Karnataka High Court
Krishnamurthy vs State Of Karnataka on 9 February, 2024
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CRL.A No. 1455 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1455 OF 2017
BETWEEN:
KRISHNAMURTHY
S/O MUNISHAMI @ DODDAMUNISWAMY
AGED ABOUT 28 YEARS
R/O DODNAHALLI VILLAGE
HUTHURU HOBLI
KOLAR TALUK.
...APPELLANT
(BY SRI V. BHARATH KUMAR, ADVOCATE)
AND:
STATE OF KARNATAKA
BY KOLAR RURAL POLICE
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
Digitally signed by BENGALURU.
LAKSHMINARAYANA
MURTHY RAJASHRI ...RESPONDENT
Location: HIGH
COURT OF (BY SRI VIJAYAKUMAR MAJAGE, S.P.P.-II)
KARNATAKA
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 04.08.2017 PASSED
BY THE I ADDITIONAL SESSIONS JUDGE, KOLAR IN S.C.NO.37/2014,
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 302 AND 316 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 13-12-2023, COMING ON FOR PRONOUNCEMENT, THIS DAY,
VENKATESH NAIK T. J., PRONOUNCED THE FOLLOWING:
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CRL.A No. 1455 of 2017
JUDGMENT
The accused has preferred this appeal challenging
the judgment dated 04.08.2017 and sentence dated
05.08.2017 passed by I Additional Sessions Judge, Kolar
in S.C.No.37/2014. The accused faced trial for the
offences punishable under Sections 302 and 316 of IPC.
The trial Court convicted the accused for the said offences.
Hence, this appeal.
2. The case of the prosecution in brief is as under:-
The name of the deceased is Chaitra, wife of the
accused. The case of the prosecution is that the accused
had illicit relationship with deceased, thus she became
pregnant. The accused had already a wife and he was
unwilling to marry Chaitra, but, at the instance of
Panchayathdars, the accused married Chaitra, which was a
second marriage. On 27.10.2013, at around 11.00 p.m.,
the accused took Chaitra in an autorickshaw bearing
registration No.KA-07/8856 and at around 12.30 midnight,
PW-1 came to know about the death of Chaitra. The
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accused deliberately made an attempt to show that
Chaitra died in an accident, but the fact remained that the
accused intentionally committed the murder of Chaitra and
he was responsible for her death. This led to registration
of FIR and investigation relating to offences punishable
under Sections 302 and 316 of IPC.
3. The prosecution in all examined 16 witnesses as
PW-1 to PW-16 and relied on nineteen documents as per
Exs.P1 to P19. Assessing the entire evidence, the trial
Court arrived at a conclusion that the prosecution case is
based on circumstantial evidence; the prosecution has
completed the chain of circumstances such as last seen
theory, recovery of blood stained clothes of the accused,
motive behind the commission of murder and said fact was
within the knowledge of the accused as contemplated
under Section 106 of Indian Evidence Act, the prosecution
was able to prove the place of occurrence, seizure of
autorickshaw and the death of Chaitra as homicidal, which
is corroborated by the medical evidence of PW-15
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Dr. J. Kiran, who opined that the death of Chaitra was due
to strangulation. The trial Court also opined that the
incident had occurred during odd hours and there was
possibility of no other person other than the accused to
remain in contact with deceased Chaitra. But, the accused
failed to explain the incriminating circumstances and the
fact that was within his knowledge, under Section 313 of
Cr.P.C and he did not offer any explanation as to how
deceased Chaitra had sustained contusion marks on her
left and right cheek as per the post mortem report.
Accordingly, the trial Court drew reasonable inference
against the accused and the accused failed to offer any
satisfactory explanation. Further, the accused intentionally
committed the murder of deceased Chaitra, who was six
months pregnant and he also intentionally caused the
death of an unborn child, and thereby he is guilty of
offences punishable under Sections 302 and 316 of IPC.
