M.B. SURESHversusSTATE OF KARNATAKA

                     [2014] 1 S.C.R. 99


                       M.B. SURESH                               A
                              v.
                 STATE OF KARNATAKA
            (Criminal Appeal No. 985 of 2007)
                    JANUARY 06, 2014
                                                                 B
          [CHANDRAMAULI KR.PRASAD AND
            JAGDISH SINGH KHEHAR, JJ.]

    PENAL CODE, 1860:
                                                                 c
      ss. 299, 302 and 307 - Victim shot at from a distant
range - Death of victim on the way to village - Acquittal by
trial court - Conviction by High Court uls 302 of accused who
fired the shots - Held: The doctor, who conducted post-
mortem examination, found no internal injuries and opined        0
that gun was fired from a distant range - He further opined
that death was caused because of shock but he has not stated
that it was due to the injuries caused by appellant or that
deceased profusely bled which could have caused shock -
It is not shown that the injuries found on the person of the     E
deceased were of such nature, which in the ordinary course
of nature could cause shock - It, therefore, creates a doubt
as to whether deceased suffered shock on account of injuries
sustained by him - However, it has been proved that
appellant shot at deceased with an intention to kill him or at
least he had the knowledge that the act would cause death        F
- Allegations proved constitute an offence u/s 307 -
Conviction of appellant is altered from s. 302 to s. 307 and
he is sentenced to rigorous imprisonment for ten years.

     The appellant (in Crl. A. No. 985 of 2007) and his          G
father (appellant in Crl. A. No. 21 of 2014) were prosecuted
for commission of offences punishable u/ss 302, 114 and
427, IPC ands. 3 read with ss. 25 and 27 of the Arms Act.
The prosecution case was that there was a long standing
                                                                 -
                              99                                 H
    100      SUPREME COURT REPORTS              [2014] 1 S.C.R.

A enmity between the family of the informant and the
  accused in respect of certain land over which appellant's
  father was claiming tenancy rights. On the date of
  occurrence while the informant (PW-1) and others were
  going to the coffee estate and their companion 'C' was
B ahead of them, the appellant fired at 'C'. After the first shot,
  his father instigated him to fire again. The appellant fired
  for the second time at 'C' and thereafter they left the
  place. P.Ws. 1 to 3, took the victim to the village, but he
  died on the way. The trial court acquitted both the
C accused of all the charges. However, the High Court,
  reversed their acquittal and held the appellant guilty of
  offences punishable u/ss 302 and 427, IPC and s. 27 of
  the Arms Act and sentenced him to imprisonment for life
  u/s 302 IPC and imprisonment for one year u/s 27 of the
  Arm Act. Both of them were also convicted and sentenced
D
  to undergo simple imprisonment for one week for offence
  u/s 427, IPC.

          Disposing of the appeals, the Court

E       HELD: 1.1.For holding an accused guilty of murder,
    the prosecution has first to prove that it is a culpable
    homicide, as defined u/s 299, IPC and an accused will
    come under the mischief of this section only when the
    act done by him has caused death. [para 6] [106-B-C]

      1.2. In the instant case, the doctor, who conducted
  the post-mortem examination, was categorical in his
  evidence that no internal injuries were found and the gun
  was fired from a distant range. As regards the cause of
  death, he has opined that it was because of shock but
G he has nowhere stated that it was due to the injuries
  caused by the appellant or that the deceased profusely
  bled which could have caused shock. It cannot be
  ignored that the case of the prosecution itself is that after
  the deceased sustained injuries while he was being
H
     M.B. SURESH v. STATE OF KARNATAKA                101


taken to the hospital for treatment, he died on the way. A
Any mishandling of the deceased by the person carrying
him to the hospital so as to cause shock cannot be ruled
out. It, therefore, creates a doubt as to whether the
deceased suffered shock on account of the injuries
sustained by him. It is not shown that the injuries found B
on the person of the deceased were of such nature,
which in the ordinary course of nature could cause
shock. It cannot be assumed that those injuries can
cause shock in the absence of any evidence in this
regard. There is no evidence to show that it was the injury C
inflicted by the appellant which was the cause of death.
Thus, it cannot be held that it is the act of the appellant
which caused the death. Therefore, conviction of the
appellant u/s 302, IPC cannot be sustained. [para 6] [106-
A-B, C-G]
                                                            D
      2.1. However, it has been proved that the appellant
shot at the deceased with an intention to kill him or at
least he had the knowledge that the act would cause the
death. Accordingly, the allegations proved constitute an
offence u/s 307, IPC. Therefore, the conviction of the E
appellant is altered from s. 302 to s. 307, IPC and he is
sentenced to rigorous imprisonment for ten years.
However, his conviction under other penal provisions
and the conviction of the other appellant is maintained.
[para 7-8] [107-A-B; 108-C-E]                               F

    Bhupendra Singh v. State of UP. 1991 (1) SCR 856     =
(1991) 2 sec 750 - relied on.
                   Case Law Reference:
                                                             G
    1991 (1) SCR 856        relied on           para 7
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 985 of 2007.

