IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K.N.PHANEENDRA AND THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL NO.165/2016 BETWEEN:
Jayaprakasha @ Prakash S/o. Eshwarappa Aged about 55 years R/at. LIG No.80 Kariyanna Building, I Cross Vinobanagar Shimoga – 577 201.
... APPELLANT (By SRI. VENKATESH P. DALWAI, ADVOCATE.) AND:
State of Karnataka By Vinoba Nagar Police Shimoga – 577 201.
... RESPONDENT (By SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP.) THIS CRL. A. IS FILED UNDER SECTION 374(2) OF CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE :
a) GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF CONVICTION DATED 19.11.2012 PASSED BY THE LEARNED S.J., I FAST TRACK COURT AT SHIVAMOGGA IN S.C.NO.68/2012, THEREBY CONVICTING THE APPELLANT FOR THE OFFENCE P/U/S 302 OF IPC;
b) SET ASIDE THE AFORESAID JUDGMENT AND ORDER OF CONVICTION DATED 19.11.2012 PASSED BY THE LEARNED S.J., I FAST TRACK COURT AT SHIVAMOGGA IN S.C.NO.68/2012, BY ALLOWING THIS CRL. APPEAL;
c) ACQUIT THE APPELLANT/ACCUSED FOR THE OFFENCE WITH WHICH HE HAS BEEN CHARGED IN ACCORDANCE WITH LAW.
THIS APPEAL COMING ON FOR HEARING THIS DAY, K.N.PHANEENDRA J., PASSED THE FOLLOWING:
J U D G M E N T The appellant being aggrieved by the judgment of conviction and sentence passed by the Sessions Judge and I Fast Track Court at Shimoga, in S.C.No.68/2012 dated 19.11.2012, has preferred this appeal. The learned Sessions Judge has convicted the appellant for the offence under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- with default sentence.
2. We have heard the arguments of the learned counsel for the appellant and also the learned Additional State Public Prosecutor for the State.
3. We have carefully perused the judgment of the trial Court and the evidence adduced by the prosecution, both oral and documentary, before the trial Court, to bring home the guilt of the accused. We have, in fact, reappreciated the entire materials on record.
4. Learned counsel for the appellant contends before this Court that, the sole evidence of P.W.6 is available to the prosecution. The Court has to very carefully and cautiously analyse the evidence of P.W.6 who is an eye witness to the incident, to ascertain whether the offence falls under Section 302 of IPC or under Section 304 Part-I of IPC. He further submits that the evidence of the prosecution witnesses, except P.W.6 are concerned, all are hearsay and circumstantial witnesses. P.W.6 is no other than the daughter of the deceased and therefore, she is an interested witness and relative of the deceased. Therefore, her evidence has to be carefully examined. When the prosecution case revolves around the sole eye witness’s version, normally the benefit of doubt should be given to the accused. He alternatively contends before this Court, that even if the entire case of the prosecution is accepted as it is, it clearly discloses that, the accused had no premeditation when he entered the house and he in fact tried to convince his wife to eat some spicy material like `gobi manchuri’ and he in fact made her naked and thereafter, for the reasons best known to the husband and wife, a quarrel had taken place amongst them and in the heat of passion, the accused must have assaulted his wife and therefore, it attracts Section 304 Part I of IPC. He also contends that even after the said incident, the deceased survived for 18 days and doctors’ evidence discloses that the wounds were healed up and there was recovery from her bad health. Therefore, it is very difficult to draw an inference that only due to the injuries, she died. As such, taking into consideration the overall material on record, it cannot be said that the offence would fall under Section 302 of IPC.
5. Per contra, the learned Additional State Public Prosecutor submitted that, there are more than one injury on the deceased inflicted by the accused, which shows that he had intention to kill her on that particular day. Therefore, though there was no pre- meditation, but he acted in a cruel and unusual manner, therefore, it will not fall under any of the exceptions under Section 304 of IPC and as such, it falls under Section 302 of IPC. He also contends that all the witnesses, one way or the other, are relatives and neighbours of the deceased and as well as the accused, and their evidence cannot be disbelieved and their evidence is consistent and corroborated by the evidence of the eye witness – P.W.6. Therefore, for all these reasons, he submits that there is no reason to interfere with the judgment of conviction and sentence passed by the trial Court.
