Karnataka High Court
Krishnamurthy vs State Of Karnataka on 9 February, 2024
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CRL.A No. 1455 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1455 OF 2017
BETWEEN:
KRISHNAMURTHY
S/O MUNISHAMI @ DODDAMUNISWAMY
AGED ABOUT 28 YEARS
R/O DODNAHALLI VILLAGE
HUTHURU HOBLI
KOLAR TALUK.
...APPELLANT
(BY SRI V. BHARATH KUMAR, ADVOCATE)
AND:
STATE OF KARNATAKA
BY KOLAR RURAL POLICE
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
Digitally signed by BENGALURU.
LAKSHMINARAYANA
MURTHY RAJASHRI ...RESPONDENT
Location: HIGH
COURT OF (BY SRI VIJAYAKUMAR MAJAGE, S.P.P.-II)
KARNATAKA
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 04.08.2017 PASSED
BY THE I ADDITIONAL SESSIONS JUDGE, KOLAR IN S.C.NO.37/2014,
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 302 AND 316 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 13-12-2023, COMING ON FOR PRONOUNCEMENT, THIS DAY,
VENKATESH NAIK T. J., PRONOUNCED THE FOLLOWING:
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CRL.A No. 1455 of 2017
JUDGMENT
The accused has preferred this appeal challenging the judgment dated 04.08.2017 and sentence dated 05.08.2017 passed by I Additional Sessions Judge, Kolar in S.C.No.37/2014. The accused faced trial for the offences punishable under Sections 302 and 316 of IPC. The trial Court convicted the accused for the said offences. Hence, this appeal.
2. The case of the prosecution in brief is as under:-
The name of the deceased is Chaitra, wife of the accused. The case of the prosecution is that the accused had illicit relationship with deceased, thus she became pregnant. The accused had already a wife and he was unwilling to marry Chaitra, but, at the instance of Panchayathdars, the accused married Chaitra, which was a second marriage. On 27.10.2013, at around 11.00 p.m., the accused took Chaitra in an autorickshaw bearing registration No.KA-07/8856 and at around 12.30 midnight, PW-1 came to know about the death of Chaitra. The -3- NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 accused deliberately made an attempt to show that Chaitra died in an accident, but the fact remained that the accused intentionally committed the murder of Chaitra and he was responsible for her death. This led to registration of FIR and investigation relating to offences punishable under Sections 302 and 316 of IPC.
3. The prosecution in all examined 16 witnesses as PW-1 to PW-16 and relied on nineteen documents as per Exs.P1 to P19. Assessing the entire evidence, the trial Court arrived at a conclusion that the prosecution case is based on circumstantial evidence; the prosecution has completed the chain of circumstances such as last seen theory, recovery of blood stained clothes of the accused, motive behind the commission of murder and said fact was within the knowledge of the accused as contemplated under Section 106 of Indian Evidence Act, the prosecution was able to prove the place of occurrence, seizure of autorickshaw and the death of Chaitra as homicidal, which is corroborated by the medical evidence of PW-15 -4- NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 Dr. J. Kiran, who opined that the death of Chaitra was due to strangulation. The trial Court also opined that the incident had occurred during odd hours and there was possibility of no other person other than the accused to remain in contact with deceased Chaitra. But, the accused failed to explain the incriminating circumstances and the fact that was within his knowledge, under Section 313 of Cr.P.C and he did not offer any explanation as to how deceased Chaitra had sustained contusion marks on her left and right cheek as per the post mortem report. Accordingly, the trial Court drew reasonable inference against the accused and the accused failed to offer any satisfactory explanation. Further, the accused intentionally committed the murder of deceased Chaitra, who was six months pregnant and he also intentionally caused the death of an unborn child, and thereby he is guilty of offences punishable under Sections 302 and 316 of IPC.
4. Assailing the findings of the trial Court, Sri V. Bharath Kumar, learned counsel for the accused -5- NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 argues that the trial Court committed an error in drawing a conclusion that the prosecution has been able to prove the chain of circumstances. Elaborating his argument, he submitted that the evidence of PWs-4 to 7 and PWs-9 to 11, who are independent witnesses have not supported the prosecution case. As per the evidence of PWs-1 to 3, who are the father, mother and uncle of deceased Chaitra respectively, would not establish the relationship between the accused and the deceased and their evidence discloses an element of suspicion about the relationship between them. It is elicited from PWs-1 to 3 that during the lifetime of first wife of accused, accused solemnised his second marriage with Chaitra. None of the prosecution witnesses has stated about the incident nor they have witnessed the incident and hence, the chain of circumstances is also not completed. It is contended that the accused himself was injured and hospitalized and soon after the accident, the accused did not escape from the spot, he himself took Chaitra to the hospital in an ambulance.
