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2009(1) Supreme 804
SUPREME COURT OF INDIA
(From Karnataka High Court)
Dr. Arijit Pasayat, Dr. Mukundakam Sharma and H.L. Dattu, JJ.
Eliamma & Anr. — Appellants
versus
State of Karnataka — Respondent
Criminal Appeal No. 265 of 2009
(Arising out of SLP (Crl.) No.5359 of 2007)
Decided on : 11-02-2009
Facts of the case :
1. M.T. George (the ‘deceased’) was addicted to alcohol and used to assault A1. On 6.3.1995 at 9.30 p.m. the deceased picked up quarrel, assaulted A1 and tried to pull her sari. A2 and A3 were present.
2. Because of the ghastly conduct of the deceased, A1 dealt a blow with an iron rod on the head of the deceased which resulted in his death. The accused persons stealthily buried the body in the backyard of the house.
3. Trial court held both the accused persons guilty.
4. High Court by the impugned judgment held that actual conviction should have been in terms of Section 304 Part I IPC. But in the absence of challenge by the State there was no scope for interference. The appeal was dismissed.
Finding of the Court :
Trial court should have considered whether the benefit under Section 360 Cr.P.C. can be extended to the appellants.
Result : Appeal partly allowed.
JUDGMENT
Dr. Arijit Pasayat, J. —
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge of the Karnataka High Court dismissing the appeal filed by the appellants. Both the appellants faced trial for alleged commission of offences punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code, 1860(in short the ‘IPC’). Learned Third Additional Sessions judge D.K. at Mangalore in Sessions Case No. 94 of 1995 held that the accused persons were to be convicted in terms of Section 304 Part II and Section 201 read with Section 34 IPC, so far as appellant No.1 is concerned and Section 201 read with Section 34 IPC so far as appellant No.2 is concerned.
3. Background facts giving rise to the trial are as follows:
M.T. George (hereinafter referred to as the ‘deceased’) was addicted to alcohol and used to assault A1. Al had become desperate with the bad conduct of the deceased. On 6.3.1995 at 9.30 p.m. the deceased picked up quarrel, assaulted A1 and tried to pull her sari. A2 and A3 were present. Because of the ghastly conduct of the deceased, A1 dealt a blow with the iron rod on the head of the deceased which resulted in his death. The accused persons stealthily buried the body in the backyard of the house. A1 in the early morning of 7.3.1995 informed school teacher (PW 1) of the village that the deceased quarreled with her and tried to pull her sari. Therefore, she hit the deceased on his head and that he was unwell. PW1 heard the fact from A1 and went away. In the evening PW1 met A2 and made enquiries about the health of the deceased. A2 informed that his father was dead and that they buried the body in the backyard. PW1 suspected foul play and lodged FIR before the police. At the instance of A1 and A2 the dead body buried in the backyard was exhumed on 8.3.1995 in the presence of T.E.M.
The prosecution relied on the extra judicial confession made by A1 before PW 1 and the circumstances of recovery of the dead body at the instance of both the accused persons proved their guilt. An appeal was preferred before the High Court which by the impugned judgment held that actual conviction should have been in terms of Section 304 Part I IPC. But in the absence of challenge by the State there was no scope for interference. The evidence of PW 1 was found to be credible. The appeal was dismissed.
4. Though in support of the appeal learned counsel for the appellant submitted that the High Court ought to have accepted the stand that PW1’s evidence is not without blemish, the same is clearly without substance. The evidence of PW 1 has been analysed by both the trial court and the High Court and have been found to be cogent and credible. The alternative plea of learned counsel for the appellant was that neither the trial court nor the High Court considered the effect of provisions of Section 360 of the Code of Criminal Procedure, 1973 (in short the ‘Cr.P.C.’).
5. Learned counsel for the respondent-State on the other hand supported the judgment.
6. It appears that the trial court convicted A1 under Section 304 Part II IPC and Section 201 read with Section 34 IPC and sentenced him to undergo rigorous imprisonment for four years and one year respectively. So far as A2 is concerned he was convicted under Section 201 read with Section 34 and was sentenced to undergo imprisonment for one year. The other co-accused was convicted by the juvenile court.
7. Section 360 Cr.P.C. reads as follows:
“360. Order to release on probation of good conduct or after admonition :—(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the ag
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