IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7th 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.945/2014 BETWEEN:
1. Kumara @ Bhete Kumara, S/o Halli Mariyanna, Aged about 47 yrs, r/a Shambhulingeshwara Beedi, Palahalli village, Belagola Hobli, Srirangapatna Taluk, Mandya District. 571 438.
2. Kousalya, w/o Kumara @ Bhete Kumara, Aged about 42 yrs, r/a Shambhulingeshwara Beedi, Palahalli village, Belagola Hobli, Srirangapatna Taluk, Mandya District. 571 438. ... APPELLANTS (By Sri C.H. Jadhav, Senior counsel for Sri Shivaswamy, Adv.) AND:
The State of Karnataka, By Srirangapatna Police Station, Mandya District, Pin 571 438 Rep by SPP High Court buildings, Bengaluru-1. ...RESPONDENT (By Sri Vijayakumar Majage, Addl. SPP) This Criminal Appeal filed under Section 374(2) Cr.P.C. praying this Court to set aside the judgment and sentence dated 02.08.2014 passed by the III Addl. District and Sessions Judge Mandya, sitting at Srirangapatna in SC No.22/2012 convicting the appellant/accused No.1 for the offences punishable under Sections 302 & 506 of IPC and appellant No.2 for the offences under Sections 302 and 109 of IPC.
This Criminal Appeal coming on for hearing this day, K.N.PHANEENDRA J., delivered the following:
JUDGMENT The appellants are the aggrieved accused Nos.1 and 2 in Sessions Case No.22/2012 on the file of the III Addl. District and Sessions Judge, Mandya sitting at Srirangapatna vide judgment dated 02.08.2014, wherein the learned Sessions Judge has convicted appellants No.1 and 2 for the offences punishable under Section 302 of IPC and sentenced them to undergo imprisonment for life. Accused No.1 was also convicted for the offence punishable under Section 506 of IPC and sentenced to under rigorous imprisonment for two years. He was also sentenced to pay a sum of Rs.20,000/-. Accused No.2 was sentenced to pay a fine amount of Rs.10,000/- with default sentence. The said sentence was passed read with Section 109 of IPC.
2. We have heard the arguments of the learned senior counsel for the accused/appellants and also the learned Addl. SPP for the State. We have carefully perused the oral and documentary evidence placed for consideration by the prosecution and we have also examined the judgment of the trial Court.
3. Before adverting to the grounds urged and elaborated by the learned counsel for the appellants and countered by learned Addl. SPP, we feel it just and necessary to have the brief factual matrix of this particular case.
4. About 9 to 10 years prior to the incident dated 01.08.2011 the accused was indebted with a lady Chikkathayamma. With reference to the same, she had filed a suit for recovery of the said amount and the said suit was decreed in favour of Chikkathayamma and the decree was put into execution bringing the house of the accused for auction. Deceased Ramalingegowda who is the resident of the same village by name Palahalli in Srirangapatna, Mandya District was the successful bidder and purchased the said property in auction for a sum of Rs.2,85,000/-. Even after the said decree and the deceased purchasing the said property in the Court auction, the accused did not deliver the possession of the said property. However, it is the case of the prosecution that by executing the said decree, the said Ramalingegowda had taken the possession of the property and locked the house. Inspite of that, the accused had put up some sheets on the platform in front of the house and started living there in front of the house itself.
5. In this background, it is alleged that on 01.08.2011 the deceased Ramalingegowda along with his associates by name Shankar, Santhu, Ramu and Krishna went near the house of the accused and demanded for removal of the said sheets put in front of the said house. In that context, accused No.2 (appellant No.2) told them that they can remove the said sheets. However, she telephoned to accused No.1 to come back to the house complaining about the removal of the said sheets. Immediately after hearing accused No.2, accused No.1 came to the house and as soon he came there and asked the deceased as to why he has removed the sheets in spite of his request not to remove and that he would not leave him. By saying so, the accused assaulted the deceased with a sickle on various parts of his body. It is also alleged that as soon as the accused came to the spot and told the deceased that, he would kill him, accused No.2 also instigated accused No.1 not to leave deceased Ramalingegowda and to chop him off.
Due to the injuries sustained in the above said incident, the deceased Ramalingegowda died on the spot. Accused, threatening the other witnesses not to come near him, ran away from the spot along with the chopper. The wife of the deceased lodged a report narrating the above said factual aspects and a case has been registered against the accused persons for the offences punishable under Section 302 of IPC read with Sections 114, 506 and also read with Section 34 IPC and the Police have investigated the matter and laid down the charge sheet against accused Nos.1 and 2.
