Karnataka High Court
Raja @ Rajappa S/O Muniyapa And Muniraja ... vs State By Hebbagodi P.S. [Alongwith ... on 28 November, 2006
Equivalent citations: ILR2007KAR275
Bench: N.S. Veerabhadraiah, Jawad Rahim
JUDGMENT
1. These three appellants were charge sheeted for the offence under Section 302 r/w. 34 IPC for having committed murder of an unidentified person. The learned Judge of the Fast Track [Sessions] Court, Bangalore Rural District, Bangalore, convicted all the 3 accused persons for the offence under Section 302 r/w. 34 IPC in S.C. No. 261/2001 by his Judgment dated 17.07.2003 sentencing them to undergo imprisonment for life and to pay a fine of Rs. 1,000-00 each, in default to suffer imprisonment for a period of 6 months.
2. Accused No.2-Raja @ Rajappa and accused No.3-Muniraja preferred Crl.A. No.1513/2003, whereas accused No. 1-Krishnappa preferred Crl.A. No. 1514/2003 questioning the Judgment of conviction and sentence passed in S.C. No.261/2001 sentencing them to undergo imprisonment for life and to pay a fine of Rs. 1,000-00 each.
3. The brief facts of the case are as follows:
Accused No. 1-Krishnappa is a resident of Chandapura, Anekal Taluk, and accused No. 2-Raja @ Rajappa is a resident of Malur Town, Kolar District, whereas accused No. 3-Muniraju is native of Mathikere, Dankanakote Taluk, Tamil Nadu. Accused Nos. 2 and 3 were working as welders at the time of the incident and are friends of accused No. 1. The scooter possessed by accused No. 1 which was parked near Hilalige Railway Cross said to have been stolen by an unidentified person at about 6.00 p.m. on 29.03.2001. While the victim [deceased] was sleeping near Hilalige Railway Cross, accused Nos. 2 and 3 suspecting him to have stolen the scooter caught hold and took near the house of accused No. 1. The accused made the victim [deceased] naked except 'kacha' and have assaulted to extract information as to where the scooter is kept. It appears that the accused went on assaulting according to their whims and fancies by using wooden pestle-M.O.1 and eucalyptus club-M.O.2. At about 1.00 a.m. or so, P.W.1-Krishna, Head Constable of Hebbagodi Police Station received a telephone call about the assault on an unidentified person near the house of accused No. 1 in front of Ramareddy Poultry Farm, Chandapura. The Head Constable proceeded to the spot in the car of P.W.3-Chandra along with Police Constable-P.W.2-K. Narasimha Murthy, C.W. 4-Sukumar [P.C. 1012] and C.W.5-Chandramohan [P.C. 885]. They reached the spot at about 1.30 a.m., through the head light of the car they noticed that accused No. 1-Krishnappa pressing the neck of the unidentified person with his leg and stamping. Accused No. 2-Raja @ Rajappa was assaulting with a wooden pestle on the face and stomach, whereas accused No.3-Muniraju was assaulting him with a eucalyptus club on his head and legs. Also noticed that the unidentified person had suffered with severe bleeding injuries. The Police took accused Nos. 1 to 3 to their custody and while shifting the injured [unidentified person] to Victoria Hospital, died on the way due to the injuries. Thereafter, the body was kept in a mortuary of the Victoria Hospital. P.W.1 returned to the Hebbagodi Police Station at about 4.00 a.m. and registered a case in Crime No.96/2001 against accused Nos. 1 to 3 for the offence under Section 302 r/w. 34 IPC, prepared the FIR as per Ex.P2 and despatched it at about 4.30 a.m. on 30.03.2001. The further investigation was handed over to the Inspector of Police P.W. 12-M.N.Ramalingappa. P.W.12 recorded the voluntary statements of accused No. 1-Krishnappa as per Ex.P9, accused No. 2-Raja @ Rajappa as per Ex.P10 and accused No.3-Muniraju as per Ex.P11. On the same day, he proceeded to the spot and prepared the spot mahazar as per Ex.P4 and seized M.O.1-wooden pestle and M.O.2-eucalyptus club and also prepared the rough sketch as per Ex.P12. He recorded the statements of the witnesses. Also seized M.O.4-Dhoti and M.O.5-banian from the spot. On 31.03.2001 he proceeded to Victoria Hospital along with the panch witnesses and conducted inquest mahazar on the dead body as per Ex.P7. Thereafter, the dead body was subjected to post-mortem examination. On 02.04.2001, he seized the kacha-M.O.3 under mahazar Ex.P6. He secured the postmortem report as per Ex. P8 and forwarded the seized articles to FSL for chemical examination. After completion of the investigation, filed charge sheet against the accused persons.
