{"id":24094,"date":"2003-01-24T00:00:00","date_gmt":"2003-01-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-karnataka-vs-mohamed-nazeer-babu-on-24-january-2003"},"modified":"2019-03-31T15:12:09","modified_gmt":"2019-03-31T09:42:09","slug":"state-of-karnataka-vs-mohamed-nazeer-babu-on-24-january-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-karnataka-vs-mohamed-nazeer-babu-on-24-january-2003","title":{"rendered":"State Of Karnataka vs Mohamed Nazeer @ Babu on 24 January, 2003"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">State Of Karnataka vs Mohamed Nazeer @ Babu on 24 January, 2003<\/div>\n<div class=\"doc_bench\">Bench: S.N. Variava, D.M. Dharmadhikari<\/div>\n<pre>           CASE NO.:\nAppeal (crl.)  905 of 1995\n\nPETITIONER:\nSTATE OF KARNATAKA\n\nRESPONDENT:\nMOHAMED NAZEER @ BABU\n\nDATE OF JUDGMENT: 24\/01\/2003\n\nBENCH:\nS.N. VARIAVA &amp; D.M. DHARMADHIKARI\n\nJUDGMENT:\n<\/pre>\n<p>JUDGMENT<\/p>\n<p>2003 (1) SCR 555<\/p>\n<p>The Judgment of the Court was delivered<\/p>\n<p>VARIAVA, J. This appeal is against the judgment dated 8th December, 1992.<br \/>\nBriefly stated the facts are as follows:\n<\/p>\n<p>The Respondent was charged for having committed an offence under Section<br \/>\n302 of the Indian Penal Code. The case of the prosecution was that on 13th<br \/>\nof March, 1987, the Respondent went to the house of the deceased Amiruddin<br \/>\nat about 8.30 pm. The Respondent caught hold of the banian of the said<br \/>\nAmiruddin, lifted him up, hit him on the right check and back portion of<br \/>\nthe neck. On hearing the commotion two neighbours (PW.6 and PW.7) came. The<br \/>\nRespondent then stated to Amiruddin that he would not leave him alive and<br \/>\nkicked him with the right knee on his private part. Amiruddin fell down<br \/>\nsaying, &#8220;O&#8217; God, I am dying&#8221;, and he died there. The prosecution case is<br \/>\nthat the Respondent tried to run away but was stopped by the neighbours who<br \/>\ncaught hold of him and thereafter when the police came they handed over the<br \/>\nRespondent to the police.\n<\/p>\n<p>During trial evidence was led of the wife of the deceased Amiruddin, who<br \/>\nwas examined as PW.l. Evidence was also led of the daughter of the deceased<br \/>\nwho was examined as PW.5. Both of them narrated all the above facts. The<br \/>\ntwo neighbours who came to the house, on hearing the commotion, were also<br \/>\nexamined as PW. 6 and PW. 7. These persons were eye-witnesses to the<br \/>\nincident. They confirmed the case that they saw the Respondent giving the<br \/>\ndeceased a kick on his private parts with the right knee saying that he<br \/>\nwould not leave him alive. The testimony of PWs. 1,S,6&amp;7 were not shaken in<br \/>\ncross-examination.\n<\/p>\n<p>The Doctor, who carried out the post-mortem has been examined as PW.2. The<br \/>\nDoctor deposed that it was found that the left side scrotum was swollen and<br \/>\nthe muscles in this region were distorted. He deposed that in the left<br \/>\ntestis was found to be bluish in colour specially more so on the lower and<br \/>\nupper pole. The Doctor opined that all the injuries were ante-mortem in<br \/>\nnature and that the cause of the death was due to neurogenic shock as a<br \/>\nresult of the injury on the testicles and the scrotum. The Doctor deposed<br \/>\nthat such injury can be caused if a kick is given by the right knee on the<br \/>\ntestis. The Doctor deposed that such an injury is sufficient in the normal<br \/>\ncourse immediate death.\n<\/p>\n<p>The trial Court accepted the evidence of the eye-witnesses and the Doctor.<br \/>\nThe trial Court concluded that the persecution had proved his case beyond a<br \/>\nreasonable doubt. The trial Court, however, without assigning any reason<br \/>\nwhatsoever, then held as follows:\n<\/p>\n<p>&#8220;I am of opinion that the offence, bearing in mind the facts of the case<br \/>\ndoes not come u\/s. 302 1PC but comes u\/s 304-II 1PC. The accused has<br \/>\ncommitted an act by which the death is caused is done with the intention of<br \/>\ncausing death or causing such bodily injury as is likely to cause death.<br \/>\nThe act of the accused comes under culpable homicide not amounting to<br \/>\nmurder. The accused has not used any weapon. So I have come to the<br \/>\nconclusion that the offence u\/s. 304 (Part-II) I.P.C. has been committed by<br \/>\nthe accused.&#8221;\n<\/p>\n<p>At this stage it is to be noted that the Trial Court has held that the<br \/>\nprosecution has proved his case beyond a reasonable doubt. The Trial Court<br \/>\nhas also held, as set out above, that the accused has committed an act by<br \/>\nwhich death was caused, with the intention of causing death or by causing<br \/>\nbodily injury as is likely to cause death. We have not been able to fathom<br \/>\non what basis the trial Court then concluded that the offence was one under<br \/>\nSection 304 (Part-II). We can only surmise that the trial Court convicted<br \/>\nthe Respondent under Section 304 (Part-II), IPC, out of misplaced sympathy,<br \/>\nso that it could sentence the Respondent to undergo RI only for five years<br \/>\nand pay a fine of Rs. 3,000. Surprisingly the State never went in Appeal<br \/>\nagainst this sentence.