4. Assailing the findings of the trial Court,
Sri V. Bharath Kumar, learned counsel for the accused
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argues that the trial Court committed an error in drawing a
conclusion that the prosecution has been able to prove the
chain of circumstances. Elaborating his argument, he
submitted that the evidence of PWs-4 to 7 and PWs-9 to
11, who are independent witnesses have not supported
the prosecution case. As per the evidence of PWs-1 to 3,
who are the father, mother and uncle of deceased Chaitra
respectively, would not establish the relationship between
the accused and the deceased and their evidence discloses
an element of suspicion about the relationship between
them. It is elicited from PWs-1 to 3 that during the
lifetime of first wife of accused, accused solemnised his
second marriage with Chaitra. None of the prosecution
witnesses has stated about the incident nor they have
witnessed the incident and hence, the chain of
circumstances is also not completed. It is contended that
the accused himself was injured and hospitalized and soon
after the accident, the accused did not escape from the
spot, he himself took Chaitra to the hospital in an
ambulance.
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5. It is contended that the motive behind the
commission of murder of Chaitra was not established. At
the time of incident, Chaitra was living in the house of
PW-3 and hence, nobody had seen Chaitra in the company
of accused prior to her death. Further the spot, seizure
and inquest mahazar witnesses turned hostile to the case
of the prosecution and hence, the manner of seizure is
also not proved in accordance with law.
6. In support of his contentions, learned counsel for
the appellant relied on the following decisions:-
1) NAGENDRA SAH vs. THE STATE OF
BIHAR reported in (2021) 10 SCC 725;
2) ASHOK vs. STATE OF MAHARASHTRA
reported in (2015) 4 SCC 393; and
3) SHIVAJI CHINTAPPA PATIL vs. STATE
OF MAHARASHTRA reported in (2021) 5
SCC 626.
7. Sri Vijayakumar Majage, learned SPP-II appearing
for respondent State argues that the Medical Officer has
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clearly stated that the death of Chaitra was due to
compression of neck and as per the IMV Report, except
head lamp and wind shield, other parts of the
autorickshaw were not damaged, hence, the contention of
accused would get falsified. It is contended that the
accused and deceased were living together and on the day
of incident, the accused took Chaitra in his autorickshaw
and on the way to hospital, he committed her murder by
pressing her neck with his hands and turtled his
autorickshaw and gave it a colour of accident. The IMV
Inspector PW-12 has stated that the accident was not due
to any mechanical defect. The Medical Officer has clearly
stated about the injuries on the person of deceased
Chaitra. The evidence of Investigating Officer stands
corroborated from the testimony of the prosecution
witnesses. The recovery is also proved. The post mortem
report indicates that the death of Chaitra is due to
compression of neck. These are the facts that the trial
Court has considered to hold that the circumstances have
stood proved. In this view, there are no reasons to
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interfere with the well reasoned judgment of the trial
court.
8. We have considered the arguments and perused
the entire evidence both oral and documentary. If we take
entire glimpse of the evidence, it is evident that on
28.10.2013, PW-14 Sub Inspector of Police, Kolar Rural
Police Station, received the complaint and registered the
case. Immediately, he went to the spot and saw the
injuries on the dead body of Chaitra.
9. The learned counsel for the accused contended
that the death of Chaitra was accidental and not homicidal
one. In view of the submissions made by learned counsel
for the accused, let us examine whether the death of
Chaitra was homicidal or accidental.
10. PW-1 D. P. Ramesh and PW-2 Manjula being the
parents of deceased Chaitra have stated that on the date
of the incident, their daughter Chaitra was found dead
near the mango grove and the accused had given false
information that Chaitra died in an accident, later they
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came to know that the accused committed the murder of
Chaitra by strangulation.
11. In order to corroborate their oral testimonies, the
prosecution examined PW-15 Dr. J. Kiran to ascertain as
to whether the death of Chaitra was homidical or
accidental. PW-15 Dr. J. Kiran has stated that on
28.10.2013, he conducted post mortem examination over
the dead body of Chaitra. On dissection of neck by
bloodless method, it was found that there were blood
extravasations over strap muscle, thyroid with fracture of
underlying thyroid cartilage. He noticed external injuries
such as contusions over the right cheek measuring 5 x 4
cms and the left cheek measuring 5 x 3 cms, abrasion
over front of right knee measuring 2 x 1 cms and abrasion
over front of left leg in its middle third measuring
3 x 3 cms. During the post-mortem of the dead body, on
opening the uterus internally, it showed a male foetus
measuring 45 cm in length and weighed 2250 gms. As per
the opinion of the Doctor, the death of Chaitra was due to
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compression of the neck. He further opined that the uterus
measuring 27cm x 18cm x 6cms and foetus was 45 cms in
length was approximately eight - nine months of gestational
age. The foetus did not show any signs of life. Accordingly,
the Doctor issued post mortem report vide Ex-P9 and his
report as to the foetus vide letter Ex-P12. The Doctor has
stated that if a person is strangulated by hands, the injuries
mentioned in Ex-P9 are possible. The Doctor has specifically
denied the suggestions that compression of neck is possible
if an auto falls on a person.