The learned Judge of the Fast Track [Sessions] Court, Bangalore Rural District, Bangalore, secured the presence of accused Nos. 1 to 3, framed charges for the offence under Section 302 r/w. 34 IPC. The accused pleaded not guilty and claimed to be tried. The prosecution in all examined P.Ws. 1 to 12, marked Exs.Pl to P14 (b) and produced M.Os.1 to 5, whereas the defence got marked Ex.D1. The statements of the accused were recorded under Section 313 Cr.P.C. The defence is one of total denial. The accused did not choose to lead any evidence. The learned Judge of the Fast Track [Sessions] Court, for the reasons recorded in his Judgment convicted the accused for having committed the murder of an unidentified person for the offence under Section 302 r/w. 34 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1,000-00 each. It is this Judgment of conviction and sentence, which is questioned by appellants/accused Nos. 2 and 3 in Crl.A. No.1513/2003 and appellant/accused No. 1 in Crl.A. No. 1514/2003.
4. Learned amicus curiae Sri. Vishwanath Poojary vehemently submitted that except the testimony of P.W. 1-Krishna and P.W.2-K. Narasimha Murthy, absolutely there is no evidence to connect the accused persons. The deceased is an unidentified person, and the accused did not know as to who he is. Also submitted that P.Ws.1 and 2 could not have seen the incident of assault as the vehicle cannot go near the house of accused No. 1-Krishnappa as there is no road leading to his house. Further submitted that even accepting the evidence of P.Ws.1 and 2, it does not attract Section 300 IPC as the accused did not have any intention to commit the murder of the said unidentified person. Also submitted that at the most the offence may fall either under Section 304 I IPC or under Section 304 II IPC. Accordingly, prayed to allow the appeals and to pass appropriate Orders.
5. Sri. N. Rudramuni, learned Additional S.P.P. justified the Judgment of conviction and sentence by submitting that the acts of these accused persons are nothing but a man's slaughter. Also submitted that there is nothing to disbelieve or discredit the testimony of P.Ws.1 and 2, which is fully corroborated by the medical evidence. The doctor has stated that there are 26 injuries found on the person of the deceased. Therefore, the conviction and sentence of the accused for the offence under Section 302 IPC is justified. Accordingly, prayed to dismiss the appeals. Also submitted that the acts of the accused persons were with an intention to take away the life, which attracts the ingredients of Section 300 IPC. Therefore, on this ground also prays to dismiss the appeals.
6. In the light of the submissions, the points for consideration that arise;
1. Whether the learned Judge of the Fast Track [Sessions] Court, Bangalore Rural District, Bangalore, is justified in convicting the accused 1 to 3 for the offence under Section 302 r/w. 34 IPC? If not, liable to be interfered with?
2. What Orders?
7. It is one of the strange incident of murder of an unidentified person, who was done to death by the accused. Therefore, the Court has to consider whether it falls within the definition of culpable homicide?
Chapter XVI of the Indian Penal Code deals with the offences affecting the human body. The essential requirement of the homicide is killing of a human being by a human being to be established and there must be a death of a human being. To prove the offence there should be requisite mens-rea of the culprit in man's slaughter, whether the person murdered is identified or unidentified is immaterial. There should be a killing of a human being by another human being to attract either the ingredients of Section 299 or 300 IPC. If these essential requirements are proved, it is sufficient to hold that the death has been caused. In the Indian Penal Code, Section 46 IPC deals with the definition of "death" reads thus:
46. Death".-The word "death" denotes the death of a human being unless the contrary appears from the context.
Further Section 299 IPC reads thus:
299. Culpable homicide.-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
A combined reading of both the Sections makes clear, that if the death is caused, it attracts the ingredients of Section 299 IPC. Therefore, the Court has to see whether the death of a human being has taken place or not.
8. In the present case, the death of a human being is caused, which is evidenced from the post-mortem report Ex. P8 and the inquest mahazar-Ex.P7.