6. On careful perusal of the entire evidence on record and cursory look at the entire prosecution witnesses, it reveals that, the entire evidence is based on the evidence of the star witness – P.W.6. Before adverting to the evidence of P.W.6 and the doctors, we would like to state the brief factual matrix of this case.
7. It is the case of the prosecution that, the accused and deceased being husband and wife, they were residing at HUDCO House No.80, situated at Kallahalli, Vinoba Nagar, Shimoga, and deceased was working as a First Division Assistant in the Education Department. The accused was not doing any work. He was addicted to alcohol and everyday used to come to the house drunk and used to demand money from Geethamma for his vice habit. They were blessed with two children – P.W.6, Pragathi and another child – a son, who were also living along with the accused and the deceased. The matter reached its climax, when the accused came to the house on 16.02.2011 and demanded money from Geethamma and thereafter, as she did not give any money, he went back and came to the house once again in a drunken state at 11.30 p.m. and he forced the deceased to pay him money and as she refused, he made her naked and hit her on the head with hand spade, due to which she sustained severe injury to her head. Thereafter, she was admitted to Mc.Gann Hospital and thereafter, she was shifted to Manipal Hospital and then to Nanjappa Hospital. She survived for a period of 18 days and ultimately she died on 05.03.2011. On the basis of the above factual aspects, P.W.1 has lodged a report as per Ex.P.1 and the Police having registered the case in Crime No.28/11, earlier for the offence under Section 307 of IPC and the same has been converted for the offence under Section 302 of IPC after the death of the deceased as per the information under Ex.P.2 has investigated the case and laid the charge sheet.
8. The prosecution has examined as many as 26 witnesses – P.Ws.1 to 26 and got marked Exs. P.1 to P.31 and during the course of cross examination of P.Ws. 6 and 7, Exs.D.1 to D.3 were also marked. Material objects – M.Os.1 to 5 were marked. The accused was also examined under Section 313 of Cr.P.C. As he did not choose to lead any defence evidence, the trial Court proceeded with the matter and thereafter rendered the impugned judgment.
9. Before adverting to the evidence of P.W.6 and the doctors, we would like to have a cursory look at the evidence of the prosecution witnesses placed before the trial Court.
10. P.W.1 – Umadevi is the sister of the deceased, who lodged the complaint as per Ex.P.1. In fact she has categorically stated about the conduct of the deceased and the accused, particularly that the accused was addicted to alcohol and used to demand money from the deceased and she came to know about the incident on 16.02.2011 at about 12.30 in the night and she rushed to Mc.Gann Hospital and saw the injured. She has categorically stated that the injured was not in a position to speak. Nothing has been elicited in the course of cross examination so far as this aspect is concerned. In the cross examination, she has admitted that she has not stated before the Police that the accused was in drunken condition and he was demanding money from the deceased.
11. P.W.2 – Prasanna Kumar and P.W.7 – Jayamma are both husband and wife and are neighbours of the accused and the deceased. They are in fact the witnesses who actually saw the accused and the deceased on that particular day. They have categorically stated in their evidence, that on the particular day, they heard galata from the house of the accused and immediately both of them had been to the house of the accused and saw the door of the house being bolted from inside and they heard galata from inside. Immediately they kicked the door and the door opened. They saw the accused and the deceased inside the house and the deceased sustained injuries to her head and lying on the cot naked. Thereafter, the accused ran away from the said house. They enquired P.W.6 – Pragathi, the daughter of the accused and came to know that, the accused has assaulted the deceased after quarrel with a hand spade, after removing her clothes. In fact, they all shifted the injured to Mc.Gann Hospital and thereafter to Manipal Hospital. Though in the course of cross examination some contradictory materials have been elicited, but the entire factual aspects rests on these two witnesses, particularly with regard to they hearing the quarrel from the house of the deceased and they going to the house of the accused and seeing the deceased lying on the cot naked with bleeding injuries to her head. So far as this core of the prosecution evidence led by P.Ws. 2 and 7 has not been disturbed at all. Further, P.W.2 is also a witness to Ex.
