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Thanga Prakash Vs. State of Karnataka [2008] INSC 2024 (26 November 2008)

Judgment

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising out of SLP (Crl.) No. 5854 of 2008) Thanga Prakash ...Appellant State of Karnataka ...

Respondent

Dr. ARIJIT PASAYAT, J.

1.     Heard.

2.     Leave granted.

3.     Challenge in this appeal is to the judgment and order dated 12.7.2006 in Criminal Appeal No.569 of 2001 by the Karnataka High Court. Though, various points were urged in support of the appeal, we find that it can be disposed of by a single point. The trial Court, in the penultimate paragraph observed as follows:

4.     "Therefore, I hold that A2, A3 and A7 are guilty of the offence punishable under Part-II of Section 304 IPC read with Section 34 IPC. Accused Nos. 1 and 4 to 6 are entitled for acquittal."

(Underlined for emphasis) 4. But, strangely, in the next paragraph, it was observed as follows:

"In the result, A1 to A7 are acquitted of the offences punishable under Sections 148 IPC, Section 323 read with Section 149 IPC, Section 307 read with Section 149 IPC and Section 302 read with Section 149 IPC, with which they are charged. However, A1, A2, A3 and A7 are convicted for the offence punishable under Section 304 Part II read with Section 34 of the IPC.

The bail bonds of A4 and A6 stands cancelled. A- 5 who is in judicial custody shall be released forthwith if not required in any other case."

(Underlined for emphasis)

5.     It has to be noted that in the judgment of the Trial Court, it was inter alia observed as follows:

"The evidence of PW-1 that A1 and A4 also assaulted him with the chopper on his back cannot be accepted because of the reason that if both the accused had assaulted there should have been more than one wound on his back, but, as per medical evidence, there is only one wound. The medical evidence does not lend corroboration to the evidence of PW-1. PW-1 was present with A2 and A7 from the beginning and when they reached near the scene of offence PW1 had seen A1, A4 and A6 at that place. PW1 has not stated that A1 and A4 were armed with chopper at that time."

(Underlined for emphasis)

6.     The aforesaid confusion and contradictory findings by the Trial Court have not been considered by the High Court which disposed of the appeal, by practically, in one paragraph after noticing the factual scenario indicated in the trial court's judgment. We, therefore, set aside the impugned order of the High Court and remit the matter to it for a fresh disposal in accordance with law. We make it clear that we have not expressed any opinion on the merits of the case.

7.     It is to be noted that the present appeal is filed by accused No.1. Our order remitting the matter to the High Court shall be restricted only so far as he is concerned.

8.     The appeal is, accordingly, disposed of.

.................................... .....J. (Dr. ARIJIT PASAYAT)

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

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