DHIRENDRA KUMAR @ DHIROO versus STATE OF UTIARAKHAND

Citation: [2015] 2 S.C.R. 903 · Decided: 26-02-2015 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Dismissed

Judgment (excerpt)

[2015] 2 S.C.R. 903 
DHIRENDRA KUMAR @ DHIROO 
v. 
STATE OF UTIARAKHAND 
(Criminal Appeal No. 1848 of 2008) 
FEBRUARY 26, 2015 
[DIPAK MISRA AND ADARSH KUMAR GOEL, JJ.] 
A 
B 
Penal Code, 1860: s.302 - Murder by hitting with stone C 
on head - Conviction uls.302 by courts below - Held: 
Evidence of witnesses with regard to earlier incident of 
altercation between deceased and the accused-appellant 
furnishing motive to the accused - There was previous 0 
enmity - Evidence of eye witnesses supporting the 
prosecution case and found reliable - It was not case of 
sudden fight or sudden provocation or in the heat of 
passion- There was enough evidence to prove that 
appellant was responsible for causing death of the E 
deceased - The injuries on the accused did not establish 
free fight - Nature of injuries on the deceased suggested 
intention to cause death or fatal injury on the vital part of 
the body with full force sufficient to cause death - View 
taken by courts below a possible view - No interference F 
called for. 
Constitution of India, 1950: Article 136 - Scope of. 
Dismissing the appeal, the Court 
HELD: 1. Re-appreciation of evidence is not called 
for in an appeal under Article 136 of the Constitution 
in absence of patent illegality or perversity merely 
903 
G 
H 
904 
SUPREME COURT REPORTS 
[2015) 2 S.C.R. 
A · because a different view could also be taken. In the 
instant case, both the courts below found the evidence 
of PW 3 and PW 4 to be reliable. Evidence of PW 7 
widow of the deceased was also believed with regard 
to the earlier incident furnishing motive to the accused. 
B PW 2 also corroborated th~ version given by the eye 
witnesses by stating that he had seen the accused and 
deceased together just before the occurrence. The 
defence version of the accused was not found to be 
reliable. The view taken by the courts below was 
C certainly a possible view for accepting the evidence led 
by the prosecution in support of its version. Thus, there 
was no reason to reject the prosecution ver:sion. There 
was enough evidence to prove that the accused 
0 
appellant was responsible for causing the death of the 
deceased. [Para 9] [908-C-F] 
2. The nature of injuries suffered by the deceased 
did not show that the injury was suffered accidentally. 
There were multiple wounds and the face was 
E disfigured. The bones are pulverized. The brain matter 
was flowing out from all wounds. Seen in the light of 
previous motive, the accused can be said to have 
caused the death by acting in a cruel manner. In a plea 
F of sudden fight, the burden to show that the case falls 
under Exception 4 to Section 300 l.P.C. is on the 
accused. No doubt even without leading positive, the 
plea can be substantiated from the material on record. 
In the present case, there was nothing on record to 
G establish free fight. Plea of the accused was of false 
implication. The circumstances taken as a whole would 
lead to only possible inference that the accused has 
inflicted the fatal injury with a view to cause death. The 
injuries on the head were caused with full force. There 
H was prior enmity. It was not a case of any sudden 
DHIRENDRA KUMAR @ DHIROO v. STATE OF 
905 
UTTARAKHAND 
quarrel or sudden provocation or in the heat of passion. A 
[Paras 12 and 13] [909-G-H; 910-A-C] 
3. Question whether a case fell under Section 302 
or 304 has to be decided from case to case depending 
on factors like the circumstances in which the incident 8 
takes place, the nature of weapon used and whether 
weapon was carried or was taken from the spot and 
whether the assault was aimed on vital part of the body; 
the amount of force used; whether the deceased 
participated in the sudden fight; whether there was any c 
previous enmity; whether there was any sudden 
provocation; whether the attack was in the heat of 
passion; whether the person inflicting the injury took 
any undue advantage or acted in a cruel or unusual 
manner. The list of circumstances is not exhaustive and · 0 
there may be several other circumstances with 
reference to individual cases. Applying these tests to 
the instant case, the defence on behalf of the appellant 
is not acceptable. It was a case of previous enmity and 
the nature of injury suggested intention to cause death E 
or a fatal injury on a vital part of the body with full force 
sufficient to cause death. In these circumstances, there 
was no ground to interfere. [Para 15] [910-G-H; 911-A-
C] . 
, Ankush

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