P.3 - spot mahazar, under which M.O.1 – pillow was recovered by the Police.
12. P.W.3 and P.W.5 are again the neighbours of the accused. They have also stated about the drawing up of the spot mahazars – Exs.P.3 and P.4 and seizure of M.Os. 1 to 4 – blood stains on various places in the house of the accused. There is no much dispute so far as this aspect is concerned and further these materials itself will not incriminate the accused person in any manner. Therefore, P.Ws. 3 and 5 are, in our opinion, formal witnesses.
13. P.W.4 – Gurupanchakshari is the panch witness to Ex.P.5 – mahazar, under which the Police have recovered the hand spade which is marked as M.O.5. Though he has not fully supported the case, but he has supported seizure of incriminating material.
Again except giving suggestions to him, nothing has been elicited from him so as to discard his evidence.
14. P.W.8 – Thimmesha is another younger brother of the deceased. He also spoke about the motive, the conduct of the accused and the deceased quarrelling with the accused very often. Though he is not an eye witness to the quarrels, but according to him, he received the information from the deceased with regard to the quarrel between the accused and the deceased.
15. P.W.9 – M.Revanappa, also in similar fashion deposed before the Court with regard to the quarrel between the accused and the deceased because he is also a neighbour of the deceased.
16. P.W.10 – Dr. G.Rangaiah is the doctor at Mc.Gann Hospital, who treated the injured and gave Ex.P.6 - HMR to the Police and referred the injured to ENT surgeon later and he clarified that she was admitted to the Hospital on 17.02.2011 at 12.20 p.m, with bleeding injuries.
17. P.W.11 – Dr. R.D. Hegde, another doctor at Nanjappa Hospital, has stated that the injured was admitted to their hospital on 04.03.2011, but she died on 05.03.2011 due to the injuries sustained by her, and accordingly he sent intimation to Police as per Ex.P.8.
18. P.W.12 – Dr. Chidananda, is the doctor who conducted post mortem examination on the dead body of deceased – Geethamma as per Ex.P.9. He has categorically stated that there were as many as 10 injuries which were sutured and sutures were already removed. The death of the deceased has not been much disputed and it is due to the injuries sustained by her. So in our opinion, death of the deceased is homicidal as per the evidence of this witness.
19. P.W.13 – Manjula, the co-employee of the deceased has in fact stated about the conduct of the accused and the deceased. She has stated about the accused visiting the office of the deceased in the Education Department and he used to demand money from her and also used to quarrel with his wife even near the office. In the course of cross examination also there are some suggestions to this witness that she was not actually an eye witness to the quarrels between the accused and the deceased, but she denied the suggestion.
20. P.W.14 – M.D.Diwakara, is the panch witness to Ex.P.10. There is no cross examination so far as this witness is concerned.
21. P.W.15 – Dr. Subramanya, is the retired Medical Officer and he has stated about the admission of the injured to the Hospital and that he has issued out patient slip and details of the injuries sustained as per Exs.P.11 to P.14.
22. P.W.16 – Jagannatha Rao, is the Revenue Official of CMC Shimoga who has issued the house register extract pertaining to the house of the accused as per Ex.P.15. There is no dispute as far as this aspect is concerned.
23. P.W.17 – Ganesha Basavarajappa is Police Constable who watched the dead body of the deceased before sending it to post mortem examination.
24. P.W.18 – Dr. Narayana Panji, is the Neuro Surgeon working at Nanjappa Hospital and he admitted the injured on 04.03.2011 with the history of assault, and she died on 05.03.2011 and he sent intimation as per Ex.P.19.