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5. It is contended that the motive behind the commission of murder of Chaitra was not established. At the time of incident, Chaitra was living in the house of PW-3 and hence, nobody had seen Chaitra in the company of accused prior to her death. Further the spot, seizure and inquest mahazar witnesses turned hostile to the case of the prosecution and hence, the manner of seizure is also not proved in accordance with law.
6. In support of his contentions, learned counsel for the appellant relied on the following decisions:-
1) NAGENDRA SAH vs. THE STATE OF BIHAR reported in (2021) 10 SCC 725;
2) ASHOK vs. STATE OF MAHARASHTRA reported in (2015) 4 SCC 393; and
3) SHIVAJI CHINTAPPA PATIL vs. STATE OF MAHARASHTRA reported in (2021) 5 SCC 626.
7. Sri Vijayakumar Majage, learned SPP-II appearing for respondent State argues that the Medical Officer has -7- NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 clearly stated that the death of Chaitra was due to compression of neck and as per the IMV Report, except head lamp and wind shield, other parts of the autorickshaw were not damaged, hence, the contention of accused would get falsified. It is contended that the accused and deceased were living together and on the day of incident, the accused took Chaitra in his autorickshaw and on the way to hospital, he committed her murder by pressing her neck with his hands and turtled his autorickshaw and gave it a colour of accident. The IMV Inspector PW-12 has stated that the accident was not due to any mechanical defect. The Medical Officer has clearly stated about the injuries on the person of deceased Chaitra. The evidence of Investigating Officer stands corroborated from the testimony of the prosecution witnesses. The recovery is also proved. The post mortem report indicates that the death of Chaitra is due to compression of neck. These are the facts that the trial Court has considered to hold that the circumstances have stood proved. In this view, there are no reasons to -8- NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 interfere with the well reasoned judgment of the trial court.
8. We have considered the arguments and perused the entire evidence both oral and documentary. If we take entire glimpse of the evidence, it is evident that on 28.10.2013, PW-14 Sub Inspector of Police, Kolar Rural Police Station, received the complaint and registered the case. Immediately, he went to the spot and saw the injuries on the dead body of Chaitra.
9. The learned counsel for the accused contended that the death of Chaitra was accidental and not homicidal one. In view of the submissions made by learned counsel for the accused, let us examine whether the death of Chaitra was homicidal or accidental.
10. PW-1 D. P. Ramesh and PW-2 Manjula being the parents of deceased Chaitra have stated that on the date of the incident, their daughter Chaitra was found dead near the mango grove and the accused had given false information that Chaitra died in an accident, later they -9- NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 came to know that the accused committed the murder of Chaitra by strangulation.
11. In order to corroborate their oral testimonies, the prosecution examined PW-15 Dr. J. Kiran to ascertain as to whether the death of Chaitra was homidical or accidental. PW-15 Dr. J. Kiran has stated that on 28.10.2013, he conducted post mortem examination over the dead body of Chaitra. On dissection of neck by bloodless method, it was found that there were blood extravasations over strap muscle, thyroid with fracture of underlying thyroid cartilage. He noticed external injuries such as contusions over the right cheek measuring 5 x 4 cms and the left cheek measuring 5 x 3 cms, abrasion over front of right knee measuring 2 x 1 cms and abrasion over front of left leg in its middle third measuring 3 x 3 cms. During the post-mortem of the dead body, on opening the uterus internally, it showed a male foetus measuring 45 cm in length and weighed 2250 gms. As per the opinion of the Doctor, the death of Chaitra was due to
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 compression of the neck. He further opined that the uterus measuring 27cm x 18cm x 6cms and foetus was 45 cms in length was approximately eight - nine months of gestational age. The foetus did not show any signs of life. Accordingly, the Doctor issued post mortem report vide Ex-P9 and his report as to the foetus vide letter Ex-P12. The Doctor has stated that if a person is strangulated by hands, the injuries mentioned in Ex-P9 are possible. The Doctor has specifically denied the suggestions that compression of neck is possible if an auto falls on a person.