6. It is the case of the prosecution that accused No.1 is the main culprit who has assaulted the deceased and done to death. Accused No.2 is the instigator who abetted accused No.1 to do such act. The trial Court after securing the presence of the accused, framed charges for the above said offences and put the accused persons on trial. The prosecution in order to bring home the guilt of the accused, examined as many as 35 witnesses and got marked Exhs.P1 to P50 and also marked Material Objects at M.Os.1 to 15. Two more witnesses were examined on behalf of the accused after his examination by the Court under Section 313 of Cr.P.C. After hearing the arguments on both the sides and analyisng the oral and documentary evidence on record, the trial Court has arrived at a conclusion that the prosecution has proved the case against the accused beyond all reasonable doubt and rendered the above said judgment of conviction and sentence against the appellants.
7. Sri C.H.Jadhav, learned senior counsel for the appellants strenuously argued that, the entire case revolves around the version of eye-witnesses, motive factor, recovery of material objects at the instance of accused No.1 and the medical evidence. He contended that some of the eye-witnesses PWs.13 and 17 have turned hostile to the prosecution. Only the close associates of the deceased viz., PWs.5 and 6 Santhosh and Rama have supported the case of the prosecution. They are in fact interested witnesses and their evidence cannot be easily accepted. Of course, there is some motive factor established by the prosecution. But the said motive is not so strong enough to impute the culpability on the part of the accused persons. Recovery is only against accused No.1. There is absolutely no recovery insofar as accused No.2 is concerned. Learned counsel further contended that except a mere alleged instigation which has been only spoken to by PWs.5 and 6 before the Court, there is absolutely no evidence regarding any intention or overtact alleged against accused No.2. Therefore, the conviction and sentence passed by the Trial Court so far as accused No.2 is concerned is not sustainable. Learned counsel also further contended that even accepting the entire case of the prosecution against accused No.1, at the most, it would fall under Section 304(I) of IPC because accused No.1 is an agriculturist; on receiving the telephonic message from the appellant No.2 in a sudden heat of passion and provocation, he lost his mental balance and in that context, the incident might had happened. Therefore, the sentence passed by the Trial Court for the offence punishable under Section 302 of IPC is not sustainable. Learned counsel has submitted, the above said argument is only by way of alternative argument without admitting any factual aspects against the accused.
8. Per contra, learned Additional SPP has equally countered the above submission arguing that there is sufficient evidence to show (from the evidence of PWs.5 and 6) that, due to the instigation of accused No.2, accused No.1 has taken such a cruel step to commit the murder. He also contended that accused No.1 has fully come prepared with premeditation along with a weapon (sickle) to the spot with an intention to do away with the life of the deceased. Further while assaulting the deceased, he has selected vital parts of the body of the deceased. Therefore, the intention of premeditation is apparent on the face of the record so far as accused No.1 is concerned. There is no material elucidated in the course of the evidence of any of the witnesses that, there was any provocation made by the deceased or any other person so as to provoke accused No.1 in such manner that he lost his mental balance and committed the offence. Therefore, in the absence of any material on record before this Court, it cannot be said that the offence committed by the accused falls under Section 304(I) or (II) of IPC. He further contended that, on an overall consideration of case, the prosecution has proved the guilt of accused Nos.1 and 2 beyond reasonable doubt. Therefore, there is no reason for this Court to interfere with the reasoned judgment of conviction and sentence passed by the trial Court. Hence, he pleaded for dismissal of the appeal.
9. On the above said factual aspects, the prosecution has mainly relied on the evidence of PWs.5, 6, 13 and 17 who are the eye witnesses to the incident and also the evidence of PWs.11 and 18. From the above said material available on record, this Court has to examine and reappreciate the evidence on record to find out as to whether the trial Court has committed any error in convicting the accused persons.
