Full Judgment Text
2024 INSC 294
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 328 OF 2012
SUBHASH @ SUBANNA & ORS. Appellant(s)……
VERSUS
STATE OF KARNATAKA
MINISTRY OF HOME AFFAIRS Respondent(s)…….
J U D G M E N T
PRASANNA B. VARALE, J.
1. By way of present appeal, the appellants challenged the
th
judgment and order dated 20 April, 2011 passed by the High
Court of Karnataka in Criminal Appeal No. 3601/2010, thereby
confirming the conviction and sentence of the Trial Court in
Signature Not Verified
Digitally signed by
KAVITA PAHUJA
Date: 2024.04.10
16:32:33 IST
Reason:
Sessions Case No.213/2009 which had convicted appellants
(accused Nos. 1, 2 and 4) under Section 302 of IPC and sentenced
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them to life imprisonment. Additionally the High Court also upheld
the conviction and sentence of appellant Nos.1 and 3 (accused Nos
2 & 4) under Sections 324 and 326 of IPC as awarded by Trial
Court.
2. The First Information Report No.18/2009 was lodged at
Kamalpur Police Station, Gulbarga against the accused persons
for commission of offences under Section 143, 147, 148, 504, 323,
324 and 302 r/w Section 149 of Indian Penal Code, on the basis
of complaint submitted by Kumari Sangeeta D/o Mahadevappa
th
Natikar. The Complaint refers to the incident occurred on 18
February, 2009 at 7.00 a.m. (we may refer to this incident as a
prequel to the fateful incident which occurred on the same day in
the evening). It was submitted in the report that a day earlier i.e.,
th
on 17 February, 2009, uncle of the complainant brought fire
wood which was dumped on the way, blocking the path of the
complainant. Thus, Sangeeta tried to reach the said path to throw
dust, at that time she found that her pathway was covered with
the fire wood. As such, she demanded an explanation from her
uncle Subhash. She raised question as to why the way is blocked,
to which her uncle Subhash, his wife and his children responded
by abusing Sangeeta. Sangeeta then returned to her house. Her
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father, mother and brothers by that time had already left for the
fields. In the evening, her father and brothers i.e. Mahadevappa,
Hanumantha and Sharanappa, respectively were apprised about
the incident which took place in the morning. Her father
Mahadevappa then proceeded towards the house of uncle –
Subhash and made an enquiry as to why the way was blocked.
Subhash and the other family members started abusing
Mahadevappa and then they assaulted Mahadevappa with a stick
on his forehead and face, causing grievous injuries to
Mahadevappa.
3. Dattatrey (appellant No.2), who was carrying chopper laid an
assault on the forehead and head of Mahadevappa, causing
grievous injuries to Mahadevappa. Digambar (appellant No.3)
threw a big stone below the right knee of Mahadevappa, resulting
in grievous blood injuries. Then Digambar picked up a stone in his
hand and hit Mahadevappa on his face causing injury.
4. Sangeeta, her brother Sharanappa and mother who had
followed Mahadevappa, saw the attack on Mahadevappa and
younger brother of Sangeeta made an attempt to intervene in the
attack, who was in turn attacked by Digambar, receiving injuries
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on his hand and palm. On hearing hue and cry, residents of the
area namely; Parameshwar S/o Ningappa Pujari and other
neighbours rushed to the spot. When Mahadevappa was brought
to his house, he was unconscious as he had received grievous
injuries. Uncle of Sangeeta, Shivasharanappa along with other
persons namely; Sharanappa and Parameshwar Poojari arranged
for a jeep and Mahadevappa was admitted in the Government
Hospital, Gulbarga. The Doctors of the Gulbarga Hospital declared
Mahadevappa dead and his body was sent for autopsy.
5. On lodging of the First Information report, the Investigating
Agency was set in motion. By completing the necessary formalities
of the investigation, such as recording the statement of witnesses,
drawing “panchanama”; spot mahazar, seizure mahazars etc. and
by collecting the medical evidence in the form of post mortem
report issued by the concerned medical officer, charge sheet came
to be filed against the accused persons.
