advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, January 9, 2014

Sec. 302 / 307 I.P.C. = Appreciation of Evidence - Gun Shot - only skin deep pellet injuries and only bone deep forehead injury - Doctor never stated that due to profusing of blood or due to injuries shock the deceased died - Doctor simply stated that died due to shock - Sessions court acquitted - High court convicted - Apex court converted the sentence from sec.302 to sec.307 of I.P.C. = M.B. SURESH … APPELLANT VERSUS STATE OF KARNATAKA …RESPONDENT = 2014 ( JANUARY - VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41132

 Sec. 302 / 307 I.P.C. = Appreciation of Evidence - Gun Shot - only skin deep pellet injuries and only bone deep forehead injury - Doctor never stated that due to profusing of blood or due to injuries  shock the deceased died - Doctor simply stated that died due to shock - Sessions court acquitted - High court convicted - Apex court converted the sentence from sec.302 to sec.307 of  I.P.C. =

  “1.   Three circular pellet wounds present over the left part of
               the fore head, each measuring 0.5 cm. in diameter bony  deep
               over an area of 4 cm. x 4 cm.


            2. Three circular pellet wounds present near the lateral end of
               the right side of the lip each measuring 0.5 cm. in diameter
               skin deep over an area of 2 cm. x 2 cm.


            3. Two pellet wounds over the left side of  the  front  of  the
               neck 0.5 cm. in diameter the muscle deep, there is  an  exit
               lacerated wound over the back of the left side of  the  neck
               piercing the skin 2 cm. x 2 cm., with lacerated edges.

            4. Three circular  pellet  wounds  present  over  the  anterior
               aspect of the right arm each 0.5 cm. in diameter muscle deep
               over an area of 1 ½” x 1 ½”.


            5. Six circular pellet wounds present over the  right  anterior
               aspect of the chest each measuring 0.5 cm. in diameter  over
               an area of 4” x 4” skin deep.

            6. A single circular pellet present in the anterior  aspect  of
               chest at the level of the 12th  rib  measuring  0.5  cm.  in
               diameter and skin deep.

            7. An incised like wound 1” x ½” in the epigastrium skin deep.

            8. A single circular pellet wound measuing 0.5 cm  in  diameter
               skin deep in the right iliac fassa.

            9. Three pellet wounds circular in shapre  each  measuring  0.5
               cm. in diameter in the anterior aspect of the upper third of
               the right thigh over an area of 6” x 4” skin deep”




      As regards the cause of death, the  doctor  has  stated  that  it  was
because of shock.  The trial court, on appreciation  of  evidence,  came  to
the conclusion that the prosecution had not been  able  to  prove  its  case
beyond all reasonable doubt and, accordingly, acquitted  them  of  both  the
charges.  However, the judgment of acquittal has been reversed by  the  High
Court in an appeal preferred by the State. =

 As regards the cause of death, the doctor  has  opined  that
it was because of shock but he has nowhere stated that it  was  due  to  the
injuries caused by the appellant.  
For holding an accused guilty of  murder,
the prosecution  has  first  to  prove  that  it  is  a  culpable  homicide.
Culpable homicide is defined under Section 299 of the Indian Penal Code  and
an accused will come under the mischief of this section only  when  the  act
done by him has caused death.  
True it is that the deceased  died  of  shock
but there is no evidence to show that the shock had occurred on  account  of
the injuries caused by the appellant.  We cannot ignore  that  the  case  of
the prosecution itself is that after the deceased sustained  injuries  while
he was being taken to the hospital for treatment, he died on the  way.   Any
mishandling of the deceased by the person carrying him to  the  hospital  so
as to cause shock cannot be ruled out.  The doctor had not stated  that  the
deceased profusely bled which could have caused shock.  In  the  absence  of
any such evidence, we are in doubt  as  to  whether  the  deceased  suffered
shock on account of the injuries sustained by him.  It  is  not  shown  that
the injuries found on the person of the deceased were of such nature,  which
in the ordinary course of nature could cause shock.  We cannot  assume  that
those injuries can cause shock in  the  absence  of  any  evidence  in  this
regard.  The doctor has not even  remotely  suggested  that  the  shock  was
caused due to the injuries sustained by the deceased.  In the face  of  what
we have observed above, we are not in a position of hold that it is the  act
of the appellant, which caused death.  Hence, we are  of  the  opinion  that
the conviction of the appellant under Section 302 of the Indian  Penal  Code
cannot be sustained.