\n<\/p>\n<p>The Respondent filed an Appeal to the High Court. The High Court did not<br \/>\ninterfere with the conviction of the accused, however, the High Court then<br \/>\ngoes on to hold as follows:\n<\/p>\n<p>&#8220;It may be noticed that there is absolutely no evidence that the accused<br \/>\naimed the particular blow, given by the knee, at that particular part of<br \/>\nthe body of the deceased.&#8221;\n<\/p>\n<p>To be remembered that the High Court is not disbelieving PWs 1,5,6,&amp;7.<br \/>\nTheir evidence is categoric that Respondent stated that &#8220;he would not leave<br \/>\nhim alive&#8221; and then kicked him in the private part. The normal deposition<br \/>\nof witnesses would be that a blow or kick was on a particular part of the<br \/>\nbody. One has never come across nor can it be expected of the witnesses to<br \/>\nstate that the blow or kick was aimed at the private parts or a particular<br \/>\npart and that it then landed on that part. Thus the above extracted<br \/>\nobservations of the High Court appear to be absolutely meaningless. As<br \/>\nregards the evidence of Respondent&#8217;s statement the High Court holds as<br \/>\nfollows:\n<\/p>\n<p>The learned High Court Government Pleader, contended that there was<br \/>\nevidence of several witnesses, to the effect that he would finish of the<br \/>\ndeceased. The very fact that the learned Sessions Judge has not convicted<br \/>\nthe accused for an offence under Section 302 IPC, and that the State has<br \/>\nnot challenged the acquittal of the accused in respect of the said offence<br \/>\nshows that the case that the accused had the intention to commit the murder<br \/>\nof the deceased has not been accepted and that has become final. Therefore,<br \/>\nthere is no scope for the State still to canvas that by the evidence of<br \/>\nseveral eye-witnesses it has to be held that the accused had the intention<br \/>\nof committing the murder of the deceased.\n<\/p>\n<p>The High Court has fallen in error here also. As set out hereinabove the<br \/>\ntrial Court holds that the Respondent had intention to cause death. The<br \/>\nHigh Court should have noticed that trial Court had unnecessarily,<br \/>\nthereafter, changed the offences into one of a lesser nature. The High<br \/>\nCourt is also not disbelieving the evidence. It, therefore, should not have<br \/>\nconcluded that there was no intention to cause death. Even otherwise, the<br \/>\nHigh Court should have noticed that the conviction under Section 304 Part-<br \/>\nII IPC would be only if there was no intention to kill. The High Court<br \/>\nerred in not noticing that the statement and the kick at the private part<br \/>\nshowed that the Respondent had knowledge that it was likely to cause death<br \/>\nor to cause such bodily injury as is likely to cause death.\n<\/p>\n<p>The High Court then goes on to hold as follows:-\n<\/p>\n<p>&#8220;Having regard to the nature of the injuries caused and also the fact that<br \/>\nthe evidence tendered by the eye-witnesses has not been accepted regarding<br \/>\nthe intention to cause the death or the intention to cause bodily injury as<br \/>\nis likely to cause the death, and the fact that no injury, external or<br \/>\ninternal has been caused by the particular kick, and the death, in fact<br \/>\nresulted only on account of neurogenic shock, it cannot also be said that<br \/>\nthe accused committed an act with the knowledge that likely to cause such<br \/>\ndeath. Therefore, it is clear that the case of the accused does not fit<br \/>\ninto section 299 of the IPC. Once that is so, there is no scope to hold<br \/>\nthat the accused is guilty for the offences under Section 304 Part II IPC.\n<\/p>\n<p>Having regard to the fact that no grievous hurt has been caused, it is<br \/>\nclear that the only offence for which the accused could be convicted under<br \/>\nthe circumstances is the one under Section 323 IPC.&#8221;\n<\/p>\n<p>On this reasoning, the High Court sets aside the conviction under Section<br \/>\n304-II, and convicts the accused under Section 323. The High Court has<br \/>\nreleased the Respondent after admoishing him under Section 3 of the<br \/>\nProbation of Offenders Act, 1958. Hence this Appeal by the State.