Karnataka High Court
Kotreshi @ Harappanahalli Kotreshi vs State Of Karnataka on 31 October, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
CRIMINAL APPEAL No.500/2022
BETWEEN:
KOTRESHI @ HARAPPANAHALLI KOTRESHI
S/O. GANESHAPPA
AGED ABOUT 44 YEARS
RESIDENT OF KURUBARA ONI,
HIRE HADAGALI - 583 216
HOOVINA HADAGALI TALUK,
BELLARI DISTRICT.
PRESENTLY AT CENTRAL PRISON, BELAGAVI
CTP No.3432. ... APPELLANT
(BY SRI HALASHETTI JAGADISH SIDRAMAPPA, ADVOCATE)
AND:
STATE OF KARNATAKA
REP. BY POLICE INSPECTOR,
HEBBAL POLICE STATION,
NOW R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001. ... RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER ON
SENTENCE DATED 07-08-2006 IN SESSIONS CASE
NO.851/2005 PASSED BY THE PRINCIPAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, CONVICTING THE APPELLANT-
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302
OF THE IPC.
-2-
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:-
JUDGMENT
The appellant-accused, who is none other than the son of the elder brother of the deceased, has filed this criminal appeal against the judgment of conviction and order on sentence dated 7-8-2006 passed in Sessions Case No.851 of 2005 on the file of the Principal City Civil and Sessions Judge, Bengaluru, convicting and sentencing him to undergo rigorous imprisonment for life with fine of Rs.2,000/- for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, 'the IPC').
2. For the sake of convenience, the parties herein shall be referred to in terms of their status before the trial Court.
3. The case of the prosecution is that, on 7-7- 2005, the accused went to the house of his paternal aunt, Smt. Kasturamma (hereinafter referred to as 'the deceased'), to seek financial help of Rs.25,000/-. When -3- she expressed her inability to pay Rs.25,000/-, seeing gold ornaments worn by her and with a view to commit theft of the said ornaments to fulfill his financial needs, he caused her death by assaulting on her head and forehead with a pounding stick while her with a small pounding stick on her head and forehead while she was engaged in preparing food for him in the kitchen. Based on the complaint, the jurisdictional Police have registered a case in Crime No.211 of 2005 for the offence punishable under Section 302 of the IPC. After investigation, the Police have filed charge-sheet against the accused.
4. After taking cognizance, the learned Magistrate committed the case to the Sessions Court. The learned Sessions Judge secured the presence of the accused and framed the charge for the offence punishable under Section 302 of the IPC. When the charges were read over and explained to the accused, he pleaded not guilty and claimed to be tried. -4-
5. In order to prove the guilt of the accused, the prosecution examined thirteen witnesses as P.W.1 to P.W.13, got marked twenty-two documents as Ex.P.1 to Ex.P.22 and marked eleven material objects as M.O.1 to M.O.11. After conclusion of the prosecution evidence, the statement of the accused as contemplated under Section 313 of the Code of Criminal Procedure, 1973, has been recorded. The accused denied all the incriminating evidence adduced against him, but has not led any defence evidence.
6. Considering the oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution proved beyond all reasonable doubt that on 7-7-2005 at about 12:15 P.M., the accused intentionally or knowingly committed the murder of his paternal aunt in her house and committed theft of gold and silver ornaments and thereby, he committed the offence punishable under Section 302 of the IPC. Accordingly, the learned Sessions Judge by the -5- impugned judgment, convicted the accused for the offence punishable under Section 302 of the IPC. Hence, the present appeal.
7. We have heard Dr. J.S. Halashetti, learned counsel appearing for the accused and Sri Vijayakumar Majage, learned Additional State Public Prosecutor for the respondent-State.
8. The learned counsel appearing for the accused, has contended that the complaint was filed by P.W.1 against unknown persons and based on the confession statement made by the accused to his friend, P.W.9, the learned Sessions Judge proceeded to convict the accused, which is impermissible. The entire case is based on circumstantial evidence and there are no eyewitness. He further contended that on unfortunate incident date, i.e. on 7-7-2005, when the deceased refused to pay Rs.25,000/- to the accused to clear his outstanding loan in the Bank, he lost self control and assaulted the deceased with M.O.2 and there was no -6- intention to kill the deceased, thereby the act of the accused attracts the provisions of Section 299 of the IPC (culpable homicide) and not Section 302 of the IPC (murder). He further contended that on unfortunate day, the accused had gone to the house of the deceased to ask for a financial help of Rs.25,000/- and there was no intention to commit murder and when she expressed that she had no money, on seeing the golden ornaments worn by her, decided to takeaway the ornament, by which, he could solve his financial burden, taking the wooden stick, he hit the deceased on the backside of her head and she died on the spot. The accused had no intention to commit the murder of the deceased, but it happened when he assaulted the deceased with a wooden stick without knowing that the injury caused by him is likely to cause her death and thereby, the accused is liable to be punished under Section 304 Part- II of the IPC.
-7-
9. In support of his contention, he has relied upon the dictum of the Hon'ble Supreme Court in the case of State of Andhra Pradesh vs. Rayavarapu Punnayya and Another reported in [(1976) 4 SCC 382], wherein the Hon'ble Supreme Court has considered the provisions of Sections 299 and 300 of the IPC and held that it was culpable homicide and punished the accused therein for the offence punishable under Section 304 Part-II of the IPC. He further contended that since the accused is in custody for more than seventeen years, a lenience may be shown for his release. Hence, he prays to allow the appeal.
10. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor while justifying the judgment of conviction and order on sentence passed by the learned Sessions Judge, has He contended that the accused has committed the murder for gain and homicidal death is proved as per the Post-Mortem examination report submitted by P.W.3-Dr. B.M. -8- Nagaraja. He further contended that recovery of M.Os.1 to 3 from the spot at the instance of the accused. P.W.10-Gajanana Balakrishna Sait, who purchased the gold ornaments, i.e. M.Os.4 to 6, and P.W.11-Vittalkar Prasad, who purchased a pair of silver leg chains, i.e. M.O.7 have supported the case of the prosecution. P.W.12-Shivakumar is the friend of the accused and P.W.9-Imam Sab @ Imam, before whom the accused had confessed, have supported the case of the prosecution. He further contended that sale of M.Os.4 to 7 by the accused clearly depicts that he wanted to clear the loan immediately after two days of the incident and thereby, proved the oral and documentary evidence, that it is homicidal death clearly attracts the provisions of Section 302 of the IPC and not Section 299 of the IPC. Therefore, he prays to dismiss the appeal.
11. In view of the aforesaid rival contentions urged by the learned counsel for the appellant and the -9- learned Additional State Public Prosecutor, the only point that arises for our consideration is:
"Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge sentencing him to undergo imprisonment for life with fine of Rs.2,000/- for the offence punishable under Section 302 of the IPC in the facts and circumstances of the present case?"
12. We have given our anxious consideration to the arguments advanced by the learned counsel for the appellant as well the learned Additional State Public Prosecutor and perused the entire material including the original records carefully.
13. In order to re-appreciate the entire material on record, it is appropriate to have a cursory look at the evidence of the prosecution witnesses and documents relied upon:
- 10 -
(a) P.W.1-A. Sannaveeranna is the husband of the deceased-Kasturamma. He has deposed that on 7-7-
2005 when he was working in Office at about 3:30 P.M., he came to know through his daughter, namely A.S. Seema (P.W.2), over phone that his wife was murdered in his house and godrej almirah was opened. Later, he rushed to his house and saw the dead body of his wife lying in the pool of blood in the kitchen and he came to the conclusion that someone might have committed murder of his wife while committing theft in the house as the deceased's gold and silver ornaments were missing. Thereafter, he went to the Police Station and filed a complaint (Ex.P.1) against unknown persons. He has further deposed that on 1-8-2005, the Police called him and he went to the Police Station, at that time, the accused was in police custody along with deceased's gold and silver ornaments. He has further deposed that the accused is the son of the elder brother of his wife, so he used to come to their house in Bengaluru and used to reside with them. He has further deposed that the
- 11 -
accused was in good terms with the deceased and he used to help the deceased in household works. In cross- examination, he has deposed that there was no ill-will and financial transaction between the accused and his family and thereby, he has supported the case of the prosecution.
(b) P.W.2-A.S.Seema is the daughter of P.W.1 and the deceased. She has deposed that on 7-7-2005 at 3:30 P.M., she returned from College to home and found that her house was latched from outside and when she opened the door and went inside the house, she saw the dead body of her mother lying in kitchen and thereafter, she called her father over phone and informed the same. Further, she has deposed that the accused used to come to their house in Bengaluru as he was their relative and thereby, she has supported the case of the prosecution.
(c) P.W.3-Dr.B.M. Nagaraja, who conducted Post-Mortem examination of the deceased and gave the report (Ex.P.2). He opined that cause of death is due to
- 12 -
shock and hemorrhage as a result of a homicidal head injury sustained because of a heavy cutting weapon and blunt force and thereby, he has supported the case of the prosecution.
(d) P.W.4-S.S. Patil is one of the panch witnesses to Ex.P.4. He has deposed that he knows the deceased's family as his house is situated opposite to the house of P.W.1 in Bengaluru. Further, he has deposed that on 7-7-2005 at about 5:45 P.M., at the time of inquest mahazar, the Police called him and seized M.Os.1 and 2 and thereby, he has supported the case of the prosecution.
(e) P.W.5-Mani, who is having a coin booth in his photo framework shop. He has deposed that he has seen the accused on 6-7-2005 and 7-7-2005 at 10:30 or 11:00 A.M. while he was making phone calls through his coin booth. After some days, the Police brought the accused to his shop and he identified him and thereby, he has supported the case of the prosecution.
- 13 -
(f) P.W.6-Shankar has deposed that he knows P.W.1 and he has seen the accused with C.W.3 (son of P.W.1). Further, he has deposed that on 7-7-2005, the accused came to his STD booth to make a phone call to his aunt. Further on 31-7-2005, he informed the same to the Police when the police brought the accused to his shop and thereby, he has supported the case of the prosecution.
(g) P.W.7-T.R. Krishnamurthy was the Sub- Inspector of Police of Hebbal Police Station. He has deposed that on 31-7-2005 at 7:30 P.M. near Kempegowda Bus Stand, Bengaluru, he along with C.WS.25 & 26 apprehended the accused, produced him before the Police Inspector at 8:00 P.M. along with report (Ex.P.13) and thereby, he has supported the case of the prosecution.
(h) P.W.8-N.C. Sampath is one of panch witnesses for Exs.P.14 & P.15 (seizure of gold & silver
- 14 -
jewellery). He has deposed that he knows the accused. On 31-7-2005 at about 7:00 P.M., the Police called him and requested him to come with them to Haveri, where the accused had pledged gold and silver ornaments of the deceased. On 1-8-2005 at 8:00 A.M., they went to the house of P.W.10-Gajanana Balakrishna Sait and one jewelry shop in Haveri to collect the ornaments, i.e. M.Os.4 to 7. Thereafter, the Police seized the said ornaments and thereby, he has supported the case of the prosecution.
