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, the Bombay High Court held [Mittu @ Mithu Bholi Pareda].
A division bench of Justices Revati Mohite Dere and Sharmila Deshmukh, therefore, refused to alter the conviction of a truck cleaner from murder to culpable homicide not amounting to murder.
The bench also upheld the sentence of life imprisonment handed down to him.
"We find that the deceased was not assaulted in the heat of passion; that the assault took place much after the quarrel between the Appellant and the deceased; that the Appellant assaulted him when he was asleep; that there was an assault with force on the head, chest and neck of the deceased 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 held in its order passed on September 27.
As per the facts of the case, on Independence Day in 2011, the appellant and the deceased, both acquaintances, were drinking liquor since morning.
The appellant took the mobile phone of the deceased and kept it inside a box in his truck. The deceased informed his other friends about the same and when one of the friends called on his number, the phone rang in the truck.
A quarrel ensued and the appellant claimed that the keys of the box in which the phone was kept were with the truck driver. They all headed to the driver's house but on their way they had a fight due to which the deceased and his friend returned to the truck and the appellant did not.
Subsequently, while the deceased was sleeping in the rear portion of the truck, the appellant returned with a wooden log and assaulted the deceased.
His friends heard the ruckus and when they reached the truck they found the appellant assaulting the deceased and blood oozing out from his mouth, eyes and nose. The appellant immediately fled the spot.
The bench, after scrutinising the entire material on record noted that the prosecution had proved the case against the appellant beyond any reasonable doubt. It noted that the material on the record directly linked the appellant to the offence.
"The motive for the offence i.e. taking of the mobile phone by the appellant and keeping it in the cabin of the truck is clearly proved through the evidence on record and the seizure panchanama shows recovery of the mobile phone from the cabin of the truck," the bench noted.
It, therefore, upheld the conviction and life sentence imposed on the appellant by a sessions court order dated July 31, 2013.
Advocate Gaurav Bhavnani appeared for the Appellant.
Additional Public Prosecutor AR Kapadnis represented the State.
[Read order]