IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL APPEAL No.1107 of 2014 BETWEEN KEMPEGOWDA @ RAJA, S/O THIMMEGOWDA, AGED ABOUT 33 YEARS, HORI MANGALAPUR VILLAGE, GANDASI HOBLI, ARASIKERE TALUK, HASSAN DISTRICT – 572 106.
(BY SRI M. SHARASS CHANDRA, ADVOCATE) AND STATE OF KARNATAKA BY GANDASI POLICE – 572 106. REP. BY PUBLIC PROSECUTOR.
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP) …APPELLANT …RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE CONVICTION JUDGMENT DATED 28.05.2014 AND SENTENCE DATED 29.05.2014, PASSED BY THE ADDITIONAL SESSIONS JUDGE, IN S.C.No.131/2008-CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant, who is the sole accused in S.C.No.131/2018 on the file of the Additional Sessions Judge, Hassan, has preferred this appeal against the judgment dated 28.05.2014. 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.5,000/-, in default, to undergo simple imprisonment for four months.
2. We have heard the arguments of learned counsel for the appellant and the learned Additional State Public Prosecutor for the State. We have carefully perused the entire evidence on record and the judgment of the Trial Court.
3. Learned counsel for the appellant strenuously submitted that even accepting the entire evidence of the prosecution, it does not disclose any intention on the part of the appellant-accused to commit any offence much less under Section 302 of IPC. It is contended that the evidence available on record clearly discloses that, the accused would not have committed such an offence. Therefore, the Trial Court, without appreciating the evidence on record properly, has wrongly convicted the accused for the offence under Section 302 of IPC. Learned counsel also submitted that, even if the evidence of the prosecution as it is accepted, it clearly discloses that, there was no premeditation and the accused was not armed with any weapon and it is during conversation between the accused and the deceased on the date of the incident, a quarrel took place between the accused and the deceased and due to sudden provocation and in a heat of passion, the incident has happened in a fur of the moment. Therefore, the prosecution was not able to establish that, the accused had any intention to kill the deceased at that particular point of time and to cause such overt act which was so sufficient and intentionally done to cause the death of the deceased. Therefore, the offence at the most may fall under Section 304 Part-II of IPC.
4. Per contra, the learned Additional State Public Prosecutor submitted before the Court that though the incident has taken place after the quarrel between the accused and the deceased, but the accused selected the vital part of the body of the deceased i.e., the head and given a strong blow on the head of the deceased which resulted in serious injury to the head, consequently resulting in the death of the deceased. Therefore, the accused has committed the offence under Section 302 of IPC and it does not fall under the provisions of Section 304 Part I or Part II of IPC.
5. Bearing in mind the above said rival submissions, we would like to have a brief factual matrix of this case and look at the evidence of the prosecution case to find out whether the judgment of the Trial Court is proper and correct.
6. It is the case of the prosecution that on 02.05.2008, PW.1, the complainant by name Satheesh, son of Ramegowda, Mangalapura, Arsikere Taluk, was proceeding with the deceased Krishnegowda, who is none other than his brother-in-law. In order to go to their village, they were standing near a gate called Kondenaalu Gate. At that time, the accused Kempegowda came to that particular spot. They were talking with each other. The said Kempegowda asked the deceased Krishnegowda that, why he could not advise his brothers-in-law, regarding their family property dispute, for which Kempegowda replied that, what he can tell them as they are knowledgeable and educated persons and they will not listen to him. In that context, the accused Kempegowda used some unparliamentary words and abused the deceased Krishnegowda. In that context, the deceased Krishnegowda retaliated and told the accused not to use filthy language and he should have control over his tongue etc. In this context, the matter reached to the climax and the accused took a repiece, which was lying on the ground nearby the place of incident and gave a blow on the head of the deceased, who sustained injury to his head and fell down. He also made out an attempt to assault the complainant-Satheesh. However, the complainant Satheesh ran away from the spot. Subsequently, after some time, the complainant came back to the said place and saw the deceased lying on the ground and was grumbling. Immediately, with the help of a Tempo, the deceased was shifted to Tiptur Government Hospital and then to Bengaluru Hospital. Therefore, it appears that, the deceased succumbed to the injuries sustained by him.
