Karnataka High Court
Avinash S/O Baburao vs The State Of Karnataka Through ... on 28 July, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JULY, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL No.3512/2013
Between:
Avinash S/o Baburao
Age: 19 Years
Occ: Coolie R/o Rajeshwar
Tq. Basawakalyan
Dist. Bidar
... Appellant
(By Sri Mahantesh H. Desai, Advocate)
And:
The State of Karnataka
Through Basawakalyan P.S.
Represented by Addl. S.P.P
Hon'ble High Court of Karnataka
Circuit Bench, Gulbarga
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
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This Criminal Appeal is filed under Section 374(2)
of Cr.P.C., praying to set aside the impugned judgment
of conviction and order of sentence passed by the Dist.
Judge Adhoc and Presiding Officer, Fast Track Court,
Basavakalyan, Dist. Bidar in Sessions Case No.43/2012
dated 31.08.2012 by allowing the appeal and
consequently acquit the appellants of the charges
leveled against them.
This appeal coming on for Hearing this day,
B.A.Patil J., delivered the following:-
JUDGMENT
This appeal has been preferred by the appellant/ accused No.1 challenging the legality and correctness of the judgment of conviction and order on sentence passed by Fast Tract Court, Basavakalyan, Dist. Bidar in S.C.No.43/2012 dated 31.08.2012.
2. We have heard the learned counsel Sri Mahantesh H. Desai appearing for the appellant/accused No.1 and the learned Addl. State Public Prosecutor - Sri Prakash Yeli for the respondent
- State.
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3. The genesis of the case of the prosecution is as under:
The complainant was working as a Driver, who had four brothers. Deceased Namdev was in judicial custody about two months, thereafter he was released on bail i.e., one day prior to the incident. The complainant working as a Driver in a lorry and accused No.1 was working as a Hamal, who used to load and unload vegetables from the lorry belonging to the complainant. Such being the background, one year prior to the alleged incident, accused No.1 had borrowed a sum of Rs.650/- from the complainant as a hand loan. When the complainant asked to refund the same and even after repeated request and demand, accused No.1 flatly refused to repay the said amount stating that he had not taken any hand loan from him. In that light, on 16.06.2011 at about 2.30 p.m. when the complainant was sitting in the community hall along with other witnesses, accused No.1 was also present in -4- the said community hall, at that time, the complainant again requested the accused No.1 to repay the said amount, but he flatly refused once again, which led in exchange of heat words. At that moment, the complainant had taken the mobile of the accused No.1 forcibly by telling that he would give back the mobile after repayment of amount of Rs.650/-, which amount the appellant borrowed from the complainant. Thereafter, again the complainant came to a Hotel situated in their village at about 7.00 p.m. on the same day he requested C.Ws.13 and 14 who were the uncle's sons of accused No.1 to advise the accused and called him there. Accused No.1 came there in pursuance of the message and accused No.1 denied that he owe an amount of Rs.650/- and started quarreling with the complainant. C.Ws.13 and 14 pacified the quarrel. After half an hour of the said incident, while complainant was returning to his house and when he came near Ganapati Shinge's house at about 8.30 p.m., -5- he met the mother of the accused No.1 namely, Smt. Nagamma and both were quarreling with each other and by that time accused No.1 came there and abused the complainant in filthy language and also to the accused No.2 (Juvenile), who is brother of the accused No.1 and accused No.2 asked the complainant to return the mobile back and take his amount of Rs.650/-, while so talking with each other, the deceased who is brother of the complainant came therein and started quarreling with the brother of the accused No.1 i.e., accused No.2, who is Juvenile and the complainant pacified the quarrel and returned the mobile to the mother of the accused No.1. In the meanwhile, accused No.1 caught hold the deceased and accused No.2 removed the knife from his pocket and stabbed on the chest of the deceased and also on the private part of the deceased, who sustained bleeding injuries and made hue and cry and thereafter fell down and the injured was shifted to the Government Hospital and subsequently he was -6- shifted to Government Hospital, Humnabad at about 10.15 p.m. The doctor of the said hospital declared the injured has been brought dead. On the basis of the complaint, a case has been registered in Crime No.70/2011, thereafter after conducting the investigation, the charge sheet came to be filed for the offences punishable under Section 302 r/w Section 34 of IPC as against Accused No.1 only as accused No.2 since a Juvenile, charge sheet came to be filed before the concerned Juvenile Justice Board.