\n<\/p>\n<p>As has been set out hereinabove, he evidence of eye-witnesses, namely, PWs<br \/>\nI,S,6,&amp;7 establishes beyond a reasonable doubt that the Respondent came to<br \/>\nthe house of the deceased Amiruddin, caught hold of the deceased by his<br \/>\nbanian, lifted him up, hit him on the cheek and thereafter on the back of<br \/>\nthe neck. The evidence establishes that when he saw neighbours coming he<br \/>\nstated to Amiruddin that he would not leave him alive and then kicked<br \/>\nAmiruddin with the right on the private part. This resulted in the death of<br \/>\nAmiruddin. The evidence of the Doctor has also not been dis-believed. The<br \/>\nevidence of the Doctor clearly show that the death was caused due to<br \/>\nneurogenic shock resulting from injury to the testicles and scrotum. Thus<br \/>\nthe death is directly due to the injury caused by the Respondent to the<br \/>\ndeceased. The injury was such that it was sufficient in the normal course<br \/>\nto cause death. The injury resulted in death. The High Court was in error<br \/>\nin stating that there was no injury. The High Court noted that death<br \/>\nresulted from neurogenic shock but failed to note that the neurogenic shock<br \/>\nwas a result of the injury to the testicles and scrotum. The High Court<br \/>\nomitted to note that such injury could be caused by a kick and was<br \/>\nsufficient in normal course to cause immediate death. This was not a case<br \/>\nwhere in a fit of anger or in a scuffle some act had taken place. We fail<br \/>\nto understand how under such circumstances the High Court can conclude that<br \/>\nthe conviction can only be under Section 323 IPC. The injury caused was not<br \/>\neven a simple injury. Section 323 would be wholly inapplicable. This was a<br \/>\ncase where the conviction should have been under Section 302 IPC. In any<br \/>\nevent, this was a case where the High Court would never have interfered<br \/>\nwith the conviction under Section 304 (Part-II) IPC.\n<\/p>\n<p>Ms. Kiran Suri relied upon the case in <a href=\"\/doc\/1882276\/\">State of Karnataka v. Shivalingaiah<\/a><br \/>\nalias Handigidda, reported in [1988] Supp SCC 533. In this case, there was<br \/>\nan altercation between two parties and in the course of the altercation,<br \/>\nthe Respondent squeezed the testicles of the deceased, who then fell down<br \/>\nunconscious and died. The evidence of the Doctor was that the death was as<br \/>\na result of cardiac arrest resulting from shock due to injuries to the<br \/>\ntesticles. It is on those facts that this Court held that there was no<br \/>\nevidence of intention to commit a murder. It was on those facts that it was<br \/>\nheld that neither Section 302 nor 304-II IPC would apply. To be noted<br \/>\nhowever that this Court convicted the accused under Section 325 IPC. In our<br \/>\nview, the facts of that case are entirely different from the present case<br \/>\nand thus the ratio laid therein can be of no assistance to the Respondent.\n<\/p>\n<p>Reliance was also placed upon the case of Commandant, 20th <a href=\"\/doc\/1654470\/\">Battalion, ITB<br \/>\nPolice v. Sanjay Binjola,<\/a> reported in [2001] 5 SCC 317, where it has been<br \/>\nheld that as the offence was of a very trivial nature, benefit of Probation<br \/>\nof Offenders Act, 1958 could be granted to the accused. In the present<br \/>\ncase, as stated above, the offence is not trivial. The Respondent had gone<br \/>\nto the house of the deceased in the evening and inflicted the injury which<br \/>\ncaused death. This is not a fit case where any such benefit can be given to<br \/>\nthe Respondent. As stated hereinabove, the trial Court has, in our view,<br \/>\nalready been too lenient. However, as the State has chosen not to file any<br \/>\nappeal against the judgment of the trial Court, we do not propose to<br \/>\ninterfere with the conviction and sentence as imposed by the trial Court.\n<\/p>\n<p>In this view of the matter, we set aside the impugned judgment and restore<br \/>\nthat of the trial Court. The bail bonds of the accused shall stand<br \/>\ncancelled. He shall be taken into custody forthwith. The amount of fine as<br \/>\nimposed by the trial Court, if recovered, be paid to P.W.I. The Appeal<br \/>\nstands disposed of accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India State Of Karnataka vs Mohamed Nazeer @ Babu on 24 January, 2003 Bench: S.N. Variava, D.M. Dharmadhikari 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 &amp; D.M. DHARMADHIKARI JUDGMENT: JUDGMENT 2003 (1) SCR 555 The Judgment [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-24094","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>State Of Karnataka vs Mohamed Nazeer @ Babu on 24 January, 2003 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-karnataka-vs-mohamed-nazeer-babu-on-24-january-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Karnataka vs Mohamed Nazeer @ Babu on 24 January, 2003 - Free Judgements of Supreme Court &amp; 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