12. It is not the case of the prosecution that the
autorickshaw fell on deceased Chaitra. The defence version
shows that accused and deceased were travelling in an
autorickshaw and it turtled and deceased Chaitra sustained
injuries and succumbed to the injuries. But as per the IMV
report, the incident was not due to any mechanical defect of
the autorickshaw and hence the injury sustained by
deceased Chaitra does not correlate with the IMV report.
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13. PW-8 Dasappa the witness to inquest mahazar
Ex-P6 stated that police conducted inquest panchanama
on the dead body of Chaitra. The accused has taken
contention that the cause of death of Chaitra was due to
accident and hence, she succumbed to the injuries and
accused also sustained injuries, thus, he was admitted to
hospital for treatment.
14. In order to substantiate said contention, the
accused has not placed any material and the investigating
officer has not placed any such material to establish that
Chaitra died on account of accidental injuries. In the
absence of such material, the prosecution was able to
prove from the oral evidence of PWs-1, 2, 8 and the
evidence of the Doctor coupled with post mortem report
Ex-P9 and the letter of Doctor(Ex-P12) that the death of
Chaitra was homicidal, consequently, the foetus did not
have life.
15. Further, the prosecution relied upon the evidence
of PW-12 G.M. Suresh who is the Motor Vehicles Inspector,
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who inspected the autorickshaw bearing registration
No.KA 07/8856 and noticed the following:-
1. Front wind screen glass broken;
2. Left side head lamp broken;
3. Front wheel mud guard broken;
4. Front right side indicator broken; and
5. Driver compartment platform bent upwards.
Hence, PW-12 tested the autorickshaw on the road
and found the brake system in working order.
Accordingly, he issued his IMV report as per Ex-P8. As per
the report, the incident was not due to any mechanical
defect of the autorickshaw.
16. Now the prosecution must prove that the accused
committed murder of Chaitra and none else. In order to
establish this aspect, the prosecution is relying upon
circumstantial evidence.
17. Where a case rests squarely on circumstantial
evidence, the inference of guilt can be justified, only when
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all the incriminating facts and circumstances are found to
be incompatible with the innocence of the accused. The
question of motive of the accused assumes importance in
the case based on circumstantial evidence. The
prosecution relied upon the following circumstances:-
a. Motive,
b. Last seen theory; and
c. Fact within the knowledge of the accused.
18. So far as motive is concerned, the prosecution in
order to prove the motive has taken up the contention that
the accused had illicit relationship with Chaitra, thus she
became pregnant and at the intervention of villagers and
panchayathdars, the accused married Chaitra. As accused
was not willing to marry Chaitra, he developed ill will
against Chaitra.
19. In order to prove the aspect of motive,
PW-1 D.P. Ramesh, father and PW-2 Manjula, mother of
deceased Chaitra have stated that the marriage of Chaitra
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with the accused took place about two years ago as
Chaitra had become pregnant prior to marriage and the
accused was responsible for said pregnancy. Therefore,
they convened a panchayath and at the intervention of
the panchayathdars, the marriage of Chaitra was
performed with the accused. They were aware of first
marriage of the accused. Soon after the marriage, Chaitra
and accused were residing in their house for 20 days and
due to lack of space, they started residing in the house of
his brother-PW-3, where, the couple lived for four days
and during that time, as deceased Chaitra developed
stomach ache, without informing anyone, the accused took
Chaitra in an autorickshaw to the hospital. During midnight,
at 12.30 a.m., one security guard of R.L. Jalappa Hospital
informed them that the autorickshaw was damaged and
the accused had been admitted in the hospital for injuries
sustained in the accident. Thereafter, PWs-1 and 2 came
to know that Chaitra fell into a ditch at the time of accident
and as they went in search of Chaitra, they found her dead
body near the mango grove. They came to know that
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the accused had committed the murder of Chaitra by
strangulating her and falsely informed that it was an
accident. Therefore, PW-1 lodged the complaint as per
Ex.P1, the police visited the spot and drew mahazar as per
Ex.P2.