4. The learned Magistrate upon receipt of charge sheet, committed the case to the Sessions Court and the Sessions Court secured the presence of accused No.1 and complied Section 207 of Cr.P.C. Thereafter, learned Sessions Judge after hearing both the sides and since no grounds made out for discharge, framed the charges against the accused No.1, read over the same to -7- him, who pleaded not guilty and claims to be tried, hence trial was fixed.
5. In order to prove the guilt, the prosecution in all examined fourteen witnesses as P.Ws.1 to 14 and got marked as many as fifteen documents as Exs.P.1 to 15 besides marking six material objects as M.Os.1 to 6. After closure of prosecution evidence, accused No.1 has been examined as required under Section 313 of Cr.P.C. by putting incriminating material appearing against him, who denied the same. Accused has not led any defence evidence nor got marked any documents on his behalf.
6. After hearing both sides, the Sessions Court arrived at conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt and accordingly convicted the accused No.1. Challenging the same, the accused No.1 is before this court in this appeal.
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7. The main grounds urged by the learned counsel for the appellant are that; the judgment of conviction and order of sentence is contrary to law and material placed on record. It is his further submission that the trial Court without properly appreciating the factual situation, came to a wrong conclusion that accused No.1 has also involved in the said offence. Though the charge sheet has not been filed under Section 34 of IPC but the charge has been framed under Section 34 of IPC. It is his further submission that the charge sheet material indicates the fact that the appellant/accused No.1 instigated accused No.2 and it is accused No.2 who inflicted the injury with knife. Until and unless the prosecution establishes the fact that it is accused No.1 who abetted accused No.2 to commit the offence, then under such circumstance, the prosecution could succeed to convict the accused for the offence punishable under Section 302 of IPC. -9-
8. It is his further submission that though the prosecution got examined PW-1 the complainant who is an eyewitness, but in his evidence neither he has deposed with reference to common intention nor the abetment said to have been committed by the accused No.1. He further submits that PW-6 is also an eyewitness to the alleged incident. Initially he did not support the case of the prosecution but when he has been treated hostile and was cross-examined by the learned Public Prosecutor, he supported the case of the prosecution but his evidence goes to show that only after the accused No.2 stabbed, accused No.1 instigated to finish the deceased. That evidence does not corroborate with the evidence of other eyewitnesses. He also submitted that though PW-13 and PW-14 are said to be eyewitnesses to the alleged incident, but during the course of cross-examination they have admitted that they have not seen the alleged incident. Under such
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circumstances, the trial Court ought to have appreciated the evidence in its right perspective and could have given the benefit of doubt.
9. It is his alternative argument that there are no serious overt acts alleged as against the appellant/ accused No.1. Even if the evidence is considered and appreciated, it indicates that the alleged incident has taken place in a spur of moment without there being any intention. Already the quarrel was going on and at that time accused No.2 came there and all of a sudden he took out the knife which was there in his pocket and stabbed. Under such circumstances, the trial Court ought to have held that if at all the prosecution has proved the guilt of the accused, then the offence falls within the purview of Section 304 Part-II of IPC and not under Section 302 of IPC. On these grounds he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence.
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10. Per contra, learned Additional State Public Prosecutor vehemently argued and submitted that PW-1, PW-6, PW-13 and PW-14 are the eyewitnesses to the alleged incident. They have consistently stated with regard to the act of the accused persons. It is his further submission that it is accused No.1 who caught hold of the deceased and it is he who instigated and because of such instigation accused No.2 gave a fatal blow on his chest and the private part and as a result of the same the deceased succumbed to the injuries. The said evidence is also corroborated with the evidence of doctor who has conducted the postmortem as per Ex.P- 12 and has given his opinion as per Ex.P-13. He further submitted that though the trial Court has not framed the charge under Section 109 of IPC and due to technical error it has only mentioned as Section 34 of IPC and in that light there is no glaring illegality in passing the impugned order. It is his further
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submission that since on the same day many times they have quarreled and thereafter the alleged incident has taken place, that itself clearly goes to show that the accused persons, with an intention to take away the life of the deceased, have committed the alleged offence and in that light the trial Court has properly appreciated the evidence and has been come to a right conclusion and has rightly convicted the accused. On these grounds he prayed to dismiss the appeal.
11. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records including the trial Court records. Prosecution in order to establish its case, got examined fourteen witnesses.
