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Saturday, July 20, 2013

Alteration of conviction under sec302 to sec. 325 IPC = .In a sudden fight a simple act of throwing stone does not comes under sec. 302 without the prosecution proving the intention and motive on the part of accused who has no previous score with the deceased = .In the course of that altercation appellant No.2 does appear to have hurled a stone towards the deceased which hit and injured him but there is nothing to show that the injury was by itself sufficient to cause death in the ordinary course nor is there anything to show that there was any pre-concert between the appellant-Manoj and his father to kill the deceased. In the absence of any evidence, let alone evidence that is reliable and cogent, to show that appellant No.2 intended to cause death or shared the intention to cause death with his son, it is difficult to sustain his conviction for murder punishable under Section 302 of the IPC. The prosecution has not even alleged a motive against appellant No.2. The motive based on illicit relationship between appellant-Manoj and the wife of the deceased, could hardly be attributed to appellant No.2, no matter, the incident started with an altercation in which even he got involved. The sudden fight between the appellants on the one hand and the deceased on the other, escalated into a tragedy for the deceased but the responsibility for the gruesome assault, cannot be shifted from Manoj who used a dangerous weapon like a Sword to fatally injury the deceased. The stone thrown by appellant No.2 may have triggered the incident to its ugly end but beyond that appellant No.2 cannot be attributed the responsibility of murder with or without the assistance of Section 34 of the IPC. Appellant No.2 can at best be held guilty of causing grievous hurt to the deceased punishable under Section 325 of the IPC. = The conviction of appellant No.2 is, however, altered from Section 302 read with Section 34 IPC to Section 325 IPC. Appellant No.2 has been in jail for nearly 3½ years now which sentence should, in our opinion, suf

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40529

                                                        REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.852 OF 2013
                (Arising out of S.L.P (Crl.) No.2597 of 2012)


Manoj and Anr.                                     …Appellants




      Versus


State of Karnataka                                 …Respondent










                               J U D G M E N T



T.S. THAKUR, J.



1.    Leave granted.

2.    This appeal by special leave arises out of a judgment and order  dated
15th November, 2011 passed by the High Court of Karnataka, Circuit Bench  at
Gulbarga, whereby Criminal Appeal No.3643 of 2009 filed  by  the  appellants
has been partially allowed upholding their  conviction  and  sentence  under
Section 302 read with Section 34 IPC, but  setting  aside  their  conviction
under Section 506 read with Section 34 of the IPC.

3.    Briefly stated the prosecution case is that the deceased Sadashiv was
unhappy about appellant No.1-Manoj visiting his house and associating  with
his wife for he suspected an illicit intimacy  between  the  two.  He  had,
therefore, forbidden Manoj from coming to his house and in case he  did  so
he had threatened to kill him.  The  prosecution  story  is  that  on  30th
August, 2006 at about 12 noon appellant No.1-Manoj and his father-appellant
No.2 assaulted the deceased while the latter was in front of a  shop  owned
by one Khilari near Babanagar bus stand within the limits of Tikota  Police
Station. While appellant No.2 is alleged to  have  assaulted  the  deceased
with a stone on his head appellant No.1-Manoj is said to have given several
blows to the deceased with a sword injuring him on his neck, head and face.
The incident, was allegedly seen  by  five  eye  witnesses,  some  of  whom
carried the injured to the Police Station from where he was referred to the
District Hospital for treatment. The deceased, however, passed away  before
reaching the hospital leading to the registration of  a  case  against  the
father and the son under Sections 302 and 506 read with Section 34  of  the
IPC.  A charge-sheet was in  due  course  filed  against  the  two  accused
persons before the jurisdictional Magistrate who committed the  accused  to
face trial before the Principal District and Sessions  Judge,  Bijapur.  At
the trial, the prosecution examined as many  as  22  witnesses  apart  from
placing reliance upon  several  documents  marked  as  Exs.P1  to  P24  and
material objects MOs1 to 12.  In their statements  recorded  under  Section
313 of the Cr.P.C., the accused persons  denied  the  charges  and  pleaded
innocence. No evidence was, however, adduced by them in defence.  The trial
Court eventually came to the conclusion that prosecution had  brought  home
the guilt of the accused persons for offences punishable under Sections 302
and 506 read with Section 34 of the IPC.