10. We would like to have a cursory look on the evidence of witnesses. Ex.P2 is the spot mahazar under which the blood stained mud and the plain mud were recovered and Exh.P3 to 14 are the photographs of the spot. MOs.3 to 8 are the materials pertaining to the deceased which were also identified by these witnesses. PW.1 is the wife of the deceased. PW.2 Mahadeva is a witness to the motive and panch who has supported the case of the prosecution with regard to drawing up of the inquest under Ex.P16. He has also identified the injuries of the deceased. PW.3 is the elder brother of the deceased. He has spoken about the motive. He has identified the clothes of the deceased. PW 4 has only spoken about the motive factor. PWs.5 and 6 are the eye witnesses to the incident. PWs.7, 8 and 9 are the Panchayatdars, who have spoken about the fact that there was panchayat between accused and deceased wherein the accused has requested the deceased not to recover the possession of the house so that he can make payment of Rs.5,00,000/-. But the deceased had demanded an amount of Rs.10,00,000/- from the accused for which the accused was not ready to pay that amount. Though PW.7 has turned hostile, PWs 8, 9 and 10 have supported the above said aspects.
PWs.10 and 11 have supported so far as motive factor is concerned. They have specifically spoken about the decree obtained by Chikkathayamma and the deceased Ramalingegowda having purchased the house of the accused in the Court auction during the execution proceedings. PW.13 is another eye witness who has turned hostile. PW.15 is the Junior Engineer who has only drawn the sketch of the scene of offence as per Ex.P21. Palanahalli House Register Extract was produced as per Ex.P22 by PW.16. PW.17 is also another eye witness daughter of the accused. She has turned hostile. Pws.18 is a witness to the recovery of M.O.9 at the instance of accused No.1. Exhs.25 to 28 are the photographs with reference to recovery under which he has also identified other items of the deceased. PW.19 Rayappa of the same village has stated with regard to the recovery of Mobile at the instance of accused No.2 under Ex.P30. PW.20 is a panch witness to the seizure of clothes of the deceased. There is no dispute so far as this aspect is concerned which are marked at MOs 4 to 8 and 12 under Ex.P31. PW.21 Scientific Officer has examined the items No.1, 3 to 10 sent for examination and has given opinion at Ex.P32. She has stated that those items were stained with ‘A’ Group blood which is the blood group of deceased. PW.22 is also cited as eye witness to the incident and motive factor. But he has not supported the case of the prosecution. PW.23 is a Court Ameen of Srirangapatna with regard to execution of delivery warrant to hand over the possession of the house to the deceased and mahazar as per Exhs.P35 and 36. PW.24 is the doctor who conducted post mortem examination on the dead body of the deceased and found as many as 14 serious injuries. Ex.P39 is the opinion regarding sickle - M.O.9 and he has stated that the injuries found on the body of the deceased could be caused by assaulting a person with M.O.9. He has also denied the alternative possibility of sustaining of the injuries by the deceased. PW.25 Srinivasamurthy has apprehended the accused No.2. There is no denial so far as this aspect is concerned. PW.26 is the carrier of FIR to the Court.
PW.27 Gangadhar is the PSI who registered the complaint on the basis of Ex.P1 lodged by PW.1 and dispatched the same to the Court. PW.28 M.K.Jagadish has apprehended accused No.1 and the same is not denied. PW.29 Prasanna watched the dead body and handed over the dead body to PW.1 after post mortem examination and produced MOs.4 to 7 - the clothes of the deceased before the Investigating Officer which were seized under Ex.P31. PW.30 Mahadevaswamy is the panch witness for seizure of CD M.O.13 under Ex.P42. PW.31 Karigiri who is also a panch witness for recovery of mobile and sim card under Ex.P30. PW.32 D.C.Venkatesh circumstantial witness, who attempted to catch accused No.1 after the incident but accused No.1 attempted to assault him also. He has identified M.O.9 sickle and he has also identified Exhs.P3 to 14 which are the photographs. It is the case of the prosecution that he was working as CPC 472 during the point in time. Soon after the incident happened, he had been to the spot. PW.33 is the senior reporter of TV9, Mysore. He has stated about the mobile recording of the incident by TV9 reporters. PW.34 Chandrashekar is a CPC 343 photographer. He has snapped the photos with regard to recovery etc as per Exh.P3 to 14, 25 to 28. PW.35 is the Investigating Officer.
11. DW.1 Chandru is the Panch witness for Ex.P15. DW.2 Krishna is also a prosecution witness who has not been examined by the prosecution but examined as a defence witness.
