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Alteration of conviction under sec302 to sec. 325 IPC = .In a sudden fight, a simple act of throwing stone does not comes under sec. 302 without the prosecution proving the intention and motive on the part of accused who has no previous score with the deceased = .In the course of that altercation appellant No.2 does appear to have hurled a stone towards the deceased which hit and injured him but there is nothing to show that the injury was by itself sufficient to cause death in the ordinary course nor is there anything to show that there was any pre-concert between the appellant-Manoj and his father to kill the deceased. In the absence of any evidence, let alone evidence that is reliable and cogent, to show that appellant No.2 intended to cause death or shared the intention to cause death with his son, it is difficult to sustain his conviction for murder punishable under Section 302 of the IPC. The prosecution has not even alleged a motive against appellant No.2. The motive based on illicit relationship between appellant-Manoj and the wife of the deceased, could hardly be attributed to appellant No.2, no matter, the incident started with an altercation in which even he got involved. The sudden fight between the appellants on the one hand and the deceased on the other, escalated into a tragedy for the deceased but the responsibility for the gruesome assault, cannot be shifted from Manoj who used a dangerous weapon like a Sword to fatally injury the deceased. The stone thrown by appellant No.2 may have triggered the incident to its ugly end but beyond that appellant No.2 cannot be attributed the responsibility of murder with or without the assistance of Section 34 of the IPC. Appellant No.2 can at best be held guilty of causing grievous hurt to the deceased punishable under Section 325 of the IPC. = The conviction of appellant No.2 is, however, altered from Section 302 read with Section 34 IPC to Section 325 IPC. Appellant No.2 has been in jail for nearly 3½ years now which sentence should, in our opinion, suf

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40529

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.852 OF 2013
(Arising out of S.L.P (Crl.) No.2597 of 2012)
Manoj and Anr. …Appellants
Versus
State of Karnataka …Respondent
J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. This appeal by special leave arises out of a judgment and order dated
15th November, 2011 passed by the High Court of Karnataka, Circuit Bench at
Gulbarga, whereby Criminal Appeal No.3643 of 2009 filed by the appellants
has been partially allowed upholding their conviction and sentence under
Section 302 read with Section 34 IPC, but setting aside their conviction
under Section 506 read with Section 34 of the IPC.

3. Briefly stated the prosecution case is that the deceased Sadashiv was
unhappy about appellant No.1-Manoj visiting his house and associating with
his wife for he suspected an illicit intimacy between the two. He had,
therefore, forbidden Manoj from coming to his house and in case he did so
he had threatened to kill him. The prosecution story is that on 30th
August, 2006 at about 12 noon appellant No.1-Manoj and his father-appellant
No.2 assaulted the deceased while the latter was in front of a shop owned
by one Khilari near Babanagar bus stand within the limits of Tikota Police
Station. While appellant No.2 is alleged to have assaulted the deceased
with a stone on his head appellant No.1-Manoj is said to have given several
blows to the deceased with a sword injuring him on his neck, head and face.
The incident, was allegedly seen by five eye witnesses, some of whom
carried the injured to the Police Station from where he was referred to the
District Hospital for treatment. The deceased, however, passed away before
reaching the hospital leading to the registration of a case against the
father and the son under Sections 302 and 506 read with Section 34 of the
IPC. A charge-sheet was in due course filed against the two accused
persons before the jurisdictional Magistrate who committed the accused to
face trial before the Principal District and Sessions Judge, Bijapur. At
the trial, the prosecution examined as many as 22 witnesses apart from
placing reliance upon several documents marked as Exs.P1 to P24 and
material objects MOs1 to 12. In their statements recorded under Section
313 of the Cr.P.C., the accused persons denied the charges and pleaded
innocence. No evidence was, however, adduced by them in defence. The trial
Court eventually came to the conclusion that prosecution had brought home
the guilt of the accused persons for offences punishable under Sections 302
and 506 read with Section 34 of the IPC.

4. The appellants were accordingly sentenced to undergo imprisonment for
life besides a fine of Rs.10,000/- each for offence punishable under
Section 302 read with Section 34 of the IPC and a sentence of simple
imprisonment for one year and a fine of Rs.2,000/- each under Section 506
read with Section 34 of the IPC.

5. Aggrieved by their conviction and the sentence, the appellants
appealed to the High Court of Karnataka, Circuit Bench at Gulbarga who has
in terms of the judgment impugned in this appeal affirmed the conviction
and the sentence under Section 302 read with Section 34 IPC awarded by the
trial Court but set aside the conviction and sentence under Section 506
read with Section 34 IPC, as noticed above. The present appeal assails the
correctness of the said judgments and orders of the Courts below.

