher Pierre
Andre v. Superintendent Central Jail Tihar, AIR (1975) SC 164; Sura} Bhan
v. Om Prakash, AIR (1976) SC 648; Govt. ofA.P. v. A. V. Rao, AIR (1977) SC
1096; the earlier judgment of that Court in Nasim v, State of UP., (1978) All
F LJ 1284, the judgment of the Delhi High Comt in K.C. Das v. State, [1979]
Crl.LJ 362; of Bombay High Court in Jaswant Lal Harjivan Das Dholkia v.
State, [1979] Cri. LJ 971 and Mohan la/ v. State of U.P., (1979) Luck LJ 272
the Full Bench further held that under Section 428 the period of detention as
an under-trial of an accused in a particular case can be set off only towards
the sentence ultimately awarded to him in that very case. The Court further
G held:

"Whether or not the detention of a person in one case should also
be treated to be his detention for the purposes of any other case,
wherein he is wanted, is a question to be decid_ed upon the facts and
circumstances of each case. No set formula can be laid down in that
H behalf."
STATE OF MJ\111\R/\SllTR/\ r Ni\.li\KJ\T /\LI/\ Mlm/\R/\K 1\LI ISETlll. J J 617

Dealing with the scope and object of Section 428 this Court in Raghhir A
Singh v. State of"Hm:J1a11a, [1984) 4 SCC 348 held:

"There was no provision corresponding to Section 428 of the Code
in the Code of Criminal Procedure, 1898 which was repealed and
replaced by the present Code. It was introduced with the object of
remedying the unsatisfactory state of affairs that was prevailing when B
the former Code was in force. It was then found that many persons
were being detained in prison at th€ pre-conviction stage for unduly
long periods, many times for periods longer than the actual sentence
.of imprisonment that could be imposed on them on conviction. In
order to remedy the above situation, Section 428 of the Code was C
enacted. It provides for the setting off of the period of detention as
an under-trial prisoner against the sentence of imprisonment imposed
on him. Hence in order to secure the b@nefit of Section 428 of the
Code, the prisoner should show that he had been detained in prison
for the purpose of investigation, inquiry or trial of the case in which
he is later on convicted and sentenced. It follows that if a person is D
undergoing the sentence of imprisonment imposed by a court of law
on being convicted of an offence in one case during the period of
investigation, inquiry or trial of some other case, he cannot claim that
t the period occupied by such investigation, inquiry or trial should be
set off against the sentence of imprisonment to. be imposed in the E
latter case even though he was under detention during such period.
In such a case the period of detention is really a part of the period
of imprisonment which he is undergoing having been sentenced earlier
for another offence. It is not the period of detention undergone by
him during the investigation, inquiry or trial of the same case in which
· he is later on convicted and sentenced to undergo imprisonment. He F
cannot claim a double benefit under Section 428 of the Code i.e. the
same period being counted as part of the period of imprisonment
imposed for committing the former offence and also being set off
against the period of imprisonment imposed for committing the latter
offence as well. The instruction issued by the High Court in this G
regard is unexceptionable. The stand of the State Government has,
therefore, to be upheld."

After going through the scheme of the Code and the object for which
J Section 428 was incorporated, I have reached the conclusion that the law laid
down by this Court in Raghubir Singh 's case (supra) does not require any H
618 SUPREME COURT REPORTS l2001J 3 S.C.R.

A review or a new interpretation. Taking any other view would amount to
legislating and amending the plain meanings of the section. Giving a contrary
interpretation may, in some cases, be against the public policy. Any person
accused of a heinous crime, in that even; be at liberty to commit m·inor
offences and being under trial prisoner in the main case, eventually may not •
'..(
get any imprisonment of law for the minor offences committed by him. It "
B cannot be the object of civilised criminal jurisprudence to encourage the
repetition of crime by adoption of an approach of libet·aiity. The commercial
approach of sale of commodities providing for purchasing of one expensive
item and getting three free with it; cannot be imported into criminal justice
system. The views of Guwahati High Court i11 lci;,'iiifela v. State of Mizoram
C and Ors., (1982) CrLL.J 1793; Andhm Pradesh High Court in Gedala Ramulu
Naidu v. State ofA.P. and Am•., (1982) Crl. Law Journal 2186 and Madras High I
Court in ChinnasalliJI v. State of Tamil Nadu and Ors., (1984) Crl. Law Journal
447 would amou11t to giving bonus to a person accused of a heinous crime
to have the minor offences committed with it virtually without any punishment
of law. Delhi High Court in K.C. Das v. The State, (1979) Crl. Law Journal 362
D is shown to have adopted an approach which apparently is contradictory in
terms. After holding:

"The words "of the same case" are important. The section speaks of
the "period of detention;; tihdergone by the accused person, but it
E expressly says, that the detention mentioned refers to the detention
during the investigation, inquiry or trial of the case in which the
accused person has been convicted. The section makes it clear that
the period of detention which it allows to be set off against the term
of imprisonment impugned on the accused bh conviction must be
during the it1Vestlgation, inquiry or trial in connection with the "same
F case'' in which he has been convicted."

the Court by referring to an illustration formulated by itself in para 3 of the
judgment, posed a question to itself, an answered the same, observing:

'.'Will it not be true to say that the accused is an undertrial prisoner
G
in the second case in our illustration. If it is so he will be entitled to
set off his pre-conviction period against the term of imprisonment
imposed on him in the second case as in the first. We see no ground
to deny him the benefit in the second case."

H For reaching at this conclusion the reliance was placed upon the judgment
ST/\TE OF M/\llARASHTR/\ 1·. NA.IA KAT /\LIA MUBARAK ALI !SETI 11, .I.] 619

- ~
of this Court in Govt. of Andhra Pradesh and Anr. v. Anne Venkateswara A
Rav. etc., (supra). In that case, this court had nowhere held that the set off
contemplated under Section 428 of the Code can be claimed by a eonvicted
person, irrespective of his detention in the same case or in some other case.

The object of criminal justice system is tCJ reform the criminal but not
to encourage him for the repetition of crime: Penology has a twin object, i.e. B
(i) punishing the criminal to avoid repetition of crime and (ii) tel endeavour
for his reform wherever possible. The increasing crime in the country has
seriously to be taken note of. Crime is an act of warfare against community
touching new depths of lawlessness. The object of imposing deterrent
;> sentences is to protect the community against callous criminals; to administer
as clearly as possible to others tempted to follow into lawlessness on a War
c
scale if they are brought to and convicted, deteffent punishment will follow
and to deter criminals from repeating their criminal acts in future. Fazal Ali,
J. in Maru Ram v. Union of India, [1981] I SCC 106 rightly observed:

"The question, therefore, Is a should the country take the risk of D
innocent lives being lost at the hands at' 1>riininals committing heinous
crimes is the holdy hope or wishful thinking that e11ne day or the other.
a criminal, however dangerous or callous he may be, will reform
'\' himself. Valmikis are not born everyday and to expect that our present
,, generation, with the prevailing social and economic environment, would
produce Valmikis day after day is to hope for the impossible." E
Discretion of treating under-trial detention period may be relevant
consideration for the Court while passing orders in terms of Section 427 of
the Code but the accused cannot be permitted to claim set off of the under~
trial period undergone by hiin in connection with other cases. Powers of the
_.,, Court to impose sentences should not be allowed to be regulated at the F
instance or discretion of the accused.

The fall out of the interpretation giving the benefit of detention during
investigation, inquiry and trial in one case, in the other case, may also tempt
the investigating agencies not to arrest the accused for the commission of the
G
second offence pending conclusion of the trial and passing of sentence in
the first case. After conviction and sentence in a criminal case, if arrested in
the second case, the accused shall not be entitled to cl&im the benefit of

..
•
...,,
Section 428 of the Code because the sentence, upon conviction, can obviously
be not equated with the period of detention contemplated under Section 428
of the Code. As such by adopting such a recourse, the courts w.oulci not, in H
620 SUPREME COURT REPORTS [2001] 3 S.C.R.

A any case, advance the interests of justice but actually and factually frustrate
its purpose defeating the concept of speedy trial in criminal cases. •
•"
,,.;>-
Facts of this case are that the respondent was arrested on 29th November,
I 995 in connection with CR 707195 t·egistered at Kim Police Station, Mumbai.
During the investigation it transpired that he was also involved in the offences
B registered vide CR 737195 Oh 29th November, 1995 Santacruz Police Station.
~