12. On careful perusal of the evidence adduced by the prosecution, in the light of the submissions made by the learned counsel, the evidence of the eye witnesses and the witnesses for recovery play a dominant role in this case. PWs.5 and 6 are the eye witnesses to the prosecution. They have categorically spoken about the motive as well as to how the incident has taken place. Though there are some discrepancies, the evidence of PWs.1 and 5 to 11 discloses that the motive factor has been established by the prosecution. Even in the course of cross examination of these witnesses, there is no much evidence elucidated so as to disbelieve them so far as motive factor is concerned. Even DW.1 daughter of accused also has stated about the motive that accused No.1 had been indebted to one Chikkathayamma. She has taken a decree for the said money and brought the property of the accused for auction and in the Court auction, the deceased Ramalingegowda has purchased the property and he has taken delivery of the property from the Officer of the Court. This aspect is particularly established from the evidence of PW.23, who has also produced relevant documents Exhs.P35 and 36. PW.3 has specifically spoken that deceased Ramalingegowda has taken delivery of house property of accused No.1 and the same was locked. It is also not much disputed that even thereafter accused had put some sheets in front of the house and started living there itself along with his wife and daughter. Therefore, the deceased wanted to remove those sheets and evict accused Nos.1 and 2 from the place. So far as these aspects are concerned, though there are some suggestions made, the totality of the motive has not been disputed. The witnesses have also deposed that panchayat had been conducted and in that panchayat, the accused was ready to pay an amount of Rs.5,00,000/- and requested the deceased not to dispossess them from the house. But the deceased has demanded a sum of Rs.10,00,000/-. So far as these aspects are concerned, there is no much denial. On the other hand sufficient materials have been placed by the prosecution. Therefore, we can certainly say that, the prosecution has sufficiently proved the existence of motive.
13. Now coming to the crux of the matter with regard to the incident, PWs.5 and 6 have categorically stated as to what happened on that day. Both have consistently deposed that on that day they had been to the house of the accused along with deceased Ramalingegowda. In fact the deceased asked accused No.2 to vacate the said house as accused No.1 was not present and also the deceased went to remove the sheets which were put in front of the house. Accused No.2 permitted the deceased and the eye witnesses to remove those sheets and actually they have removed the same. Though accused No.2 has permitted them to do that act, she informed the accused No.1 about the acts of the deceased and eye witnesses over phone and called him to the spot. Accused No.1 came to spot in the afternoon at about 2.15 p.m. and in fact accused No.2 instigated him. After she instigated accused No.1 who had come to the spot along with a sickle in his waist removed the same and assaulted the deceased Ramalingegowda on his neck, chest, head and stomach and the intestine came out from his stomach. The deceased fell down on the spot itself and the accused has threatened the eye witness and ran away from the spot. It is specifically stated that due to the instigation of accused No.2, accused No.1 has committed such offence.
14. So far as PW.6 is concerned there is some contradiction with regard to the perception of accused No.2 as stated by PW.5. Of course PW.6 has not specifically stated that accused No.2 has instigated accused No.1 to chop off the deceased and assault him. But she has only stated not to leave the deceased. Except that there are no other contradictions elicited in the cross examination of these two witnesses.
15. It is elicited in cross examination that, at the time of the incident, lot of people were walking near the house and also suggested that the house property was the ancestral property of the accused and when the deceased had taken possession of the property, he has locked the said house. It is also suggested that, after removing the sheets put in front of the house, all these persons ran away from the said spot. It is also suggested that if these four persons i.e., eye witnesses if they would have made some efforts, they would have avoided the incident. All these suggestions have been denied by the eye witnesses. On the other hand, they have categorically reiterated that, the incident happened suddenly and the accused has assaulted the deceased and also threatened them with dire consequences. Therefore, they could not prevent the accused from doing that act. The above said suggestions put to these witnesses clearly indicates that the presence of the accused and the deceased and eye witnesses have not been disputed. It is also suggested that since the deceased was doing real estate business, some people have assaulted him and murdered him and thereafter brought the dead body in front of the house of accused and a false case has been lodged against accused Nos.1 and 2. It also discloses that there is absolutely no dispute about the homicidal death of the deceased. The doctor who has conducted the Post mortem examination also clearly deposed that, the death of the deceased was due to the injuries sustained by him. Ex.P39 is the PM report which shows that the deceased sustained as many as 14 injuries on his vital parts which were serious in nature. The doctor has also opined that such injuries could also be caused by assaulting a person with a sickle which was recovered at the instance of accused No.1. From looking at the above established facts, there is absolutely no dispute with regard to the homicidal death of the deceased having sustained such injuries.
16. The evidence of these two witnesses PWs.5 and 6 shows, there is absolutely no material elicited that there was a quarrel that had taken place between the deceased and accused in any manner and there was any verbal altercation between the accused and the deceased at that particular point in time. Therefore, the evidence of these two witnesses is natural and the suggestions made to these witnesses also disclose that their presence is probable and they have seen the incident and there is no reason to disbelieve them.
