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High Court of Karnataka
MOHAN M. SHANTANAGOUDAR & C.R. KUMARASWAMY, JJ.
State Of Karnataka
Versus
R.H. Keshava & Others
Criminal Appeal No. 358 of 2009
Decided On : 03-06-2014
Further Heat of passion requires that there must be no time for the passions to cool down. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, It is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression ’undue advantage’ as used in the provision means ’unfair advantage’.
Exception 1 to Section 300 of IPC can be taken benefit of by the offender if the offence has taken place while the offender was deprived of the power of self control by grave and sudden provocation, causes death of a person who gave provocation or causes the death of any other person by mistake or accident. In the matter on hand, Exception 1 as well as Exception 4 to Section 300 are applicable inasmuch as the accused No. 1 was deprived of power of self control because of grave and sudden provocation and has caused the death of a person who gave provocation, so also the death is caused without premeditation, in a sudden fight by the accused; without the offender having taken undue advantage or acted in a cruel or unusual manner and the fight was with the person killed.
The Trial Court should not have convicted the accused No.1 for the offence under Section 304-II of IPC, even assuming that the incident has taken place under grave and sudden provocation, the incident in question squarely falls under Section 304-I of IPC. On facts held, The deceased had teased the accused No.1 by making vulgar utterances against the fiancee of accused No.1; the accused No.1, whose betrothal ceremony was performed and the marriage was to be celebrated within eight days from the date of the incident, could not tolerate the vulgar utterances used by the accused. Suddenly, without premeditation at the heat of passion since he was deprived of self control because of grave and sudden provocation, assaulted the deceased. Hence, looking to the totality of the facts and circumstances of the case, the offence squarely falls within the meaning of culpable homicide not amounting to murder. Acquittal of A2 and A3 was confirmed - Accused No.1 was convicted for the offence under Section 304-I of IPC.
INDIAN PENAL CODE, 1860 - Section 300: [Mohan Shantanagoudar & C. R. Kumaraswamy, JJ] Murder - Evidence of eye-witnesses and a person whom oral dying declaration was made found highly doubtful and unbelievable as to involvement of co-deceased in assaulting and stabbing deceased - Held, Acquittal of co-accused was proper.
INDIAN PENAL CODE, 1860 - Section 304, Part I, 300: [Mohan Shantanagoudar & C. R. Kumaraswamy, JJ] Culpable homicide not amounting to murder - Deceased teased accused by making vulgar utterances against his fiancée - Accused deprived of self control because of grave and sudden provocation - Inflicted stab injuries on deceased persons - Death was caused without premeditation at the heat of passion - Thus Exception 1 as well as Exception 4 to Section 300 being attracted - In view of number of stab injuries on deceased, it can be said that accused had intention to take away life of deceased or, at least causing such bodily injury as is likely to cause death. Accused is liable to be convicted under Section 304 Part I and sentenced to imprisonment for 8 years and fine of Rs. 6,00,000/-.
1. This appeal is preferred by the State against the judgment and order dated 20.01.2009 passed by the Principal Sessions Court, Bangalore Rural, Bangalore.
By the said judgement the trial Court acquitted accused Nos. 1, 2 and 3 for the offences under Section 302 r/w Section 34 of I.P.C. However, Accused No.1 is convicted for the offences under Section 304-11 IPC and sentenced to undergo imprisonment for five years and to pay a fine of Rs.2,00,000/-. Since the accused No.1 has already served sentence and paid fine he is released from custody. Convicted accused No.1 has not filed the appeal questioning his conviction and sentence.
2. The case of the prosecution in brief is that, there was a rivalry/dispute between the family of the accused and family of the deceased with regard to boundaries of certain agricultural land; it is alleged that the accused have encroached upon the land of the deceased to an extent of 2 feet and in that regard, dispute has arisen between the families. Both the deceased namely, Gopala Reddy and Somashekara Reddy are brothers interse. So also PWs. 1, 2 and 3 are brothers of the deceased. Accused No.1 is son of the accused 'No.2. Accused No.3 is brother of accused No.2 and uncle of accused No. 1.
That on the date of the incident i.e.. on 25.05.2004 at about 7.30 a.m., deceased Gopala Reddy, deceased Somashekara Redely, Muni Reddy (PW.3), Balram (not examined before the court), Ravindraiah (PW.2) were involved in their routine work near brick factory situated at Singena Agrahara; the complainant who was at a distance heard hue and cry raised by both the deceased. Immediately thereafter the complainant (PW. 1) went to the spot and found that accused Nos.2 and 3 were quarrelling with both the deceased in respect of the boundary dispute of agricultural land; accused No.1 (R H Keshava) assaulted Gopala Reddy with crow bar; accused No.2 Hanumanthappa stabbed Somashekara Reddy with sharp knife; Govindappa (accused No.3) had held the hands of Gopala Reddy from behind tightly; at that point of time the complainant was standing at a distance and was seeing the incident since he had feared about the incident in question; after seeing the incident the complainant cried loudly; immediately thereafter PWs.2 and 3 and Balaram came to the spot and on seeing these people all the accused ran away from the scene. PWs.2 and 3 and PW.1 immediately went to the spot wherein both the injured were lying and found that both the injured have sustained number of injuries and immediately thereafter they bought a jeep and took both the injured to St. John's Hospital. While going to St. John's Hospital, on the way they also went to Narayana Hrudayalaya Hospital, wherein the authorities of Narayana Hrudayalaya Hospital advised the complainant and others to take the injured to St. John's Hospital. The doctors at St. John's Hospital examined both the injured and declared that they are dead. PW. 1 (the complainant) came back to his village, wrote the complaint and thereafter went to Hebbagodi Police Station and lodged the complaint at 10.00 a.m, on 25.05.2004 before the P.S. I. (PW.26) who registered the case in Crime No.237/2004. The first information has reached the jurisdictional Magistrate at 2.00 p.m. on the very day The police took up the investigation. After completing all the investigation formalities, the chargesheet came to be filed against the three accused for the offences under Section 302 r/w Section 34 of IPC.
3. The accused were charged for the offences under Section 302 r/w Section 34 of IPC in Sessions Case No.- 255/2004. During the course of trial the prosecution in all examined 28 witnesses and got marked 39 exhibits and 26 material objects. On behalf of the defence no witness is examined. However, four exhibits were got marked. During the course of recording the statement of the accused, the accused Nos. 1 and 3 have filed their written statements also. The trial court on evaluation of the material on rec
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