12. PW-1 is the complainant and is an eyewitness to the alleged incident. In his evidence he has deposed that he is a driver of lorry and accused No.1 used to come in their lorry as a hamali. One year
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earlier to the said incident accused No.1 Avinash had taken hand loan of Rs.650/- from him and he did not repay the said amount inspite of repeated request made by him. He further deposed that on 16.06.2011 at about 2.30 p.m. he was in the community hall along with CW-13 and CW-14 and he requested accused No.1 to repay the amount. Accused No.1 refused to repay the amount and as such he snatched his mobile. Then he proceeded towards hotel Molkere along with CW-13 and CW-14. Then CW-13 called upon the accused, accused came to the said hotel and CW-13 and CW-14 advised the accused and accused returned to his house. After half an hour PW-1 was returning to his house, in the middle of the road the mother of accused No.1 Nagamma met him at about 8.30 p.m. In the meanwhile, appellant - accused No.1 came there and also PW-1's brother deceased Namdev also came there and there was hot discussion in between accused No.1 and the deceased about the repayment of the money. In
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the meanwhile, accused caught hold Namdev and accused No.2 Pavan who was a minor had stabbed Namdev with knife, which he had kept in his pocket. He has identified the said mobile. During the course of cross-examination of this witness he has admitted that there was no any negotiation or dispute in between the deceased Namdev and accused and his brother Pavan. Other suggestions made have been denied. He has further admitted that out post police station is situated in his village and he had not filed complaint before the out post police station and injured Namdev was unconscious and unable to talk. Except that nothing has been elicited from the mouth of this witness.
13. PW-2 is the panch witness to inquest mahazar Ex.P-2 and seizure mahazar Ex.P-3 whereunder the clothes of the deceased as per M.O.s-4 to 6 were seized and he is also a panch witness to recovery mahazar at Ex.P-4 whereunder M.O.1 - knife
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has been seized by drawing a mahazar at the instance of accused No.2. He has admitted during his cross- examination that at the time of seizure panchanama Ex.P-4 it was recited in the panchanama that M.O.1 was blood stained and M.O.1 was lying on the ground under the Yerbhag bridge. He has further admitted that M.O.1 was lying on the mud. He has further admitted that there was monsoon in the month of June. He has further admitted that M.O.1 was not stained with mud. The other suggestions have been denied.
14. PW-3 is a co-pancha to the above said mahazars. He has also reiterated the evidence of PW-2. PW-4 is the panch witness to spot mahazar Ex.P-5 whereunder the stained and unstained mud has been seized by drawing a mahazar. PW-5 is the brother of the deceased. He has come to the spot after hearing about the incident and he is not an eyewitness and he is only a circumstantial witness who came to know about
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the said incident. Nothing has been elicited from the mouth of this witness during the course of cross- examination.
15. PW-6 is an eyewitness to the alleged incident. In the first instance he has turned hostile. When he has been treated as hostile, the learned Public Prosecutor cross-examined him at length, he has admitted the fact of the alleged incident. He has admitted that accused No.1 had caught hold of the deceased and the juvenile accused No.2 Pavan had stabbed Namdev and also accused No.1 had instigated the juvenile accused No.2 Pavan not to leave him and kill him. He has also admitted that he has stated the same before the police. During the course of cross- examination, nothing has been elicited so as to discard the evidence of this witness.
16. PW-7 is the school Headmaster who has issued the birth certificate of accused No.2 as per
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Ex.P-8. This witness has not been cross-examined much. PW-8 is the Police Constable who accompanied PW-10 and took the complaint and brought it to the police station and handed over the same to SHO. PW-9 is the Head Constable who received the complaint brought by PW-8 and registered the case and had issued the FIR as per Ex.P-9. PW-10 is the PSI. On receipt of the information, he went to the Government Hospital, Humnabad and he has recorded the statement of PW-1 in the hospital and sent the same through PW-8 and got it registered. During the course of cross- examination nothing has been elicited so as to discard his evidence. PW-11 is the Investigating Officer who investigated the case and filed the charge sheet against the accused. PW-12 is the doctor who has conducted autopsy over the body of the deceased and has issued postmortem report as per Ex.P-12 and he has given his opinion as per Ex.P-13.
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17. PW-13 is another eyewitness. He has reiterated the evidence of PW-6. But however in the examination-in-chief itself he has deposed that he had gone near Ganapthi Shinge's house where the women folk were quarreling in the house. He had not seen that the accused had caught hold the deceased Namdev and juvenile accused No.2 Pavan had stabbed with knife in the stomach of the deceased and the said witness has not been treated as hostile by the prosecution. PW-14 is also the eyewitness and he has also reiterated the evidence of PW-13.
18. It is the contention of the learned counsel for the appellant accused No.1 that the trial Court has not properly framed the charge. Though the prosecution has not filed any charge sheet under Section 34 of IPC but the charge has been framed under Section 34 of IPC and the accused has been convicted for the offence
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punishable under Section 302 of IPC read with section 34 of IPC.
