STATE OF KARNATAKA versus MOHAMED NAZEER @ BABU

Citation: [2003] 1 S.C.R. 555 · Decided: 24-01-2003 · Supreme Court of India · Bench: S.N. VARIAVA · Disposal: Disposed off

Judgment (excerpt)

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. 
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 
E 
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 u

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