LOKESH SHIVAKUMARversusSTATE OF KARNATAKA

                        [2012] 1 S.C.R. 896


A                     LOKESH SHIVAKUMAR
                                  v.
                     STATE OF KARNATAKA
                (Criminal Appeal No.1326 of 2005)

                       FEBRUARY 10, 2012
B
             [AFTAB ALAM AND ANIL R. DAVE, JJ.]

         Penal Code, 1860: s.302 rlw s.34 - Death by fatal blow -
    A-1 had borrowed money from victim-deceased - On the
C   fateful day, A-1 took the deceased out of the house on the
    pretext of p<ivment of money - All the accused surrounded the
    deceased - A-2-appellant picked up a gobbaly tree wood
    piece lying nearby and struck on the head of deceased with
    it which caused his death - Conviction of appellant along with
D   the other three accused - High Court while acquitting A-3 and
    A-4 affirmed the conviction of appellant and A-1 - On appeal,
    held: There was no discrepancy between the ocular evidence
    and the medical evidence - Since prosecution case was
    established by reliable ocular evidence coupled with medical
E   evidence, the issue of motive was not of any significance -
    Common intention can form and develop even in course of
    the occurrence, therefore, the fact that appellant had not
    brought any weapon with him was of no relevance - It was the
    appellant who struck the first blow on the head of deceased
F   and according to post-mortem report that blow itself caused
    his death - Appellant rightly convicted u/s.302 rlw s.34.

       Criminal law: Motive - Relevance of - Held: If the
  prosecution case is fully established by reliable ocular
  evidence coupled with medical evidence, the issue of motive
G loses practically all relevance.

        The prosecution case was that the victim-deceased
    was engaged in the business of money lending. Accused
    No.1 had borrowed Rs.10,0001- from the deceased. The
H                               896
 LOKESH SHIVAKUMAR v. STATE OF KARNATAKA                 897


deceased went to jail in connection with some case, A
authorizing his younger brother (informant-PW.1) to
realise the money from his debtors in his absence. PW1
tried to realise the loan amount from accused No.1 but
was unsuccessful. On a fateful day, when the deceased
and his brother (PW.1) were in their house, accused No.1 B
came there and asked the deceased to go out with him
saying that he wanted to pay back the money that he had
borrowed from him. The deceased went along with him
but did not return. After about half an hour, PW1 along
with two of his associates PW.2 and PW.14 went looking C
for him. On reaching near the house of accused no.3, they
saw the deceased surrounded by accused no.2-appellant
and accused nos.1, 3 and 4. At that point, the appellant
picked up one gobbaly tree wood piece which was lying
there and swinging it like a club hit the deceased with it
on the right side of his head. Accused No.1 then picked
                                                           0
up a large stone and flung it on the head of the deceased.
The deceased got severe bleeding injuries on his head,
face and nose. He was taken to hospital where he was
declared dead.
                                                                E
     The trial court convicted all the four accused under
section 302/34, IPC and sentenced them to life
imprisonment and a fine of Rs.500/- each. On appeal, the
High Court held that there was no evidence that accused
Nos. 3 and 4 shared the common intention of causing the         F
death of the deceased. It, accordingly, acquitted them of
the charge but maintained the conviction and sentence
of the appellant and accused No.1. The instant appeal
was filed challenging the order of the High Court.
                                                                G
    Dismissing the appeal, the Court

     Held: 1.1 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
                                                                H
   898      SUPREME COURT REPORTS               [2012] 1 S.C.R.

A of motive loses practically all relevance. In this case, the
    ocular evidence led in support of the prosecution case
    was wholly reliable and there was see no reason to
    discard it. The submission, therefore, that the appellant
    had no motive for the commission of offence is not of any
8   significance.   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 side of the head
    of the deceased with it. The first external injury recorded
    in the post-mortem report that caused the compound
C 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 (M0.2). There was no
    discrepancy between the medical evidence and the
    ocular evidence. On the contrary, the medical evidence
    corroborated the eye witness account of the occurrence.
D The third submission that the appellant had not brought
    any weapon with him was 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
E 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. It was the appellant who struck the first blow
    on the right side of the head of the deceased and
    according to the post-mortem report that blow itself might
F have caused his death. Therefore, the facts of the case
    clearly attracted section 34, IPC in so far as the appellant
    is concerned. [Paras 8, 15) [902-F-H;. 903-A-C; 907-8-C]
      Y. Venkaiah v. State of Andhra Pradesh (2009) 12 SCC
G 126: 2009 (3) SCR 915; Jagannath v. State of Madhya
  Pradesh (2007) 15 SCC 378: 2007 (9) SCR 1097; Laxmanji
  and another v. State of Gujarat (2008) 17 SCC 48: 2008 (17)
  SCR 171; State of Punjab v. Bakhshish Singh and others
  (2008) 17 SCC 411: 2008 (14) SCR 742; Sripathi and others
H v. State of Karnataka (2009) 11 SCC 660: 2009 (5) SCR 309;
 LOKESH SHIVAKUMAR v. STATE OF KARNATAKA 899