He was shown arrested in both crime numbers. After being chargesheeted in
both the cases, he was tried separately. In one of the cases he was convicted
and sentenced under Sections 395 and 397 bt iPC on 3.4.1998. The learned
Judge held that the accus~d was entitled to set off under Section 428 of
:i._
Cr.P.C. for the period of custody already undergone. He was convicted in the
c second case for the offences punishable under Section 392, 395 of IPC and
)

held entitled to set off under Section 428 of Cr.P.C. The respondent prayed
for his release as according to him, he had already served sentences. Relying
upon the Government Resolution dated 7th September, 1974 the Jail Authorities
refused to release the respondent on the ground that he could not be given
D set off in the second case as he had oMfi g;lven set off in the first case. The
accused filed a petition in the High Court which was allowed by impugned
order, holding that the convict was entitled to benefit of Section 428 of the f-
I
Code in both the cases for the period of detention undergone by him during I
investigation, inquiry and trial.
...
~ '..._.
E In the light of the view I have taken the impugned judgment of the High I-
Court cannot be sustained and is liable to be set aside. Allowing the appeal ~
•
filed by the State the judgment impugned is set aside holding that the
respondent is not entitled to the benefit of set off in the sentence awarded
to him in the second case.
F ,,.
M.P. Appeal dismissed.
. .

._
-, KARU MARIK A
\•'.
....... STATE OF BIHAR

MAY 9, 2001
. B
[M.B. SHAH AND SHIVARAJ V. PATIL. JJ.]

Penal Code, 1860 Sections 300, 302, 324 Murder Intention Inference
of-Accused assaulting deceased with chhura on her chest and when she
tried LO run cnvay. accused ·catching hold of her hair, thro1ving her on the
ground and again assaulting with chhura on her abdomen and back-On c
the basis of evidence of witnesses, Investigating officer and attending doctor
and the dying declaration of the deceased, accused convicted for offence
under Section 302 IPC and sentenced to rigorous imprisonment for life-
Tenability of-Injuries inflicted by accused being grievous in nature and
dangerous to life-Held, having regard to nature of wounds inflicted, it must
D
be deemed that intention of accused was to cause such bodily injwy as was
likely to cause death Intention being a state of mind of an offender, it has
~
to be inferred from available evidence and surrounding circumstances-
..... Contention that accused could be convicted for offence under Section 324
IPC, rejected.
E
Enmity with PW-9 led accused to kill wife of PW-9. On the date of the
incident, deceased had gone to ease herself towards north of her house early
in the morning. In the meantime, accused armed with chhura went there and
assaulted on her chest. When she tried to run away, accused caught hold of
her hair, threw her on the ground and started giving blows with chhura on
·) her abdomen and back. Hearing the alarm raised by deceased, her husband F
PW-9, PW-2 and others reached the scene of occurrence and found her in
a pool of blood lying unconscious. She was taken to a hospital and on the
information of PW-9. FIR was drawn. Her dying declaration was recorded by
Judicial Magistrate, First Class on that day itself. She died a few days later.
G
I
On the basis of evidence of PW-2 & PW-9 coupled with the dying
declaration of the deceased, evidence of attending doctor and the investigating
officer, Trial Court convicted accused for offence under Section 302 IPC and
sentenced him to undergo rigorous imprisonment for life. On appeal, High
Court upheld the order of conviction and sentence passed. Hence the present
appeal.
621
H

...
622 SllPREML COURT REPORTS 1200 I] 3 S.C.R.

A On behalf of the accused, it was contended that the deceased died in
hospital after eight days of assault; that in the absence of specific evidence
of doctor as to whether any particular injury or injuries were sufficient to
cause death in the ordinary course, conviction of accused under Section 302
IPC was not justified and could be convicted only under Section 324 IPC; that
B accused had neither intention to caflse death of the deceased nor such bodily
injury which he knew was likely to cause death.

On behalf of the State, it was contended that the case of the accused
was covered by Clause II of Section 300 IPC; th.at looking to the nature of
weapon used in the commission of offence and parts of the body on which
C injuries were intlicted, it could not be accepted that accused could be convicted
for an offence under Section 324 IPC instead of Section 302 IPC.
Dismissing the appeal, the Court
HELD : 1~ The injuries inflicted by the appellant were grievous in
nature and dangerous to life which resul.ted in causing death of the deceased.
D Having regard to the nature of wounds inflicted, it must be deemed that his
intention was at least to cause such bodily injury as was likely to cause
death. The injuries were inflicted by a chhura, a sharp cutting weapon; even
an illiterate and ignorant person can be presumed to know that an intense L '
assault with such weapon on such vital parts of the body would cause death.
In criminal cases, intention or the knowledge under which a person acts is
E an important consideration. However, intention being a mental make up or
a state of mind of an offender, it is difficult to prove directly as a fact, but
is to be inferred from the facts and circumstances of the case. Hence, in the
case on hand, it is not possible to accept the submission that the appellant
could be convicted for the offence under Section 324 IPC. 1626-D-FJ >

