REPORTABLE           

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1326 OF 2005

LOKESH SHIVAKUMAR … APPELLANT VERSUS

STATE OF KARNATAKA … RESPONDENT

J U D G M E N T

Aftab Alam, J.

1. The 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.  2. According  to  the  prosecution  case,  one  Dharamaraj,  the  deceased  was  engaged  in  the  business of money lending and accused No.1 Madhu @  

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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  

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(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  

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report.  According to the doctor, he found a number  of  external  injuries  on  the  body  of  Dharamaraj  which he described as follows:-

“1. Obliquely situated lacerated wound on  the right frontal region measuring 2- 1/2”  x  ½”  x  bone  deep  with  the  compound  fracture  of  underlying  frontal bone.  

2. Obliquely situated lacerated wound on  the lateral aspect of the right eye  brow; 1-1/2” x ½” into bone deep with  fracture of underlying bone.

3. Compromise  at  the  root  of  the  nose  with fracture on nasal bone.”

4. Lacerated wound on the right side of  the lower lip ½” x ¼”.  

5. Abrasion on the anterior aspect of the  right leg ½” x ¼”.”

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.

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3. Brain matters of right anterior part  of the brain was crushed. 4. The  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.  5. The 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.   

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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, 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  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  

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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.  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 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  

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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.

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9. In 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. 10. In  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,  

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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.

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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 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  

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Court is that the appellants had merely caught hold  of the deceased and had caused no injury to him. 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,  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  

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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. 13. In 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  

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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) 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 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  

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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  Ahir.  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  

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behind different 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  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. 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  shall  be  taken  into  custody  forthwith to serve out his remainder sentence.  

…..………………………………………………J. (Aftab Alam)

………………………………………………………J. (Anil R. Dave)

New Delhi; February 10, 2012.

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