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2023 Supreme(SC) 120
SUPREME COURT OF INDIA
AJAY RASTOGI, BELA M. TRIVEDI, JJ.
Suresh - Appellant
Versus
State of Kerala - Respondent
Criminal Appeal No(s). 452 of 2023 (Arising out of SLP(Crl.) No(s). 178 of 2020)
Decided On : 14-02-2023
For the Petitioner(s): Ms. Sangeeta Kumar, AOR Mrs. Vithika Garg, Adv. Ms. Vidushi Garg, Adv. Mr. Ashwani Garg, Adv.
For the Respondent(s): Mr. Harshad V. Hameed, AOR Mr. Dileep Poolakkot, Adv. Mr. Subhash Chandran K.r., Adv. Mrs. Ashly Harshad, Adv.
IMPORTANT POINT
Conviction and sentence has to be upheld where prosecution evidence is consistent on all material aspects.
Headnote:
Indian Penal Code, 1860 – Sections 302 and 449 – Murder and house trespass – Life sentence – Post-mortem report reveals that heavy grinding stone was used for commission of offence and pressure was applied while inflicting injury on body of victim over vital parts, head and chest – Oral evidence tendered by wife of deceased would show that there is no embellishment but what is narrated by her is true version of what she had experienced on alleged date and time of incident. She had given a narration of the alleged incident which is having two separate episodes – Death of victim was not caused in heat of sudden fight and it was a case of murder under Section 302 IPC and not under any exceptions of Section 300 IPC – Appellant has rightly been convicted under Sections 302 and 449 of IPC – Appeal dismissed. (Paras 7, 8, 10 and 11)
Facts of the case:
Instant appeal is directed against the judgment dated 6th November, 2018 affirming conviction of accused appellant under Sections 302 and 449 of the Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.5000/- for offence punishable Section 449 IPC and to undergo imprisonment for life and to pay a fine of Rs.5,000/- for offence punishable under Section 302 IPC.
Findings of Court:
Strict scrutiny of the oral evidence tendered by PW13 would show that there is no embellishment but what is narrated by her is true version of what she had experienced on the alleged date and time of the incident. She had given a narration of the alleged incident which is having two separate episodes.
Result : Appeal dismissed.
JUDGMENT :
Rastogi, J.
1. Leave granted.
2. The instant appeal is directed against the judgment dated 6th November, 2018 affirming conviction of the accused appellant under Sections 302 and 449 of the Indian Penal Code, 1860 (hereinafter being referred to as the “IPC”) and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5000/- for the offence punishable Section 449 IPC and to undergo imprisonment for life and to pay a fine of Rs.5,000/- for the offence punishable under Section 302 IPC.
3. Limited notice was issued by this Court with respect to the sentence awarded taking note of the submission of the learned counsel for the appellant that whether the case falls within the contours of Section 304 Part-I IPC and not under Section 302 IPC which reveals from the Order dated 8th January, 2020.
4. The case of the prosecution is that at the time of alleged incident, victim Devarajan, husband of PW-13, was residing in quarter no. 109 of Siruvani Estate. The incident happened within the dwelling house of both victim Devarajan and PW-13 (wife of the victim). The appellant was found guilty of murder mainly based on the oral evidence tendered by PW-13 wife of the deceased, the eye-witness of the alleged incident, the corroboration given by PW-14 who had given FIS and the oral evidence of PW-1, besides the injury sustained by the appellant in the alleged incident and the recovery of weapon used for commission of offence.
5. The learned Sessions Judge, in the first instance, found the appellant guilty and punished him for offence punishable under Sections 302 and 449 IPC and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/- for the offence punishable under Section 449 IPC and to undergo imprisonment for life and to pay a fine of Rs.5000/- for the offence punishable under Section 302 IPC.
6. The injuries alleged to have been sustained by the victim which are noted as ante-mortem injury nos.1 to 13 in Ext P6 post-mortem examination report, are as follows :-
“B. INJURIES ANTEMORTEM:
1. Contusion 2.5x2.5x1 cm on the outer aspect of right forehead inner lower extend at the right eyebrow and 5 cm outer to midline.
2. Contusion 7x3x2cm obliquely placed on the right side of face over the cheek region incorporating a lacerated wound 1x0.5x0.2 cm obliquely placed and parallel to the contusion on its lower portion. Its lower extend 6 cm above lower border of jawbone and 7 cm outer to midline.
3. Abrasion 0.5x0.5 cm right side of forehead 4 cm above right eyebrow and 1 cm outer to midline.
4. Abraded contusion 1.5x0.5x0.2 cm over the outer and top aspect of helix of left pinna of left ear.
5. Abraded contusion 1x1x0.3 cm over the left side of neck 1 cm below the ear.
6. Lacerated wound 2x0.2 cm bone deep obliquely placed over the left side and back of head with surrounding abrasion over an area 2x1 cm its inner lower end 2.5 cm above external occipital protuberance and 3 cm outer to midline.
On dissection and reflecting the scalp, a contusion 11x3 cm involving the full thickness of scalp, obliquely placed underneath, upper inner extend at left parietal prominence. Another contusion 13x8 cm over the left parieto temporal region involving its full thickness, lower extent at left ear, the left temporalis muscle underneath was contused. Another contusion 4x3 cm right parieto temporal region, lower extend 2 cm above right ear. The temporalis muscle underneath was contused involving its full thickness. The skull was intact, on removing the top of skull, the dura was found stretched and bulging. Thin subarachnoid haemorrhage seen bilaterally over right and left parieto temporal region. Brain was congested and oedematous.
7. Abrasion 1.5x0.5 cm transversely placed on left side of root of neck, front end 11 cm outer to midline and 12 cm below mastoid bone tip.
8. Contusion 22x1230 cm bone deep on the back of chest across midline upper extent 13 cm below root of neck. Contusio
