SUBHASH @ SUBANNA & ORS.versusSTATE OF KARNATAKA MINISTRY OF HOME AFFAIRS

                 [2024] 4 S.C.R. 328 : 2024 INSC 294

                     Subhash @ Subanna & Ors.
                                 v.
             State of Karnataka Ministry of Home Affairs
                     (Criminal Appeal No. 328 of 2012)
                                 10 April 2024
           [Sudhanshu Dhulia and Prasanna B. Varale,* JJ.]

                           Issue for Consideration
       Matter pertains to the correctness of the order passed by the
       High Court convicting and sentencing accused no. 1 u/s. 302, and
       accused no. 2 and 4 u/ss. 324 and 326 IPC.

                                  Headnotes
       Penal Code, 1860 – ss. 302 and 324 – Murder – Voluntarily
       causing hurt by dangerous weapon or means – Right of
       private defence, if applicable – On facts, morning incident
       wherein quarrel between the complainant and accused on
       account of blocking the way and accused persons hurled
       abuses to her – In the evening, the complainant informed her
       father about the incident, the father-victim went to the house
       of accused persons to enquire, wherein he was assaulted by
       the accused persons, resulting in his death – Complainant,
       her brother and mother followed the victim and witnessed the
       attack – Accused no. 1 convicted and sentenced for offence
       punishable u/s. 302, and accused no. 2 and 4 u/ss. 324 and
       326 and others u/s. 323, by the courts below – Interference:
       Held: On the assessment of the evidence of the prosecution,
       it reveals that though there was a verbal exchange between
       the victim and the accused persons, but not in the form of a
       provocation by the victim to the accused – Evidence clearly
       show that that there was a dispute on account of the pathway;
       that the victim was alone, he went to the house of the accused
       persons to make an inquiry, but he had not entered in the house
       and on the contrary, accused persons armed with stick, chopper
       and stone attacked the victim; and that neither the complainant
       nor her brother carried any weapon – Evidence of the injured
       eyewitnesses shows that the intention of the accused was to do
       away with the victim – If right of private defence is applied and
       the facts are appreciated, it is clear that the victim was unarmed,
* Author
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                      Subhash @ Subanna & Ors. v.
               State of Karnataka Ministry of Home Affairs

     whereas the accused persons who were armed led a brutal attack
     on the victim by stick, by koita and stone – High Court rightly
     upheld the judgment and order of trial court, thus, does not call
     for interference. [Paras 28-34, 36]

                              Case Law Cited
           Darshan Singh v. State of Punjab and Another [2010]
           1 SCR 642 : AIR (2010) SC 1212; Virsa Singh v. State
           of Punjab [1958] 1 SCR 1495 : AIR (1958) SC 465 –
           referred to.

                                List of Acts
     Penal Code, 1860.

                             List of Keywords
     Murder; Right of private defence; Provocation; Injured eyewitnesses.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 328
     of 2012
     From the Judgment and Order dated 20.04.2011 of the High Court of
     Karnataka at Gulbarga in CRLA No. 3601 of 2010
                         Appearances for Parties
     Ms. Kiran Suri, Sr. Adv., S.J. Amith, Ms. Vidushi Garg, Dr. Mrs. Vipin
     Gupta, Advs. for the Appellants.
     D. L. Chidananda, Ravindera Kumar Verma, Advs. for the Respondent.
                Judgment / Order of the Supreme Court