19. On perusal of the contents of the charge sheet, though the provisions of Section 34 of IPC has been mentioned but on perusal of the charge carefully and cautiously it has been alleged that accused No.1 caught hold of the deceased at that time he instigated juvenile accused No.2 Pavan that if he is left he will assault him and kill him in that light accused No.2 took out the knife which was there in his pocket and then he has stabbed on his chest and private part. In order to attract the provisions of Section 34 of IPC there must be two or more accused persons and prior to the alleged incident there must be prior meeting of the mind or the common intention. Though there is no common intention expressed in the charge sheet, only because the charge sheet has been filed under Section 34 of IPC, the trial Court without application of mind and perusing
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the contents of the charge, has wrongly framed the charge under Section 34 of IPC. The actual charge which ought to have been framed is under Section 109 of IPC and not under Section 34 of IPC. We are conscious of the fact that because of wrong framing of the charge, the entire case is not going to be vitiated. If the charge sheet indicates what is the offence committed by the accused and the accused faced the trial knowing fully well, then in such circumstances no prejudice could be caused to the accused if the accused is convicted for the offence punishable under Section 109 of IPC. Even the evidence which has been produced indicates that it is only at the instigation of accused No.1 that the alleged incident has been taken place. In that light, though the trial Court is not right in convicting the accused No.1 for the offence punishable under Section 34 of IPC, we are of the opinion that the accused No.1 can be held liable to be
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convicted for the offence punishable under Section 109 of IPC.
20. To establish the case of the prosecution, prosecution got examined PW-1, PW-6, PW-13 and PW- 14 as the eyewitnesses to the incident. There is consistency in the evidence of PW-1 and PW-6. They have categorically deposed before the Court that there was a quarrel between the complainant and the accused No.1 for having taken an amount of Rs.650/- and he has flatly refused to repay the same and in that light the complainant has snatched the mobile phone of accused No.1 and a galata has been taken place. When the complainant was proceeding towards his house the accused came there and in the meanwhile the brother of PW-1 i.e. deceased Namdev also came there and there was hot discussion in between accused and deceased Namdev about the repayment of money, meanwhile accused No.1 caught hold the hands of the deceased
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and accused No.2 Pavan took out the knife and stabbed the deceased. In that light the evidence of these two witnesses is cogent and acceptable. When the presence of the eyewitnesses has not been denied during the course of cross-examination and there is consistency in the evidence of these two witnesses, this Court can accept the same and come to a conclusion that it is the accused No.1 who caught hold of the deceased and instigated accused No.2 and it is accused No.2 who has stabbed the deceased.
21. The offence punishable under Section 109 of IPC is constituted if the following ingredients have been satisfied - there must be an abetment of an offence either by instigation, conspiracy or aid and if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment and he is liable to be punished provided for the offence. Section 109 of IPC
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provides that the abettor is liable to the same punishment which may be inflicted on the principal offender (i) if the act of the latter is committed in consequence of the abetment, and (ii) no express provision is made in the Penal Code for punishment for such abetment (Ranjana Yaki v. State (2004) 12 SCC
521).
22. PW-6, though in the initial stage has not supported the case of the prosecution and he has turned hostile, but when the said witness has been cross-examined by the learned Public Prosecutor, he has categorically deposed that when the quarrel was going on, the deceased also came there and they tried to pacify and at that time it is accused No.1 who caught hold of the deceased and instigated accused No.2 to finish him and accordingly accused No.2 removed the knife and stabbed the deceased. In that light of the circumstances, ingredients which are constituting an
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abetment have been satisfied by the prosecution. In that light, accused No.1 is liable to be convicted for the offence punishable under Section 109 of IPC, though it is accused No.2 who has stabbed and the injuries which have been caused by him are fatal.
23. As per the evidence of PW-12 the doctor who has conducted the autopsy over the body of the deceased, she has deposed that she found the following injuries:
1. External Injuries:-
"1. Stab injury semicircular, regular edges measuring 2 x ½ x 4 cm over left inguinal region perforating left femoral artery femoral nerve musculature profuse bleeding scratch wound over left side of scrotum
2. Stab injury semicircular 2 x ½ x 2 cm over right side of chest in midline 3 cm from lateral border of sternum between 6th - 7th ribs bleeding present
2. Internal Injuries:-
1. Lacerated wound in lob of the right lung.
2. Genito Urinary
3. Kidneys pale
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4. Bladder empty
5. Scratch wound measuring 2 cm over left testicle."
24. He has further deposed that he has issued the postmortem report as per Ex.P-12 and he has opined that death is due to hemorrhage and shock and due to injury to femoral artery vein and right lung due to sharp haw object. His opinion has been also got marked as Ex.P-13. During the course of cross- examination, the learned counsel for the accused has not elicited anything so as to discard the said evidence. In that light, if evidence of this witness and the inquest mahazar Ex.P-2 and the evidence of PW-2 are verified, it indicates that the deceased suffered with said injuries and he ultimately succumbed to the injuries and it is a homicidal death.