       Next question which falls for our consideration is as to the offence
for which the appellant M.B. Suresh would be liable.  
What has  been  proved
against this appellant is that he shot at the  deceased,  but  there  is  no
evidence to show that it was the injury inflicted  by  the  appellant  which
was the cause of death.  
However, from the facts proved, there is  no  doubt
that he shot at the deceased with an intention to kill him or  at  least  he
had the knowledge that the act would cause the death.  
Accordingly,  we  are
of the opinion that the  allegations  proved  constitute  an  offence  under
Section 307 of the Indian Penal Code.  
The view which we  have  taken  finds
support from the judgment of this Court in the case of  
Bhupendra  Singh  v. State of U.P., (1991) 2 SCC 750, 
in which it has been observed as follows:

             “9.………The evidence only established that  the  first  appellant
             shot at the deceased but it is not known where the  bullet  hit
             and whether that injury caused by the said bullet  shot  caused
             the death. Even in the case of shooting by a rifle  unless  the
             evidence shows the particular injury caused  by  the  same  and
             that injury is sufficient to cause  death,  the  offence  under
             Section 302 IPC could not be said to have been made out. In the
             circumstances, therefore, we are unable to agree with the  High
             Court that the first  appellant  is  guilty  of  offence  under
             Section 302  IPC  of  causing  the  death  of  Gajendra  Singh.
             However, we are of the view that while the first appellant shot
             at the deceased there could be no doubt that either he had  the
             intention to kill him or at least he had the knowledge that the
             act could cause the death.


             10. All the witnesses also say that the shot  by  A  1  brought
             down the deceased to the ground. There could, therefore, be  no
             doubt that the shot had caused some hurt or  injury  though  we
             could not predicate what was  the  nature  of  the  injury  and
             whether that  injury  could  have  caused  the  death.  In  the
             circumstances we consider that the offence would come under the
             second  limb  or  second  part  of  Section  307,  IPC.  Though
             imprisonment for life also could be  awarded  as  sentence  for
             such an offence on the facts  and  circumstances  we  impose  a
             sentence of 10  years  rigorous  imprisonment.  Accordingly  we
             alter the conviction  under  Section  302,  IPC  as  one  under
             Section 307 IPC and sentence him to a term of 10 years rigorous
             imprisonment.”


      Accordingly, we alter the conviction of the appellant M.B. Suresh from
Section 302 to Section 307 of the Indian Penal  Code  and  sentence  him  to
undergo rigorous imprisonment for ten years.




      Mr. Basant R. has not assailed the conviction of  the  appellant  M.B.
Suresh other than Section 302 of the Indian  Penal  Code.   As  regards  the
conviction of the other accused Bhadregowda under  Section  427,  it  is  on
correct appreciation of evidence, which does not call  for  interference  in
the present appeal.


      In the result, Criminal Appeal No. 985 of 2007 is partly allowed,  the
conviction of the appellant M.B. Suresh under  Section  302  of  the  Indian
Penal Code is set aside and is altered to Section 307 of  the  Indian  Penal
Code and he is sentenced to undergo rigorous  imprisonment  for  ten  years.
However,  his  conviction  under  other  penal  provisions  is   maintained.
Sentences awarded to him  shall  run  concurrently.  
As  the  appellant  has
already remained in custody for more than 10 years, we  direct  that  he  be
set at liberty forthwith unless required in any other case.

 2014 ( JANUARY - VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41132                                

           REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 985 OF 2007

M.B. SURESH                                  … APPELLANT

                                   VERSUS


STATE OF KARNATAKA                          …RESPONDENT

                                    WITH
                        CRIMINAL APPEAL NO.21 OF 2014
             (@ SPECIAL LEAVE PETITION (CRL.) NO. 5363 OF 2007)


BHADREGOWDA                                  … APPELLANT
                                   VERSUS

STATE OF KARNATAKA                          …RESPONDENT



                               J U D G M E N T


CHANDRAMAULI KR. PRASAD,J.