F 2. The manner of causing injuries, the nature of the injuries caused, r-
the part of the body where they were inflicted, the weapon of assault employed
in the commission of the offence and conduct of the accused are relevant
factors in determining whether the offence committed is one of murder or
culpable homicide not amounting to murder. It has to be gathered from the
G available evidence and the surrounding circumstances in considering whether
the offence is covered by clause I of Section 300 IPC. As far as clause II of
Section 300 IPC is concerned, it is enough if the accused had the intention
of causing such bodily injury as he knew to be likely to cause the death of
the person whom the harm is caused. Such intention may be inferred not
merely from the actual consequences of his act, but from the act itself also.
H 1625-E; 626-BI

)
}·--

KARLJ MARIK v. STATI-: OF 13111AR ll'ATIL. .I.I 623
Rajwani Singh v. State of Kera/a, AIR (1966) SC 1874, referred to. A
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
325 of 1993.

From the Judgment and Order dated 15.9.88 of the Patna High Court in
Crl. A. No. 239of1987 (R). B
Ms. Promila (A.C.) for the Appellant.

B.B. Singh and Kumar Rajesh Singh for the Respondent.

The Judgment of the Court was delivered by c
SH IV ARAJ V. PATIL; J. This appeal is by the sole accused who w~s
convicted for offence under Section 302 !PC and sentenced to rigorous
imprisonment for life by the Sessions Judge. The High Court of Patna dismissed
the Criminal Appeal No. 239/87(R) by the order dated 15.9.1988 confirming the
order of conviction. Hence this appeal by special leave. D
In short, the prosecution case is that on 14.8.1983 at about 6 A.M. in
the morning Savitri Devi, wife of the informant Thakuri Pandit (PW-9) had
gone to ease herself towards north of her house. In the meantime, the accused
Karu Marik being armed with chhura went there and assaulted with chhura
on her chest. She began crying and wanted to run away but the accused E
caught hold of her hairs, threw her on the ground and started giving chhura
blows on her abdomen and back. On raising alarm, her husband (PW-9) and
Sita Dhobin (PW-2), Mukesh (PW- I) and others came there. Seeing them, the
accused fled away. PW-9 found his wife in a pool of blood lying unconscious.
He took her to Sadar hospital, Giridih, and admitted her. Enmity between the F
accused and PW-9 was said to be the motive. Furdi bayan of PW-9 was
recorded in the hospital by S.I., R.N. Singh. On that basis, F.l.R. was drawn
and a case under Section 307 IPC was registered against the accused. On
14.8.1983 itself, her dying declaration was recorded by S.N. Prasad, Judicial
Magistrate First Class, Giridih. Savitri Devi died on 22.8.1983 in the hospital
due to the injuries caused to her by the accused. Hence the offence was G
altered to one under Section 302 IPC. The accused was tried for an offence
under Section 302 IPC. He pleaded not guilty and his defence was that he had
been falsely implicated in the case out of enmity.

The prosecution in all examined 10 witnesses to establish the guilt of
the accused. PW- I was declared hostile. Accepting the evidence of PW-2 and H
624 SUPREME COURT REPORTS [2001] 3 S.C.R.

A PW-9, the eye-witnesses coupled with the dying declaration of the deceased
and keeping in view the evidence of the doctor and the Investigating Officer,
the trial court held accused guilty and convicted him for an offence under
Section 302 !PC and sentenced him to undergo rigorous imprisonment for life.
On appeal by the accused, the High Court re-appreciated and scrutinized the
B evidence objectively and appropriately and did not see any infirmity in the
order passed by the trial court. In that view, upheld the order of conviction
and sentence passed by the Sessions Court.

Having perused the judgments of both the courts and looking to the
evidence placed on record, we are of the opinion that the accused was rightly
C convicted. It must be stated here itself that this Court on· 27.9.1991 issued
notice confining it to the nature of offence only. Accordingly, we heard
learned counsel for the parties.

The learned counsel for the appellant submitted that the deceased died
in the hospital after eight days of assault; nature of injuries inflicted on the
D deceased; the weapon used and in the absence of specific evidence of the
doctor as to whether any particular injury or injuries were sufficient to cause
death in the ordinary course, conviction of the appellant under Section 302
!PC is n-ot justified. According to her, the appellant could be convicted under 1
Section 324 I~C. She pleaded that the appellant had neither intention to cause
E death of the deceased nor such bodily injury/which he knew was likely to
cause death. On the other hand, the learned counsel for the respondent-State
made submissions supporting the impugned judgment. He stated that the trial
court as well as the High Court, were right and jusfified in convicting the
accused and sentencing him for life imprisonment under Section 302 !PC
based on the trustworthy and unshaken evidence of eye-witnesses coupled
p with the dying declaration. He added that the case of the appellant is covered
by Clause II of Section JOO; the doctor has clearly stated that the injuries
inflicted on the deceased were sufficient to cause death; looking to the nature
of the weapon used in the commission of offence and the parts of the body
on which the injuries were inflicted, it cannot be accepted that the appellant
could be convicted for an offence under Section 324 !PC instead of 302 !PC.
G
We have carefully considered the submissions made by the learned
counsel for the parties. Dr. Sibnarayan Prasad (PW-8) who examined the
deceased has stated that he found the following injuries on the person of
deceased Savitri Devi:-