7. Making the above said allegations, PW.1-Satheesh lodged a report and the Police have registered a case in Crime No.75/2008 initially for the offence under Section 324 of IPC and proceeded with the investigation.
However, on 03.05.2008, information was received from the Victoria Hospital, Bengaluru with regard to death of the deceased Krishnegowda and on that basis the Police have converted the said case for the offence under Section 302 of IPC and proceeded with investigation and subsequently, charge sheet has been laid against the accused for the offence under Section 302 of IPC. The judgment of the Trial Court discloses that, the accused was arrested on 06.05.2008 and was released on bail on 28.04.2010 and subsequently, from the date of judgment of the Trial Court, the accused/appellant has been in judicial custody. The Trial Court after securing the presence of the accused, framed charges for the offence punishable under section 302 of IPC and put the accused on trial. The prosecution in all examined 23 witnesses as per PWs.1 to 23, got marked 27 documents as per Exs.P.1 to P.27 and during the course of defence evidence, the defence also examined DWs.1 and 2 and got marked Exs.D.1 to D.5. The prosecution also got marked material objects as MOs.1 to 7.
8. The prosecution has mainly relied upon the evidence of PW.1 and also the recovery of some incriminating materials at the instance of the accused. PW.1 is the eyewitness and complainant. He has reiterated what he has stated in Ex.P.1 and even during the cross- examination, his evidence has not been disturbed. In fact, this witness has categorically admitted that the incident happened in a sudden moment and there was absolutely no quarrel between the accused and the deceased earlier at any point of time and even there was no verbal altercation at any point of time between the accused and the family members of the complainant or the deceased. It is also stated that, the accused was not armed at that time when they were talking with each other and at the time of the incident, the accused, deceased and PW.1 were only present. It is also admitted that for about 3 to 4 minutes, there were verbal altercation between the accused and the deceased. It is also stated that, this witness also wanted to resolve the dispute between the accused and the deceased. He also admitted that the wooden repiece was lying on the ground nearby the said place and the accused took out the same and assaulted the deceased. Even in the course of cross-examination, he has admitted that, he had actually shifted the deceased to the hospital and gave a report that, due to assault, the deceased sustained such injuries. He has also not admitted the alternative suggestion put to him that the deceased was assaulted by somebody with the help of a bottle as the deceased was fully drunk on that particular day and taking advantage of the same, a false case has been foisted against the accused. But all these suggestions have been denied by the witnesses.
PW.2-Nanjegowda is the panch witness to Ex.P.3. From the spot, the Police have recovered MOs.3 to 5. MOs.3 to 5 are blood stained mud, sample mud and a lungi belonging to the deceased stained with blood. In the cross-examination, nothing worth has been elicited except eliciting that deceased and accused are related to this witness. When such being the case, there is no reason to disbelieve this witness for the limited purpose of proof of spot mahazar.
PW.3-Rajegowda was examined as witness to establish the seizure mahazar-Ex.P.2, but he turned hostile. However, the hostility of PW.3 is of no consequence to the case of the prosecution.
PW.4 - B.N.Ravi is the inquest panch witness and also panch to Exs.P.4 and 5 with regard to recovery of blood stained shirt of the accused under Ex.P.4 and the repiece under Ex.P.5. The shirt of the accused is marked at MO.7. This witness has supported the case stating that he was present when the mahazars Exs.P.4, P.5 and P.6 were drawn and he was also witness to Ex.P.6-inquest report. He has categorically stated that on 06.05.2008, the accused was in the custody of the Police. Along with other witnesses, this witness was also secured by the Police and the accused took all the witnesses and the Police to a particular place i.e. Kondenaalu gate and he went near some Parthenium bushes and took out a wooden repiece from a bush and produced the same before the Police and the same was recovered under the mahazar-Ex.P.5. It is also stated by him that the accused further took them to his house at H.Mangalapura village and brought out a shirt stained with some blood, which was also marked as Ex.P.4. He identified the said shirt as MO.7. He also identified the wooden repiece before the Court marked at MO.6.