(i) P.W.9-Imam Sab @ Imam has deposed that he knows the accused as he was working under the accused as Coolie. On 6-7-2005, the accused brought him from Hirehadagali Village to Bengaluru for purchase of new shamiyana (pendal) set. He has further deposed that the accused took him to Kempapura and made a telephone call through coin booth and thereafter, he and the accused went to the house of P.W.12-Shivakumar in Bengaluru. On 7-7-2005, he and the accused left the
- 15 -
house of P.W.12 and again they went to Kempapura and made telephone call. At about 12:15 P.M., the accused told him that he will bring money from his aunt and asked him to sit near the temple and around 1:30 or 1:45 P.M., the accused came back and both went to Davanagere. He has further deposed that, after one week, he came to know that aunt of the accused was murdered at Bengaluru. Later, he asked the accused about this, the accused confessed that he has murdered his aunt. On 1-8-2005, he informed the same before the Police and thereby, he has supported the case of the prosecution.
(j) P.W.10-Gajanana Balakrishna Sait is one of panch witnesses for Ex.P.14 (seizure of gold jewelries). He has deposed that he knows the accused. On 8-7- 2005 at 9:00 A.M., the accused came to his residence and sold the gold ornaments for Rs.23,500/-. On 1-8- 2005, the accused along with the Police came to his house and asked him to produce the gold ornaments, he
- 16 -
produced the same and thereafter, the Police have seized the said ornaments and thereby, he has supported the case of the prosecution.
(k) P.W.11-Vittalkar Prasad is one of panch witnesses for Ex.P.15 (seizure of silver jewelry). He has deposed that he knows the accused. On 8-7-2005, the accused came to his jewelry shop in Haveri and sold a pair of silver leg chains for Rs.350/- which were weighing 42 grams. He has further deposed that after ten or fifteen days, the accused along with the Police came to his shop and asked him to produce the silver leg chains, he produced the same and thereafter, the Police have seized the said ornament and thereby, he has supported the case of the prosecution.
(l) P.W.12-Shivakumar has deposed that he knows the accused as they both are from Hirehadagali Village. He has deposed that he is working as a Driver in HP Company, Bengaluru, and he is residing in a rented room in Bengaluru. On 6-7-2005 at about 10:30 P.M.,
- 17 -
the accused and P.W.9 came to his room and they left his room on 7-7-2005 at about 9:00 A.M. and thereby, he has supported the case of the prosecution.
(m) P.W.13-C. Sampath Kumar is the Police Inspector. He has deposed that on 7-7-2005 at 5:00 P.M., on the basis of the complaint (Ex.P.1) lodged by P.W.1, he registered the F.I.R. in Crime No.211 of 2005 (Ex.P.17), conducted inquest mahazar (Ex.P.4) and seized articles, i.e. M.Os.1 to 3. He has further deposed that he has recorded the statements of C.Ws.2 and 3, and P.W.2, who are the children of the deceased. He has sent the dead body of the deceased to Ambedkar Medical College Hospital for Post-Mortem examination and on 8-7-2005, he received the Post-Mortem examination report. On 31-7-2005, his staff arrested and produced the accused before him and at the time of interrogation, the accused made voluntary statement (Ex.P.18) before him and thereafter, they have seized the gold and silver ornaments from the goldsmith at
- 18 -
Haveri and drawn mahazar (Exs.P.14 & P.15) and thereby, he has supported the case of the prosecution.
14. Considering the oral and documentary evidence on record, the following points emerge for consideration:
i. Homicidal death of the deceased
ii. Motive and preparation
iii. Presence of the accused within the vicinity of place of occurrence at the time of the death of the deceased.
iv. Extra judicial confession made by the accused before PW.9 v. Recovery of M.O.4 to M.O.7 from the possession of P.W.10 and P.W.11 vi. Identification of MOs.4 to 7 by PW.1- Husband of the deceased vii. The recovery of weapons from the scene of the occurrence at the instance of the accused.
- 19 -
i. Homicidal death of the deceased:
15. Kum. A.S. Seema-P.W.2 deposed that on 07.07.2005 at about 3.30 p.m. when she returned to home from her college, found that her house was latched from outside and when she opened the door and went inside the house, she saw her mother lying in kitchen in a pool of blood with severe injuries on the head, forehead and other parts of the body. She also saw the blood stained pounding stick, coconut grater and a steel tumbler lying by the side of the dead body of her mother. Immediately, the same was informed to father-P.W.1 through telephonically.
16. The evidence of P.W.1 clearly depicts that on 07.07.2005 at about 3.00 or 3.30 p.m., while he was in the office, his daughter P.W.2 telephoned him that her mother has been murdered in their house by someone and immediately, he came to the house and saw his wife lying dead in a pool of blood in the kitchen having sustained severe bleeding injuries on her forehead,
- 20 -
elbow and head and also saw coconut grater and pounding stick lying stained with blood by the side of the body. Thereafter, he lodged a complaint as per Ex.P.1.
17. The evidence of P.W.13-C.Sampath Kumar, Police Inspector, who deposed that on 07.07.2005 at about 5.00 p.m., P.W.1-husband of the deceased lodged a complaint before the police station about the murder of his wife and theft of gold and silver ornaments from the body of the deceased. Accordingly, he registered the case in Crime No.211/2005 for the offence punishable under Section 302 of IPC. Further, in the presence of panch witnesses namely, P.W.4-S.S. Patil, C.W.6- Srinivas and C.W.7- Nagaraj held inquest over the dead body and during the inquest, he noted all the injuries found on the dead body in Column No.7 of the inquest report as per Ex.P.4. During inquest as per Ex.P.4, P.W.13 seized the coconut grater, pounding stick and a steel tumbler, which were lying stained with blood by the side of the dead body.
- 21 -
18. P.W.4- S.S Patil, who deposed that he and C.W.6 and C.W.7, on being called by the police, went to the residence of P.W.1 to act as panchas and in their presence, the police held an inquest over the dead body of Kasturamma, who was lying in the kitchen with severe bleeding injuries on the head and other parts of the body and drew an inquest report as per Ex.P.4. The police seized M.O.1-coconut grater and M.O.2-pounding stick. P.W.4 has not been cross-examined by the learned counsel for the accused.
