IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL NO.637/2015 (C) BETWEEN:
KUMARA @ SIDDE GOWDA S/O LATE SRI NANJE GOWDA AGED ABOUT 48 YEARS SOPPINAHALLI VILLAGE KASABA HOBLI CHANNARAYAPATNA TALUK HASSAN -573 116 … APPELLANT (BY SRI. VINAYAKA V. S. ADVOCATE) AND:
STATE BY CHANNARAYAPATNA TOWN POLICE STATION CHANNARAYAPATNA CIRCLE HASSAN DISTRICT – 573 116 … RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE DATED 5.4.2014 PASSED BY THE P.O., F.T.C., AND ADDITIONAL SESSIONS JUDGE, CHANNARAYAPATNA IN S.C.NO.162/2012 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO LIFE IMPRISONMENT AND PAY FINE OF RS.20,000/- 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-Kumara @ Siddegowda was the sole accused before the Additional Sessions Judge, Fast Track Court, Channarayapatna (for short, ‘trial Court’) in S.C. No.162/2012. The learned Sessions Judge has convicted the appellant/accused in the said case for the offence punishable under Section 302 of IPC and also sentenced him to undergo imprisonment for life and to pay fine of Rs.20,000/- and out of the said fine amount, a sum of Rs.10,000/- has been ordered to be paid to PW.13-Smt. Prabhavathi, the wife of the deceased, as compensation. Being aggrieved by the said judgment of conviction and order of sentence, the appellant/accused has assailed the same before this court, in this appeal.
2. Before adverting to the submission made by the learned counsel for the appellant/accused and the learned Additional SPP, we would like to have brief factual matrix of this case.
3. It is the case of the prosecution that, a person by name Kumar is the resident of Attihalli village in Nuggehalli Hobli, Channarayapatna Taluk, Hassan District, being an agriculturist he owned a tractor- trailer. It is the allegation that, the accused-Kumara @ Siddegowda has taken the tractor of the deceased on lease for the purpose of his agricultural activities and he was due to the deceased in a sum of Rs.800/- towards the said transaction. Whenever PW.7 –M Shivaraj, the driver of the said tractor,was demanding the said amount on behalf of the owner of the said tractor, the accused dodging to pay the amount to the deceased Kumar. In this context, it is alleged that, on the date of incident ie., 07.05.2012, PW.7-Shivaraj had been to the house of the accused in demand of the said money. Instead of paying the amount, it is alleged that the accused told PW.7 to send the deceased to his house, so that he would pay the said amount. Accordingly, at about 7.00 am., on the date of incident, both PW.7 and the deceased went to the house of the accused and in turn the deceased has demanded for the said amount. Immediately, the accused started abusing the deceased in filthy language and he also denied that, he is due of any amount to be payable to the deceased. In turn, the deceased also abused the accused in filthy language and their conversation turned to quarrel. At that time, the accused went inside the house and brought a knife and tried to assault on the neck of the deceased, but the deceased escaped from the blow and that blow fell on the left chest of the deceased, as a result the deceased sustained severe injury on the chest and later he succumbed to the injury in the hospital.
4. On the above said allegations, PW.7 has lodged a report against the accused before the respondent-police as per Ex.P10 and initially the police have registered a case in Crime No. 190/2012 for the offence punishable under Section 307 of IPC and subsequently, after the death of the deceased, the police have converted the said case for the offence punishable under Section 302 of IPC. After thorough investigation, the respondent-police have laid the charge sheet against the accused for the offence punishable under Section 302 of IPC. The appellant/accused was also arrested in connection with the said case on the date of incident itself ie., on 07.05.2012 and since then, he has been in judicial custody.
5. After committal proceedings, the trial Court secured the presence of the accused and framed charges against him for the offence punishable under Section 302 of IPC, and as the accused pleaded not guilty, the court has put him on trial. The prosecution in order to bring home the guilt of the accused, examined as many as 17 witnesses as PWs.1 to 17 and got marked the documents as per Exs. P1 to P22 and also the material objects as per MOs.1 to 8. The accused was also examined under Section 313 of Cr.PC. and allowed him to lead his defence evidence, if any. However, the accused did not choose to lead any defence evidence. After hearing both sides, the trial Court has come to the conclusion that the prosecution has proved the case beyond reasonable doubt for the offence punishable under Section 302 of IPC.
