* Author
[2024] 4 S.C.R. 328 : 2024 INSC 294
Subhash @ Subanna & Ors.
v.
State of Karnataka Ministry of Home Affairs
(Criminal Appeal No. 328 of 2012)
10 April 2024
[Sudhanshu Dhulia and Prasanna B. Varale,* JJ.]
Issue for Consideration
Matter pertains to the correctness of the order passed by the
High Court convicting and sentencing accused no. 1 u/s. 302, and
accused no. 2 and 4 u/ss. 324 and 326 IPC.
Headnotes
Penal Code, 1860 – ss. 302 and 324 – Murder – Voluntarily
causing hurt by dangerous weapon or means – Right of
private defence, if applicable – On facts, morning incident
wherein quarrel between the complainant and accused on
account of blocking the way and accused persons hurled
abuses to her – In the evening, the complainant informed her
father about the incident, the father-victim went to the house
of accused persons to enquire, wherein he was assaulted by
the accused persons, resulting in his death – Complainant,
her brother and mother followed the victim and witnessed the
attack – Accused no. 1 convicted and sentenced for offence
punishable u/s. 302, and accused no. 2 and 4 u/ss. 324 and
326 and others u/s. 323, by the courts below – Interference:
Held: On the assessment of the evidence of the prosecution,
it reveals that though there was a verbal exchange between
the victim and the accused persons, but not in the form of a
provocation by the victim to the accused – Evidence clearly
show that that there was a dispute on account of the pathway;
that the victim was alone, he went to the house of the accused
persons to make an inquiry, but he had not entered in the house
and on the contrary, accused persons armed with stick, chopper
and stone attacked the victim; and that neither the complainant
nor her brother carried any weapon – Evidence of the injured
eyewitnesses shows that the intention of the accused was to do
away with the victim – If right of private defence is applied and
the facts are appreciated, it is clear that the victim was unarmed,
[2024] 4 S.C.R. 329
Subhash @ Subanna & Ors. v.
State of Karnataka Ministry of Home Affairs
whereas the accused persons who were armed led a brutal attack
on the victim by stick, by koita and stone – High Court rightly
upheld the judgment and order of trial court, thus, does not call
for interference. [Paras 28-34, 36]
Case Law Cited
Darshan Singh v. State of Punjab and Another [2010]
1 SCR 642 : AIR (2010) SC 1212; Virsa Singh v. State
of Punjab [1958] 1 SCR 1495 : AIR (1958) SC 465 –
referred to.
List of Acts
Penal Code, 1860.
List of Keywords
Murder; Right of private defence; Provocation; Injured eyewitnesses.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 328
of 2012
From the Judgment and Order dated 20.04.2011 of the High Court of
Karnataka at Gulbarga in CRLA No. 3601 of 2010
Appearances for Parties
Ms. Kiran Suri, Sr. Adv., S.J. Amith, Ms. Vidushi Garg, Dr. Mrs. Vipin
Gupta, Advs. for the Appellants.
D. L. Chidananda, Ravindera Kumar Verma, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Prasanna B. Varale, J.
1. By way of present appeal, the appellants challenged the judgment and
order dated 20th April, 2011 passed by the High Court of Karnataka
in Criminal Appeal No. 3601/2010, thereby confirming the conviction
and sentence of the Trial Court in Sessions Case No.213/2009 which
had convicted appellants (accused Nos. 1, 2 and 4) under Section
302 of IPC and sentenced them to life imprisonment. Additionally
the High Court also upheld the conviction and sentence of appellant
330 [2024] 4 S.C.R.
Digital Supreme Court Reports
Nos.1 and 3 (accused Nos 2 & 4) under Sections 324 and 326 of
IPC as awarded by Trial Court.
