Karnataka High Court
Umesha vs The State Of Karnataka on 21 June, 2012
Author: Dilip B. Bhosale
Bench: Dilip B. Bhosale
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21st DAY OF JUNE 2012
PRESENT
THE HON'BLE MR. JUSTICE DILIP B. BHOSALE
AND
THE HON'BLE MR. JUSTICE B.V. PINTO
CRL.A.No.41/2008
BETWEEN
UMESHA
S/O MUNIYAPPA
AGE 23 YEARS
R/O BENNAGATA VILLAGE
LAKKUR HOBLI
MALUR TALUK
KOLAR DISTRICT ... APPELLANT
(BY SRI.CHANDRASHEKHAR R.P. FOR
SRI.C.H.HANUMANTHARAYA & SRI.G.SURESH, ADVs.,.)
AND
THE STATE OF KARNATAKA
BY: MALUR POLICE STATION
MALUR, KOLAR DISTRICT ... RESPONDENT
(BY SRI.N.S.SAMPANGIRAMAIAH, HCGP)
THIS CRL.A IS FILED U/S.374 CR.P.C BY THE
ADVOCATE FOR THE APPELLANT AGAINST THE JUDGMENT
DT.16.11.2007 PASSED BY THE II ADDL.DIST. & S.J.,
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KOLAR, IN S.C.NO.5/2006 - CONVICTING THE
APPELLANT/ACCUSED NO.1.FOR THE OFFENCES P/U/S.302
OF IPC. AND SENTENCING HIM TO UNDERGO R.I. FOR
LIFE AND TO PAY FINE OF `10,000/- I.D., OF PAYMENT OF
FINE, TO UNDERGO R.I. FOR A TERM OF ANOTHER 6
MONTHS. THE APPELLANT/ACCUSED PRAYS THAT THE
ABOVE ORDER MAY BE SET ASIDE.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
ORAL JUDGMENT, (B.V.PINTO J.,)
This appeal is filed by the appellant/accused No.1 challenging the Judgment dated 16.11.2007 passed by the Court of the II Additional Sessions Judge, Kolar in S.C.No.5/2006, in which, the learned trial Judge has convicted the appellant for the offence under Section 302 of IPC and sentenced him to undergo Imprisonment for life and to pay a fine of `10,000/- and in default of payment of fine, to undergo R.I. for a term of another 6 months, while acquitting accused No.2, who is similarly charged in the said offence and also acquitting both the accused for the offence under Section 302 of IPC read with Section 114 of IPC and under Section 3(2)(v) of SC/ST (POA) Act, 1989. 3 The parties are referred to as per their ranking before the trial Court.
2. The case of the prosecution is that 20 days earlier to 24-10-2005, there was quarrel between accused no.2 and Thimmarayappa, the relative of deceased Muniraju in connection with drainage water. Deceased Muniraju supported Thimmarayappa. On account of it, there was ill will between accused and deceased Muniraju. On 24-10-2005 in the afternoon accused no.1 picked up quarrel with Muniraju in the land of Venkatagiriyappa and tried to assault him. He threatened to kill him. On the same day at about 7.30 p.m., deceased Muniraju was going to a shop on the road situated at Bennagatta village. Accused no.2 came with accused no.1 along with a chopper. Accused no.2 showed Muniraju to accused no.1 and directed accused no.1 to chop him off. At the instigation of accused no.2, accused no.1 assaulted Muniraju with a chopper on his neck. He separated the head portion from the trunk. On the same day at about 4 10.30 p.m., complainant B.G.Yellappa went to Malur police station and presented a written complaint before P.S.I. He registered the case in Cr.No.193/2005 and went to the place of occurrence along with his staff. H.Sanjeevappa.
3. CW-28/Munimallappa was the S.H.O of the police station from 11.00 p.m. on that day. At about 11.30 p.m., accused no.1 went to police station holding a chopper in one hand and a manure bag in the other hand and told him that he has cut the head of Muniraju and he has brought it.