4.    The appellants were accordingly sentenced to undergo imprisonment  for
life besides a  fine  of  Rs.10,000/-  each  for  offence  punishable  under
Section 302 read with Section 34  of  the  IPC  and  a  sentence  of  simple
imprisonment for one year and a fine of Rs.2,000/- each  under  Section  506
read with Section 34 of the IPC.

5.    Aggrieved  by  their  conviction  and  the  sentence,  the  appellants
appealed to the High Court of Karnataka, Circuit Bench at Gulbarga  who  has
in terms of the judgment impugned in this  appeal  affirmed  the  conviction
and the sentence under Section 302 read with Section 34 IPC awarded  by  the
trial Court but set aside the conviction  and  sentence  under  Section  506
read with Section 34 IPC, as noticed above. The present appeal  assails  the
correctness of the said judgments and orders of the Courts below.

6.    We have heard at some length learned Counsel for the parties who  have
taken us through the evidence adduced at the trial.   Out  of  22  witnesses
examined at the trial by the prosecution,  PWs-4,  5,  7,  17  and  19  have
turned hostile. No support is available from  the  deposition  of  the  said
witnesses to the prosecution  story.  PW-8-Shrishail  Shettappa  Shelannavar
and PW-18-Mahadev have, however, fully supported  the  prosecution  version.
PW-16-Padawwa-wife  of  the  deceased  has  also  appeared  to  support  the
prosecution case. We  shall  briefly  refer  to  the  depositions  of  these
witnesses especially because the judgments delivered by the trial Court  and
the High Court have found the same to be credible and placed  reliance  upon
them for holding the appellants guilty.

7.     PW-8-Shrishail  Shettappa  Shelannavar  deposed  that  the   incident
leading to the death of the deceased-Sadashiv took place  near  a  hotel  at
Babanagar at 11:30 a.m. in the morning.  According to the  witness,  he  had
come out of the hotel (the witness means a roadside Dhaba) after taking  tea
only to find that a verbal altercation was going on between the  accused  on
the one hand and the deceased-Sadashiv on the other. It was  in  the  course
of this altercation that appellant No.2-Amagond threw a  stone  at  Sadashiv
which hit the latter on his head. On receiving the injury the deceased  fell
to the ground whereupon appellant No.1-Manoj inflicted injuries on his  neck
and other parts of the body  with  a  sword.   Seeing  the  assault  on  the
deceased, people from the hotel  vicinity  started  running  helter-skelter.
The deceased was removed from the site in a  vehicle  after  the  appellants
escaped from the place of occurrence. The witness identified the  sword  and
the stone with which the deceased was assaulted by the appellants.

8.    In cross-examination, the witness stood  by  his  version  and  stated
that he often goes to the hotel (dhaba) situate  near  Babanagar  bus  stand
whenever he does not have  to  attend  to  any  urgent  work.   The  witness
further stated that he had cordial relations with the  accused  persons  but
did not question them about the reason for  the  assault  on  the  deceased.
None of those on the spot had  come  to  the  rescue  of  Sadashiv  who  was
sitting alone before the  assault  started.   The  witness  denied  being  a
relative of the deceased Sadashiv or that he was  deposing  falsely.   There
is nothing in the cross-examination  of  this  witness  that  may  lend  any
support to the defence nor has the deposition of the witness been  shattered
in cross-examination.

9.    Coming then to the statement  of  PW-18-Mahadev,  the  witness  stated
that the deceased was his elder brother and lived four to five  houses  away
from his house at Babanagar.  The appellants were also known to the  witness
whom he identified.  The witness stated that appellant-Manoj used  to  visit
the house of Sadashiv giving rise to a suspicion in his mind that  his  wife
had  illicit  intimacy  with  said  appellant.   The  deceased  had   warned
appellant-Manoj in that regard and asked him not to visit his  house.   Such
warnings were given to the deceased nearly fifteen days before the  date  of
the incident despite which the appellant-Manoj had  come  to  the  house  of
Sadashiv two days  prior  to  the  occurrence  whereupon  the  deceased  had
threatened Manoj that he would kill him if he visited again.