2. The First Information Report No.18/2009 was lodged at Kamalpur
Police Station, Gulbarga against the accused persons for commission
of offences under Section 143, 147, 148, 504, 323, 324 and 302
r/w Section 149 of Indian Penal Code, on the basis of complaint
submitted by Kumari Sangeeta D/o Mahadevappa Natikar. The
Complaint refers to the incident occurred on 18th February, 2009 at
7.00 a.m. (we may refer to this incident as a prequel to the fateful
incident which occurred on the same day in the evening). It was
submitted in the report that a day earlier i.e., on 17th February, 2009,
uncle of the complainant brought fire wood which was dumped on
the way, blocking the path of the complainant. Thus, Sangeeta tried
to reach the said path to throw dust, at that time she found that her
pathway was covered with the fire wood. As such, she demanded
an explanation from her uncle Subhash. She raised question as
to why the way is blocked, to which her uncle Subhash, his wife
and his children responded by abusing Sangeeta. Sangeeta then
returned to her house. Her father, mother and brothers by that time
had already left for the fields. In the evening, her father and brothers
i.e. Mahadevappa, Hanumantha and Sharanappa, respectively were
apprised about the incident which took place in the morning. Her
father Mahadevappa then proceeded towards the house of uncle
– Subhash and made an enquiry as to why the way was blocked.
Subhash and the other family members started abusing Mahadevappa
and then they assaulted Mahadevappa with a stick on his forehead
and face, causing grievous injuries to Mahadevappa.
3. Dattatrey (appellant No.2), who was carrying chopper laid an assault
on the forehead and head of Mahadevappa, causing grievous injuries
to Mahadevappa. Digambar (appellant No.3) threw a big stone below
the right knee of Mahadevappa, resulting in grievous blood injuries.
Then Digambar picked up a stone in his hand and hit Mahadevappa
on his face causing injury.
4. Sangeeta, her brother Sharanappa and mother who had followed
Mahadevappa, saw the attack on Mahadevappa and younger
brother of Sangeeta made an attempt to intervene in the attack,
who was in turn attacked by Digambar, receiving injuries on his
hand and palm. On hearing hue and cry, residents of the area
[2024] 4 S.C.R. 331
Subhash @ Subanna & Ors. v.
State of Karnataka Ministry of Home Affairs
namely; Parameshwar S/o Ningappa Pujari and other neighbours
rushed to the spot. When Mahadevappa was brought to his house,
he was unconscious as he had received grievous injuries. Uncle
of Sangeeta, Shivasharanappa along with other persons namely;
Sharanappa and Parameshwar Poojari arranged for a jeep and
Mahadevappa was admitted in the Government Hospital, Gulbarga.
The Doctors of the Gulbarga Hospital declared Mahadevappa dead
and his body was sent for autopsy.
5. On lodging of the First Information report, the Investigating Agency
was set in motion. By completing the necessary formalities of the
investigation, such as recording the statement of witnesses, drawing
“panchanama”; spot mahazar, seizure mahazars etc. and by collecting
the medical evidence in the form of post mortem report issued by
the concerned medical officer, charge sheet came to be filed against
the accused persons.
6. Accused persons pleaded not guilty and were subjected to trial.
7. On appreciation of the evidence, the learned Sessions Judge
convicted the appellants and sentenced them for the offence
punishable under Section 302 to undergo life imprisonment and also
pay fine of Rs. 10,000/- each (in default S.I. for two years each).
Accused nos. 2 and 4 were also convicted for offence punishable
under Section 324 of Indian Penal Code and sentenced to undergo
R.I. for one year and to pay fine of Rs. 1,000/- each (in default S.I.
for six months each). Accused 2 and 4 were also convicted for
offence punishable under Section 326 of Indian Penal Code and
were sentenced to undergo R.I. for three years each and to pay
fine of Rs. 2,000/- each (in default S.I. for one year each). Whereas
accused No.3, 5 and 6 were found guilty for the offences punishable
under Section 323 of Indian Penal Code and sentence to pay fine
of Rs. 500/- each (in default S.I. for two months each). The entire
sentence imposed against accused 2 and 4 was directed to run
concurrently.
