Holding

The Supreme Court held that the evidence proved an intention to cause death and that the injury was sufficient to cause death, making the appropriate conviction s.302 IPC; the High Court’s reduction to s.323 and grant of probation were erroneous.

Summary

The State of Karnataka prosecuted Mohamed Nazeer for killing a man after assaulting him with a knee to the private parts, causing instant death. Eye‑witnesses and a doctor testified that the accused threatened the victim, kicked him, and that death resulted from neurogenic shock due to testicular injury. The trial court convicted the accused under s.304(II) IPC and sentenced him to five years' rigorous imprisonment and a fine, but the High Court reduced the conviction to s.323 IPC and released him under s.3 of the Probation of Offenders Act. The State appealed, arguing that the act demonstrated an intention to cause death and warranted a conviction for murder under s.302 IPC. The Supreme Court held that the evidence established the requisite intention and that the injury was sufficient to cause death, so the conviction should have been under s.302 IPC; the High Court erred in reducing the charge and granting probation. As the State had not appealed the trial court’s judgment, the Court restored the trial court’s conviction and sentence, setting aside the High Court order.

Issues considered

The appropriate offence under the IPC – whether the act constitutes murder (s.302), culpable homicide not amounting to murder (s.304(II)), or only hurt (s.323).
Whether the accused had the intention to cause death, inferred from his statements and the nature of the injury.
Whether the High Court could lawfully substitute the conviction and sentence with a lesser offence and grant probation.
Whether the offence is 'trivial' enough to merit relief under s.3 of the Probation of Offenders Act, 1958.
Whether the appellate court can interfere when the State did not appeal the trial court’s judgment.

Legislation cited

Indian Penal Code, 1860s. 302, s. 304(Part-II), s. 323
Probation of Offenders Act, 1958s. 3

Subjects

murderculpable homicideintention to killneurogenic shockProbation of Offenders Actappellate jurisdictionevidenceeye‑witness testimonyforensic pathology

Judgment

STATE OF KARNATAKA A
v.
MOHAMED NAZEER @ BABU

JANUARY 24, 2003

[S.N. VARIAVA AND D.M. DHARMADHIKARI, JJ.] B

Penal Code, 1860:

Ss.302, 304(Part-II) and 323-Accused kicking the victim by knee on
his private part-Death of victim instantaneously-Trial court convicting C
accused u!s. 304 (Part-1!)-0n appeal by accused, High Court holding the
accused guilty only u!s. 323 /PC and releasing him u!s.3 of Probation of
Offenders Act-Held, accused committed an act with the intention of causing
death or by causing bodily injury as is likely to cause death-Conviction
should have been uls. 302-But, State did not appeal against trial court's D
judgment-In any case, High Court should not have interfered with convictwn
uls,304(Part-ll)-The offence is not trivial-This is not a fit case where ben4it
of s. 3 of Probation of Offenders Act could he given-Judgment of High Court
set aside and that of trial court restored-Probation of Offenders Act, 1958-
S.3.
E
The respondent-accused was prosecuted for an offence under s.302
I.P.C. The prosecution case was that the accused went to the house of
the victim, hit him on the back portion of the neck, stated that he would
not leave him alive and kicked the victim with the right knee on his private
p"rt. The victim died instantaneously. During the trial the prosecution F
version was supported by eye witnesses, namely, P.W.I, the wife of the
deceased, P.W.5 his daughter, and two neighbours, P.W.6 and P.W. 7 who
had reached there on hearing the commotion; as also by the Doctor who
conducted the autopsy. The trial court accepted the evidence of the eye
witnesses and the Doctor, and held that the prosecution had proved the
case beyond reasonable doubt. It also held that the accused committed G
an act by which death was caused, with the intention of causing death or
by causing bodily injury as is likely to cause death. But as regards
conviction, the trial court opined that the case was not covered under s.302
IPC but fell under s.304 (Part-II) IPC. It convicted the accused u/s.304
(Part-II) IPC and sentenced him to 5 years R.I. and to pay a fine of
555 H
556 SUPREME COURT REPORTS [2003] l S.C.R.

A Rs. 3,000.
The accused filed an appeal before the High Court, which, though
did not disbelieve the evidence, held that the accused had no intention to
commit murder of the deceased; and that no grievous hurt was caused to
the deceased. It set aside the conviction u/s.304(Part-II) IPC and convicted
B the accused under s.323 IPC and released him after admonishing him
under s.3 of the Probation of Offenders Act,1958. The State challenged
the judgment of the High Court in the present appeal.