17. Apart from the above narrated version of the witnesses, the prosecution has also established the recovery of sickle at the instance of accused No.1. PW.18 Nataraj has deposed before the Court that, after the incident, the Police have secured the presence of this witness at that time accused No.1 was in the custody of the Police. Accused took the panch witness and the Police to Girija Canal and he produced one chopper from a bush and the Police have recovered the same under a Mahazar Ex.P24 and photographs have also been marked as per Exhs.P25 to 28. He has also stated that accused No.1 has also produced the blood stained clothes and a mobile in the Police station. The same were also recovered at the instance of accused No.1 under a Mahazar Ex.P29. In the course of cross examination, nothing worth has been elicited so far as this recovery is concerned except suggesting that normally this type of weapon is available in the house of agriculturists. There is nothing to suggest that, the accused has not at all produced the said weapon before the Police and the Police having recovered the same, the presence of these witnesses is not much disputed. Therefore, it is clear that, the prosecution has also proved the recovery of M.O.9 sickle at the instance of accused and also the clothes.
18. All the items were sent to FSL and the evidence of the doctor Chaya Kumari Scientific Officer examined as PW.21 clearly disclose that, she has examined all items sent for examination and particularly the clothes of the deceased and articles found on the dead body of the deceased viz., MOs.4 to 8 and 12 and also the sickle recovered from the accused were all stained with A group blood. This also clearly goes to show that accused has not explained as to how the said articles were stained with blood. This also amplifies and corroborate the evidence of eye witnesses. Looking to the said facts and circumstances of the case, we are of the opinion that the prosecution has established the case beyond doubt against accused No.1 that he has committed the murder of the deceased.
19. Now coming to alternative argument submitted by the learned counsel so far as accused No.2 is concerned, of course there is some evidence placed before the Court. Apart from the eye witnesses PWs.5 and 6, no other witnesses have actually implicated accused No.2. So far as instigation is concerned, Ex.P1 is the primary document which is a report submitted by the wife of the deceased Vijayalakshmi. She has got the information from the eye-witnesses with regard to the incident and thereafter only she has lodged the complaint before the Police. The incident happened in the afternoon at about 2.15 p.m. and the complaint was lodged at 3.30 p.m. Therefore, there was sufficient time for PW.1 to secure all the necessary information from the eye witnesses and then go to the spot and then lodge the report. Therefore, we presume that whole of the incident as happened was in the knowledge of PW.1 as per the information secured by her from the eye witnesses.
20. In this background Ex.P1 also play a dominant role. In Ex.P1 she has stated that as per her information the accused came to the spot with a chopper and he asked the deceased that in spite of his request, he has removed the sheets in front of his house and he would not leave him and he would definitely kill him. When the accused was telling in such manner, it is alleged that accused No.2 also instigated accused No.1 not to leave the deceased and to kill him and thereafter the accused No.1 assaulted the deceased and caused such fatal injuries.
21. PW.5 has also deposed in his evidence that when the accused came to the spot, he was also holding a chopper in his waist and the accused No.2 instigated him to chop off the deceased and thereafter accused No.1 assaulted the deceased. PW.6 has also stated in similar fashion. But, he has not specifically used the words accused No.2 has instigated accused No.1 to chop off the deceased but she only told not to leave the deceased. These are the two sentences appearing in the evidence of PWs.5 and 6 which are the decisive words. In order to ascertain whether really on the basis of such instigation alone accused No.1 has assaulted the deceased or even otherwise he would have done the said act has to be determined. In order to attract the abetment of an act, accused must have intentionally instigated a person to do a particular thing and the said person on the basis of such instigation has committed such an offence and the act of abetment should be committed consequent to the abetment. If any express provision is not made under the Code, then the said person who abetted for the offence is also punishable for the same punishment as that of a person who committed the act. Section 107 of IPC defines what is meant by abetment. It discloses that, in order to attract the abetment, the person who abetted has to intentionally instigate any person to do a particular thing or intentionally aids by any act or illegal omission to direct another person to do that particular act. Therefore, instigation alone may not be sufficient, but the instigation should be coupled with intention directing any person to do that particular act. Further, added to that, the person who committed the offence must have acted only in pursuance of such abetment.
In our opinion, if the person who committed the offence has got his own independent intention, premeditation and preparation for the purpose of committing such an act, though some instigation is there from other person, but it cannot be unequivocally or conclusively said that only on the basis of the instigation of the abettor, he has committed such an offence.
