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

Sec. 498 A, Sec.304 B and Sec.302 of I.P.C. = Circumstantial evidence -Extra -judicial confession high court negatived - Four portions of house - benefit of doubt possible who strangulated the deceased -Sec.302 I.P.C. not applicable as death occurred in first floor-Sec.498 -A of I.P.C. proved - Death occurred with in 7 years - Presumption comes Sec.304 B of I.P.C. as both are wife and husband living together - Sentence modified from sec.302 I.P.C. to under sec.304 B I.P.C. = Donthula Ravindranath @ Ravinder Rao …Appellant Versus State of Andhra Pradesh …Respondent = 2014 ( January - Vol -1 ) judis.nic.in/S.C./filename=41131

    Sec. 498 A, Sec.304 B and Sec.302 of I.P.C. = Circumstantial evidence -Extra -judicial confession high court negatived - Four portions of house - benefit of doubt possible who strangulated the deceased -Sec.302 I.P.C. not applicable as death occurred in first floor-Sec.498 -A of I.P.C. proved - Death occurred with in 7 years - Presumption comes Sec.304 B of I.P.C. as both are wife and husband living together - Sentence modified from sec.302 I.P.C. to under sec.304 B I.P.C. =

PW14 opined that the  cause  of
death is “shock due to asphyxia  on  account  of  strangulation”.   
The
learned counsel relied upon various passages from  Modi’s  Textbook  of
Medical Jurisprudence in a bid to establish that having regard  to  the
nature of the external injuries on the body of the deceased, the  death
of Jyotsna is  a  result  of  hanging  but  not  strangulation  thereby
creating doubt about the credibility of the prosecution case.

 [1]    We notice from the evidence of doctor that he is of the opinion  that
asphyxia can occur either because of strangulation or  hanging.  Only  by  a
very close scrutiny of the symptoms the  exact  cause  of  asphyxia  can  be
identified.
We must at the outset state that one of  the  five  circumstances
relied upon by the prosecution to establish the guilt of the  appellant
i.e. the alleged extra-judicial confession made by the appellant before
PW9  is  disbelieved  by  the  High  Court.    
Therefore,   only   four
circumstances remain, they are: 
(i) the appellant and the deceased were
husband and wife; and 
(ii) they were living in the same  house.   These
facts are not even disputed by the appellant.  
The  third  circumstance
relied upon by the prosecution is that the deceased was harassed by the
appellant for additional dowry.  
The said  circumstance  is  abundantly
established by the evidence of PW1 to PW4.
The fourth circumstance that the death of Jyotsna in the opinion[1]  of
the doctor was caused by strangulation (we do not  propose  to  examine
the correctness of the opinion) even  if  believed  need  not,  in  our
opinion, lead to the conclusion that it is only the accused who must be
held responsible for such strangulation.  The  building  in  which  the
accused and the deceased were living consists of  four  portions  where
others were also living.


Even if we give the  benefit  of  the  above  mentioned  doubt  to  the
appellant, the appellant cannot escape his liability for a charge under
section 304B IPC which creates a legal fiction.  All the ingredients of
section 304B are satisfied in the  instant  case,  that  the  death  of
Jyotsna occurred within seven years of her marriage the death  occurred
otherwise  than  under  normal  circumstances  and  that  Jyotsna   was
subjected to harassment which amounted to cruelty within the meaning of
section 498A IPC of which charge the appellant is also found guilty  by
both the courts below.

  In the light of the abovementioned circumstances,  the  appellant
in our opinion must be found guilty for an offence under  section  304B
IPC.  He was infact charged at trial for the said offence  though  both
the courts below failed to record any  finding  in  this  regard.   The
offence under section 304B IPC is punishable with the  sentence  for  a
term which may not be less than seven years but  which  may  extend  to
imprisonment for life.  We, therefore,  alter  the  conviction  of  the
appellant for an offence under section 302  IPC  to  an  offence  under
section 304B  IPC  and  reduce  the  sentence  to  the  period  already
undergone (we are informed that the appellant is in jail for  almost  a
decade).  He may be released forthwith if not  required  in  any  other
case.  The judgment under appeal is modified accordingly.

