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
“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
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