6. Accused persons pleaded not guilty and were subjected to
trial.
7. On appreciation of the evidence, the learned Sessions Judge
convicted the appellants and sentenced them for the offence
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punishable under Section 302 to undergo life imprisonment and
also pay fine of Rs. 10,000/- each (in default S.I. for two years
each). Accused nos. 2 and 4 were also convicted for offence
punishable under Section 324 of Indian Penal Code and sentenced
to undergo R.I. for one year and to pay fine of Rs. 1,000/- each (in
default S.I. for six months each). Accused 2 and 4 were also
convicted for offence punishable under Section 326 of Indian Penal
Code and were sentenced to undergo R.I. for three years each and
to pay fine of Rs. 2,000/- each (in default S.I. for one year each).
Whereas accused No.3, 5 and 6 were found guilty for the offences
punishable under Section 323 of Indian Penal Code and sentence
to pay fine of Rs. 500/- each (in default S.I. for two months each).
The entire sentence imposed against accused 2 and 4 was directed
to run concurrently.
8. Accused Nos. 3, 5 and 6 accepted the judgment and order of
the Sessions Court as they have not filed any appeal to the High
Court against the judgment and order of Sessions Court, whereas
accused Nos.1, 2 and 4 filed their appeal to the High Court of
Karnataka. As stated above, the High Court of Karnataka upheld
and confirmed the order of the Trial Court.
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9. The learned counsel for the appellants submitted that
assuming that the prosecution was successful in establishing the
death of the deceased and the presence of the appellants on the
spot, as well as the active role played by the appellants; the entire
material collected by the prosecution shows that it was the
deceased who came to the house of the accused and then there
was a quarrel and verbal exchange between them. The act of the
accused persons, the verbal exchange and the provocation by the
deceased and his family members prompted the appellants to
exercise the right of their private defence.
10. Learned counsel for the appellants further submits that the
evidence collected by the prosecution also shows that the incident
was a reaction of the appellants to a provocation by the deceased
and his family members. The element of intention of the appellants
is not established by the prosecution. Thus, the submission of the
learned counsel for the appellants was that the act of the
appellants would not attract Section 302 of Indian Penal Code
against them and the offences would be at the most, an offence
under Section 304 part 2 of Indian Penal Code.
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11. Per contra, learned counsel representing the State of
Karnataka supported the judgment and order passed by the High
Court of Karnataka, upholding the judgment and order of the
Sessions Court.
12. We have gone through the record. The prosecution in
support of its case, examined as many as 31 witnesses and is
supported by P.W.18 Ramalingappa, P.W.19 Smt. Mallamma,
P.W.20 Shobhavati, P.W.21 Sangeeta, P.W.22 Sharanappa, P.W.23
Hanmanth, P.W.24 – Prameshwar, P.W.25 Shivasharanappa and
P.W.12 Dr. Balachandra Joshi. The majority of other witnesses,
who are neighbours of the deceased Mahadevappa, have turned
hostile.
13. P.W.17 Sareppa, turned hostile and he has not supported the
prosecution on the aspect of dispute between the complainant’s
family and the accused family. He supports the case of prosecution
that land of deceased and accused are abutting to each other.
14. P.W.18 Ramalingappa supports the version of complainant –
Sangeeta, that to reach the land of deceased Mahadevappa, they
have to pass through the land of the accused and there was a
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dispute between Mahadevappa and appellant No.1 on the issue of
way.
15. Now, to establish the death of Mahadevappa being a
homicidal one, the prosecution mainly draws support from the
testimony of P.W.12 Dr. Balachandra Joshi who in his testimony
before the Trial Court states that he was working as Senior
specialist since June, 2006 in Government Hospital, Gulbarga. On
19.02.2009 he had conducted post mortem on the dead body of
Mahadevappa in between 12.30 p.m., to 2.00 p.m., and he noticed
the following external injuries:
1. “Cut Lacerated wound on the forehead
between the eye brows measuring 6 x 2 x
bone deep underlying major bones fractured.