  2014 ( JANUARY - VOL-1 ) JUDIS.NIC.IN / S.C./FILENAME = 41131

                                                      Non-reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.594 OF 2009


Donthula Ravindranath @ Ravinder Rao         …Appellant
            Versus
State of Andhra Pradesh                            …Respondent





                               J U D G M E N T



Chelameswar, J.

1.    This is an appeal against the  judgment  of  the  High  Court  of
Andhra Pradesh in Criminal Appeal No.203 of 2005 dated 5th  June  2007.
By the said judgment, the High Court confirmed the judgment  dated  8th
February 2005 in Sessions Case No.23 of 2004 on the file of the V-Addl.
Sessions Judge (Fast Track Court) at Nizamabad.

2.    The sole appellant herein along with his parents was tried for the
offences under section 304B and 498A IPC.
Apart from that the appellant
herein was tried for an offence under section 302 IPC simplicitor while
all the three persons were charged and  tried  for  the  offence  under
section 302 read with section 109 IPC.  
While the sole appellant herein
was convicted for the offence under section 302 as well as section 498A
IPC, the trial court did not record any finding against  the  appellant
herein insofar as the charge under section 304B IPC is concerned.   
The other two accused were acquitted of all the charges.

3.    Aggrieved by the conviction and sentence, the  appellant  carried
the matter in appeal to  the  High  Court  unsuccessfully.   Hence  the
present appeal.

4.    The wife of the appellant by name Jyotsna died on 21st May  2003.
The deceased Jyotsna  and  the  appellant  married  sometime  in  1998,
therefore, the death of Jyotsna took place within seven years from  the
date of marriage.
The prosecution case rested  on  the  circumstantial
evidence.  
The prosecution relied on five  circumstances  to  establish
the guilt of the appellant herein, they are — 
(i) the deceased and  the
appellant were wife and husband; 
(ii) they  were  living  in  the  same
house; 
(iii) the deceased was harassed by the appellant for  additional
dowry; 
(iv) according to the  medical  evidence  though  the  body  was
allegedly found hanging it was infact  a  case  of  strangulation;  and
lastly an extra-judicial confession was made by A-1 before PW9.

5.    To establish the above circumstances the prosecution examined  as
many as 16 witnesses.  PW1, PW2 and PW4 are the parents and brother  of
the deceased respectively.  PW5 and PW6 are neighbours  and  PW7  is  a
resident of the locality who according to the prosecution saw the  dead
body hanging by a lungi to the roof.  PW14 is the doctor who  conducted
post mortem examination on the dead body on 22.5.2003.    PW15  is  the
Sub-Inspector of Police/Station House Officer attached  to  the  V-Town
Police Station, Nizamabad, Andhra Pradesh, who initially  registered  a
crime under section 304B IPC on the report (Ex.P1) made by PW1.   PWs1,
2 and 4 were examined to prove the factum of harassment  for  dowry  by
the appellant herein.  PW3 is the husband of the sister of the deceased
who was also examined for the purpose of  establishing  the  harassment
for dowry.  Their evidence remains  unimpeached  and  both  the  courts
below believed their version insofar as the appellant is concerned.

6.    PW7 is a resident of the locality where  the  appellant  and  the
deceased  lived.   According  to  the  prosecution,  he  went  to   the
appellant’s house at 8.30 a.m. on the fateful day in order  to  collect
some amount due from A-1.  There he found the  deceased  hanging  by  a
lungi to the roof on the first floor of the building.  With the hope of
saving the life, PW7 disentangled the dead body  and  laid  it  on  the
floor only to find that the lady  was  already  dead.   Thereafter,  he
alongwith the help of another person Bhumaiah  (who  is  not  examined)
shifted the dead body to the ground floor of the building.

