IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR.JUSTICE B.A.PATIL AND THE HON’BLE MR.JUSTICE S.G.PANDIT CRIMINAL APPEAL NO.591/2016 BETWEEN:
M.Vadivelu S/o late Murugesha Aged about 41 years Occ: Nil, Add: No.91, V.R.Fabrication, 7th Cross, Anjeneyya Temple Street, Ettamdu, Banashankari 3rd Stage, Bengaluru-12.
(By Sri Venkatesh P. Dalwai, Advocate) AND:
State of Karnataka by Channamanakere Achukattu Police Bengaluru-1.
(By Sri I.S. Pramod Chandra, SPP-II) …Appellant …Respondent This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment and order of conviction dated 07.01.2016 and 11.01.2016 passed by the XLV Additional City Civil and Sessions Judge, Bengaluru City (CCH-46) in S.C.No.351/2014 convicting the appellant/accused for the offences punishable under Sections 498(A) and 302 of Indian Penal Code.
This Criminal Appeal coming on for hearing this day, B.A.PATIL J. delivered the following:-
J U D G M E N T The present appeal has been filed by the appellant/accused being aggrieved of the judgment of conviction and order of sentence passed by XLV Additional City Civil and Sessions Judge, Bengaluru, (CCH.46) in S.C.No.351/2014 dated 7.1.2016.
2. We have heard Sri.Venkatesh P.Dalwai, learned counsel appearing for the appellant/accused and Sri.I.S.Pramod Chandra, learned SPP-II, for respondent/State.
3. The case of the prosecution in brief is that the appellant/accused got married the deceased about 12 years back and out of the said wedlock they got one male and one female child. Since five years accused and deceased were residing in Bengaluru and were frequently quarreling with each other. The accused used to give physical and mental torture to the deceased and she was unable to bear the said harassment of the accused and as such deceased was living separately since four months. In that light, on 23.12.2013 at about 3.30 p.m. accused was doing welding work at Banashankari 3rd Stage, Ittamadu, Nanda Glory Apartment and at that time deceased came there and accused had quarreled with her and the deceased threw her turmeric thread and toe rings on the accused and told that she does not want him. Accused being enraged by the said act of the deceased, assaulted on her head with the hammer, as a result of the same she succumbed to the injuries at Nimhans Hospital, Bengaluru on the same day. On the basis of the complaint a case has been registered in Crime No.371/2013. Thereafter, after investigation charge sheet was filed. After filing of the charge sheet the learned Magistrate took the cognizance after following the formalities by supplying the copies of the charge sheet and as the said case was triable by the Court of Sessions, committed the case to the Sessions Court. The Sessions Court took the cognizance and secured the presence of the accused and after hearing both the parties, charge was prepared and read over to the accused. Accused pleaded not guilty and as he claims to be tried, the trial was fixed.
4. In order to prove the case of the prosecution, prosecution examined 19 witnesses, got marked 31 documents and also 13 Material Objects. Thereafter, after closure of the case of the prosecution, the accused came to be examined under Section 313 of Cr.P.C. by putting incriminating material as against him. He denied the same. Accused has not led any defence evidence and has not got marked any documents. After hearing the learned counsel appearing for the parties, the impugned judgment of conviction and order of sentence came to be passed. Challenging the legality and correctness of the said judgment the appellant/accused is before this Court.
5. It is the submission of the learned counsel for the appellant/accused that the learned trial Judge has committed a serious error in convicting the appellant by relying upon the evidence of the prosecution witnesses who have been examined are highly interested in the said matter. It is his further submission that the only evidence which is available before the Court is that of PW14 and even immediately he has not filed any complaint. If really he has witnessed the said act of the accused he could have gone to the police station and filed the complaint. The said evidence is not acceptable. Except his evidence no other eyewitnesses are there before this Court. On these grounds he prayed that the prosecution has though utterly failed to prove the case of the accused, the trial Court has convicted the accused.
