CASE NO.: Appeal (crl.) 905 of 1995 PETITIONER: STATE OF KARNATAKA RESPONDENT: MOHAMED NAZEER @ BABU DATE OF JUDGMENT: 24/01/2003 BENCH: S.N. VARIAVA & D.M. DHARMADHIKARI JUDGMENT:
JUDGMENT
2003 (1) SCR 555
The Judgment of the Court was delivered
VARIAVA, J. This appeal is against the judgment dated 8th December, 1992.
Briefly stated the facts are as follows:
The Respondent was charged for having committed an offence under Section
302 of the Indian Penal Code. The case of the prosecution was that on 13th
of March, 1987, the Respondent went to the house of the deceased Amiruddin
at about 8.30 pm. The Respondent caught hold of the banian of the said
Amiruddin, lifted him up, hit him on the right check and back portion of
the neck. On hearing the commotion two neighbours (PW.6 and PW.7) came. The
Respondent then stated to Amiruddin that he would not leave him alive and
kicked him with the right knee on his private part. Amiruddin fell down
saying, “O’ God, I am dying”, and he died there. The prosecution case is
that the Respondent tried to run away but was stopped by the neighbours who
caught hold of him and thereafter when the police came they handed over the
Respondent to the police.
During trial evidence was led of the wife of the deceased Amiruddin, who
was examined as PW.l. Evidence was also led of the daughter of the deceased
who was examined as PW.5. Both of them narrated all the above facts. The
two neighbours who came to the house, on hearing the commotion, were also
examined as PW. 6 and PW. 7. These persons were eye-witnesses to the
incident. They confirmed the case that they saw the Respondent giving the
deceased a kick on his private parts with the right knee saying that he
would not leave him alive. The testimony of PWs. 1,S,6&7 were not shaken in
cross-examination.
The Doctor, who carried out the post-mortem has been examined as PW.2. The
Doctor deposed that it was found that the left side scrotum was swollen and
the muscles in this region were distorted. He deposed that in the left
testis was found to be bluish in colour specially more so on the lower and
upper pole. The Doctor opined that all the injuries were ante-mortem in
nature and that the cause of the death was due to neurogenic shock as a
result of the injury on the testicles and the scrotum. The Doctor deposed
that such injury can be caused if a kick is given by the right knee on the
testis. The Doctor deposed that such an injury is sufficient in the normal
course immediate death.
The trial Court accepted the evidence of the eye-witnesses and the Doctor.
The trial Court concluded that the persecution had proved his case beyond a
reasonable doubt. The trial Court, however, without assigning any reason
whatsoever, then held as follows:
“I am of opinion that the offence, bearing in mind the facts of the case
does not come u/s. 302 1PC but comes u/s 304-II 1PC. The accused has
committed an act by which the death is caused is done with the intention of
causing death or causing such bodily injury as is likely to cause death.
The act of the accused comes under culpable homicide not amounting to
murder. The accused has not used any weapon. So I have come to the
conclusion that the offence u/s. 304 (Part-II) I.P.C. has been committed by
the accused.”
At this stage it is to be noted that the Trial Court has held that the
prosecution has proved his case beyond a reasonable doubt. The Trial Court
has also held, as set out above, that the accused has committed an act by
which death was caused, with the intention of causing death or by causing
bodily injury as is likely to cause death. We have not been able to fathom
on what basis the trial Court then concluded that the offence was one under
Section 304 (Part-II). We can only surmise that the trial Court convicted
the Respondent under Section 304 (Part-II), IPC, out of misplaced sympathy,
so that it could sentence the Respondent to undergo RI only for five years
and pay a fine of Rs. 3,000. Surprisingly the State never went in Appeal
against this sentence.
The Respondent filed an Appeal to the High Court. The High Court did not
interfere with the conviction of the accused, however, the High Court then
goes on to hold as follows:
“It may be noticed that there is absolutely no evidence that the accused
aimed the particular blow, given by the knee, at that particular part of
the body of the deceased.”
To be remembered that the High Court is not disbelieving PWs 1,5,6,&7.
Their evidence is categoric that Respondent stated that “he would not leave
him alive” and then kicked him in the private part. The normal deposition
of witnesses would be that a blow or kick was on a particular part of the
body. One has never come across nor can it be expected of the witnesses to
state that the blow or kick was aimed at the private parts or a particular
part and that it then landed on that part. Thus the above extracted
observations of the High Court appear to be absolutely meaningless. As
regards the evidence of Respondent’s statement the High Court holds as
follows:
The learned High Court Government Pleader, contended that there was
evidence of several witnesses, to the effect that he would finish of the
deceased. The very fact that the learned Sessions Judge has not convicted
the accused for an offence under Section 302 IPC, and that the State has
not challenged the acquittal of the accused in respect of the said offence
shows that the case that the accused had the intention to commit the murder
of the deceased has not been accepted and that has become final. Therefore,
there is no scope for the State still to canvas that by the evidence of
several eye-witnesses it has to be held that the accused had the intention
of committing the murder of the deceased.