Allowing the appeal, the Court

C HELD: 1.1. The High Court erred in rts conclusion. The trial court
has held that accused had intention to cause death. The High Court should
have noticed that the trial court had unnecessarily changed the offence
into one of a lesser nature. The High Court is also not disbelieving the
evidence. It, therefore, should not have concluded that there was no
D intention to cause death. Even otherwise, the High Court should have
noticed that the conviction under s.304 (Part-II) IPC would be only if
there was no intention to kill. (559-G, HJ

1.2. The evidence of eye-witnesses, namely, PWs 1,5,6 and 7
establishes beyond a reasonable doubt that the accused stated to the
E deceased that he would not leave him alive and then kicked him with his
right knee on the private part. This resulted in the death of the deceased.
The evidence of the Doctor clearly shows that the death was caused due
to neurogenic shock resulting from injury to the testicles and scrotum.
Thus the death is directly due to the injury caused by the accused to the
deceased. The injury was such that it was sufficient in the normaa course
F to cause immediate death. The High Court was in error in stating that
there was no injury. The High Court noted that death resulted from
neurogenic shock but failed to note that the neurogenic shock was a result
of the injury to the testicles and scrotum. Under such circumstances, the
High Court erred in holding that the conviction can only be under Section
G 323 IPC. The injury caused was not even a simple injury. Section 323
would be wholly inapplicable. This was a case where the conviction should
have been under Section 302 IPC. In any event, this was a case where
the High Court would never have interfered with the conviction under
Section 304(Part-II) IPC. (560-F-H; 561-A, BJ

H State of Karnataka v. Shiva/ingaiah alias Handigidda, (1988J (Supp.)
STATEOFKARNATAKA v. MOHAMEDNAZEER [S.N. VARlAVA,J.] 557
sec 533, distinguished. A
2. In the instant case the offence is not trivial. This is not a fit case
where benefit of S.3 of Probation of Offenders Act, 1958 can be given to
the accused. The trial court has already been too lenient. However, as
the State has not filed any appeal against the judgment of the trial court,
conviction and sentence imposed by it are not interfered with. Judgment B
of the High Court is set aside and that of the trial court restored.
[561-E, Fl

Commandant, 20th Battalion, /TB Police v. Sanjay Binjo/a, [20011 5
sec 317' distinguished.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
c
905 of 1995.

From the Judgment and Order dated 8.12.92 of the Kamataka High
Court in Crl A.No. 872 of 1988.

M. Veerappa for the Appellant D
Ms. Kiran Suri for the Respondent

The Judgment of the Court was delivered

VARIA VA, J. This appeal is against the judgment dated 8th December,
1992. Briefly stated the facts are as follows: E
The Respondent was charged for having committed an offence under
Section 302 of the Indian Penal Code. The case of the prosecution was that
on 13th of March, 1987, the Respondent went to the house of the deceased
Amiruddin at about 8.30 pm. The Respondent caught hold of the banian of F
---;..._ the said Amiruddin, lifted him up, hit him on the rigM check and back
portion of the neck. On hearing the commotion two neighbours (PW.o and
PW.7) came. The Respondent then stated to Amiruddin that he would not
leave him alive and kicked him with the right knee on his private part.
Amiruddin fell down saying, "O' God, I am dying", and he died there. The
prosecution case is that the Respondent tried to run away but was stopped by G
the neighbours who caught hold of him and thereafter when the police came
they handed over the Respondent to the police.

During trial evidence was led of the wife of the deceased Amiruddin,
who was examined as PW. I. Evidence was also led of the daughter of the
deceased who wa~ examined as PW.5. Both of them narrated all the above H
558 SUPREME COURT REPORTS [2003] I S.C.R.

