Karnataka High Court
Kyser vs State Of Karnataka on 7 February, 2022
Bench: B.Veerappa, M G Uma
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CRL.A No. 851 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MR JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS JUSTICE M. G.UMA
CRIMINAL APPEAL No.851 OF 2020
BETWEEN:
KYSER,
S/O DADA PEER,
AGED 30 YEARS,
R/AT 127, 7TH CROSS,
SHANTHINAGAR,
NEAR AHMMADIYA MASJID,
UDAYAGIRI, MYSURU-571102.
...APPELLANT
(BY SRI. RAJASHEKAR S., ADVOCATE)
Digitally signed AND:
by MALATESH
KC STATE OF KARNATAKA,
Location: High LASHKAR POLICE STATION,
Court of
Karnataka REP. BY S. P. P.,
HIGH COURT OF KARNATAKA,
BENGALURU-560001.
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 25.04.2017,
AND ORDER OF SENTENCE DATED 26.04.2017 PASSED BY THE
I ADDITIONAL SESSIONS JUDGE, MYSURU IN S.C.No.02/2014,
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC.
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CRL.A No. 851 of 2020
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/accused filed the present Criminal Appeal
against the judgment of conviction dated 25.04.2017 and order
of sentence dated 26.04.2017 made in S.C.No.02/2014 on the
file of the I Additional Sessions Judge, Mysuru, sentencing the
accused to undergo rigorous imprisonment for life and to pay
fine of `5,000/-, in default, to undergo simple imprisonment for
six months, for the offence punishable under Section 302 of the
Indian Penal Code.
2. It is the case of the prosecution that, on
20.08.2012, between 3.00 to 3.30 am, on Irwin-Halladakeri
Road, 1st Main junction, in front of Sadhu Hotel steps, when the
deceased Basavashetty @ Belli Basavaraju was sleeping, the
accused who was passing on the said road, with an intention to
snatch money, if any, from the deceased, put his hand into the
pocket of the deceased and tried to search for money. The
deceased woke up and started shouting. The accused forcibly
fisted on his face and kicked with his leg and caused injury.
Then, with an intention to cause death, accused tried to hit the
CRL.A No. 851 of 2020
deceased with a size stone slab. But when it was not possible
to lift, the accused pushed the said size stone on the head of
the deceased, as a result of which, the deceased-Basavashetty
sustained severe head injury and died at the spot.
Immediately, the accused fled away from the spot. Around
4.45 am when the cook of Sadhu Hotel i.e., P.W.1-Venkatesh
came out side the Hotel, he noticed that a male person was
lying dead in the pool of blood. He intimated the same to the
owner of the Hotel. On the instructions of the owner, P.W.1
lodged the complaint to the jurisdictional police at about 7.00
am. Based on the said complaint, the PSI of Lashkar Police
Station registered a case in Crime No.98/2012 for the offence
punishable under Section 302 of the Indian Penal Code and
after conducting investigation, charge sheet was filed against
the accused. The committal Court took cognizance of the
offence. After securing the accused under body warrant, the
case was committed to the Court of Sessions, for trial, under
Section 209 of the Code of Criminal Procedure.
3. Upon receipt of the records from the committal
Court, the learned Sessions Judge registered the case as
S.C.No.02/2014, framed the Charge, read over it to the
CRL.A No. 851 of 2020
accused in the language known to him, who pleaded not guilty
and claimed to be tried.
4. The prosecution, in order to prove its case,
examined in all 15 witnesses as P.Ws.1 to 15 and marked the
documents Exs.P.1 to 20 and the material objections M.Os.1 to
12. After completion of the evidence of prosecution witnesses,
statement of the accused as contemplated under Section 313 of
the Code of Criminal Procedure was recorded. The accused,
though denied all the incriminating circumstances made against
him, did not adduce any evidence on his side.
