State of Rajasthan v. Shera Ram @ Vishnu Dutta
SWATANTER KUMAR, J. 1. Respondent Shera Ram @
Vishnu Dutta was charged for committing an offence under
Sections 302, 295 and 449 of the Indian Penal Code, 1860 (for
short 'IPC') and was sentenced to undergo imprisonment for B
life by the Additional Sessions Judge-1, Jodhpur vide judgment
dated 7th June, 2000. However, upon appeal, he came to be
acquitted of all the offences by a Division Bench of the High
Court of Rajasthan vide order dated 21st February, 2004
primarily on the ground that at the time of incident, he was a
person of unsound mind within the meaning of Section 84 IPC C
and was directed to be detained in safe custody in an
appropriate hospital or a place of custody of non-criminal
lunatics as would be provided to him by the State Government
under the direct supervision of the Jail Authorities till the time
he was cured of his mental illness and infirmity. D
2. Aggrieved from the said judgment, the State of
Rajasthan has presented this appeal by way of a special leave
petition.
3. Before we proceed to dwell upon the merits of the case E
and the legal issues involved in the present appeal, a reference
to the case of the prosecution would be necessary. According
to the prosecution, on 10th March, 1999 at about 7.15 a.m.,
while Pujari Tulsi Das (now deceased) was in the Raghunathji's
temple, the respondent abruptly hurled a stone on his head F
resulting into his instantaneous death. The respondent also
damaged the idol and other properties of the temple. This all
was unprovoked. The incident was witnessed by the villagers
including PW-6 Santosh, PW-11 Narsingh Ram and PW-16,
Smt. Tiku Devi. G
4. PW-2, Ghan Shyam Das Daga reported the matter to
the police immediately. Upon receipt of the information, the
police registered a case under Section 302 IPC and
proceeded with the investigation. Besides recording statements H
A of number of witnesses, the Investigating Officer also prepared
the site plan and the inquest memo. The body of the deceased
was sent for post-mortem which was performed by PW-20, Dr.
C.P. Bhati, who prepared the post-mortem report Ext'. P-37.
8 5. After investigation, the police filed the challan upon
which, the respondent was committed to the appropriate Court
of Sessions for trial. The charge-sheet was filed under Sections
302, 295 and 449 IPC, as already noticed. The respondent
denied the charges leveled against him and claimed trial.
C 6. The prosecution examined as many as 23 witnesses to
prove its case. The material piece of evidence appearing in
the case of the prosecution against the respondent were put
to him and his statement was recorded by the learned Trial
Court under Section 313 of the Code of Criminal Procedure,
o 1973 (for short 'Cr.PC'). According to the respondent, his
mental condition right from the year 1992-1993 was not good
and occasionally he suffered from fits of insanity. He had
undergone treatment for the same. He has stated that in the
jail also, he was receiving the treatment. To put it simply, he
E claimed the defence of insanity under Section 84 IPC. The
defence also examined DW-2, Dr. Vimal Kumar Razdan and
DW-1, Bhanwar Lal, brother of the respondent who had
produced records to show that the respondent was a person
suffering from insanity of mind. The learned Trial Court rejected
F the plea of defence of insanity and convicted the respondent.
7. The respondent preferred an appeal against the
judgment and order of conviction by the Trial Court which
resulted in his acquittal vide order dated 21st February, 2004
with the afore-noticed directions to the State Government.
G Dissatisfied from the said judgment, the State has preferred
the present appeal.
8. As is evident from the above-noted facts, it is an appeal
against the judgment of acquittal. The plea of insanity raised
by the respondent has been accepted by the High Court
H resulting in his acquittal.
STATE OF RAJASTHAN v. SHERA RAM @ VISHNU 495
DUTIA [SWATANTER KUMAR, J.]
9. A judgment of acquittal has the obvious consequence A
of granting freedom to the accused. This Court has taken a
consistent view that unless the judgment in appeal is contrary
to evidence, palpably erroneous or a view which could not have
been taken by the court of competent jurisdiction keeping in
view the settled canons of criminal jurisprudence, this Court shall B
be reluctant to interfere with such judgment of acquittal.
