Kariya v. State Of Karnataka , (SC) BS115669
SUPREME COURT OF INDIA

Before:- N. Santosh Hegde, J. and B.P. Singh, J.

Criminal Appeal No. 917 of 2001. D/d. 30.7.2002.

Kariya - Petitioner

Versus

State of Karnataka - Respondent

Indian Penal Code, 1860, Section 304 Part II & 302 - Assault with axe - Injuries caused on hands and legs of deceased and not on vital parts of his body - Evidence of doctor who conducted post-mortem that none of the injuries individually was sufficient to cause death - Conviction of appellant under section 302 Indian Penal Code not sustainable - Appellant convicted and sentenced to 10 years R.I. under Section 304, Part II.

[Para ]

ORDER

1. The appellant was charged for an offence under Section 302 Indian Penal Code by the 1st additional sessions judge, for committing the murder of one Kivuda Madaiah on 16th August, 1993 in the village of Bilugadi by assaulting the victim with an axe. Learned sessions judge found him guilty of the said offence punishable under section 302 and sentenced him to undergo imprisonment for life. The said conviction was affirmed by the High Court in its judgment dated 13th July, 2000. The appellant herein has assailed the said conviction and sentence in the abovesaid appeal. When the matter came up for preliminary hearing, this Court confined the notice only to the nature of offence for which appellant could be punished based on the injuries suffered by the deceased.

2. As per the prosecution case the appellant suffered eight injuries which are as follows:-

3. It is the case of the prosecution that the appellant attacked the deceased in his village which was witnessed by PW 1, his daughter-in-law. Taking into consideration the case of the prosecution, it is evident that if the appellant had intended to cause the death of the deceased then he should have attacked the victim at the vital part of his body. On perusing the injuries which are only on the hands and legs of the deceased and there being no injuries on the vital part of the body and the evidence of the doctor who conducted the post-mortem, who has stated that none of the injuries individually was sufficient to cause the death, we are of the opinion (hat the appellant did not intend to cause the death of the deceased.

4. In the said circumstances having considered the material on record and having heard the parties, we are of the opinion that the conviction of the appellant under Section 302 is not sustainable and the same should be one under Section 304 part II of the Indian Penal Code. Accordingly, we partly allow the appeal and convert the sentence to ten years rigorous imprisonment under Section 304 part II of Indian Penal Code. If the appellant has served the said sentence he shall be released forthwith. While deciding the period of sentence the authorities will take into consideration the remission of sentence which the appellant is entitled to in law.

5. The appeal is partly allowed.

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