5. Based on the aforesaid pleadings, the learned
Sessions Judge considering both oral and documentary
evidence on record, answered the point framed for
consideration in the affirmative holding that the prosecution
proved beyond reasonable doubt that, on 20.08.2012 between
3.00 to 3.30 am, on Irwin-Halladakeri Road, 1st Main junction,
in front of Sadhu Hotel, when the deceased Basavashetty was
sleeping near the steps out side the Hotel, the accused with an
intention to commit murder, fisted on the face, kicked with his
leg on the body of the deceased and pushed a big stone slab on
CRL.A No. 851 of 2020
his head and committed murder and thereby committed an
offence punishable under Section 302 of the Indian Penal Code.
Accordingly, by the impugned judgment of conviction and order
of sentence, sentenced the accused to undergo rigorous
imprisonment for life and to pay fine of `5,000/-, in default, to
undergo simple imprisonment for six months, for the offence.
Hence, the appellant/accused filed the present Criminal Appeal.
6. We have heard the learned counsel for the parties.
7. Sri S.Rajashekar, learned counsel for the
appellant/accused contended with vehemence that the
impugned judgment of conviction and order of sentence passed
by the learned Sessions Judge is erroneous, contrary to the
materials on record, cannot be sustained and is liable to be set-
aside. He further contended that the learned Sessions Judge
failed to notice that the entire case of the prosecution is based
on circumstantial evidence. P.W.1-Venkatesh, who was
working as cook in the Hotel has only seen the dead body
around 4.45 am, though the offence is said to have been
occurred between 3.00 to 3.30 am. There are no
circumstances to implicate the accused. Admittedly, the
CRL.A No. 851 of 2020
incident occurred on 20.08.2012 and the accused was arrested
on 27.05.2013 i.e., after lapse of more than nine months. He
would further contend that the Trial Court proceeded to convict
the accused mainly on the basis of the evidence of PW.1 -
Venkatesh, the complainant and the evidence of PW5 - Syed
Farook, a witness to the seizure mahazar. In the absence of
any material, the Trial Court is not justified in convicting the
accused. He would further contend that the learned Sessions
Judge proceeded to convict the accused only on the basis of the
presumption and assumption, without any basis, which cannot
be sustained.
8. Alternatively, he contended that even if the case of
the prosecution is to be believed, when the deceased was
sleeping, the accused tried to snatch money by putting his
hand to the pant pocket of the deceased and started searching
for money. At the time, the deceased woke up and started
shouting and the accused was forced to fist on his face by his
hand and kicked with the legs and also tried to lift a size stone
slab and pushed the same on the head of the deceased.
Hence, the accused has acted in a sudden provocation and to
protect himself from others, he has committed the act, which
CRL.A No. 851 of 2020
clearly falls under Exception 4 of Section 300 of IPC. Thereby,
the prosecution has not proved the case, which attracts the
provisions of Section 302 of IPC and it falls under Section 304
Part II of IPC. As the accused is already in jail for morethan 8
years 7 months and 8 days, he may be released by granting set
off. Thereby, he sought to allow the appeal.
9. Per contra, Sri.Vijaykumar Majage, learned
Additional State Public Prosecutor while justifying the impugned
judgment of conviction and order of sentence passed by the
Trial Court contended that the unfortunate incident occurred on
20.08.2012 at about 3.00 a.m. to 3.30 a.m. when the deceased
was sleeping, the accused with an intention to snatch money
from the deceased put his hand in the pocket of the deceased
and tried to search money. When the deceased woke up and
started shouting, the accused intentionally fisted on his face,
kicked with legs and caused injuries and with an intention to
cause his death, he tried to lift the size stone and pushed the
same on the head of the deceased and thereby, the accused
committed the murder of the deceased, which attracts the
provisions of Section 302 of IPC. He would further contend that
based on Ex.P18 - the voluntary statement of the accused, he
CRL.A No. 851 of 2020
is involved in some other cases. He was arrested in some other
case and by issuing body warrant, his presence was secured
and he was arrested on 27.05.2013. Thereby, the prosecution
has explained the delay in arresting the accused by the
Investigating Officer. Based on his voluntary statement, the
Investigating Officer recovered MO1 - stone slab. He has
shown the place where he committed the offence and MOs.10
and 11 were recovered at his instance. The evidences of PW1 -
the complainant and PW5 - the witness to the spot mahazar,
clearly depicts the involvement of the accused. Thereby, the
Trial Court is justified in convicting the accused for the offence
punishable under Section 302 of IPC. The same is supported
by the evidence of Investigating Officer, medical evidence and
FSL report. Thereby, he sought to dismiss the appeal.
