Karnataka High Court
Mohan Kumar @ Manjunath vs The State By Srirampura Police Station on 5 June, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR. JUSTICE B.A.PATIL
CRIMINAL APPEAL NO.67/2013
BETWEEN:
MOHAN KUMAR @ MANJUNATH
S/O LATE HANUMANTHAIAH
R/A NO.25, NEELAGIRI PAPANNA BLOCK,
SRIRAMAPURA
BANGALORE - 560 021. ...APPELLANT
(BY SRI S.LAKSHMINARAYANA, ADV. - ABSENT;
SRI N.S.SAMPANGI RAMAIAH, AMICUS CURIAE)
AND:
THE STATE BY SRIRAMPURA POLICE STATION
BANGALORE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR
ATTACHED TO THE OFFICE OF
ADVOCATE GENERAL, HIGH COURT,
BANGALORE - 560 001. ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED
24/25.02.2012 PASSED BY THE P.O., FTC (SESSIONS)-XI,
BANGALORE IN S.C.NO.1017/2009 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC
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AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
LIFE IMPRISONMENT AND ALSO LIABLE TO PAY FINE OF
RS.20,000/- (RUPEES TWENTY THOUSAND) IN DEFAULT OF
FINE, HE SHALL UNDERGO R.I. FOR ONE YEAR FOR THE
OFFENCE P/U/S 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, BUDIHAL R.B., J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the appellant-accused being aggrieved by the judgment and order of conviction dated 24.2.2012 passed by the Fast Track (Sessions) Judge, Bangalore in Sessions Case No.1017/2009, wherein the appellant-accused has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment and also to pay a fine of Rs.20,000/-, in default to pay fine, to undergo rigorous imprisonment for a further period of one year for the said offence.
2. One Kantharaj, brother of the deceased is the complainant. As per the complaint averments-Ex.P2, he is residing along with his parents in the address mentioned in the complaint and is working as a car driver belonging to call centre at Marathahalli. They are four children to their 3 parents. Nanjundaiah is his elder brother, second one is his sister Kamala and complainant is the third son and his younger brother is one Basavaraj. His father has suffered paralysis and mother is house wife and all the children are unmarried. Deceased Nanjunda was running autorickshaw bearing No.KA02-A-6812. He used to leave the house in the morning at 8.00 a.m. for work in his autorickshaw and use to come to the house during night. On 4.6.2009 in the morning at 4.00 a.m. complainant left the house and came back to house after attending the work at 1.00 p.m. and again at 3.00 p.m. he left the house in his car. At 9.15 p.m. when he was picking up the workers of call centre at Kamakshipalya one Srikanth, friend of the complainant called him over his mobile phone and informed that somebody has assaulted Nanjunda, brother of the complainant near Anjaneya temple, N.P.Block, near the library and that they have to go to the hospital and asked him to come immediately. Complainant directly came to K.C.G.Hospital and noticed that his brother Nanjunda had already expired. When complainant enquired with his friends, he told that on 4.6.2009 when deceased Nanjunda, 4 Manja, Murthy, Cheluvaraju were standing nearby the Anjaneya Temple, N.P.Block, at 9.00 p.m. accused Manjunath picked up quarrel with Nanjunda and assaulted him on his chest portion with knife and thereby, committed his murder. Accused Manjunath is having another name as Mohan Kumar. Earlier when said Manjunath met the complainant by showing the knife kept in his car he told that his brother Nanjunda is over active and he will show a way to him. On the basis of the said complaint case was registered in Crime No.158/2009 for the offence under Section 302 of IPC. After conducting investigation, the Investigating Officer has filed the charge sheet as against the accused person for the offence under Section 302 of IPC.
On hearing both sides, the learned Fast Track Judge framed the charge against the accused for the offence under Section 302 of IPC. When the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried. Hence, matter was set down for trial. In support of its case, the prosecution, in all, examined 25 witnesses and got marked 36 documents and 9 material objects. Thereafter, 5 accused has been examined under Section 313 of Cr.P.C. and his statement came to be recorded. On the side of the accused no witnesses were examined or any documents were got marked.
The learned Fast Track Judge, on considering the materials placed on record, both oral and documentary, held that prosecution has proved its case beyond all reasonable doubt and convicted the appellant accused for the offence under Section 302 of IPC and sentenced him accordingly.
Being aggrieved by the said judgment and order of conviction and sentence and challenging the legality and correctness of the said judgment, on the grounds as mentioned at ground Nos.5 to 16 of the appeal memorandum, the appellant is before this Court.