6. We have heard the arguments of the learned counsel for the appellant and also the learned Additional SPP. Though the learned counsel initially seriously argued for acquittal of the accused taking us through the evidence of the prosecution witnesses, however, at the fag-end of his arguments, he submitted that, in view of the defence taken up by the accused and also the evidence of the witnesses during course of their cross- examination, virtually happening of the incident is not much denied by the accused. It is the defense of the accused that, on the date of incident, the accused and the deceased quarreled with each other with reference to some money transactions between them. According to the accused, the deceased himself was due to him a sum of Rs.5,000/- and he has not paid that amount and in that context the deceased has quarreled with the wife of the accused and on the same day he has taken away a baffalo of the accused and at that time, he has also slapped on the cheek of the wife of the accused and that attitude of the deceased enraged the accused. In that context, a scuffle took place and in that scuffle, the deceased sustained severe injury on the vital part and unexpectedly his death has occurred.
7. The learned counsel has mainly concentrated on the point that, the said act of the accused was due to a sudden quarrel between the accused and deceased and incident happened without any premeditation and act was not done in an unusual or cruel manner. Therefore, the accused is entitled for the benefit under Section 304 Part- II of IPC. Therefore, he requested the Court that, as the accused has been in jail for nearly seven years, the said period of punishment already undergone by him may be treated as punishment to him.
8. Though the learned counsel submitted that, the evidence of the prosecution witnesses has not been properly appreciated by the trial Court, but, ultimately, he has concentrated his arguments for reduction of the sentence under Section 304 Part-I or 304 Part-II of IPC.
9. Per contra, the learned Additional SPP submitted that, though some quarrel had taken place between the accused and deceased on the date of incident, but the circumstances show that, the accused has intentionally went inside his house and brought a knife and stabbed on the vital part of the body of the deceased. This clearly discloses that the accused had intention with premeditation to kill the deceased. Further, he submitted that, whatever may be the suggestions that were made with regard to the defense taken up by the accused, that has not been substantiated by any other material on record. It is only the suggestions made to the witnesses and those suggestions will not in any manner take the place of substantial evidence before the court. Therefore, if such evidence by way of suggestions were excluded from consideration, the fact remains that, the accused had intended to cause such bodily injury to the deceased. Therefore, the offence squarely falls under Section 302 of IPC. Hence, he pleaded that the prosecution has proved the case beyond reasonable doubt and there is no grounds for this Court to interfere with the judgment of conviction and sentence passed by the trial Court.
10. In the wake of the above said submissions, before adverting to the material evidence on record, we would like to have a brief glance of the evidence of the prosecution witnesses.
10.1 PW.1-S.B. Nagaraj is a panch witness to spot mahazar-Ex.P1. He supported the case of prosecution by identifying photographs at Exs. P2 and P3, which were taken at the time of drawing up of spot mahazar.
10.2 PW.2-Basavaraju&PW.3-Jayarama are the panchas to inquest mahazar –Ex.P4, which was drawn by the police at the spot, on the dead body of the deceased.
10.3 PW.4- Ravi & PW.5-Suresha are the witnesses to recovery panchanama marked at Ex.P5 on the basis of which, the police have recovered MOs. 1 to 7 and the said witnesses have also identified those articles and the photographs taken at the spot. Under mahazar-Ex.P5, the police have also recovered the blood stained tar pieces from the spot and also a knife and two towels of the deceased etc. were recovered. Sofaras PW.5- is concerned, he turned hostile only with regard to the recovery of clothes of the deceased. Rest of his evidence is not disturbed.
10.4 PW.6-Ningegowda is a hear-say witness, who is no other than the brother of the deceased. However, he identified the clothes of the deceased.
10.5 PW.7-Shivaraja is a star witness to the case of the prosecution, who is an eyewitness to the incident and he supported the case of the prosecution. PW.7 is the person , who was present at the time of incident and who lodged a first report as per Ex.P10. He has also identified MOs. 2 to 7.
