STATE OF U.P.versusJAI DUTT AND ANR.

                        [2022] 1 S.C.R. 215                              215


                          STATE OF U.P.                                  A
                                  v.
                       JAI DUTT AND ANR.
                  (Criminal Appeal No. 37 of 2022)
                                                                         B
                        JANUARY 19, 2022
        [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
       Penal Code, 1860 – ss.302 and 326 – Murder – Conviction
by trial court u/s.302 accepting the prosecution case that the accused
persons armed with deadly weapons went to the agricultural field         C
were the victim (complainant’s father) was working and beat him,
resulting in his death – High Court converted the conviction to that
u/s.326, primarily on grounds that the victim died six days after the
incident and no fracture was found on his head – Justification –
Held: Not justified – Merely because the victim died six days after      D
the incident not a ground to set aside the conviction u/s.302 and
convert it u/s.326 – Also, merely because no fracture was noticed
and/or found cannot take the case out of s.302 when the victim
died due to head injury – Causing injury on the head can be said
to be causing injury on the vital part of the body and therefore a
clear case of s.302 is established and proved – Conviction by trial      E
court, of first respondent u/s.302 and of second respondent u/s.302
r/w s.34, accordingly, restored.
      Allowing the appeal, the Court
      HELD:1.1. Merely because the deceased died after six               F
days could not have been the ground to set aside the conviction
for the offence under Section 302 IPC and to convert it to Section
326 IPC. The deceased was first taken to the PHC, however his
condition was found to be serious and therefore, he was taken to
the Lucknow Hospital on 20.12.1983 and thereafter while under
treatment he died on 26.12.1983 and the main cause of death is           G
found to be the head injury no.1. Though the High Court has
noticed the nine injuries as noticed by the Medical Officer at
PHC, the High Court has not at all noticed and/or considered at
all the antemortem injuries on the dead body mentioned in the
                                                                         H
                                 215
216           SUPREME COURT REPORTS                     [2022] 1 S.C.R.


A     post-mortem report. As per the medical evidence the cause of
      death was due to head injury no.1. The weapon was used on the
      head - vital part of the body and ultimately the same proved to be
      fatal and the deceased died due to head injury no.1. Therefore,
      by no stretch of imagination the case would fall under Section
      326 IPC. [Para 7.1][220-G-H; 221-A-B]
B
            1.2. One another reason given by the High Court to convert
      the conviction from Section 302 IPC to Section 326 IPC is that
      no fracture on the head was found. However, it is required to be
      noted that the deceased died because of the internal injuries. As
      per the deposition of PW8, who conducted the post-mortem, on
C
      opening of the brain menages, he found brain congested, subdural
      hematoma over both temporal lobes. Therefore, merely because
      no fracture was noticed and/or found cannot take the case out of
      Section 302 IPC when the deceased died due to head injury no.1.
      Causing injury on the head can be said to be causing injury on
D     the vital part of the body and therefore a clear case of Section
      302 IPC has been established and proved. Therefore, the trial
      Court rightly convicted the accused for the offences under Section
      302 IPC and Section 302/34 IPC respectively. [Para 7.2]
      [221-C-E]
E           1.3. Even otherwise considering Section 326 IPC, one fails
      to appreciate how the case would fall under Section 326 IPC when
      the deceased actually died due to grievous hurt and the injuries
      were on the vital part of the body – head. [Para 7.3][221-E-F]
             2. The impugned judgment and order passed by the High
F     Court acquitting the accused- respondents for the offence under
      Section 302 IPC and Section 302/34 IPC respectively and
      convicting them for the offence under Section 326 IPC is hereby
      quashed and set aside. The judgment and order of the trial Court
      convicting the first respondent for the offence punishable under
      Section 302 IPC and convicting the second respondent for
G
      the offence punishable under Section 302/34 IPC is hereby
      restored. The respondents- accused are sentenced to undergo
      life imprisonment with the fine as imposed by the trial Court.
      [Para 8][222-B-C]

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               STATE OF U.P. v. JAI DUTT AND ANR.                           217