3. We have heard the arguments of learned Amicus Curiae, so also, the learned Addl. SPP for the respondent- State.
4. Learned Amicus Curiae while arguing the case drew our attention to the entire material on record and submits 6 that as per the prosecution material, P.Ws.3 and 4 are the eyewitnesses to the incident, but their evidence is not consistent with each other. So far as M.O.3 knife is concerned, one witness has deposed that after assaulting the deceased Nanjunda with knife, appellant has taken the knife with him, but another witness has stated that he left the knife at the spot itself and went away. As such, recovery of the material object is not satisfactorily established by the prosecution. He submits that both the panch witnesses for the seizure mahazar Ex.P7 have turned hostile and not supported the prosecution case. He also drew our attention to the medical evidence i.e., evidence of P.W.13, the doctor and submitted that as per the opinion of the doctor death is because of shock and hemorrhage. Accordingly, it is submitted that the prosecution has failed to make out a case about the involvement of the appellant-accused in committing the alleged murder of Nanjunda, the deceased. Hence, submitted to allow the appeal and to acquit the appellant- accused.
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Alternatively, learned Amicus Curiae has submitted that in case the Court comes to the conclusion that there is material to convict the appellant-accused, as the incident has taken place in a spur of moment and was not a pre-meditated act and there was no intention on the part of the appellant- accused to cause the death, at the most the offence if it is said to be proved, it may fall under Section 304(ii) of IPC. Since the appellant has already undergone 9 years of imprisonment, his case may be treated under Section 304(ii) of IPC. In support of his contention, learned Amicus Curiae has relied upon the decisions reported in (i) (2018)2 SCC 496 in the case of Atul Thakur Vs. State of Himachal Pradesh and others (ii) (2009)15 SCC 635 in the case of Gurmukh Singh Vs. State of Haryana.
5. Per-contra, learned Addl. SPP submitted that it cannot be said that the alleged incident has taken place in a spur of moment without there being any intention on the part of the appellant-accused. There was motive for the appellant- accused to cause the death of the deceased Nanjunda as the 8 deceased being the leader of congress party is said to have taken the contract of constructing toilets and had not constructed toilet to the house of appellant-accused though he had constructed such toilets to other houses. The accused had carried the knife along with him, which itself clearly goes to show the intention on the part of the accused and the preparation for committing the alleged murder of deceased Nanjunda. Hence, the case comes under Section 302 of IPC and not under Section 304(ii) of IPC.
In so far as the decisions relied upon by the learned Amicus Curiae are concerned, learned Addl. SPP has submitted that the principles enunciated and the factual matrix in the said decisions and the case on hand are altogether different. Hence, the said decisions will not come to the aid and assistance of the appellant-accused. He further drew our attention to the deposition of prosecution witnesses and submitted that P.Ws.3 and 4 are the eyewitnesses to the incident and they have consistently supported the case of the prosecution. Further, the opinion of the doctor regarding cause of death is also consistent with the story of the 9 prosecution. The learned Fast Track Judge has considered all these aspects extensively and has rightly come to the conclusion in holding the appellant-accused guilty for the offence under Section 302 of IPC. Learned Addl. SPP lastly submitted that there is no illegality in the judgment and order of conviction, so also, sentence passed by the learned Fast Track Judge. There is no merit in the appeal and the same is to be dismissed.
6. We have perused the grounds urged in the appeal memorandum, judgment and order of the Court below, oral evidence of the prosecution witnesses, so also, documents produced during the course of trial. We have also considered the two decisions relied upon by the learned Amicus Curiae in support of his contention and the submissions made by learned counsel on both sides at the bar.
7. The brother of deceased Nanjunda is the complainant in this case, who filed the complaint as per Ex.P2. However, he is not the eyewitness to the alleged incident. On the information furnished by one Srikanth, friend of the 10 complainant, he filed the complaint. As per the evidence of P.Ws.3 and 4, they are the eyewitnesses to the incident. We have carefully perused the deposition of these two witnesses. Both of them have consistently deposed that they have personally witnessed the incident which took place nearby the library and the accused assaulted the deceased with the knife on the chest and other parts of the body. They have identified M.O.3 knife before the Court that it was used by the accused to assault the deceased.