10. In view of the aforesaid rival contention urged by
the learned counsel for the parties, the only point that would
arise for our consideration in this appeal is:
"Whether the Trial Court is justified in
convicting the accused for the offence punishable
under Section 302 of IPC and sentencing him to
undergo imprisonment for life and to pay a fine of
CRL.A No. 851 of 2020
Rs.5,000/- and whether the accused has made out
a case for interference with the judgment of
conviction and order of sentence, in the peculiar
facts and circumstances of the case?"
11. We have given our anxious consideration to the
arguments advanced by the learned counsel for the parties and
perused the entire materials on record including the Trial Court
records, carefully.
12. This Court being the Appellate Court, in order to re-
appreciate the entire materials on record, it is relevant to
consider the evidence of the prosecution witnesses and the
documents relied upon.
(i) PW1 - Venkatesh is the complainant. He has
deposed that since 15 years he has been working
as a cook at Sadhu hotel. About two years back, in
the early morning, when he came outside the hotel,
he found one person lying dead in a pool of blood
and there was a stone slab on his face. He
intimated the same to the Hotel Manager and on his
instructions, he lodged the complaint Ex.P1. He
has identified MOs.1 to 5. He has stated in his
examination-in-chief that he has not seen the
deceased before sleeping in front of the hotel and
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CRL.A No. 851 of 2020
he was not aware as to who threw the stone on the
face of the deceased. He further deposed in the
cross examination that some unknown person with
some motive might have dropped the stone on the
face of the deceased and he was not aware as to
how it happened and he has not even heard the
sound of screaming. As usual, when he opened the
door at 5.45 a.m. he had seen the dead body.
Nothing has been elicited in his cross examination
to disbelieve his version.
(ii) PW2 - Krishnarao is the witness to Ex.P3 - spot
mahazar and Ex.P4 - inquest mahazar. He has
supported the case of prosecution.
(iii) PW3 - Rama is the owner of Annapurneshwari
Tiffins. He has deposed that he know the accused.
He was called to Lashkar Police Station about 2
years back. The accused was in the police station.
When the accused informed that he will show the
place of occurrence, himself, CW10 and the police
went along with the accused in the police jeep.
Accordingly, the accused showed the place of
occurrence. He has identified MOs.1, 3 to 5. He
has supported the case of prosecution.
(iv) PW4 - Siddamma is the wife of the deceased. She
has deposed that her husband was doing coolie
work in Mysuru and about 2 years back, he had
been to coolie work, but has not returned back. On
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CRL.A No. 851 of 2020
seeing the photo - Ex.P1, she has identified the
deceased as her husband. She further deposed in
the cross examination that she does not know as to
what was the work that was being done by her
husband. The police came to her house about 2
years back and she was in the house. After seeing
the photo, she has identified her husband and she
went to the mortuary and saw the dead body of her
husband.
(v) PW5 - Syed Farooq is the witness to the spot
mahazar Ex.P6 and seizure mahazar Ex.P7. He has
supported the case of the prosecution. He has
identified MO.10 - shirt and MO.11 - jeans pant.
He has deposed that the said material objects were
recovered at the instance of the accused.
(vi) PW6 - Ramesh is the Head constable. He has
deposed that he was working as Head constable
since 5 years in Lashkar Police Station. On
23.08.2012, the wife of the deceased came to the
police station to identify the dead body.
