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)
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)