    From the Judgment & Order dated 09.02.2007 of the High   H
    102       SUPREME COURT REPORTS            [2014] 1 S.C.R.


A   Court of Karnataka at Bangalore in Criminal Appeal No. 991
    of 2000.

                                WITH

    Crl. A.No. 21 of 2014.
B
       Basant R., Shekhar G. Devasa, Karthik Ashok (for Adarsh
    Upadhyay), Vijay Kumar for the Appellant.

          Anitha Shenoy, V.N. Raghupathy for the Respondent.

C         The Judgment of the Court was delivered by

       CHANDRAMAULI KR. PRASAD, J. 1. Appellant,
  besides his father Bhadregowda, was put on trial for offence
  punishable under Section 302, 114 and 427 of the Indian Penal
D Code and Section 3 read with Section 25 and 27 of the Arms
  Act. Additional Sessions Judge, Hasan, vide judgment and
  order dated 24th of February, 2000 passed in Sessions Case
  No. 24of1992, acquitted both the accused of all the charges.
  Aggrieved by the same, the State of Karnataka preferred an
E appeal. The High Court, vide judgment and order dated 9th of
   February, 2007 passed in Criminal Appeal No. 991 of 2000,
  reversed their acquittal and held the appellant M.B. Suresh
  guilty of offence punishable under Section 302 and 427 of the
  Indian Penal Code and Section 25 and 27 of the Arms Act.
   However, his father Bhadregowda was found guilty of offence
F punishable under Section 427 of the Indian Penal Code alone.
  Appellant M.B. Suresh was sentenced to undergo life
  .imprisonment for offence under Section 302 of the Indian Penal
  Code and fine of Rs. 5,000/-, and in default to undergo simple
   imprisonment for six months. He was also sentenced to
G undergo one year's imprisonment and fine of Rs. 2,000/- for
  offence under Section 27 of the Arms Act. Both of them were
  sentenced to undergo simple imprisonment for one week for
  offence under Section 427 of the Indian Penal Code and fine
   of Rs. 5,000/- each. Sentences were directed to run
H concurrently. Aggrieved by the same, M.B Surech has preferred
       M.B. SURESH v. STATE OF KARNATAKA                         103
          [CHANDRAMAULI KR.PRASAD, J.]
the present appeal whereas his father Bhadregowda, aggrieved             A
by his conviction and sentence, has preferred Special Leave
Petition No. 5363 of 2007.

    2. Leave granted in Special Leave Petition (Criminal) No.
5363 of 2007.
                                                                         B
       3. According to the prosecution there was a long standing
 enmity between the family of the informant and the accused in
 respect of land of Survey No. 29/2 and 22 of Marur Village over
 which the accused Bhadregowda was claiming tenancy rights.
 According to the prosecution, on 19th of November, 1991 the             C
 deceased Chandrashekar, along with his elder brother
 Raghunath, cousin Krishnegowda, a friend Prakash and one
 Suresh came to the residence of Halegowda in the Village
  Marur in a tractor-trailer for unloading the gunny bags. After
  unloading the gunny bags, they sent the tractor-trailer along with     D
 the labourers to the coffee plantation of Ramegowda to pluck
  coffee seeds. However, the aforesaid persons stayed back at
  Halegowda's house to have a cup of coffee and later, at about
  10.30 AM., while they were going to coffee estate by the side
 of the wetland of Ramegowda, Chandrashekar was ahead of                 E
 them. At that time, Chandrashekar was shot at by the appellant
  M.B. Suresh, who was standing near the gate made of bamboo.
 After the first shot, his father Bhadregowda instigated him to
  fire again and at that the appellant M.B. Suresh fired for the
. second time at the deceased and thereafter they left the place.        F
  P.Ws. 1 to 3, namely Krishnegowda, Raghunath and Prakash
  respectively, rushed to the place where Chandrashekar had
  fallen on the ground and in order to save him, they carried him
  to the village, but unfortunately he died because of the gun shot
  injury on their way to the village. On the basis of the report given   G
  by Krishnegowda (PW-1), a case was registered at the Bellur
  Police Station. Post-mortem on the dead body was conducted
  by Dr. Gunashekar V.C.(PW-10), who found nine injuries on the
  person of the deceased caused.by the appellant.
                                                                         H
     104         SUPREME COURT REPORTS                [2014] 1 S.C.R.


