STATE OF A. P. v.

M. SOHAN BABU & ANR. (Criminal Appeal No. 363 of 2005)

DECEMBER 14, 2010 [HARJIT SINGH BEDI AND CHANDRAMAULI KR. PRASAD, JJ.]

[2010] 14 (ADDL.) SCR 1038

The following order of the Court was delivered

O R D E R

1. This is indeed an unfortunate case.

2. P.W. 1-Maxwell Trevor, P.W.2-Gene Trevor and P.W. 4-Marlene Moss are brothers,  

whereas P.W. 5 Sherlyn Trevor is the wife of the deceased Glen Trevor. P.W. 3 Ezzard Moss  

is the sister of the deceased and wife of P.W. 4. The entire extended family was residing in a  

residential  house bearing No. 12-5-188/2 Lalaguda, Secunderabad, consisting of two floors  

with two portions in each floor. The deceased was an employee of the Railways and he along  

with his wife and children was residing in the southern portion of the ground floor whereas  

P.W. 4 along with his wife and children was residing in the northern portion of the ground floor.  

P.Ws.  2,3  and 4 were  residing  on the first  floor  of  the  said  premises.  P.W.  6-D.  Francis  

Satyanandam, was a neighbour of P.Ws. 1 to 5 with his residence on the southern side of the  

said premises. During the intervening night of 20th/21st November, 1991 shortly after midnight  

the deceased heard some footsteps and came out to investigate. He found A2 standing on the  

balcony of the first floor. A scuffle ensued between the two and the shouts and screams that  

came about  in  the scuffle  woke up the other occupants  of  the building and they saw the  

deceased and A2 grappling with each other.  As the deceased was a sportsman of  some  

repute  and  physically  strong  he  managed  to  pin  A2  to  the  ground by  falling  on  him.  A2  

thereupon took out a knife from the right side of his hip pocket with his right hand and stabbed  

the deceased on the left side of the abdomen and when P.W. 3 went to his rescue A2 stabbed  

him on the lower part of the right arm as well. In the meanwhile, A1 came from the side of the  

balcony and stabbed the deceased on both his thighs. A1 also prevented P.Ws. 1 and 3 from  

going to the rescue of the deceased by holding a knife at the throat of P.W. 3. A1 also stabbed  

P.W. 2 on his left shoulder. Despite the injuries having been caused to them, P.Ws.1 and 2  

over  powered A-2 and pushed him from balcony.  In the meanwhile,  the other neighbours  

arrived at the scene and got hold of A1 as well. P.Ws. 1 to 3 brought both the accused to the

ground floor, where they were tied up with a rope and information was also sent to the police.  

In the meanwhile, P.W. 1 secured a car from his neighbour Captain P. Crlbyand and removed  

the injured to the Railway Hospital Lalaguda, but he succumbed to his injuries on the way. The  

other injured were also brought to the hospital and they were examined and given first aid for  

their injuries. Their injuries were found to be simple. The trial court relying on the evidence of  

the aforesaid witnesses as supported by the medical evidence convicted and sentenced the  

accused under Sections 302/34, 460 and 324 of the Indian Penal Code.

3. An appeal was thereafter taken by the accused to the Andhra Pradesh High Court,  

which,  modified  the  conviction  to  one  under  Section  304  Part  I  IPC (while  acquitting  the  

accused of the offence under Section 302). It  is this part  of the judgment which has been  

challenged by the State of Andhra Pradesh by way of this appeal.

4. The facts as recapitulated reveal that the accused duly armed had entered the house of  

the deceased and when they had been challenged they had caused one fatal injury to the  

deceased. The High Court has found that as the case of the accused was not covered by  

Clause thirdly of Section 300 they were liable for conviction under Section 304 Part I and not  

Section 302. While dealing with this matter, the High Court has observed as under:

“That  being  the  settled  law,  we  have  to  consider  whether  the  two  requirements  

contemplated by the third clause of Section 300 IPC have been fulfilled. We have already  

noticed that the testimony of direct witnesses pointing to one thing that A2 dealt a knife  

blow on the left abdomen of the deceased – The only question then to be considered is  

whether A2 intended to inflict injury that was found on the dead body of the deceased. It is  

time to recapitulate the evidence of P.Ws. 1 to 4 quickly. P.w. 1 testified that by the time  

he came on to the balcony of the first floor the deceased and A-2 were grappling and  

more particularly the deceased was on the top of A-2 pinning him down to the ground. It is  

to be noted that the deceased was an internationally renowned cyclist and physically well  

built person and whereas A2 is a shorter man. In the situation in which A-2 was placed  

made us to believe that he dealt a knife blow in the process of extricating himself from the  

clutches  of  the  deceased  and  unfortunately  the  blow landed  on  the  vital  part  of  the  

deceased,  which  ultimately  led  to  his  death.  In  these  circumstances,  the  offence  

committed by A-2 comes within the purview of Section 304 I.”

5. We find that in the facts of the case, the observations given above are not correct. It  

cannot be ignored that the two accused had entered the premises at mid night duly armed with  

the intention of committing robbery. They were also charged under Section 460 IPC on that  

account. It is also in evidence that the deceased had managed to pin A2 down to the ground  

and A2 had caused one injury in the stomach of the deceased while he lay on top of him. Two  

injuries were thereafter caused on the thigh of the deceased by A2 and the other accused. It is

also in evidence that when the neighbours arrived on the scene they too were caused injuries  

and threatened with dire consequences. To say, therefore, that there was no intention on the  

part of the accused to cause death would be carrying the matter a little too far. The High Court  

has been influenced by the fact that there was no common intention on the part of the accused  

to commit  murder.  We see,  however,  that  the common intention can be inferred from the  

circumstances of the case and that the intention can be gathered from the circumstances as  

they arise even during an incident.  The initial  purpose was to commit  robbery, but as the  

accused were armed with knives which they had used repeatedly and effectively, they were  

willing to kill as well and that they could nto cause more damage as they were overwhelmed  

and pinned down.

6. We, therefore, feel that the High Court’s observation that the matter fell under Section  

304 Part I and not under Section 302 of the IPC is erroneous. We, accordingly, set aside this  

part of the High Court judgment and restore that of the trial court.

7. The appeal is allowed.