9. P.W. 11-Dr. K.H. Manjunath, who conducted the post-mortem examination on the dead body, found as many as 26 external injuries, which are mentioned in Ex.P8 as follows:
1. Abrasion over the left side of the forehead 3 cm above the left eye brow measuring 3 cm x 1.5 cm.
2. Abrasion present over the left side of the face 2.5 cm away from the angle of the left eye measuring 2 cm x 1.5 cm.
3. Abrasion present over left side of the face 3.5 cm below the left lower eye lid measuring 3 cm x 1.5 cm.
4. Abrasion present over 1 cm medial to the injury No. 3 measuring 1.5 cm x 0.5 cm.
5. Abrasion present over the middle of the forehead measuring 3 cm x 1.5 cm.
6. Abrasion present over the right aide of the face 3 cm away from angle of the left eye measuring 4.5 cm x 1.5 cm.
7. Transverse abrasion right side of the neck 6 can below the right angle of mandible measuring 4 can x 0.5 cm.
8. Abrasion parallel and 3 cm below the injury No. 8 measuring 4 can x 0.5 cm.
9. 2 abrasions left side of the neck. 1 cm x 0.5 cm. 1 cm x 1 cm. situated 1 cm apart and 8 cm below the left ear lobule.
10. Oblique abrasion 4 cm below the previous injury No. 9 measuring 3 cm x 1.5 cm.
11. Contused abrasion front, middle and outer aspect of the left side of the neck measuring 4 cm x 1.5 cm.
12. Abrasion front of the left shoulder region 5 cm x 1.5 cm.
13.4 abrasions over the outer aspect of the left shoulder 3 cm away from the injury No. 12. measuring 2 cm x 1.5 cm. , 2 cm x 1 cm. , 1 cm x 1 cm. 1 cm x 0.5 cm.
14. Abrasion present over the back of the right shoulder region 5 cm x 2.5 cm.
15. Contused abrasion over the back of the upper part of the chest region 8 cm below the root of the neck measuring 5 cm x 2.5 cm.
16. Oblique parallel contusion over the left side back of the middle of the chest 4 in number each measuring 7 cm x 1.5 cm with intervening normal skin of 0.5 cm.
17. Oblique parallel contusion over the right side back of the chest 4 in number each measuring 7 cm x 1.5 cm with intervening normal skin of 0.5 cm.
18. Linear parallel horizontal contusion over the right lumbar region 8 in number measuring 16 cm x 1.5 cm situated. 1 cm apart from each other with intervening normal skin of 0.5 cm.
19. Linear parallel horizontal contusion over the left lumbar region. 8 in number measuring 16 cm x 1.5 cm situated 1 cm apart from each other with intervening normal skin of 0.5 cm.
20. Linear parallel horizontal contusion over the left buttock region 6 in number each measuring 8 cm x 0.2 cm situated 0.5 cm apart from each other.
21. Linear parallel horizontal contusion over the right buttock 6 in number each measuring 7 can x 0.5 cm situated 0.5 cm apart from each other.
22. Abrasion present over the middle of the left buttock 5 cm x 2 cm.
23. Abrasion present over the middle and back of the outer aspect of the right thigh measuring 10 cm x 2 cm.
24. Abrasion over the right knee joint 3 cm x 1.5 cm.
25. Abrasion over the left knee joint 2 cm x 1.5 cm.
26. Abrasion over the upper and outer part of the left thigh 2 in number 6 cm below the left of liac crest measuring 4 cm x 3 cm. , 3 cm x 1.5 cm.
On dissection, noticed blood clots in the skull and collection of blood. There was bleeding from the brain and opined that the death was due to "shock and hemorrhage" as a result of injuries sustained. The doctor has opined all the injuries are ante-mortem in nature and fresh.
Though there is a lengthy cross-examination regarding the nature of the injuries caused by using the wooden pestle-M.O.1 and the eucalyptus club-M.O.2, nothing importance was brought out to discard the medical evidence. Therefore, we hold that the deceased who was an unidentified person was made to suffer with homicidal death, as a result of injuries caused. Accordingly, the findings recorded by the learned Judge of the Fast Track [Sessions] Court does not call for interference.
10. We have to carefully scrutinize the testimony of P.Ws.1 and 2 as they are the Police witnesses to find out, whether their testimony inspires confidence to uphold the findings recorded by the learned Judge of the Fast Track [Sessions] Court.