19. P.W.3-Dr. B.M. Nagaraj in his evidence deposed that on 08.07.2005 at about 9.45 a.m., he received a requisition from the Police Inspector of Hebbal Police Station requesting to conduct post mortem on the dead body of deceased Kasturamma. Accordingly, he conducted post mortem between 10.00 and 11.30 a.m. on the same day and his evidence indicates that the deceased suffered injuries to her head, forehead and left forearm and opined that the
- 22 -
death was due to shock and haemorrhage, as a result of homicidal head injuries sustained by use of heavy cutting weapon using the blunt force and issued Ex.P.2- Post Mortem report. Further deposed that, on 04.08.2005, Hebbal Police sent a pounding stick and coconut grater for examination and report, and after examining those weapons, which were identified as M.O.1 and M.O.2, furnished the opinion as per Ex.P.3 to the effect that the injuries found on the dead body of Kasturamma could have been caused with M.O.1 and M.O.2. There is absolutely nothing in the cross- examination of P.W.3 to discard the evidence. Thus, the oral and documentary evidence clearly establishes that Kasturamma died on account of injuries sustained on the head and forehead and photographs of the dead body were taken during the inquest and the same have been marked as Exs.P.5 to P.10 and the negatives of photographs were marked as Ex.P.11. The genuineness of photographs has not been disputed by the defence.
- 23 -
20. We have perused the photographs from the original records, which indicate the nature of the injuries sustained by the deceased and the manner in which the deceased was lying inside the kitchen and also show that the deceased sustained the injuries as stated in Ex.P.4 and that the injuries were caused on account of use of external force by someone with some weapons. Injuries sustained by the deceased as per Ex.P.4 and the photographs clearly indicate that the deceased met with a homicidal death. Thereby, the prosecution has proved beyond a reasonable doubt that it is a homicidal death.
ii. With regard to motive and preparation
21. According to the prosecution, the accused was running shamiyana business and had come to Bangalore to buy a new shamiyana set. The accused had borrowed loan from Thungabhadra Grameena Bank, Hirehadagali Branch, Bellary District during September 2004. Due to financial loss, he could not repay the loan amount and after reaching Bangalore, accused made
- 24 -
himself sure that the deceased was alone in the house and thereafter, went to the house of the deceased and demanded a sum of Rs.25,000/-, when she expressed her inability to pay Rs.25,000/- demanded by the accused, the accused with a view to commit theft of her gold ornaments to fulfill his financial needs, caused her death by assaulting her with a pounding stick on her head and forehead and thus, the accused has intentionally and knowingly committed the murder. Taking away all the ornaments, he latched the door from the outside and went away. It was a case of murder for gain.
22. P.W.9, who came to Bangalore along with the accused deposed about the involvement of the accused in the death of the deceased. P.W.13-Police Inspector in his evidence stated that during investigation, he wrote a letter to the Manager, Thungabhadra Grameena Bank, Hirehadagali Branch requesting him to furnish loan account extract of the
- 25 -
accused as per Ex.P.19-letter and received letter from the Bank along with account extract as per Exs.P.20 and P.21 and there is no absolutely cross-examination of P.W.13 in this regard and the defence has not seriously disputed the correctness of Ex.P.19-letter issued to Thungabhadra Grameena Bank , Ex.P.20-letter from Thungabhadra Grameena Bank and Ex.P.21-account extract.
23. Having regard to the fact that there is no cross-examination of P.W.13 with regard to Exs.P.19 to P.21 and in view of the fact that Ex.P.21 is issued by the Banker, there is no difficulty in accepting the correctness of the documents. Ex.P.21-Account Extract clearly depicts that the accused borrowed a sum of Rs.30,000/- from Thungabhadra Grameena Bank on 03.09.2004 and till 24.06.2005, he repaid only Rs.3,000/- and as on the date, he was still due a sum of Rs.30,010/- and on 09.07.2005 he has remitted a sum of Rs.8,000/- to his loan account i.e., immediately after two days of the
- 26 -
incident. The oral evidence of P.W.13 and documentary evidence as per Ex.P.21 clearly depict that the accused borrowed a loan from Thungabhadra Grameena Bank and he could not repay the said amount and it is only on 09.07.2005 he has remitted a sum of Rs.8,000/- to the said loan account after the occurrence of incident.
24. P.W.9 deposed that he knows the accused and he was working under the accused as a coolie. He further deposed that he and the accused hails from the Hirehadagali Village and the accused brought him to Bangalore on 06.07.2005 to purchase Shamiyana and stayed in the house of P.W.12 and next day i.e., on 07.07.2005 morning, they came to Kempapura and after reaching Kempapura, the accused made a telephone call from a booth and asked P.W.9 to sit near Ayyappaswamy Temple and left the place saying that he would bring money from the house of his aunt. Thereafter, he returned and told him that he could not get money and therefore, they should return to their
- 27 -
place and boarded the bus. He further deposed that the accused has confessed the murder of his aunt before him and when the police came to Haveri, he narrated all these facts before the police as well as before the Magistrate as per Ex.P.16 and there are no circumstances brought up in the cross-examination of P.W.9 to discard his evidence. The evidence of P.W.9 corroborated the evidence of P.W.12.
25. It is also not in dispute that the evidence of P.W.1 and P.W.2 corroborated the evidence of P.W.5, P.W.9 and P.W.12. Thereby, the prosecution has satisfactorily proved two circumstances with regard to motive and preparation by the accused.
iii. With regard to the presence of the accused within the vicinity of place of occurrence at or about the time of the death of the deceased.