10.6 PW.8-Chandra @ Chadregowda is the brother of the deceased, who went to the spot soon after the incident and has seen the injury on the dead body of the deceased. He has also supported the case of the prosecution.
10.7 PW.9-Kirankumar is the police constable, who watched the dead body of the deceased and shifted the dead body of the deceased to the hospital for post- mortem examination and thereafter, handed over the dead body to PW.1;
10.8 PW.10-Jayaprakasha is another police constable, who apprehended the accused on 11.05.2012 and produced him before the Investigating Officer, who in turn arrested the accused.
10.9 PW.11-Krishnakumar is the Head Constable, who carried the seized articles to FSL.
10.10 PW.12-Manjunatha is the police constable, who carried the FIR on 07.05.2012 and on 08.05.2012 he submitted further report for conversion of the offence under Section 302 of IPC from 307 of IPC to the jurisdictional Court.
10.11 PW.13-Smt. Prabhavathi is the wife of the deceased Kumara. According to her, she knew the accused and she reached the spot after the incident. Though she witnessed the quarrel between the accused and the deceased from a distance of 50 feet from the spot, by the time she reached the spot, the incident had happened and she immediately shifted the deceased to the hospital. During the course of cross-examination of this witness, in fact an alternative story has been projected putting forth the defence of the accused. This was also projected during the course of cross-examination of PW.17 (PSI) PW.14 (IO), who arrested the accused and recovered a knife and shirt and also visited the spot and conducted a mahazar and seized some articles, which are marked asMOs. 1 to 8. He has also laid the charge sheet against the accused person.
10.12 PW.15-Dr. Dilip Kumar K.B. is the Doctor who conducted post-mortem examination on the dead body of the deceased. He has given his opinion that, the death occurred due to shock and hemorrhage as a result of injuries on the body of the deceased particularly Injury No.4 is responsible for the death of the deceased.
10.13 PW.16-Radha is the RFSL Officer who examined Items 1, 3 to 8 and has stated that, on examination of the articles received by her, she found that Articles No.1 and 3 to 8 were stained with human blood of ‘A’ Group.
10.14 PW.17-Shivaraj R. Mudhol is the Investigating Officer who aptly has also conducted the investigation partly.
11. Though there was some serious cross- examination so far as the prosecution witnesses are concerned, however, there is no denial with regard to the death of the deceased occurred due to some injuries. The evidence of PW.7-complainant corroborates with the evidence of PW.2 and PW.3 who are the inquest witnesses, coupled with the evidence of the Investigating Officer who conducted inquest mahazar as per Ex.P4. The evidence of the Doctor also clearly discloses that the death of the deceased was due to shock and hemorrhage’ as a result of injury No.4- stab wound sustained by the deceased. The said injury could have been caused with the intervention of any third party. The suggestions made to PW.7- Shivaraj and as well as PW.13-Smt. Prabhavathi (wife of the deceased) clearly discloses that the injuries sustained by the deceased were not much disputed. But, it is the case of the accused during the course of cross- examination of these witnesses that, on that particular day, when the deceased went near the house of the accused, a quarrel took place near his house. At that time, the wife of the accused was also present there, who was having one buffalo with her and the deceased in fact tried to snatch the buffalo from the hands of the wife of the accused and in fact the deceased also slapped on the cheek of the wife of the accused, as a result of which, she lost her consciousness and fell down and at that time, the accused and deceased quarreled with each other and the deceased has actually kicked the accused on his private part. Due to the said scuffle between and accused and deceased, the deceased has sustained some injuries. Therefore, the evidence of these witnesses clearly go to show that, there is no dispute with regard to the deceased sustaining injury and succumbed to that injury in the hospital. Therefore, the prosecution in fact has established the homicidal death of the deceased.
12. The vital evidence of the prosecution is that of PW.7. He has categorically stated in his evidence that, on that particular day, the quarrel had taken place near the house of the accused in demand of money of Rs.800/-, which was due payable by the accused to the deceased. There was quarrel between two persons and in that context, the accused has brought a knife from inside the house and immediately stabbed on the right side chest of the deceased and due to which, the deceased fell down and thereafter he was shifted to the hospital and he died in the hospital. If the cross-examination and examination in chief of PW.7 is evaluated, we find that, there is no dispute with regard to the quarrel taken place between the accused and deceased. The direct evidence of PW.7 is coupled with the evidence of PW.13 ( the wife of the deceased) also amplified the prosecution case.
