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IN THE SUPREME COURT OF INDIA

CRIMINA APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1246  OF 2015 (Arising out of S.L.P. [Crl.] No.1621 of 2014)

State of Rajasthan … Appellant Vs.

Prakash @ Gajendra … Respondent

J U D G M E N T

ARUN MISHRA, J.

1. Heard learned counsel for the parties.

2. Leave granted.

3. On being aggrieved by the judgment and order dated 29.5.2013 passed by

the  High  Court  of  Judicature  for  Rajasthan  at  Jodhpur,  the  appeal  has  been

preferred by the State of Rajasthan. The trial court has convicted the respondent for

commission of an offence under section  302 and section 458 IPC and sentenced

to life imprisonment with a fine of Rs.2,000/- and RI for seven years and a fine of

Rs.1,000/- respectively for the aforesaid offences. While maintaining conviction

and sentence under section 458 IPC, the High Court has altered conviction from

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section  302  to  section  304  Part  II  and  sentenced  him  to  the  period  already

undergone, i.e. 8 years and 7 months.    

4. The prosecution case, in short, is that on 22.10.2004 Prakash Salvi inflicted

injuries on deceased Mahendra by knife. On raising a hue and cry, Naresh, Adesh,

Mukesh and Tej Singh Balla reached the spot and took Mahendra to hospital. On

27.10.2004, the deceased succumbed to his injuries and the offence was converted

to section 302/458 IPC from sections 307/324/458 IPC.

5. The High Court in the impugned judgment has observed that death was not

caused immediately. The incident took place on 22.10.2004 whereas death took

place on 27.10.2004. The dying declaration was recorded by the Police and not by

the Magistrate and a careful scrutiny of the evidence makes it clear that it is a case

of culpable homicide not amounting to murder. As such, the conviction has been

altered from section 302 to section 304 Part II IPC.  

6. We have heard learned counsel for the parties at length. The only discussion

with respect to conversion of the offence from section 302 to section 304 Part II

IPC is at page 9 of the impugned judgment. The relevant portion of the judgment is

quoted below :-

“Further, we have examined the factual aspect of the matter and found  that  the  injuries  upon  the  body  of  the  deceased  were although  serious  in  nature  but  death  was  not  immediately

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caused  because  occurrence  took  place  on  22.10.2004  and injured  died  on  27.10.2004  during  which  statement  of  the deceased was recorded by the police and not by the Magistrate. Therefore,  our  opinion is  that  the prosecution has proved its case with regard to the occurrence but careful scrutiny of the entire  evidence  makes  it  clear  that  it  is  a  case  of  culpable homicide not amounting to murder. Therefore, convicting of the appellant for offence under section 302, I.P.C. is not sustainable in the eye of law. The case against the accused-appellant does not travel beyond offence under Section 304 Pt.-II, I.P.C.”

7. It  is  crystal  clear  that  the  High  Court  has  not  considered  the  evidence,

neither the nature of injuries nor method and manner in which they were inflicted.

The High Court has also not considered the aspect whether the accused intended to

inflict injuries so as to cause the death. Even the circumstances to take the case out

of the purview of section 302 have also not been discussed by the High Court.

Simpliciter, it has been observed that a careful scrutiny of the entire evidence has

been made but we find from the judgment that no such exercise has been done.

Mere statement in the judgment to that effect is not enough. Evidence is not only

required  to  be  mentioned  in  the  judgment  but  its  evidentiary  value  has  to  be

assessed carefully. No such exercise has been made.  

8. Thus, we have no hesitation to set aside the judgment and order passed by

the High Court. While allowing appeal, we remit the matter to the High Court to

decide the same again after hearing the parties in accordance with law. It is made

clear that we have not expressed any opinion on the merits of the case. The High

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Court is required to reconsider the matter in accordance with law and to decide the

appeal  de novo after hearing the parties. The respondent-accused shall remain on

bail for a period of four weeks from the date of the judgment during which time he

will be free to apply to the High Court for regular bail.

…………………………J.  (Kurian Joseph)

New Delhi; ………………………..J. September 23, 2015. (Arun Mishra)