A          "1.    Three circular pellet wounda present over the lett
                  part of the fore head, each measuring 0.5 cm. in
                  diameter bony deep over an area of 4 cm. x 4 cm.

           2.     Three circular pellet wounds present near the lateral
                  end of the right side of the lip each measuring 0.5
                  cm. in diameter skin deep over an area of 2 cm. x
                  2 cm.

            3.    Two pellet wounds over the left side of the front of
                  the neck 0.5 cm. in diameter the muscle deep, there
c                 is an exit lacerated wound over the back of the left
                  side of the neck piercing the skin 2 cm. x 2 cm.,
                  with lacerated edges.

           4.     Three circular pellet wounds present over the
                  anterior aspect of the right arrn each 0.5 cm. in
D
                  diameter muscle deep over an area of 1 Yz" x 1 Yz".

            5.    Six circular pellet wounds present over the right
                  anterior aspect of the chest each measuring 0.5 cm.
                  in diameter over an area of 4" x 4" skin deep.
EE
            6.    A single circular pellet present in the anterior aspect
                  of chest at the level of the 12th rib measuring 0.5
                  cm. in diameter and skin deep.

            7.    An incised like wound 1" x Yz" in the epigastrium
F
                  skin deep.

            8.    A single circular pellet wound measuing 0.5 cm in
                  diameter skin deep in the right iliac fassa.

G           9.    Three pellet wounds circular in shapre each
                  measuring 0.5 cm. in diameter in the anterior
                  aspect of the upper third of the right thigh over an
                  area of 6" x 4" skin deep"

           4. As regards the cause of death, the doctor has stated
H
       M.B. SURESH v. STATE OF KARNATAKA                    105
          [CHANDRAMAULI KR.PRASAD, J.]
that it was because of shock. The trial court, on appreciation      A
of evidence, came to the conclusion that the prosecution had
not been able to prove its case beyond all reasonable doubt
and, accordingly, acquitted them of both the charges. However,
the judgment of acquittal has been reversed by the High Court
in an appeal preferred by the State.                                B

     5. We have heard Mr. Basant R., learned Senior Advocate,
on behalf of the appellant whereas the respondent, State of
Karnataka is represented by Ms. Anitha Shenoy. Mr. Basant
submits that even if the entire case of the prosecution is          C
accepted, the same does not constitute an offence under
Section 302 of the Indian Penal Code. He submits that
according to the prosecution, the deceased died of shock but
there is nothing on record to show that the shock was on
account of the injury inflicted by the appellant M.B. Suresh. He
further submits that the prosecution has not brought any            D
evidence to show that the deceased suffered any grievous hurt
and in that view of the matter, the appellant at most can be held
guilty for an offence under Section 324 of the Indian Penal
Code. He points out that the appellant M.B. Suresh has already
remained in jail for more than 10 years. Ms. Shenoy, however,       E
contends that the very fact that the deceased died within a few
hours of the incident, it has to be assumed that the cause of
death, i.e. shock had occurred on account of the gun shot injury
caused by the appellant M.B. Suresh.
                                                                    F
     6. We have bestowed our consideration to the rival
submissions and we partly find substance in the submission of
Mr. Basant R. Dr. GunashekarV.C.(PW-10) had conducted the
post-mortem examination on the dead body of the deceas~d
Chandrashekar and, as stated earlier, had found nine injuries       G
on his person out of which six were skin deep of the size of
0.5 or less than 0.5 cm., three circular wounds each measuring
0.5 cm. bone deep found over an area of 4 cm. x 4 cm. over
the left side of the forehead as also a lacerated wound of the
same size over the left side of the front of the neck and another
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    106      SUPREME COURT REPORTS               [2014] 1 S.C.R.