7.    According to  the  evidence  of  PW1,  some  unknown  person  had
informed by telephone on the fateful day in the morning hours that  the
deceased was ill.  Thereafter, PW1 passed on the  information  to  PW4,
who was residing in the same town (Nizamabad) as the appellant and  the
deceased, and asked him to ascertain the state of affairs.  Thereafter,
PW1 along with other members of the family rushed to Nizamabad only  to
find the dead body of his daughter.

8.    The learned counsel for the appellant argued  that  there  is  no
iota of evidence to establish that the appellant caused  the  death  of
Jyotsna.  He submitted that even if the offence under section  498A  is
proved in the absence of any  clinching  evidence  that  the  appellant
caused the death of Jyotsna  it  would  not  be  safe  to  convict  the
appellant for the offence under section 302 IPC as the  requirement  of
criminal law is that  the  prosecution  must  establish  the  guilt  of
accused beyond all reasonable doubt and in  a  case  of  circumstantial
evidence  the  chain  of  circumstances  is  so  complete   that   they
collectively point only to the guilt of the accused without leaving any
scope for doubt.    The  learned  counsel  made  elaborate  submissions
impeaching the credibility of the  evidence  of  PW14  the  doctor  who
conducted the post mortem examination.
 PW14 opined that the  cause  of
death is “shock due to asphyxia  on  account  of  strangulation”.   
The
learned counsel relied upon various passages from  Modi’s  Textbook  of
Medical Jurisprudence in a bid to establish that having regard  to  the
nature of the external injuries on the body of the deceased, the  death
of Jyotsna is  a  result  of  hanging  but  not  strangulation  thereby
creating doubt about the credibility of the prosecution case.

9.    On the other hand, the learned counsel for the State argued  that
the concurrent finding of fact  resulting  in  the  conviction  of  the
appellant under section 302 IPC may  not  be  interfered  with  in  the
absence of any illegality in the judgment under appeal.

10.   We must at the outset state that one of  the  five  circumstances
relied upon by the prosecution to establish the guilt of the  appellant
i.e. the alleged extra-judicial confession made by the appellant before
PW9  is  disbelieved  by  the  High  Court.    
Therefore,   only   four
circumstances remain, they are: 
(i) the appellant and the deceased were
husband and wife; and 
(ii) they were living in the same  house.   These
facts are not even disputed by the appellant.  
The  third  circumstance
relied upon by the prosecution is that the deceased was harassed by the
appellant for additional dowry.  
The said  circumstance  is  abundantly
established by the evidence of PW1 to PW4.
The fourth circumstance that the death of Jyotsna in the opinion[1]  of
the doctor was caused by strangulation (we do not  propose  to  examine
the correctness of the opinion) even  if  believed  need  not,  in  our
opinion, lead to the conclusion that it is only the accused who must be
held responsible for such strangulation.  The  building  in  which  the
accused and the deceased were living consists of  four  portions  where
others were also living.


Even if we give the  benefit  of  the  above  mentioned  doubt  to  the
appellant, the appellant cannot escape his liability for a charge under
section 304B IPC which creates a legal fiction.  All the ingredients of
section 304B are satisfied in the  instant  case,  that  the  death  of
Jyotsna occurred within seven years of her marriage the death  occurred
otherwise  than  under  normal  circumstances  and  that  Jyotsna   was
subjected to harassment which amounted to cruelty within the meaning of
section 498A IPC of which charge the appellant is also found guilty  by
both the courts below.

11.   In the light of the abovementioned circumstances,  the  appellant
in our opinion must be found guilty for an offence under  section  304B
IPC.  He was infact charged at trial for the said offence  though  both
the courts below failed to record any  finding  in  this  regard.   The
offence under section 304B IPC is punishable with the  sentence  for  a
term which may not be less than seven years but  which  may  extend  to
imprisonment for life.  We, therefore,  alter  the  conviction  of  the
appellant for an offence under section 302  IPC  to  an  offence  under
section 304B  IPC  and  reduce  the  sentence  to  the  period  already
undergone (we are informed that the appellant is in jail for  almost  a
decade).  He may be released forthwith if not  required  in  any  other
case.  The judgment under appeal is modified accordingly.