10. The penal laws in India are primarily based upon
certain fundamental procedural values, which are right to fair
trial and presumption of innocence. A person is presumed to
be innocent till proven guilty and once held to be not guilty of a C
criminal charge, he enjoys the benefit of such presumption which
could be interfered with only for valid and proper reasons. An
appe_al against acquittal has always been differentiated from
a normal appeal against conviction. Wherever there is perversity
of facts and/or law appearing in the judgment, the appellate D
court would be within its jurisdiction to interfere with the
judgment of acquittal, but otherwise such interference is not
called for. We may refer to a recent judgment of this Court in
the case of State of Rajasthan, Through Secretary, Home
Department v. Abdul Mannan ((2011) 8 SCC 65], wherein this E
Court discussed the limitation upon the powers of the appellate
court to interfere with the judgment of acquittal and reverse the
same.
11. This Court referred to its various judgments and held F
as under:-
"12. As is evident from the above recorded findings, the
judgment of conviction was converted to a judgment of
acquittal by the High Court. Thus, the first and foremost
question that we need to consider is, in what circumstances G
this Court should interfere with the judgment of acquittal.
Against an order of acquittal, an appeal by the State is
maintaihable to this Court only with the leave of the Court.
On the contrary, if the judgment of acquittal passed by the
trial court is set aside by the High Court, and the accused H
is sentenced to death, or life imprisonment or
imprisonment for more than 10 years, then the right of
appeal of the accused is treated as an absolute right
subject to the provisions of Articles 134(1 )(a) and
134(1)(b) of the Constitution of India and Section 379 of
the Code of Criminal Procedure, 1973. In light of this, it is
obvious that an appeal against acquittal is considered on
slightly different parameters compared to an ordinary
appeal preferred to this Court.
13. When an accused is acquitted of a criminal
charge, a right vests in him to be a free citizen and this
Court is very cautious in taking away that right. The
presumption of innocence of the accused is further
strengthened by the fact of acquittal of the accused under
our criminal jurisprudence. The courts have held that if two
views are possible on the evidence adduced in the case,
then the one favourable to the accused, may be adopted
by the court. However, this principle must be applied
keeping in view the facts and circumstances of a case and
the thumb rule is that whether the prosecution has proved
its case beyond reasonable doubt. If the prosecution has
succeeded in discharging its onus, and the error in
appreciation of evidence is apparent on the face of the
record then the court can interfere in the judgment of
acquittal to ensure that the ends of justice are met. This is
the linchpin around which the administration of criminal
justice revolves.
14. It is a settled principle of criminal jurisprudence
that the burden of proof lies on the prosecution and it has
to prove a charge beyond reasonable d-"'ubt. The
presumption of innocence and the rig ht to fair trial are twin
safeguards available to the accused under cur criminal
justice system but once the prosecution has proved its
case and the evidence led by the prosecution, in
conjunction with the chain of events as are stated to have
STATE OF RAJASTHAN v. SHERA RAM @ VISHNU 497
DUTTA [SWATANTER KUMAR, J.]
occurred, if, points irresistibly to the conclusion that the A
accused is guilty then the court can interfere even with the
judgment of acquittal. The judgment of acquittal might be
based upon misappreciation of evidence or apparent
violation of settled canons of criminal jurisprudence.
15. We may now refer to some judgments of this
Court on this issue. In Stale of MP. v. Bacchudas, the Court
was concerned with a case where the accused had been
found guilty of an offence punishable under Section 304
Part II read with Section 34 IPC by the trial court; but had C
been acquitted by the High Court of Madhya Pradesh. The
appeal was dismissed by this Court, stating that the
Supreme Court's interference was called for only when
there were substantial and compelling reasons for doing
so. After referring to earlier judgments, this Court held as
under: (SCC pp. 138-39, paras 9-10) D
"9. There is no embargo on the appellate court
reviewing the evidence upon which an order of
acquittal is based. Generally, the order of acquittal
shall not be interfered with because the presumption E
of innocence of the accused is further strengthened
by acquittal. The golden thread which runs through
the web of administration of justice in criminal cases
is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the F
accused and the other to his innocence, the view
which is favourable to the accused should be
adopted. The paramount consideration of the court
is to ensure that miscarriage of justice is prevented.
