Murthy H Vs State of Karnataka

MURTHY H., S/O LATE HANUMANTHAIAH AGED ABOUT 74 YEARS, R/AT DAIRY BUS STOP NEAR NAVADURGA PRINTERS HEGGANAHALLI, BENGALURU-560 058 IN CUSTODY AT CENTRAL JAIL PARAPANNA AGRAHARA FROM 17.04.2016.

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…APPELLANT

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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(BY SRI. SHARATH J.M., ADVOCATE FOR

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SRI. HANUMESH H N., ADVOCATE)

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AND:

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STATE OF KARNATAKA BY RAJAGOPAL NAGARA POLICE STATION, BANGALORE, REPRESENTED BY ITS STATE PUBLIC PROSECUTOR BANGALORE-560 001.

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…RESPONDENT

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(BY SRI. VIJAYAKUMAR MAJAGE, SPP II, ADVOCATE)

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THIS CRL.A IS FILED U/S 374(2) CR.PC PRAYING TO SET ASIDE THE JUDGEMENT AND ORDER OF CONVICTION DATED

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HC-KAR

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15.02.2024 AND SENTENCE DATED 17.02.2024, IN S.C.NO.1002/2016 BY THE COURT OF THE LXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-69), CONVICTING THE APPELLANT/ACCUSED, FOR THE OFFENCE PUNISHABLE U/S 302 OF IPC AND SENTENCING THEM TO SUFFER LIFE IMPRISONMENT WITH A COMPENSATION OF RS.5,000/-.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and

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HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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(PER: HON'BLE MRS.. JUSTICE K.S.MUDAGAL)

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Challenging the judgment and order of conviction and sentence passed against him, the accused in S.C.No.1002/2016 on the file of LXVIII Additional City Civil and Sessions Judge, Bengaluru has preferred this appeal. The appellant was prosecuted in S.C.No.1002/2016 for the offence punishable under Section 302 of IPC on the basis of charge sheet filed by Rajagopalnagar Police Station in Crime No.320/2016. By the impugned judgment and order, he is convicted for the offence punishable under Section 302 of IPC. For the purpose of convenience the parties are referred henceforth according to their ranks before the Trial Court.

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HC-KAR

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2. Case of the prosecution in brief as follows;

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Victim Venkatesh was the son of PW.1. PW.1 is the younger sister of PW.6. That accused was a migrant labour. As he had no place to live, he used to sleep in the front-yard of the house of PW.6. Though the accused and Venkatesh were friends, Venkatesh was taking objections for the accused sleeping in the front yard of the house of PW.6 and talking to her.

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On 16.04.2016 at about 9.00 p.m., the accused and victim-Venkatesh were sitting in front of the house of PW.6 and consuming liquor. At that time, the Venkatesh picked up quarrel with accused taking objections to him coming to the house of PW.6 and talking to her and assaulted him. Being enraged by that, the accused with the intention to commit murder of Venkatesh picked up MO.5/blade which was lying at the spot and assaulted on his neck and cheek. The victim succumbed to the injuries. Thereby accused has committed the murder of victim-Venkatesh.

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HC-KAR

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The Trial Court on committal of the case and on

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hearing the parties framed the charges against the accused under Section 302 of IPC and he was tried.

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In support of the case of the prosecution, PW.1 to PW.13 were examined. Exs.P1 to P20 and MO.1 to MO.10 were marked.

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The accused was examined under Section 313 Cr.P.C. He did not choose to lead his evidence. The Trial Court on hearing the parties convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.5,000/-, in default of payment of fine, to undergo simple imprisonment for six months.

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Sri. Sharath J.M, learned counsel for Sri Hanumesh H.N., learned counsel for the appellant/accused submits that as

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per the prosecution case itself, both the accused and victim had consumed alcohol and it was the victim who initiated quarrel and assaulted the accused. He further submits that evidence on record shows that there is no preparation or motive on the part

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HC-KAR

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of the accused and more over the accused was aged 65 years

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at the time of incident and victim was 20 years younger to him. Therefore, if at all the accused has assaulted the victim that is only due to intoxication. Therefore, the act alleged does not constitute offence punishable under Section 302 of IPC, at the most, such act constitutes offence under Second Part of Section 304 of IPC. He further submits that the accused has already undergone imprisonment for more than 9 years. Therefore, by reducing the conviction to the offence punishable under Section 304 of IPC appropriate order may be passed.

