ELIAMMA & ANR. versus ST ATE OF KARNAT AKA

Citation: [2009] 3 S.C.R. 135 · Decided: 11-02-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Judgment (excerpt)

[2009] 3 S.C.R. 135 
ELIAMMA & ANR. 
v. 
ST ATE OF KARNAT AKA 
(Criminal Appeal No. 265 of 2009) 
FEBRUARY 11, 2009 
[DR. ARIJIT PASAYAT, DR. MUKUNDAKAM SHARMA 
AND H.L. DATTU, JJ.] 
CODE OF CRIMINAL PROCEDURE, 1973: 
s. 360 - Release of accused on probation - Convicted 
u/ss 304 (part II) and 201134 /PC - Plea for release of accused 
A 
B 
c 
u/s 360 of the Code - HELD: Effect, relevance and 
applicability of s. 360 not considered by courts below - Matter 
remitted to trial court for consideration if benefit of s. 360 can 
0 
be extended to accused - Penal Code, 1860 - ss. 304 (part 
II) and 201134. 
In the instant appeal arising out of the conviction u/ 
ss 304 (part II) and 201/34, the accused-appellants, while 
challenging the conviction on merits, alternatively 
E 
pleaded that they were entitled to the benefit of s. 360 of 
the Code of Criminal Procedure, 1973. 
Allowing the appeal in part, the Court 
HELD: The effect, relevance and applicability of F 
Section 360 Cr.P.C. have not been considered by the 
courts below. Therefore, while upholding the conviction, 
the matter is remitted to the trial court for the limited 
purpose of deciding whether the benefit u/s 360 Cr.P.C. 
can be extended to the accused-appellants. [Para 8 and 
G 
10] [140-G; 142-C] 
Chandreshwar Sharma v. State of Bihar 2000(9) SCC 
245, relied on. 
135 
H 
A 
B 
136 
SUPREME COURT REPORTS 
[2009] 3 S.C.R. 
Case Law Reference: 
2000(9) sec 245 
relied on 
para 9 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 265 of 2009 
From the Judgment and Order dated 22.2.2006 of the High 
Court of Karnataka at Bangalore in Criminal Application No. 
1035 of 1999. 
Altaf Ahmed, S.N. Bhat and Deepa Mahajan for the 
C Appellant. 
D 
Sanjay R. Hegde, A. Rohen Singh, Amit Kr. Chawla and 
Vikrant Yadhav for the Respondent. 
The Judgment of the Court was delivered by 
DR. ARIJIT PASAYAT, J. 1. Leave granted. 
2. Challenge in this appeal is to the judgment of a learned 
Single Judge of the Karnataka High Court dismissing the 
E appeal filed by the appellants. Both the appellants faced trial 
for alleged commission of offences punishable under Sections 
302, 201 read with Section 34 of the Indian Penal Code, 
1860(in short the 'IPC'). Learned Third Additional Sessions 
judge D.K. at Mangalore in Sessions Case No. 94of1995 held 
F that the accused persons were to be convicted in terms of 
Section 304 Part II and Section 201 read with Section 34 IPC, 
so far as appellant No.1 is concerned and Section 201 read 
with Section 34 IPC so far.as appellant No.2 is concerned. 
G 
H 
3. Background facts giving rise to the trial are as follows: 
M.T. George (hereinafter referred to as the 'deceased') 
was addicted to alcohol and used to assault A 1. Al had 
become desperate with the bad conduct of the deceased. On 
6.3.1995 at 9.30 p.m. the deceased picked up quarrel, 
ELIAMMA & ANR. v. STATE OF KARNATAKA 
137 
(DR. ARIJIT PASAYAT, J.] 
assaulted A1 and tried to pull her sari. A2 and A3 were present. 
A 
Because of the ghastly conduct of the deceased, A1 dealt a 
blow with the iron rod on the head of the deceased which 
resulted in his death. The accused persons stealthily buried the 
body in the backyard of the house. A 1 in the early morning of 
7.3.1995 informed school teacher (PW 1) of the village that the 
8 
deceased quarrelled with her and tried to pull her sari. 
Therefore, she hit the deceased on his head and that he was 
unwell. PW1 heard the fact from A 1 and went away. In the 
evening PW1 met A2 and made enquiries about the health of 
the deceased. A2 informed that his father was dead and that c 
they buried the body in the backyard. PW1 suspected foul play 
and lodged FIR before the police. At the instance of A1 and 
A2 the dead body buried in the backyard was exhumed on 
8.3.1995 in the presence ofT.E.M. 
The prosecution relied on the extra judicial confession 
D 
made by A 1 before PW 1 and the circumstances of recovery 
of the dead body at the instance of both the accused persons 
proved their guilt. An· appeal was preferred before the High 
Court which by the impugned judgment held that actual 
conviction should have been in terms of Section 304 Part I IPC. 
E 
But in the absence of challenge by the State there was no scope 
for interference. The evidence of PW 1 was found to be 
credible. The appeal was dismissed. 
4. Though in support of the appeal learned counsel for the 
F 
appellant submitted that the High Court ought to have accepted 
the stand

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