Lokesh Shivakumar Vs.
State of Karnataka
Jurisdiction Criminal Appeal No.1326 of 2005]
J U D G M E N T
Aftab Alam, J.
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.
to the prosecution case, one Dharamaraj, the deceased was engaged in the business
of money lending and accused No.1 Madhu @ 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 (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 4 report. According to the doctor, he found
a number of external injuries on the body of Dharamaraj which he described as
situated lacerated wound on the right frontal region measuring 2- 1/2" x ="
x bone deep with the compound fracture of underlying frontal bone.
situated lacerated wound on the lateral aspect of the right eye brow; 1-1/2"
x =" into bone deep with fracture of underlying bone.
at the root of the nose with fracture on nasal bone."
wound on the right side of the lower lip =" x <".
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.
matters of right anterior part of the brain was crushed.
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.
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.
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.
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
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.
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 8 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.
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.
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, 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.
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 Court is that the appellants had merely
caught hold of the deceased and had caused no injury to him.
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 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.
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 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)
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 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
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 behind different heaps. In any way there is no evidence to suggest that
there was any prior meeting of minds."
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.
light of the discussions made above, we find no merit in the appeal. It is,
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.
(Anil R. Dave)