Page 1

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 985 OF 2007

M.B. SURESH      … APPELLANT VERSUS

STATE OF KARNATAKA            …RESPONDENT WITH

CRIMINAL APPEAL NO.21 OF 2014 (@ SPECIAL LEAVE PETITION (CRL.) NO. 5363 OF 2007)

BHADREGOWDA        … APPELLANT VERSUS

STATE OF KARNATAKA            …RESPONDENT

J U D G M E N T  

CHANDRAMAULI KR. PRASAD,J.

Appellant, besides his father Bhadregowda, was  

put on trial for offence punishable under Section  

302,  114  and  427  of  the  Indian  Penal  Code  and  

Section 3 read with Section 25 and 27 of the Arms

Page 2

Act.   Additional  Sessions  Judge,  Hasan,  vide  

judgment  and  order  dated  24th of  February,  2000  

passed in Sessions Case No. 24 of 1992, acquitted  

both the accused of all the charges.  Aggrieved by  

the  same,  the  State  of  Karnataka  preferred  an  

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 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 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  

2

Page 3

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  concurrently.   Aggrieved  by  the  

same, M.B. Suresh has preferred the present appeal  

whereas his father Bhadregowda, aggrieved by his  

conviction  and  sentence,  has  preferred  Special  

Leave Petition No. 5363 of 2007.

Leave  granted  in  Special  Leave  Petition  

(Criminal) No. 5363 of 2007.

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  

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  

3

Page 4

for unloading the gunny bags.  After unloading the  

gunny  bags,  they  sent  the  tractor-trailer  along  

with  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  

A.M., while they were going to coffee estate by the  

side of the wetland of Ramegowda, Chandrashekar was  

ahead of 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.  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  

4

Page 5

of the report given 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.

“1. Three  circular  pellet  wounds  present over the left 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  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  arm  each  0.5  cm.  in  diameter muscle deep over an area  of 1 ½” x 1 ½”.

5.Six circular pellet wounds present  over the right anterior aspect of  the chest each measuring 0.5 cm. in  

5

Page 6

diameter over an area of 4” x 4”  skin deep.

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 ½” in  the epigastrium skin deep.

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

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”

As regards the cause of death, the doctor has  

stated that it was because of shock.  The trial  

court,  on  appreciation  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.

6

Page 7

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 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  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, 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  

7

Page 8

death, i.e. shock had occurred on account of the  

gun  shot  injury  caused  by  the  appellant  

M.B. Suresh.  

We  have  bestowed  our  consideration  to  the  

rival submissions and we partly find substance in  

the submission of Mr. Basant R.  Dr. Gunashekar  

V.C.(PW-10)  had  conducted  the  post-mortem  

examination  on  the  dead  body  of  the  deceased  

Chandrashekar  and,  as  stated  earlier,  had  found  

nine injuries 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 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  

8

Page 9

the cause of death, the doctor has opined that it  

was because of 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  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  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  

shock.  In the absence of any such evidence, we are  

9

Page 10

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 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 opinion that the conviction of  

the appellant under Section 302 of the Indian Penal  

Code cannot be sustained.   

Next  question  which  falls  for  our  

consideration is as to the offence for which the  

appellant M.B. Suresh would be liable.  What has  

been proved against this appellant is that he shot  

at the deceased, but there is no evidence to show  

10

Page 11

that it was the 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  constitute  an  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 SCC 750, in which it has  

been observed as follows:

“9.………The  evidence  only  established  that the first 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  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  

11

Page 12

causing the death of Gajendra Singh.  However,  we  are  of  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.

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.  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  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.”

Accordingly,  we  alter  the  conviction  of  the  

appellant M.B. Suresh from Section 302 to Section  

307 of the Indian Penal Code and sentence him to  

undergo rigorous imprisonment for ten years.

12

Page 13

Mr. Basant R. has not assailed the conviction  

of the appellant M.B. Suresh other than Section 302  

of  the  Indian  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.   

In the result, Criminal Appeal No. 985 of 2007  

is partly 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  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 10 years,  

we  direct  that  he  be  set  at  liberty  forthwith  

unless required in any other case.    

13

Page 14

The  appeal  (arising  out  of  Special  Leave  

Petition (Criminal) No. 5363 of 2007) preferred by  

the appellant Bhadregowda is, however, dismissed.

   ………..……………………………….J.                          (CHANDRAMAULI KR. PRASAD)

…….………………………………….J.                             (JAGDISH SINGH KHEHAR)

NEW DELHI, JANUARY 06, 2014

14

Page 15

15