                                                          ..………………………………….J.
                                                    (RANJANA PRAKASH
DESAI)

                                                         ...………………………………….J.
                                                 (J. CHELAMESWAR )
New Delhi;
January 06, 2014.
-----------------------
[1]    We notice from the evidence of doctor that he is of the opinion  that
asphyxia can occur either because of strangulation or  hanging.  Only  by  a
very close scrutiny of the symptoms the  exact  cause  of  asphyxia  can  be
identified.

-----------------------
8

2014 judis.nic.in/s.c/filename=41130 = KICHHA SUGAR COMPANY LIMITED TH. GEN. MANG. … APPELLANT VERSUS TARAI CHINI MILL MAJDOOR UNION, UTTARKHAND …RESPONDENT=Industrial Dispute - Govt. order to pay Hill Development allowance to its employees working at specified hill areas at the rate of 15% of the basic wage - Worker demanded to pay not only on basic wage but also on other allowances - Tribunal decided in favour of workers, High court confirmed - Apex court set aside the Orders - Holding that Basic wage does not include other allowances =

                                           2014 judis.nic.in/s.c/filename=41130 
Industrial Dispute - Govt. order to pay Hill Development allowance to its employees working at specified hill areas at the rate of 15% of the basic wage - Worker demanded to pay not only on basic wage but also on other allowances - Tribunal decided in favour of workers, High court confirmed - Apex court set aside the Orders - Holding that Basic wage does not include other allowances =
 The Government of Uttar Pradesh, by its order dated  5th  of  January,
1981, had  directed  for  payment  of  Hill  Development  Allowance  to  its
employees working at specified hill areas at the rate of 15%  of  the  basic wage.  
The  workmen
demanded calculation of 15% of the said allowance  by  taking  into  account the amount paid as overtime, leave  encashment  and  all  other  allowances.

Whether the exclusion of payment of overtime, leave encashment,
             bonus  and  retaining  allowance  while  calculating  the  Hill
             Development Allowance by the Employer is legal  and  justified?
             If not, to what relief,  the  workmen  concerned  are  entitled
             to get?

=

   The
expression ‘basic wage’ has not been explained  by  the  Government  in  the
order granting Hill Development Allowance.  It has been defined  only  under
Section 2(b) of the Employees’ Provident Funds and Miscellaneous  Provisions
Act, 1952.  Therefore, we have to see what meaning is to be  given  to  this
expression  in  the  present  context.   Section  2(b)  of  the   Employees’
Provident Funds  and  Miscellaneous  Provisions  Act,  1952  defines  ‘basic
wages’ as follows:


             “2. Definitions. - In this Act, unless  the  context  otherwise
             requires, -
             (a)    xxx      xxx        xxx


             (b) “basic wages” means all emoluments which are earned  by  an
             employee while on duty or on leave or on holidays with wages in
             either case in accordance with the terms  of  the  contract  of
             employment and which are paid or payable in cash  to  him,  but
             does not include-


                  i) the cash value of any food concession;


                 ii) any dearness  allowance  that  is  to  say,  all  cash
                     payments by whatever name called paid to  an  employee
                     on account of a rise in the cost of living, house-rent
                     allowance, overtime allowance, bonus commission or any
                     other similar allowance payable  to  the  employee  in
                     respect of his employment or  of  work  done  in  such
                     employment;

                iii) any presents made by the employer;”




      According   to   http://www.merriam-webster.com    (Merriam    Webster
Dictionary) the word ‘basic wage’ means as follows:


             “1. A wage or salary based on the cost of living and used as  a
             standard for calculating rates of pay


             2. A rate of pay for a standard work period exclusive  of  such
             additional payments as bonuses and overtime.”