20. PW-3 Nagaraju, the elder brother of PW-1 has
stated that Chaitra and accused were residing together in
his house. On the day of incident, at 10.30 p.m., the
accused took Chaitra in his autorickshaw to R.L. Jalappa
hospital on the pretext that Chaitra was suffering from
stomach ache and his evidence is of more relevance as he
had seen the accused with Chaitra in an autorickshaw
going towards the hospital. He has stated that accused
developed illicit relationship with Chaitra due to which
Chaitra became pregnant and after panchayath was held,
the accused agreed to marry Chaitra. Hence, they
performed the marriage of Chaitra with the accused. After
the marriage, the accused and Chaitra were residing in the
house of PW-1 and due to lack of space in the house of
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PW-1, the accused and Chaitra were residing in his house.
At around 12.00 midnight, PW-8 Dasappa informed that
Chaitra died near the ditch by the side of the road. Hence,
PW-3 visited the spot and saw the dead body. The
evidence of PWs-1 to 3 reveals that on the date of the
incident, the accused took Chaitra in his autorickshaw on
the pretext to visit hospital and had given the colour of
offence as accident. The evidence of PWs-1 to 3 clearly
reveals that the accused was unwilling to marry Chaitra
and in order to eliminate Chaitra, he took her in the
autorickshaw. Thus, the prosecution has proved the
motive of the accused in committing the crime.
21. The second ground on which the prosecution has
placed reliance is the 'last seen theory'. It is to be noted
that there are no eye witnesses to the incident to state
that deceased Chaitra was last seen in the company of the
accused prior to her death. The 'last seen theory' comes
into play where the time gap between the point of time
when the accused and the deceased were last seen alive
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and when the deceased is found dead is so small that
possibility of any person other than the accused person
being the author of the crime becomes impossible. It
would be difficult in some cases to positively establish that
the deceased was last seen with the accused when there is
long gap and possibility of other person coming in between
exists.
22. So far as last seen theory is concerned, PW-3
Nagaraju, the uncle of deceased Chaitra has stated that
accused and Chaitra were residing in his house and on the
day of incident, accused took Chaitra to R.L Jalappa
hospital in his autorickshaw on the pretext that Chaitra
was suffering from stomach ache and later, he came to
know about death of Chaitra, the accused has given the
colour of offence that Chaitra died on account of accidental
injuries on the spot. Further, PWs-1 and 2, the parents of
Chaitra have stated that on the day of incident, deceased
Chaitra and accused were residing in the house of PW-3 and
they came to know about death of Chaitra at 12.30 a.m.
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PWs-1 to 3 have stated that soon after the incident, the
accused escaped from the spot. The investigating officer-
PW-13 has stated that he seized the vehicle autorickshaw
used for commission of the offence from the scene of
offence and he apprehended the accused from the hospital
after his discharge. The recovery of the autorickshaw as
per Ex.P2 from the scene of offence strengthens the fact
that deceased Chaitra was last seen in the company of the
accused and there was possibility of no other hypothesis
other than the accused being present at the place of
incident.
23. It is an undisputed fact that the accused and
deceased Chaitra were residing together at the time of the
incident. On the date of the incident, dead body of Chaitra
and autorickshaw were found at the spot. As per Ex-P19
spot rough sketch, incident had occurred between
Channarayapura and Ajjapanahalli which would imply that
the accused deliberately with an intention to commit the
crime took the deceased in his autorickshaw bearing
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registration No.KA-07/8856. From the perusal of order
sheet of the trial court records, it reveals that the accused
himself has filed application for release of autorickshaw
KA-07/8856 and said autorickshaw was released to the
custody of the accused. Thus, it would imply that accused
is the RC owner of autorickshaw involved in the incident.
