IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1835 OF 2010
SATISH KUMAR ….. APPELLANT(S)
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
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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.
- 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
- 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’.
- 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.
- 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.
- A bruise reddish in colour, 10 cm x 1 cm in size
was present on upper border of the right buttock
- 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.
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- 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.”
- 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.
- There was contusion of posterior side of left elbow
joint, 3×2 cm. On dissection fracture of humerous
- The contusion on right buttuck, 10×1.2 cm, on
dissection, infiltration of blood was present.
- A contusion on right knee joint front 4.5 x 2 cm on
dissection, infiltration of blood was present.
- A contusion on right upper back region, 4×1 cm in
- 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.
- There was dislocation of first cervical vertebral joint
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
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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
- 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
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doubt in view of the ambiguity and contradictions must go the
- 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.
- 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.
- We would, therefore, partly allow the present appeal by converting
the conviction of the appellant from Section 302 to Section 304
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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.
OCTOBER 3, 2019.
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