25. P.W.19 – H.K.Basavarajappa, is the Police Constable who apprehended the accused on 18.02.2011 and produced him before the Investigation Officer as per Ex.P.21.
26. P.W.20 – Jagadeesh, is the Head Constable and he in fact assisted the Investigation Officer and collected M.Os. 1 to 4 from the spot as per Ex.P.4 – mahazar.
27. P.W.21 – Dr. Arjuna Shetty, who was working at Manipal Hospital, admitted the injured on 17.02.2011 at about 7.45 a.m. In his evidence, he has categorically stated that sufficient medical treatment was given to the injured and she was recovering and talking and walking at the time when she was discharged. On 03.03.2011 at the instance of P.W.1, the injured was discharged frm the said Manipal Hospital.
28. P.W.22 – V.S.Siddalingappa, is the Police Inspector who conducted the inquest as per Ex.P.10.
29. P.W.23 – Thukaram, is the Police Jeep Driver who received the information about the incident on 16.02.2011 and went to the spot and shifted the injured in the Police Jeep itself at 12.30 a.m. on 17.02.2011.
30. P.W.24 – T.Nagesha Shetty, is the Circle Inspector of Police who partly conducted the investigation.
31. P.W.25 – Dr. D.V.Santhosh, is the first treated doctor at 12.30 a.m. on 17.02.2011, with history of assault by her husband. Case sheet was also produced at Ex.P.14.
32. P.W.26 – Nagappa is the Police Sub Inspector who accompanied P.W.23 – Tukaram to the spot and assisted P.W.23 to shift the injured to the Hospital.
33. From the above said evidence, as rightly argued by the learned Additional State Public Prosecutor and the learned counsel for the appellant, the crux of the matter is the evidence of P.W.6. In fact all the other witnesses came to know about what actually happened in the house of the accused, through P.W.6. As we have referred to above, some of the witnesses have also immediately rushed to the house of the accused, but they did not actually see the incident of accused assaulting the deceased. But by the time they entered the house of the deceased, the deceased was lying on the cot with bleeding injuries to her head, the accused was also there and he ran away from the spot. However, they all stated that they received information about the incident from P.W.6 – Pragathi, as to what exactly happened inside the house.
Therefore, it is just and necessary for us to examine the evidence of P.W.6 in this regard.
34. P.W.6 – Pragathi is no other than the daughter of the accused and the deceased. She cannot have any interest either against her father or in favour of her mother. She has categorically stated that, prior to the incident, the accused was addicted to alcohol and used to come to the house in a drunken state and demand money from her mother. In this context, he used to assault the deceased. The deceased had also informed the above said aspects to the paternal uncle of this girl. Speaking about the incident, she has categorically stated that, on that particular day all the inmates of the house were waiting for the accused in the night. At about 10.30 p.m. the accused came to the house and demanded money. In that context, there was a quarrel taken place between the husband and wife. Again the accused went out from the house, came back again at 11.00 p.m. along with some spicy food material like `gobi manchoori’ and forced the deceased to eat the same. But she refused the same. Thereafter, the accused dragged her to the middle portion of the house (Hall) and removed all her clothes, made her naked and demanded money, but she refused for the same again. He assaulted with hand spade on her head two or three times and the deceased lost consciousness and fell on the cot. In spite of the deceased as well as this witness requesting the accused not to assault the deceased, the accused assaulted the deceased who sustained severe head injuries and thereafter she was shifted to the hospital and there is no dispute that she died on 05.03.2011.
