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CASE NO.: Appeal (crl.)  995-996 of 2002

PETITIONER: State of Karnataka

RESPONDENT: Khatu @ Hanumantharaya

DATE OF JUDGMENT: 09/07/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Challenge in these appeals is to the judgment rendered  by a Division Bench of the Karnataka High Court. By the  impugned judgment while believing the evidence of witnesses  and the dying declaration recorded, the High Court was of the  view that the conviction of the accused respondent was one  punishable under Section 304 Part II of the Indian Penal Code,  1860 (in short the ’IPC’) and not under Section 302 IPC. Since  the evidence of the witnesses and the dying declaration have  been  accepted the only question that remains to be  considered is whether the High Court was justified in holding  that the case related to Section 304 Part II and not Section  302 IPC.  

2.      The State of Karnataka questions correctness of the  judgment.  Learned counsel for the respondent supported the  impugned judgment.    3.      The only reason indicated by the High Court is as under:  

"The entire narration at Ex.P.10 would point  out that the accused got wild when the  deceased questioned his wife, who is the sister  of the accused. This shows that there is no  pre-mediation or a motive for the accused to  kill the deceased. On seeing the admonition  the accused lost control and chased his  brother-in-law. But by doing this, he had the  knowledge that this action would definitely end  up in the death of his brother in law. The  knowledge of his action is clearly established  from the material on record. Therefore, the  offence do not fall under Section 304 IPC i.e.  culpable homicide amounting to murder, but it  is an offence falling under Section 304 Part II  IPC."

4.      The reasoning of the High Court is patently erroneous  and does not disclose the application of mind. It is not  conceivable as to why the person would chase another who  had not committed any wrong to him and then set him on fire.  The dying declaration goes to show that the accused got wild  when the deceased questioned his wife who is the sister of the  accused. The High Court found that there was no pre

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meditation to kill the accused and on seeing the admonition  the accused lost control and chased the deceased and set him  to fire by pouring kerosene on him.  The High Court was of the  view that the accused had knowledge that his action is  definitely end up in the death of the deceased. On these  observations the High Court held that the case was covered  under Section 304 Part II IPC and not under Section 302 IPC.

5.      The order impugned is very confusing, does not disclose  application of mind and it is not clear as to why the High  Court felt that the case is covered under Section 304 Part II  IPC and not under Section 302.  Since practically no reason   has been indicated to justify the conclusion the order of the  High Court is clearly unsustainable. We set aside the order of  the High Court. The appeals are allowed and the respondent is  convicted and sentenced for rigorous imprisonment for life.