Karnataka High Court
Anandkumar vs The State Of Karnataka on 16 September, 2017
Author: Rathnakala
Bench: Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER 2017
PRESENT
THE HON'BLE MRS.JUSTICE RATHNAKALA
AND
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.792/2012
BETWEEN:
ANANDKUMAR
SON OF VEERATTEGOWDA
NOW AGED ABOUT 27 YEARS
R/O HURULUGERE VILLAGE
KASABA HOBLI, MALUR TALUK
KOLARA DISTRICT - 563 130. ...APPELLANT
(BY SRI VISHWANATHA POOJARY K., ADV.)
AND:
THE STATE OF KARNATAKA
BY MALUR POLICE STATION
REPRESENTED BY SPP, HIGH COURT
HIGH COURT BUILDING
BANGALORE - 560 001. ...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE CONVICTION AND
SENTENCE DATED 4.10.2008 PASSED IN S.C.NO.211/2007 BY
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S
302 OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO LIFE IMPRISONMENT AND PAY FINE OF RS.5,000/- IN
DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO R.I. FOR
ANOTHER ONE YEAR, FOR THE OFFENCE P/U/S 302 OF IPC.
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THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant is challenging the judgment of conviction and sentence recorded by the Sessions Court in S.C.No.211/2017 dated 4.10.2008 whereby he is found guilty for the offence under section 302 of IPC and sentenced for life imprisonment and imposed fine of Rs.5000/- with default clause.
2. The parties shall be referred to as per their original status before the Trial Court.
3. As the facts unfurl, the respondent-police charge sheeted the appellant for the offence under Section 302 of IPC. The case of the prosecution was, in pursuance of a previous money dispute, the deceased used to pester the accused for money and harass him. On 14.7.2007 the deceased snatched Rs.2500/- from the accused, purchased Whisky and Masala Dasa from a hotel; both of them went to a Mango orchard, enjoyed Masala Dosa and Whisky. -3- Abruptly the accused shouted at the deceased that he is enjoying the money snatched from him and assaulted him with chopper. Thereafter he amputed the skull portion from the thorax, later became panic, carried the skull in a plastic cover to the police station and surrendered before the SHO of the police station along with the weapon.
4. On procuring the accused, the Sessions Court framed the charge, when read over to him, he pleaded not guilty. The prosecution entered into trial and examined 12 witnesses as per Exs.P1 to P12 and marked documents Exs.P1 to P19; 313 Cr.P.C. statement of the victim was recorded. He denied the incriminating circumstances appearing against him in the evidence of the prosecution witnesses. He did not adduce rebuttal evidence.
5. After giving its audience to both, the learned Sessions Court convicted the accused for the offence under Section 302 of IPC.
6. Learned counsel Sri. Vishwanatha Poojary for the appellant submits that there was inbuilt contradiction in the -4- case of the prosecution. The evidence was not in corroboration to the charges. In that view of the matter, the judgment of conviction recorded by the Sessions Court is perverse and same may be set aside granting benefit of doubt to the accused.
7. Learned Additional S.P.P. Sri. Vijaykumar Majage, for the respondent-State seeks to sustain the judgment of the Sessions Court.
8. Perused the judgment under challenge and also the Lower Court records. The prosecution commenced its evidence by examining the doctor who conducted the post mortem on 15.7.2007. She testified to the effect that she has conducted the postmortem both on the skull and the thorax and noticed 14 injuries on the dead body which tallied with the internal injuries. On dissection, the cut portion of the thorax and the skull coincide with each other. The death was due to asphyxia as a result of separation of the skull from the thorax. She had answered to the query sent for her response by the Investigating Officer wherein -5- she had stated that the skull and the thorax belonged to the same person. The wounds at the cut portion of the skull matched with cut portion of the thorax. The injuries were possible due to attack by a sharp heavy weapon like chopper.
9. PW-2/complainant is the direct eye witness to the incident. He testified that he saw the deceased and the accused standing against each other and the accused present in the court hall assaulting the deceased with a chopper, whereby deceased collapsed and thereafter also the accused assaulted him 4 to 5 times, saw the witness and disappeared with the skull and the chopper. The complaint was drafted by some one on his dictation.
10. PW-4 has testified about his presence near the respondent police station whereon the accused came with a chopper and a pack and placed the same on a table in the police station. He disclosed that, it is the skull of Nallappanahalli Ananda, whom he murdered in the mango orchard. The chopper and his clothes were also blood -6- stained. The articles M.Os.3 to 6 were seized under mahazar. Thereafter he took the police and panchas to the place of occurrence where the dead body was lying without the skull portion. He disclosed that it is the dead body of Ananda. There were injuries on the body. Mahazar was drawn at that spot as per Ex.P8. An Autorickshaw standing near the place of occurrence identified by the accused as that of the deceased was seized under Mahazar Ex.P9. He is a witness to the spot mahazar and seizure mahazars.
11. PW-5 was the father of the deceased. He testified about acquaintance between the deceased and the accused and the money dispute between them. He also testified about seeing the dead body without the skull at the spot.
12. PW-11 is the then PSI who received the complaint from PW-2 and registered the case.
13. PW-12 is the Police Inspector who took over the investigation and on completion of the investigation submitted the charge sheet.
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14. As per the post mortem report Ex.P1 death was due to cardio respiratory failure secondary to decapitation of the head.
15. The prior acquaintance between the deceased and the accused and money dispute between them is established by the evidence of the father of the deceased. The evidence of the direct eye witness PW 2 is firm and clear as to the overt act by the accused in beheading the deceased. The evidence of PW 4 further establishes that the accused voluntarily surrendered before the police along with the chopper and the skull. The evidence of these witnesses is consistent and unshaken during their cross examination. They are chance witnesses, thus disinterested witnesses.
16. In fact there was no definite defense during the cross examination of the prosecution witnesses, nothing beneficial for the defence could be elicited during the evidence of the eyewitness and the panch witnesses. Though PW-2 has not testified as to what conversation went on between the deceased and the accused prior to the -8- incident, it is sufficient that it was the voluntary act on the part of the accused in assaulting the deceased with chopper knowing fully well the consequence of such assault. The ingredients of section 299 of IPC being made out and not falling under any one of the four exceptions of Section 300 of I.P.C. offence under Section 302 of IPC is certainly attracted.
17. When we say that case under Section 299 of I.P.C. is made out, we call in aid the judgment of the Apex Court in the case of Chenda alias Chanda Ram Vs. State of Chhattisgarh reported in (2013) 12 SCC 110 which took for consideration the distinction between offences under Sections 300 and 304 of I.P.C. Para No.15 reads thus:
"15. The landmark judgment in Virsa Singh vs. State of Punjab reported in AIR 1958 SC 465 draws a distinction between "Thirdly" of Section 300 and Exception 4 thereunder. The following are the four steps of inquiry involved:
i. first, whether bodily injury is present;-9-
ii. second, what is the nature of the
injury;
iii. third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and iv. fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.
16.................................."
Rightly the Sessions Court has convicted the appellant for the offence under Section 302 of I.P.C and has sentenced him to undergo life imprisonment and pay fine of Rs.5,000/- with default clause.
Hence, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Dvr: