(2018)1 SCeJ 1068
8 May, 2018
(i) Criminal trial – Injuries to the accused - Since the accused sustained injuries in the incident, non-explanation of injuries sustained by the accused assumes significance - It cannot be held as an invariable proposition that as soon as the accused received the injuries in the same transaction, the complainant party were the aggressors - It cannot be held as a rule that the prosecution is obliged to explain the injuries and on failure of the same, the prosecution case should be disbelieved - It is well settled that before placing the burden on the prosecution to explain the injuries on the person of the accused, two conditions are to be satisfied:- (i) the injuries were sustained by the accused in the same transaction; and (ii) the injuries sustained by the accused are serious in nature - Incident had taken place near the tubewell where both the parties assembled to settle the land dispute - When there was exchange of words, there was a scuffle between both the parties - In the same transaction where the deceased was attacked, the accused party also sustained injuries - The prosecution has not offered any explanation for the injuries sustained by the accused - Since both the accused sustained injuries in the incident, non-explanation of injuries sustained by the accused assumes significance - Having regard to the injuries sustained by the accused, the trial court and the High Court ought to have made an effort in searching out genesis of the occurrence.
Takhaji Hiraji v. Thakore Kubersing Chamansing and others (2001) 6 SCC 145, relied.
[Para 10, 11]
(ii) Indian Penal Code, Section 300 IPC Exception 4 – Undue advantage - For bringing in operation of “Exception 4” to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner – There is no clear evidence as to who started the attack - Both the parties were unarmed - When there was exchange of words between both the parties, accused went inside the room and brought an axe and caused head injuries to the deceased - From the post-mortem certificate, it is seen that deceased sustained head injuries with multiple fractures, as well as to the brain, haemorrhagic contusions etc. - However, deceased survived for about one month and succumbed thereafter to injuries - Though accused used the axe which is a formidable weapon, but deceased survived for about one month - The appellants therefore cannot be said to have taken undue advantage of the same - There was also a delay of five days in lodging the FIR; the reason being, talks were still going on for settling the matter - Considering the totality of the circumstances, in our view, the act of the accused would fall under “Exception 4” to Section 300 IPC. [Para 14, 15]
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(iii) Indian Penal Code, Section 304 Part-I IPC or Part-II – Whether the nature of the offence would fall under Section 304 Part-I IPC or Part-II IPC - The third clause of Section 300 IPC consists of two parts. Under the first part, it must be proved that there was an intention to inflict the injury that is present and under the second part, it must be proved that the injury was sufficient in the ordinary course of nature to cause death.
As discussed earlier, deceased was attacked with axe on the head and he sustained multiple fractures, right fronto temporal and temporo parietal region infarct in the right fronto temporo parietal region of the brain, haemorrhagic contusions in bilateral temporal region and right parietal region. The head injury caused to Harbhajan Singh was sufficient in the ordinary course of the nature to cause death. The accused intended to inflict that injury on Harbhajan Singh which is sufficient in the ordinary course of nature to cause death. Deceased sustained head injuries with multiple fractures, right fronto temporal and temporo parietal region infarct in the right fronto temporo parietal region of the brain, haemorrhagic contusions in bilateral temporal region and right parietal region. The weapon used in the manner in which the injury was inflicted clearly establish that the appellants intended to cause the injury which is sufficient in the ordinary course of nature to cause death. Having regard to the facts and circumstances of the case, we are of the view that the conviction of the appellants under Section 302 IPC to be modified as conviction under Section 304 Part-I IPC