IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR. JUSTICE K. NATARAJAN CRIMINAL APPEAL NO.1244/2015 (C) BETWEEN:
NARAYANAPPA @ THIPPANNAGARI NARAYANAPPA S/O NARASIMHAPPA NOW AGED 49 YEARS CHERLOPALLI LEPAKSHI MANDAL HINDUPURA TALUK – 515 212 … APPELLANT (BY SRI. N. R. KRISHNAPPA, ADVOCATE) AND:
THE STATE OF KARNATAKA BY GOWRIBIDANURU RURAL POLICE, REP. BY SPP HIGH COURT OF KARNATAKA HIGH COURT BUILDING BENGALURU – 560 001 … RESPONDENT (BY SRI. VIJAYAKUMAR B. MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE IN JUDGMENT DATED 11.02.2014 PASSED BY THE PRL.DIST. AND S.J., CHIKKABALLAPURA IN S.C.NO.123/2011 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302, 324 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant is the sole accused in SC No.123/2011 on the file of the Principal District and Sessions Judge, Chikkaballapur. He has challenged the judgment of conviction and sentence passed by the trial Court vide judgment dated 11.2.2014, wherein the learned Sessions Judge has convicted the appellant for the offence punishable under section 302 & 324 of IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.5,000/-. In default of payment of fine amount, the accused shall undergo rigorous imprisonment for one year for the offence punishable under section 302 of IPC; and the appellant is sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/-. In default of payment of fine amount, the accused shall undergo rigorous imprisonment for two months for the offence punishable under section 324 of IPC.
2. We have heard the arguments of the learned counsel Sri Krishnappa and also the learned Addl. State Public Prosecutor for the respondent - State. We have carefully perused the oral and documentary evidence adduced and produced by the prosecution before the trial Court. We have also examined the judgment rendered by the trial Court.
3. Before adverting to the grounds urged by the learned counsel for the appellant, we feel it just and necessary to have the brief factual matrix of this case:
It is the case of the prosecution that, the accused Narayanappa and his wife had been residing in the house of the deceased Narasappa at Huchodanahalli village in Gowribidanur Taluk. One Ashwathamma D/o. Ramanna was given in marriage to the accused and in fact it is alleged that the accused had been illtreating and harassing his wife while they were residing in the house of the deceased Narasappa. It is the further case of the prosecution that, accused and his wife were always quarreling with each other. In this context, it is alleged that, on 12.6.2011 at about 9.00 pm., in the night hours, the accused and his wife started quarreling with each other at that time, the deceased Narasappa had intervened with the quarrel between accused and his wife and told the accused he should not make any galata, and if he make any galata, he should go out of the house and he should not live there, by saying so the deceased Narasappa entered the house of the accused and thrown out some of the house hold articles from the said house at that time, the accused Narayanappa also entered the house and took out a chopper and he assaulted the said narasappa from the backside on his neck due to which the said Narasappa sustained severe injuries to his left side portion of the neck. At that time, the brother of the accused by name Thirumalappa PW-1 has tried to interfere with the quarrel between the accused and deceased. In that context, it is alleged that the accused also made attempts to assault PW-1 Thirumalappa. In that context, PW-1 has also sustained some injuries to his right shoulder and to his left hand. The deceased in fact died instantaneously on the spot itself. The injured PW-1 has taken treatment in the Hospital.
4. Narrating the above said factual aspects PW-1 Thirumalappa has lodged a report registered in Crime No.110/2011 for the offence punishable under section 302 and 307 of IPC. The Police after registering the case investigated the matter and submitted a charge sheet for the above said offences against the accused. The accused was also arrested in connection with the said case after two days. On 14.6.2011 and since then, he has been in Judicial Custody.
5. After securing the presence of the accused, the trial Court has framed charges against him for the above said offences and put him on trial. The prosecution in order to bring home the guilt of the accused, examined as many as 21 witnesses PWs.1 to 21 and got marked exhibits P-1 to P-14 and also Material Objects MOs.1 to 8. The accused was also examined under the provisions of Section 313 of Cr.P.C. Accused was also given an opportunity to enter into any defence evidence, but the accused did not choose to lead any defence evidence and as such, the trial Court after hearing the arguments of both sides and appreciating the entire materials on record, has rendered the impugned judgment.