In the course of cross-examination, it is elicited from of this witness that, they are all relatives. Even this witness has stated that he is related to the accused as well as the complainant. Some other questions were also put, which are not relevant to the case with reference to relationship between the accused and the deceased and other family circumstances. Though some questions have been put with regard to the jurisdiction of the Police in making said recovery etc. and also suggesting that the said place is accessible to the public at large, but all those suggestions have been denied by the witness. Even during the course of cross-examination, it is reiterated by this witness that the accused himself lead the Police and the witnesses and produced a wooden repiece as well as shirt from his house. Therefore, there is no reason for the Court to disbelieve the evidence of this witness. Therefore, recovery of incriminating article at the instance of the accused has also been established by the prosecution. The evidence of this witness is also fully corroborated by the evidence of PW.5, who also categorically deposed about the recovery of the above said articles under Exs.P.4 and P.5. Similar cross-examination has been adverted to the said witness also.
PW.6-Venugopal is the person who informed the death of the deceased in the hospital, who is none other than the son of the deceased-Krishnegowda, as per Ex.P.7, on the basis of which, the Police have converted the case for the offence under Section 302 of IPC. The evidence of PW.4-Ravi as well as PW.7-Kantharaju both are the witnesses to the inquest. They have also categorically stated that on 04.05.2008, the Police have conducted the inquest proceedings as per Ex.P.6 on the dead body of the deceased. There is absolutely no cross-examination so far as this aspect is concerned. Coupled with the above said evidence, the Doctor, who conducted autopsy on the dead body i.e. PW.18-Sumangala, has stated that after conducting the Post Mortem Examination, she gave the report as per Ex.P.20-Post Mortem Report stating that, the death was due to the head injury sustained by the deceased. Of course, in the course of cross-examination, alternative suggestion of sustaining the injury has been suggested and admitted by the Doctor to the effect that, the deceased has consumed alcohol and if he was assaulted with a bottle on his head, the injuries sustained by him could also be caused. Though alternative suggestion has been made, it goes without saying that the death of the deceased was due to head injury has not been denied. The inquest report as well as Post Mortem Examination Report corroborate with regard to the fact that the deceased died a homicidal death.
PW.8-Harisha is the Village Accountant Arasikere Taluk, who produced the RTC extract copies Exs.P.8 to 14, but nowhere it is explained by the Investigating Officer or anybody as to how these documents are relevant to the case of the prosecution. Relevancy of these documents has not been spoken to by any witness PW.9-Manjegowda is none other than the brother of the wife of the deceased Krishnegowda and he, in fact, has stated that, he received information from Venugopal, son of deceased Krishnegowda and, thereafter, he went to the Victoria Hospital, Bengaluru and came to know the death of the deceased. He, in a very usual manner, stated that there was quarrel between the deceased and the accused in respect of some land, but the same has not even been stated by PW.1 in his evidence or Ex.P.1. In the cross- examination of this witness, it was suggested to him that there was some misunderstanding between them, therefore, they were not talking with each other and it is also suggested that on the date of the incident, somebody has assaulted Krishnegowda with a bottle when he was fully drunk. Therefore, he sustained injury and died in the hospital. But those suggestions have been denied by the said witness.
PW.10-Kambegowda is the witness to Exs.P.4 and P.5, he has also supported the case corroborating the other witnesses, which we have already discussed. He also identified the shirt of the accused as per MO.7.