      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                      A
No. 37 of 2022.
      From the Judgment and Order dated 18.09.2019 of the High Court
of Judicature at Allahabad in Crl. Appeal No.870 of 1987.
      Rana Mukherjee, Salman Khurshid, Sr. Advs., Ankit Goel, Mrs.
Naghma Imtiaz, Ahmed Zargham, Saif Naseem, Ms. Lubna Naaz, Ms.              B
Sommya Chaturvedi for M/s Equity Lex Associates, Advs. for the
appearing parties.
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
                                                                            C
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 18.09.2019 passed by the High Court of Judicature at
Allahabad in Criminal Appeal No.870 of 1987, by which the High Court
has allowed the said appeal in part and has converted the conviction of
the accused from that of Section 302 read with Section 34 IPC to Section
326 IPC, the State of Uttar Pradesh had preferred the present appeal.       D

       2. As per the case of the prosecution when the deceased was
working in his agricultural field all the accused persons reached there
and started abusing him. That the deceased was beaten by the
accusedpersons. All the accused persons were having different weapons
with them. All of them started beating the deceased resulting ina number    E
of injuries and later considering his serious condition, he was taken to
hospital at Lucknow where after about six days, he succumbed to the
injuries. All the accused persons were charged and tried for the offences
under Section 302 read with Section 34 of the IPC except accused no.1
Jai Dutt who was charged and tried for the offence punishable under         F
Section 302 IPC. To prove the charge against the accused, the prosecution
examined a number of witnesses of which, PW1 and PW2 were the
eye-witnesses to the incident. By examining PW8 - Dr. P.R. Mishra
who conducted the post-mortem on the body of the deceased, the
prosecution brought on record the post-mortem report. The trial Court
convicted Jai Dutt for the offence under Section 302 IPC and sentenced      G
him to undergo life imprisonment. The learned trial Court also convicted
other accused Lal Bahadur, Sher Singh and Shastri for the offences
under Section 302 read with Section 34 of the IPC and sentenced them
to undergo life imprisonment.
                                                                            H
218            SUPREME COURT REPORTS                          [2022] 1 S.C.R.


A            2.1 Feeling aggrieved and dissatisfied with the judgment and order
      of conviction passed by the learned trial Court, all the accused preferred
      the criminal appeal before the High Court. During the pendency of the
      appeal, accused Lal Bahadur and Sher Singh expired. Therefore, appeal
      qua those persons abated. That by impugned judgment and order the
      High Court has partly allowed the said appeal qua rest of the accused
B
      Jai Dutt and Shastri and has converted the conviction from that of Section
      302 read with Section 34 IPC to Section 326 IPC, mainly on the ground
      that the deceased died after six days from the incident and no fracture
      of head was found. The High Court has imposed the sentence of two
      years only for the offence under Section 326 IPC solely on the ground
C     that incident occurred about 36 years back and therefore imposing two
      years sentence would be sufficient to meet the ends of justice.
            2.2 Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the High Court converting the conviction from Section
      302 IPC to Section 326 IPC, the State has preferred the present appeal.
D            3. Shri Rana Mukherjee, learned Senior Advocate appearing on
      behalf of the appellant – State has vehemently submitted that in the
      facts and circumstances of the case the High Court has materially erred
      in converting the conviction from Section 302 IPC to Section 326 IPC.
             3.1 It is submitted by Shri Mukherjee, learned Senior Advocate
E     that as such the High Court has specifically held against the accusedas
      they went to the field of the deceased and started the quarrel and used
      weapons and caused the injuries. It is submitted that the High Court has
      also observed and held that PW1 and PW2 – eye witnesses are wholly
      trustworthy but there is no reason to disbelieve their statements. It is
F     submitted that despite the above when the deceased succumbed to the
      injuries and died because of the head injury, a clear case of murder was
      made out and therefore, the High Court ought not to have converted the
      conviction from Section 302 IPC to Section 326 IPC.
             3.2 It is submitted that merely because the deceased died after
G     six days could not have been the ground to convert the conviction from
      Section 302 IPC to Section 326 IPC. It is submitted that the High Court
      has not at all appreciated and/or considered the injuries mentioned in the
      post-mortem report and the cause of death. It is submitted that merely
      because no fracture on the head was found cannot be a ground, not to
      convict the accused for the offence under Section 302 IPC. It is submitted
H     that in a given case a person might have died because of the internal
                 STATE OF U.P. v. JAI DUTT AND ANR.                                219
                          [M. R. SHAH, J.]