Therefore, the prosecution is able to establish that the
accused took Chaitra in an autorickshaw and her dead
body was found at the spot and the accused was missing
from the spot. Thus, the prosecution is able to prove the
last seen theory, place of occurrence and seizure of
autorickshaw from the spot, which are additional links in
completing the chain of circumstances. In this case, there
is positive evidence to conclude that the accused and the
deceased were last seen together.
24. So far as, invoking section 106 of the Indian
Evidence Act, the prosecution must first establish that
there was any fact within the special knowledge of the
accused. In this case, the accused and Chaitra were
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travelling in an autorickshaw and the death occurred
during odd hours. This fact was within the knowledge of
the accused, but, the accused failed to explain the
circumstances as to how the deceased sustained injuries,
such as strangulation marks. PW-15 Doctor opined that if
a person is strangulated with hands, the injuries
mentioned in the post mortem report- Ex-P9 are possible.
It has already been held that the death of Chaitra is
homicidal. The evidence on record also discloses that the
incident had occurred during odd hours and there is
possibility of no person other than the accused to have
remained in contact with deceased Chaitra.
25. Except bare denial in his statement under section
313 Cr.P.C., the accused has not offered any explanation
as to how deceased Chaitra sustained contusion marks on
her left and right cheek as per Ex.P9 post mortem report.
Obviously, this circumstance goes against him. Section
114 of the Indian Evidence Act empowers the Court to
presume the existence of any fact which it thinks is likely
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to have happened. From the perusal of evidence on
record, the only reasonable inference that could be drawn
is that the accused alone committed the murder of
Chaitra.
26. Learned counsel for the accused contended that
in the accident, the accused also sustained injuries and he
was admitted to the hospital, but none of the prosecution
witnesses has explained the injuries sustained by the
accused.
27. It is trite law that non-explanation of injuries by
the accused would be fatal to the case of prosecution
especially in case of assault, group clash or altercation, it
forms a very important circumstance. Whereas in this
case, there was no such altercation between the deceased
and accused and the accused has not placed any material
to substantiate that he too sustained injuries in the
accident. No medical record or MLC Extracts are produced
before the trial Court either by the Investigating Officer or
the accused. Therefore, there is no merit in the contention
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that non explanation of injury sustained would be fatal to
the genesis of the case of the prosecution.
28. It is the contention of learned counsel for the
accused that if this Court comes to the conclusion that the
accused is involved in the crime, it is to be taken that the
accused committed the murder in a grave and sudden
provocation and the act of the accused would attract the
offence under Section 304 Part I of IPC. It is contended
that the accused is in custody since 2014, hence, learned
counsel prayed to scale down the offence under Section
302 IPC to one under section 304 Part II IPC.
29. In the case of Anbazhagan v. State
represented by the Inspector of Police reported in
2023 SCC Online SC 857, the Hon'ble Apex Court
defined the context of true test to be adopted to find out
the intention or knowledge of the accused in doing the act
and the Hon'ble Apex Court held at para 66 as under:
''66.(1) When the court is confronted with the question what
offence the accused could be said to have been committed, the
true test is to find out the intention or knowledge of the
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accused in doing the act. If the intention or knowledge was
such that as is described in Clauses (1) to (4) of Section 300 of
the IPC, the act will be murder even though only a single injury
was caused.
To illustrate: 'A' is bound hand and foot. 'B' comes and placing
his revolver against the head of 'A', shoots 'A' in his head
killing him instantaneously. Here, there will be no difficulty in
holding that the intention of 'B' in shooting 'A' was to kill him,
though only single injury was caused. The case would,
therefore, be of murder falling within Clause (1) of Section 300
of the IPC. Taking another instance, 'B' sneaks into the bed
room of his enemy 'A' while the latter is asleep on his bed.