A miscarriage of justice which may arise from G
acqu!ttal of the guilty is no less than from the
conviction of an innocent. In a case where
· admissible evidence is ignored, a duty is cast upon
the appellate court to reappreciate the evidence
where the accused has been acquitted, for the H
purpose of ascertaining as to whether any of the
accused really committed any offence or not. (See
Bhagwan Singh v. State of M.P.) The principle to
bE1\followed by the appellate court considering the
appeal against the judgment of acquittal is to
interfere only when there are compelling and
substantial reasons for doing so. If the impugned
judgment is clearly unreasonable and relevant and
convincing materials have been unjustifiably
eliminated in the process, it is a compelling reason
for interference. These aspects were highlighted by
this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra, Ramesh Babula/ Doshi v. State of
Gujarat, Jaswant Singh v. State of Haryana, Raj
Kishore Jha v. State of Bihar, State of Punjab v.
Kamai/ Singh, State of Punjab v. Pho/a Singh,
Suchand Pal v. Phani Pal and Sachchey Lal
Tiwari v. State of U.P.
10. When the conclusions of the High Court in
the background of the evidence on record are
tested on the touchstone of the principles set out
above, the inevitable conclusion is that the High
Court's judgment does not suffer from any infirmity
to warrant interference."
16. In a very recent judgment, a Bench of this Court
in State of Kera/a v. C.P. Rao decided on 16-5-2011,
discussed the scope of interference by this Court in an
order of acquittal and while reiterating the view of a three
Judge Bench of this Court in Sanwat Singh v. State of
Rajasthan, the Court held as under:
"13. In coming to this conclusion, we are reminded
of the well-settled principle that .vhen the court has
to exercise its discretion in an appeal arising
against an order of acquittal, the court must
remember that the innocence of the accused is
STATE OF RAJASTHAN v. SHERA RAM @ VISHNU 499
DUTTA [SWATANTER KUMAR, J.)
further re-established by the judgment of acquittal A
rendered by the High Court. Against such decision
of the High Court, the scope of interference by this
Court in an order of acquittal has been very
succinctly laid down by a three-Judge Bench of this
Court in Sanwat Singh v. State of Rajasthan 212. B
At SCR p. 129, Subba Rao, J. (as His Lordship
then was) culled out the principles as follows:
'9. The foregoing discussion yields the
following results: (1) an appellate court has full C
power to review the evidence upon which the order
of acquittal is founded; (2) the principles laid down
in Sheo Swarup case afford a correct guide for the
appellate court's approach to a case in disposing
of such an appeal; and (3) the different phraseology
used in the judgments of this Court, such as (i) D
"substantial and compelling reasons", (ii) "good and
sufficiently cogent reasons", and (iii) "strong
reasons", are not intended to curtail the undoubted
power of an appellate. court in an appeal against
acquittal to review the entire evidence and to come E
to its own conclusion; but in doing so it should not
only consider every matter on record having a
bearing on the questions of fact and the reasons
given by the court below in support of its order of
acquittal in its arriving at a conclusion on those facts, F
but should also express those reasons in its
judgment, which lead it to hold that the acquittal was
not justified'."
17. Reference can also be usefully made to the G
judgment of this Court in Suman Sood v. State of
Rajasthan, where this Court reiterated with approval the
principles stated by the Court in earlier cases, particularly,
Chandrappa v. State of Karnataka. Emphasising that
expressions like "substantial and compelling reasons",
"good and sufficient grounds", "very strong circumstances", H
500 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A "distorted conclusions'', "glaring mistakes", etc. are not
intended to curtail the extensive powers of an appellate
court in an appeal against acquittal, the Court stated that
such phraseologies are more in the nature of "flourishes
of language" to emphasise the reluctance of an appellate
B court to interfere with the acquittal. Thus, where it is
possible to take only one view i.e. the prosecution
evidence points to the guilt of the accused and the
judgment is on the face of it perverse, then the Court may
interfere with an order of acquittal."
c 12. There is a very thin but a fine distinction between an
appeal against conviction on the one hand and acquittal on the
other. The preponderance of judicial opinion of this Court is that
there is no substantial difference between an appeal against
conviction and an appeal against acquittal except that while
D dealing with an appeal against acquittal the Court keeps in
view the position that the presumption of innocence in favour
of the accused has been fortified by his acquittal and if the view
adopted by the High Court is a reasonable one and the
conclusion reached by it had its grounds well set out on the
E materials on record, the acquittal may not be interfered with.