injuries like in the present case. It is submitted that therefore, the reasoning   A
given by the High Court while converting the conviction from Section
302 IPC to Section 326 IPC can be said to be perverse.
      4. Present appeal is vehemently opposed by Shri Salman Khurshid,
learned Senior Advocate appearing for the respondents – accused.
        4.1 It is vehemently submitted by Shri Khurshid, learned Senior            B
Advocate appearing for the accused that in the facts and circumstances
of the case and having found no fracture on the head of the deceased
and he died after six days of the incident and also, considering the fact
that the injuries were not so serious and/or grave, the High Court has
rightly acquitted the accused for the offence under Section 302 IPC and            C
has rightly converted the same to Section 326 IPC. It is submitted by
Shri Khurshid, learned Senior Advocate that when the deceased was
first taken to the PHC, PW6 Dr.B.L. Katiyar who did MLC of injured
Ram Autar (who subsequently died) noticed nine injuries which were
simple in nature. It is submitted therefore that the case would not fall
under Section 302 IPC as observed and held by the High Court.                      D

       4.2 It is submitted by Shri Khurshid learned Counsel appearing on
behalf of the accused that in fact the incident occurred on the spur of
the moment and the quarrel took place because of the minor dispute and
there was no intention to kill the deceased, therefore, the case would not
fall under Section 302 IPC.                                                        E

       5. Making the above submissions it is prayed to dismiss the present
appeal more particularly when the High Court has already passed an
order to pay compensation of Rs.2 lakhs to the objector Raman Babu.
       6. We have heard learned counsel appearing for the respective               F
parties at length.
        7. At the outset, it is required to be noted that on appreciation of
evidence the trial Court convicted the accused for the offence under
Section 302 IPC and Section 302 read with Section 34 of the IPC
respectively, having killed/committed the murder of deceased Ram Autar,
                                                                                   G
relying upon the medical evidence on record as well as the evidence of
eye-witnesses of PW1 and PW2. However, in an appeal preferred by
the accused, the High Court has observed that PW1 and PW2 – eye
witnesses are wholly trustworthy and there is no reason to disbelieve
their statements. Though the High Court has accepted the case on behalf
of the prosecution that on 20.12.1983 in the evening all the four accused          H
220            SUPREME COURT REPORTS                          [2022] 1 S.C.R.


A     persons entered the field of the complainant and started abusing deceased
      Ram Autar and all the accused persons were having different weapons
      with them and all of them started beating the deceased resulting in a
      number of injuries on his body and thereafter when the Ram Autar was
      taken to the hospital and later succumbedto injuries and died, the High
      Court has converted Section 302 IPC to Section 326 IPC on the ground
B
      that the deceased died after six days of the incident and no facture on
      his head was found. However, the High Court has not at all considered
      the injuries mentioned in the post mortem report. As per the post mortem
      report following antemortem injuries on the dead body of the Ram Autar
      were found:
C           “1. Scabbed abraded contusion 8 cm x 6 cm on the left side ofhead
            above the left eye brow.
            2. Scabbed abraded contusion 9 cm x 5 on the left scapularregion.
            3. Scabbed abraded contusion 6 cm x 5 cm on the left side
D           ofbuttock.
            4. Abraded contusion 4 cm x 4 cm on the 5th lumber spine.
            5. Infected wound 1.5 cm x 0.5c, x muscle deep on the frontof
            mid of left leg.
            6. Multiple scabbed abraded contusion in an area of 18 cm x2 cm
E
            on the upper half of left leg.
            7. Scabbed abrasion on an area of 22 cm 2 cm on the front ofright
            leg.”
             7.1 As per the deposition of Dr.P.R. Mishra – PW8 who conducted
F     the post mortem, on opening of the brain menages, found brain congested,
      subdural hematoma over both temporal lobes. As per the doctor the
      deceased died due to head injury no.1. The aforesaid injuries more
      particularly head injury no.1 was fatal and because of said injuries the
      deceased died. Merely because the deceased died after six days could
      not have been the ground to set aside the conviction for the offence
G     under Section 302 IPC and to convert it to Section 326 IPC. The deceased
      was first taken to the PHC, however his condition was found to be
      serious and therefore, he was taken to the Lucknow Hospital on
      20.12.1983 and thereafter while under treatment he died on 26.12.1983
      and the main cause of death is found to be the head injury no.1. At this
H     stage, it is required to be noted that though the High Court has noticed
                STATE OF U.P. v. JAI DUTT AND ANR.                              221
                         [M. R. SHAH, J.]