13. P.W.13 has also categorically stated that, on the date of incident she was also present at the time of the incident at a distance of about 50 ft. near a shop, she had been to that place to purchase a match box. She also saw the accused and deceased quarrelling with each other near the house of the accused. Immediately she started walking towards the house of the accused and by the time she reached the spot, the deceased has already sustained injury to his chest and he was lying on the tar road and thereafter, she shifted him to Channarayapatna Government Hospital and the deceased succumbed to the injuries later in the said hospital. Therefore, it is clear from the above facts and circumstances that, the accused and the deceased were quarrelling with each other and thereafter, the accused has actually brought the knife from inside his house and stabbed the deceased. Therefore, in the above circumstances, the court has to visualize, whether the prosecution has proved the guilt of the accused beyond reasonable doubt so as to attract the provision of Section 302 of IPC or the offence falls under Section 304 Part I or II of IPC, as argued by the learned counsel for the appellant.
14. The learned counsel for the appellant, in this context, has also relied upon a decision of the Hon’ble Apex Court reported in 2017 SAR (Criminal) 74 [Ranjitham and Basavaraj & Ors.], wherein it has been observed thus:-
“(A) Indian Penal Code, 1860 – Secs. 300-EXPLANATION 4 and Sec.304 Part II- Culpable homicide not amounting to murder – Accused stabbed the deceased without premeditation, in a sudden fight in the heat of passion – Case falls in Explanation 4 to Sec. 300 IPC – Deceased received single stab injury at the chest – It was caused by a penknife, which was in key bunch – There was enmity between the two sides – Accused had gone to the rice Mill of the deceased and there was an altercation between two sides – Held : Conviction u/Sec. 302 IPC altered to one u/Sec. 304 Part II IPC.”
15. Virtually the factual aspects of the above case are almost similar to the facts and circumstances of this case. In the above referred case also, the accused and the deceased had quarreled with each other and the accused voluntarily went to the rice mill of the deceased in respect of payment of some amount of donation.
16. In the case on hand, it is the contention of the accused that the deceased had borrowed a sum of Rs.15,000/- and the deceased himself was in due of such amount to the accused. Though a suggestion was made to PW.13-Prabhavathi ( wife of the deceased) regarding the above said money transaction, she denied the same and PW.7 also expressed his ignorance. It is also the evidence of the witnesses that, in fact the deceased told the accused that, by deducting the amount due by the deceased to the accused, pay the remaining amount. But the accused being not satisfied with the same, in order to avoid payment, went inside the house and brought a knife and stabbed the deceased. Therefore, if the above said factual aspect of this case are visualized with reference to the defense taken by the accused, though PW.7 and PW.13, have not in detail and meticulously stated what was the verbal altercation that were taken place between the accused and deceased, nevertheless, they have spoken about the quarrel taken place between the accused and deceased and during that verbal altercation, suddenly, the accused went inside the house and brought a knife and assaulted the deceased. Therefore, it clearly discloses that, it is not that the accused with any premeditation came out from the house with any weapon and started quarrelling with the deceased and thereafter stabbed the deceased. But he came out of the house without premeditation, but during the quarrel taken place between the accused and deceased, being enraged, the accused suddenly went inside of his house and brought a knife and stabbed the deceased. This act of the accused clearly shows the absence of premeditation. In order to attract Part-I of Section 304, the accused has to show to the court that the act of the accused was done without the knowledge that, such an act may likely to cause death of a person, but, with an intention to cause hurt which is likely to cause death a person. Therefore, the wordings used ‘likely to cause death’ would play a dominant role sofar as this case is concerned. When the accused has come out with a knife which is a deadly weapon and stabbed on the vital part of the body, anybody can infer that such an act is likely to cause the death of the victim. In order to attract Section 304 Part-II of IPC, there should not be any intention to cause any such bodily injury which in the ordinary course sufficient to cause the death of a person. If these two aspects are absent, then the provisions of Section 304-II will not come into play. However, Section 304-I gives a description that, the act of the accused by which the death caused, is coupled with the intention of causing death or causing such bodily injury which is likely to cause death of a person. Therefore, in this case, if there was knowledge as well as an intention to cause any such bodily injury which is likely to cause death of a person, then it will fall under Section 304 Part I of IPC. In order to attract Section 304 Part-I, culpable homicide should not amount to murder. Therefore, it should fall under any of the Exceptions to which are murder punishable under Section 302 of IPC. Particularly Explanation-V to Section 300 of IPC is aptly applicable sofar as this case is concerned. Explanation-4 to Section 300 of IPC, states that,-
“Explanation-4: Culpable homicide is not murder, if it is committed without pre- meditation 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”.
