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Thursday, October 1, 2015

the High Court has altered conviction from section 302 to section 304 Part = whether the accused intended to inflict injuries so as to cause the death. Even the circumstances to take the case out of the purview of section 302 have also not been discussed by the High Court. Simpliciter, it has been observed that a careful scrutiny of the entire evidence has been made but we find from the judgment that no such exercise has been done. Mere statement in the judgment to that effect is not enough. Evidence is not only required to be mentioned in the judgment but its evidentiary value has to be assessed carefully. No such exercise has been made.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINA APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.1246  OF 2015
               (Arising out of S.L.P. [Crl.] No.1621 of 2014)



State of Rajasthan                                 … Appellant
Vs.

Prakash @ Gajendra                           … Respondent



                               J U D G M E N T



ARUN MISHRA, J.



1.    Heard learned counsel for the parties.

2.    Leave granted.

3.    On being aggrieved by the judgment and order  dated  29.5.2013  passed
by the High Court of Judicature for Rajasthan at  Jodhpur,  the  appeal  has
been preferred by the State of Rajasthan. The trial court has convicted  the
respondent for commission of an offence under section  302 and  section  458
IPC and sentenced  to life imprisonment with a fine  of  Rs.2,000/-  and  RI
for seven years and a fine of  Rs.1,000/-  respectively  for  the  aforesaid
offences. While maintaining conviction and sentence under section  458  IPC,
the High Court has altered conviction from section 302 to section  304  Part
II and sentenced him to the period already undergone, i.e.  8  years  and  7
months.

4.    The prosecution case, in short, is that on  22.10.2004  Prakash  Salvi
inflicted injuries on deceased Mahendra by knife. On raising a hue and  cry,
Naresh, Adesh, Mukesh  and  Tej  Singh  Balla  reached  the  spot  and  took
Mahendra to hospital. On 27.10.2004, the deceased succumbed to his  injuries
and  the  offence  was  converted  to  section  302/458  IPC  from  sections
307/324/458 IPC.

5.    The High Court in the impugned judgment has observed  that  death  was
not caused immediately. The incident took place on 22.10.2004 whereas  death
took place on 27.10.2004. The dying declaration was recorded by  the  Police
and not by the Magistrate and a careful scrutiny of the  evidence  makes  it
clear that it is a case of culpable homicide not  amounting  to  murder.  As
such, the conviction has been altered from section 302 to section  304  Part
II IPC.

6.    We have heard learned counsel for the  parties  at  length.  The  only
discussion with respect to conversion of the offence  from  section  302  to
section 304 Part II IPC is at page 9 of the impugned judgment. The  relevant
portion of the judgment is quoted below :-

“Further, we have examined the factual aspect of the matter and  found  that
the injuries upon the body of the deceased were although serious  in  nature
but death was not  immediately  caused  because  occurrence  took  place  on
22.10.2004 and injured died on 27.10.2004  during  which  statement  of  the
deceased was recorded by the police and not by  the  Magistrate.  Therefore,
our opinion is that the prosecution has proved its case with regard  to  the
occurrence but careful scrutiny of the entire evidence makes it  clear  that
it is a case of  culpable  homicide  not  amounting  to  murder.  Therefore,
convicting of the appellant for offence under section  302,  I.P.C.  is  not
sustainable in the eye of law. The case against the  accused-appellant  does
not travel beyond offence under Section 304 Pt.-II, I.P.C.”



7.    It is crystal clear  that  the  High  Court  has  not  considered  the
evidence, neither the nature of injuries nor  method  and  manner  in  which
they were inflicted. The High Court  has  also  not  considered  the  aspect
whether the accused intended to inflict injuries so as to cause  the  death.
Even the circumstances to take the case out of the purview  of  section  302
have also not been discussed by the High Court.  Simpliciter,  it  has  been
observed that a careful scrutiny of the entire evidence has  been  made  but
we find from the  judgment  that  no  such  exercise  has  been  done.  Mere
statement in the judgment to that effect is  not  enough.  Evidence  is  not
only required to be mentioned in the judgment but its evidentiary value  has
to be assessed carefully. No such exercise has been made.

8.    Thus, we have no hesitation  to  set  aside  the  judgment  and  order
passed by the High Court. While allowing appeal, we remit the matter to  the
High Court to decide the same again after hearing the parties in  accordance
with law. It is made clear that we have not expressed  any  opinion  on  the
merits of the case. The High Court is required to reconsider the  matter  in
accordance with law and to decide the  appeal  de  novo  after  hearing  the
parties. The respondent-accused shall remain on bail for a  period  of  four
weeks from the date of the judgment during which time he  will  be  free  to
apply to the High Court for regular bail.




                                             …………………………J.
                                             (Kurian Joseph)





New Delhi;                                   ………………………..J.
September 23, 2015.                          (Arun Mishra)

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