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Sri. Vijayakumar Majage, learned SPP-II submits

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that the weapon used by the accused and body part of victim chosen to assault i.e., neck, shows the intention of the accused to commit the murder. He further submits that based on the evidence of the eye-witness, the Trial Court has come to the conclusion that the act of the accused constitutes the offence punishable under Section 302 of IPC. Therefore, the contention that offence falls under Second Part of Section 304 of IPC is unacceptable.

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HC-KAR

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On considering the submissions of both side and

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examining the materials on record, the point that arises for determination is;

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"Whether the Trial Court was justified in holding that the appellant /accused has committed offence punishable under Section 302 of IPC.?"

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Analysis

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Some of the admitted facts are as follows:

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The accused and victim were said to be friends. Victim was 20 years younger to the accused. They were known to each other much earlier to the date of incident. The accused used to sleep in the front yard of house of PW.6 i.e., aunt of the victim. Even according to the prosecution, incident has taken place when the accused and deceased were consuming alcohol. As per the prosecution itself, it was the victim who started the quarrel and first assaulted the accused. The evidence on record shows that even prior to that also the victim had assaulted the accused sometime.

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It is no doubt true that inquest mahazar/Ex.P5 and postmortem report/Ex.P3 show that the injuries were inflicted on the neck which is vital part leading to the death of the victim. PWs.1, 6 and 7 were cited as eye-witnesses. Their

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HC-KAR

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evidence shows that on hearing commotion they came outside and found accused and the injured victim.

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PW.1 deposed that when she was going towards her

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sister’s house, her injured son came running towards her and told her that accused assaulted him with blade. PW.6 says that on hearing commotion, herself and PW.1 came outside of the

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house by that time the accused had assaulted victimVenkatesh with blade on his neck. PW.7 says that when PWs.1 and PW.6 raised alarm she came outside and found her injured brother and PWs.1 and 6 informed that accused had assaulted him. The above evidence goes to show that PWs.1, 6 and 7 are not the eye-witnesses but res gestae witnesses. Their evidence regarding their presence at the scene of offence and victim being found with injuries and he naming the accused as culprit is acceptable.

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Even according to the prosecution, the accused had no preparation for commission of the offence. There was no premeditation on his part. The incident took place due to sudden fight initiated by the victim and both of them were drunk. As retaliation to the assault by the victim, the accused

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HC-KAR

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took out the blade which had fallen at the scene of the offence and assaulted the victim. Under such circumstances, it cannot be said that the accused assaulted the victim with an intention to commit his murder. There is much force in the contention of the appellant's counsel that act of the accused falls under Exception 4 to Section 300 of IPC. The Trial Court has failed to appreciate the evidence and aforesaid circumstances holistically in concluding that the act of the accused constitutes as an offence under Section 300 IPC which is punishable under Section 302 of IPC.

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In the aforesaid facts and circumstances, this Court is of the considered opinion that act of the accused constitutes offence punishable under Second Part of Section 304 of IPC namely culpable homicide not amounting to murder. The impugned judgment and order requires to be modified accordingly. Hence, the following:

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ORDER

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(i) Appeal is partly allowed.

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(ii) The impugned order of conviction and sentence is

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modified as follows;

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HC-KAR

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(a) The accused/appellant is convicted for the offence punishable under Second Part of Section 304 of IPC.

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As the appellant was aged 65 years as on the date of incident and has already undergone more than 9 years of imprisonment and he has no other criminal antecedents, it is just and proper to reduce the sentence. Therefore the appellant/accused is sentenced to rigorous imprisonment of 10 years and fine of Rs.5,000/-. In default to pay fine amount, he shall undergo simple imprisonment for six months.

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The Trial Court shall issue modified conviction warrant accordingly.

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The order of the trial Court with regard to disposal of the or properties is maintained.

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Registry shall communicate copy of this order to the trial Court and the concerned prison forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(M.G.S. KAMAL) JUDGE

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RU/List No.: 1 Sl No.: 14

Murthy H v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Murthy H v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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Statutes considered

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