                                 Judgment
     Prasanna B. Varale, J.
1.   By way of present appeal, the appellants challenged the judgment and
     order dated 20th April, 2011 passed by the High Court of Karnataka
     in Criminal Appeal No. 3601/2010, thereby confirming the conviction
     and sentence of the Trial Court in Sessions Case No.213/2009 which
     had convicted appellants (accused Nos. 1, 2 and 4) under Section
     302 of IPC and sentenced them to life imprisonment. Additionally
     the High Court also upheld the conviction and sentence of appellant
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       Nos.1 and 3 (accused Nos 2 & 4) under Sections 324 and 326 of
       IPC as awarded by Trial Court.
2.     The First Information Report No.18/2009 was lodged at Kamalpur
       Police Station, Gulbarga against the accused persons for commission
       of offences under Section 143, 147, 148, 504, 323, 324 and 302
       r/w Section 149 of Indian Penal Code, on the basis of complaint
       submitted by Kumari Sangeeta D/o Mahadevappa Natikar. The
       Complaint refers to the incident occurred on 18th February, 2009 at
       7.00 a.m. (we may refer to this incident as a prequel to the fateful
       incident which occurred on the same day in the evening). It was
       submitted in the report that a day earlier i.e., on 17th February, 2009,
       uncle of the complainant brought fire wood which was dumped on
       the way, blocking the path of the complainant. Thus, Sangeeta tried
       to reach the said path to throw dust, at that time she found that her
       pathway was covered with the fire wood. As such, she demanded
       an explanation from her uncle Subhash. She raised question as
       to why the way is blocked, to which her uncle Subhash, his wife
       and his children responded by abusing Sangeeta. Sangeeta then
       returned to her house. Her father, mother and brothers by that time
       had already left for the fields. In the evening, her father and brothers
       i.e. Mahadevappa, Hanumantha and Sharanappa, respectively were
       apprised about the incident which took place in the morning. Her
       father Mahadevappa then proceeded towards the house of uncle
       – Subhash and made an enquiry as to why the way was blocked.
       Subhash and the other family members started abusing Mahadevappa
       and then they assaulted Mahadevappa with a stick on his forehead
       and face, causing grievous injuries to Mahadevappa.
3.     Dattatrey (appellant No.2), who was carrying chopper laid an assault
       on the forehead and head of Mahadevappa, causing grievous injuries
       to Mahadevappa. Digambar (appellant No.3) threw a big stone below
       the right knee of Mahadevappa, resulting in grievous blood injuries.
       Then Digambar picked up a stone in his hand and hit Mahadevappa
       on his face causing injury.
4.     Sangeeta, her brother Sharanappa and mother who had followed
       Mahadevappa, saw the attack on Mahadevappa and younger
       brother of Sangeeta made an attempt to intervene in the attack,
       who was in turn attacked by Digambar, receiving injuries on his
       hand and palm. On hearing hue and cry, residents of the area
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     namely; Parameshwar S/o Ningappa Pujari and other neighbours
     rushed to the spot. When Mahadevappa was brought to his house,
     he was unconscious as he had received grievous injuries. Uncle
     of Sangeeta, Shivasharanappa along with other persons namely;
     Sharanappa and Parameshwar Poojari arranged for a jeep and
     Mahadevappa was admitted in the Government Hospital, Gulbarga.
     The Doctors of the Gulbarga Hospital declared Mahadevappa dead
     and his body was sent for autopsy.
5.   On lodging of the First Information report, the Investigating Agency
     was set in motion. By completing the necessary formalities of the
     investigation, such as recording the statement of witnesses, drawing
     “panchanama”; spot mahazar, seizure mahazars etc. and by collecting
     the medical evidence in the form of post mortem report issued by
     the concerned medical officer, charge sheet came to be filed against
     the accused persons.
6.   Accused persons pleaded not guilty and were subjected to trial.
7.   On appreciation of the evidence, the learned Sessions Judge
     convicted the appellants and sentenced them for the offence
     punishable under Section 302 to undergo life imprisonment and also
     pay fine of Rs. 10,000/- each (in default S.I. for two years each).
     Accused nos. 2 and 4 were also convicted for offence punishable
     under Section 324 of Indian Penal Code and sentenced to undergo
     R.I. for one year and to pay fine of Rs. 1,000/- each (in default S.I.
     for six months each). Accused 2 and 4 were also convicted for
     offence punishable under Section 326 of Indian Penal Code and
     were sentenced to undergo R.I. for three years each and to pay
     fine of Rs. 2,000/- each (in default S.I. for one year each). Whereas
     accused No.3, 5 and 6 were found guilty for the offences punishable
     under Section 323 of Indian Penal Code and sentence to pay fine
     of Rs. 500/- each (in default S.I. for two months each). The entire
     sentence imposed against accused 2 and 4 was directed to run
     concurrently.
8.   Accused Nos. 3, 5 and 6 accepted the judgment and order of the
     Sessions Court as they have not filed any appeal to the High Court
     against the judgment and order of Sessions Court, whereas accused
     Nos.1, 2 and 4 filed their appeal to the High Court of Karnataka. As
     stated above, the High Court of Karnataka upheld and confirmed
     the order of the Trial Court.
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9.     The learned counsel for the appellants submitted that assuming
       that the prosecution was successful in establishing the death of
       the deceased and the presence of the appellants on the spot, as
       well as the active role played by the appellants; the entire material
       collected by the prosecution shows that it was the deceased who
       came to the house of the accused and then there was a quarrel and
       verbal exchange between them. The act of the accused persons,
       the verbal exchange and the provocation by the deceased and his
       family members prompted the appellants to exercise the right of
       their private defence.
10. Learned counsel for the appellants further submits that the evidence
    collected by the prosecution also shows that the incident was a
    reaction of the appellants to a provocation by the deceased and his
    family members. The element of intention of the appellants is not
    established by the prosecution. Thus, the submission of the learned
    counsel for the appellants was that the act of the appellants would
    not attract Section 302 of Indian Penal Code against them and the
    offences would be at the most, an offence under Section 304 part
    2 of Indian Penal Code.
11. Per contra, learned counsel representing the State of Karnataka
    supported the judgment and order passed by the High Court of
    Karnataka, upholding the judgment and order of the Sessions Court.
12. We have gone through the record. The prosecution in support of
    its case, examined as many as 31 witnesses and is supported by
    P.W.18 Ramalingappa, P.W.19 Smt. Mallamma, P.W.20 Shobhavati,
    P.W.21 Sangeeta, P.W.22 Sharanappa, P.W.23 Hanmanth, P.W.24 –
    Prameshwar, P.W.25 Shivasharanappa and P.W.12 Dr. Balachandra
    Joshi. The majority of other witnesses, who are neighbours of the
    deceased Mahadevappa, have turned hostile.
13. P.W.17 Sareppa, turned hostile and he has not supported the
    prosecution on the aspect of dispute between the complainant’s
    family and the accused family. He supports the case of prosecution
    that land of deceased and accused are abutting to each other.
14. P.W.18 Ramalingappa supports the version of complainant –
    Sangeeta, that to reach the land of deceased Mahadevappa, they
    have to pass through the land of the accused and there was a dispute
    between Mahadevappa and appellant No.1 on the issue of way.
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15. Now, to establish the death of Mahadevappa being a homicidal one,
    the prosecution mainly draws support from the testimony of P.W.12
    Dr. Balachandra Joshi who in his testimony before the Trial Court
    states that he was working as Senior specialist since June, 2006 in
    Government Hospital, Gulbarga. On 19.02.2009 he had conducted
    post mortem on the dead body of Mahadevappa in between 12.30
    p.m., to 2.00 p.m., and he noticed the following external injuries:
           1.    “Cut Lacerated wound on the forehead between the