2. Lacerated wound on the face left side at the
angle of the mouth, margins irregular
underlying upper jaw bone fracture and
loosening of teeths left side cheek bone also
fractured.
3. Cut lacerated wound on chin measuring 5 x
3 cm x bone deep, evidence of bleeding was
present, underlying mandible bone was
fractured.
4. Cut lacerated wound on the frontal region of
the scalp and forehead in the middle
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measuring 10 x 3 cm x bone deep clot
formation present.
5. Cut lacerated wound scalp on left side frontal
region measuring 10 cm x 4 cm x bone deep
clot formation present.
6. Cut lacerated wound on scalp on the top
slightly to the right side 12 cm x 4 cm x bone
deep, evidence of haemorrhage or bleeding
present clot formation present.
7. Punctual wound on the right side of leg below
the right knee measuring 6 x 5 x 3 cm
underlying leg bone fracture.
rd th th
8. Fracture of 3 , 4 , 5 ribs on the anterior
side on right side of chest wall. All the above
injuries are ante mortem in nature.”
16. He further states that, in his opinion cause of death is shock
and haemorrhage to the brain due to injury and multiple fracture
injuries.
17. Nothing could be elicited in his cross-examination and
P.W.12 Dr Balachandra Joshi stood firm on the aspect of the
homicidal death of Mahadevappa.
18. As stated above, even the appellants are not seriously
disputing the homicidal death of Mahadevappa. Insofar as their
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presence and active role played by them is concerned, P.W.21
Sangeeta provides all the necessary details in her testimony about
the morning incident i.e., prequel and about the actual incident
which took place in the evening. Though she was subjected to a
detailed cross-examination, her version remains to be unshaken
and appears to be a truthful version of the incident.
19. Similarly, P.W.19 Smt. Mallamma, who is the daughter of the
deceased Mahadevappa (elder sister of Sangeeta), P.W.22
Sharanappa (s/o Mahadevappa and brother of Sangeeta), P.W.23
Hanumanth (brother of Sangeeta, Mallamma and Sharanappa),
also supported the case of prosecution on the aspect of the
presence and active role played by the appellants causing the
homicidal death of Mahadevappa.
20. P.W.29 – Dr. Basawaswamy, supported the case of the
prosecution on the aspect of Sharanappa and Sangeeta receiving
the injuries.
21. Dr. Basawaswamy in his testimony states that on 18.02.2009
he examined Sharanappa s/o Mahadevappa who was injured. He
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came to the hospital with a history of assault and on his
examination Dr. Basawswamy noticed the following injuries:
1. “2 x 1 cm incised wound over the dorsal
aspect of right little finger bleeding present,
margins are clean cut.
2. Swelling present over the dorsa aspect of
the right hand.
3. Abrasion over the dorsal aspect of right
forearm size 3 x 3 cm.
Taken X ray of right hand, crack fracture of
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5 metacarpal bone.
Wound No.2 is pre4vious in nature, other
wounds are simple in nature might have
been cause by sharp and blunt object. Age
of the injury about less than 4 hours.”
22. Similarly, on the very same day, he examined another injured
by name Sangeeta D/o Mahadevapa and noticed the following
injuries:
1. “Tenderness present over the left elbow.
2. Contusion over the posterior aspect of lower
rd
1/3 of left arm measuring 3 x 2 cm.
3. Tenderness present over the left palm.
4. Tenderness present over the posterior aspect of
left shoulder.
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23. Thus, version of Dr. Basawaswamy supports the case of the
prosecution on the aspects i.e., the presence of the prosecution
witnesses Sharanappa and Sangeeta on the spot and their attempt
to interfere to save their father Mahadevappa from the attack of
the accused/appellants, and receiving injuries in that process.
24. Now, although the learned counsel for the appellants
vehemently submitted before us that the act of the appellants was
in exercise of the right of private defence and as such, offence
under Section 302 of Indian Penal code is not attracted against
them, we are, however, unable to accept this submission on
appreciation of the evidence.