6. We have heard at some length learned Counsel for the parties who have
taken us through the evidence adduced at the trial. Out of 22 witnesses
examined at the trial by the prosecution, PWs-4, 5, 7, 17 and 19 have
turned hostile. No support is available from the deposition of the said
witnesses to the prosecution story. PW-8-Shrishail Shettappa Shelannavar
and PW-18-Mahadev have, however, fully supported the prosecution version.
PW-16-Padawwa-wife of the deceased has also appeared to support the
prosecution case. We shall briefly refer to the depositions of these
witnesses especially because the judgments delivered by the trial Court and
the High Court have found the same to be credible and placed reliance upon
them for holding the appellants guilty.

7. PW-8-Shrishail Shettappa Shelannavar deposed that the incident
leading to the death of the deceased-Sadashiv took place near a hotel at
Babanagar at 11:30 a.m. in the morning. According to the witness, he had
come out of the hotel (the witness means a roadside Dhaba) after taking tea
only to find that a verbal altercation was going on between the accused on
the one hand and the deceased-Sadashiv on the other. It was in the course
of this altercation that appellant No.2-Amagond threw a stone at Sadashiv
which hit the latter on his head. On receiving the injury the deceased fell
to the ground whereupon appellant No.1-Manoj inflicted injuries on his neck
and other parts of the body with a sword. Seeing the assault on the
deceased, people from the hotel vicinity started running helter-skelter.
The deceased was removed from the site in a vehicle after the appellants
escaped from the place of occurrence. The witness identified the sword and
the stone with which the deceased was assaulted by the appellants.

8. In cross-examination, the witness stood by his version and stated
that he often goes to the hotel (dhaba) situate near Babanagar bus stand
whenever he does not have to attend to any urgent work. The witness
further stated that he had cordial relations with the accused persons but
did not question them about the reason for the assault on the deceased.
None of those on the spot had come to the rescue of Sadashiv who was
sitting alone before the assault started. The witness denied being a
relative of the deceased Sadashiv or that he was deposing falsely. There
is nothing in the cross-examination of this witness that may lend any
support to the defence nor has the deposition of the witness been shattered
in cross-examination.

9. Coming then to the statement of PW-18-Mahadev, the witness stated
that the deceased was his elder brother and lived four to five houses away
from his house at Babanagar. The appellants were also known to the witness
whom he identified. The witness stated that appellant-Manoj used to visit
the house of Sadashiv giving rise to a suspicion in his mind that his wife
had illicit intimacy with said appellant. The deceased had warned
appellant-Manoj in that regard and asked him not to visit his house. Such
warnings were given to the deceased nearly fifteen days before the date of
the incident despite which the appellant-Manoj had come to the house of
Sadashiv two days prior to the occurrence whereupon the deceased had
threatened Manoj that he would kill him if he visited again.

10. On the date of occurrence at about 12 noon the witness and PW-8-
Shrishail Shettappa Shelannavar were sitting in front of the dhaba
belonging to one Allisab after taking tea. The deceased was at that time
sitting in front of the dhaba of one Suresh and smoking a beedi on the
opposite side of the road. It was then that the appellants came to the
spot. Manoj was armed with a sword while appellant No.2-his father had a
stone. He threw the stone towards the deceased that hit him on his head.
Because of the injury the deceased fell down whereafter the Appellant-Manoj
gave to the deceased four to five blows with the sword that he was
carrying. The witness and Shrishail Shettappa Shelannavar tried to rescue
the victim but Manoj threatened to kill them if they intervened. After the
incident, the appellants ran away from the spot thinking that Sadashiv was
dead. The witness then brought water for the deceased to save his life as
he was bleeding profusely from the head and neck. They took the deceased
to the Tikota Police Station in a Tom Tom vehicle wherefrom they were
referred to a District Hospital at Bijapur with a constable deputed to
accompany them. While going to the hospital the deceased succumbed to his
injuries whereupon they returned to the Police Station to lodge a report
about the incident. The witness identified the sword and the stone used by
the appellants in the course of the incident.

11. We may also at this stage refer to the deposition of PW-16-Padawwa-
wife of the deceased. This witness has supported the prosecution version
inasmuch as she stated that the appellant-Manoj used to visit her house to
talk to her on account of which her husband entertained a suspicion about
her fidelity. The deceased had admonished the appellant and asked him not
to come to his house and if he did so he would kill him. On the date of
the occurrence the deceased left his house for the bus stand in the morning
but around 12:30 p.m. some people residing in the neighbourhood informed
her that the appellant- Manoj had assaulted the deceased with a sword while
appellant No.2 had inflicted an injury upon his head with a stone. She
rushed to the spot to find that the deceased was alive and water was being
poured in his mouth by the people present including Mahadev, Gopal and
Shrishail who took the deceased to Tikota Police Station. The witness also
accompanied them.

12. The medical evidence adduced in the case comprises the deposition of
Dr. Nandini who conducted the post mortem examination on the deceased and
opined that the death was due to hemorrhagic shock secondary to hypovolemic
shock. The following external injuries were found on the body of deceased
which were certified by him to be ante-mortem:

“(a) Cut lacerated wound of about 4 x 1 cm deep present over
right angle of eye frontal bone fracture seen.