Thus, this fine distinction has to be kept in mind by the Court
while exercising its appellate jurisdiction. The golden rule is that
the Court is obliged and it will not abjure its duty to prevent
miscarriage of justice, where interference is imperative and the
F ends of justice so require and it is essential to appease the
judicial conscience.
13. Also, this Court had the occasion to state the principles
which may be taken into consideration by the appellate court
G while dealing with an appeal against acquittal. There is no
absolute restriction in law to review and re-look the entire
evidence on which the order of acquittal is founded. If, upon
scrutiny, the appellate court finds that the lower court's decision
is based on erroneous views and against the settled position
of law then the said order of acquittal should be set aside. {See H
STATE OF RAJASTHAN v. SHERA RAM@ VISHNU 501
DUTTA [SWATANTER KUMAR, J.]
State (Delhi Administration) v. Laxman Kumar & Ors. ((1985) A
4 SCC 476], Raj Kishore Jha v. State of Bihar & Ors. [AIR
2003 SC 4664], Inspector of Police, Tamil Nadu v. John
David [JT 2011 (5) SC 1] }
14. To put it appropriately, we have to examine, with B
reference to the present case whether the impugned judgment
of acquittal recorded by the High Court suffers from any legal
infirmity or is based upon erroneous appreciation of evidence.
15. In our considered view, the impugned judgment does
not suffer from any legal infirmity and, therefore, does not call C
for any interference. In the normal course of events, we are
required not to interfere with a judgment of acquittal.
16. Having deliberated upon the above question of law, we
may now proceed to discuss the merits of the case in hand. D
The High Court after consideration of the entire evidence
produced by the prosecution, affirmed the finding that the
incident as alleged by the prosecution had occurred and the
respondent had hurled a stone on the head of Pujari Tulsi Das
which resulted in his death. This being a finding of fact based E
upon proper appreciation of evidence, does not call for any
interference by us.
17. The corollary that follows from the above is whether
having committed the charged offence, the respondent is
entitled to the benefit of the general exception contained in F
Section 84, Chapter IV of the IPC? Section 84 states that
nothing is an offence which is done by a person who, at the
time of doing it, by reason of unsoundness of mind, is
incapable of knowing the nature of the act, or that what he is
doing is either wrong or contrary to law. G
18. It is obvious from a bare reading of this provision that
what may be generally an offence would not be so if the
ingredients of Section 84 IPC are satisfied. It is an exception
to the general rule. Thus, a person who is proved to have H
A committed an offence, would not be deemed guilty, if he falls
in any of the general exceptions stated under this Chapter.
19. To commit a criminal offence, mens rea is generally
taken to be an essential element of crime. It is said furiosus
B nu/la voluntus est. In other words, a person who is suffering
from a mental disorder cannot be said to have committed a
crime as he does not know what he is doing. For committing a
crime, the intention and act both are taken to be the constituents
of the crime, actus non facit reum nisi mens sit rea. Every
normal and sane human being is expected to possess some
C degree of reason to be responsible for his/her conduct and acts
unless contrary is proved. But a person of unsound mind or a
person suffering from mental disorder cannot be said to
possess this basic norm of human behavior. In the case of
Surendra Mishra v. State of Jharkhand ((2011) 3 SCC(Cri.)
D 232], the Court was dealing with a case where the accused
was charged for an offence under Section 302 IPC and Section
27 of the Arms Act. While denying the protection of Section 84
of the IPC to the accused, the Court held as under:-
"9. In our opinion, an accused who seeks exoneration from
liability of an act under Section 84 of the Indian Penal Code
is to prove legal insanity and not medical insanity.