25. P.W.21 the star witness of the prosecution i.e., Kumari
Sangeeta – the complainant and injured eyewitness, clearly states
about the incident (prequel) which took place in the morning i.e.,
a quarrel between herself and accused No.2 initially and then
abuses by accused Nos.1 and 3 to her. Then she states that on
return of her father Mahadevappa to their home in the evening,
she apprised him about the morning incident, after which
Mahadevappa then proceeded to house of the accused to make
inquiry about the incident and that he was immediately followed
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by her and her younger brother after which she speaks about the
role played by each of the accused–appellants.
26. She states that appellant No.1 thrashed her father with stick
on his head, appellant No.2 assaulted her father with chopper
(koita) on his head and forehead, then accused No.4 threw a stone
on his right knee and he picked up another stone and punched it
on the mouth of her father. Her mother Shobhavati and her
brothers also stated about the active role played by the accused–
appellants.
27. P.W.25 Shivasharanappa though he had not witnessed the
evening incident, but he stated about the morning incident i.e., the
quarrel between the complainant and accused on account of
blocking the way.
28. As stated above, on careful scrutiny of the version of the
witnesses, it clearly shows that though it was the submission of
the counsel for the appellants that the deceased himself went to
the house of the accused and picked up a quarrel with the accused
persons upon provocation by the deceased, the appellants
exercised their right of private defence, yet on the assessment of
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the evidence of the prosecution, we were unable to find any such
provocation by the deceased Mahadevappa.
29. The evidence clearly show that Mahadevappa was alone, he
went to the house of appellants to make an inquiry, but he had not
entered in his house and on the contrary, accused No.1 Subhash
s/o Shivaray Natikar thrashed the deceased using stick on the
head of Mahadevappa. Accused No. 2 – Dattatrey s/o Subhash
Natikar thrashed the head of Mahadevappa using chopper. Using
a dangerous weapon like chopper (koita), he assaulted
Mahadevappa on his head and forehead. As if this was not
sufficient enough, accused No.4 –Digambar threw a stone on the
right knee of Mahadevappa and then picking up another stone hit
it on the face of deceased.
30. The prosecution evidence further reveals that neither
Sharanappa nor Sangeeta were carrying any weapon. Even though
the evidence further reveals that there was a verbal exchange, but
there is nothing to show that this verbal exchange was in the form
of a provocation by the deceased to the appellants.
31. Though the learned counsel for the appellants raised this
ground before this Court, no such ground is raised either at the
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time of examination of the witnesses or even in 313 statements of
the appellants, i.e. at the trial stage.
32. The learned counsel for the appellants also made an attempt
to submit before us that the prosecution failed to show that the
appellants were carrying any intention to lay an assault on the
deceased Mahadevappa as Mahadevappa himself went to the
house of appellants.
33. We are unable to accept even this submission. The evidence
clearly shows that there was a dispute on account of the way on
18.02.2009 leading to quarrel between P.W.21-Sangeeta and
accused No.2 initially and then accused No.1 and 3 abused
Sangeeta. Mahadevappa proceeded to the house of accused
persons for making an enquiry, as he was appraised by Sangeeta
when he returned to their home. The evidence also shows that
accused no.1 was armed with stick, accused no.2 was armed with
chopper and accused no.4 picked up the stones lying on the spot.
34. P.W.22 Sharanappa clearly states in his deposition before the
Court that the appellant no.2 who was armed with chopper
threatened his father by uttering the words “I shall finish you” and
then assaulted his father with the chopper. Thus, the evidence of
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these injured eyewitnesses clearly shows that the intention of the
accused person was to do away with Mahadevappa. It may not be
out of place to state here that the High Court while considering the
submission on this aspect of exercising their right of private
defence referred to the judgement in the case of Darshan Singh
1
v. State of Punjab and Another relied on by the learned counsel
for the appellant. The apex Court in this judgment observed in
para 33 as follows:
“The basic principle underlying the doctrine of right
of private defence is that when an individual or his
property is faced with a danger and immediate aid
from the State machinery is not readily available,
that individual is entitled to protect himself and his
property. The right of private defence is available
only to one who is suddenly confronted with the
necessity of averting an impending anger not of self-
creation. That being so, the necessary corollary is
that the violence which the citizen defending himself
or his property is entitled to use must not be unduly
disproportionate to the injury which is sought to be
averted or which is reasonably apprehended and
should not exceed its legitimate purpose.”