12. It is not the case of the prosecution that the autorickshaw fell on deceased Chaitra. The defence version shows that accused and deceased were travelling in an autorickshaw and it turtled and deceased Chaitra sustained injuries and succumbed to the injuries. But as per the IMV report, the incident was not due to any mechanical defect of the autorickshaw and hence the injury sustained by deceased Chaitra does not correlate with the IMV report.
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13. PW-8 Dasappa the witness to inquest mahazar Ex-P6 stated that police conducted inquest panchanama on the dead body of Chaitra. The accused has taken contention that the cause of death of Chaitra was due to accident and hence, she succumbed to the injuries and accused also sustained injuries, thus, he was admitted to hospital for treatment.
14. In order to substantiate said contention, the accused has not placed any material and the investigating officer has not placed any such material to establish that Chaitra died on account of accidental injuries. In the absence of such material, the prosecution was able to prove from the oral evidence of PWs-1, 2, 8 and the evidence of the Doctor coupled with post mortem report Ex-P9 and the letter of Doctor(Ex-P12) that the death of Chaitra was homicidal, consequently, the foetus did not have life.
15. Further, the prosecution relied upon the evidence of PW-12 G.M. Suresh who is the Motor Vehicles Inspector,
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 who inspected the autorickshaw bearing registration No.KA 07/8856 and noticed the following:-
1. Front wind screen glass broken;
2. Left side head lamp broken;
3. Front wheel mud guard broken;
4. Front right side indicator broken; and
5. Driver compartment platform bent upwards.
Hence, PW-12 tested the autorickshaw on the road and found the brake system in working order. Accordingly, he issued his IMV report as per Ex-P8. As per the report, the incident was not due to any mechanical defect of the autorickshaw.
16. Now the prosecution must prove that the accused committed murder of Chaitra and none else. In order to establish this aspect, the prosecution is relying upon circumstantial evidence.
17. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified, only when
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The question of motive of the accused assumes importance in the case based on circumstantial evidence. The prosecution relied upon the following circumstances:-
a. Motive, b. Last seen theory; and c. Fact within the knowledge of the accused.
18. So far as motive is concerned, the prosecution in order to prove the motive has taken up the contention that the accused had illicit relationship with Chaitra, thus she became pregnant and at the intervention of villagers and panchayathdars, the accused married Chaitra. As accused was not willing to marry Chaitra, he developed ill will against Chaitra.
19. In order to prove the aspect of motive, PW-1 D.P. Ramesh, father and PW-2 Manjula, mother of deceased Chaitra have stated that the marriage of Chaitra
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 with the accused took place about two years ago as Chaitra had become pregnant prior to marriage and the accused was responsible for said pregnancy. Therefore, they convened a panchayath and at the intervention of the panchayathdars, the marriage of Chaitra was performed with the accused. They were aware of first marriage of the accused. Soon after the marriage, Chaitra and accused were residing in their house for 20 days and due to lack of space, they started residing in the house of his brother-PW-3, where, the couple lived for four days and during that time, as deceased Chaitra developed stomach ache, without informing anyone, the accused took Chaitra in an autorickshaw to the hospital. During midnight, at 12.30 a.m., one security guard of R.L. Jalappa Hospital informed them that the autorickshaw was damaged and the accused had been admitted in the hospital for injuries sustained in the accident. Thereafter, PWs-1 and 2 came to know that Chaitra fell into a ditch at the time of accident and as they went in search of Chaitra, they found her dead body near the mango grove. They came to know that
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 the accused had committed the murder of Chaitra by strangulating her and falsely informed that it was an accident. Therefore, PW-1 lodged the complaint as per Ex.P1, the police visited the spot and drew mahazar as per Ex.P2.
20. PW-3 Nagaraju, the elder brother of PW-1 has stated that Chaitra and accused were residing together in his house. On the day of incident, at 10.30 p.m., the accused took Chaitra in his autorickshaw to R.L. Jalappa hospital on the pretext that Chaitra was suffering from stomach ache and his evidence is of more relevance as he had seen the accused with Chaitra in an autorickshaw going towards the hospital. He has stated that accused developed illicit relationship with Chaitra due to which Chaitra became pregnant and after panchayath was held, the accused agreed to marry Chaitra. Hence, they performed the marriage of Chaitra with the accused. After the marriage, the accused and Chaitra were residing in the house of PW-1 and due to lack of space in the house of
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 PW-1, the accused and Chaitra were residing in his house. At around 12.00 midnight, PW-8 Dasappa informed that Chaitra died near the ditch by the side of the road. Hence, PW-3 visited the spot and saw the dead body. The evidence of PWs-1 to 3 reveals that on the date of the incident, the accused took Chaitra in his autorickshaw on the pretext to visit hospital and had given the colour of offence as accident. The evidence of PWs-1 to 3 clearly reveals that the accused was unwilling to marry Chaitra and in order to eliminate Chaitra, he took her in the autorickshaw. Thus, the prosecution has proved the motive of the accused in committing the crime.