 It also finds support from a judgment of this Court  in  the  case  of
Manipal Academy of Higher Education v. Provident Fund  Commr.,(2008)  5  SCC
428 in which it has been held as follows:

             “10. The basic principles as laid down in Bridge & Roofs  case,
             AIR 1963 SC 1474, on a combined reading of Sections 2(b) and  6
             are as follows:


             (a) Where the wage is universally, necessarily  and  ordinarily
             paid to all across the board such emoluments are basic wages.


             (b) Where the payment is available  to  be  specially  paid  to
             those who avail of the opportunity is not basic wages.  By  way
             of example it was held that overtime allowance,  though  it  is
             generally in force  in  all  concerns  is  not  earned  by  all
             employees of a concern. It is also earned  in  accordance  with
             the terms of the contract of employment but because it may  not
             be earned by all employees of a concern, it  is  excluded  from
             basic wages.


             (c) Conversely, any payment by way of a  special  incentive  or
             work is not basic wages.”




      In view of what we have observed above, the  impugned  award  and  the
judgment of the High Court are illegal and cannot be allowed to stand.


      In the result, we allow this appeal,  set  aside  the  award  and  the
judgment of the High Court  and  hold  that  overtime  allowance  and  leave
encashment are not fit to be taken into account  for  calculating  the  Hill
Development Allowance.  No costs.

                                                      REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION


                         CIVIL APPEAL NO.77 OF 2014
            (@SPECIAL LEAVE PETITION (CIVIL.) NO. 16382 OF 2009)


KICHHA SUGAR COMPANY LIMITED
TH. GEN. MANG.                               … APPELLANT

                                   VERSUS


TARAI CHINI MILL MAJDOOR
UNION, UTTARKHAND                                  …RESPONDENT



                               J U D G M E N T



CHANDRAMAULI KR. PRASAD, J.



      Kichha Sugar Company Limited aggrieved by  the  order  dated  24th  of
June, 2008 passed by the Uttarakhand High  Court in WPMS No. 3717  of  2001,
affirming the award dated 12th of November, 1992 
directing payment  of  Hill Development Allowance after taking  into  account  the  amount  received  as
“leave encashment and overtime wages”,  has  preferred  this  special  leave
petition.


      Leave granted.


      Facts lie in a narrow compass;


      The Government of Uttar Pradesh, by its order dated  5th  of  January,
1981, had  directed  for  payment  of  Hill  Development  Allowance  to  its
employees working at specified hill areas at the rate of 15%  of  the  basic wage.  
Kichha Sugar  Company  Limited,  the  appellant  herein  (hereinafter
referred to as ‘the employer’),  being  a  unit  of  a  subsidiary  of  U.P.
Government  Corporation,  adopted  the  same   and   started   paying   Hill
Development Allowance at the rate of 15% of the  basic  wage.  
The  workmen
demanded calculation of 15% of the said allowance  by  taking  into  account the amount paid as overtime, leave  encashment  and  all  other  allowances.
When the employer did not agree to the calculation of the  Hill  Development
Allowance as suggested by  the  workmen,  a  dispute  was  raised.   
It  was
referred to conciliation and on its failure,  the competent Government  made
the following reference.


             Whether the exclusion of payment of overtime, leave encashment,
             bonus  and  retaining  allowance  while  calculating  the  Hill
             Development Allowance by the Employer is legal  and  justified?
             If not, to what relief,  the  workmen  concerned  are  entitled
             to get?


      It is common ground that while calculating Hill Development Allowance,
the employer has not taken into account any other  amount  including  amount
received as bonus, leave encashment, retaining allowance or overtime  wages.
 It is the claim of the workmen that 15% of the Hill  Development  Allowance
is to be calculated and paid after taking into  account  the  payments  made
under the aforesaid headings.   The  employer  repudiated  their  claim  and
according to it, the workmen shall be entitled to 15% of the basic wages  as
Hill Development Allowance.
 The Industrial  Tribunal  gave  opportunity  to
both the employer and the workmen to file their claim and  produce  material and on consideration of the same, gave award dated 12th  of  November,  1992 directing  the  employer  to  “give  Hill  Development  Allowance  to  their permanent and  regular  workers  on  the  amount  received  regarding  leave
encashment and overtime wages.”  However, the Tribunal observed  that  “Hill Development Allowance shall not be payable on bonus and retaining  allowance
or  on  any  other  allowances”.  
The  employer,  aggrieved  by  the  award
preferred writ petition before the  High  Court,  which  affirmed  the  same
without any discussion or assigning any reason in the following words:


             “9. After going through the aforesaid finding recorded  by  the
             tribunal concerned, I find no infirmity or  illegality  in  the
             impugned award passed by the tribunal concerned and the same is
             hereby confirmed.”


      Before we enter into the merit of the case, it is  apt  to  understand
what Hill Development  Allowance  is.  
In  our  opinion,  Hill  Development
Allowances  is  nothing  but  a  compensatory  allowance.   
A   compensatory
allowance broadly falls into three categories; 
(i)  allowance  to  meet  the
high cost of living in certain, specially  costly  cities  and  other  local
areas; 
(ii) allowance to compensate for the hardship of service  in  certain
areas, e.g. areas which have a bad climate and/or difficult to  access;  and
(iii) allowances granted in areas, e.g. field service areas, where,  because
of special conditions of living or  service,  an  employee  cannot,  besides
other disadvantages, have his family with him.
There may be cases in  which
more than one of these conditions for grant  of  compensatory  allowance  is
fulfilled.  It seems that taking into account bad  climate  and  remote  and
difficult access, the decision was  taken  to  grant  the  Hill  Development
Allowance at the rate of 15% of the basic wage.


      We have heard Mr. Tanmaya Agarwal for  the  appellant  and  Mr.  Jatin
Zaveri for the respondent.  Mr. Agarwal submits that  basic  wage  will  not
include  the  amount  received  as  leave  encashment  and  overtime  wages.
According to him, basic wage would mean the wage which is paid  to  all  the
employees.  He submits that leave encashment and overtime wages  would  vary
from workman  to  workman                and,  therefore,  those  cannot  be
included in the  basic  wage.   In  support  of  the  submission  he  placed
reliance on a judgment of this Court in the case of Muir Mills Co.  Ltd.  v.
Workmen, AIR 1960 SC 985 and our attention has been drawn to  the  following
passage from Paragraph 11 of the judgment, which reads as follows:


             “11. Thus understood “basic wage” never includes the additional
             emoluments which some workmen may  earn,  on  the  basis  of  a
             system of bonuses related to the  production.  The  quantum  of
             earnings in such bonuses varies from individual  to  individual
             according to their  efficiency  and  diligence;  it  will  vary
             sometimes from season to season with the variations of  working
             conditions in the factory or other  place  where  the  work  is
             done; it will vary also with variations in the rate of supplies
             of raw material or in the assistance obtainable from machinery.
             This very element of variation, excludes this part of workmen's
             emoluments from the connotation of “basic wages”.”




      Mr. Garg, however submits that any amount including the amount paid as
leave encashment and overtime wages do come  within  the  expression  ‘basic
wage’ and, hence, have to be accounted for the purpose  of  calculating  15%
of the basic pay.