Alternatively the learned counsel for the appellant/accused submitted that if at all this Court comes to the conclusion that the prosecution has proved the guilt of the accused, the alleged incident has taken place without there being any pre- meditation or intention and the said accident has taken place in a spur of moment when accused was working at the work place by welding and there the deceased went and there she has thrown the turmeric thread and also her toe rings and being enraged by the act of the deceased, the accused has assaulted her. The alleged incident has taken place without there being any intention to cause the death of the deceased, there is no pre-meditation. In that light he requested the Court to consider the case under Section 304-II of IPC.
6. Per contra, the learned SPP-2 vehemently argued and submitted that the evidence of PW14 clearly goes to show that the accused has assaulted the deceased with hammer and because of the head injury caused to the deceased she succumbed to death. It is his further submission that the post mortem report Ex.P19 clearly goes to show that the deceased died due to shock and haemorrhage consequent upon the head injury sustained by her. The accused while assaulting has chosen the vital part of the body and he was having the knowledge and intention to cause the death and as such he has assaulted the deceased with hammer. It is his further submission that the prosecution evidence also goes to show that earlier to the alleged incident there was ill- treatment and assault committed by the accused to the deceased and the said fact was also brought to the notice of the PSI and PSI has recorded the said compromise and settled the matter as per Ex.P18. It is his further submission that when there was ill- treatment and harassment continuously by the accused by taking the opportunity he has assaulted to the deceased with hammer and caused the death. The trial Court after considering the material placed on record has rightly come to the right conclusion and has convicted the accused. The appellant/accused has not made out any good grounds to acquit by setting aside the impugned judgment of the trial Court. On these grounds he prayed to dismiss the appeal.
7. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records.
8. Prosecution in order to prove the case has relied upon the evidence of 19 witnesses and it has also relied upon four circumstances to prove the case.
9. The first one is that deceased died a homicidal death and homicidal death is because of the assault, ill-treatment and harassment caused by the accused. The alleged incident has taken place near the place of welding, the same has been witnessed by co-worker who is working with him and immediately thereafter other circumstances after the incident and all these matters together point out the guilt of the accused.
10. In order to prove the case of the prosecution that the deceased died homicidal death, the prosecution got examined PW1, father PW5, the inquest mahazar pancha to Ex.P3 and PW13 the doctor who conducted autopsy over the body of the deceased and has given the report as per Ex.P19 and PW17 is the doctor who got admitted the deceased immediately after the incident and has issued the intimation to the concerned police after the death of the deceased as per Ex.P28.
11. On close reading of the evidence of PW1 the father he had deposed with regard to the ill-treatment and harassment caused by the accused and he also pacified the said quarrel between the deceased and the accused and even the matter was taken before PW12 who was working as ASI. At that time he has recorded the statement of the accused and made the compromise as per Ex.P18. PW1 immediately after the receipt of the information about the assault committed by the accused, he came to Nimhans Hospital and there he found injuries over head and the body of the deceased. PW5 is the inquest mahazar pancha to Ex.P3. In Ex.P3 it has been clearly stated what are all the injuries found over the body of the deceased. During the course of cross- examination of these witnesses, nothing has been elicited so as to discard their evidence.
Even PW13 the doctor who conducted the autopsy over the body of the deceased she has mentioned that there are as many as two injuries over the body of the deceased. She has mentioned the following two injuries:
i) Split lacerated wound measuring 3 x 0.5 cms. X bone deep present over temporal region of the scalp, 4 cms from the top of left ear lobule;
ii) Split lacerated wound measuring 2 x 0.5 cms. X bone deep present over the left side of the scalp, 4 cms. from injury No.1 towards the midline.
12. This clearly goes to show that there were injuries found over the body of the deceased and even PW17 who got admitted the injured in the hospital and after the death she has given intimation and she has deposed that when the deceased was brought she was suffering with injuries and they told that the accused has assaulted on her and subsequently she succumbed to the injuries and she has given intimation as per Ex.P28.
