Lokesh Shivakumar vs State Of Karnataka

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1326 OF 2005

LOKESH SHIVAKUMAR ... APPELLANT

VERSUS

STATE OF KARNATAKA ... RESPONDENT

J U D G M E N T

Aftab Alam, J.

1. The appellant who was accused No.2 before the

trial court is convicted under section 302 read

with section 34 of the Penal Code and is sentenced

to rigorous imprisonment for life and a fine of

Rs.500/- with the default sentence of rigorous

imprisonment for a week.

2. According to the prosecution case, one

Dharamaraj, the deceased was engaged in the

business of money lending and accused No.1 Madhu @

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Mahadeva had borrowed from him Rs.10,000/-.

Dharamaraj went to jail in connection with some

case, authorizing his younger brother Mallesha

(informant-PW.1) to realise the money from his

debtors in his absence. Mallesha tried to realise

the loan amount from Madhu but was unsuccessful. On

July 18, 1997, when Dharamaraj came out from the

jail, Mallesha told him that Madhu had not refunded

the money due to him. Dharamaraj said that he would

himself get back the money from Madhu. It is

further the prosecution case that on July 21, 1997,

there was a festival in the village and in the

evening at about 5:45 PM, the deceased and his

brother Mallesha (PW.1) were in their house. At

that time Madhu came to them and asked Dharamaraj

to go out with him saying that he wanted to pay

back the money that he had borrowed from him.

Dharamaraj went along with him but, as he did not

return after about half an hour, Mallesha along

with two of his associates (Mahesh PW.2) and

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(Mukunda PW.14) went looking for him in the

direction of Madhu's house. On reaching near the

house of Shivanna (accused No.3) they saw

Dharamaraj surrounded by Madhu, the appellant and

Shivanna and Thomas (accused nos.3 & 4

respectively). Shivanna and Thomas were hitting him

with fists as a result of which he fell down. At

that point, the appellant picked up one gobbaly

tree wood piece which was lying there and swinging

it like a club hit Dharamaraj with it on the right

side of his head. Madhu then picked up a large

stone and flung it on the head of Dharamaraj.

Dharamaraj got severe bleeding injuries on his

head, face and nose. He was taken to a hospital but

was declared brought dead.

3. Before the trial court, PWs.1, 2 and 14 were

examined as eye witnesses, who fully supported the

prosecution case. The doctor who had conducted the

post-mortem on the dead body of Dharamaraj was

examined as PW.11. He proved the post-mortem

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report. According to the doctor, he found a number

of external injuries on the body of Dharamaraj

which he described as follows:-

"1. Obliquely situated lacerated wound on

the right frontal region measuring 2-

1/2" x =" x bone deep with the

compound fracture of underlying

frontal bone.

2. Obliquely situated lacerated wound on

the lateral aspect of the right eye

brow; 1-1/2" x =" into bone deep with

fracture of underlying bone.

3. Compromise at the root of the nose

with fracture on nasal bone."

4. Lacerated wound on the right side of

the lower lip =" x <".

5. Abrasion on the anterior aspect of the

right leg =" x <"."

On dissection, the external injuries were found

corresponding to the following internal injuries:

1. Fracture of right side of the frontal

bone of the skull, fracture of right orbit,

fracture of nasal bone with crushing of right

eye ball.

2. The membrane of the frontal region was

returned.

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3. Brain matters of right anterior part

of the brain was crushed.

4. The gobbaly tree wood piece used by the

appellant and the stone piece that Madhu had flung

on the head of the deceased were also produced

before the court as MO.2 and MO.1 respectively. On

being shown the two material objects, the doctor

stated that the injuries found on the dead body

were possible if the person was assaulted with the

club MO.2 and the stone MO.1. Further, replying to

a question in cross-examination the doctor said

that injuries Nos.2 & 3 found on the external

examination of the body as recorded in the post-

mortem report could have been caused if the

deceased was hit with a stone and the other

injuries could have been caused with the club or on

coming into contact with a hard surface.

5. The trial court convicted all the four accused

under section 302/34 of the Penal Code and

sentenced them to life imprisonment and a fine of

Rs.500/- each.

6 6. On appeal, the High Court found and held that

there was no evidence that accused Nos. 3 & 4

shared the common intention of causing the death of

Dharamaraj. It, accordingly, acquitted them of the

charge but maintained the conviction and sentence

of the appellant and accused No.1, Madhu.

