Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). OF 2023
(Arising out of SLP(Crl.) No(s). 178 of 2020)
SURESH ….APPELLANT(S)
VERSUS
STATE OF KERALA ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
th
2. The instant appeal is directed against the judgment dated 6
November, 2018 affirming conviction of the accused appellant
under Sections 302 and 449 of the Indian Penal Code, 1860
(hereinafter being referred to as the “IPC”) and sentenced to
undergo rigorous imprisonment for a period of five years and to pay
a fine of Rs.5000/ for the offence punishable Section 449 IPC and
to undergo imprisonment for life and to pay a fine of Rs.5,000/ for
the offence punishable under Section 302 IPC.
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2023.02.15
17:17:26 IST
Reason:
1
3. Limited notice was issued by this Court with respect to the
sentence awarded taking note of the submission of the learned
counsel for the appellant that whether the case falls within the
contours of Section 304 PartI IPC and not under Section 302 IPC
th
which reveals from the Order dated 8 January, 2020.
4. The case of the prosecution is that at the time of alleged
incident, victim Devarajan, husband of PW13, was residing in
quarter no. 109 of Siruvani Estate. The incident happened within
the dwelling house of both victim Devarajan and PW13 (wife of the
victim). The appellant was found guilty of murder mainly based on
the oral evidence tendered by PW13 wife of the deceased, the eye
witness of the alleged incident, the corroboration given by PW14
who had given FIS and the oral evidence of PW1, besides the injury
sustained by the appellant in the alleged incident and the recovery
of weapon used for commission of offence.
5. The learned Sessions Judge, in the first instance, found the
appellant guilty and punished him for offence punishable under
Sections 302 and 449 IPC and sentenced him to undergo rigorous
imprisonment for a period of five years and to pay a fine of
2
Rs.5,000/ for the offence punishable under Section 449 IPC and to
undergo imprisonment for life and to pay a fine of Rs. 5000/ for
the offence punishable under Section 302 IPC.
6. The injuries alleged to have been sustained by the victim
which are noted as antemortem injury nos.1 to 13 in Ext P6 post
mortem examination report, are as follows:
“B. INJURIES ANTEMORTEM:
1. Contusion 2.5x2.5x1 cm on the outer aspect of right forehead
inner lower extend at the right eyebrow and 5 cm outer to
midline.
2. Contusion 7x3x2cm obliquely placed on the right side of face
over the cheek region incorporating a lacerated wound
1x0.5x0.2 cm obliquely placed and parallel to the contusion
on its lower portion. Its lower extend 6 cm above lower border
of jawbone and 7 cm outer to midline.
3. Abrasion 0.5x0.5 cm right side of forehead 4 cm above right
eyebrow and 1 cm outer to midline.
4. Abraded contusion 1.5x0.5x0.2 cm over the outer and top
aspect of helix of left pinna of left ear.
5. Abraded contusion 1x1x0.3 cm over the left side of neck 1 cm
below the ear.
6. Lacerated wound 2x0.2 cm bone deep obliquely placed over
the left side and back of head with surrounding abrasion over
an area 2x1 cm its inner lower end 2.5 cm above external
occipital protuberance and 3 cm outer to midline.
On dissection and reflecting the scalp, a contusion 11x3 cm
involving the full thickness of scalp, obliquely placed underneath,
upper inner extend at left parietal prominence. Another contusion
13x8 cm over the left parieto temporal region involving its full
thickness, lower extent at left ear, the left temporalis muscle
underneath was contused. Another contusion 4x3 cm right parieto
temporal region, lower extend 2 cm above right ear. The temporalis
3
muscle underneath was contused involving its full thickness. The
skull was intact, on removing the top of skull, the dura was found
stretched and bulging. Thin subarachnoid haemorrhage seen
bilaterally over right and left parieto temporal region. Brain was
congested and oedematous.
7. Abrasion 1.5x0.5 cm transversely placed on left side of root of
neck, front end 11 cm outer to midline and 12 cm below
mastoid bone tip.
8. Contusion 22x1230 cm bone deep on the back of chest
across midline upper extent 13 cm below root of neck.
Contusions seen more over the right side. Underneath the
right ribs 9, 10, 11 were fractured on the back aspect and 7
cm outer to midline with surrounding blood infiltration over
an area 12x12 cm involving the intercostal muscles. Fracture
dislocation noted at left 10th rib on the back aspect with
surrounding infiltration of blood. Right lung showed a
contusion 8x4x0.5 cm on the back aspect of right lower lobe.
9. Abrasion 0.5x0.5 cm right side of sacral region 3 cm outer to
midline and 6 cm above gluteal cleft.
10. Abrasion 6x5 cm outer aspect of right hip upper extend 2 cm
below top of hip and 12 cm outer to midline.
11. Abrasion 1x0.2 cm obliquely placed outer aspect of right
upper arm lower end 7 cm above right elbow.
12. Two abrasions over an area 2.5x1 cm separated by a distance
of 0.5 cm over the back aspect of right upper arm its lower
extend 4 cm above right elbow.
13. Abrasion 1x1 cm back aspect of right forearm 2 cm below
right elbow.”
7. The medical evidence adduced by PW7 shows that injury nos.
6 and 8 are caused possibly by hitting with MOI stone. Injury no. 6
is on the head and injury no. 8 is on the back of chest. It also
reveals from the postmortem report that the heavy grinding stone
was used for the commission of offence and the pressure was
4
applied while inflicting injury on the body of the victim, that too
over the vital parts, head and chest.
8. A strict scrutiny of the oral evidence tendered by PW13 would
show that there is no embellishment but what is narrated by her is
the true version of what she had experienced on the alleged date
and time of the incident. She had given a narration of the alleged
incident which is having two separate episodes. The first one is
that the accused came to her house and as usual picked up quarrel
with her husband and they fought with each other at the verandah
of the house. It is also spoken by her that during the course of
quarrel between the appellant and the victim, the victim gave a stab
injury to the appellant. On receiving the stab injury, the appellant
went away from her house. The second episode, according to her,
started when PW13 and her husband were sleeping in their
dwelling house, the accused appellant stealthily entered into the
house with a wooden stick and took a country grinding stone and
hit on the victim’s head. He had also attacked PW13 by beating on
her cheek and body and she fell down. The appellant again hit on
5
victim’s head with the country grinding stone and then left the
place.
9. PW14 who had given Ext P1 (FIS) supported the version of
PW13. According to him, by morning, PW13 approached him and
had disclosed the death of her husband. PW14 went to the place
of occurrence and had seen the dead body of the victim lying on the
floor of the quarters (dwelling house of the victim). Immediately, he
went to the police station and had given Ext. P1 (FIS) and caused to
register FIR.
10. On consideration of the prosecution evidence and of PW13
which is supported by PW14 in particular, we are of the view that
the death of the victim was not caused in the heat of the sudden
fight and it was a case of murder under Section 302 IPC and not
under any exceptions of Section 300 IPC. Further, the appellant
has rightly been convicted under Sections 302 and 449 IPC.
11. Consequently, the appeal fails and accordingly dismissed.
12. Pending application(s), if any, shall stand disposed of.
6
……………………..J.
(AJAY RASTOGI)
………………………J.
(BELA M. TRIVEDI)
NEW DELHI;
FEBRUARY 14, 2023
7