2013 Supreme(SC) 595

IN THE SUPREME COURT OF INDIA
T.S. THAKUR, GYAN SUDHA MISRA, JJ.
Manoj and Anr. …Appellants
Versus
State of Karnataka …Respondent
CRIMINAL APPEAL NO.852 OF 2013 (Arising out of S.L.P (Crl.) No.2597 of 2012)
Decided on : July 5, 2013

Headnote:Indian Penal Code, 1860—Section 302—Appellant son and father assaulted deceased and victim died on spot—Incident was witnessed by five eye witnesses and only two eye witnesses supported the case—Appeal against conviction —Appellant No.1 had developed illicit relation with wife of deceased stood duly proved for deposition of wife of deceased—Testimony of two eye witnesses stood lest of cross-examination and was not shaken—Presence of witnesses on spot and place like his stand was quite natural—Medical evidence supported ocular version—Conviction of appellant No.1 who assaulted deceased by sword causing number of injuries was liable to be affirmed.

       Held: No manner of doubt that the three witnesses referred to earlier have clearly testified about the sequence of events leading to the death of Sadashiv which version has been found to be reliable by the Courts below. We see no reason to strike a discordant note for there is hardly any infirmity in the depositions referred to above which have stood the test of lengthy cross-examination by the defence. That the deceased suspected his wife’s fidelity and an illicit intimacy with appellant Manoj is sufficiently proved from the deposition of the widow of the deceased, Shreshiala and Mahadev the other two witnesses referred to above. It is also evident from the said depositions that the deceased had forbidden the appellant Manoj from coming to his house and threatened to kill him in case he did so again. This happened shortly before the incident in question. The mutual relationship between the deceased and the appellant Manoj was thus embittered. On the date of the occurrence the presence of the deceased around the bus stand where the occurrence took place has also been sufficiently proved by the deposition of the witnesses including the police witnesses who have prepared the site plan and made seizures from the spot. So, also the presence of the two eye witnesses on the spot at the time of occurrence in a place like a bus stand is in no way abnormal to cast any doubt about their credibility. The medical evidence adduced at the trial too supports the ocular version. The doctor has clearly reported that the crush injury on the face could be caused by the stone (MO.2) while the other injury could have been inflicted by the sword which appellant Manoj was allegedly carrying at the time of the incident. The presence of human blood on these two objects sufficiently supports the prosecution’ case that the said weapons were used for the commission of the offence.

       (ii) Indian Penal Code, 1860—Section 302/34—Conviction of accused appellant No.2 father of appellant No.1 with help of Section 34—Appellant armed with sword assaulted deceased and appellant No.2 hit deceased with a stone on his face—Appellant No. 1 was being suspected by deceased to have developed illicit relation with his wife—Verbal altercation was going on between appellant No.1 and deceased when appellant No. 2 intervened—Injury caused by appellant No.2 was not sufficient to cause death—No evidence of appellant had a pre-consent to kill deceased—Appellant No. 2 was liable to convicted under Section325 IPC alone.

       Held: Learned Counsel for the appellants, however, argued that even though appellant Manoj was alleged to have used the sword to inflict injuries on the deceased, the role played by appellant No.2 was restricted to throwing a stone towards the deceased. Even when the stone had caused an injury there was nothing to show that it was intended to kill the deceased especially when it is not the case of the prosecution that even after the stone had hit the deceased the assault was continued by appellant No.2 with or without the help of appellant No. 1 Manoj. There is considerable merit in that submission. Even according to PW-8-Shrishail Shettappa Shelannavar when he stepped out of the dhaba, he found a verbal altercation going on between the deceased and the accused persons. In the course of that altercation appellant No.2 does appear to have hurled a stone towards the deceased which hit and injured him but there is nothing to show that the injury was by itself sufficient to cause death in the ordinary course nor is there anything to show that there was any pre-concert between the appellant Manoj and his father to kill the deceased. In the absence of any evidence, let alone evidence that is reliable and cogent, to show that appellant No.2 intended to cause death or shared the intention to cause death with his son, it is difficult to sustain his conviction for murder punishable under Section 302 of the IPC. The prosecution has not even alleged a motive against appellant No.2. The motive based on illicit relationship between appellant Manoj and the wife of the deceased, could hardly be attributed to appellant No.2, no matter, the incident started with an altercation in which even he got involved. The sudden fight between the appellants on the one hand and the deceased on the other, escalated into a tragedy for the deceased but the responsibility for the gruesome assault, cannot be shifted from Manoj who used a dangerous weapon like a sword to fatally injury the deceased. The stone thrown by appellant No.2 may have triggered the incident to its ugly end but beyond that appellant No.2 cannot be attributed the responsibility of murder with or without the assistance of Section 34 of the IPC. Appellant No.2 can at best be held guilty of causing grievous hurt to the deceased punishable under Section 325 of the IPC.

       Result: Appeal disposed of accordingly.