11. The evidence of P.W.1- Krishna, Head Constable of Hebbagodi Police Station shows, that he was on night duty on the intervening night of 29.03.2001. While he was in the Station, he received a telephone call of assaulting an unidentified person near Poultry Farm of one Ramareddy i.e., near the house of accused No. 1-Krishnappa. His evidence further shows that on receiving the information, he proceeded to the spot in the Ambassador car of P.W.3-Chandra, who was a member of Village Panchayat along with C.W.4-Sukumar [P.C. 1012] and P.W.2-K. Narasimha Murthy along with Police constable C.W.5-Chandramohan [P.C. 885]. The testimony of the Head Constable P.W.1-Krishna shows that they went near the spot and in the head light of the car he noticed that a person was made to fall on the ground and accused No. 1-Krishnappa was squeezing and stamping over the neck of a person fallen, whereas accused No.2-Raja @ Rajappa was assaulting with wooden pestle-M.O.1 on the face and stomach, whereas accused No.3-Muniraju was assaulting with a eucalyptus club-M.O.2 over the head and legs. It is also in his evidence that at the spot they caught hold of the accused persons. They also shifted the injured to the car. But, on the way to Victoria Hospital the victim died. His evidence shows that after making arrangements to keep the dead body in the mortuary, returned to the Police Station along with the accused persons and registered a case in Crime No. 96/2001 for the offence under Section 302 r/w. 34 IPC. Insofar as the overt-acts of accused Nos. 1 to 3 are concerned, he has stated that it is accused No. 1 was stamping by putting his legs on the person who had fallen, whereas accused No. 2 was assaulting with wooden pestle-M.O.1 and accused No.3 was assaulting with eucalyptus club-M.O.2.
Insofar as the incident of assault is concerned, in the cross-examination at para 6 P.W. 1-Krishna has stated that "in the head light of the car he saw the incident" and it is not even suggested that the accused persons did not assault as stated in the chief examination. It is seen that none others were present as it was late in the night and therefore they came to Victoria Hospital. From there they returned to the Police Station in the same car.
12. It is relevant to note that the evidence of P.W.3-Chandra, member of Village Panchayat, establishes the fact that he is the owner of the Ambassador car, and that about 2 or 3 years back, the Hebbagodi Police asked him to bring his car to go to hospital and he had accompanied the Police to Chandapura. His evidence also shows that the patient was quite all right while going to the hospital and that he did not know what happened to the said person. This witness [P.W.3] came to be treated as hostile as he did not support the entire case of the prosecution.
Nevertheless the testimony of P.W.3 establishes the fact that he went along with the Police to Chandapura to shift one person to hospital, who was suffering from injuries. Though P.W.3 given a go by to the case of the prosecution insofar as the assault on the unidentified person, witnessing the accused as well as noticing the weapons the fact is established that he accompanied the Police to Chandapura and shifted the victim who had suffered injuries, to Victoria Hospital.
13. Coming to the evidence of P.W.2-K. Narasimhamurthy, it evidences the fact that he was on duty on the night of 29.03.2001 and at about 1.00 a.m. he received a telephone call of assaulting an unidentified person near the house of accused No. 1-Krishnappa. C.W. 4-Sukumar, C.W.5-Chandramohan and himself accompanied P.W.1-Krishna to the spot in the car of Chandra. After reaching the spot, they saw 3 persons were assaulting a person with wooden pestle and club. Immediately, they caught hold of 3 persons. The injured was found not in a position to speak, therefore he was shifted to the car and the accused were also taken in the same car to Victoria Hospital. But, on the way, the injured died. Therefore, the dead body was kept in the mortuary of Victoria Hospital. It is also in his evidence that from Victoria Hospital they brought the accused persons to the Police Station and on the next day the accused persons were produced before the Court.
In the cross-examination, insofar as the incident of assault is concerned, he has clearly stated that he witnessed the assault though the head light of the car, whereas accused No. 1 was stamping, accused No. 3 was assaulting with eucalyptus club, and accused No. 2 was assaulting with wooden pestle. P.W.2 in the cross-examination itself has categorically stated the manner in which the incident of assault took place. The testimony of Head Constable-P.W.1-Krishna and P.W.2-K. Narasimhamurthy shows that they are trustworthy, credible and does not give room for any suspicion or doubt. That apart nothing is brought out to disbelieve their testimony.
14. It is no-doubt true at the time of the incident of assault i.e., at about 1.30 a.m. it is only P.W.1-Krishna and P.W.2-K. Narasimhamurthy were the persons present. The incident could not have been witnessed by any other. That apart, one could not expect any other person to be present when the incident of assault took place. Merely because of the reason that P.Ws.1 and 2 are the Police officials itself does not give room to discredit or disbelieve their testimony.