                 eye brows measuring 6 x 2 x bone deep underlying
                 major bones fractured.
           2.    Lacerated wound on the face left side at the angle
                 of the mouth, margins irregular underlying upper jaw
                 bone fracture and loosening of teeths left side cheek
                 bone also fractured.
           3.    Cut lacerated wound on chin measuring 5 x 3 cm
                 x bone deep, evidence of bleeding was present,
                 underlying mandible bone was fractured.
           4.    Cut lacerated wound on the frontal region of the scalp
                 and forehead in the middle measuring 10 x 3 cm x
                 bone deep clot formation present.
           5.    Cut lacerated wound scalp on left side frontal region
                 measuring 10 cm x 4 cm x bone deep clot formation
                 present.
           6.    Cut lacerated wound on scalp on the top slightly to
                 the right side 12 cm x 4 cm x bone deep, evidence
                 of haemorrhage or bleeding present clot formation
                 present.
           7.    Punctual wound on the right side of leg below the
                 right knee measuring 6 x 5 x 3 cm underlying leg
                 bone fracture.
           8.    Fracture of 3rd, 4th, 5th ribs on the anterior side on
                 right side of chest wall. All the above injuries are
                 ante mortem in nature.”
16. He further states that, in his opinion cause of death is shock and
    haemorrhage to the brain due to injury and multiple fracture injuries.
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17. Nothing could be elicited in his cross-examination and P.W.12 Dr
    Balachandra Joshi stood firm on the aspect of the homicidal death
    of Mahadevappa.
18. As stated above, even the appellants are not seriously disputing
    the homicidal death of Mahadevappa. Insofar as their presence and
    active role played by them is concerned, P.W.21 Sangeeta provides
    all the necessary details in her testimony about the morning incident
    i.e., prequel and about the actual incident which took place in the
    evening. Though she was subjected to a detailed cross-examination,
    her version remains to be unshaken and appears to be a truthful
    version of the incident.
19. Similarly, P.W.19 Smt. Mallamma, who is the daughter of the
    deceased Mahadevappa (elder sister of Sangeeta), P.W.22
    Sharanappa (s/o Mahadevappa and brother of Sangeeta), P.W.23
    Hanumanth (brother of Sangeeta, Mallamma and Sharanappa), also
    supported the case of prosecution on the aspect of the presence
    and active role played by the appellants causing the homicidal
    death of Mahadevappa.
20. P.W.29 – Dr. Basawaswamy, supported the case of the prosecution
    on the aspect of Sharanappa and Sangeeta receiving the injuries.
21. Dr. Basawaswamy in his testimony states that on 18.02.2009 he
    examined Sharanappa s/o Mahadevappa who was injured. He came
    to the hospital with a history of assault and on his examination Dr.
    Basawswamy noticed the following injuries:
          1.   “2 x 1 cm incised wound over the dorsal aspect of right
               little finger bleeding present, margins are clean cut.
          2.   Swelling present over the dorsa aspect of the right
               hand.
          3.   Abrasion over the dorsal aspect of right forearm size
               3 x 3 cm.
               Taken X ray of right hand, crack fracture of 5th
               metacarpal bone.
               Wound No.2 is pre4vious in nature, other wounds
               are simple in nature might have been cause by
               sharp and blunt object. Age of the injury about less
               than 4 hours.”
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22. Similarly, on the very same day, he examined another injured by
    name Sangeeta D/o Mahadevapa and noticed the following injuries:
           1.    “Tenderness present over the left elbow.
           2.    Contusion over the posterior aspect of lower 1/3rd of
                 left arm measuring 3 x 2 cm.
           3.    Tenderness present over the left palm.
           4.    Tenderness present over the posterior aspect of left
                 shoulder.
23. Thus, version of Dr. Basawaswamy supports the case of the
    prosecution on the aspects i.e., the presence of the prosecution
    witnesses Sharanappa and Sangeeta on the spot and their attempt
    to interfere to save their father Mahadevappa from the attack of the
    accused/appellants, and receiving injuries in that process.
24. Now, although the learned counsel for the appellants vehemently
    submitted before us that the act of the appellants was in exercise of
    the right of private defence and as such, offence under Section 302
    of Indian Penal code is not attracted against them, we are, however,
    unable to accept this submission on appreciation of the evidence.
25. P.W.21 the star witness of the prosecution i.e., Kumari Sangeeta – the
    complainant and injured eyewitness, clearly states about the incident
    (prequel) which took place in the morning i.e., a quarrel between
    herself and accused No.2 initially and then abuses by accused
    Nos.1 and 3 to her. Then she states that on return of her father
    Mahadevappa to their home in the evening, she apprised him about
    the morning incident, after which Mahadevappa then proceeded to
    house of the accused to make inquiry about the incident and that he
    was immediately followed by her and her younger brother after which
    she speaks about the role played by each of the accused–appellants.
26. She states that appellant No.1 thrashed her father with stick on his
    head, appellant No.2 assaulted her father with chopper (koita) on his
    head and forehead, then accused No.4 threw a stone on his right
    knee and he picked up another stone and punched it on the mouth
    of her father. Her mother Shobhavati and her brothers also stated
    about the active role played by the accused–appellants.
27. P.W.25 Shivasharanappa though he had not witnessed the evening
    incident, but he stated about the morning incident i.e., the quarrel
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       between the complainant and accused on account of blocking the
       way.
28. As stated above, on careful scrutiny of the version of the witnesses,
    it clearly shows that though it was the submission of the counsel for
    the appellants that the deceased himself went to the house of the
    accused and picked up a quarrel with the accused persons upon
    provocation by the deceased, the appellants exercised their right
    of private defence, yet on the assessment of the evidence of the
    prosecution, we were unable to find any such provocation by the
    deceased Mahadevappa.
29. The evidence clearly show that Mahadevappa was alone, he went
    to the house of appellants to make an inquiry, but he had not
    entered in his house and on the contrary, accused No.1 Subhash
    s/o Shivaray Natikar thrashed the deceased using stick on the head
    of Mahadevappa. Accused No. 2 – Dattatrey s/o Subhash Natikar
    thrashed the head of Mahadevappa using chopper. Using a dangerous
    weapon like chopper (koita), he assaulted Mahadevappa on his
    head and forehead. As if this was not sufficient enough, accused
    No.4 –Digambar threw a stone on the right knee of Mahadevappa
    and then picking up another stone hit it on the face of deceased.
30. The prosecution evidence further reveals that neither Sharanappa
    nor Sangeeta were carrying any weapon. Even though the evidence
    further reveals that there was a verbal exchange, but there is nothing
    to show that this verbal exchange was in the form of a provocation
    by the deceased to the appellants.
31. Though the learned counsel for the appellants raised this ground
    before this Court, no such ground is raised either at the time of
    examination of the witnesses or even in 313 statements of the
    appellants, i.e. at the trial stage.
32. The learned counsel for the appellants also made an attempt to submit
    before us that the prosecution failed to show that the appellants were
    carrying any intention to lay an assault on the deceased Mahadevappa
    as Mahadevappa himself went to the house of appellants.
33. We are unable to accept even this submission. The evidence clearly
    shows that there was a dispute on account of the way on 18.02.2009
    leading to quarrel between P.W.21-Sangeeta and accused No.2
    initially and then accused No.1 and 3 abused Sangeeta. Mahadevappa
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                        Subhash @ Subanna & Ors. v.
                 State of Karnataka Ministry of Home Affairs