8. Accused Nos. 3, 5 and 6 accepted the judgment and order of the
Sessions Court as they have not filed any appeal to the High Court
against the judgment and order of Sessions Court, whereas accused
Nos.1, 2 and 4 filed their appeal to the High Court of Karnataka. As
stated above, the High Court of Karnataka upheld and confirmed
the order of the Trial Court.
332 [2024] 4 S.C.R.
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9. The learned counsel for the appellants submitted that assuming
that the prosecution was successful in establishing the death of
the deceased and the presence of the appellants on the spot, as
well as the active role played by the appellants; the entire material
collected by the prosecution shows that it was the deceased who
came to the house of the accused and then there was a quarrel and
verbal exchange between them. The act of the accused persons,
the verbal exchange and the provocation by the deceased and his
family members prompted the appellants to exercise the right of
their private defence.
10. Learned counsel for the appellants further submits that the evidence
collected by the prosecution also shows that the incident was a
reaction of the appellants to a provocation by the deceased and his
family members. The element of intention of the appellants is not
established by the prosecution. Thus, the submission of the learned
counsel for the appellants was that the act of the appellants would
not attract Section 302 of Indian Penal Code against them and the
offences would be at the most, an offence under Section 304 part
2 of Indian Penal Code.
11. Per contra, learned counsel representing the State of Karnataka
supported the judgment and order passed by the High Court of
Karnataka, upholding the judgment and order of the Sessions Court.
12. We have gone through the record. The prosecution in support of
its case, examined as many as 31 witnesses and is supported by
P.W.18 Ramalingappa, P.W.19 Smt. Mallamma, P.W.20 Shobhavati,
P.W.21 Sangeeta, P.W.22 Sharanappa, P.W.23 Hanmanth, P.W.24 –
Prameshwar, P.W.25 Shivasharanappa and P.W.12 Dr. Balachandra
Joshi. The majority of other witnesses, who are neighbours of the
deceased Mahadevappa, have turned hostile.
13. P.W.17 Sareppa, turned hostile and he has not supported the
prosecution on the aspect of dispute between the complainant’s
family and the accused family. He supports the case of prosecution
that land of deceased and accused are abutting to each other.
14. P.W.18 Ramalingappa supports the version of complainant –
Sangeeta, that to reach the land of deceased Mahadevappa, they
have to pass through the land of the accused and there was a dispute
between Mahadevappa and appellant No.1 on the issue of way.
[2024] 4 S.C.R. 333
Subhash @ Subanna & Ors. v.
State of Karnataka Ministry of Home Affairs
15. Now, to establish the death of Mahadevappa being a homicidal one,
the prosecution mainly draws support from the testimony of P.W.12
Dr. Balachandra Joshi who in his testimony before the Trial Court
states that he was working as Senior specialist since June, 2006 in
Government Hospital, Gulbarga. On 19.02.2009 he had conducted
post mortem on the dead body of Mahadevappa in between 12.30
p.m., to 2.00 p.m., and he noticed the following external injuries:
1. “Cut Lacerated wound on the forehead between the
eye brows measuring 6 x 2 x bone deep underlying
major bones fractured.
2. Lacerated wound on the face left side at the angle
of the mouth, margins irregular underlying upper jaw
bone fracture and loosening of teeths left side cheek
bone also fractured.
3. Cut lacerated wound on chin measuring 5 x 3 cm
x bone deep, evidence of bleeding was present,
underlying mandible bone was fractured.
4. Cut lacerated wound on the frontal region of the scalp
and forehead in the middle measuring 10 x 3 cm x
bone deep clot formation present.
5. Cut lacerated wound scalp on left side frontal region
measuring 10 cm x 4 cm x bone deep clot formation
present.
6. Cut lacerated wound on scalp on the top slightly to
the right side 12 cm x 4 cm x bone deep, evidence
of haemorrhage or bleeding present clot formation
present.