4. CW-30/A.Munireddy was in the office of Circle Inspector. CW-28 took accused no.1 there and produced him before CW-30. CW-30 arrested accused no.1 after observing the required formalities, he seized the bloodstained pant and the shirt of accused no.1. CW-14, 16 and 18 came to the police station to give a complaint, he made use of them as panch witneses. He secured 5 photographer of "Chitrachaya Studio" and videographer and in their presence he seized the chopper which was with accused no.1 and the head of deceased Muniraju under a mahazar. The mahazar proceedings were videographed and photographed. The head of deceased Muniraju was sent to Government hospital, Malur with HC.17 Ramappa. Accused no.1 was kept in the lockup. On 25-10-2005 at about 7 a.m. CW-30 visited the place of occurrence and drew mahazar in the presence of panchas and seized the bloodstained mud along with sample mud. He conducted inquest proceedings on the trunk portion of the body, which was lying at the place of occurrence, and thereafter he sent the trunk portion to Government hospital, Malur along with CW-27 for postmortem. He submitted requisition to the medical officer, Government hospital, Malur to furnish his opinion as to whether the head and trunk portions are of the same person or not. CW-27 produced the clothes, which were on the dead body, he seized them in the presence of panchas. CW-30 produced accused no.1 before court. After completing 6 formalities he has find a charge sheet against two accused persons.
5. The prosecution in order to prove the case has examined in all 21 witnesses and got marked Exs.P1 to P19 and produced Mos.1 to 9. The defence of the accused was one of total denial and accused got marked Ex.D1 in their defence. However, the learned Sessions Judge held that the prosecution has proved the case against the appellant for the offences under Section 302 of IPC and acquitted accused No.2 of all the charges levelled against him. It is this judgment which is challenged in this appeal.
6. Heard Sri Chandrashekhar, learned Counsel for the Appellant/accused No.1 and Sri N.S.Sampangiramaiah, learned HCGP for the Respondent/State.
7. At the outset, learned Counsel for the appellant submitted that he has no ground to urge insofar as the order of conviction of the appellant for the act alleged against him. But however, he has confined his 7 submission insofar as the nature of the offence and also the punishment therefor. He submitted that the prosecution papers indicate that there was an altercation between the accused and the deceased in the afternoon of the same day and that as a result of such altercation, it is the case of the complainant as well as the other witnesses that the deceased had announced that he would kill the accused by chopping of his head. It is the further case of the prosecution, according to the learned Counsel, that due to the said provocation made by accused No.2, at about 7.30 p.m. on the same day, the accused No.1 has committed the offence by chopping off the neck of the deceased. It is submitted by him that accused No.2 has provoked the appellant herein to cause the murder of the deceased and that the accused No.1 was carried away by the sustained provocation that he was entertaining in respect of the deceased in the background of the deceased announcing that he would cause the murder of the appellant. Hence, it is submitted by him that the offence does not fall under Section 302 IPC but under Section 304 8 IPC and hence he submits that consequently sentence deserves to be reduced.
8. Sri N.S.Sampangiramaiah, learned HCGP for the Respondent/State on the other hand submits that the incident as narrated by PW.8 who is the only eyewitness in the case, clearly indicates that on 24.10.2005 at about 7.30 p.m. when the accused and the deceased were near the shop of one Krishnappa, accused came and cut the neck of the deceased, the deceased fell down. Thereafter, the accused severed the neck of the deceased from the other part of the body, and put it in a bag and carried it along with the chopper used by him for cutting the neck. The evidence of PW.8 does not indicate that there is any provocation on the part of accused No.1 for committing the offence nor on the part of any other person as at the time of the offence. Therefore, the question of the act being committed in a sudden fit of anger or provocation cannot be held in favour of the accused. The act of the accused clearly falls within the definition of Section 299 of IPC and 9 therefore he submits that the appeal is devoid of merits and the same may be dismissed.
9. It is the case of the prosecution that on 24.10.2005, in the afternoon, the appellant picked up a quarrel with the deceased Muniraju in the land of one Venkatagiriyappa and tried to assault him. The appellant threatened to kill Muniraju. On the same day at about 7.30 p.m. deceased Muniraju was going to a shop on the road situated at Bennagatta village. Accused No.2 came with accused No.1 along with a chopper. Accused No.2 showed Muniraju to accused No.1 and directed accused No.1 to chop him and at the instigation of accused No.2, Accused No.1 assaulted Muniraju with a chopper on his neck. He separated the head portion from the trunk. Thereafter, CW.1/the complainant went to the Police Station and presented a written complaint, which was registered as Crime No.193/2005, thereafter the investigation was taken up by PW.21 and after completion of investigation charge sheet was filed.
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10. Out of the witnesses examined PW.8 is the witness who has clearly narrated the incident, which has been culled out as above. From the evidence of PW.8, it is clear that it is the appellant, who has cut the neck of the accused and severed the head from the body and thereby he has killed the deceased. In view of the fair submission made by the learned Counsel for the appellant and also having regard to the medical evidence on record, it is not necessary to discuss in detail about the nature of the injury caused and resultant death of the deceased, which is homicidal one. Therefore, we hold that the prosecution has proved beyond reasonable doubt that the deceased was killed by the appellant herein by means of a chopper- MO.5 on the date of the incident.