Therefore, though there was an intention to cause such bodily injury, which is sufficient to cause the death of a person, but if the said act of the accused emanate due to sudden fight or in a heat of passion or upon sudden quarrel the offender having not taken any undue advantage or acted in cruel manner, then only he will be entitled for the benefit of Explanation-4 of Section 300 of IPC.
17. If we examine the factual matrix of this case applying the above said principles, of course, there is sufficient material to show that there was sudden quarrel taken place between the accused and deceased, and the accused in fact had no intention at the initial stages to cause death of the accused, but, after some time, during the course of quarrel, he went inside the house and brought a deadly weapon ie., knife and assaulted the deceased. Therefore, the sudden fights between the accused and deceased might have prompted the accused to bring the knife from his house and cause stab injury on the vital part of the deceased. Here, the point arises that, the accused has selected the knife, a sharp-edged weapon and also selected the vital part-chest area of the deceased to cause injury. This clearly discloses that, the accused was intended to cause such bodily injury which is likely to cause the death of the deceased. Therefore, though there is no premeditation to cause hurt in the present case, but, the intention of causing such severe bodily injury is very much present in the mind of the accused. Sofar as undue advantage and assault in cruel manner are concerned, we cannot say that, in an unusual manner the accused acted in causing hurt on vital part of the body. Because, whenever quarrel takes place, the situation may enrage a person and may be in certain circumstances, as an usual act, the accused may take out a weapon or even cause such bodily injury to a person, which may cause the death of that man. Sofar as cruelty aspect is concerned, the accused has given only one blow, which was sufficient to cause death of a man and thereafter he ran away from the spot. He has not stabbed the deceased any more and caused multiple injuries. Therefore, we can say that it is not so cruel in nature so as to deny the benefit of Explanation-IV to Section 300 of IPC. Therefore, in the above facts and circumstances of this case, the act of the accused would definitely fall under Section 304 part-I of IPC.
18. Now the question of quantum of punishment comes into picture. In this case, the case of the prosecution that, the deceased going to the house of the accused for the purpose of demanding money which was due to him and the incident of altercation taking place,are not disputed. But the deceased lost his life leaving behind his wife. For no fault of the wife of the deceased, she has to suffer through-out her life without her husband. Therefore, when loss of life is there and intention is also there to cause such bodily injury is established, in our opinion, some substantial punishment has to be imposed on the accused. Therefore, we feel it just and necessary to sentence the accused to undergo imprisonment for nine years and to pay fine of Rs.1,00,000/- instead of Rs.20,000/- as ordered by the trial Court, which would meet the ends of justice.
19. With the above observation, we proceed to pass the following :
ORDER The appeal is partly allowed. The judgment of conviction and the sentence passed by the trial Court for the offence punishable under Section 302 of IPC is hereby set aside. The accused is convicted for the offence punishable under Section 304 Part-I of IPC and he is sentenced to undergo imprisonment for nine years and to pay fine of Rs.1,00,000/-, in default to pay fine, he is ordered to undergo S.I. for a period of one year.
If fine amount of Rs.1,00,000/- is deposited by the accused, out of that, a sum of Rs.95,000/- is ordered to be paid to PW.13 (the wife of the deceased) as compensation, on proper identification and acknowledgement.
The accused is also entitled for set-off as provided under Section 428 of Cr.P.C., for the period of imprisonment already undergone by him.
Sd/- JUDGE Sd/- JUDGE KGR*