7. Punctual wound on the right side of leg below the
right knee measuring 6 x 5 x 3 cm underlying leg
bone fracture.
8. Fracture of 3rd, 4th, 5th ribs on the anterior side on
right side of chest wall. All the above injuries are
ante mortem in nature.”
16. He further states that, in his opinion cause of death is shock and
haemorrhage to the brain due to injury and multiple fracture injuries.
334 [2024] 4 S.C.R.
Digital Supreme Court Reports
17. Nothing could be elicited in his cross-examination and P.W.12 Dr
Balachandra Joshi stood firm on the aspect of the homicidal death
of Mahadevappa.
18. As stated above, even the appellants are not seriously disputing
the homicidal death of Mahadevappa. Insofar as their presence and
active role played by them is concerned, P.W.21 Sangeeta provides
all the necessary details in her testimony about the morning incident
i.e., prequel and about the actual incident which took place in the
evening. Though she was subjected to a detailed cross-examination,
her version remains to be unshaken and appears to be a truthful
version of the incident.
19. Similarly, P.W.19 Smt. Mallamma, who is the daughter of the
deceased Mahadevappa (elder sister of Sangeeta), P.W.22
Sharanappa (s/o Mahadevappa and brother of Sangeeta), P.W.23
Hanumanth (brother of Sangeeta, Mallamma and Sharanappa), also
supported the case of prosecution on the aspect of the presence
and active role played by the appellants causing the homicidal
death of Mahadevappa.
20. P.W.29 – Dr. Basawaswamy, supported the case of the prosecution
on the aspect of Sharanappa and Sangeeta receiving the injuries.
21. Dr. Basawaswamy in his testimony states that on 18.02.2009 he
examined Sharanappa s/o Mahadevappa who was injured. He came
to the hospital with a history of assault and on his examination Dr.
Basawswamy noticed the following injuries:
1. “2 x 1 cm incised wound over the dorsal aspect of right
little finger bleeding present, margins are clean cut.
2. Swelling present over the dorsa aspect of the right
hand.
3. Abrasion over the dorsal aspect of right forearm size
3 x 3 cm.
Taken X ray of right hand, crack fracture of 5th
metacarpal bone.
Wound No.2 is pre4vious in nature, other wounds
are simple in nature might have been cause by
sharp and blunt object. Age of the injury about less
than 4 hours.”
[2024] 4 S.C.R. 335
Subhash @ Subanna & Ors. v.
State of Karnataka Ministry of Home Affairs
22. Similarly, on the very same day, he examined another injured by
name Sangeeta D/o Mahadevapa and noticed the following injuries:
1. “Tenderness present over the left elbow.
2. Contusion over the posterior aspect of lower 1/3rd of
left arm measuring 3 x 2 cm.
3. Tenderness present over the left palm.
4. Tenderness present over the posterior aspect of left
shoulder.
23. Thus, version of Dr. Basawaswamy supports the case of the
prosecution on the aspects i.e., the presence of the prosecution
witnesses Sharanappa and Sangeeta on the spot and their attempt
to interfere to save their father Mahadevappa from the attack of the
accused/appellants, and receiving injuries in that process.
24. Now, although the learned counsel for the appellants vehemently
submitted before us that the act of the appellants was in exercise of
the right of private defence and as such, offence under Section 302
of Indian Penal code is not attracted against them, we are, however,
unable to accept this submission on appreciation of the evidence.
25. P.W.21 the star witness of the prosecution i.e., Kumari Sangeeta – the
complainant and injured eyewitness, clearly states about the incident
(prequel) which took place in the morning i.e., a quarrel between
herself and accused No.2 initially and then abuses by accused
Nos.1 and 3 to her. Then she states that on return of her father
Mahadevappa to their home in the evening, she apprised him about
the morning incident, after which Mahadevappa then proceeded to
house of the accused to make inquiry about the incident and that he
was immediately followed by her and her younger brother after which
she speaks about the role played by each of the accused–appellants.