PW.11-Kumaraswamy, according to the prosecution, is the eyewitness to the incident, but he turned hostile to the prosecution, likewise, PW.12-Venkatesha @ swamy. The evidence of this witness in the course of cross- examination, it is elicited that on 02.05.2008, when this witness had been to Hassan from Kondenaalu gate, some Police told him that some person was lying on the ground in a drunken state and directed this witness to admit the said person to Tiptur Hospital and Police have arranged for a Van and this witness took the deceased to the Hospital at Tiptur on 03.05.2008 at about 1.15 a.m. Later, he came to know about the name of the person as Krishnegowda. Though there are some contradictions elicited in the evidence of PWs.1 and 6 that, this witness actually admitted the deceased to the hospital, but PW.1 has stated that he has admitted to the injured to the hospital, but the evidence of this witness is also supported by the evidence of DW.2- Dr.Suresh, who was working as a Surgeon, Government Hospital, Tiptur. It is stated that one more Venkatesha has brought the injured to the hospital at 1.15 a.m. and he found a lacerated wound over right frontal region and through him, OP slip, extract of case sheet and MLC register were marked as Ex.D.3 to D.5. The Doctor has further stated that, the deceased was admitted to the Hospital with the history of assault. It is also suggested that if a person is assaulted with a bottle, the injury on the head could also be caused. In the course of cross-examination, he has also deposed that, if a person is assaulted with a club or repiece like MO.6, said injuries also could be caused. The alternative suggestions made to this witness, in fact denied by him to the effect that actually the deceased was fully drunk on that particular date and some other person assaulted him with a bottle on the head of the deceased. On the other hand, the evidence of PW.1 clearly goes to show that the galata has taken place between the accused and the deceased and the accused assaulted with a repiece on the head of the deceased. It is also fully supported and corroborated by the recovery of repiece and blood stained shirt from the accused.
PW.13-Prakash Nayak is the PC, who has, in fact, took the dead body to the Hospital for Post Mortem Examination, brought sample blood to the Police Station and produced the same before the SHO and the same was seized under Ex.P.3 along with the clothes of the deceased marked at MOs.3 to 5. There is no much cross- examination so far as this aspect is concerned except questioning the very capacity of this witness to go to the hospital and bring the clothes as well as the sample blood of the deceased.
PW.14-Gangadhara is the person who carried the FIR pertaining to Cr.No.75/2008 to the jurisdictional Magistrate as per Ex.P.17. There is no suggestion that, the FIR was delayed and there was no deliberation with regard to preparation of the FIR and submitting the same to the Court.
PW.15-Kempegowda is also another eyewitness, who, on examination, has also turned hostile to the prosecution.
PW.16-Rangegowda was working as a PC, who took the articles pertaining to this case to the Forensic Science Laboratory at Mysuru. A formal suggestion has been made denying the statement made by this witness.
PW.17-Chikkanna is the person who received the report from PW.1 as per Ex.P.1 and registered the case under Section 324 of IPC.
PW.18-Dr.C.N.Sumangala, as we have already discussed, is the person who conducted the Post Mortem Examination.
PW.18-Shivamadhu is the ASI attached to the Outpost Police Station, Victoria Hospital, Bengaluru, who had sent the death memo of the deceased to the SHO Gandasi Police Station as per Ex.P.21, on the basis of which, the Police have converted the case for the offence under Section 302 of IPC.
PW.20-Krishnegowda is the Investigating Officer who has done part of the investigation. He conducted the inquest proceedings on the dead body and seized the clothes of the deceased produced by one of the Police Constable after the Post Mortem Examination.
PW.21-T.D.Raju is another Investigating Officer who arrested the accused person on 05.05.2018 produced by CW.28 and secured the presence of the panch witness and recovered the blood stained wooden repiece as well as shirt of the accused as per Exs.P.4 and P.5, which are marked before the Court as per MOs.6 and 7. He has recorded the statement of the witnesses and also secured the Post Mortem Examination Report and subsequently submitted the charge sheet against the accused.
PW.22-Nagaraj Honnuru was working as PSI at that particular point of time and he visited the spot and drew up the spot panchanama as per Ex.P.2 and prepared the sketch of the scene of offence as per Ex.P.26. He has also sent the Police to the Hospital for the purpose of conducting the inquest proceedings etc. He has also seized the clothes of the deceased under Ex.P.3 as per MOs.3 to 5. In the course of cross-examination, a formal suggestion has been put to this witness and nothing worth has been elicited to disbelieve this witness.