6. The learned counsel for the appellant Sri Krishnappa has taken us through the evidence of the prosecution witnesses and submitted that almost all the witnesses are close relatives, kith and kin of the accused. Though some of the witnesses are styled as eye-witnesses, there are contradictions and omissions in their evidence, which has not been properly considered and appreciated by the trial Court. Even the recovery of the blood stained clothes are not fully established by the prosecution. Therefore, the prosecution has not proved the case against the accused beyond reasonable doubt.
7. Alternatively, the learned counsel has submitted that on overall re-analysis of the entire materials on record, it does not show that the accused had pre meditation before coming to the spot. He was not armed any weapon at any point of time, when such quarrel had taken place. However, the circumstances show that there was a sudden quarrel took place between the deceased Narasappa as well as the accused and in that context having lost his balance of mind and also without foreseeing consequence of his act, he must have assaulted the deceased. Therefore, the offence may not fall u/s.302 of IPC, but it may fall under the provisions u/s.304 part I or II of IPC. Therefore, he requested by submitting that, even if the court comes to the conclusion that, the trial Court’s judgment of conviction and sentence should not be disturbed, but sentence may be modified accordingly.
8. Per contra, learned Additional State Public Prosecutor for the respondent – State has strenuously contended that, there is strong evidence available of the eye-witnesses in this particular case. Secondly, there is a strong motive on the part of the accused that, the deceased Narasappa was often interfering with the family affairs of the accused. Therefore, he was seeking opportunity to do away with the life of the deceased. On that particular day, he has selected a weapon like chopper which is a deadly weapon and also selected the vital part of the deceased, ie., neck and assaulted with a strong blow which caused severe injury on the right side of the neck of the deceased. In fact, he has acted very cruelly and un-usually and therefore, there is no reason to interfere with the judgment of conviction and sentence passed by the trial Court. Hence, he pleaded for dismissal of the appeal.
9. We have carefully re-appreciated the entire oral and documentary evidence on record. Of course, there are many number of eye-witnesses in this particular case. PW-1 Thirumalappa is the brother of the deceased; PW-2 Narayanappa is the neighbour of the deceased and the accused; PW-3 Sakamma is the wife of the deceased; PW-4 Lakshmi Narasamma is the wife of PW-1 Thirumalappa; PW-5 Sanjeevamurthy is the son of the deceased who is not an eye-witness. He receives the information from others. PW-6 Roopa is the daughter of the deceased; PW-8 Gangamma another daughter of the deceased; PW-20 Manjunath is also an eye-witness. Except PW-20, all other witnesses i.e., the injured eye-witness PW-1 Thirumalappa, PW-3 Sakamma, PW-4 Lakshminarasamma, PW-6 Roopa, PW-
8 Gangamma have all supported the case of the prosecution. In fact, in the evidence of these witnesses, they have clearly stated that, on that particular time and date of incident, the accused was fully drunk and he was actually wobbling and started quarreling with his wife. At that time, the deceased Narasappa came in between the wife and husband, tried to solve the problem. In that context, the deceased Narasappa told the accused to vacate the house and leave the place. As he did not stop quarreling, the deceased Narasappa went inside the house of the deceased and started throwing the house hold utensils. In that context, all the witnesses have invariably stated that the accused have assaulted the deceased with a chopper on the neck and also assaulted PW-1 on his left hand shoulder and also at the right hand. In the course of cross examination of all these witnesses, nothing worth has been elicited. However, it is very casually elicited that they are all related to the deceased and accused, they have falsely implicated the accused into the crime.
10. The main witness PW-1, who is also an injured eye-witness, who is no other than the brother of the deceased. In his evidence, it is stated that, the accused and deceased started quarreling with each other as the deceased Narasappa has intervened with the quarrel between the accused and his wife. At that time, the accused went inside and brought a chopper and assaulted on the neck of the deceased and in fact, the deceased Narasappa fell on the ground sustaining severe injuries. This witness also went there in order to pacify the quarrel between the accused and deceased, in that regard, he also received injuries to his neck as well as on his hand. He also suffered injuries. The witnesses have also identified the clothes of the deceased MOs.1 & 2 i.e., net banian and pant of the deceased. They also identified the clothes worn by the accused at that particular point of time as MOs.3 & 4 i.e., accused banian and lungi. They also identified the chopper used by the accused as MO-5 which was thrown by the accused at the spot. The other objects i.e., MO- 6 blood stained mud, MO-7 sample mud, MO-8 sample blood of the accused have been seized in connection with this particular case. In the course of cross examination, of course, it is elicited that the accused was fully drunk and that, there was quarrel between the accused and his wife, then Narasappa intervened, some galata taken place between the accused and Narasapa; and the accused suddenly went inside the house, brought a chopper and assaulted the deceased. Even this particular evidence is almost reiterated by all the eye-witnesses to the incident. The evidence of the eye-witnesses are consistent though there are certain discrepancies in explaining the way in which the quarrel taken place. PW-1 has not stated in his examination in chief with regard to the motive, but in the course of cross examination, he has reiterated that the said Narasappa has started throwing out the house hold utensils of the accused, which actually enraged the accused to do that particular act. Except this evidence elicited in the course of cross examination, in order to submit the arguments with reference to the sentence passed by the trial Court, we do not find any strong reasons to discard the evidence of these eye-witnesses totally so as to disbelieve the entire story of the prosecution.