26. The evidence of P.W.1-husband of the deceased and P.W.2-daughter of the deceased clearly depict that P.W.2 came to her house at about 3.30 p.m.
- 28 -
from the College, she saw her mother lying dead in a pool of blood inside the kitchen of the house and immediately, she informed the same to her father P.W.1, who deposed on par with P.W.2 and thereafter, lodged a complaint as per Ex.P.1.
27. P.W.3-Dr. B.M. Nagaraj, who conducted the post mortem examination deposed that the deceased died between 12 and 24 hours before the postmortem examination, which was conducted between 10 a.m. and 11.30 a.m. on 08.07.2005. It is clear that the death of the deceased Kasturamma occurred some time between 10.00 a.m. and 03:30 p.m. on 07.07.2005.
28. It is in the evidence of P.W.9 that on 05.07.2005 evening he and the accused left Hirehadagali by bus and reached Haveri and from Haveri they came to Bangalore by train and reached Bangalore at 8.30 a.m. on 06.07.2005 and next day, the accused took P.W.9 to Kempapura at about 10.30 a.m. and from a coin booth at Kempapura, the accused made a
- 29 -
telephone call and thereafter, brought him back to the Majestic stating that he could not get money on that day. It is further evidence of P.W.9 that after watching a movie in Majestic, in the evening they came to the room of P.W.12-Shivakumar in Koramangala and stayed in that room during that night. He has further stated that on 07.07.2005 both of them left the room of P.W.12 at about 9.00 a.m., reached Kempapura at about 12.00 noon and the accused made a phone call from a booth and thereafter, at about 12.15 p.m. the accused asked P.W.9 to sit near Ayyappaswamy Temple and left the place saying that he would bring money from the house of his aunt. It was also deposed that the accused returned around 1.30 or 1.45 p.m. and told him that he could not get money and that they should return to their place. .Except for a suggestion that P.W.9 has deposed falsely, there is nothing in the cross-examination of P.W.9 elicit anything contrary to the evidence of P.W.9. The evidence of P.W.9 corroborates the evidence of P.W.12, who is a friend of accused and P.W.9. The
- 30 -
evidence of P.W.5 and P.W.6 corroborates the evidence of P.W.9 and thereby, the prosecution has proved the said circumstance i.e., presence of the accused within the vicinity of place of occurrence at or about the time of death of the deceased.
iv. With regard to extra judicial confession made by the accused before P.W.9
29. P.W.9 in his evidence has categorically stated that, one week later, he heard rumors about aunt of the accused having been murdered in Bangalore and suspecting the hand of the accused, he asked the accused whether he knew anything about the murder of aunt, for which the accused confessed that, when both of them had gone to Bangalore, he committed the murder of his aunt and after so confessing, the accused asked him not to disclose the same to anyone. In the cross-examination, the only suggestion put to him is that the accused has not made any such confession before him, the same was denied. P.W.9 has disclosed
- 31 -
the said fact in the statement made before the III Additional CMM, Bangalore and the fact that P.W.9 and the accused hail from the same village and that P.W.9 was assisting the accused in his business is not challenged in the cross-examination. It is also not in dispute that P.W.9 and the accused came to Bangalore together on 06.07.2005 from Haveri and stayed in the room of P.W.12 during the night and thereafter, they went to Kempapura at about 12.00 noon on 07.07.2005 has been clearly established by the evidence of P.W.9 and P.W.12. During this period, P.W.9 had no knowledge about the act committed by the accused. According to P.W.9, about one week later he heard rumors about the murder of aunt of the accused in Bangalore and thereafter, he questioned the accused in that regard and at that time, the accused made a confession before him. It is clear that the alleged confession was made by the accused some time on 14th or 15th July, 2005. But, P.W.9 has not disclosed the said fact to anyone because accused made request not
- 32 -
to disclose the said fact to anyone. Moreover, P.W.9 is a rustic villager staying in a remote place in Bellary District and the murder has taken place in Bangalore. All these circumstances indicate that the accused had confidence in P.W.9. Therefore, the evidence of P.W.9 clearly depicts that the accused made a confession before him about the murder of his aunt. Thereby, the evidence of P.W.9 clearly depicts that the accused made a confession that he had committed the murder of his aunt Kasturamma on 07.07.2005 and therefore, the evidence of P.W.9 cannot be discarded.
v. With regard to recovery of M.O.4 to M.O.7 from the possession of P.W.10 and P.W.11
30. During interrogation, the accused made a voluntary statement and the said statement made before P.W.13 was reduced into writing as per Ex.P.18 to which the accused affixed his L.T.M. The accused was apprehended on 31.07.2005 is not seriously challenged in the cross-examination and there are no reasons for
- 33 -
P.W.13 to depose falsehood before the Court. It is also not in dispute that while recording statement of the accused under Section 313 of Cr.P.C. except total denial, he has not taken any defence. Thereby, the evidence of P.W.1, P.W.2, P.W.9 and P.W.12 and at the instance of accused, recovery of M.O.4 - Mangalya Chain, M.O.5- Pair of bangles, M.O.6-pair of ear rings and M.O.7-pair of leg chains from P.W.10 and P.W.11, who purchased the gold and silver ornaments from the accused clearly depicts that the accused suppressed the said fact in the statement recorded under Section 313 of Cr.P.C. Thereby, adverse an inference has to be drawn as held by the Hon'ble Supreme Court in the case of Prahlad vs. State of Rajasthan reported in [(2019) 14 SCC 438] at paragraph No.11 held as under:
"11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused,
- 34 -
in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
31. It is also evident from the evidence of P.W.13, that he secured the presence of P.W.8-N.C. Sampath Kumar, C.W.12- Tulasiram as panchas and appraised them about the voluntary statement made by the accused. P.W.10-Gajanana Balakrishna Sait, a gold smith identified the accused and deposed that the accused sold the gold ornaments to him for a sum of Rs.23,500/- for discharging the loan due to the Bank and same was produced before the Investigating Officer. The evidence of P.W.13 clearly depicts that the accused was involved in the homicidal death of the deceased. It is also not in dispute that based on the voluntary statement of the accused, ornaments stolen from the deceased was recovered at the instance of the accused and evidence as well as material on record clearly depicts that the prosecution proved the said
- 35 -
circumstance of recovery of M.O.4 to M.O.7 at the instance of the accused.