The High Court has fallen in error here also. As set out hereinabove the
trial Court holds that the Respondent had intention to cause death. The
High Court should have noticed that trial Court had unnecessarily,
thereafter, changed the offences into one of a lesser nature. The High
Court is also not disbelieving the evidence. It, therefore, should not have
concluded that there was no intention to cause death. Even otherwise, the
High Court should have noticed that the conviction under Section 304 Part-
II IPC would be only if there was no intention to kill. The High Court
erred in not noticing that the statement and the kick at the private part
showed that the Respondent had knowledge that it was likely to cause death
or to cause such bodily injury as is likely to cause death.
The High Court then goes on to hold as follows:-
“Having regard to the nature of the injuries caused and also the fact that
the evidence tendered by the eye-witnesses has not been accepted regarding
the intention to cause the death or the intention to cause bodily injury as
is likely to cause the death, and the fact that no injury, external or
internal has been caused by the particular kick, and the death, in fact
resulted only on account of neurogenic shock, it cannot also be said that
the accused committed an act with the knowledge that likely to cause such
death. Therefore, it is clear that the case of the accused does not fit
into section 299 of the IPC. Once that is so, there is no scope to hold
that the accused is guilty for the offences under Section 304 Part II IPC.
Having regard to the fact that no grievous hurt has been caused, it is
clear that the only offence for which the accused could be convicted under
the circumstances is the one under Section 323 IPC.”
On this reasoning, the High Court sets aside the conviction under Section
304-II, and convicts the accused under Section 323. The High Court has
released the Respondent after admoishing him under Section 3 of the
Probation of Offenders Act, 1958. Hence this Appeal by the State.
As has been set out hereinabove, he evidence of eye-witnesses, namely, PWs
I,S,6,&7 establishes beyond a reasonable doubt that the Respondent came to
the house of the deceased Amiruddin, caught hold of the deceased by his
banian, lifted him up, hit him on the cheek and thereafter on the back of
the neck. The evidence establishes that when he saw neighbours coming he
stated to Amiruddin that he would not leave him alive and then kicked
Amiruddin with the right on the private part. This resulted in the death of
Amiruddin. The evidence of the Doctor has also not been dis-believed. The
evidence of the Doctor clearly show that the death was caused due to
neurogenic shock resulting from injury to the testicles and scrotum. Thus
the death is directly due to the injury caused by the Respondent to the
deceased. The injury was such that it was sufficient in the normal course
to cause death. The injury resulted in death. The High Court was in error
in stating that there was no injury. The High Court noted that death
resulted from neurogenic shock but failed to note that the neurogenic shock
was a result of the injury to the testicles and scrotum. The High Court
omitted to note that such injury could be caused by a kick and was
sufficient in normal course to cause immediate death. This was not a case
where in a fit of anger or in a scuffle some act had taken place. We fail
to understand how under such circumstances the High Court can conclude that
the conviction can only be under Section 323 IPC. The injury caused was not
even a simple injury. Section 323 would be wholly inapplicable. This was a
case where the conviction should have been under Section 302 IPC. In any
event, this was a case where the High Court would never have interfered
with the conviction under Section 304 (Part-II) IPC.
Ms. Kiran Suri relied upon the case in State of Karnataka v. Shivalingaiah
alias Handigidda, reported in [1988] Supp SCC 533. In this case, there was
an altercation between two parties and in the course of the altercation,
the Respondent squeezed the testicles of the deceased, who then fell down
unconscious and died. The evidence of the Doctor was that the death was as
a result of cardiac arrest resulting from shock due to injuries to the
testicles. It is on those facts that this Court held that there was no
evidence of intention to commit a murder. It was on those facts that it was
held that neither Section 302 nor 304-II IPC would apply. To be noted
however that this Court convicted the accused under Section 325 IPC. In our
view, the facts of that case are entirely different from the present case
and thus the ratio laid therein can be of no assistance to the Respondent.
Reliance was also placed upon the case of Commandant, 20th Battalion, ITB
Police v. Sanjay Binjola, reported in [2001] 5 SCC 317, where it has been
held that as the offence was of a very trivial nature, benefit of Probation
of Offenders Act, 1958 could be granted to the accused. In the present
case, as stated above, the offence is not trivial. The Respondent had gone
to the house of the deceased in the evening and inflicted the injury which
caused death. This is not a fit case where any such benefit can be given to
the Respondent. As stated hereinabove, the trial Court has, in our view,
already been too lenient. However, as the State has chosen not to file any
appeal against the judgment of the trial Court, we do not propose to
interfere with the conviction and sentence as imposed by the trial Court.
In this view of the matter, we set aside the impugned judgment and restore
that of the trial Court. The bail bonds of the accused shall stand
cancelled. He shall be taken into custody forthwith. The amount of fine as
imposed by the trial Court, if recovered, be paid to P.W.I. The Appeal
stands disposed of accordingly.