Expression "unsoundness of mind" has not been defined
in the Indian Penal Code and it has mainly been treated
as equivalent to insanity. But the term insanity carries
different meaning in different contexts and describes
varying degrees of mental disorder. Every person who is
suffering from mental disease is not ipso facto exempted
from criminal liability. The mere fact that the accused is
conceited, odd, irascible and his brain is not quite all right,
or that the physical and mental ailments from which he
suffered had rendered his intellect weak and affected his
emotions or indulges in certain unusual acts, or had fits of
insanity at short intervals or that he was subject to epileptic
fits and there was abnormal behavior or the behavior is
STATE OF RAJASTHAN v. SHERA RAM @ VISHNU 503
DUTTA [SWATANTER KUMAR, J.)
queer are not sufficient to attract the application of Section A
84 of the Indian Penal Code."
20. From the above-stated principles, it is clear that a
person alleged to be suffering from any mental disorder cannot
be exempted from criminal liability ipso facto. The onus would 8 be on the accused to prove by expert evidence that he is
suffering from such a mental disorder or mental condition that
he could not be expected to be aware of the consequences of
his act.
21. Once, a person is found to be suffering from mental C
disorder or mental deficiency, which takes within its ambit
hallucinations, dementia, loss of memory and self-control, at all
relevant times by way of appropriate documentary and oral
evidence, the person concerned would be entitled to seek resort
to the general exceptions from criminal liability. o
22. Epileptic Psycnosis is a progressing disease and its
effects have appropriately been described in the text book of
Medical Jurisprudence and Toxicology by Modi, 24th Ed.
20.11 where it states as follows:-
"Epileptic Psychosis. - Epilepsy usually occurs from early
infancy, though it may occur at any period of life.
Individuals, who have had epileptic fits for years, do not
necessarily show any mental aberration, but quite a few
of them suffer from mental deterioration. Religiousity is a
marked feature in the commencement, but the feeling is
only superficial. Such patients are peevish, impulsive and
suspicious, and are easily provoked to anger on the
slightest cause.
G The disease is generally characterized by short transitory
fits of uncontrollable mania followed by complete recovery.
The attacks, .however, become more frequent. There is a
general impairment of the mental faculties, with loss of
memory and self-control. At the same time, hallucinations H
504 SUPREME COURT REPORTS (2011) 15 (ADDL.} S.C.R.
of sight and hearing occur and are followed by delusions
of a persecuting nature. They are deprived of all moral
sensibility, are given to the lowest forms of vice and sexual
excesses, and are sometimes dangerous to themselves
as well as to others. In many long-standing cases, there is
a progressive dementia or mental deficiency.
True epileptic psychosis is that which is associated with
epileptic fits. This may occur before or after the fits, or may
replace them, and is known as pre-epileptic, post-epileptic
and masked or psychic phases (psychomotor epilepsy)
Post-Epileptic Mental Ill-health - In this condition, stupor
following the epileptic fits is replaced by automatic acts of
which the patient has no recollections. The patient is
confused, fails to recognize his own relatives, and wanders
aimlessly. He is terrified by visual and auditory
hallucinations of a religious character and delusions of
persecution, and consequently, may commit crimes of a
horrible nature, such as thefts, incendiarism, sexual
assaults and brutal murders. The patient never attempts
to conceal them at the time of perpetration but on
regaining consciousness may try to conceal them out of
fear."
23. Similar features of Epilepsy have been recorded in the
HWV COX Medical Jurisprudence and Toxicology (7th Edn)
F by PC Dikshit.
24. Reverting to the facts of the present case, it may be
noted that no witness of the prosecution including the
Investigating Officer 11tat.ed anything with regard to the mental
G condiUon qf the respondent. However, the respondent not only
in his statement under Section 313 Cr.P.C. took up the
defence of mental disorder seeking benefit of Section 84 IPC
but even led evidence, both documentary as well as oral, in
support of his claim. He examined Dr. Vimal Kumar Razdan,
H DW-2, who deposed that he had examined the respondent and
STATE OF RAJASTHAN v. SHERA RAM @ VISHNU 505
DUTIA [SWATANTER KUMAR, J.]
had given him treatment. He, also, produced the examinati9n A
report in regard to the treatment of the respondent, Ext.D-5,
which was prepared in his clinic.