13. On going through all the above evidence which has been produced, it clearly goes to show that the deceased died a homicidal death. Even the learned counsel for the appellant/accused has also not seriously disputed the fact that the deceased died homicidal death.
14. The second aspect for cause of the death is that the accused used to ill-treat and harassed the deceased by consuming the alcohol. By going through the evidence of PW1 the father, PW3 the brother and PW18 PSI who received the letter as per Ex.P16 and got the dispute compromised and he advised both of them to lead a matrimonial happy life.
15. On going through the evidence of these three witnesses it clearly goes to show that the accused was ill-treating and harassing the deceased by consuming alcohol.
16. In order to prove the guilt of the accused, the prosecution has relied upon the evidence of PW14, he is a star witness in this case and it is his evidence which is going to determine the case of the prosecution. In his evidence he has deposed before the Court below that himself and the accused were deputed for the purpose of gate welding work and at about 2.30 to 3.00 p.m. when they were doing the welding work, at that time the wife of the accused came there and she was talking and threw the turmeric thread and toe rings towards the accused and he has further deposed that being enraged accused assaulted with hammer two to three times and as a result of the same she sustained bleeding injuries and by seeing the same accused went away from that place and he has also identified the said hammer which is marked as MO.8. During the course of cross-examination nothing has been elicited and on the contrary it has been brought on record that he has seen the accused assaulting when the deceased threw the turmeric thread and toe rings and he has deposed that immediately he did not informed the said aspect to the police, but he asked them to take the deceased to the hospital. This evidence appears to be natural and probable that too when both were working at the place of alleged incident.
17. PW15 is the another person who came to the alleged place of incident, immediately after the alleged incident, he has deposed that the accused and PW14 were working at the gate and he heard about the galata from public and immediately he went there. He saw the blood scattered and there he came to know that the accused has assaulted the deceased when he was quarreling, deceased was taken to hospital. During the course of cross examination also nothing has been elicited so as to discard the evidence.
18. On going through the evidence of PWs.14 and 15, PW14 is the material witness he has seen the alleged incident which has taken place in a day light. This evidence is cogent, consistence, trustworthy and reliable. It is also corroborated with the evidence of PW.15. He has stated that PW.14 and accused working there when he was in his shop. He has stick up to the case of the prosecution and he has supported the case and nothing has been produced before this Court to discard the evidence of this witness and in this behalf all these circumstances clearly point out that the accused has committed the alleged offences by assaulting with hammer. It is corroborated with the evidence of PW.13 Doctor who conducted post mortem over the body of the deceased.
19. Leave apart this, as could be seen from the evidence of PW10, the Police Inspector he has deposed that he has been deputed to apprehend the accused and he went in search of the accused, which has been responded and subsequently he has been arrested by searching him. The conduct of the accused also shows that he has committed the alleged offence and immediately thereafter he went away. On going through the evidence, the prosecution has clearly made out a case as against the accused.
20. The alternative submission made by the learned counsel for the appellant/accused is that the alleged incident though has taken place, but there is no pre-meditation or intention to cause the death of the deceased and the said incident has taken place in a spur of moment when the deceased came and threw the turmeric thread and toe rings and being enraged the said act of the deceased, the accused assaulted two times on the head of the deceased with the hammer with which he was working. Even he has not brought the said hammer immediately after the quarrel. PW14 also admitted the said fact. Under such circumstances he prays that provisions of Section 302 of IPC is not attracted and the accused be convicted for lesser offence i.e. 304-II of IPC and convict the accused for the sentence which he has already undergone.
21. In order to consider the case under Section 304-I and II of IPC, the case has to be made out under exceptions No. 1 or 4 of Section 300 of IPC. For the purpose of brevity we quote Section 300 of IPC and exceptions (1) and (4) which reads as under;
300. Murder.–Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or – 2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or – 3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or – 4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. – When culpable homicide is not murder. – 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 the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.- xxx xxx xxx Exception 3.- xxx xxx xxx Exception 4.—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's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.
