PARMINDER SINGH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal is by the sole accused being aggrieved of the judgment in S. C. No. 45/2002 on the file of the IVth Addl. City Civil and Sessions judge, Mayohall Unit, Bangalore City dated 3-1-2003 convicting him for the offence under S. 302. I. P. C. and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for a period of two months.

(2.) THE case of the prosecution in brief are as follows : the deceased-Kamal Monga a native of ghaziabad, Uttar Pradesh, had taken admission in M. V. J. College of Engineering, whitefield, Bangalore. So also the accused parminder Singh the native of Malikpur, punjab State had also taken admission in m. V. J. College of Engineering, Whitefield, bangalore. Both were studying in final year b. E. and were residing in premises bearing no. 120/21, 1st Cross, Anandanagara, marathahalli, Bangalore having taken it on rental basis from P. W. 2 Smt. Surinder Kaur. The accused-Parminder Singh and the deceased-Kamal monga are close friends studying in final year B. E. both residing in the said house. That an unhappy incident of quarrel took place between the accused-Parminder singh and the deceased-Kamal Monga on 13-10-2001 at about 12. 15 p. m. ended in the murder of Kamal Monga due to stab by the accused-Parminder Singh. The incident of quarrel and stabbing was inside the house. P. W. 2 Smt. Surinder Kaur on hearing the screaming rushed to the spot and saw the accused-Parminder Singh and the deceased-Kamal Monga have caught hold of one another and there was severe bleeding, then she called out P. W. 1 Parvinder Deep Singh a student who was residing in the adjacent room. So also P. W. 3 Ajay Katharia the friend of P. W. 1 Parvinder Deep Singh came out and saw kamal Monga had suffered with stab injuries and that the accused-Parminder Singh was holding the knife. The injured Kamal Monga was shifted to Manipal Hospital in an auto by p. W. 1 Parvinder Deep Singh, P. W. 3 Ajay katharia and Manpreeth Singh. The doctor who examined Kamal Monga declared him as dead. The Medical Officer of Manipal hospital P. W. 9 Dr. A. V. S. Srikanth sent intimation to police as per Ex. P7. P. W. 12-R. Ashok, the Circle Inspector of Police on receiving the death memo proceeded to Manipal Hospital and found the dead body in the mortuary. He recorded the complaint of P. W. 1-Parvinder deep Singh as per Ex. P1, registered a case in crime No. 292/2001 for the offence under S. 302, I. P. C. . prepared the FIR as per Ex. P8 and forwarded it to the Court through the Police constable P. W. 11 K. M. Ramesh. On the same day he visited the place of occurrence and prepared the spot mahazar as per Ex. P2 and seized the knife-MOl and Bed Sheet- MO 2 and recorded the statement of Manpreeth singh and Udayakumar. On 14-10-2001 he proceeded to the Manipal Hospital along with pancha witnesses prepared the inquest panchanama in between 9. 30 a. m. to 11. 30 a. m. as per Ex. P4. He forwarded the dead body to the Bowring Hospital through Head constable P. W. 8- H. Narasimhaiah for conducting the post-mortem examination. After post-mortem examination the Police Constable produced the clothes of the deceased mo 4-blood-stained Shirt and MO 5-Blood stained Pyjama which was seized under mahazar Ex. P. 9. On the same day he received the post-mortem report as per Ex. P5. Thereafter on the same day the accused-Parminder singh was apprehended and brought to the police station at about 7. 45 p. m. and kept him in safe custody. On 15-10-2001 he recorded the voluntary statement of the accused-Parminder Singh as per Ex. P10 and at the instance of the accused-Parminder Singh MO 3-Blanket was seized under the mahazar Ex. P3. He forwarded the seized articles to FSL for chemical examination and report and also forwarded the knife to the doctor and secured the opinion as per Ex. P6 and prepared a sketch of the scene of occurrence as per Ex. P11. After completion of the investigation submitted the charge-sheet against the accused-Parminder singh for the offence under s. 302, I. P. C. Later on received the FSL report Ex. P12 as well as Serology report as per ex. P14. Learned Sessions Judge secured the presence of the accused framed charges for the offence under S. 302, I. P. C. The accused pleaded not guilty and claimed to be tried. The prosecution in all examined P. Ws. 1 to 15, marked Exs. P1 to P14 and produced MOs 1 to 6 whereas the defence got marked as Ex. D1 - the xerox copy of the serology report. The statement of the accused was recorded under S. 313, Cr. PC. The defence is one of total denial. Learned Sessions Judge for the reasons recorded in his judgment convicted the accused for the offence under S. 302, I. P. C. sentencing him to undergo imprisonment for life and to pay a fine of Rs. 5,000/ -. It is this judgment of conviction and sentence which is question in the present appeal.