Now, if this principle is applied and the facts of the present
case are appreciated, it is clear that the victim Mahadevappa was
unarmed, whereas the accused persons who were armed led a
1
AIR 2010 SC 1212
16
brutal attack on the victim Mahadevappa by stick, by koita and
stone.
35. The learned advocate for the State was justified in placing
reliance on the judgment of this Court in the matter of Virsa Singh
2
v. State of Punjab. The relevant paras are as follows:
“13. In considering whether the intention was to
inflict the injury found to have been inflicted, the
enquiry necessarily proceeds on broad lines as,
for example, whether there was an intention to
strike at a vital or a dangerous spot, and whether
with sufficient force to cause the kind of injury
found to have been inflicted. It is, or course, not
necessary to enquire into every last detail as, for
instance, whether the prisoner intended to have
the bowels fall out, or whether he intended to
penetrate the liver or the kidneys or the heart.
Otherwise, a man who has no knowledge of
anatomy could never be convicted, for, if he does
not know that there is a heart or a kidney or
bowels, he cannot be said to have intended to
injure them. Of course, that is not the kind of
enquiry. It is broad-based and simple and based
on common sense: the kind of enquiry that
“twelve good men and true” could readily
appreciate and understand.
14. To put it shortly, the prosecution must prove
the following facts before it can bring a case under
Section 300 “thirdly”.
15. First, it must establish, quite objectively, that
a bodily injury is present.
16. Secondly, the nature of the injury must be
proved; These are purely objective investigations.
2
AIR 1958 SC 465
17
17. Thirdly, it must be proved that there was an
intention to inflict that particular bodily injury,
that is to say, that it was not accidental or
unintentional, or that some other kind of injury
was intended.
18. Once these three elements are proved to be
present, the enquiry proceeds further and.
19. Fourthly, it must be proved that the injury of
the type just described made up of the three
elements set out above is sufficient to cause death
in the ordinary course of nature. This part of the
enquiry is purely objective and inferential and
has nothing to do with the intention of the
offender.
20. Once these four elements are established by
the prosecution (and, of course, the burden is on
the prosecution throughout) the offence is
murder under Section 300 “thirdly”. It does not
matter that there was no intention to cause
death. It does not matter that there was no
intention even to cause an injury of a kind that is
sufficient to cause death in the ordinary course of
nature (not that there is any real distinction
between the two). It does not even mater that
there is no knowledge that an act of that kind will
be likely to cause death. Once the intention to
cause the bodily injury actually found to be
present is proved, the rest of the enquiry is purely
objective and the only question is whether, as a
matter of purely objective inference, the injury is
sufficient in the ordinary course of nature to
cause death. No one has a licence to run around
inflicting injuries that are sufficient to cause
death in the ordinary course of nature and claim
that they are not guilty of murder. If they inflict
injuries of that kind, they must face the
consequences: and they can only escape if it can
be shown, or reasonably deduced, that the injury
was accidental or otherwise unintentional
(emphasis supplied).”
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36. Accordingly, considering all the aspects, we are of the opinion
that the High Court of Karnataka committed no error in upholding
and confirming the judgment and order of Trial Court/Sessions
Court, we see no ground to interfere, the appeal thus fails and is
dismissed.
37. The order dated 31.07.2018 of this Court by which bail was
granted to the appellants is hereby recalled. The appellants are
directed to surrender before the Trial Court within a period of four
weeks from today.
........................................J.
[SUDHANSHU DHULIA]
.........................................J.
[PRASANNA B. VARALE]
NEW DELHI;
APRIL 10, 2024.
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