21. The second ground on which the prosecution has placed reliance is the 'last seen theory'. It is to be noted that there are no eye witnesses to the incident to state that deceased Chaitra was last seen in the company of the accused prior to her death. The 'last seen theory' comes into play where the time gap between the point of time when the accused and the deceased were last seen alive
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 and when the deceased is found dead is so small that possibility of any person other than the accused person being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is long gap and possibility of other person coming in between exists.
22. So far as last seen theory is concerned, PW-3 Nagaraju, the uncle of deceased Chaitra has stated that accused and Chaitra were residing in his house and on the day of incident, accused took Chaitra to R.L Jalappa hospital in his autorickshaw on the pretext that Chaitra was suffering from stomach ache and later, he came to know about death of Chaitra, the accused has given the colour of offence that Chaitra died on account of accidental injuries on the spot. Further, PWs-1 and 2, the parents of Chaitra have stated that on the day of incident, deceased Chaitra and accused were residing in the house of PW-3 and they came to know about death of Chaitra at 12.30 a.m.
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 PWs-1 to 3 have stated that soon after the incident, the accused escaped from the spot. The investigating officer- PW-13 has stated that he seized the vehicle autorickshaw used for commission of the offence from the scene of offence and he apprehended the accused from the hospital after his discharge. The recovery of the autorickshaw as per Ex.P2 from the scene of offence strengthens the fact that deceased Chaitra was last seen in the company of the accused and there was possibility of no other hypothesis other than the accused being present at the place of incident.
23. It is an undisputed fact that the accused and deceased Chaitra were residing together at the time of the incident. On the date of the incident, dead body of Chaitra and autorickshaw were found at the spot. As per Ex-P19 spot rough sketch, incident had occurred between Channarayapura and Ajjapanahalli which would imply that the accused deliberately with an intention to commit the crime took the deceased in his autorickshaw bearing
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 registration No.KA-07/8856. From the perusal of order sheet of the trial court records, it reveals that the accused himself has filed application for release of autorickshaw KA-07/8856 and said autorickshaw was released to the custody of the accused. Thus, it would imply that accused is the RC owner of autorickshaw involved in the incident. Therefore, the prosecution is able to establish that the accused took Chaitra in an autorickshaw and her dead body was found at the spot and the accused was missing from the spot. Thus, the prosecution is able to prove the last seen theory, place of occurrence and seizure of autorickshaw from the spot, which are additional links in completing the chain of circumstances. In this case, there is positive evidence to conclude that the accused and the deceased were last seen together.
24. So far as, invoking section 106 of the Indian Evidence Act, the prosecution must first establish that there was any fact within the special knowledge of the accused. In this case, the accused and Chaitra were
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 travelling in an autorickshaw and the death occurred during odd hours. This fact was within the knowledge of the accused, but, the accused failed to explain the circumstances as to how the deceased sustained injuries, such as strangulation marks. PW-15 Doctor opined that if a person is strangulated with hands, the injuries mentioned in the post mortem report- Ex-P9 are possible. It has already been held that the death of Chaitra is homicidal. The evidence on record also discloses that the incident had occurred during odd hours and there is possibility of no person other than the accused to have remained in contact with deceased Chaitra.
25. Except bare denial in his statement under section 313 Cr.P.C., the accused has not offered any explanation as to how deceased Chaitra sustained contusion marks on her left and right cheek as per Ex.P9 post mortem report. Obviously, this circumstance goes against him. Section 114 of the Indian Evidence Act empowers the Court to presume the existence of any fact which it thinks is likely
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 to have happened. From the perusal of evidence on record, the only reasonable inference that could be drawn is that the accused alone committed the murder of Chaitra.
26. Learned counsel for the accused contended that in the accident, the accused also sustained injuries and he was admitted to the hospital, but none of the prosecution witnesses has explained the injuries sustained by the accused.
