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CASE NO.: Appeal (crl.)  335 of 2007

PETITIONER: Mallikarjuna @ Mallu

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 14/02/2008

BENCH: P.P. Naolekar & P. Sathasivam

JUDGMENT: JUDGMENT

O R D E R                   The accused-appellant was tried for the offence under Section 302 IPC before the  Court of I Additional Sessions Judge, Gulbarga, Karnataka, for committing the  murder of Satish and acquitted by the Sessions Court.  However, on an appeal  preferred by the State, the High Court of Karnataka reversed the judgment and  order of the Sessions Court and set aside the acquittal of the accused-appellant and  convicted him under Section 302 IPC and sentenced him to undergo imprisonment  for life and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo  rigorous imprisonment for one year.  That is how the accused-appellant is before us  by way of appeal under Section 2 of the Supreme Court (Enlargement of Criminal  Appellate Jurisdiction) Act, 1970.         Learned counsel for the accused-appellant has taken us through the evidence and  the judgment of the trial court as well as that of the High Court.  The prosecution  examined PW.1 to PW.15 in support of its case.  PW.1 Basavaraj, a Pan Shop-keeper  was examined as an eye witness.  Similarly, PW.2, Ambaji, was also examined as an  eye-witness.  Both PW.1 and PW.2 did not support the prosecution case and  turned  hostile. The conviction of the accused-appellant was based on the complaint (later on  treated as dying declaration) got recorded by Maruti, PW.15, Sub-Inspector of  Police, through Head Constable Subhash when Satish (since deceased) was admitted  in the hospital.  This piece of evidence is supported by the evidence of PW.4,  Hanmantha, brother of the deceased, whom the fact of incident was narrated by the  deceased naming the accused-appellant as the assailant.  The dying declaration is  further corroborated by the recovery of the blood-stained pant and shirt on the  disclosure statement made by the accused-appellant.  we do not find any infirmity in  the judgment of the High Court.         It is submitted by the learned counsel for the accused-appellant that in the facts  and circumstances of the case, the case made out by the prosecution does not fall  under Section 302 IPC as the deceased suffered only one injury and that too was  caused at the spur of the moment.           As per the case of the prosecution, on 3rd April, 1996, the deceased had taken his  elder brother’s son to the examination hall for enabling him to sit for SSLC  examination and was waiting outside the examination Centre for taking him back to  his residence.  At that time the accused-appellant approached Satish (since deceased)  near the examination hall and invited him to have a cup of tea with the accused- appellant.  Accordingly, the deceased went along with the accused-appellant in an  Auto Rickshaw.  It is further the case of the prosecution that near the H.K.E. Society  Office, the accused-appellant asked the Auto Rickshaw driver to stop the Auto  Rickshaw and both the accused-appellant and the deceased disembarked from the  Auto Rickshaw and started walking towards the Hotel.  At that time, the accused- appellant suddenly caught hold of the neck of the deceased and punched him in the  stomach and thereafter took out a button knife from his pocket and stabbed the  deceased near the left rib.  It has come in the evidence of PW.4 Hanmantha  that the  deceased was having love affairs with Jaishree PW.3.  Appellant was close relative of  Jaishree PW.3 and was not happy with the on-going affair between the deceased and  Jaishree PW.3.          It appears to us from the above facts that some hot words might have been

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exchanged between the accused-appellant and the deceased on the issue of deceased’s    relationship with Jaishree and on his retorting, they stopped the Auto Rickshaw and  got down from it and at the spur of the moment, the accused-appellant took out his  knife and caused injury to the deceased which unfortunately turned into a fatal one  and Satish died in the Hospital on the same day at night.  These facts do not indicate  any premeditation to cause the murder of Satish (since deceased).           It is further evident from the above facts that only one injury was caused although  there was enough opportunity to cause more injuries on the person of the deceased.           Having considered the facts and circumstances of the case, we are of the view that  the ends of justice will be sub-served if the conviction of the accused-appellant is  altered from under Section 302 to 304 Part II IPC.  We order accordingly.  The  accused-appellant shall undergo R.I. for 5 years.  The accused-appellant shall be  entitled for the remission of the period already undergone in jail.         The appeal stands disposed of accordingly.