11. The only question now arises is whether the act of the accused falls within the definition of Section 299 of IPC namely., Culpable homicide amounting to murder or 304 of IPC namely., Culpable homicide not amounting to murder.
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12. Learned Counsel for the appellant has drawn our attention to the evidence of PW.8, wherein it is stated that the second accused gave the chopper to the hands of the first accused and the accused No.2 told accused No.1 that Muniraju has told that he would cut the neck of the accused and therefore A-2 told A-1 to go and cut the neck of Muniraju. It is submitted by the learned Counsel for the appellant that this evidence of PW.8 indicates that at the instance and instigation of A-2, A-1 has cut the neck of the deceased and therefore the act of accused comes within the purview of Section 304 of IPC namely., Culpable homicide not amounting to murder. He has drawn our attention to the ruling reported in 1997 Crl.L.J.441 in the case of CHINNAN ALIAS CHINNASWAMI AND ANOTHER v. THE STATE, wherein, it is held as follows:-
"Quarrel between deceased and accused regarding same 15 days prior to occurrence - Quarrel taking place also an hour prior to occurrence owing to deceased meeting wife of accused - Accused could be said to have 12 sustained grave and sudden provocation which had not cooled down till time of occurrence - Accused found guilty of culpable homicide not amounting to murder."
In the said Judgment, it is observed that there was a quarrel which took place about one hour prior to the occurrence of incident owing to deceased meeting wife of the accused. The Madras High Court has held that accused would be said to have sustained grave and sudden provocation, which had not cooled down till time of occurrence of incident. In the background of that case, the Court has held that the accused is guilty of Culpable homicide not amounting to murder.
13. The learned Counsel also cited the ruling reported in (2003) 12 Supreme Court Cases 469 in the case of GOURA VENKATA REDDY v. STATE OF A.P., wherein the Hon'ble Supreme Court has held that while the appellants in that case had instigated the others to commit the murder of the deceased, who were two in 13 number. The appellants therein had infact instigated the other accused and the other accused picked up stones from the waste and threw the same without causing grievous injuries. In the background of these facts, the Hon'ble Supreme Court has held that the conviction of the appellant shall be for Section 304 read with Section 109 IPC and not under Section 302 read with Section 109 IPC, keeping those accused on par with those persons, who have actually thrown the stones on the deceased.
14. Learned Counsel also referred to another ruling reported in 2007 Crl.L.J.3426 in the case of SHAKTI DAN V. STATE OF RAJASTHAN, wherein, the accused caused the murder of his own mother on the background of his mother advising him not to ill-treat his wife cruelly. In the background of the facts of that case, the Supreme Court has held that the accused is liable to be convicted for an offence under section 304 of IPC instead of Section 302 of IPC.
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15. We have carefully considered the above said rulings and the facts of each case and the observations of the Hon'ble Courts to attract Section 304 of IPC in each of these aforesaid cases. However, on the careful scrutiny of the facts of the present case, it is to be noted that even according to the prosecution, the earlier incident has happened in the afternoon and the second incident has happened at 7.30 p.m. The time gap between the two incidents is not lesser about 4 to 5 hours and the appellant as well as the accused No.2 have come with the chopper in their hands when they came to the shop of one Krishnappa at about 7.30 p.m. Therefore, the question of there being any provocation at the time when the incident happened is not at all proved nor suggested by the defence in order to come to the conclusion that at the time when the offence was committed, there was any sudden provocation or any fit of anger on the part of the accused to hold that he has lost control on his senses to commit the offence. It is further to be seen that the incident as narrated by PW.8 is to the effect that the appellant has dealt one blow on the 15 neck of the deceased by means of a chopper and when the deceased fell down, he cut and severed the neck and thereafter separate the head portion from the body. It cannot be imagined at all that the incident has taken place due to either "Provocation" or "Sustained Provocation" as submitted by the learned Counsel for the appellant.
16. After carefully going through the entire materials on record insofar as the manner in which the act has been committed by the appellant, we are unable to agree with this submission made by the learned Counsel that the offences falls under Section 304 of IPC instead of Section 302 of IPC.
17. On a careful consideration of the entire materials on record and re-appreciation of the evidence adduced by the prosecution, we are of the opinion that there is no merit in the appeal and the same is liable to be dismissed.
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18. Accordingly, appeal is dismissed. However, we place on record "a word of appreciation" and the efforts put up by Sri Chandrashekhar R.P., learned Counsel appearing for the appellant.
(Sd/-) JUDGE (Sd/-) JUDGE cp*