LexKISHORE SINGH & ANR. versus THE STATE OF MADHYA PRADESH
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KISHORE SINGH & ANR.
v .
THE ST A TE OF MADHYA PRADESH
October 10, 1977
[P. K. GOSWAMI AND N. L. UNTWAUA, JJ.]
635
•
Supreme Court (Enlargement of
Criminal Appelltfle
Jurisdic:tion)
Act,
1970, (Criminal Procedure Code 1973 sec. 379)-Certificate under Art. 134
(l)(c) of the Constitution is unnecessary i11 a case falling 11/s. 2 of tlie 1970
Act.
A
B
·Appeal ujs. 417(1) of Criminal Procedure Code, 1898-Acwsed aC(/Uitted
of a major offence but conl'icted of a minor offence-Being still a conviction
C
albeit under a minur charge-W/1ether a case of acquittal for the purpose of.
$. 417(1) of tire Code and 11/s. 2(a) of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970.
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The appellants attacked Jawahar, the deceased, and also one Pooran :Smgn
on July 28, 1968 and cr,.used grievous injuries on the person of the deceaseel
using the 'sabbal' and the blunt side of the axe with which they were armect .
Jawahar died in the hospital on August 27,
1968 after
recoverinf trom a
surgical operation for his head injuries.
Pooran Singh also received grievous
D
injuries.
P.W. 6, the doctor, who first examined the deceased could not say
in his evidence whether the injuries were such as were "likely to cause death"
in the ordinary course of nature. P.W. 12, the doctor who performed the sur-
gical operation opined that the injuries to the skull found on the deceased were
likely to cause death in the ordinary course of nature without any treatment.
P.W. 13, the doctor who conducted the autopsy, opined that the injuries touna
on the dead body were sufficient to cause death in the
ordinary course of
nature. The appellants were tried u/s.
302/34 l.P.C. for the murder ot
E
Jawabar and u/s. 307/34 l.P.C. for attempt to murder Pooran Singh.
They
were convicted u /s. 307 / 34 I.P.C. and sentenced to rigorous imprisonment tor
five years; but acquitted of the chan~e under s.
302134 I.P.C. They were.
t however, convicted u /s. 325 r/w 34 I.P.C. and sentenced to four years n gor-
t ous imprisonment.
On appeal by the State u/s. 417(1) of the
1898 Code,
the High Court accepting the a-ppeal, set aside the order of conviction uts.
' 325/34 l.P.C. and convicted the appellants u/s. 302/34 I.P.C. and sentenceel
~them to life imprisonment. The High Court granted certificate to the appel-
~ !ants under 134(1)(c) of the Constitution.
F
Dismissing the appeal and modifying the conviction
and
sentence to that
u/s. 304 (Part l/ 34 LP.C.), the Court,
HELD : ( 1) If on appeal against a·n order of acquittal
the
High Comt
sets aside the acquittal and convicts an accused and sentences him to impn-
sonment for life or to a period not less than ten years, the accmed is entitled.
G
as of right, to appeal to this Court u/s. 2(a) of the
Act. 1970.
The High
Court is not right in holding thait a certificate is necessary under Art. 134 ( I )( c)
of tho Constitution when the appellants had a rieht u/ s. 2 of the Act.
{636 H, 637 A- DJ
(2) It is clear from the language employed both in s. 417 ( 1) of
the
Criminal Procedure Code of 1898 and s. 2(a) of the Act of .1970 that. \\lien
an accused is acquitted of a major charge, but convicted under a minor cnarge
it is still an acquittal under the major charge which can be challenged by the
Sta-te before the High Court in an appeal u/s. 417(1) of the old Code. The
sa111e principle will apply in the case of s. 2(a) of the Act, if a person has
been acquitted by the trial court under a major charge and the High Court on
appeal sets aside the :i.couittal
under the major charge a.nd
sentences the
person to imprisonmerrt for life or to a sentence of not less than ten years.
[638 A--BJ
4-951SC-I/ 77
H
A
B
c
D
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G
H
636
SUPRE~IE COURT REPORTS
[1978] 1 S.C.R.
( 3) The distinction between culpable homicide (section 299 !PC)
and
~u rde_r (sec~on 300 IPC) is ah\ays to be carefully borne in mind while deal-
ing with a clinr.Re under s. 302 JPC. Under the category of unlawful homici-
des fall both cases of culpable homicide amountini: to murder and those not
amounting to murder. . Culpable homicide is not murder when the case is
brought within the five exceptions to s. 300 I.P.C.
But, even tbouRh none of
<he said five exceptions are pleaded or prima f acie established on ·tlie evidence
on record , the prosecution must still be required under the Jaw to bring the
case under a11y of the four clauses oExcerpt shown. Read the full judgment & AI analysis in Lexace.