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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

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