     proceeded to the house of accused persons for making an enquiry,
     as he was appraised by Sangeeta when he returned to their home.
     The evidence also shows that accused no.1 was armed with stick,
     accused no.2 was armed with chopper and accused no.4 picked up
     the stones lying on the spot.
34. P.W.22 Sharanappa clearly states in his deposition before the Court
    that the appellant no.2 who was armed with chopper threatened his
    father by uttering the words “I shall finish you” and then assaulted
    his father with the chopper. Thus, the evidence of these injured
    eyewitnesses clearly shows that the intention of the accused person
    was to do away with Mahadevappa. It may not be out of place to
    state here that the High Court while considering the submission on
    this aspect of exercising their right of private defence referred to the
    judgement in the case of Darshan Singh v. State of Punjab and
    Another1 relied on by the learned counsel for the appellant. The
    apex Court in this judgment observed in para 33 as follows:
            “The basic principle underlying the doctrine of right of private
            defence is that when an individual or his property is faced
            with a danger and immediate aid from the State machinery
            is not readily available, that individual is entitled to protect
            himself and his property. The right of private defence is
            available only to one who is suddenly confronted with
            the necessity of averting an impending anger not of self-
            creation. That being so, the necessary corollary is that the
            violence which the citizen defending himself or his property
            is entitled to use must not be unduly disproportionate to the
            injury which is sought to be averted or which is reasonably
            apprehended and should not exceed its legitimate purpose.”
     Now, if this principle is applied and the facts of the present case are
     appreciated, it is clear that the victim Mahadevappa was unarmed,
     whereas the accused persons who were armed led a brutal attack
     on the victim Mahadevappa by stick, by koita and stone.
35. The learned advocate for the State was justified in placing reliance
    on the judgment of this Court in the matter of Virsa Singh v. State
    of Punjab.2 The relevant paras are as follows:


1   [2010] 1 SCR 642 : AIR 2010 SC 1212
2   [1958] 1 SCR 1495 : AIR 1958 SC 465
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       "13. In considering whether the intention was to inflict
            the injury found to have been inflicted, the enquiry
            necessarily proceeds on broad lines as, for example,
            whether there was an intention to strike at a vital
            or a dangerous spot, and whether with sufficient
            force to cause the kind of injury found to have been
            inflicted. It is, or course, not necessary to enquire
            into every last detail as, for instance, whether the
            prisoner intended to have the bowels fall out, or
            whether he intended to penetrate the liver or the
            kidneys or the heart. Otherwise, a man who has no
            knowledge of anatomy could never be convicted, for,
            if he does not know that there is a heart or a kidney
            or bowels, he cannot be said to have intended to
            injure them. Of course, that is not the kind of enquiry.
            It is broad-based and simple and based on common
            sense: the kind of enquiry that “twelve good men
            and true” could readily appreciate and understand.
       14. To put it shortly, the prosecution must prove the
           following facts before it can bring a case under
           Section 300 “thirdly”.
       15. First, it must establish, quite objectively, that a bodily
           injury is present.
       16. Secondly, the nature of the injury must be proved;
           These are purely objective investigations.
       17. Thirdly, it must be proved that there was an intention
           to inflict that particular bodily injury, that is to say, that
           it was not accidental or unintentional, or that some
           other kind of injury was intended.
       18. Once these three elements are proved to be present,
           the enquiry proceeds further and.
       19. Fourthly, it must be proved that the injury of the type
           just described made up of the three elements set
           out above is sufficient to cause death in the ordinary
           course of nature. This part of the enquiry is purely
           objective and inferential and has nothing to do with
           the intention of the offender.
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               State of Karnataka Ministry of Home Affairs