15. It is clear from the testimony of P.W. 1-Krishna that after going to the Victoria Hospital and keeping the dead body in the mortuary, returned to Hebbagodi Police Station by about 4.00 a.m. and suo motu registered a case in Crime No. 96/2001 for the offence under Section 302 r/w. 34 IPC. It is further relevant to note that the distance from Victoria Hospital to Hebbagodi Police Station is about 25-30 kms. Therefore, naturally by the time the Head Constable-Krishna returns to Hebbagodi Police Station, would take not less than 2 hours. Therefore, the time recorded as 4.00 a.m. in the FIR shows that it is natural and the question of falsely implicating the accused persons does not arise. It is also relevant to note that the FIR was despatched at 4.30 a.m. on 30.03.2001, which was received by the jurisdictional Magistrate at 2.00 p.m. on 30.03.2001 itself.
16. P.W. 9-Rudrappa speaks of the fact that on 30.03.2001 he was deputed by the Sub-Inspector to carry FIR to the Court and he carried the same and handed over to the Court at 11.00 a.m. It appears that the learned JMFC., Anekal, has put the timings as 2.00 p.m. after he got up during mid-session. Therefore, it cannot be said that there is any ambiguity or delay in carrying the FIR also. It is further relevant to note from the order sheet of the learned JMFC., Anekal, in C.C. No. 407/2001 that the accused were produced on 30.03.2001 and remanded to the custody. This evidences the fact that accused Nos. 1 to 3 were apprehended from the spot by P.Ws. 1 and 2 and others and brought to the Police Station. Therefore, the contention of the learned Counsel for the appellants/accused that they have been falsely implicated is without any merit.
17. It is no-doubt true that the inquest panchas P.W.6-Philips and P.W.7-L. Krishna Reddy have not supported preparing of the inquest panchanama. But, in the light of the direct evidence and the medical evidence, the testimony of P.Ws.6 and 7 is of no consequences.
18. The entire case of the prosecution rests on the testimony of P.Ws.1 and 2 and the post-mortem report Ex.P8 of P.W. 11-Dr. K.H. Manjunath, which is of trustworthy, credible and does not suffer from any infirmity as such. Therefore, we fully accept the testimony of P.W. 1-Krishna, Head Constable and P.W.2-K. Narasimha Murthy, Police Constable and partly accept the testimony of P.W.3-Chandra, Village Panchayat Member, who speaks of the fact of taking his Ambassador car at the instance of P.Ws.1 and 2 to the place of the incident.
19. The contention of the learned Counsel for the appellants/accused that the accused 1 to 3 did not have any intention to cause the murder and that they wanted to extract information from the deceased as to where the scooter in question is kept. It is in that act, the accused have mercilessly assaulted. Therefore, submits that the offence comes within the exception of Section 300 IPC as the accused did not have any intention to cause the murder and thereby the offence comes under Section 304 I or II IPC. Insofar as their contention of the learned Counsel for the appellants/accused, we have to refer the Judgment of the Apex Court reported in 2005 SCC [Cri] 1301; Abdul Waheed Khan Alias Waheed and Ors. v. State of A.P. At para 11 of the Judgment, the Apex Court has observed thus;
This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of IPC culpable homicide is the genus and "murder", its specie. All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics of murder is culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
In the light of the above, we have to examine as to whether the offence does fall under Section 300 IPC or 304 IPC?
20. As seen from the voluntary statements of accused Nos. 1 to 3 and also from the evidence of P.Ws.1 and 2, it establishes the fact that the accused did not have any intention to cause the death of the deceased, who is an unidentified person. But, they had knowledge of the use of the weapons would cause death. Therefore, in our opinion, the offence does fall under Section 304 I IPC and not under Section 302 IPC. Accordingly, the accused Nos. 1 to 3 are liable to be convicted for the offence under Section 304 I IPC.
For the foregoing reasons, we proceed to pass the following:
Order In the result, Crl.A. No.1513/2003 filed by appellant Nos. 1 and 2/accused Nos. 1 and 3 and Crl.A.No. 1514/2003 filed by appellant/accused No. 2 are allowed in part, convicting accused Nos. 1 to 3 for the offence under Section 304 I IPC and sentenced to undergo imprisonment for a period of 10 years. The conviction for the offence under Section 302 IPC and the sentence of life imprisonment with fine of Rs. 1,000-00 each is hereby set aside.
Accused Nos. 1 to 3 are entitled for set off and shall undergo the remaining sentence for the offence under Section 304 I IPC.
The fee of the learned amicus curae is fixed at Rs. 2,500-00