25. According to the statement of this doctor and the
prescription, the respondent was suffering from Epilepsy and 8 while describing post epileptic insanity, this witness stated that
after the epileptic attack, a patient behaves like an insane
person and he is unable to recognise even the known persons
and relatives. During this time, there is a memory loss and the
patient can commit any offence. In the prescription, Ext. D-3, C
issued by Dr. Ashok Pangadiya, it was stated that the patient
was suffering from the fits disease and symptoms of behavioral
abnormality. Two types of medication on the basis of diagnosis
of epileptic disease and other one for insanity were prescrilted
to the respondent who continued to take these medicines, post
epileptic insanity. D
26. Another witness who was produi:ed by the defence was
DW-1, Bhanwar Lal, the brother of the respondent. According
to this witness, the respondent was suffering from mental
disorder since 1993. He stated that when he gets the fits of E
insanity, he can fight with anybody, hit anybQdy and even throw
articles lying around him. At the initial stage, Dr. Devraj Purohit
' haa treated him. Then Dr. V.K. Razdan treated him and
thereafter, in Jaipur, Dr. Ashok Pagadiya!Pandharia also
treated him. Even when he was in jail, he was un~r treatment. F
He produced the prescription slips i.e. Exts. D3 /a!l(J D4, This
witness has also stated that on the date of occurrence at about
6.00 - 6.30 a.m., Shera Ram/respondent was not feeling well
and, in fact, his condition was not good. Even at home he had
broken the electricity meter and the bulbs. When the people at G
home including the witness tried to stop him, he had beaten
DW-1 on his arm and after hitting him on the face he had run
away.
27. This oral and documentary evidence clearly shows that
the respondent was suffering from epileptic attacks just prio.r H
A to the incident. Immediately prior to the occurrence, he had
behaved violently and had caused injuries to his own family
members. After committing the crime, he was arrested by the
Police and even thereafter, he was treated for insanity, while
in jail.
B 28. Thus, there is evidence to show continuous mental
sickness of the respondent. He not only caused death of the
deceased but also on the very same day injured and caused
hurt to his family members including OW-1. His statement made
C under Section 313 Cr.PC is fully corroborated by oral and
documentary evidence of OW-2 and Ext. 0-3 and 0-4. Though,
the High Court has not discussed this evidence in great detail,
but this being an admissible piece of evidence, can always be
relied upon to substantiate the conclusion and findings
recorded by the High Court.
29. In other words, the High Court on the basis of the
documentary and oral evidence has a taken a view which was
a possible and cannot be termed as perverse or being
supported by no evidence. The finding of the High Court, being
E in consonance with the well settled principles of criminal
jurisprudence, does not call for any interference. More so, the
learned counsel appearing for the State has not brought to our
notice any evidence, documentary or otherwise, which could
persuade us to take a contrary view i.e. other than the view
F taken by the High Court.
30. Another aspect of this case which requires
consideration by this Court is that the case of the prosecution
suffers from legal infirmity. In fact, the prosecution has failed to
prove beyond reasonable doubt that the injury inflicted by the
G respondent upon the deceased was sufficient in the ordinary
course of nature to cause death. It is the case of the
prosecution that the respondent had hurled a stone which had
caused injury (lacerated wound on the left side of the forehead)
whereupon the deceased fell on the ground and subsequently
H collapsed. The injury is said to be 2" x %" x upto bone,
STATE OF RAJASTHAN v. SHERA RAM @ VISHNU 507
DUTTA [SWATANTER KUMAR, J.]
transverse!ly Lt. side of forehead and another lacerated wourl'd A
2" x %" x %" near injury No.1 towards the forehead. These are
the injuries which the deceased is stated to have suffered. In
addition, abrasion of 1 cm x 1 cm on the left eyebrow was also
present. According to the doctor, all these injuries were ante
mortem in nature and the cause of death was shock and B
haemorrhage due to head injury.
31. In the statement of PW-20, Dr. C.P. Bhati, it is nowhere
stated that the injuries caused by the respondent were sufficient
in the ordinary course of nature to cause death. It is also not
recorded in the post-mortem report, Ext. 37. This was a material C
piece of evidence which the prosecution was expected to prove
in order to bring home the guilt of the respondent. This is a
serious deficiency in the case of the prosecution. Absence of
this material piece of evidence caused a dent in the case of
the prosecution. The High Court has not taken note of this D
important aspect ·of the case.