           20. Once these four elements are established by the
               prosecution (and, of course, the burden is on the
               prosecution throughout) the offence is murder under
               Section 300 “thirdly”. It does not matter that there was
               no intention to cause death. It does not matter that
               there was no intention even to cause an injury of a
               kind that is sufficient to cause death in the ordinary
               course of nature (not that there is any real distinction
               between the two). It does not even mater that there is
               no knowledge that an act of that kind will be likely to
               cause death. Once the intention to cause the bodily
               injury actually found to be present is proved, the rest
               of the enquiry is purely objective and the only question
               is whether, as a matter of purely objective inference,
               the injury is sufficient in the ordinary course of nature
               to cause death. No one has a licence to run around
               inflicting injuries that are sufficient to cause death
               in the ordinary course of nature and claim that they
               are not guilty of murder. If they inflict injuries of that
               kind, they must face the consequences: and they
               can only escape if it can be shown, or reasonably
               deduced, that the injury was accidental or otherwise
               unintentional (emphasis supplied).”
36. Accordingly, considering all the aspects, we are of the opinion that
    the High Court of Karnataka committed no error in upholding and
    confirming the judgment and order of Trial Court/Sessions Court, we
    see no ground to interfere, the appeal thus fails and is dismissed.
37. The order dated 31.07.2018 of this Court by which bail was granted
    to the appellants is hereby recalled. The appellants are directed to
    surrender before the Trial Court within a period of four weeks from
    today.


     Headnotes prepared by: Nidhi Jain                     Result of the case:
                                                            Appeal dismissed.