vi. With regard to identification of M.O.4 to M.O.7 by P.W.1-husband of the deceased
32. It is in the evidence of P.W.13 that after seizure of M.O.4 to M.O.7, he secured the presence of P.W.1-complainant-husband of the deceased and showed him the seized articles and at that time P.W.1 identified those gold and silver articles M.O.4 to M.O.7 belong to his wife and the statement was recorded to that effect. There is no cross-examination of P.W.13 in this regard. P.W..1 in his evidence stated that on 01.08.2005 at about 7:30 p.m., he was called to Hebbal Police Station and at that time the accused was in police custody. The police showed M.O.4 to M.O.7 and it was identified that those articles belonged to his wife. Except a suggestion that he has deposed falsely in this regard, there is nothing in the cross-examination of P.W.1 to discard the evidence of P.W.1. P.W.1 being the husband
- 36 -
of the deceased has the right and competence to identify the ornaments worn by his wife. In the complaint, P.W.1 specifically stated that when he saw the dead body of his wife lying in a pool of blood, he noticed the Mangalya chain was missing. In the police station, he identified M.O.4 to M.O.7, which belongs to his wife and the same deserves to be accepted. Thereby, the prosecution has satisfactorily proved the circumstances relied upon by it.
vii. With regard to recovery of weapons of offence from the scene of occurrence
33. It is in the evidence of P.W.1-huband of the deceased and P.W.2-daughter of the deceased that a pounding stick and a coconut grater stained with blood were found lying by the side of the dead body. The evidence of P.W.1 and P.W.2 were not at all challenged by the defence. The said evidence is supported by P.W.3-Dr. B.M. Nagaraj, who conducted the post mortem stated that the injuries could be caused by use
- 37 -
of blunt object. Further P.W.13 after registration of the case, he visited the scene of occurrence and saw the dead body lying inside the kitchen and by the side of the dead body, he also noticed a small pounding stick and a coconut grater stained with blood and he seized those weapons during inquest. In the cross-examination of P.W.13, the seizure of the blood stained pounding stick and coconut grater as per M.O.1 and M.O.2 from the scene of the occurrence has not been challenged nor elicit to disbelieve the same. Thereby, the evidence of P.W.1, P.W.2, P.W.3 and P.W.13 and the material on record clearly depict that the prosecution has satisfactorily proved the recovery of weapons from the scene of the occurrence and that it is a clear case of murder for gain.
34. Though learned counsel for the accused sought to distinguish the provisions of Sections 299 and 300 of IPC and proper approach for determining applicable sections and awarding punishment under
- 38 -
Section 302 or Section 304 Part-I or Section 304 part-II of the IPC. In order to appreciate the said contention, it is relevant to consider the provisions of Section 299 and Section 300 of IPC:
Section 299 Section 300 A person commits culpable Subject to certain exception homicide of the act by which culpable homicide is murder if the death is cause is done - the act by which the death is caused is done -
"INTENTION"
a. with the intention of causing (1) with the intention of death; or causing death; or b. with the intention of causing (2) with the intention of such bodily injury as is likely to causing such bodily injury as cause death; or the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or
- 39 -
KNOWLEDGE c. with the knowledge that the (4) with the knowledge that act is likely to cause death. the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
35. A careful reading of clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury
- 40 -
coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300 of IPC.
36. In the present case, it is clear from the oral evidence of P.W.1, P.W.2 and P.W.3 as well as the medical evidence in Ex.P.2-Post Mortem report and recovery of M.O.1-M.O.3 that the accused assaulted the deceased with M.O.1 and M.O.2 on her forehead, when she was preparing food for him and thereby, committed murder intentionally and robbed the gold and silver ornaments worn by her, but also ornaments found in the house and sold the same to P.W.10 and P.W.11 and discharged the loan of Rs.8,000/- within two days, which clearly indicates that the assailant had intention, had knowledge of the cause of the death. This amounts to murder. It cannot be contend that the provisions of Section 299 attracts when the accused had the intent to
- 41 -
cause death and assaulted the deceased with M.O.1 and M.O.2, indicating a clear case of murder. Thereby, the contention of the learned counsel that it is a culpable homicide and does not amount to murder, cannot be accepted. The very judgment relied upon by the learned counsel for the accused in the case of State of Andhra Pradesh vs. Rayavarapu Punnayya and Another reported in [(1976) 4 SCC 382], wherein the Hon'ble Supreme Court clearly held at paragraph No.38 to 40, which reads as under:
"38. Question arose whether in such a case when no significant injury had been inflicted on a vital part of the body, and the weapons used were ordinary lathis, and the accused could not be said to have the intention of causing death, the offence would be 'murder' or merely 'culpable homicide not amounting to murder'. This Court, speaking through Hidavatullah J. (as he then was), after explaining the comparative scope of and the distinction between Sections 299 and 300, answered the question in these terms:
- 42 -
The injuries were not on a vital part of the body and no weapon was used which can be described as specially dangerous. Only lathis were used. It cannot, therefore, be said safely that there was an intention to cause the death of Bherun within the first clause of Section 300. At the same time, it is obvious that his hands and legs were smashed and numerous bruises and lacerated wounds were caused. The number of injuries shows that everyone joined in beating him. It is also clear that the assailants aimed at breaking his arms and legs. Looking at the injuries caused to Bherun in furtherance of the common intention of all it is clear that the injuries intended to be caused were sufficient to cause death in the ordinary course of nature even if it cannot be said that his death was intended. This is sufficient to bring the case within thirdly of Section 300.