32. The learned counsel appearing for the respondent
placed reliance upon this evidence and strenuously contended
that the respondent was entitled to acquittal on this basis alone. E
We should not be understood to have stated any absolute
proposition of law, but in the facts and circumstances of the
present case, it was expected of PW-20 to state before the
Court as well as record the same in the post-mortem report
prepared by him i.e. Ext. 37, that the injuries were sufficient in F
the ordinary course of nature to cause death of the deceased.
33. Ex-facie, injuries do not appear to be so vital that they
could have resulted in the death of the deceased, but this fact
was required to be proved by expert evidence. The counsel for
the respondent relied upon a judgment of this Court in the case G
of Ram Jattan and Others v. State of U.P. ((1995) SCC (Cri)
169] where this Court held that it is not appropriate to interfere
with the conclusion that the injuries are not sufficient to cause
death unless they are so patent. The Court held as under:-
' ' ,, ~
"4. The learned counsel, however, further submitted
that in any event the offence committed by the members
of unlawful assembly cannot be held to be one of murder
and therefore the common object of unlawful assembly was
not one which attracts the provision of Section 302 read
with Section 149 IPC. We find considerable force in this
submission. Though, in general, right from the first report
onwards the prosecution case is that all the 12 accused
armed with sharp-edged weapons and lathis surrounded
the three persons and inflicted the injuries but from tne
doctor's report we find that no injury was caused on the
vital organs. So far as Patroo is concerned, who got the
report written by PW 7 and gave it in the police station,
we find 13 injuries but all of them were abrasions and
lacerated injuries on the legs and hands. The doctor
opined that all the injuries were simple. On Balli, PW 8,
the doctor found 12 injuries and they were also on arms
and legs. There was only one punctured wound, injurY No.
8 and it was not a serious injury and it was also a simple
injury. Now, coming to the injuries on the deceased, the
doctor who first examined him, when he was alive, found
11 injuries. Out of them, injuries Nos. 1 and 2 were
punctured wounds. Injury No. 5 was an incised wound and
injury No. 6 was a penetrating wound. All these injuries
were on the upper part of the right forearm and outer and
lower part of right upper arm. The remaining ir.juries were
abrasions and contusions. The doctor opined that except
injuries Nos. 7 and 9 all other injuries were simple. He did
not say whether injuries Nos. 7 and 9 were grievous but
simply stated that they were to be kept under observation.
The deceased, however, died the next day i.e. 9-4-1974
and the post-mortem was conducted on the same day. In
the post-mortem examination 11 external injuries were
noted but on the internal examination the doctor did not
find any injury to the vital organs. He, however, noted that
8th and 9th ribs were fractured. Now, coming to the cause
of death, he opined that death was due to shock and
STATE OF RAJASTHAN v. SHERA RAM @ VISHNU 509
DUTIA [SWATANTER KUMAR, J.]
haemorrhage. It is not ,noted that any of the injuries was A
sufficient to cause death in the ordinary ilourse of nature.
It could thus be ~en that neither clause 1st1y' nor clause
3rdly of Section 300 are attracted to the facts of this case.
This contention was also put forward before the High Court
but the learned Judges rejected this contention observing B
that the fracture of 8th and 9th ribs must have resulted in
causing death and therefore these injuries must be held
to be sufficient in the ordinary course of nature to cause
death~ We are unable to agree with this reasoning. In the
absence of proof by the prosecution in an objective manner c
that the injuries caused were sufficient in the ordinary
course of nature to cause death, the same cannot be
interfered with unless the injuries are so patent. As we
have noted above except fracture of ribs there was no other
injury to any of the vital organs. As a matter of fact internally D
the doctor did not notice any damage either to the heart
or lungs. Even in respect of these two injuries resulting in
fracture of the ribs, there were no corresponding external
injuries. Again as already noted all the injuries were on the
non-vital parts of the body. The .learned counsel for the
State, however, submitted that a forceful blow dealt on the E
am'! might have in turn caused the fracture of the two ribs.
