Author: Himanshu Sharma, 1st year student at Amity university, Rajasthan.
Citation: 2003 (2) SCC 444
Date of decision: 24th January 2003
Bench: S.N Variava & D.M Dharmadhikari
Original copy: View
Background of case:
- Here in the given case “State of Karnataka” is the petitioner and “Mohamed Nazeer” is respondent.
- On 13th of March 1987, the respondent (Mohamed Nazeer) went to the house of the Amiruddin at 8:30 pm, there the respondent caught hold of the banian of the Amiruddin, lifted him up and hit him on the back portion of the neck and on the right cheek. On hearing the uproar two neighbours (PW.6 & PW.7) came into the house. Respondent then started saying to Amiruddin that he would not leave him alive and then kicked him with the right knee oh his private part. Amiruddin fell down by saying, “o god I am dying” and he died on the spot there.
- The respondent tried to run away from the spot but stopped by the neighbours and caught hold of him and thereafter when the police arrived, they handed the respondent to the police.
- Here the respondent was charged for committing an offence under section 302 of Indian Penal Code (IPC).
- In this case of prosecution, there were four eye-witness that is, the wife of the deceased Amiruddin who was there at the time of incident and examined as a PW.1, daughter of the deceased who was examined as a PW.5 and the two neighbours who came to the house on hearing the uproar and were examined as a PW.6 & PW.7. All of them narrated all the above facts and they confirmed that they saw a respondent giving a kick to the deceased on his private part saying that he would not leave him alive.
- The doctor examined as a PW.2, who carried out a post-mortem. The doctor deposed that the left side scrotum was swollen and the muscles in this region were distorted, other than this doctor deposed that the left testis was found to be bluish in colour especially more so on the upper and lower pole. These injuries were ante-mortem in nature and the cause of the death is neurogenic shock as the result of the injury on testicles and scrotum. The doctor also deposed that such injuries can be caused if a kick is given by the right knee on the testis, and such injuries are sufficient in the normal course of immediate death.
Issue in question:
- The first issue is, weather the accused fall under the section 302 of IPC or under the 304 ⅱ of IPC.
- Second issue is, weather the accused have a intention of murder or not.
The trial court accepted the evidence of the Doctor and the eye-witnesses. The court concluded that the prosecution had proved the case beyond a reasonable doubt. However, without assigning any reason whatsoever, then held as follows:
- According to the trial court the offence, bearing in mind the facts of the case does not come under section 302 of Indian Penal Code but comes under 304-ⅱ IPC. Accused 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. As the accused has not used any weapon, so the trial court decided or come to the conclusion that the offence under section 304-ⅱ IPC has been committed by the accused.
- We can only surmise that the court convicted the accused under 304-ⅱ of IPC. So that it could be sentenced the respondent to undergo RI only for five year and fine of Rs. 3000 only.
- State never went to appeal against this sentence. Surprisingly, the respondent filed an appeal to the High court. The High court did not interfere with the conviction of the accused. However, the HC then goes on to hold as follows:
- “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.”
- According to me the high court has fallen in error here. As the trial court holds that the respondent had intention to cause death, the High court should notice that the trial court changed the offence into one of a lesser nature.
- The convicting u/s 304-ⅱ of IPC would only be applicable when there was no intention to kill. The High court erred in not noticing the kick at the private part and the statement manifest that the respondent had a knowledge that these types of injuries are sufficient to cause death or to sufficient to cause such type of bodily injury that may cause death.
- Evidence tendered by the eye-witnesses has not been accepted by the court regarding the intention to cause death or the intention to cause bodily injury as is likely to cause the death.
- According to me the respondent should be convicted under section 302 of IPC of murder because his act shows his intention of murder.