22. If the said logic is applied to the present case, on the basis of the evidence, what we could gather is, at the time when the deceased and the eye witnesses went to the spot and while removing the sheets which were put in front of the house of the accused, accused No.2 telephoned to her husband informing the accused about the acts of the deceased and the eye witnesses. What exactly is the information given by her is not disclosed by any of the witnesses except PW.5 and 6 stating that she has called accused No.1 to the spot. After hearing accused No.2, accused No.1 came to spot with a weapon i.e., sickle in his waist and suddenly removed the chopper and assaulted the deceased. It is also evident from the evidence of Pws 5 and 6 that it is the sudden incident that took place after arrival of accused No.1. Therefore, they could not prevent accused No.1 from doing that act. Therefore, the circumstance coupled with the motive factor accused No.1 had in his mind to do something to the deceased with reference to taking of delivery of the property of the deceased. In that context, when he came fully prepared with premeditation along with a weapon to the spot and selected the vital parts of the body of the deceased to assault, it clearly disclose that even otherwise than the socalled instigation by accused No.2, he would have done that particular act. Therefore the instigation of accused No.2 may not be intentional because in view of the contradiction, she has stated not to leave the deceased. It does not mean to say that accused No.1 would definitely cause such fatal injuries and commit the murder of the deceased. It might not have been in the knowledge of accused No.2 that he would do such a cruel and brutal act. Therefore in our opinion, the said instigation may not be a cause for accused No.1 to commit such act, but even otherwise, he would have done that act. Therefore, we are of the opinion that accused No.2 cannot be brought into books for the offence under Section 302 of IPC. We are of the opinion that it is only a mere instigation without any such intention and without knowledge that accused No.1 would do such hasty act. Therefore, the trial Court in fact has not bestowed its attention so far as this aspect is concerned in appreciating the evidence. Hence, we are of the opinion that the judgment and conviction of sentence rendered against accused No.2 requires to be set aside.
23. So far as accused No.1 is concerned, learned counsel alternatively argued that the offence committed by accused No.1 may fall under 304(I) or (II). We are at a haste to accept the submission of the learned counsel. In order to attract Section 304 (I) of IPC the act of the accused should fall under any of the exceptions to Section 300. To persuade us, learned counsel drew our attention to Exception 1 of Section 300 which deals with grave and sudden provocation. The said provision itself shows that the sudden provocation should not be at the instance of accused and it should be at the instance of the person who sustained injury at the hands of the accused. The said section says that culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave provocation or causes the death of any other person by mistake or accident. Proviso also show that the said provocation should not have been sought by the accused himself or he himself would not have been voluntarily provoked and the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of powers of such public servant.
24. Therefore, on reading the above said provision, it is clear that it is not the losing of the self control alone is sufficient, but it should be coupled with grave and sudden provocation by the deceased or injured person. We find hardly any evidence in the evidence of PWs.5 and 6 so far as such type of grave and sudden provocation. Exception 4 of Section 300 also enumerates that, culpable 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. Even in the evidence of eye witnesses, there is absolutely not even a suggestion to the effect that there was a sudden quarrel between the accused and the deceased and there was a sudden fight or quarrel between the accused and the deceased and due to that the accused without any premeditation, in a heat of passion, suddenly acted and assaulted the deceased. On the other hand, the evidence otherwise shows that he came to the spot with a weapon fully prepared and he alone started abusing the deceased and suddenly assaulted the deceased with a sickle. There is absolutely not even a suggestion that whether the deceased or anybody on behalf of the deceased have raised any voice against the accused in order to create a heated situation at the spot. Therefore, in our opinion this exception also is not attracted so far as the facts and circumstances of this particular case.
25. In view of the above findings, we do not find any strong reason to interfere with the judgment and conviction of sentence passed by the trial Court so far as accused No.1 is concerned for the offences under Section 302 and 506 of IPC. Hence we proceed to pass the following:
ORDER i) The appeal is partly allowed.
ii) The judgment of conviction and sentence passed by the trial Court dated 02.08.2014 for the offences punishable under Section 302 read with 109 of IPC so far as it relates to accused No.2 is hereby set aside. As accused No.2 is on bail, her bail bonds and surety bonds are cancelled. If she has deposited any fine amount, the same shall be refunded to her on proper identification and acknowledgement.
iii) The appeal is dismissed in so far as accused No.1 is concerned.
Sd/- JUDGE Akc Sd/- JUDGE