Karnataka High Court
State Of Karnataka By Sanjay Nagar ... vs Sudhakar @ Shankar S/O Munivenkatappa on 13 December, 2012
Bench: K.L.Manjunath, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF DECEMBER 2012
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUANTH
AND
THE HON'BLE MR.JUSTICE H.S. KEMPANNA
CRIMINAL APPEAL NO.1838/2007
BETWEEN
State of Karnataka by
Sanjay Nagar Police Station
Bangalore City. ...Appellant
(By Sri.Sampangiramaiah, HCGP)
AND:
Sudhakar @ Shankar
S/o. Munivenkatappa
Aged about 32 years
R/o. Ramaiah Compound
M.S.R. Nagar
Bangalore City.
... Respondent
(By Sri. Shankarappa, Adv., for
M/s. M.T.Nandish & Assts.,)
This Crl.A. is filed under Section 378 (1) & (3) of
Cr.P.C. by the State P.P. for the State praying to grant
leave to file an appeal against the Judgment and order
dated 27.11.2006 in S.C.No.761/2005 on the file of the
P.O., FTC - VIII, Bangalore, acquitting the respondent
accused for the offence P/U/S. 302 of IPC.
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This Crl.A. coming on for hearing this day,
K.L.Manjunath J., delivered the following:-
JUDGMENT
The State has filed this appeal under Section 398 (1) and (3) of Cr.P.C. challenging the judgment and order dated 27.11.2006 passed by the Presiding Officer, Fast Track Court - VIII, Bangalore City, in S.C.No.761/2005 dated 27th November, 2006 acquitting the respondent/accused for the offence punishable under Section 302 of IPC.
2. On the charge sheet filed by Sanjay Nagar Police against the respondent/accused for the offence under Section 302 of IPC, he was tried for the aforementioned offence.
3. It is the case of the prosecution that on the early morning at about 3 a.m. on 20th May, 2005 the accused was passing urine in front of Physic Security Office near Canara Bank, Ashwath Nagar within the limits of Sanjay Nagar Police Station. At that time, the deceased Nagendra, who was discharging his duty as a Security 3 Guard in Physic Security Office, obstructed the accused to attend nature call in front of his office. The accused started to run from the place and when the deceased was chasing him near Star Chicken Center in 80 feet road, the accused revolted against the deceased and snatched the lathi of the deceased from his hand and assaulted him till the lathi broken and thereafter, he took a size stone, which was lying on the heap of the sand by the side of the road and assaulted the deceased by throwing the stone on the head, which resulted in fatal injury to the deceased. The deceased Nagendra was shifted to M.S.Ramaiah hospital for treatment, where he succumbed to the injuries at about 4 a.m.. This incident was witnessed by one Sarang, Krishnend - PWs.15 and 14 and one Shankarji Das -CW.9 from the balcony of the building situated behind the Physic Security Office, who shifted the deceased to M.S.Ramaiah Hospital. Based on the same, the case was registered in Crime NO.208/2005 by Sanjay Nagar 4 Police on the complaint lodged by one Ashwath, Security, working in Physic Security.
4. The investigation was conducted by PW.13 - K.Purushotham and the accused was arrested on 17.7.2005. Accordingly, charge sheet was filed.
5. The accused pleaded not guilty, but claimed to be tried.
6. In order to prove the case of the prosecution, the prosecution has relied upon the evidence of PW.1 to PW.17, Exs.P.1 to P.16 and MOs.1 to 8.
7. While answering the statement recorded under Section 313 of Cr.P.C., the accused denied the evidence of the prosecution witnesses. The accused did not lead any evidence.
8. After hearing the learned State Public Prosecutor and the defence counsel, the trial Court formulated following points for its consideration:- 5
1. Whether the prosecution has proved that on 20.5.2005 at about 3.00 a.m. the accused committed murder of Nagendra, the Security Guard working in Physic Security, Bangalore in front of Star Chicken Center on 80 feet Road, at Sanjay Nagar within the limits of Sanjay Nagar police Station by assaulting him with stick/lathi all over his body and with bid stone on his head and thereby accused is guilty of offence punishable under Section 302 of IPC?
2. What order?
9. After considering the arguments and the evidence let in by the prosecution, the Sessions Court came to the conclusion that the prosecution has failed to bring home the guilt of the accused registered for the offence punishable under Section 302 of IPC. However, it came to the conclusion that the prosecution has proved the case against the respondent/accused for the offence punishable under Section 304 (2) of IPC, accordingly, it has convicted the accused for said offence and 6 sentenced him to undergo simple imprisonment for three years.