Accordingly, she was taken to mortuary as per the
instructions of the police. She identified the dead
body belonging to her husband. He has also
identified Mos.3, 4, 5, 9 and 12. He has supported
the case of prosecution.
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CRL.A No. 851 of 2020
(vii) PW7 - Nagabhushan is the Head Constable. He has
deposed that he was working as Head Constable
since 6 years in the Lashkar Police Station. He has
deposed that he was deputed to trace the
whereabouts of the family members of the
deceased and accordingly, on due search, he
identified the whereabouts of PW4. He went to her
house and showed the photo of the deceased and
the wife of the deceased has identified the photo as
that of her husband. He has supported the case of
prosecution.
(viii) PW8 - Shabeer Hussain is the Police Sub Inspector
of Mandi Police Station. He apprehended the
accused in another case in Crime No.130 of 2013
and on the basis of information that the accused
admitted that he has committed the crime in the
present case, he was produced under body warrant.
(ix) PW9 - Kruthika is the Scientific Officer. She has
deposed that she examined 4 items and deposed
that item Nos.1 to 3 contains the alcohol and no
poison was found. 26.35 mg alcohol was found in
100 ml blood in his body. Accordingly, she has
issued Ex.P8 - FSL report.
(x) PW10 - Onkarappa is the Police Inspector of
Lashkar Police Station. He has deposed that he
received information from PW1 on 20.08.2012 and
registered the case in Crime No.98 of 2012 as per
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CRL.A No. 851 of 2020
Ex.P1 and FIR as per Ex.P9. He drew the spot
mahazar - Ex.P3, prepared sketch as per Ex.P10
and Ex.P11 - police annoucement copy. He has
supported the case of prosecution.
(xi) PW11 - Chandrashekar is the Director and Dean of
Department of Forensic Medicine, Chamarajanagar.
He has deposed that he has been working as Head
of Legal Medical Department from 06.09.2007 to
10.02.2014. He has deposed that he conducted
post mortem examination of the deceased from
2.00 p.m. to 3.00 p.m. and found that there were 7
external injuries and accordingly, issued post
mortem report as per Ex.P12. He also opined
regarding MO1 as per Ex.P13 that the death was
due to shock and hemorrhage as a result of crush
injury on the head sustained. He has supported the
case of prosecution.
(xii) PW12 - Radha is the Scientific Officer who
examined item Nos.1 to 10 and issued Ex.P14. She
deposed that item Nos.1, 2, 4, 6,7, 8, 9 and 10
were stained with human blood. She also deposed
that she examined Mos.10 and 11 - shirt and pant
and issued Ex.P15 and opined that the presence of
blood was also detected in Mos.10 and 11.
(xiii) PW13 - Nagaraju is the Assistant Commissioner of
Mysuru Mahanagara Palike. He has deposed that
on the requisition made by the police, he has
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CRL.A No. 851 of 2020
prepared sketch of the spot as per Ex.P16. He has
supported the case of prosecution.
(xiv) PW14 - Rajanna is the Police Inspector of Mandi
Police Station. He has deposed that on the
information about the accused relating to Crime
No.130 of 2013, he along with other staffs went to
the spot and on enquiry, the accused revealed that
he is also involved in the present case. Thereafter,
he investigated the matter after recording the
voluntary statement of the accused. He filed the
charge sheet against the accused and recovered
MOs.10 and 11. He has supported the case of the
prosecution.
(xv) PW15 - Prabhakar Rao Sinde is the Deputy
Superintendent of Police. He took case papers of
this case from PW10 and conducted inquest
mahazar - Ex.P4 and recovered Mos.1, 2, 6, 7 and
8. He also recorded the statement of the accused
and filed charge sheet. He has supported the case
of prosecution.