26. She states that appellant No.1 thrashed her father with stick on his
head, appellant No.2 assaulted her father with chopper (koita) on his
head and forehead, then accused No.4 threw a stone on his right
knee and he picked up another stone and punched it on the mouth
of her father. Her mother Shobhavati and her brothers also stated
about the active role played by the accused–appellants.
27. P.W.25 Shivasharanappa though he had not witnessed the evening
incident, but he stated about the morning incident i.e., the quarrel
336 [2024] 4 S.C.R.
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between the complainant and accused on account of blocking the
way.
28. As stated above, on careful scrutiny of the version of the witnesses,
it clearly shows that though it was the submission of the counsel for
the appellants that the deceased himself went to the house of the
accused and picked up a quarrel with the accused persons upon
provocation by the deceased, the appellants exercised their right
of private defence, yet on the assessment of the evidence of the
prosecution, we were unable to find any such provocation by the
deceased Mahadevappa.
29. The evidence clearly show that Mahadevappa was alone, he went
to the house of appellants to make an inquiry, but he had not
entered in his house and on the contrary, accused No.1 Subhash
s/o Shivaray Natikar thrashed the deceased using stick on the head
of Mahadevappa. Accused No. 2 – Dattatrey s/o Subhash Natikar
thrashed the head of Mahadevappa using chopper. Using a dangerous
weapon like chopper (koita), he assaulted Mahadevappa on his
head and forehead. As if this was not sufficient enough, accused
No.4 –Digambar threw a stone on the right knee of Mahadevappa
and then picking up another stone hit it on the face of deceased.
30. The prosecution evidence further reveals that neither Sharanappa
nor Sangeeta were carrying any weapon. Even though the evidence
further reveals that there was a verbal exchange, but there is nothing
to show that this verbal exchange was in the form of a provocation
by the deceased to the appellants.
31. Though the learned counsel for the appellants raised this ground
before this Court, no such ground is raised either at the time of
examination of the witnesses or even in 313 statements of the
appellants, i.e. at the trial stage.
32. The learned counsel for the appellants also made an attempt to submit
before us that the prosecution failed to show that the appellants were
carrying any intention to lay an assault on the deceased Mahadevappa
as Mahadevappa himself went to the house of appellants.
33. We are unable to accept even this submission. The evidence clearly
shows that there was a dispute on account of the way on 18.02.2009
leading to quarrel between P.W.21-Sangeeta and accused No.2
initially and then accused No.1 and 3 abused Sangeeta. Mahadevappa
[2024] 4 S.C.R. 337
Subhash @ Subanna & Ors. v.
State of Karnataka Ministry of Home Affairs
proceeded to the house of accused persons for making an enquiry,
as he was appraised by Sangeeta when he returned to their home.
The evidence also shows that accused no.1 was armed with stick,
accused no.2 was armed with chopper and accused no.4 picked up
the stones lying on the spot.
34. P.W.22 Sharanappa clearly states in his deposition before the Court
that the appellant no.2 who was armed with chopper threatened his
father by uttering the words “I shall finish you” and then assaulted
his father with the chopper. Thus, the evidence of these injured
eyewitnesses clearly shows that the intention of the accused person
was to do away with Mahadevappa. It may not be out of place to
state here that the High Court while considering the submission on
this aspect of exercising their right of private defence referred to the
judgement in the case of Darshan Singh v. State of Punjab and
Another1 relied on by the learned counsel for the appellant. The
apex Court in this judgment observed in para 33 as follows:
“The basic principle underlying the doctrine of right of private
defence is that when an individual or his property is faced
with a danger and immediate aid from the State machinery
is not readily available, that individual is entitled to protect
himself and his property. The right of private defence is
available only to one who is suddenly confronted with
the necessity of averting an impending anger not of selfcreation. That being so, the necessary corollary is that the
violence which the citizen defending himself or his property
is entitled to use must not be unduly disproportionate to the
injury which is sought to be averted or which is reasonably
apprehended and should not exceed its legitimate purpose.”