the nine injuries as noticed by Dr. B.L. Katiyar of Medical Officer at          A
PHC, the High Court has not at all noticed and/or considered at all the
antemortem injuries on the dead body of Ram Autar mentioned in the
post-mortem report. As observed hereinabove and as per the medical
evidence the cause of death was due to head injury no.1. The weapon
was used on the head - vital part of the body and ultimately the same
                                                                                B
proved to be fatal and the deceased died due to head injury no.1.
Therefore, by no stretch of imagination the case would fall under Section
326 IPC.
       7.2. One another reason given by the High Court to convert the
conviction from Section 302 IPC to Section 326 IPC is that no fracture
on the head was found. However, it is required to be noted that the             C
deceased died because of the internal injuries. As per the post-mortem
report and the medical evidence head injury is found. Head injury no.1 is
reproduced hereinabove. As per the deposition of Dr. P.R. Mishra –
PW8, who conducted the post-mortem, on opening of the brain menages,
he found brain congested, subdural hematoma over both temporal lobes.           D
Therefore, merely because no fracture was noticed and/or found cannot
take the case out of Section 302 IPC when the deceased died due to
head injury no.1. As observed hereinabove causing injury on the head
can be said to be causing injury on the vital part of the body and therefore
a clear case of Section 302 IPC has been established and proved.
Therefore, the learned trial Court rightly convicted the accused for the        E
offences under Section 302 IPC and Section 302/34 IPC respectively.
       7.3 Even otherwise considering Section 326 IPC, we fail to
appreciate how the case would fall under Section 326 IPC when the
deceased actually died due to grievous hurt and the injuries were on the
vital part of the body – head. At this stage, it is required to be noted that   F
in fact the accused went to the field of the complainant where his father
deceased Ram Autar was also working. All of them went with the deadly
weapons and had beaten the deceased Ram Autar and caused serious
injuries and immediately the deceased Ram Autar was required to be
taken to the hospital and he was first taken to PHC and thereafter to           G
Lucknow, Hospital where he succumbed to the injuries. For the reasons
stated above also the High Court has committed grave error in convicting
the accused for the offence under Section 326 IPC by acquitting the
accused for the offence under Section 302 IPC. The impugned judgment
and order passed by the High Court acquitting the accused for the offence
Section 302 IPC and to convict the accused for the offence under Section        H
222              SUPREME COURT REPORTS                          [2022] 1 S.C.R.


A     326 IPC is unsustainable and deserves to be quashed and set aside and
      the judgment and order passed by the trial Court is required to be restored.
             8. In view of the above and for the reasons stated hereinabove
      the present appeal succeeds. The impugned judgment and order passed
      by the High Court acquitting the accused – respondents Jai Dutt and
B     Shastri for the offence under Section 302 IPC and Section 302/34 IPC
      respectively and convicting them for the offence under Section 326 IPC
      is hereby quashed and set aside. The judgment and order of the learned
      trial Court convicting the accused Jai Dutt for the offence punishable
      under Section 302 IPC and convicting the accused - Shastri for the
      offence punishable under Section 302/34 IPC is hereby restored. The
C     respondents – accused are sentenced to undergo life imprisonment with
      the fine as imposed by the learned trial Court.
              Now both the accused be taken into custody forthwith to undergo
      the life imprisonment. Present appeal is allowed accordingly.

D

      Bibhuti Bhushan Bose                                          Appeal allowed.




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