35. In the course of cross examination it is elicited that, she has disclosed the said aspect to the Police on the next day. But she did not say about the incident to the Police on the same day itself, though the Police had visited the house and shifted the injured to the hospital. There is no evidence to show that, this witness though a child witness was tutored by anybody, but an attempt was made that she was tutored by her paternal senior uncle and aunt. However, more curiously, Ex.D.1 has been marked through this witness. Ex. D.1 discloses that she has stated before the Police that they were all sleeping in the room along with their mother on that day. Therefore, this clearly discloses that the presence of this witness and the accused on that particular day is not much disputed even in the course of cross examination. Of course in the course of cross examination, it is elicited that, the accused has forcibly made the deceased to eat `gobi manchuri’ and thereafter, he assaulted her. Except this, nothing worth has been elicited so as to discard the evidence of this witness. Therefore, it is clear from the above said evidence of the witnesses, particularly the evidence of P.W.6 and other neighbours and as well as P.W.1, the accused was addicted to alcohol and he used to demand money from the deceased. On that particular day also, he quarrelled with his wife, made her naked and forcibly made her to eat `gobi manchuri’ and thereafter, assaulted her and it is also elicited that he gave three or four blows on the head of the deceased. Perhaps, that may be the reason she died in the hospital after about 18 days.
36. Though there are some contradictions and omissions elicited in the course of cross examination of these witnesses, as we have observed, but these are all not sufficient to discard the evidence of these witnesses and they will not go to the root of the prosecution case. The evidence of the doctor who conducted the post mortem examination and other doctors who have treated the injured, disclose that, immediately after the incident she was shifted to Mc.Gann Hospital and there she was treated and shifted to Manipal Hospital and later was taken to Nanjappa Hospital. It is worth to refer here to the evidence of the doctor at Manipal Hospital about the condition of the injured when she was discharged from the hospital.
37. Dr. Arjun Shetty who was working as Professor, KMC Hospital, Manipal, has categorically stated that, on 17.02.2011 the injured was admitted to the Hospital at 7.45 a.m. and there was a fracture to her head and she had taken treatment in the said hospital upto 03.03.2011. She was gradually recovering from her ill health and at that time, she was walking and talking. But inspite of that still more treatment was required to the said injured, but she had got discharged from the hospital and went out. In the course of cross examination, he has categorically stated that, the wounds were healing up and she was away from the danger of death and in fact he cannot definitely say that, she had escaped from the danger of death from the said injuries, perhaps the treatment was still due to her. However, the above three doctors have categorically stated stated that, she was admitted to the hospital with injuries sustained by her to her head due to assault by her husband.
38. Therefore, looking to the aforesaid facts and circumstances of the case and thorough reappreciation of the entire evidence on record, the prosecution was able to establish before this Court that the accused has actually demanded money from the deceased, as she refused, he assaulted her with handspade and caused serious injuries to her head.
39. Next question that arises for consideration is that whether the above said act of the accused falls under Section 302 of IPC or under Section 304 Part-I or II of IPC. Before adverting to the factual aspects as indicated above once again, so far as this incident is concerned, we would like to quote the provision under Section 304, which reads thus :
‘304. Punishment for culpable homicide not amounting to murder. – Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.’ 40. The first part of this provision refers to exceptions to murder, i.e. culpable homicide not amounting to murder. If the accused has intended to cause such fatal injury with an intention to cause death. In order to attract part-II, there should not be any intention to cause death. Here, in this paticular case, as could be seen, it is not only one injury or one blow made by the accused, he assaulted the deceased three to four times and he has assaulted on the head of the deceased which caused four injuries to head portion of the deceased, as per the evidence of the doctors noted above. Therefore, it cannot be said that the accused had no intention to cause the death of the deceased or he had no knowledge that the said bodily injury was likely to cause the death of the deceased. The selection of the head portion of the deceased is also an important factor which weighs with the intention of the accused. Therefore, we are of the opinion, the accused has really intended to cause the death of the deceased.
41. Now the question arises, whether it falls under any of the exceptions to Section 300 of IPC, so as to attract Section 304 (1) of IPC.
42. We have carefully perused the exceptions to Section 300 of IPC. The learned counsel has drawn our attention that the act of the accused falls under exception 4 to Section 300 of IPC. Exception 4 to Section 300 reads thus :
‘Culpabale homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.’ 43. This particular provision clearly indicates that culpable homicide is not a murder, if it is committed without any premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel and it should also be shown that the accused had not acted in a cruel or unusual manner.