The last witness PW.23-S.N.Gaonkar working as Assistant Director, FSL, Bengaluru, has examined the material objects sent to the examination. He has specifically stated that item Nos.1, 3, 4 and 6 have been stained with blood and item No.2 was not stained with blood. Item Nos.1, 3, 4 and 6 were stained with ‘O’ Group blood. It is seen from the record that item No.1 is blood stained mud and item No.2 sample blood, item No.3 a lungi belonged to the deceased and MO.4 also belonged to the deceased which were all stained with blood particularly, item No.6 is the repiece, which is also stained with blood recovered at the instance of the accused. It is seen from the record that the blood group of the deceased tallied with the blood stains on the repiece, which was seized from the custody of he accused.
9. On overall re-appreciation and re-evaluation of the evidence as noted above, it is clear that the accused is the perpetrator of the crime. As on the date of the incident, he quarreled with the deceased, which was actually seen by PW.1 and he, after the quarrel, took out a repiece which was lying on the ground nearby the place of incident and assaulted on the head of the deceased. Therefore, it is clear that the accused has committed the offence against the deceased and the deceased also died a homicidal death on sustaining injuries to his head.
10. Now, the question that remains for consideration is, whether the above said act of the accused falls under Section 302 of IPC or, any other offence as argued by learned counsel whether, it falls under Section 304 Part-II of IPC. In order to attract Section 302 of IPC, there must be a strong intention on the part of the accused to commit such an offence. Section 299 of IPC which defines ‘culpable homicide’ amounting to murder, which says that, “whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide”. Therefore, the intention of the accused plays a dominant role in order to attract Section 299 of IPC to punish the accused for the offence under Section 302 of IPC.
11. On the other hand, in order to attract Section 304 Part II, the provision says that “whoever commits culpable homicidal not amounting to murder shall be punished with imprisonment of 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”.
But, Part II says that, if the act is done with a knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily as is likely to cause death.” he shall be punished with imprisonment which may extent to ten years and with fine.
12. On perusal of the evidence on record, even Ex.P.16 clearly discloses that, the accused and the deceased as well as PW.1 were casually talking with each other. It is not that they were strangers to each other, but they are relatives. While talking, some quarrel has taken place and in that particular quarrel, suddenly the accused took the repiece, which was lying on the ground and gave one blow to the deceased. In fact, the Police, on the complaint lodged by PW.1 under Ex.P.1, registered a case under Section 324 of IPC and not even under Section 302 of IPC. Looking to the injuries sustained by the deceased and in fact, only one blow was being given by the accused shows that he might have not intended to do away with the life of the deceased, perhaps he might have taken that step to teach a lesson to the deceased. Therefore, the conduct of the accused though selecting the head portion to assault and the blow was not forcible and only one blow was given, which resulted in the death of the deceased. Therefore, it cannot be said with all certainty that, the accused had any intention to cause any death or cause any brutal injury as it is likely to cause death. But he might have knowledge that the deceased may die. Therefore, we are of the opinion that, the Trial Court ought to have taken into consideration the above said surrounding circumstances in order to draw the inference holding what exactly is the offence committed by the accused. Therefore, to that extent, the judgment of conviction and sentence of the Trial Court deserves to be set aside. Hence, with these observations, we proceed to pass the following order;
ORDER The appeal is partly-allowed.
The judgment of conviction and sentence passed by the Trial Court for the offence under Section 302 of IPC is hereby set aside. However, the accused is convicted for the offence under Section 304 Part-II of IPC.
After hearing the learned counsel for the appellant and learned Additional State Public Prosecutor and considering the relationship between the parties, the sudden quarrel between the parties and as there was no intention on the part of the accused as also there was no previous bad antecedent alleged against the accused, we feel it just and necessary to sentence the accused to undergo simple imprisonment for seven years and to impose fine of Rs.5,000/-, in default to undergo simple imprisonment for two months.
The accused is also entitled for a set off under Section 428 of Cr.P.C., if he has already completed the above said period of imprisonment. He shall be released forthwith, if he is not required in any other case, if not, he shall undergo the remaining punishment.
SD/- JUDGE SD/- JUDGE mv