10.   On the date of occurrence at about  12  noon  the  witness  and  PW-8-
Shrishail  Shettappa  Shelannavar  were  sitting  in  front  of  the   dhaba
belonging to one Allisab after taking tea.  The deceased was  at  that  time
sitting in front of the dhaba of one Suresh  and  smoking  a  beedi  on  the
opposite side of the road.  It was then that  the  appellants  came  to  the
spot.  Manoj was armed with a sword while appellant No.2-his  father  had  a
stone. He threw the stone towards the deceased that hit  him  on  his  head.
Because of the injury the deceased fell down whereafter the  Appellant-Manoj
gave to the deceased  four  to  five  blows  with  the  sword  that  he  was
carrying. The witness and Shrishail Shettappa Shelannavar  tried  to  rescue
the victim but Manoj threatened to kill them if they intervened.  After  the
incident, the appellants ran away from the spot thinking that  Sadashiv  was
dead.  The witness then brought water for the deceased to save his  life  as
he was bleeding profusely from the head and neck.  They  took  the  deceased
to the Tikota Police Station in  a  Tom  Tom  vehicle  wherefrom  they  were
referred to a District Hospital at  Bijapur  with  a  constable  deputed  to
accompany them.  While going to the hospital the deceased succumbed  to  his
injuries whereupon they returned to the Police Station  to  lodge  a  report
about the incident.  The witness identified the sword and the stone used  by
the appellants in the course of the incident.

11.   We may also at this stage refer to the  deposition  of  PW-16-Padawwa-
wife of the deceased. This witness has  supported  the  prosecution  version
inasmuch as she stated that the appellant-Manoj used to visit her  house  to
talk to her on account of which her husband entertained  a  suspicion  about
her fidelity. The deceased had admonished the appellant and  asked  him  not
to come to his house and if he did so he would kill him.   On  the  date  of
the occurrence the deceased left his house for the bus stand in the  morning
but around 12:30 p.m. some people residing  in  the  neighbourhood  informed
her that the appellant- Manoj had assaulted the deceased with a sword  while
appellant No.2 had inflicted an injury upon his  head  with  a  stone.   She
rushed to the spot to find that the deceased was alive and water  was  being
poured in his mouth by the  people  present  including  Mahadev,  Gopal  and
Shrishail who took the deceased to Tikota Police Station. The  witness  also
accompanied them.

12.   The medical evidence adduced in the case comprises the  deposition  of
Dr. Nandini who conducted the post mortem examination on  the  deceased  and
opined that the death was due to hemorrhagic shock secondary to  hypovolemic
shock.  The following external injuries were found on the body  of  deceased
which were certified by him to be ante-mortem:

           “(a) Cut lacerated wound of about 4 x 1  cm  deep  present  over
           right angle of eye frontal bone fracture seen.

           (b) Crush injury on left cheek 3’x half inch deep.

           (c) Cut lacerated wound over left angle of mouth 4’ x half  inch
           deep.

           (d) Cut lacerated wound 5 cm present over  extensor  surface  of
           wrist on medial side.

           (e) CLW of about 5 x 2 and half inch present over upper neck  of
           leftside, C2 vertebra fracture present.”




13.   The witness opined that these injuries were sufficient to cause  death
in the ordinary course of nature. The witness further stated that while  the
crush injury noted by him on the dead body could be caused with  stone  MO.2
the other injuries could be caused by MO.1 Hatiyar (sword).  The FSL  report
(Ex.P.19) which was also pressed into service  by  prosecution  proved  that
the blade portion of sword (MO.1) and stone (MO.2) were blood stained.