Based on the aforesaid oral and documentary evidence on
record, the learned Sessions Judge proceeded to convict and
sentence the accused for the offences punishable under Section
302 of IPC.
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CRL.A No. 851 of 2020
13. The gist of the complaint as per Ex.P1 is that PW1
was working in Sadhu hotel for more than 12 years. A day
prior to the date of incident, as usual he slept at 9.00 p.m. and
woke up at 5.45 a.m. on the next day and opened the door and
found the body of a male person and there were injuries and
the blood was oozing and the person had died. The same was
intimated to the owner of the hotel and on his instructions, he
lodged the complaint to the jurisdictional police.
14. The case of the prosecution is that on 20.08.2012 in
between 3.00 a.m. to 3.30 a.m. at Irwin Halladakeri road, 1st
main junction, in front of Sadhu hotel steps, when the deceased
was sleeping, the accused with an intention to snatch money, if
any, from the deceased, put his hand into the pant pocket of
the deceased and when he was trying to search, the deceased
woke up and started shouting. The accused forcibly fisted on
his face and kicked with his leg and caused injuries.
Thereafter, he tried to lift the size stone and as he could not lift
the stone, he pushed the same on the head of the deceased.
Admittedly, there are no eye witness to the incident, as the
incident occurred during the midnight at about 3.00 a.m. to
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CRL.A No. 851 of 2020
3.30 a.m. PW1 was the first person who saw the dead body of
the deceased lying in front of the hotel. The case is based on
the circumstantial evidence. Though there are 15 witnesses
examined by the prosecution, none of the witnesses have
spoken to about the involvement of the accused. Based on the
voluntary statement given by the accused in the case relating
to Crime No.130 of 2013 of Mandi Police Station, the
Investigating Officer in the present case obtained body warrant
and arrested the accused on 27.05.2013. On the basis of
voluntary statement of the accused, the Investigating Officer
recovered Mos.10 and 11 at the instance of the accused.
15. Though the unfortunate incident occurred on
20.08.2012 in between 3.00 a.m. to 3.30 a.m., when the
deceased was sleeping, the accused with an intention to snatch
money put his hand to the pant pocket of the deceased and
when the deceased started shouting, the accused was provoked
and fisted on the face of the deceased with his hand and kicked
with legs and he pushed the size stone on the head of the
deceased. But it was not with an intention to murder the
deceased, as the accused was totally a stranger to the
deceased. Admittedly, at the first instance, the complaint was
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CRL.A No. 851 of 2020
lodged against the unknown person. Only on the basis of
voluntary statement of the accused, he was arrested under the
body warrant.
16. It is the contention of the prosecution that the
accused has fisted forcibly on the face of the deceased and
kicked with legs and caused injury by picking size stone and
dropping the same on the head of the deceased but it was
because of the provocation made by the deceased. When the
deceased started shouting, the accused might be in a fear that
he will be catch hold by some persons, forcibly fisted on the
face of the deceased, thereby, the offence clearly falls under
Exception 4 of Section 300 of IPC, which reads as under:
"300. Murder: xxxxx
Exception 1: xxxxxx
Exception 2: xxxxxx
Exception 3: xxxxxx
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 having taken undue
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CRL.A No. 851 of 2020
advantage or acted in a cruel or
unusual manner.
17. On careful perusal of the said provision makes it
clear that 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 having taken
undue advantage or acted in a cruel or unusual manner. It
clearly indicates that the offence falls under Section 304 Part II
of IPC, for which the punishment is imprisonment for life or
imprisonment of either description for a term which may extend
to ten years and shall also be liable to fine. If the act done, by
which the death is caused with an intention of causing death, or
of causing such bodily injury as is likely to cause death is
punishable with imprisonment of either description for a term
which may extend to ten years, or with fine, or with both and if
the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death or to cause
such bodily injury as is likely to cause death.