Taking aim at the left chest of 'A', 'B' forcibly plunges a sword
in the left chest of 'A' and runs away. 'A' dies shortly
thereafter. The injury to 'A' was found to be sufficient in
ordinary course of nature to cause death. There may be no
difficulty in holding that 'B' intentionally inflicted the particular
injury found to be caused and that the said injury was
objectively sufficient in the ordinary course of nature to cause
death. This would bring the act of 'B' within Clause (3) of
Section 300 of the IPC and render him guilty of the offence of
murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may
fall within Clauses (1) to (4) of Section 300 of the IPC, the act
of the accused which would otherwise be murder, will be taken
out of the purview of murder, if the accused's case attracts any
one of the five exceptions enumerated in that section. In the
event of the case falling within any of those exceptions, the
offence would be culpable homicide not amounting to murder,
falling within Part 1 of Section 304 of the IPC, if the case of the
accused is such as to fall within Clauses (1) to (3) of Section
300 of the IPC. It would be offence under Part II of Section
304 if the case is such as to fall within Clause (4) of Section
300 of the IPC. Again, the intention or knowledge of the
accused may be such that only 2nd or 3rd part of Section 299
of the IPC, may be attracted but not any of the clauses of
Section 300 of the IPC. In that situation also, the offence
would be culpable homicide not amounting to murder under
Section 304 of IPC. It would be an offence under Part I of that
section, if the case fall within 2nd part of Section 299, while it
would be an offence under Part II of Section 304 if the case fall
within 3rd part of Section 299 of the IPC.
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(3) To put in other words, if the act of an accused person falls
within the first two clauses of cases of culpable homicide as
described in Section 299 of the IPC, it is punishable under the
first part of Section 304. If, however, it falls within the third
clause, it is punishable under the second part of Section 304.
In effect, therefore, the first part of this section would apply
when there is 'guilty intention,' whereas the second part would
apply when there is no such intention, but there is 'guilty
knowledge'.
(4) Even if single injury is inflicted, if that particular injury was
intended, and objectively that injury was sufficient in the
ordinary course of nature to cause death, the requirements of
Clause 3rdly to Section 300 of the IPC, are fulfilled and the
offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of
cases: (i) when the case falls under one or the other of the
clauses of Section 300, but it is covered by one of the
exceptions to that Section, (ii) when the injury caused is not of
the higher degree of likelihood which is covered by the
expression 'sufficient in the ordinary course of nature to cause
death' but is of a lower degree of likelihood which is generally
spoken of as an injury 'likely to cause death' and the case does
not fall under Clause (2) of Section 300 of the IPC, (iii) when
the act is done with the knowledge that death is likely to ensue
but without intention to cause death or an injury likely to cause
death.
To put it more succinctly, the difference between two parts
of section 304 IPC is that under the first part, the crime of
murder is first established and the accused is then given
the benefit of one of the exceptions to Section 300 of the
IPC, while under the second part, the crime of murder is
never established at all. Therefore, for the purpose of
holding an accused guilty of the offence punishable under
the second part of Section 304 of the IPC, the accused
need not bring his case within one of the exceptions to
Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from
more 'possibly'. When chances of happening are even or
greater than its not happening, we may say that the thing will
'probably happen'. In reaching the conclusion, the court has to
place itself in the situation of the accused and then judge
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whether the accused had the knowledge that by the act he was
likely to cause death.
(7) The distinction between culpable homicide (Section 299 of
the IPC) and murder (Section 300 of the IPC) has always to be
carefully borne in mind while dealing with a charge under
Section 302 of the IPC. Under the category of unlawful
homicides, both, the cases of culpable homicide amounting to
murder and those not amounting to murder would fall.
Culpable homicide is not murder when the case is brought
within the five exceptions to Section 300 of the IPC. But, even
though none of the said five exceptions are pleaded or prima
facie established on the evidence on record, the prosecution
must still be required under the law to bring the case under
any of the four clauses of Section 300 of the IPC to sustain the
charge of murder. If the prosecution fails to discharge this
onus in establishing any one of the four clauses of Section 300
of the IPC, namely, 1stly to 4thly, the charge of murder would
not be made out and the case may be one of culpable homicide
not amounting to murder as described under Section 299 of
the IPC.
(8) The court must address itself to the question of mens rea. If
Clause thirdly of Section 300 is to be applied, the assailant
must intend the particular injury inflicted on the deceased. This
ingredient could rarely be proved by direct evidence.
Inevitably, it is a matter of inference to be drawn from the
proved circumstances of the case. The court must necessarily
have regard to the nature of the weapon used, part of the
body injured, extent of the injury, degree of force used in
causing the injury, the manner of attack, the circumstances
preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a
culpable homicide a murder. The intention to cause injury or
injuries sufficient in the ordinary cause of nature to cause
death also makes a culpable homicide a murder if death has
actually been caused and intention to cause such injury or
injuries is to be inferred from the act or acts resulting in the
injury or injuries.