Now, if this principle is applied and the facts of the present case are
appreciated, it is clear that the victim Mahadevappa was unarmed,
whereas the accused persons who were armed led a brutal attack
on the victim Mahadevappa by stick, by koita and stone.
35. The learned advocate for the State was justified in placing reliance
on the judgment of this Court in the matter of Virsa Singh v. State
of Punjab.2
The relevant paras are as follows:
1 [2010] 1 SCR 642 : AIR 2010 SC 1212
2 [1958] 1 SCR 1495 : AIR 1958 SC 465
338 [2024] 4 S.C.R.
Digital Supreme Court Reports
"13. In considering whether the intention was to inflict
the injury found to have been inflicted, the enquiry
necessarily proceeds on broad lines as, for example,
whether there was an intention to strike at a vital
or a dangerous spot, and whether with sufficient
force to cause the kind of injury found to have been
inflicted. It is, or course, not necessary to enquire
into every last detail as, for instance, whether the
prisoner intended to have the bowels fall out, or
whether he intended to penetrate the liver or the
kidneys or the heart. Otherwise, a man who has no
knowledge of anatomy could never be convicted, for,
if he does not know that there is a heart or a kidney
or bowels, he cannot be said to have intended to
injure them. Of course, that is not the kind of enquiry.
It is broad-based and simple and based on common
sense: the kind of enquiry that “twelve good men
and true” could readily appreciate and understand.
14. To put it shortly, the prosecution must prove the
following facts before it can bring a case under
Section 300 “thirdly”.
15. First, it must establish, quite objectively, that a bodily
injury is present.
16. Secondly, the nature of the injury must be proved;
These are purely objective investigations.
17. Thirdly, it must be proved that there was an intention
to inflict that particular bodily injury, that is to say, that
it was not accidental or unintentional, or that some
other kind of injury was intended.
18. Once these three elements are proved to be present,
the enquiry proceeds further and.
19. Fourthly, it must be proved that the injury of the type
just described made up of the three elements set
out above is sufficient to cause death in the ordinary
course of nature. This part of the enquiry is purely
objective and inferential and has nothing to do with
the intention of the offender.
[2024] 4 S.C.R. 339
Subhash @ Subanna & Ors. v.
State of Karnataka Ministry of Home Affairs
20. Once these four elements are established by the
prosecution (and, of course, the burden is on the
prosecution throughout) the offence is murder under
Section 300 “thirdly”. It does not matter that there was
no intention to cause death. It does not matter that
there was no intention even to cause an injury of a
kind that is sufficient to cause death in the ordinary
course of nature (not that there is any real distinction
between the two). It does not even mater that there is
no knowledge that an act of that kind will be likely to
cause death. Once the intention to cause the bodily
injury actually found to be present is proved, the rest
of the enquiry is purely objective and the only question
is whether, as a matter of purely objective inference,
the injury is sufficient in the ordinary course of nature
to cause death. No one has a licence to run around
inflicting injuries that are sufficient to cause death
in the ordinary course of nature and claim that they
are not guilty of murder. If they inflict injuries of that
kind, they must face the consequences: and they
can only escape if it can be shown, or reasonably
deduced, that the injury was accidental or otherwise
unintentional (emphasis supplied).”
36. Accordingly, considering all the aspects, we are of the opinion that
the High Court of Karnataka committed no error in upholding and
confirming the judgment and order of Trial Court/Sessions Court, we
see no ground to interfere, the appeal thus fails and is dismissed.
37. The order dated 31.07.2018 of this Court by which bail was granted
to the appellants is hereby recalled. The appellants are directed to
surrender before the Trial Court within a period of four weeks from
today.
Headnotes prepared by: Nidhi Jain Result of the case:
Appeal dismissed.