(b) Crush injury on left cheek 3’x half inch deep.

(c) Cut lacerated wound over left angle of mouth 4’ x half inch
deep.

(d) Cut lacerated wound 5 cm present over extensor surface of
wrist on medial side.

(e) CLW of about 5 x 2 and half inch present over upper neck of
leftside, C2 vertebra fracture present.”
13. The witness opined that these injuries were sufficient to cause death
in the ordinary course of nature. The witness further stated that while the
crush injury noted by him on the dead body could be caused with stone MO.2
the other injuries could be caused by MO.1 Hatiyar (sword). The FSL report
(Ex.P.19) which was also pressed into service by prosecution proved that
the blade portion of sword (MO.1) and stone (MO.2) were blood stained.

14. There is, in our opinion, no manner of doubt that the three witnesses
referred to earlier have clearly testified about the sequence of events
leading to the death of Sadashiv which version has been found to be
reliable by the Courts below. We see no reason to strike a discordant note
for there is hardly any infirmity in the depositions referred to above
which have stood the test of lengthy cross-examination by the defence. That
the deceased suspected his wife’s fidelity and an illicit intimacy with
appellant-Manoj is sufficiently proved from the deposition of the widow of
the deceased, Shreshiala and Mahadev the other two witnesses referred to
above. It is also evident from the said depositions that the deceased had
forbidden the appellant-Manoj from coming to his house and threatened to
kill him in case he did so again. This happened shortly before the incident
in question. The mutual relationship between the deceased and the appellant-
Manoj was thus embittered. On the date of the occurrence the presence of
the deceased around the bus stand where the occurrence took place has also
been sufficiently proved by the deposition of the witnesses including the
police witnesses who have prepared the site plan and made seizures from the
spot. So, also the presence of the two eye witnesses on the spot at the
time of occurrence in a place like a bus stand is in no way abnormal to
cast any doubt about their credibility. The medical evidence adduced at the
trial too supports the ocular version. The doctor has clearly reported that
the crush injury on the face could be caused by the stone (MO.2) while the
other injury could have been inflicted by the sword which appellant-Manoj
was allegedly carrying at the time of the incident. The presence of human
blood on these two objects sufficiently supports the prosecution case that
the said weapons were used for the commission of the offence.

15. Learned Counsel for the appellants, however, argued that even though
appellant-Manoj was alleged to have used the sword to inflict injuries on
the deceased, the role played by appellant No.2 was restricted to throwing
a stone towards the deceased. Even when the stone had caused an injury
there was nothing to show that it was intended to kill the deceased
especially when it is not the case of the prosecution that even after the
stone had hit the deceased the assault was continued by appellant No.2 with
or without the help of appellant No.1-Manoj. There is considerable merit
in that submission. Even according to PW-8-Shrishail Shettappa Shelannavar
when he stepped out of the dhaba, he found a verbal altercation going on
between the deceased and the accused persons. In the course of that
altercation appellant No.2 does appear to have hurled a stone towards the
deceased which hit and injured him but there is nothing to show that the
injury was by itself sufficient to cause death in the ordinary course nor
is there anything to show that there was any pre-concert between the
appellant-Manoj and his father to kill the deceased. In the absence of any
evidence, let alone evidence that is reliable and cogent, to show that
appellant No.2 intended to cause death or shared the intention to cause
death with his son, it is difficult to sustain his conviction for murder
punishable under Section 302 of the IPC. The prosecution has not even
alleged a motive against appellant No.2. The motive based on illicit
relationship between appellant-Manoj and the wife of the deceased, could
hardly be attributed to appellant No.2, no matter, the incident started
with an altercation in which even he got involved. The sudden fight between
the appellants on the one hand and the deceased on the other, escalated
into a tragedy for the deceased but the responsibility for the gruesome
assault, cannot be shifted from Manoj who used a dangerous weapon like a
Sword to fatally injury the deceased. The stone thrown by appellant No.2
may have triggered the incident to its ugly end but beyond that appellant
No.2 cannot be attributed the responsibility of murder with or without the
assistance of Section 34 of the IPC. Appellant No.2 can at best be held
guilty of causing grievous hurt to the deceased punishable under Section
325 of the IPC.

16. In the result, we dismiss this appeal insofar as appellant-Manoj is
concerned and uphold his conviction under Section 302 IPC and the sentence
awarded to him. The conviction of appellant No.2 is, however, altered from
Section 302 read with Section 34 IPC to Section 325 IPC. Appellant No.2
has been in jail for nearly 3½ years now which sentence should, in our
opinion, suffice. Appellant No.2 is accordingly sentenced to imprisonment
already undergone by him. He shall be released from custody if not
otherwise required in connection with any other case. The sentence of fine
imposed upon the said appellant shall however remain unaltered.

……………………………J.
(T.S. THAKUR)

……………………………J.
(GYAN SUDHA MISRA)
New Delhi
July 5, 2013

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