(3.) LEARNED counsel for the appellant-Sri hasmath Pasha submitted that the accused-Parminder Singh and the deceased-Kamal monga are close friends and were residing in the same room having taken admission in MVJ college of Engineering, White Field, Bangalore and were studying in final B. E. It is in the evidence of P. W. 1 Parvinder Deep Singh, p. W. 2 Smt. Surinder Kaur and P. W. 3-Ajay katharia that both the accused-Parminder singh and the deceased-Kamal Monga were the tenant under P. W. 2-Smt. Surinder Kaur and they did not have differences or ill-will and that an unhappy incident of assault took place, where it is alleged that the accused-Parminder Singh stabbed Kamal Monga with knife MO 1. It is also submitted that the incident of assault in question took place inside the room, is admitted and none of the witnesses have spoken or seen as to how the quarrel ensued. But their evidence shows that when they came out P. W. 1 Parvinder Deep Singh, p. W. 2 Smt. Surinder Kaur and P. W. 3-Ajay katharia saw the accused-Parminder Singh and the deceased-Kamal Monga have caught hold of one another and the knife was in the hand of the accused-Parminder Singh. It is also submitted that there is no motive on the part of the accused-Parminder Singh or ill-will so as to take away the life of the deceased-Kamal Monga. It is further submitted that the act of the accused-Parminder Singh is not a premeditated and as could be seen from the voluntary statement Ex. P10 it shows that the accused-Parminder Singh was due in a sum of Rs. 5,000/-, in that regard when the deceased-Kamal monga demanded for money, the quarrel took place and it is stated that the deceased-Kamal Monga slapped the accused-Parminder Singh and then he assaulted. It is also submitted that merely because of the reason that the accused-Parminder Singh in his statement under S. 313, Cr. P. C. pleaded his absence from the spot, but that itself is not a ground to hold that the accused is not entitled to claim any exceptions as provided under S. 300, I. P. C. and submitted a plea of alibi is the principles of evidence whereas the exception provided are under S. 300, I. P. C. which could be claimed by the accused if the evidence and circumstances are forthcoming and available on record. Learned counsel further submitted that in order to claim the benefit of exceptions of S. 300, I. P. C. , it is not the number of injuries that have to be looked into but the manner in which the incident of assault took place and the conduct of the accused to be considered. If the act is done under a heat of passion causing many injuries, the accused having lost control, itself is not sufficient to hold that the accused is not entitled to claim exceptions of S. 300, I. P. C. The evidence of P. W. 1 Parvinder deep Singh P. W. 2 Smt. Surinder Kaur and p. W. 3 Ajay Katharia establishes the fact that immediately on seeing the injuries on the person of Kamal Monga, he was shifted to genesys Hospital which is at a distance of km. from the room and from there the injured was shifted to Manipal Hospital where he was found dead. It is also in the evidence of P. W. 1 Parvinder Deep Singh and P. W. 3 Ajay katharia that the accused-Parminder Singh had also followed them and assisted in lifting kamal Monga to the auto. All these circumstances leads that the accused-Parminder singh did not have any such intention to cause the murder of the deceased-Kamal Monga and that the said act was done without any premeditation in the heat of passion and, therefore, falls under Exception 4 of S. 300, I. P. C. It is also sought to be contended that while in the act of deprivation of the power of self-control, the accused might have assaulted and committed the murder which falls under exception No. 1. Therefore, prays to set aside the conviction recorded for the offence under s. 302,i. P. C. and to convict tne accused for the offence under S. 304, Part I or Part II as the case may be.