At this juncture, the learned counsel for accused No.1- appellant submitted that accused No.1 had no intention to cause the death and the provisions of Section 302 of
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IPC are not attracted. In order to consider the case under Section 304 Part-I and II of IPC, the case has to be made out under exceptions 1 or 4 of Section 300 of IPC. For the purpose of brevity we quote Section 300 of IPC and exceptions 1 and 4 which read as under:
"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 -
2ndly. - 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 -
3rdly. - 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 - 4thly. - 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.
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Exception 1. - When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of 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.- xxx xxx xxx Exception 3.- xxx xxx xxx
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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's 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."
25. We have carefully and cautiously gone through the said provisions of law by giving our thoughtful consideration. In order to invoke the benefit under Section 304 Part-I of IPC accused persons must show that there was provocation and such provocation was grave and sudden. Simultaneously, in order to bring the case under the said exception accused has to show that he deprived of the power of self control, by grave and sudden provocation which is caused by the person whose death has been caused. In order to attract Exception 4 of Section 300 IPC, accused must
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show that there exist above said conditions, then the cause of quarrel is not material.
26. With the above said ingredients if we peruse the evidence on record, it indicates that when PW-1 was proceeding by walk and at that time the mother of the accused came there and she was talking with complainant and accused and the deceased also came there and there were hot discussion in between accused and the deceased about the repayment of the money and at that time it is accused No.1 who caught hold the deceased and accused No.2 came and at the instigation of accused No.1 stabbed with knife which he had in his pocket. By looking to the particular facts and circumstances it indicates that the accused persons were not having any intention to cause the death. The said alleged incident has taken place in a spur of moment. Even during the course of cross-examination it has been admitted that there was no any negotiation
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or dispute in between deceased Namdev, accused No.1 and his brother juvenile accused No.2 Pavan. That itself goes to show that there was neither motive nor intention and the said alleged incident has been taken place in a spur of moment. So when the accused, the complainant and his brother discussed, deceased also entered and there was hot discussion between accused and deceased and in that light the alleged incident has been taken place. Though the prosecution has clearly established the above alleged incident, but the trial Court when looking into the factual situation has come to a conclusion that the said act of the accused amounting to murder. We are of the considered opinion that though the prosecution has proved the guilt of the accused, the trial Court instead of convicting the accused for the offence punishable under Section 302 of IPC ought to have convicted the accused for the offence punishable under Section 304 Part-II of IPC. In that
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light, the judgment of the trial Court requires to be interfered with.
27. We are conscious of the fact that the accused No.1-appellant has not stabbed the deceased and that no serious overt acts have been alleged against accused No.1. But on careful perusal of the provisions of Section 109 of IPC if the accused abets to commit any such offence and if the Indian Penal Code has not provided any separate punishment for that or for the instigation, then under such circumstances the accused is liable to be punished for the offence which has been provided or committed by the main accused. In that light, when we have already come to the conclusion that the accused No.1 is liable to be convicted for the offence punishable under Section 304 Part-II of IPC, the same benefit could also be extended to the accused No.1 - appellant. At this juncture, learned counsel for the appellant - accused No.1 submits that the appellant is
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in custody since more than nine years, one month and 11 days and the benefit of whatever period of sentence he has already undergone may be given by giving a set off and the accused may be released forthwith. In view of the above, we pass the following:
ORDER The appeal is allowed in part. The judgment of conviction and order of sentence passed by the Fast Track Court, Basavakalyan in S.C.No.43/2012 dated 31.08.2012 is modified. The appellant - accused No.1 is hereby convicted for the offence punishable under Section 304 Part-II of IPC and he has been sentenced to undergo the sentence which he has already undergone.
The Jail Authorities are hereby directed to release the appellant - accused No.1-Avinash S/o Baburao forthwith if he is not required in any other case.
The Registry is directed to intimate the Principal District and Sessions Judge, Bidar and the concerned
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Jail Authorities through e-mail to release the appellant- accused No.1 Avinash S/o Baburao, resident of Rajeshwar, Basavakalayan Taluk, Bidar District to release him forthwith if he is not required in any other case.
Registry is directed to send back the trial Court records.
Sd/-
JUDGE Sd/-
JUDGE BL/swk