39. The ratio of Anda v. State of Rajasthan applies in full force to the facts of the present case. Here, a direct causal connection between the act of the accused and the death was established. The injuries were the direct cause of the death. No secondary factor such as gangrene, tetanus etc.,
- 43 -
supervened. There was no doubt whatever that the beating was premeditated and calculated. Just as in Anda's case, here also, the aim of the assailants was to smash the arms and legs of the deceased, and they succeeded in that design, causing no less than 19 injuries, including fractures of most of the bones of the legs and the arms. While in Anda's case, the sticks used by the assailants were not specially dangerous, in the instant case they were unusually heavy, lethal weapons. All these acts of the accused were preplanned and intentional, which, considered objectively in the light of the medical evidence, were sufficient in the ordinary course of nature to cause death. The mere fact that the beating was designedly confined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death, will not exclude the application of Clause thirdly of Section 300. The expression "bodily injury" in Clause thirdly includes also its plural, so that the clause would cover a case where all the injuries intentionally, caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature,
- 44 -
even if none of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause, as already noticed, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall under clause thirdly of Section 300. All the conditions which are a prerequisite for the applicability of this clause have been established and the offence committed by the accused, in the instant case was 'murder'.
40. For all the foregoing reasons, we are of opinion that the High Court was in error in altering the conviction of the accused- respondent from one under Sections 302, 302/34, to that under Section 304, Part II, Penal Code. Accordingly we allow this appeal and restore the order of the trial Court convicting the accused (respondent 2 herein) for the offence of murder, with a sentence of imprisonment for life. Respondent 2, if he is not already in jail, shall be arrested and committed to prison to serve out the sentence inflicted on him."
- 45 -
37. The Hon'ble Supreme Court in the case of State of Rajasthan vs. Kanhaiya Lal reported in [(2019) 5 SCC 639] while considering the provisions of Sections 302 and 304 Part-I of IPC held at paragraph Nos.7 to 11 held as under:
"7. Heard the learned advocates appearing for the respective parties at length.
7.1. We have considered in detail the judgment and order passed by the learned Sessions Court as well as the impugned judgment and order passed by the High Court. The learned Sessions Court convicted the accused for the offence under Section 302 IPC. However, in an appeal preferred by the accused, the High Court has converted the conviction from Section 302 IPC to Section 304 Part I IPC. While doing so, the High Court has assigned the following reasons in para 15:
"15. In the circumstances of the case, it is proved beyond doubt that Rajmal had died because of single injury caused on his head by appellant-accused Kanhaiya Lal by an axe. It is also an admitted fact that there was no repeated injury and furthermore, it
- 46 -
is also on record that in the morning of the day of the incident, there was an altercation between the accused and the deceased and so it can be said that in the circumstances of the case, that there was no intention to cause death on the part of the appellant- accused but the act by which the death was caused appears to have been done with the intention of causing such bodily injury as was likely to cause death and so his conviction deserves to be altered from Section 302 of the Penal Code to Section 304 Part I of the Penal Code."
7.2. Now so far as the main reason given by the High Court while converting the conviction from Section 302 IPC to Section 304 Part I IPC i.e. it was a case of a single blow is concerned, it is required to be noted that the deceased had died because of single injury caused on his head by the accused by an axe. The aforesaid can hardly be a ground to convert the conviction from Section 302 IPC to Section 304 Part I IPC.
7.3. In Arun Raj this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302
- 47 -
would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.
7.4. In Ashokkumar Magabhai Vankar, the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part
- 48 -
of the body, with such a weapon, would cause death.
7.5. A similar view is taken by this Court in the recent decision in Leela Ram and after considering a catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether a case falls under Section 302 or Section 304 Part I or Section 304 Part II, this Court reversed the judgment of the High Court (in that case also the judgment impugned was from the Rajasthan High Court) and convicted the accused for the offence under Section 302 IPC. In the same decision, this Court also considered Exception 4 of Section 300 IPC and observed in para 21 as under: (SCC para 21) "21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are: (i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and
(iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner."
- 49 -
8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the reasoning given by the High Court while converting the conviction from Section 302 to Section 304 Part I, the reasons stated in para 15 of the impugned judgment and order, we are firmly of the view that the judgment of the High Court is manifestly perverse and is totally contrary to the evidence on record. As per the deposition of PW1 Dr K. Asif, the deceased sustained following injuries:
"1. Incised wound 7 cm × 0.5 cm skin-deep and bone visible on the middle part of the head.
2. Abrasion 1 cm × 0.5 cm on the middle portion of right leg."
As per PW15 Dr Anees Ahmed, a fracture of 4 cm length was found in the parietal and occipital bones. He also stated that the said head injury was sufficient to cause death in the ordinary course of nature. Thus, the accused used a deadly weapon--axe on the vital part of the body--head, which proved to be fatal.
- 50 -
9. Another reason given by the High Court is that there was no repeated injury. The aforesaid can hardly be a ground to convert the conviction from Section 302 to Section 304 Part I IPC. A single blow on the vital part of the body like head and that too by deadly weapon axe and used with force which proved to be fatal, was sufficient to hold that it was a case of murder within the definition of Section 300 IPC.