A facts. The two neighbours who came to the house, on hearing the commotion,
were also examined as PW. 6 and PW. 7. These persons were eye-witnesses
to the incident. They confirmed the case that they saw the Respondent giving
the deceased a kick on his private parts with the right knee saying that he
would not leave him alive. The testimony of PWs. 1,5,6&7 were not shaken
in cross-examination.
B
The Doctor, who carried out the post-mortem has been examined as
PW.2. The Doctor deposed that it was found that the left side scrotum was
swollen and the muscles in this region were distorted. He deposed that in the
left testis was found to be bluish in colour specially more so on the lower and
C upper pole. The Doctor opined that all the injuries were ante-mortem in
nature and that the cause of the death was due to neurogenic shock as a result
of the injury on the testicles and the scrotum. The Doctor deposed that such
injury can be caused if a kick is given by the right knee on the testis. The
Doctor deposed that such an injury is sufficient in the normal course immediate
death.
D
The trial Court accepted the evidence of the eye-witnesses and the
Doctor. The trial Court concluded that the persecution had proved his case
beyond a reasonable doubt. The trial Court, however, without assigning any
reason whatsoever, then held as follows:

E "I am of opinion that the offence, bearing in mind the facts of the
case does not come u/s. 302 IPC but comes u/s 304-II IPC. The
accused has committed an act by which the death is caused is done
with the intention of causing death or causing such bodily injury as
is likely to cause death. The act of the accused comes under culpable
homicide not amounting to murder. The accused has not used any
F weapon. So I have come to the conclusion that the offence u/s. 304
(Part-II) l.P.C. has been committed by the accused."

At this stage 1t is to be noted that t~e •Trial Court has held that the
prosecution has proved his case beyond a reasonable doubt. The Trial Court
G has also held, as set out above, that the accused has committed an act by
which death was caused, with the. intention of causing death or by causing
bodily injury as is likely to cause death. We have not been able to fathom on
what basis the trial Court then concluded that the offence was one under
Section 304 (Part-II). We can only surmise that the trial Court convicted the
Respondent under Section 304 (Part-II), !PC, out of misplaced sympathy, so
H that it could sentence the Respondent to undergo RI only for five years and
STATEOFKARNATAKA v. MOHAMEDNAZEER [S.N. VARIAVA,J.) 559

pay a fine of Rs. 3,000. Surprisingly the State never went in Appeal against A
this sentence.

The Respondent filed an Appeal to the High Court. The High Court did
not interfere with the conviction of the accused, however, the High Court
then goes on to hold as follows:
B
"It may be noticed that there is absolutely no evidence that the accused
aimed the particular blow, given by the knee, at that particular part
of the body of the deceased."

To be remembered that the High Court is not disbelieving PWs 1,5,6,&7.
Their evidence is categoric that Respondent stated that "he would not leave C
him alive" and then kicked him in the private part. The normal deposition of
witnesses would be that a blow or kick was on a particular part of the body.
One has never come across nor can it be expected of the witnesses to state
~ that the blow or kick was aimed at the private parts or a particular part and
that it then landed on that part. Thus the.above extracted observations of the
High Court appear to be absolutely meaningless. As regards .the evidence of D
Respondent's statement the High Court holds as follows:

"The learned High Court Government Pleader, contended that there
was evidence of several witnesses, to the effect that he would finish
of the deceased. The very fact that the learned Sessions Judge has not
convicted the accused for an offence under Section 302 !PC, and that E
the State has not challenged the acquittal of the accused in respect of
the said offence shows that the case that the accused had the intention
to commit the murder of the deceased has not.been accepted and that
has become final. Therefore, there is no scope for t~.e State still to
canvas that by the evidence of several eye-witnesses it has to be held F
that the accused had the intention of committing the murder of the
deceased.

The High Court has fallen in error here also. As set out hereinabove the
trial Court holds that the Respondent had intention to cause death. The High
Coart should have noticed that trial Court had unnecessarily, thereafter, G
changed the offences into one of a lesser nature. The High Court is also not
disbelieving the evidence. It, therefore, should not have concluded that there
was no intention to cause death. Even otherwise, the High Court should have
noticed that the conviction under Section 304 Part-II IPC would be only if
there was no intention to kill. The High Court erred in not noticing that the
statement and the kick at the private part showed that the Respondent had H
,_.._
560 SUPREME COURT REPORTS (2003) 1 S.C.R.

