whether the conviction of the appellant for murder under Section 302 of the Code is justified and correct, or it should be converted to Section 304 Part I of the Code. =As per the dying declaration of the deceased, the appellant Satish Kumar had given ‘Lathi’ blows on his waist and below the right knee whereas Dhajja Ram had given ‘Lathi’ blows on his thigh/knee of left leg and left hand.Subsequently, condition of Shamsher had deteriorated and he was referred to Post Graduate Institute of Medical Sciences, Rohtak where he died on 21st March, 2002.As per the post mortem, the head injury was sufficient cause of death in ordinary course of nature.As noticed above, the dying declaration of the deceased had referred to ‘Lathi’ blows which were given on his legs, left hand and waist and did not refer to any ‘Lathi’ blow on his head. The Criminal Appeal No. 1835 of 2010 Page 4 of 7 medico-legal report Ex-PC prepared by Dr. Jai Mala (PW-3) also does not refer to any head injury. Dr. R.K. Nandal (PW-4) who had conducted the post mortem had testified that there was infiltration of blood in the whole brain with clotted blood 80-100 cc present at the base of skull. There was dislocation of first cervical vertebral joint. All other organs were found healthy and pale. The cause of death was the head injury.Clearly, therefore, there is inconsistency between the dying declaration, medico-legal report Ex-PC and the post mortem report Ex-PG. Further, cross-examination of Dr. R.K. Nandal (PW4) exposits contradiction as to whether the injury in question was sufficient to cause death in normal course of nature. Benefit of Criminal Appeal No. 1835 of 2010 Page 5 of 7 doubt in view of the ambiguity and contradictions must go the appellant.In view of the aforesaid, we do not think that the condition and mandate of third clause of Section 300 of the Code that the bodily injury intended to be inflicted was sufficient in ordinary cause of nature to cause death has been proved and established beyond doubt. Pertinently, it is under this clause alone that the present appellant has been convicted for murder under Section 302 read with Section 300 of the Code and sentenced to life imprisonment. Accordingly, the conviction of the appellant Satish Kumar is converted from Section 302 to Part I of Section 304 of the Code. Other convictions are maintained and not interfered.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1835 OF 2010
SATISH KUMAR ….. APPELLANT(S)
VERSUS
THE STATE OF HARYANA ….. RESPONDENT(S)
J U D G M E N T
SANJIV KHANNA, J.
The impugned judgment dated September 19, 2008 passed
by the Punjab & Haryana High Court affirms conviction of the
present appellant Satish Kumar and one Dhajja Ram for murder of
Shamsher under Section 302 read with Section 34 of the Indian
Penal Code (hereinafter referred to as the “Code”), for which the
appellant has been sentenced to imprisonment for life and fine of
Rs. 10,000/- with default stipulation to undergo further rigorous
imprisonment for two years. The impugned judgment also affirms
conviction of Satish Kumar and Dhajja Ram under Section 506
read with Section 34 of the Code for which they have been
sentenced to rigorous imprisonment for one year and fine of Rs.
1,000/- each with default stipulation to undergo rigorous
Criminal Appeal No. 1835 of 2010 Page 1 of 7
imprisonment for 3 months and under Section 323 read with
Section 34 of the Code for which they have been sentenced to
undergo rigorous imprisonment for six months and fine of Rs.
500/- each, and in default to undergo further rigorous
imprisonment for one month.

  1. It appears that Dhajja Ram has not assailed the impugned
    judgment passed by the Punjab & Haryana High Court. In fact, it
    was stated before us that perhaps he has been released on grant
    of remission.
  2. As far as involvement of the present appellant in the offences
    under Sections 302, 506 and 323 read with Section 34 of the
    Code is concerned, we find no ground and reason to interfere with
    the findings recorded by the High Court affirming the findings of
    the trial Court that Dhajja Ram and Satish Kumar had given ‘Lathi’
    blows to deceased Shamsher as was stated by the deceased to
    Surender (PW-2) on his way to the hospital and to ASI Sri Kishan
    (PW-9), which statements have been relied upon as dying
    declaration. Bharpoor (PW-7) and Sadhu Ram (PW-8), who had
    gone to ease themselves, on hearing alarm raised by the
    deceased Shamsher had returned and witnessed the incident.
    They have also deposed on the involvement of the appellant.
    They along with Surender (PW-2) have also deposed as to the
    Criminal Appeal No. 1835 of 2010 Page 2 of 7
    reason and motive for the violence, as the appellant and Dhajja
    Ram had threatened deceased Shamsher on account of their
    objections to the relations of a woman belonging to ‘Dahiya Gotra’
    with a man of ‘Ohlan Gotra’.
  3. The primary question which arises for consideration is whether the
    conviction of the appellant for murder under Section 302 of the
    Code is justified and correct, or it should be converted to Section
    304 Part I of the Code.
  4. As per the dying declaration of the deceased, the appellant Satish
    Kumar had given ‘Lathi’ blows on his waist and below the right
    knee whereas Dhajja Ram had given ‘Lathi’ blows on his
    thigh/knee of left leg and left hand. The medico-legal report Ex-PC
    prepared by Dr. Jai Mala (PW-3) on 20th March, 2002 at about
    9:15 a.m., had observed the following injuries on Shamsher, when
    he was alive:
    “1. A bruise reddish bluish in colour, 3 cm x 1cm in
    size was present on posterior aspect of left forearm
    in middle part along with swelling. No bleeding was
    present. Tenderness was present. Advised for Xray left forearm, A.P. lateral view.
  5. A bruise reddish in colour, 10 cm x 1 cm in size
    was present on upper border of the right buttock
    region.
  6. A bruise 4 cm x 1 cm in size, reddish in colour was
    present below right knee along with diffused
    swelling involving right knee. No bleeding was
    present. Tenderness was present. Advised X-ray
    right knee, A.P and later view.
    Criminal Appeal No. 1835 of 2010 Page 3 of 7
  7. A bruise reddish in colour 4 cm x ½ cm in size was
    present on right upper back region. Advised X-ray
    chest right side.”
  8. Subsequently, condition of Shamsher had deteriorated and he
    was referred to Post Graduate Institute of Medical Sciences,
    Rohtak where he died on 21st March, 2002. Dr. R.K. Nandal (PW4) had conducted autopsy of Shamsher on March 22, 2002 at
    about 12:05 p.m. and his post-mortem report Ex-PG, records:
    “1. A contusion on left forearm, mid part posterior side,
    on dissection, infiltration of blood in surrounding
    tissues was present.
  9. There was contusion of posterior side of left elbow
    joint, 3×2 cm. On dissection fracture of humerous
    was seen.
  10. The contusion on right buttuck, 10×1.2 cm, on
    dissection, infiltration of blood was present.
  11. A contusion on right knee joint front 4.5 x 2 cm on
    dissection, infiltration of blood was present.
  12. A contusion on right upper back region, 4×1 cm in
    size.
  13. On dissection of head, there was infiltration of
    blood in whole the brain with clotted blood present
    at the base of skull, 80-100 cc.
  14. There was dislocation of first cervical vertebral joint
    present.”

