The Bombay High Court recently comprising of a bench of Justices Revati Mohite Dere and Sharmila Deshmukh held that Killing a sleeping person hours after picking a fight with him, will fall under the ambit of the graver offence of murder under the Indian Penal Code (IPC) and not the lesser offence of culpable homicide not amounting to murder. (Mittu @ Mithu Bholi Pareda Versus State of Maharashtra.)
The bench refused to alter the conviction of a truck cleaner from murder to culpable homicide not amounting to murder and also upheld the sentence of life imprisonment that was awarded to him.
Facts of the case
The deceased, Utpal Chaudhari, was a truck driver and accused Mittu alias Mithu Pareda worked as the cleaner of the vehicle. On August 15, 2011, the two drank liquor the entire day and night and the next day, around 11:30 am, there was a quarrel between the two over Utpal’s missing cell phone. Thereafter, Utpal went to the rear portion of the truck and slept. A little later, Mittu went there as well and, at about 3:30 pm, some people heard shouts from the truck and rushed towards it.
The witnesses saw Mittu assaulting Utpal on his head, neck, and chest with a wooden log. Realising that people had caught him in the act, Mittu ran away. Utpal was taken to Cooper Hospital, but succumbed to his injuries later. After considering the evidence on record, the learned Sessions Judge convicted the Appellant for the offence punishable under section 302 of IPC. Therefore the present appeal.
Contention of the Parties
Learned counsel appearing for the Appellant submitted that there is no direct evidence as against the Appellant to connect the Appellant with the offence; that the entire case of the prosecution rests upon the circumstance of last seen; that there is an inordinate delay in filing the FIR; that there are discrepancies in the testimonies of the eye-witnesses; and, that the prosecution has failed to prove motive. The learned counsel for the Appellant, in the alternative, prayed for reduction of the offence from Section 302 to Section 304 Part-II of the IPC.
Learned counsel for the Appellant further submitted that the circumstances surrounding the commission of the offence must be taken into consideration, inasmuch as the Appellant and Utpal were friends; that there was no prior enmity; that at the relevant time both the Appellant and Utpal were intoxicated; and that the assault was not a premeditated assault.
Learned APP supports the impugned judgment and order and submitted that no interference is warranted; that the motive is clearly established, inasmuch as the mobile phone which was the cause of dispute between Utpal (deceased) and the Appellant was seized from the cabin of the truck; that reduction to a lesser offence is not warranted in the facts and circumstances of the case; and, that the prosecution has established the guilt of the Appellant beyond reasonable doubt.
Courts Observation and Judgment
The bench at the very outset observed, "Evidence of PW-2 and PW-5 reveals that after the quarrel about the mobile phone, the Appellant had gone to fetch the keys of the truck and Utpal had gone to sleep in the truck. Considering the fact that Appellant had assaulted Utpal while he was asleep, it is not a case of grave and sudden provocation so as to fall within the exception I to Section 300 of IPC."
The bench disposing of the appeal remarked, "Considering the evidence on record, and, applying the parameters set out in the aforesaid judgments of the Apex Court, we find that Utpal was not assaulted in the heat of passion; that the assault took place much after the quarrel between the Appellant and Utpal; that the Appellant assaulted Utpal when he was asleep; that there was an assault with force on the head, chest and neck of Utpal, which was sufficient to cause death; and, that there was no grave and sudden provocation to justify the reduction of the offence. In our opinion, the facts of the case do not warrant reduction of the offence from Section 302 to 304 Part-II."
The bench further observed, "Considering the aforesaid, we are of the opinion, that the prosecution has established the guilt of the Appellant beyond reasonable doubt by ocular evidence, which is duly corroborated by documentary evidence. We do not find any infirmity in the impugned judgment and order dated 31.07.2013 passed by the learned Sessions Court in Sessions Case No.103 of 2012 and accordingly, uphold the conviction and sentence imposed by the impugned judgment and order."
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