22. On going through exception 1 of Section 300 of IPC, culpable homicide is not murder if the offender while doing the act deprived of the power of self control, by grave and sudden provocation. In order to bring the case under the said exception accused has to show that he deprived of the power of self control, by grave and sudden provocation which is caused by the person whose death has been caused.
Second aspect is in order to attract exception No.4, four requisites must be satisfied by the accused (i) it was a sudden fight (ii) there was no premeditation (iii) the act was committed in heat of passion and (iv) assailant has not taken undue advantage or acted in cruel manner.
23. We have carefully gone through the said provision of law by giving our thoughtfull consideration, in order to invoke the benefit under exception No.1 to Section 300 of IPC, accused person must show that there was provocation and such provocation was both grave and sudden. There must be simultaneous reaction and which deprived him of the power of self control which is caused by the person whose death has been caused. In order to invoke exception No.4 of Section 300 of IPC accused must show that there exists above said condition, then the cause of quarrel is not material.
24. With the above said ingredients if we peruse the evidence on record, evidence of PW14 clearly goes to show that when the deceased came and started quarreling with the accused and accused being enraged, assaulted two times on the head of the deceased with the hammer. This evidence of prosecution shows that the said act has taken place in a heat of passion and there is no premeditation or pre-intention to cause the said act and it was not even planned by the accused and even he was not expecting that the deceased may come and start quarreling.
Keeping in view the above said facts and circumstances we are of the opinion that the submission made by the learned counsel for the appellant/accused appears to be just and proper.
25. When the accused had no intention and premeditation to cause the death, then under such circumstances part-II of Section 304 is going to be attracted and even the evidence of PW13 the doctor who conducted autopsy over the body and issued the post mortem report Ex.P19 that therein he has stated that there were two injuries and the said injuries are over temporal region of scalp. This evidence corroborate with the evidence of PW14 who is an eyewitness to the alleged incident and even two blows have been given with the hammer.
26. Keeping in view the above said facts and circumstances we are of the considered opinion that there was no intention and only knowledge might be there in the mind of the accused that the said blow may cause the death of the deceased. Therefore, in our opinion the above act would not fall under Section 302 of IPC, but it would fall under Section 304-II of IPC for which the accused is liable to be convicted and sentenced.
27. The learned counsel has also brought to our notice that the accused was arrested on 24.12.2013 and since then he has been in custody and even no serious allegations have been made when he is custody. Considering the length of period of imprisonment undergone by the accused and the sentence which is prescribed for the alleged offence, we feel that if the period of imprisonment already undergone if it is imposed, then under such circumstances it will be a sentence befitting the offence which has been committed by the accused and as could be seen from the records the substantive sentence has already been completed i.e., five years eight months languishing in jail. Therefore, we would like to impose the sentence which he has already undergone and we keep the fine in tact which has been imposed by the trial Court.
With the above observation we proceed to pass the following order.
28. Accordingly, the appeal is partly allowed.
The judgment of conviction and order of sentence passed by the XLV Additional City Civil and Sessions Judge, Bengaluru City (CCH-46) dated 7.1.2016 in S.C.No.351/2014 for the offence punishable under Section 302 of Indian Penal Code is hereby set aside. However, we convict the appellant/accused M.Vadivelu for the offence punishable under Section 304-II of Indian Penal Code and sentence him to undergo imprisonment for the period he has already undergone during the pendency of the case before the trial Court as well as before this Court.
The appellant/accused is ordered to deposit the fine amount of Rs.5,000/- as ordered by the trial Court within the prescribed period.
The concerned prison authorities are hereby directed to release the appellant/accused forthwith, if he is not required in any other case.
The Registry is directed to communicate the operative portion of this judgment to the concerned prison authorities.
Sd/- JUDGE Sd/- JUDGE ap