Even assuming for a moment it to be so, it is difficult to
hold that from that circumstance alone the common object
of the unlawful assembly of 12 persons to cause the death
of the deceased is established. F
5. The common object has to be gathered or inferred
from the various circumstances like nature of the weapons,
the force used and the injuries that are caused. After
carefully going through the medical evidence we find that G
it is difficult to conclude that the common object was to
cause the death. The injuries on Patroo, PW 8 as well as
on the deceased were more or less of the same nature
except that in the case of deceased, there were few
punctured wounds which were not serious but only simple. H
510 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
· A He died due to shock and haemorrhage the next day. In
any event there is no indication anywhere in the evidence
of the doctor or in the post-mortem certificate that any of
the injuries was sufficient in the ordinary course of nature
to cause death. No doubt in his deposition the doctor, PW
B 4 has stated in the general way that these injuries were
sufficient to cause death in the ordinary course of nature.
We have already held that there was no external injury
which resulted in the fracture of the ribs. In such an event
clause 3rdly of Section 300 IPC is not attracted. Likewise
c clause 1 stly of Section 300 IPC is also not attracted i.e.
intentionally causing death. If their intention was to cause
death, they would have used the lethal weapons in a
different way and would not have merely inflicted simple
injuries on the non-vital parts like legs and hands.
D 6. In the result we set aside the convictions of these
eight appellants under Section 302 read with Section 149
IPC and the sentence for imprisonment for life. Instead we
convict them under Section 304 Part II read with Section
149 IPC and sentence each of them to undergo rigorous
E imprisonment for five years. The sentences and
convictions imposed on other counts are confirmed. The
four other accused who were convicted by the trial court
as well as by the High Court are not before us. However,
we are of the view that they must also get the same benefit.
F They are Ram Chander (A-2), Dal Singhar (A-7), Sarai (A-
8) and Birju (A-11 ). Accordingly their convictions under
Section 302 read with Section 149 IPC for imprisonment
for life are set aside and instead they are also convicted
under Section 304 Part II read with Section 149 IPC and
G are sentenced to undergo rigorous imprisonment for five
years. The other convictions and sentences imposed on
other counts are, however, confirmed.
34. Reliance was also placed upon the judgment of this
Court in the case of State of Rajasthan v. Kalu [(1998) SCC
STATE OF RAJASTHAN v. SHERA RAM @VISHNU 511
DUTIA [SWATANTER KUMAR, J.]
(Cri.) 898], where in the post mortem examination of the A
deceased, the cause of death was noticed as "acute peritonitis"
as a result of abdominal injuries. However, during the cross
examination, Dr. Prem Narayna admitted that "peritonitis" could
have set in due to surgical complications also. The Court took
the view that the medical evidence, therefore, when analysed 8
in. its correct perspective shows that the evidence recorded by
the High Court is correct to the effect that prosecution had not
proved that the injuries were sufficient in the ordinary course
of nature to cause death of the lady and had acquitted the
respondent. The Supreme Court declined to interfere with the c
finding recorded by the High Court.
35. In the present case also, there is no documentary or
oral evidence to prove the fact that the injuries caused by the
respondent to the deceased were sufficient in the ordi(lary
course of nature to cause death. This, however, cannot be D
stated as an absolute proposition of law and the .question
whether the particular injury was sufficient in the ordinary course
of nature to cause death or not is a question of fact which will
have to be determined in light of the facts, circumstances and
evidence produced in a given case. (Ref. Halsbury's Laws of E
India 5(2) Criminal Law-II).
There could be cases where injuries caused upon the
body of the deceased per se can irresistibly lead to the
conclusion that the injuries were sufficient to cause death in the
ordinary course of nature, while there may be other cases where F
it is required to be proved by documentary and oral evidence.
Resultantly, it will always depend on the facts of each case.
Thus, in such cases, it may neither be permissible nor possible
to state any absolute principle of law universally applicable to
all such cases. G
36. In view of our discussion above, we find no error in the
judgment under appeal. Thus, we have no hesitation in
dismissing the appeal and the same is hereby dismissed.
8.8.8. Appeal dismissed. H