7. Against the judgment of the High Court, the

appellant has come in appeal. Mr. Naresh Kumar,

learned counsel appearing for the appellant

strenuously argued that like the other two accused

acquitted by the High Court, there could be no

application of section 34 of the Penal Code in the

case of the appellant as well and his conviction

under section 302 of the Penal Code with the aid of

that section was wholly unsustainable. Learned

counsel submitted that the appellant had no motive

to commit the offence since he did not owe any

money to the deceased and it was only Madhu who

owed him Rs.10,000/- and, thus, could be said to

have the motive to kill him. Secondly, according

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to the learned counsel, there was discrepancy

between the ocular evidence and the medical

evidence and thirdly the appellant had not brought

any weapon for commission of the offence. All these

circumstances cumulatively ruled out his sharing

the common intention to kill Dharamaraj.

8. As regards motive, it is well established that

if the prosecution case is fully established by

reliable ocular evidence coupled with medical

evidence, the issue of motive loses practically all

relevance. In this case, we find the ocular

evidence led in support of the prosecution case

wholly reliable and see no reason to discard it.

The submission, therefore, that the appellant had

no motive for the commission of offence is not of

any significance. As to any discrepancy between the

ocular evidence and the medical evidence, we find

none. All the three eye witnesses, namely, PWs.1, 2

and 14 deposed that the appellant picked up a

gobbaly tree wood piece and struck on the right

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side of the head of Dharamaraj with it. It is seen

above that the first external injury recorded in

the post-mortem report that caused the compound

fracture of underlying frontal bone was on the

right frontal region and according to the doctor,

it could have been caused by the piece of wood

(MO.2). We, therefore, fail to see any discrepancy

between the medical evidence and the ocular

evidence. On the contrary, the medical evidence

tends to corroborate the eye witness account of the

occurrence. The third submission that the appellant

had not brought any weapon with him is equally

without substance, as it is well settled that

common intention can form and develop even in

course of the occurrence. It is true that the

appellant had not brought with him any weapon but

it is equally true that in the gobbaly tree wood

piece lying at the place of occurrence he found one

and used it with lethal effect.

9 9. In support of the submission that section 34 of

the Penal Code shall have no application to the

case of the appellant, learned counsel relied upon

a number of decisions of this Court, namely, Y.

Venkaiah v. State of Andhra Pradesh, (2009) 12 SCC

126, Jagannath v. State of Madhya Pradesh, (2007)

15 SCC 378, Laxmanji and another v. State of

Gujarat, (2008) 17 SCC 48, State of Punjab v.

Bakhshish Singh and others,(2008) 17 SCC 411,

Sripathi and others v. State of Karnataka, (2009)

11 SCC 660 and Akaloo Ahir v. State of Bihar (2010)

12 SCC 424. Of the many cases cited by the learned

counsel, Venkaiah's case has no application to the

facts of the case in hand but the other decisions

relied upon in support of the contention would need

some explaining.

10. In Jagannath (supra), two brothers, namely,

Dhoomsingh and Ramsingh (the deceased) had

collected drift wood from a river that flowed by

the side of their house. The appellant, Jagannath,

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and one Prabhudayal stole the wood collected by the

two brothers on which an altercation took place

between the two sides. In course of the

altercation, Prabhudayal gave an axe blow on the

head of Ramsingh that led to his death. The

appellant, Jagannath, according to the prosecution

case, caused some injuries to the informant (PW-11)

and another witness, Naval Singh (PW-2), who had

come on the site of occurrence. The injuries caused

by the appellant Jagannath to the two witnesses

were all simple in nature. It is, thus, to be noted

that the occurrence took place in course of an

altercation. The appellant Jagannath did not cause

any injury to the deceased and caused only some

simple injuries to the two prosecution witnesses.

It was in those facts and circumstances that this

Court held that he could not be said to have shared

the common intention with the other accused to

cause the death of Ramsingh.

11 11. In Laxmanji (supra), the appellants before the

Court were accused Nos. 2 and 3. According to the

prosecution case, they along with accused No. 1,

who was carrying a Rampuri knife and accused No. 4,

who had a stick, went to the house of the deceased,

Bhamraji. The two appellants (accused 2 and 3)

caught hold of the deceased while accused No. 1,

who was having a knife, inflicted knife blows on

the right hand side region of the abdomen and the

thigh region of the deceased. As a result of the

injuries, he fell down and later died. The trial

court convicted accused No. 1 under section 302 and

the two appellants (accused 2 and 3) under section

302 read with section 34 of the Penal Code. It

acquitted accused No. 4. The High Court maintained

the appellants' conviction. This Court, in the

facts of the case, held that no common intention

can be attributed to the appellants to cause the

murder of the deceased. Though, it is not clearly

spelled out but what seems to have weighed with the

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Court is that the appellants had merely caught hold

of the deceased and had caused no injury to him.