A muscle deep wound of the same size on the right arm. The
  doctor conducting the post-mortem examination was
  categorical in his evidence that no internal injuries were found
  and the gun was fired from a distant range. As regards the
  cause of death, the doctor has opined that it was because of
B shock but he has nowhere stated that it was due to the injuries .
  caused by the appellant. For holding an accused guilty of
  murder, the prosecution has first to prove that it is a culpable
  homicide. Culpable homicide is defined under Section 299 of
  the Indian Penal Code and an accused will come under the
c mischief of this section only when the act done by him has
  caused death. True it is that the deceased died of shock but
  there is no evidence to show that the shock had occurred on
  account of the injuries caused by the appellant. We cannot
  ignore that the case of the prosecution itself is that after the
0 deceased sustained injuries while he was being taken to the
  hospital for treatment, he died on the way. Any mishandling of
  the deceased by the person carrying him to the hospital so as
  to cause shock cannot be ruled out. The doctor had not stated
  that the deceased profusely bled which could have caused
E shock. In the absence of any such evidence, we are in doubt
  as to whether the deceased suffered shock on account of the
  injuries sustained by him. It is not shown that the injuries found
  on the person of the deceased were of such nature, which in
  the ordinary course of nature could cause shock. We cannot
  assume that those injuries can cause shock in the absence of
F any evidence in this regard. The doctor has not even remotely
  suggested that the shock was caused due to the injuries
  sustained by the deceased. In the face of what we have
  observed above, we are not in a position of hold that it is the
  act of the appellant, which caused death. Hence, we are of the
G opinion that the conviction of the appellant under Section 302
  of the Indian Penal Code cannot be sustained.

       7 Next question which falls for our consideration is as to
  the offence for which the appellant M B Suresh would be liable.
H What has been proved against this appellant is that he shot at
      M.B. SURESH v. STATE OF KARNATAKA                     107
         [CHANDRAMAULI KR.PRASAD, J.]

the deceased, but there is no evidence to show that it was the     A
injury inflicted by the appellant which was the cause of death.
However, from the facts proved, there is no doubt that he shot
at the deceased with an intention to kill him or at least he had
the knowledge that the act would cause the death. Accordingly,
we are of the opinion that the allegations proved con.stitute an   8
offence under Section 307 of the Indian Penal Code. The view
which we have taken finds support from the judgment of this
Court in the case of Bhupendra Singh v. State of U.P., (1991)
2 sec 750, in which it has been observed as follows:

    "9 .......... The evidence only established that the first     C
    appellant shot at the deceased but it is not known where
    the bullet hit and whether that injury caused by the said
    bullet shot caused the death. Even in the case of shooting
    by a rifle unless the evidence shows the particular injury
    caused by the same and that injury is sufficient to cause      D
    death, the offence under Section 302 IPC could not be said
    to have been made out. In the circumstances, therefore,
    we are unable to agree with the High Court that the first
    appellant is guilty of offence under Section 302 IPC of
    causing the death of Gajendra Singh. However, we are of        E
    the view that while the first appellant shot at the deceased
    there could be no doubt that either he had the intention to
    kill him or at least he had the knowledge that the act could
    cause the death.
                                                                   F
    10. All the witnesses also say that the shot by A 1 brought
    down the deceased to the ground. There could, therefore.
    be no doubt that the shot had caused some hurt or injury
    though we could not predicate what was the nature of the
    injury and whether that injury could have caused the death.    G
    In the circumstances we consider that the offence would
    come under the second limb· or second part of Section
    307, IPC. Though imprisonment for life also could be
    awarded as sentence for such an offence on the facts and
    circumstances we impose a sentence of 10 years rigorous
                                                                   H
    108        SUPREME COURT REPORTS               [2014) 1 S.C.R.


A          imprisonment. Accordingly we alter the conviction under
           Section 302, IPC as one under Section 307 IPC and
           sentence him to a term of 10 years rigorous imprisonment."

       8. Accordingly, we alter the conviction of the appellant M.B.
  Suresh from Section 302 to Section 307 of the Indian Penal
B Code and sentence him to undergo rigorous imprisonment for ·
  ten years.

         9. Mr. Basant R. has not assailed the conviction of the
    appellant M.B. Suresh other than Section 302 of the Indian
C   Penal Code. As regards the conviction of the other accused
    Bhadregowda under Section 427, it is on correct appreciation
    of evidence, which does not call for interference in the present
    appeal.

       10. In the result, Criminal Appeal No. 985 of 2007 is partly
D allowed, the conviction of the appellant M.B. Suresh under
  Section 302 of the Indian Penal Code is set aside and is altered
  to Section 307 of the Indian Penal Code and he is sentenced
  to undergo rigorous imprisonment for ten years. However, his
a conviction under other penal provisions is maintained.
  Sentences awarded to him shall run concurrently. As the
  appellant has already remained in custody for more than 1O
  years, we direct. that he be set at liberty forthwith unless
  required in any other case.

F       11. The appeal (arising out of Special Leave Petition
    (Criminal) No. 5363 of 2007) preferred by the appellant
    Bhadregowda is, however, dismissed.

    R.P.                                      Appeals disposed of.