A knowledge that it was likely to cause death or to cause such bodily injury as '--
is likely to cause death.
~
·-
The High Court then goes on to hold as follows:-

"Having regard to the nature of the injuries caused and also the
fact that the evidence tendered by the eye-witnesses has not been
B accepted regarding the intention to cause the death or the intention to
cause bodily injury as is likely to cause the death, and the fact that
no injury, external or internal has been caused by the particular kick, ....+---
and the death, in fact resulted only on account of neurogenic shock,
it cannot also be said that the accused committed an act with the
c knowledge that likely to cause such death. Therefore, it is clear that I
'-
the case of the accused does not fit into section 299 of the IPC. Once
that is so, there is no scope to hold that the accused is guilty for the
offences under Section 304 Part II IPC.
~
Having regard to the fact that no grievous hurt has been caused, •'
D it is clear that the only offence for which the accused could be
convicted under the circumstances is the one under Section 323 IPC."

On this reasoning, the High Court sets aside the conviction under Section
304-11, an<l convicts the accused under Section 323. The High Court has
released the Respondent after admoishing him under Section 3 of the Probation
E of Offenders Act, 1958. Hence this Appeal by the State.

As has been set out !1ereinabove, he evidence of eye-witnesses, namely,
PWs 1,5,6,&7 establishes beyond a reasonable doubt that the Respondent
came to the house of the deceased Amiruddin, caught hold of the deceased
by his banian, lifted him up, hit him on the cheek and thereafter on the back
F of the neck. The evidence establishes that when he saw neighbours coming
he stated to Amiruddin that he would not leave him alive and then kicked
Amiruddin with the right on the private part. This resulted in the death of
Amiruddin. The evidence of the Doctor has also not been dis-believed. The
evidence of the Doctor clearly show that the death was caused due to
G neurogenic shock resulting from injury to the testicles and scrotum. Thus the
death is directly due to the i(ury caused by the Respondent to the deceased.
The injury was such that it was sufficient in the r.ormal course to cause death.
The injury resulted in death. The High Court Vtas in error in stating that there
was no injury. The High Court noted that death resulted from neurogenic
shock but failed to note that the neurogenic shock was a result of the injury
H to the testicles and scrotum. The High Court omitted to note that such injury
STATE OF KARNATAKA v. MOHAMED NAZEER [S.N. VARIAVA, J.) 561
could be caused by a kick and was sufficient in normal course to cause A
immediate death. This was not a case where in a fit of anger or in a scuffie
---r some act had taken place. We fail to understand how under such circumstances
the High Court can conclude that the conviction can only be under Section
323 IPC. The injury caused was not even a simple injury. Section 323 would
be wholly inapplicable. This was a case where the conviction should have
been under Section 302 IPC. In any event, this was a case where the High B
Court would never _have interfered with the conviction under Section 304
4~ (Part-II) IPC.
Ms. Kiran Suri relied upon the case in State of Karnataka v.
Shivalingaiah alias Handigidda, reported in (1988) Supp SCC 533. In this
case, there was an altercation between two parties. and in the course of the c
altercation, the Respondent squeezed the testicles of the deceased, who then
fell down unconscious and died. The evidence of the Doctor was that the
death was as a result of cardiac arrest resulting from shock due to injuries to
the testicles. It is on those facts that this Court held that there was no evidence
of intention to commit a murder. It was on those facts that it was held that D
neither Section 302 nor 304-11 IPC would apply. To be noted however that
this Court convicted the accused under Section 325 lPC. In our view, the
facts of that case are entirely different from the present case and thus the
ratio laid therein can be of no assistance to the Respondent.
Reliance was also placed upon the case of Commandant, 20th Battalion,
E
/TB Police v. Sanjay Binjola, reported in (2001) 5 SCC 317, where it has
been held that as the offence was of a very trivial nature, benefit of Probation
of Offenders Act, 1958 could be granted to the accused. In the present case,·
as stated above, the offence is not trivial. The Respondent had gone to the
house of the deceased in the evening and inflicted the injury which caused
death. This is not a fit case where any such benefit can be given to the F
Respondent. As stated hereinabove, the trial Court has, in our view, already
been too lenient. However, as the State has chosen not to file any appeal
against the judgment of the trial Court, we do not propose to interfere With
the conviction and sentence as imposed by the trial Court.

• -"-
In this view of the matter, we set aside the impugned judgment and
restore that of the trial Court. The bail bonds of the accused shall stand
cancelled. He shall be taken into custody forthwith. The amount of fine as
imposed by the trial Court, if recovered, be paid to P. W. I. The Appeal stands
G

disposed of accordingly.
R.P. Appeal disposed of. H