H "(i) One incised injury on the right side of chest 2"x2"x6" deep in
>--
KARU MARIK v. STATE OF 1311-lAR !PATIL . .I.] 625

the cavity. A
(ii) One incised injury on right side of abdomen 3"x2" deep in the

- cavity.

(iii) One incised injury on back 3"x2" deep into cavity."

Further after operation, the following injuries were found:- B
"(i) Two incised injuries in the transverse colon - each 11/2"x 1/2"x
deep into the cavity of the Lumen.

(ii) Four incised injuries on the large intestine each 1/2"x 1/2"x deep
into the cavity of the Lumen" "
c
He has deposed that all the injuries were grievous in nature and
dangerous to life and that they could be caused by sharp cutting weapon
such as dagger. He was of the opinion that death of the deceased was due
to shock and haemorrhage and circulatory failure as a result of the above
injuries. D
The manner of causing injuries, the nature of the injuries caused, the
part of the body where they were inflicted, the weapon of assault employed
in the commission of the offence and conduct of the accused are relevant
factors in determining whether the offence committed is one of murder or
culpable homicide not amounting to murder. Even a most illiterate and rustic E
person would know and realize that a savage blow with a short cutting
weapon on vital part like chest and abdomen would cause bodily injury which
would result in death. Ordinarily, a man is presumed to intend necessary
consequences of his act. This Court, dealing with the second clause of
Section 300 !PC in Rajwani Singh v. State of Kera/a, AIR (1966) SC 1874, in F
para I 0 has observed that:-

"The second clause deals with acts done with the intention of causing
such bodily injury as the offender knows to be likely to cause the
death of the person to whom harm is caused. The mental attitude here
is two-fold. There is first the intention to cause bodily harm and next G
there is the subjective knowledge that death will be the likely
consequence of the intended injury.

Many a times, the nature of the injury inflicted itself presents a most
valuable evidence of what the intention was but that is not the only way of
gauging intention. Each case must be examined on its merits. Intention being H
--(

626 SUPREME COURT REPORTS [2001J 3 S.C.R.

A the state of mind of the offender, no direct evidence as a fact can be produced.
It has to be gathered from the available evidence and the surrounding
circumstances in considering whether the offence is covered by clause' I of
Section 300 IPC. As far as clause II of the Section 300 is concerned, it is
enough if the accused had the intention of causing such bodily injury as he
-
B knew to be likely to cause the death of the person to whom the harm is
caused. Such intention may be inferred not merely from the actual
consequences of his act, but from the act itself also.

In the case on hand, having regard to the nature of wounds inflicted,
it must be deemed that his intention was at least to cause such bodily injury
C as was likely to cause death. The broad facts as deposed by the prosecution
witnesses accepted by the trial court as well as the High Court clearly show
that the appellant gave ~ blow with chhura on the chest of the deceased.
When she tried to run away, he caught hold of her hair, threw her on the
ground and again assaulted with the chhura on the abdomen and the back
of the deceased. This is the manner in which the injuries were inflicted. The
D injuries inflicted were grievous in nature and dangerous to life which resulted
in causing death of the deceased as deposed to by the doctor. The injuries
were inflicted by the chhura, a sharp cutting weapon; even an illiterate and
ignorant can be presumed to know that an intense assault with such weapon
on such vital parts of the body would cause death. In criminal cases, intention
E or the knowledge under which a person acts· is an important consideration.
However, the intention being a mental make up or a state of mind of an
offender, it is difficult to P,rove directly as a fact, but is to be inferred from
the facts and circumstances of the case. Hence, in the case on hand, it is not
possible to accept the submission that the appellant could be convicted for
the offence under Section 324 IPC.
F
In this view of the matter, we do not find any merit in the contentions
urged on behalf of the appellant. Thus finding no merit in the appeal, it is
dismissed.

M.P. Appeal· dismissed.