      Appellant, besides his  father  Bhadregowda,  was  put  on  trial  for
offence punishable under Section 302, 114 and 427 of the Indian  Penal  Code
and Section 3 read with Section 25 and  27  of  the  Arms  Act.  
Additional
Sessions Judge, Hasan, vide judgment and order dated 24th of February,  2000
passed in Sessions Case No. 24 of 1992, acquitted both the  accused  of  all
the charges.  Aggrieved by the same, the State  of  Karnataka  preferred  an
appeal.
The High Court, vide judgment and  order  dated  9th  of  February,
2007 passed in Criminal Appeal No. 991 of  2000,  reversed  their  acquittal
and held the appellant  M.B.  Suresh  guilty  of  offence  punishable  under
Section 302 and 427 of the Indian Penal Code and Section 25 and  27  of  the
Arms Act.
However, his father  Bhadregowda  was  found  guilty  of  offence
punishable under Section 427 of the  Indian  Penal  Code  alone.  
Appellant
M.B. Suresh was sentenced to undergo life  imprisonment  for  offence  under
Section 302 of the Indian Penal  Code  and  fine  of  Rs.  5,000/-,  and  in
default to  undergo  simple  imprisonment  for  six  months.   
He  was  also
sentenced to undergo one year’s imprisonment and fine  of  Rs.  2,000/-  for
offence under Section 27 of the Arms Act.  
Both of them  were  sentenced  to
undergo simple imprisonment for one week for offence under  Section  427  of
the Indian Penal  Code  and  fine  of  Rs.  5,000/-  each.  
Sentences  were directed to run concurrently.  
Aggrieved  by  the  same,  M.B.  Suresh  has
preferred the present appeal whereas his father  Bhadregowda,  aggrieved  by
his conviction and sentence, has preferred Special Leave Petition  No.  5363
of 2007.

      Leave granted in Special Leave Petition (Criminal) No. 5363 of 2007.


      According to the prosecution there was a long standing enmity  between
the family of the informant and the accused in respect  of  land  of  Survey
No. 29/2 and 22 of Marur Village over  which  the  accused  Bhadregowda  was
claiming  tenancy  rights.  
According  to  the  prosecution,  on  19th   of
November, 1991 the deceased Chandrashekar,  along  with  his  elder  brother
Raghunath, cousin Krishnegowda, a friend Prakash and one Suresh came to  the
residence of Halegowda  in  the  Village  Marur  in  a  tractor-trailer  for
unloading the gunny bags.
After unloading the gunny  bags,  they  sent  the
tractor-trailer along  with  the  labourers  to  the  coffee  plantation  of
Ramegowda to pluck coffee seeds.   However,  the  aforesaid  persons  stayed
back at Halegowda’s house to have a cup of coffee and later, at about  10.30
A.M., while they were going to coffee estate by the side of the  wetland  of
Ramegowda, Chandrashekar was ahead of them.   At  that  time,  Chandrashekar
was shot at by the appellant M.B. Suresh, who was  standing  near  the  gate
made of bamboo.  After the first shot,  his  father  Bhadregowda  instigated
him to fire again and at that  the  appellant  M.B.  Suresh  fired  for  the
second time at the deceased and thereafter they left the place.  P.Ws. 1  to
3, namely Krishnegowda, Raghunath and Prakash respectively,  rushed  to  the
place where Chandrashekar had fallen on the ground  and  in  order  to  save
him, they carried him to the village, but unfortunately he died  because  of
the gun shot injury on their way to  the  village.   On  the  basis  of  the
report given by  Krishnegowda (PW-1), a case was registered  at  the  Bellur
Police  Station.   Post-mortem  on  the  dead  body  was  conducted  by  Dr.
Gunashekar V.C.(PW-10), who  found  nine  injuries  on  the  person  of  the
deceased caused by the appellant.


           “1.   Three circular pellet wounds present over the left part of
               the fore head, each measuring 0.5 cm. in diameter bony  deep
               over an area of 4 cm. x 4 cm.


            2. Three circular pellet wounds present near the lateral end of
               the right side of the lip each measuring 0.5 cm. in diameter
               skin deep over an area of 2 cm. x 2 cm.


            3. Two pellet wounds over the left side of  the  front  of  the
               neck 0.5 cm. in diameter the muscle deep, there is  an  exit
               lacerated wound over the back of the left side of  the  neck
               piercing the skin 2 cm. x 2 cm., with lacerated edges.