14.   There is, in our opinion, no manner of doubt that the three witnesses
referred to earlier have clearly testified about  the  sequence  of  events
leading to the death of  Sadashiv  which  version  has  been  found  to  be
reliable by the Courts below. We see no reason to strike a discordant  note
for there is hardly any infirmity in  the  depositions  referred  to  above
which have stood the test of lengthy cross-examination by the defence. That
the deceased suspected his wife’s fidelity and  an  illicit  intimacy  with
appellant-Manoj is sufficiently proved from the deposition of the widow  of
the deceased, Shreshiala and Mahadev the other two  witnesses  referred  to
above. It is also evident from the said depositions that the  deceased  had
forbidden the appellant-Manoj from coming to his house  and  threatened  to
kill him in case he did so again. This happened shortly before the incident
in question. The mutual relationship between the deceased and the appellant-
Manoj was thus embittered.  On the date of the occurrence the  presence  of
the deceased around the bus stand where the occurrence took place has  also
been sufficiently proved by the deposition of the witnesses  including  the
police witnesses who have prepared the site plan and made seizures from the
spot. So, also the   presence of the two eye witnesses on the spot  at  the
time of occurrence in a place like a bus stand is in  no  way  abnormal  to
cast any doubt about their credibility. The medical evidence adduced at the
trial too supports the ocular version. The doctor has clearly reported that
the crush injury on the face could be caused by the stone (MO.2) while  the
other injury could have been inflicted by the sword  which  appellant-Manoj
was allegedly carrying at the time of the incident.  The presence of  human
blood on these two objects sufficiently supports the prosecution case  that
the said weapons were used for the commission of the offence.

15.   Learned Counsel for the appellants, however, argued that even  though
appellant-Manoj was alleged to have used the sword to inflict  injuries  on
the deceased, the role played by appellant No.2 was restricted to  throwing
a stone towards the deceased.  Even when the stone  had  caused  an  injury
there was nothing to show  that  it  was  intended  to  kill  the  deceased
especially when it is not the case of the prosecution that even  after  the
stone had hit the deceased the assault was continued by appellant No.2 with
or without the help of appellant No.1-Manoj.  There is  considerable  merit
in that submission. Even according to PW-8-Shrishail Shettappa  Shelannavar
when he stepped out of the dhaba, he found a verbal  altercation  going  on
between the deceased and the  accused  persons.
In  the  course  of  that
altercation appellant No.2 does appear to have hurled a stone  towards  the
deceased which hit and injured him but there is nothing to  show  that  the
injury was by itself sufficient to cause death in the ordinary  course  nor
is there anything to show  that  there  was  any  pre-concert  between  the
appellant-Manoj and his father to kill the deceased. 
In the absence of  any
evidence, let alone evidence that is reliable  and  cogent,  to  show  that
appellant No.2 intended to cause death or shared  the  intention  to  cause
death with his son, it is difficult to sustain his  conviction  for  murder
punishable under Section 302 of the  IPC.  The  prosecution  has  not  even
alleged a motive against  appellant  No.2.  
The  motive  based  on  illicit
relationship between appellant-Manoj and the wife of  the  deceased,  could hardly be attributed to appellant No.2, no  matter,  the  incident  started with an altercation in which even he got involved. 
The sudden fight between
the appellants on the one hand and the deceased  on  the  other,  escalated into a tragedy for the deceased but the  responsibility  for  the  gruesome assault, cannot be shifted from Manoj who used a dangerous  weapon  like  a Sword to fatally injury the deceased.  
The stone thrown by  appellant  No.2
may have triggered the incident to its ugly end but beyond  that  appellant No.2 cannot be attributed the responsibility of murder with or without  the assistance of Section 34 of the IPC. 
Appellant No.2 can  at  best  be  held guilty of causing grievous hurt to the deceased  punishable  under  Section 325 of the IPC.

16.   In the result,
 we dismiss this appeal insofar  as  appellant-Manoj  is
concerned and uphold his conviction under Section 302 IPC and  the  sentence awarded to him. 
The conviction of appellant No.2 is, however,  altered  from
Section 302 read with Section 34 IPC to Section  325  IPC.   Appellant  No.2 has been in jail for nearly 3½ years  now  which  sentence  should,  in  our opinion, suffice. 
Appellant No.2 is accordingly  sentenced  to  imprisonment
already undergone  by  him.  
He  shall  be  released  from  custody  if  not
otherwise required in connection with any other case.  
The sentence of  fine
imposed upon the said appellant shall however remain unaltered.



                                                             ………………...…………J.
                                                               (T.S. THAKUR)



                                                             …………………...………J.
                                                          (GYAN SUDHA MISRA)
New Delhi
July 5, 2013

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