12. In Bakhshish Singh (supra), it was the case of

the prosecution that while a certain Kabul Singh

(PW-4) and his nephew, Mangal Singh (the deceased),

were returning from the fields along with Swinder

Kaur (PW-5), mother of Mangal Singh, they were

accosted by the accused, namely, Bakhshish Singh

and Balbir Singh, both of them being armed with a

dang and Balraj Singh, who was armed with a chhavi.

Gurmeet Kaur, the mother of Balraj Singh, raised a

lalkara saying that Kabul Singh and Mangal Singh

should not be allowed to escape as they had damaged

their crops. Bakhshish Singh and Balbir Singh

caught Mangal Singh and threw him down on the

ground while accused Balraj Singh, at the

instigation of his mother Gurmeet Kaur, inflicted a

chhavi blow on the head of Mangal Singh, causing a

single injury that led to his death. The trial

court relying upon the evidence of PW-4 and PW-5

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convicted Bakhshish Singh and Balbir Singh under

section 302 with the aid of section 34 of the Penal

Code. In appeal, the High Court found that the

evidence did not establish the role purportedly

played by Gurmeet, Balbir and Bakhshish. The High

Court also noted that one single blow was given by

Balraj and that too in course of a sudden quarrel.

It, accordingly, acquitted Gurmeet, Balbir and

Bakhshish and modified the conviction of Balraj

from section 302 to section 304 Part I of the Penal

Code. In appeal, preferred by the State of Punjab

against the judgment of the High Court, this Court

declined to interfere.

13. In Sripathi (supra), once again in the course

of an altercation accused No.4 inflicted a stab

injury on the abdomen of the deceased while the

other three accused held him at different parts of

the body. This Court held against the applicability

of section 34 of the Penal Code in so far as

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accused Nos.1 to 3 were concerned observing in

Paragraph 8 of the judgment as follows:-

"Coming to the plea regarding the

applicability of Section 34 PC, we find

that the evidence is not very specific as

regards the role played by A-1, A-2 and A-

3. It is prosecution version that A-4 had

the knife in his pocket which he suddenly

brought out and stabbed the deceased."

(emphasis added)

14. In Akaloo Ahir (supra), the deceased Kishore

Bhagat was fired upon first by one Garju, but the

shot missed him. Thereafter, the appellant Akaloo

Ahir came on the scene and he also fired a shot at

Kishore Bhagat which too missed its target.

Following that attack, two other accused came on

the scene. One of them handed over a cartridge to

the other who fired a shot with his gun which hit

Kishore Bhagat on his chest and stomach killing him

on the spot. Akaloo Ahir and Garju were convicted

by the trial court and the High Court under section

302 read with section 34 of the Penal Code. This

Court, however, acquitted Akaloo Ahir under section

302/34 and convicted him under section 307 of the

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Penal Code (Garju had died in the meanwhile). The

reason why this Court held that section 34 was not

applicable in the case of Akaloo Ahir appears to be

that all the four accused who took shots on the

deceased in turn had not come to the place of

occurrence together and at the same time but they

came there one after the other. In paragraphs 8 and

9 of the judgment this Court observed as follows:-

"8. It has also to be noticed that the

accused were all living in close proximity

to each other and could have been

attracted to the spot on account of the

noise that had been raised on account of

the first attack by Garju Ahir. It has

come in evidence that both the parties

were residents of Pokhra Tola which

consisted only of 25 houses, all bunched

up together. The possibility therefore,

that they had been attracted to the place

of incident on account of noise and had

not come together with a pre-planned

objective to commit murder cannot be ruled

out.

9. It has been suggested by Mr. Chaudhary

that Akaloo Ahir and Brij Mohan Ahir had

come out from the same heap of straw which

showed a pre-planned attack and a prior

meeting of minds. We, however, see from

the evidence of PW 5, Rama Shankar Yadav

an eye witness, that there were two

different heaps of straw near the place

and the two accused had come out from

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behind different heaps. In any way there is no

evidence to suggest that there was any prior

meeting of minds."

15. The facts of the case in hand are quite different.

It is seen above that it was the appellant who struck

the first blow on the right side of the head of

Dharmaraj and according to the post-mortem report that

blow itself might have caused his death. We have,

therefore, no doubt that the facts of the case clearly

attract section 34 of the Penal Code in so far as the

appellant is concerned.

16. In light of the discussions made above, we find no

merit in the appeal. It is, accordingly, dismissed.

17. This Court by its order dated October 7, 2005

granted bail to the appellant. His bail bonds shall

stand cancelled. He shall be taken into custody

forthwith to serve out his remainder sentence.

...........................................................J.

(Aftab Alam)

...............................................................J.

(Anil R. Dave)

New Delhi;

February 10, 2012.