10. Another reason given by the High Court is that in the morning on the day of the incident, there was an altercation between the accused and the deceased and so it can be said that in the circumstances of the case there was no intention to cause death on the part of the accused but the fact by which the death was caused appears to hold down that the intention of causing such bodily injury as was likely to cause death. The aforesaid is contrary to the evidence on record. It is required to be noted that it is not a case on behalf of the accused that there was an altercation between the accused and the deceased at the time of commission of the offence. The altercation, if any, had taken place, in the morning and much earlier than the time of the incident. Merely
- 51 -
because the altercation might have taken place much earlier and not immediately prior to and/or at the time of commission of the offence, it cannot be inferred that there was no intention on the part of the accused to cause death of the deceased. Therefore, on the aforesaid ground, the High Court has committed a grave error in converting/altering the conviction from Section 302 IPC to Section 304 Part I IPC. Thus, we are of the view that the judgment of the High Court is manifestly perverse and is totally contrary to the evidence on record. The High Court has committed a grave error in altering the conviction from Section 302 IPC to Section 304 Part I IPC and therefore the interference of this Court is warranted to obviate a complete failure of interest of justice.
11. In view of the above and for the reasons stated above, we allow this appeal, set aside the impugned judgment of the High Court and restore the judgment of the trial court convicting the accused under Section 302 IPC. The respondent-accused is sentenced to suffer imprisonment for life as per the judgment of the learned trial court. If the accused is already released after undergoing
- 52 -
the sentence as per the impugned judgment and order passed by the High Court, the respondent-accused shall surrender forthwith to serve his sentence."
38. The latest judgment of the Hon'ble Supreme Court in the case of Vinod Kumar vs. Amritpal reported in AIR 2022 SC 244 while considering the provisions of Sections 302, 304 Part - II, 300 clause Thirdly, 364, 201, 329, 149, 147 at paragraph Nos.16, 17 and 18 held as under:
"16. The Offence of culpable homicide is defined under Section 299 of IPC. Culpable homicide is the genus and the offence of murder as defined under Section 300 of IPC is its species.
Sections 299 and 300 of 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."
- 53 -
300. Murder. - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of
- 54 -
self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:--
First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.--Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person
- 55 -
or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.
- 56 -
Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
(underline supplied) Now, the question is whether in the present case, the offence of culpable homicide not amounting to murder is made out. Obviously in this case, none of the exceptions to Section 300 are applicable. The issue which is required to be examined is whether the case will be covered by "thirdly" in Section 300. On this aspect, we will make a reference to a decision of this Court in the case of Virsa Singh v. The State of Punjab which has stood the test of time.
Paragraphs 12 and 13 of the said decision which are locus classicus read thus:-
"12. To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300, "Thirdly";
First, it must establish, quite objectively, that a bodily injury is present;
- 57 -
Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300, "Thirdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary
- 58 -
course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."
(underline supplied)
17. The first two elements laid down in paragraph 12 have been established in this case as the factum of bodily injuries and its nature have been duly established. The question is whether the third element of intention to inflict the particular bodily injuries was present. As narrated by PW2, he along with deceased Balveer Singh were forcibly
- 59 -
taken in a vehicle. When the vehicle reached unmetalled road, it was stopped. Thereafter, the accused banged deceased Balveer Singh flat on the ground. While the accused no.1 was holding Balveer Singh, the accused nos.4 and 5 started assaulting deceased Balveer Singh. There was no scope for Balveer Singh to resist. Thus, he was taken out of the vehicle and was forced to lie down on the ground. Thereafter, the accused started assaulting him. Apart from the injuries on non-vital parts, there was a fracture of 6th to 10th ribs on the right side and the right lung was ruptured. Even the wind pipe and food pipe were ruptured. There was an injury to liver. The cause of death as certified by the Board was excessive bleeding due to injuries on vital parts like right lung as well as liver and the resultant shock. Going by the version of PW2, one of the accused held deceased Balveer Singh who was lying flat on the ground and at least three accused persons assaulted him. Therefore, it is impossible to say that the injuries on the chest which resulted into fracture of 5 ribs and rupture of right lung were accidental or un-intentional. Therefore, even the third element was established. From the evidence of PW3 Dr.
- 60 -
Jaspal Badappa, it can be gathered that the injuries on the vital parts like right lung and liver which resulted into bleeding and shock were sufficient to cause the death in the ordinary cause of nature.
18. Once the prosecution establishes the existence of the three ingredients forming a part of "thirdly" in Section 300, it is irrelevant whether there was an intention on the part of the accused to cause death. As held by this Court in the case of Virsa Singh (supra), it does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature. Even the knowledge that an act of that kind is likely to cause death is not necessary to attract "thirdly". Hence, it follows that clause "thirdly" of Section 300 will apply in this case.
39. On meticulous reading of the oral and documentary evidence on record, the learned Sessions Judge is justified in holding that the prosecution has proved beyond the reasonable doubt at about 07.07.2005, the accused has intentionally knowingly committed murder of his maternal aunt Smt.
- 61 -
Kasturamma when she was preparing food for him and committed theft of gold and silver ornaments. Thereby, he has committed the offence punishable under the provisions of Sections 302 of IPC and same is in accordance with law.
40. For the aforesaid reasons, the point raised in the present appeal is answered in the negative holding that the accused has not made out any ground to interfere with the impugned judgment of conviction, convicting the accused and sentencing him to undergo rigorous imprisonment for life with fine of Rs.2,000/- for the offence punishable under Section 302 of IPC.
41. In view of the above, we pass the following:
ORDER i. The criminal appeal filed by the accused is hereby dismissed devoid of any merit.
ii. The impugned judgment of conviction and order of sentence dated 07.08.2006 made in S.C. No.851/2005 on the file of the Principal City
- 62 -
Civil and Sessions Judge, Bangalore convicting the accused for the offence punishable under the provisions of Section 302 of the IPC is hereby confirmed.
Since the main matter itself dismissed on merits, I.A.No.1/2022 for suspension of sentence and bail would not arise.
Sd/-
JUDGE Sd/-
JUDGE MBM