18. To invoke the provisions of Exception 4 to Section
300 of IPC, four requirements must be satisfied:
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i) It must be a sudden fight;
ii) There should no premeditation;
iii) The act must be done in a heat of
passion; and
iv) The assailant should not have taken
any undue advantage or acted in a
cruel manner.
19. The materials on record disclose that, when the
accused tried to put his hand in the pant pocket of the
deceased, the deceased woke up and started shouting and in
the heat of passion, the accused assaulted with his fist on the
face of the deceased and kicked with legs and caused injuries
by pushing the stone on the head of the deceased. It was the
deceased who provoked the accused and the accused has not
taken any undue advantage nor acted in a cruel manner which
clearly indicates that the case falls under Exception 4 of Section
300 IPC, thereby, the accused inflicted injuries on the deceased
with an intention to cause the death of the deceased. Hence,
the case falls under Section 304 part II of IPC and not under
Section 302 of IPC.
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20. To prove that the accused is involved in homicidal
death of the deceased as already stated supra, there is no
direct evidence nor any evidence adduced by the prosecution to
prove the involvement of the accused in causing the death of
the deceased, but the fact remains that the accused has
admitted with regard to the recovery of item Nos.10 and 11.
The material on record clearly depicts that the basic intention of
the accused was to snatch money, if any, from the deceased
and as such, he has put his hand to the pant pocket of the
deceased and tried to snatch money. When the deceased woke
up suddenly and started screaming, the accused provoked from
the screaming by the deceased and he fisted his hand to the
face of the deceased and kicked with legs and tried to lift the
size stone and when it was not possible to lift the stone, he
pushed the same on the head of the deceased, which clearly
depicts that there was no intention on the part of the accused
to cause the death and it has happened due to the sudden
provocation of screaming by the deceased and the incident had
happened without any pre-meditation. Therefore, the provision
of Section 302 of IPC is not applicable. The said material
evidence is not at all considered by the learned Sessions Judge
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while convicting the accused for the offence punishable under
Section 302 of IPC.
21. The material on record clearly depicts that the
imprisonment for life under the provision of Section 302 of IPC
is dis-proportionate to the offence committed by the accused.
In fact, the police could have framed the charge against the
accused under Section 394 of IPC and the Trial Court ought to
have charged under Section 392 of IPC and not under Section
302 of IPC. But the learned Sessions Judge framed charge for
the offence punishable under Section 302 of IPC and proceeded
to convict the accused without there being any evidence and at
the most, the accused is liable to be convicted under the
provisions of Section 304 Part II of IPC.
22. For the reasons stated above, we answer the point
raised partly in the affirmative, holding that the Trial Court is
not justified in convicting the accused under the provisions of
Section 302 of IPC and to undergo imprisonment for life and
the accused has made out a case for interference with the
impugned judgment of conviction and order of sentence passed
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by the Trial Court and thereby, he is liable to be convicted
under the provisions of Section 304 Part II of IPC and to
undergo imprisonment for the period of 8 years, which he has
already undergone.
23. In view of the above, we pass the following:
ORDER
(i) Criminal Appeal filed by the accused is hereby
allowed in part.
(ii) The impugned judgment of conviction dated
25.04.2017 and the order of sentence dated 26.04.2017 made
in SC No.2 of 2014 by the I Additional Sessions Judge at
Mysuru, convicting the accused to undergo imprisonment for
life for the offence under Section 302 of IPC is hereby modified.
(iii) The accused is convicted under the provisions of
Section 304 Part II IPC and sentenced to undergo
imprisonment for the period of 8 years and to pay a fine of
Rs.5,000/- in default to pay fine, to undergo simple
imprisonment for a period of 1 year 6 months.
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(iv) The accused is entitled for set off as provided under
Section 428 of Cr.P.C.
Registry is directed to send back the Trial Court records,
with a copy of this judgment.
Since the main appeal is decided on merits, IA.1 of 2021
filed for suspension of sentence and bail is disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
Page Nos. 1 to 5 Kcm
6 to end *bgn/-