Aka/oo Ahir v. State of Bihar (2010) 12 SCC 424: 2010 (4)         A
SCR 604 - held inapplicable

                     Case Law Reference:

  2009 (3) SCR 915         held inapplicable       Para 9
                                                                  B
  2007 (9) SCR 1097        held inapplicable       Para 9, 10

  2008 (17) SCR 171        held inapplicable       Para 9, 11

  2008 (14) SCR 742        held inapplicable       Para 9, 12

  2009 (5) SCR 309         held inapplicable       Para 9, 13     c
  2010 (4) SCR 604         held inapplicable       Para 9, 14

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1326 of 2005.
                                                                  D
    From the Judgment & Order dated 3.6.2004 of the High
Court of Karanataka at Bangalore in Crl. A. No. 1129 of 2000.

    Naresh Kumar for the Appellant.

    V.N. Raghupathy for the Respondent.                           E

    The Judgment of the Court was delivered by

     AFTAB ALAM, J. 1. The appellant who was accused No.2
before the trial court is convicted under section 302 read with   F
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 G
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 H
     900     SUPREME COURT REPORTS                  [2012) 1 S.C.R.


A.   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
B    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
c    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
0
     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.
E    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
F    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 report. According to the doctor, he found a
     number of external injuries on the body of Dharamaraj which
G    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.
H
 LOKESH SHIVAKUMAR v. STATE OF KARNATAKA                        901
              [AFTAB ALAM, J.]

      2.    Obliquely situated lacerated wound on the lateral          A
            aspect of the right eye brow; 1-1/2" x Yi" into bone
            deep with fracture of underlying bone.

      3.    Compromise at the root of the nose with fracture
            on nasal bone."
                                                                       B
      4.    Lacerated wound on the right side of the lower lip
            Yi" x °XI".
      5.    Abrasion on the anterior aspect of the right leg Yi"
            x%"."                                                      c
     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       D
            crushing of right eye ball.

      2.    The membrane of the frontal region was returned.

      3.    Brain matters of right anterior part of the brain was
            crushed.                                                   E

     4. The gobba/y 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 M0.2 and
M0.1 respectively. On being shown the two material objects,            F
the doctor stated that the injuries found on the dead body were
possible if the person was assaulted with the club M0.2 and
the stone M0.1. 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-          G
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
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    902     SUPREME COURT REPORTS                   [2012) 1 S.C.R.


A   section 302/34 of the Penal Code and sentenced them to life
    imprisonment and a fine of Rs.500/- each.

         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,
8
    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
C 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
D 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
E 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.
F      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
G 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
H appellant picked up a gobbaly tree wood piece and struck on
  LOKESH SHIVAKUMAR v. STATE OF KARNATAKA 903
               [AFTAB ALAM, J.)

the right side of the head of Dharamaraj with it. It is seen above A
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 (M0.2). We,
therefore, fail to see any discrepancy between the medical B
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 c
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. In support of the submission that section 34 of the Penal D
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) E
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 F
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 G
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 H
    904     SUPREME COURT REPORTS                   (2012] 1 S.C.R.


A   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,
B   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
c   have shared the common intention with the other accused to
    cause the death of Ramsingh.

         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 ·
D   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
E   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,
F   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.
G
          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,
H   they were accosted by the accused, namely, Bakhshish Singh
 LOKESH SHIVAKUMAR v. STATE OF KARNATAKA 905
              [AFTAB ALAM, J.]

and Balbir Singh, both of them being armed with a dang and A
Balraj Singh, who was armed with a chhavi. Gurmeet Kaur, the
mother of Bal raj Singh, raised a /a/kara saying that Kabul Singh
and Mangal Singh should not be allowed to escape :is they had
damaged their crops. Bakhshish Singh and Balbir Singh caught
Mangal Singh and threw him down on the ground while accused B
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     c
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
                                                                  0
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     E
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          F
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 G
    prosecution version that A-4 had the knife in his pocket
    which he suddenly brought out and stabbed the
    deceased."

                                           (emphasis added)
                                                                  H
    906      SUPREME COURT REPORTS                    [2012] 1 S.C.R.


A         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
B   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. Aka loo 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,
c   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
0
    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
E         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
F         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
G
          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
H
 LOKESH SHIVAKUMAR v. STATE OF KARNATAKA                       907
              [AFTAB ALAM, J.]
       and the two accused had come out from behind different         A
       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        8
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.
                                                                      c
     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       o
shall be taken into custody forthwith to serve out his remainder
sentence.

D.G.                                           Appeal dimissed.