27. It is trite law that non-explanation of injuries by the accused would be fatal to the case of prosecution especially in case of assault, group clash or altercation, it forms a very important circumstance. Whereas in this case, there was no such altercation between the deceased and accused and the accused has not placed any material to substantiate that he too sustained injuries in the accident. No medical record or MLC Extracts are produced before the trial Court either by the Investigating Officer or the accused. Therefore, there is no merit in the contention
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 that non explanation of injury sustained would be fatal to the genesis of the case of the prosecution.
28. It is the contention of learned counsel for the accused that if this Court comes to the conclusion that the accused is involved in the crime, it is to be taken that the accused committed the murder in a grave and sudden provocation and the act of the accused would attract the offence under Section 304 Part I of IPC. It is contended that the accused is in custody since 2014, hence, learned counsel prayed to scale down the offence under Section 302 IPC to one under section 304 Part II IPC.
29. In the case of Anbazhagan v. State represented by the Inspector of Police reported in 2023 SCC Online SC 857, the Hon'ble Apex Court defined the context of true test to be adopted to find out the intention or knowledge of the accused in doing the act and the Hon'ble Apex Court held at para 66 as under:
''66.(1) When the court is confronted with the question what offence the accused could be said to have been committed, the true test is to find out the intention or knowledge of the
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 accused in doing the act. If the intention or knowledge was such that as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused.
To illustrate: 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 (3) To put in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC, it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'.
(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between two parts of section 304 IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the deceased, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 of the deceased. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the deceased, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."
30. From the perusal of the decision cited supra and the evidence of the prosecution, it establishes that the accused had motive to commit the murder of Chaitra, accordingly, he took Chaitra in his autorickshaw in order to eliminate her, that too, he took her during odd hours, caused injuries 1 to 3 as shown in post mortem report and such injuries were sufficient in the ordinary course of nature to cause death of Chaitra. The medical evidence corroborates the ocular evidence of PWs-1 to 3. Therefore, the offence falls under section 302 IPC holding that the
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 accused had intention to eliminate Chaitra and he was aware that the probability of death was more. Hence, there is no merit in the contention of learned counsel for the appellant that the case falls under section 304-I IPC.
31. Now if the entire evidence is assessed, what we find is that the relationship of the accused and the deceased is not in dispute. The fact that at the time of incident, Chaitra was six months pregnant it is also not in dispute. At the time of incident, the deceased and accused were residing in the house of PW-3 is also not disputed by the accused. As per the evidence of PWs-1 to 3, the accused had illicit relationship with Chaitra, due to which, she became pregnant; panchayath was held and the accused had to marry Chaitra. They were residing in the house of PW-1 and due to lack of space, they were residing in the house of PW-3 and on the day of incident, the accused had taken Chaitra along with him in an autorickshaw. As per the opinion of the Doctor and the
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 post mortem report, cause of death of Chaitra was due to strangulation.
32. Further, the prosecution proved that at the time of the incident, the accused was in the company of deceased Chaitra and later she was found dead. The prosecution further proved that the autorickshaw in question was seized from the spot and accused is the owner of the said autorickshaw, which leads to draw inference about his involvement in the incident. Hence, the prosecution was able to prove the fact that the motive for committing the crime by the accused was that Panchayathdars insisted him to marry Chaitra, though he was not willing to marry her.
33. Looking into the facts and circumstances of the present case, the accused has not placed any material so as to attract Section 304 Part I or 304 Part II IPC. On the contrary, the prosecution has successfully proved that the offence would attract Section 302 of IPC. Hence, the trial
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 Court has rightly convicted the accused for the offence under Section 302 IPC.
34. Sofar as offence under section 316 IPC is concerned, as per the prosecution case, deceased Chaitra was pregnant of six months at the time of her death. Accused knowing that he is likely to cause the death of a pregnant woman does an act which, if it caused the death of Chaitra, would amount to culpable homicide, the accused committed murder of Chaitra and consequently caused the death of an unborn child and hence, he is held guilty of the offence under section 316 IPC. Hence, no interference is called for.
Now, we pass the following:-
ORDER
1. The appeal is dismissed.
2. The judgment of conviction dated 04.08.2017 and sentence dated 05.08.2017 passed by
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NC: 2024:KHC:5630-DB CRL.A No. 1455 of 2017 I Additional Sessions Judge, Kolar in S.C.No.37/2014 is confirmed.
3. Registry is directed to send back the trial court records with a copy of this judgment.
Sd/-
JUDGE Sd/-
JUDGE MN List No.: 1 Sl No.: 3