Karnataka High Court
B H Maruthi vs State Of Karnataka on 28 March, 2013
Author: Mohan .M. Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28th DAY OF MARCH 2013
PRESENT
HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
HON'BLE MR. JUSTICE V. SURI APPA RAO
CRL.A.NO.967 OF 2008
BETWEEN:
B H MARUTHI
S/O. HANUMAIAH
AGED ABOUT 23 YEARS
R/AT NO.117, III MAIN, III CROSS
DEEPANJALINAGARA
BANGALORE.
... APPELLANT
(By Sri: M P VISHWANATH & K MANJUNATH, ADVS., )
AND
STATE OF KARNATAKA
BY BYATARAYANAPURA POLICE,
BANGALORE.
... RESPONDENT
(By Sri:SAMPANGIRAMAIAH, HCGP)
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THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE ORDER OF JUDGMENT AND CONVICTION
DT.22.01.2008 IN S.C.NO.264/03 PASSED BY THE ADDL.
S.J AND P.O, FTC-1, BANGALORE CITY, - CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCE
2
P/U/S.302 R/W SEC.34 OF IPC. AND SENTENCING HIM TO
UNDERGO S.I FOR LIFE FOR THE OFFENCE U/S.302 IPC
WITH THE AID SEC.34 OF IPC AND A FINE OF RS.1000/-
IDSI THREE MONTHS, AND BE PLEASED TO ACQUIT THE
APPELLANT.
THIS CRL.A COMING ON FOR HEARING THIS
DAY, V. SURI APPA RAO J., MADE THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 374(2) Cr.P.C. challenging the judgment and conviction order of sentence passed by the Sessions Judge, Fast Track Court-I, Bangalore City in S.C.No.264/2003, whereby the learned Sessions Judge found the appellant, who is accused No.2 in the sessions case is guilty of the offence under Section 302 r/w 34 of IPC and sentenced him to imprisonment for life and fine of `1,000/- in default, simple imprisonment for three months.
Aggrieved by the judgment of conviction and order of sentence, the appellant filed this appeal. 3
2. The brief facts of the case are as hereunder:-
Deceased Nagaraj invited the complainant, who is his brother to his house at Deepanjalinagar for dinner on the night of 31st December 2002. After having dinner in the house of the deceased, complainant came out of the house. Deceased and his wife also followed him to see him off at about 12.30 hours for some distance. At that time, accused No.1 was kicking the starter board of the water tank and accused No.2 was also present there on seeing accused No.1 kicking the starter board, deceased warned accused No.1 as to why he was kicking the starter board, which is a Government property and in case if he dies, who should be held responsible, for which, accused No.1 retorted and asked the deceased as to who is 4 he to question and picked up quarrel with deceased without any reason and removed a knife from the pant pocket and attempted to stab the complainant. When the complainant escaped, upon seeing deceased trying to escape, accused No.2 held him with his hands and facilitated accused No.1 to stab the deceased and then accused No.1 stabbed the deceased on his chest and caused bleeding injuries. When the deceased fell on the ground and accused ran away with knife. Complainant and his sister-in-law i.e., wife of the deceased took the deceased to the hospital, by which time, deceased was declared dead.
Thereafter, complainant lodged the compliant before Byatarayanapura police station. The Inspector of police took up investigation and filed charge-sheet against accused No.1. The Trial Court framed charge under Section 302 against 5 accused No.1 and after recording the evidence of PWs-12 and 13, who are eye-witnesses to the incident, the prosecution filed an application under Section 319 of Cr.P.C. to implead accused No.2 also in the case, as he was also responsible for causing the death of the deceased. The Trial Court allowed the application, consequently, accused No.2 was also inducted in the case. The Trial Court thereafter framed charge for the offence under Section 302 r/w 34 of IPC against accused No.2 and after completion of trial and after considering the oral and documentary evidence adduced by the prosecution, the Trial Court found accused No.1 guilty for the offence under Section 302 of IPC and accused No.2 for the offence under Section 302 r/w 34 of IPC and sentenced them to imprisonment for life and fine of `1,000/-, in default simple imprisonment for 6 three months. The appellant, who is accused No.2 before the Trial Court filed this appeal challenging the judgment and conviction of sentence awarded by the Trial Court.
3. Learned counsel for the accused submits that the appellant was cited as CW-5 in the charge-sheet filed by the prosecution. Later, during trial, he was examined as PW-2, but basing on the evidence of PWs-12 and 13, the Trial Court included the appellant also as accused No.2 in the case on the application filed by the prosecution under Section 319 of Cr.P.C, though there is no acceptable evidence at all against the accused No.2. It is further submitted that the contents of Ex-P1 complaint do not disclose any specific allegation against the appellant and that eye- witnesses PWs-12 and 13 are interesting 7 witnesses. Therefore, in the absence of independent corroborative evidence, the Trial Court was not justified in convicting the appellant under Section 302 r/w 34 of IPC, the accused is therefore entitled for acquittal.