(10) When single injury inflicted by the accused results in the
death of the deceased, no inference, as a general principle, can
be drawn that the accused did not have the intention to cause
the death or that particular injury which resulted in the death
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of the deceased. Whether an accused had the required guilty
intention or not, is a question of fact which has to be
determined on the facts of each case.
(11) Where the prosecution proves that the accused had the
intention to cause death of any person or to cause bodily injury
to him and the intended injury is sufficient in the ordinary
course of nature to cause death, then, even if he inflicts a
single injury which results in the death of the deceased, the
offence squarely falls under Clause thirdly of Section 300 of the
IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had
guilty intention or guilty knowledge in a case where only a
single injury is inflicted by him and that injury is sufficient in
the ordinary course of nature to cause death, the fact that the
act is done without premeditation in a sudden fight or quarrel,
or that the circumstances justify that the injury was accidental
or unintentional, or that he only intended a simple injury,
would lead to the inference of guilty knowledge, and the
offence would be one under Section 304 Part II of the IPC."
30. From the perusal of the decision cited supra and
the evidence of the prosecution, it establishes that the
accused had motive to commit the murder of Chaitra,
accordingly, he took Chaitra in his autorickshaw in order to
eliminate her, that too, he took her during odd hours,
caused injuries 1 to 3 as shown in post mortem report and
such injuries were sufficient in the ordinary course of
nature to cause death of Chaitra. The medical evidence
corroborates the ocular evidence of PWs-1 to 3. Therefore,
the offence falls under section 302 IPC holding that the
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accused had intention to eliminate Chaitra and he was
aware that the probability of death was more. Hence,
there is no merit in the contention of learned counsel for
the appellant that the case falls under section 304-I IPC.
31. Now if the entire evidence is assessed, what we
find is that the relationship of the accused and the
deceased is not in dispute. The fact that at the time of
incident, Chaitra was six months pregnant it is also not in
dispute. At the time of incident, the deceased and accused
were residing in the house of PW-3 is also not disputed by
the accused. As per the evidence of PWs-1 to 3, the
accused had illicit relationship with Chaitra, due to which,
she became pregnant; panchayath was held and the
accused had to marry Chaitra. They were residing in the
house of PW-1 and due to lack of space, they were
residing in the house of PW-3 and on the day of incident,
the accused had taken Chaitra along with him in an
autorickshaw. As per the opinion of the Doctor and the
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post mortem report, cause of death of Chaitra was due to
strangulation.
32. Further, the prosecution proved that at the time
of the incident, the accused was in the company of
deceased Chaitra and later she was found dead. The
prosecution further proved that the autorickshaw in
question was seized from the spot and accused is the
owner of the said autorickshaw, which leads to draw
inference about his involvement in the incident. Hence,
the prosecution was able to prove the fact that the motive
for committing the crime by the accused was that
Panchayathdars insisted him to marry Chaitra, though he
was not willing to marry her.
33. Looking into the facts and circumstances of the
present case, the accused has not placed any material so
as to attract Section 304 Part I or 304 Part II IPC. On the
contrary, the prosecution has successfully proved that the
offence would attract Section 302 of IPC. Hence, the trial
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Court has rightly convicted the accused for the offence
under Section 302 IPC.
34. Sofar as offence under section 316 IPC is
concerned, as per the prosecution case, deceased Chaitra
was pregnant of six months at the time of her death.
Accused knowing that he is likely to cause the death of a
pregnant woman does an act which, if it caused the death
of Chaitra, would amount to culpable homicide, the
accused committed murder of Chaitra and consequently
caused the death of an unborn child and hence, he is held
guilty of the offence under section 316 IPC. Hence, no
interference is called for.
Now, we pass the following:-
ORDER
1. The appeal is dismissed.
2. The judgment of conviction dated 04.08.2017
and sentence dated 05.08.2017 passed by
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I Additional Sessions Judge, Kolar in
S.C.No.37/2014 is confirmed.
3. Registry is directed to send back the trial court
records with a copy of this judgment.
Sd/-
JUDGE
Sd/-
JUDGE
MN