10. Since the accused has been acquitted form the offence punishable under Section 302 of IPC, the present appeal is filed by the State.
11. We have heard Sri.Sampangiramaiah, learned High Court Government Pleader. According to him, the trial Court has committed an error in not convicting the accused for the offence punishable under Section 302 of IPC without considering the evidence of PWs.14, 15 and also the evidence of PW.2. According to him, the prosecution has proved the guilt of the accused, as the evidence of PWs.14 and 15 has not been challenged by the defence counsel and the evidence of PW.2 discloses that the death of the deceased is due to head injury sustained by him and it is homicidal death. In the circumstances, he requests the Court to re-appreciate the entire evidence let in by the prosecution and convict 7 the accused for the offence punishable under Section 302 of IPC.
12. Per contra, learned counsel appearing for the respondent/accused submits that none of the grounds urged by the learned High Court Government Pleader are tenable because, the respondent/accused had no any intention to commit the murder of the deceased and according to him, unfortunately while attending the nature call at 3 a.m. in the early morning, it is the deceased, who obstructed the accused from attending to his nature call, when he shouted against the accused, the accused started running away from the place, the deceased chased him and tried to assault the respondent/accused. In the circumstances, on account of sudden provocation, respondent/accused took the lathi from the deceased and assaulted him. In the act of provocation, he has thrown a stone on the deceased. Therefore, it clearly shows that there was no intention to commit the murder of the deceased and the accused never went near Physic Security Office either to commit 8 the murder or for any other reason. Since it was 3 a.m. in the early morning, he was attending his first nature call, which resulted in an unfortunate incident. According to him, the Sessions Court is justified in bringing the case of the prosecution from 302 of IPC to 304 (2) of IPC. In the circumstances, he requests the Court to dismiss the appeal.
13. Having heard the learned counsel for the parties, the point to be considered by us in this appeal is:
Whether the prosecution has proved beyond reasonable doubt to bring home the guilt of the accused for the offence punishable under Section 302 of IPC.
14. The homicidal death of deceased Nagendra is not disputed, he died on account of head injury caused by the respondent accused with MO1. To prove the guilt of the accused the prosecution has relied upon the evidence of PW1 Selvi, PW14 Krishnendu Mouli and PW15 Sarang Pani. It is the specific case of the 9 prosecution that at about 3.00 a.m. on 20.5.2005 when the respondent was attending his first call of nature in front of Physic Security near Canara Bank, Ashwath Nagar, the deceased who was working as a security guard in Physic Security obstructed the accused from attending to the first call of nature. On account of the obstruction made by the deceased, the accused started running from the place. In spite of the same, the deceased chased the accused when he was near Star Chicken Center on 80 feet road, the accused revolted against the deceased and assaulted him by snatching lathi of the deceased till it is broken. Thereafter out of provocation, he took the stone which was lying there on the heap of sand by the side of the road in front of the building under construction and assaulted the deceased with the stone on his head which resulted in fatal injury. It is the case of the prosecution that PW1-Selvi, who had come out of the house to attend the nature call had seen this incident, so also PW14 and PW15, who were speaking on their mobile phones from 15' distance 10 from the place of incident and it is PW14 and PW15 along with CW9 shifted injured deceased to M.S.Ramaiah Hospital where he succumbed to the injury. PW1 has not supported the case of the prosecution. PW14 and 15 though have seen the incident while the respondent hitting the deceased with MO1, they are not eye witness to the prior to the said incident. In other words, PWs.14 and 15 are not aware of what transpired between the deceased and the accused when the deceased was attending first call of nature in front of Physic Security, wherein the deceased discharging his duty as a security guard. But it is the case of the prosecution that when respondent started running from the place, the deceased chased the accused and there were altercations between them. Therefore, it is clear that the respondent had no intention to commit murder of the accused and he had not come with the preparation or motivation and it is on account of provocation at the instance of the deceased the incident has taken place. The trial court having 11 considered the evidence, had come to the conclusion that it is the case of the culpable homicidal not amounting to murder. Accordingly the respondent had been convicted for the offence punishable under Section 304 of IPC. The learned Government Advocate is unable to pin point from the judgment of the trial court as to how the Sessions Court has committed an error in bringing the case of the prosecution from Section 302 to 304 Part II. The Sessions Court has given reasons in detail, why the case of the prosecution cannot be believed to convict the accused for the offence punishable under Section 302, because of the foundation for the case by the prosecution is that on account of the provocation, the respondent who had no intention to commit murder has assaulted the deceased and he succumbed to the injuries. In the circumstance, we are of the view that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt to convict the accused for the offence punishable under Section 302 of IPC.
12In the result, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE SA/KLY