44. Now coming back to the evidence of the prosecution, particularly the evidence of the eye witness – P.W.6, so far as this aspect is concerned, it is evident from the evidence of this witness, that on the particular day when the accused came to the house at about 10.30 p.m., he was not armed. There was some quarrel between the husband and wife and he demanded money and thereafter when the deceased refused to pay any amount, he went out from the house. But very strangely, he came back to the house at 11.30 p.m. fully drunk along with ‘gobi manchoori’ and requested his wife to eat the said ‘gobi manchoori’. As she refused, he forcibly made her to eat ‘gobi manchoori’ and he also demanded money from her. As she refused, he dragged her to the middle portion of the house, made her naked and thereafter assaulted her with spade. So till the point that, he made her naked and demanded money, there was no spade in his hand and perhaps due to the quarrel between the husband and wife, he took out a spade which was in the house itself and assaulted her on the head. So what exactly transpired between the wife and the husband is not spoken to by P.W.6, but the astonishing factor is that, why accused has to make the deceased naked before assaulting her and dragging her from the room to the hall portion. Perhaps, the children were in the room. Therefore, he dragged her to the hall portion to make her naked. But it is not known whether only with regard to demand of money he assaulted the deceased, or the deceased might have refused to satisfy the lust of the accused and for that reason whether he assaulted the deceased. Therefore, in this context when the other witnesses have also stated that they heard a quarrel between the husband and wife and before they came there incident had happened and P.W.6 also stated that there was a quarrel between her father and mother before he assaulted her, we cannot imagine as to what extent the quarrel has taken place and what made the husband to go to the extent of taking out the spade and assaulting the deceased at that particular point of time. Therefore, there was no premeditation and there was quarrel between the husband and wife, which might have enraged the accused to commit such an offence. So far as the cruelty is concerned, or unusual manner is concerned, if there are material to show that only after the quarrel between the husband and wife the incident happened, it cannot be said it is not unusual under the facts and circumstances of the case, which is also evident from the records that the deceased sustaining injuries, admitted to three hospitals and she survived for 18 days and in fact she had recovered from ill health and injuries were healed up and thereafter only she was discharged from the hospital and again admitted to hospital. This also creates a serious doubt as to why she was discharged from the hospital though the doctor had specifically stated that she required some more treatment. Therefore, it also creates serious doubt whether she died only due to the injuries or completely due to non-treatment of the injuries. In any manner, we are of the opinion that as the deceased had not died immediately on the spot, or immediately after sustaining the injuries and these injujries were not so fatal, because of the treatment given, in our opinion the above said act of the deceased, though intended, but he has done it in a sudden quarrel and in a heat of passion under the influence of alcohol.
45. Therefore, for the aforesaid reasons, we are of the opinion that, the offence does not fall under Section 302 of IPC, but it falls under Section 304 Part-I of IPC.
46. The above said provision also prescribes the punishment of sentencing the accused for life or imprisonment for 10 years and shall be liable to fine.
Thus, we are of the opinion that the above said circumstances are sufficient to hold that the accused in a heat of passion has assaulted the deceased and he has two young children and they have to be maintained by the accused, educated and their marriages have to be performed by the accused alone, as the children have already lost their mother. In the above said circumstances, we do not want to impose the maximum punishment as contained in Section 304 Part-I of IPC. The maximum punishment of 10 years is sufficient to be imposed on the accused. With these observations, we proceed to pass the following order :
The appeal is partly allowed.
The judgment of conviction and sentence passed by the trial Court in S.C.No.68/2012 dated 19.11.2012 is hereby set aside for the offence under Section 302 of IPC, but we are convicting the accused for the offence under Section 304 Part-I of IPC and sentencing him to undergo R.I. for a period of 10 years and to pay a fine of Rs.10,000/-, in default to undergo further period of 3 months imprisonment.
Accordingly, the appeal is disposed of.
Sd/- JUDGE Sd/- JUDGE Mgn/-