            4. Three circular  pellet  wounds  present  over  the  anterior
               aspect of the right arm each 0.5 cm. in diameter muscle deep
               over an area of 1 ½” x 1 ½”.


            5. Six circular pellet wounds present over the  right  anterior
               aspect of the chest each measuring 0.5 cm. in diameter  over
               an area of 4” x 4” skin deep.

            6. A single circular pellet present in the anterior  aspect  of
               chest at the level of the 12th  rib  measuring  0.5  cm.  in
               diameter and skin deep.

            7. An incised like wound 1” x ½” in the epigastrium skin deep.

            8. A single circular pellet wound measuing 0.5 cm  in  diameter
               skin deep in the right iliac fassa.

            9. Three pellet wounds circular in shapre  each  measuring  0.5
               cm. in diameter in the anterior aspect of the upper third of
               the right thigh over an area of 6” x 4” skin deep”




      As regards the cause of death, the  doctor  has  stated  that  it  was
because of shock.  The trial court, on appreciation  of  evidence,  came  to
the conclusion that the prosecution had not been  able  to  prove  its  case
beyond all reasonable doubt and, accordingly, acquitted  them  of  both  the
charges.  However, the judgment of acquittal has been reversed by  the  High
Court in an appeal preferred by the State.


      We have heard Mr. Basant R., learned Senior Advocate, on behalf of the
appellant whereas the respondent, State of Karnataka is represented  by  Ms.
Anitha Shenoy.  Mr. Basant submits that even  if  the  entire  case  of  the
prosecution is accepted, the same  does  not  constitute  an  offence  under
Section 302 of the Indian Penal Code.  He  submits  that  according  to  the
prosecution, the deceased died of shock but there is nothing  on  record  to
show that the shock was on account of the injury inflicted by the  appellant
M.B. Suresh.  He further submits that the prosecution has  not  brought  any
evidence to show that the deceased suffered any grievous hurt  and  in  that
view of the matter, the appellant at most can be held guilty for an  offence
under Section 324 of  the  Indian  Penal  Code.   He  points  out  that  the
appellant M.B. Suresh has already remained in jail for more than  10  years.
        Ms. Shenoy, however, contends that the very fact that  the  deceased
died within a few hours of the incident, it  has  to  be  assumed  that  the
cause of death, i.e. shock had occurred on account of the  gun  shot  injury
caused by the appellant          M.B. Suresh.


       We have bestowed our consideration to the rival  submissions  and  we
partly find substance in the submission of Mr.  Basant  R.   Dr.  Gunashekar
V.C.(PW-10) had conducted the post-mortem examination on the  dead  body  of
the deceased Chandrashekar and, as stated earlier, had found  nine  injuries
on his person out of which six were skin deep of the size  of  0.5  or  less
than 0.5 cm., three circular wounds each measuring 0.5 cm. bone  deep  found
over an area of 4 cm. x 4 cm. over the left side of the forehead as  also  a
lacerated wound of the same size over the left side  of  the  front  of  the
neck and another muscle deep wound of the same size on the right  arm.   The
doctor  conducting  the  post-mortem  examination  was  categorical  in  his
evidence that no internal injuries were found and the gun was fired  from  a
distant range.
As regards the cause of death, the doctor  has  opined  that
it was because of shock but he has nowhere stated that it  was  due  to  the
injuries caused by the appellant.  
For holding an accused guilty of  murder,
the prosecution  has  first  to  prove  that  it  is  a  culpable  homicide.
Culpable homicide is defined under Section 299 of the Indian Penal Code  and
an accused will come under the mischief of this section only  when  the  act
done by him has caused death.  
True it is that the deceased  died  of  shock
but there is no evidence to show that the shock had occurred on  account  of
the injuries caused by the appellant.  We cannot ignore  that  the  case  of
the prosecution itself is that after the deceased sustained  injuries  while
he was being taken to the hospital for treatment, he died on the  way.   Any
mishandling of the deceased by the person carrying him to  the  hospital  so
as to cause shock cannot be ruled out.  The doctor had not stated  that  the
deceased profusely bled which could have caused shock.  In  the  absence  of
any such evidence, we are in doubt  as  to  whether  the  deceased  suffered
shock on account of the injuries sustained by him.  It  is  not  shown  that
the injuries found on the person of the deceased were of such nature,  which
in the ordinary course of nature could cause shock.  We cannot  assume  that
those injuries can cause shock in  the  absence  of  any  evidence  in  this
regard.  The doctor has not even  remotely  suggested  that  the  shock  was
caused due to the injuries sustained by the deceased.  In the face  of  what
we have observed above, we are not in a position of hold that it is the  act
of the appellant, which caused death.  Hence, we are  of  the  opinion  that
the conviction of the appellant under Section 302 of the Indian  Penal  Code
cannot be sustained.