8. It is no doubt true, as submitted by the learned Amicus Curiae there is inconsistency with regard to the deposition in respect of the weapon M.O.3 since P.W.3 has deposed that accused has taken away the knife after commission of the offence, whereas P.W.4 has deposed that he left the knife at the spot itself and went away. But so far as the incident of assault is concerned, there is consistency in the evidence of P.Ws.3 and 4. Regarding the motive also it has come on record that construction of 20 toilets was sanctioned and contract was given to deceased Nanjunda and 11 he got constructed such toilets to 19 persons and eventhough the appellant-accused was requesting him repeatedly, he has not constructed the toilet in the house of the accused and in that connection, he was having grudge against the deceased Nanjunda. However, when there are direct witnesses to the incident, motive is totally insignificant as per the provision of Section 18 of the Indian Evidence Act. The prosecution has placed material even with regard to the motive apart from the evidence of direct witnesses P.Ws.3 and 4. Therefore, so far as the act of assaulting the deceased with knife by the accused person is concerned, worth believable material is placed by the prosecution. The prosecution has also examined the doctor as P.W.13. As per the evidence of P.W.13, he conducted autopsy over the dead body of the deceased and issued post mortem report as per Ex.P10. As per Ex.P10 the doctor has noticed four external injuries mentioned at Sl.Nos.1 to 4 in his deposition and has opined that cause of death is due to shock and hemorrhage as a result of stab injury sustained to the chest. The oral evidence of P.Ws.3 and 4 is also to the effect that they have seen the 12 accused assaulting the deceased on the chest portion with the knife. There is consistency in the evidence of the eyewitnesses and the Doctor's evidence regarding causing injury by the accused to the deceased on the chest portion, which is a vital part of the body. The trial Court after considering such evidence has rightly come to a right conclusion.
9. It is the prosecution case that the accused made the voluntary statement and at the instance of the accused persons MO.3-knife has been recovered, but however it is the contention of the learned Amicus Curiae that the punch witnesses have not supported the case of the prosecution and even there is no consistency with regard to the evidence of PWs.3 and 4.
10. Looking to the evidence of the Investigating Officer he has deposed that after the apprehension of the accused person he made a statement that accused carried knife and he will produced the knife before the Investigating Officer and accordingly in the presence of the punch witnesses the knife 13 is said to have been seized. The Investigating Office in this regard deposed in detail about recovery of knife in the presence of punch witnesses under the mahazar. Therefore, even if there is some inconsistency or discrepancy in the evidence of PWs.3 and 4, on perusing the entire materials so also the evidence of Investigating Officer, still it goes to show that it is the accused who made the statement and at his instance the weapon has been recovered in the presence of the punch witnesses. The seized articles were sent to FSL for examination report and in this regard the prosecution produced Ex.P29 the FSL report. Perusing this Ex.P29 totally 9 articles were sent to FSL and looking to the result of the analysis, the two items i.e. item No.2 sample mud and item No.3 the blood collected. Except these two items, all other items were stained with blood. Opinion is also given that the blood stains are of the human blood. Even the blood group is also ascertained as "AB" blood group. Therefore this document Ex.P29 also supports the case of the prosecution about the involvement of the accused in committing the said offences.
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11. Now coming to the contention of the learned Amicus Curiae that the case will not come under Section 302 of the IPC, but it will come at the most under Section 304-II of the IPC.
12. But however, looking to the materials placed on record and some material inconsistency with regard to the oral evidence of PWs.3 and 4 and it is in connection with the construction of the toilet to the house of the accused person that there were exchange of words in between the two, though accused may not bee having an intention to cause the death but in the ordinary course of nature if he knows as it causes death in that light, we are of the opinion that the case comes under Section 304-I of the IPC not under Section 304-II of IPC. In this connection we have heard both the sides even with regard to the sentence aspect. Perusing the entire material and after re-appreciation of the evidence placed on record both oral and documentary we are of the opinion that conviction imposed by the learned Fast Track Court Judge is hereby confirmed, but by looking into the other 15 circumstances the act by which death is caused is done with the intention of causing death in that light it attracts provision of 304-I of the IPC. This aspect has not been looked into by the trial Court. The accused-appellant is liable to be convicted under Section 304-I not for the offence under Section 302 of IPC .
13. Looking to the materials placed on record we are of the opinion that if accused is convicted for the said offence under Section 304-I of IPC and if he is imposed imprisonment for a period of 10 years with fine of Rs.20,000/- in default he has to undergo simple imprisonment for one year, then it appears to be reasonable and proper and it is proportionate to the offence committed by the appellant-accused. Only to the extent of this, the appeal is partly allowed and the conviction and sentence imposed by the learned Fast Track Court Judge is modified. Instead of 302 of the IPC.
The appellant/accused is entitled to set off of the custody period which he has already undergone as per Section 428 of the Cr.P.C.
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14. We placed on record the valuable assistance rendered by learned Amicus Curiae Sri.M.S.Sampangi Ramaiah, Advocate. High Court Registry is directed to pay an amount of Rs.10,000/- (Rupees ten thousand only) to the learned Amicus Curiae as honorarium.
Sd/-
JUDGE Sd/-
JUDGE BKP/AP