4. Per-contra, learned High Court Govt. Pleader Sri. Sampangiramaiah submits that in Ex- P1, it has been clearly mentioned about the participation of appellant in the commission of offence and he had facilitated accused No.1 to stab the deceased by catching hold the deceased tightly. PW-12 lodged the complaint narrating the entire incident. In the evidence also, PW-12 and 13 have clearly stated accused No.2 caught hold of the deceased and accused No.1 stabbed the deceased on his chest and both of them are responsible for causing the death of the deceased. 8
5. The evidence of PW-1 Doctor K.H. Manjunath at Ex-P1 -post mortem examination clearly indicates the death of deceased Nagaraj was due to shock and hemorrhage consequent to stab injuries. The inquest report and the evidence of Investigating Officer at Ex-P23 and the panch witness for inquest clearly shows that the death of the deceased was due to injury on his chest. Thus, by medical evidence, the prosecution could able to prove that the death of the deceased was homicidal.
6. The only point for consideration is whether the accused is also responsible for causing the death of the deceased alongwith accused No.1, who was charged for the offence under Section 302 of IPC and who actually participated in the commission of offence. The evidence of eye- 9 witnesses PW-12 and 13 clearly shows that when the complainant, deceased and PW-13 were proceeding towards the electrical starter board to see off the complainant, who had come to their house for dinner on the night of 31.12.2002, they found accused kicking the starter board. When PW-12 asked accused as to why he is kicking the starter board which may result in electrical shock and who will be responsible if in case he dies, then, accused No.1tried to stab PW-12. When PW- 12 escaped, accused No.1 stabbed the deceased while appellant herein, who is accused No.2 caught hold of deceased tightly to facilitate accused No.1 to stab him on his chest. Their evidence clearly shows that immediately after the incident, both the accused ran away. The complainant and PW-13 took the deceased to the hospital and PW15-Dr. Prasanna, who examined 10 the deceased declared that the deceased is dead. Thereafter, PW-12 lodged the complaint before the police and police investigated into the incident and filed charge-sheet against accused No.1 only.
7. The contents of Ex-P1 complaint given to the police immediately after the incident also clearly indicates the role played by the appellant alongwith accused No.1 in causing the death of the deceased. The complaint also clearly mentions that while accused No.2 caught hold of the deceased, accused No.1 stabbed the deceased. The Trial Court after considering the evidence of PWs- 12 and 13 rightly allowed the application filed by the prosecution under Section 319 Cr.P.C. to include the appellant as accused basing on the contents of Ex-P1 complaint and evidence of PWs- 12 and 13. The learned Sessions Judge has in the 11 last para of the judgment ordered that copy of the judgment to be forwarded to the Director General of Police, Bangalore for conducting enquiry against the Investigation Officer for defective investigation against accused No.2 and for deleting accused No.2-appellant in the charge- sheet, though in the complaint it is alleged that this appellant was responsible for causing the death of the deceased alongwith accused No.1. The evidence of PWs-12 and 13 and the contents of Ex-P1 clearly indicates that it is accused No.1 who tried to stab the complainant, when PW-12 escaped, accused No.2 caught hold of the deceased, afterwards accused No.1 stabbed the deceased on the chest. There is absolutely no evidence on record that both the accused had common intention to commit the murder of the deceased and waited for arrival of the deceased. 12 The deceased alongwith his wife and PW-12 came out of the house to see off PW-12, who had come to their house for dinner. There is also no evidence on record that there was previous enemity between the accused and the deceased and accused had waited for opportunity to kill him. The evidence adduced by the prosecution clearly indicates that incident had taken place in spur of moment without any motive for causing the death of the deceased. When accused No.1 was found kicking starter board, PW-12 and deceased questioned accused No.1 about the same, accused No.1 asked the deceased as to who is he to question him as it is a Government property, then only, in spur of moment, accused No.1 removed knife and tried to stab PW-12 and when he escaped, he caused injury to the deceased. In the complaint and the evidence, it 13 has been clearly stated that appellant caught hold of the deceased, while accused No.1 stabbed the deceased.
8. In view of the above facts and circumstances, we are of the considered view that offence committed by the appellant comes under Section 304-II of IPC r/w 34 of IPC, but not under Section 302 of IPC as observed by the Sessions Judge. We are therefore of the view that ends of justice will be met, if the accused is sentenced to imprisonment for the period already undergone. Learned High Court Govt. Pleader submits that the appellant has already served more than seven years imprisonment.
For the reasons stated above, conviction and sentence passed against the accused for the offence under Section 302 r/w 34 of IPC is hereby 14 set-aside and instead the accused is sentenced to imprisonment for seven years for the period already undergone for the offence under Section 304-II r/w 34 of IPC.
Accordingly, appeal is allowed-in-part modifying the sentence awarded against the accused. The accused shall be released forthwith, if he is not required in any case.
Intimate operative portion of the order to the concerned prison authorities.
Sd/-
JUDGE Sd/-
JUDGE *mn/-