       Next question which falls for our consideration is as to the offence
for which the appellant M.B. Suresh would be liable.  
What has  been  proved
against this appellant is that he shot at the  deceased,  but  there  is  no
evidence to show that it was the injury inflicted  by  the  appellant  which
was the cause of death.  
However, from the facts proved, there is  no  doubt
that he shot at the deceased with an intention to kill him or  at  least  he
had the knowledge that the act would cause the death.  
Accordingly,  we  are
of the opinion that the  allegations  proved  constitute  an  offence  under
Section 307 of the Indian Penal Code.  
The view which we  have  taken  finds
support from the judgment of this Court in the case of  
Bhupendra  Singh  v. State of U.P., (1991) 2 SCC 750, 
in which it has been observed as follows:

             “9.………The evidence only established that  the  first  appellant
             shot at the deceased but it is not known where the  bullet  hit
             and whether that injury caused by the said bullet  shot  caused
             the death. Even in the case of shooting by a rifle  unless  the
             evidence shows the particular injury caused  by  the  same  and
             that injury is sufficient to cause  death,  the  offence  under
             Section 302 IPC could not be said to have been made out. In the
             circumstances, therefore, we are unable to agree with the  High
             Court that the first  appellant  is  guilty  of  offence  under
             Section 302  IPC  of  causing  the  death  of  Gajendra  Singh.
             However, we are of the view that while the first appellant shot
             at the deceased there could be no doubt that either he had  the
             intention to kill him or at least he had the knowledge that the
             act could cause the death.


             10. All the witnesses also say that the shot  by  A  1  brought
             down the deceased to the ground. There could, therefore, be  no
             doubt that the shot had caused some hurt or  injury  though  we
             could not predicate what was  the  nature  of  the  injury  and
             whether that  injury  could  have  caused  the  death.  In  the
             circumstances we consider that the offence would come under the
             second  limb  or  second  part  of  Section  307,  IPC.  Though
             imprisonment for life also could be  awarded  as  sentence  for
             such an offence on the facts  and  circumstances  we  impose  a
             sentence of 10  years  rigorous  imprisonment.  Accordingly  we
             alter the conviction  under  Section  302,  IPC  as  one  under
             Section 307 IPC and sentence him to a term of 10 years rigorous
             imprisonment.”


      Accordingly, we alter the conviction of the appellant M.B. Suresh from
Section 302 to Section 307 of the Indian Penal  Code  and  sentence  him  to
undergo rigorous imprisonment for ten years.




      Mr. Basant R. has not assailed the conviction of  the  appellant  M.B.
Suresh other than Section 302 of the Indian  Penal  Code.   As  regards  the
conviction of the other accused Bhadregowda under  Section  427,  it  is  on
correct appreciation of evidence, which does not call  for  interference  in
the present appeal.


      In the result, Criminal Appeal No. 985 of 2007 is partly allowed,  the
conviction of the appellant M.B. Suresh under  Section  302  of  the  Indian
Penal Code is set aside and is altered to Section 307 of  the  Indian  Penal
Code and he is sentenced to undergo rigorous  imprisonment  for  ten  years.
However,  his  conviction  under  other  penal  provisions  is   maintained.
Sentences awarded to him  shall  run  concurrently.  
As  the  appellant  has
already remained in custody for more than 10 years, we  direct  that  he  be
set at liberty forthwith unless required in any other case.




      The appeal (arising out of Special Leave Petition (Criminal) No.  5363
of 2007) preferred by the appellant Bhadregowda is, however, dismissed.




                                      ………..……………………………….J.
                           (CHANDRAMAULI KR. PRASAD)



                             …….………………………………….J.
                                         (JAGDISH SINGH KHEHAR)


NEW DELHI,
JANUARY 06, 2014





-----------------------
15


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.