As per the post mortem, the head injury was sufficient cause
of death in ordinary course of nature.

  1. As noticed above, the dying declaration of the deceased had
    referred to ‘Lathi’ blows which were given on his legs, left hand
    and waist and did not refer to any ‘Lathi’ blow on his head. The
    Criminal Appeal No. 1835 of 2010 Page 4 of 7
    medico-legal report Ex-PC prepared by Dr. Jai Mala (PW-3) also
    does not refer to any head injury. Dr. R.K. Nandal (PW-4) who had
    conducted the post mortem had testified that there was infiltration
    of blood in the whole brain with clotted blood 80-100 cc present at
    the base of skull. There was dislocation of first cervical vertebral
    joint. All other organs were found healthy and pale. The cause of
    death was the head injury. Importantly, Dr. R. K. Nandal (PW-4)
    during the course of cross-examination had stated as under:
    “Before post mortem, only police papers of inquest
    proceedings before me with initial summary. Bed Head
    ticked was not produced before me. It is not necessary
    that just after dislocation of first cervical patient would
    die within very short period. Death is also not certain in
    case of dislocation of first cervical. I am MBBS and
    M.D (Gynaecologist). It is incorrect that detection of
    dislocation of first cervical is not possible without X-ray.
    Volunteered it is possible in post mortem examination.
    It is incorrect to say that only Neurologist expert can
    find out its dislocation of cervical and not any other
    medical officer. It is correct that first cervical is
    surrounded by a ring of fibrous tissues. Dislocation
    can also be due to sudden severe jerk. It is incorrect
    that my opinion regarding cause of death may not be
    correct.”
  2. Clearly, therefore, there is inconsistency between the dying
    declaration, medico-legal report Ex-PC and the post mortem
    report Ex-PG. Further, cross-examination of Dr. R.K. Nandal (PW4) exposits contradiction as to whether the injury in question was
    sufficient to cause death in normal course of nature. Benefit of
    Criminal Appeal No. 1835 of 2010 Page 5 of 7
    doubt in view of the ambiguity and contradictions must go the
    appellant.
  3. In view of the aforesaid, we do not think that the condition and
    mandate of third clause of Section 300 of the Code that the bodily
    injury intended to be inflicted was sufficient in ordinary cause of
    nature to cause death has been proved and established beyond
    doubt. Pertinently, it is under this clause alone that the present
    appellant has been convicted for murder under Section 302 read
    with Section 300 of the Code and sentenced to life imprisonment.
    Accordingly, the conviction of the appellant Satish Kumar is
    converted from Section 302 to Part I of Section 304 of the Code.
    Other convictions are maintained and not interfered.
  4. Turning to the question of sentence for the offence under Section
    304 Part I, we find that the appellant was released on bail vide
    order dated July 22, 2011, which refers to Jail Custody Certificate
    dated September 16, 2010 that the appellant had undergone
    sentence of seven years on the date of issue. The appellant has
    been on bail since then. We do not think that the appellant should
    be again incarcerated and sent to jail.
  5. We would, therefore, partly allow the present appeal by converting
    the conviction of the appellant from Section 302 to Section 304
    Criminal Appeal No. 1835 of 2010 Page 6 of 7
    Part I of the Code for imprisonment to the period already
    undergone. The appellant would, however, be liable to pay a fine
    of Rs. 1,000/- in default of which he would undergo simple
    imprisonment for one month. As stated above, the conviction and
    sentence of the appellant for other offences is maintained.
    ………………………………..J.
    (INDU MALHOTRA)
    ………………………………..J.
    (SANJIV KHANNA)
    NEW DELHI;
    OCTOBER 3, 2019.
    Criminal Appeal No. 1835 of 2010 Page 7 of 7