      In view of the rival submissions, the question  which  falls  for  our
determination is as to the meaning of  the  expression  ‘basic  wage’.   The
expression ‘basic wage’ has not been explained  by  the  Government  in  the
order granting Hill Development Allowance.  It has been defined  only  under
Section 2(b) of the Employees’ Provident Funds and Miscellaneous  Provisions
Act, 1952.  Therefore, we have to see what meaning is to be  given  to  this
expression  in  the  present  context.   Section  2(b)  of  the   Employees’
Provident Funds  and  Miscellaneous  Provisions  Act,  1952  defines  ‘basic
wages’ as follows:


             “2. Definitions. - In this Act, unless  the  context  otherwise
             requires, -
             (a)    xxx      xxx        xxx


             (b) “basic wages” means all emoluments which are earned  by  an
             employee while on duty or on leave or on holidays with wages in
             either case in accordance with the terms  of  the  contract  of
             employment and which are paid or payable in cash  to  him,  but
             does not include-


                  i) the cash value of any food concession;


                 ii) any dearness  allowance  that  is  to  say,  all  cash
                     payments by whatever name called paid to  an  employee
                     on account of a rise in the cost of living, house-rent
                     allowance, overtime allowance, bonus commission or any
                     other similar allowance payable  to  the  employee  in
                     respect of his employment or  of  work  done  in  such
                     employment;

                iii) any presents made by the employer;”




      According   to   http://www.merriam-webster.com    (Merriam    Webster
Dictionary) the word ‘basic wage’ means as follows:


             “1. A wage or salary based on the cost of living and used as  a
             standard for calculating rates of pay


             2. A rate of pay for a standard work period exclusive  of  such
             additional payments as bonuses and overtime.”


      When an expression is not defined,  one  can  take  into  account  the
definition given to such expression in a  statute  as  also  the  dictionary
meaning.  In our opinion, those wages  which  are  universally,  necessarily
and ordinarily paid to all the employees across the board  are  basic  wage.
Where the payment is available to those who avail the opportunity more  than
others, the amount paid for that cannot be included in the basic  wage.   As
for example, the overtime allowance, though it is generally enforced  across
the board but not earned by all employees equally.  Overtime  wages  or  for
that matter, leave encashment may be available to each workman  but  it  may
vary from one workman to other.  The extra  bonus  depends  upon  the  extra
hour of work done by the workman whereas leave encashment shall depend  upon
the number of days of leave available to workman.  Both  are  variable.   In
view of what we have observed above, we are of the opinion that  the  amount
received as leave encashment and overtime wages is not fit  to  be  included
for calculating 15% of the Hill Development Allowance.  The  view  which  we
have taken finds support from the judgment of this Court in Muir  Mills  Co.
Ltd. (supra), relied on by the appellant, in which it has been  specifically
held that the basic wage shall not include bonus.


      It also finds support from a judgment of this Court  in  the  case  of
Manipal Academy of Higher Education v. Provident Fund  Commr.,(2008)  5  SCC
428 in which it has been held as follows:

             “10. The basic principles as laid down in Bridge & Roofs  case,
             AIR 1963 SC 1474, on a combined reading of Sections 2(b) and  6
             are as follows:


             (a) Where the wage is universally, necessarily  and  ordinarily
             paid to all across the board such emoluments are basic wages.


             (b) Where the payment is available  to  be  specially  paid  to
             those who avail of the opportunity is not basic wages.  By  way
             of example it was held that overtime allowance,  though  it  is
             generally in force  in  all  concerns  is  not  earned  by  all
             employees of a concern. It is also earned  in  accordance  with
             the terms of the contract of employment but because it may  not
             be earned by all employees of a concern, it  is  excluded  from
             basic wages.


             (c) Conversely, any payment by way of a  special  incentive  or
             work is not basic wages.”




      In view of what we have observed above, the  impugned  award  and  the
judgment of the High Court are illegal and cannot be allowed to stand.


      In the result, we allow this appeal,  set  aside  the  award  and  the
judgment of the High Court  and  hold  that  overtime  allowance  and  leave
encashment are not fit to be taken into account  for  calculating  the  Hill
Development Allowance.  No costs.
                                   ..………..……………………………….J.
                                                   (CHANDRAMAULI KR. PRASAD)


                                                    ………………….………………………………….J.
                                                      (JAGDISH SINGH KHEHAR)
NEW DELHI,
JANUARY 06, 2014.





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