11. Apart from the above said evidence, the prosecution also examined some of the witnesses. PW-7 Krishnareddy, is a witness to the inquest and spot mahazar Ex.P2 and P3, likewise PW-8 Gangamma also deposed with regard to Ex.P-3 spot mahazar. PW-9 Krishnappa is also a witness to inquest and the spot mahazar Ex.P2, but he turned totally hostile to the prosecution. Sofar as the inquest proceedings and the spot mahazar is concerned, the witnesses i.e., PW-7 Krishnareddy and PW-9 Krishnappa have to some extent supported the case of the prosecution. In this context, the evidence of the doctor PW-21 Dr.M.S. Balaji, has got some relevancy. These witnesses have stated apart from the eye-witnesses that they have seen the dead body and observed the injury on the neck of the deceased and also seen the chopper being thrown away by the accused on the spot and police drawing up the Mahazar and seizure of the Material Object a chopper. The eye-witnesses have categorically stated about the using of the chopper by the accused and also throwing of the chopper nearby the scene of offence and specifically stated the overt acts of the accused.
12. The accused has not actually denied the death of the deceased. The suggestion made to the witnesses show that, the death of the deceased, occurred due to some other person assaulting the deceased. The injuries sustained by the deceased has not been denied by the accused during the course of cross examination. Therefore, the fact remains that, he has not denied the death of the deceased and the injuries sustained. Coupled with the evidence of the eye-witnesses as well as the witnesses to inquest, the doctor has deposed before the court that on the relevant date, on the date of incident, he examined the dead body on 13.6.2011 and conducted the Post Mortem examination on the dead body and he found as many as three injuries on the dead body. After dissection, he found that all other organs of the deceased were in tact. Except three injuries, which show that there was an injury measuring 6x3x3 inches lacerated wound on the left side neck of the deceased and all the blood vessels were completely cut and they were projected outside and all tissues were cut and blood was clotted at the site of the injury. Further, he has stated that he has given the opinion as per Ex.P-14 that the death was due to the injuries sustained by the deceased on his neck. He also gave opinion that if a person is assaulted with a chopper like MO-5, those injuries could be caused. From looking into the evidence of the doctor and other witnesses, there is absolutely no dispute with regard to the homicidal death of the deceased and that, the accused is the person who caused such injury on the deceased and therefore, there is no reason to disbelieve the case of the prosecution.
13. The prosecution has also relied upon the recovery of some blood stained clothes from the accused. The evidence of PW-13 C.A. Srinivasa Reddy, PW-12 B. Ramanna, who have supported the case of the prosecution with regard to the recovery of the blood stained clothes i.e., one net banian and a lungi marked at MOs.3 & 4. MO-8 is the sample blood of the accused. The seizure of these articles were also spoken to by the Investigating Officer. PWs.12 & 13 in fact have stated before the court that these witnesses have signed the Mahazar Ex.P-7 in the house of one Bajanthri Krishnappa, and found that the blood stained clothes on the Accused. In fact accused requested some clothes from PW-12 Ramanna at the time when the Police have seized the said articles. The Police have seized the same and this witness has signed the Mahazar. Though there is some discrepancy with regard to the taking of the signature on the Mahazar, but un-erringly he has stated with regard to the seizure of these articles and recovered at the instance of the accused. The Investigating Officer also has categorically stated about the blood stained clothes which were worn by the accused and recovery of the same. Therefore, we do not find any strong reasons to deviate the opinion expressed by the trial Court with regard to the recovery of these incriminating articles at the instance of the accused.
14. The other witnesses are not so relevant in this particular case. The above said facts and circumstances of the case and the evidence placed before the court in fact un-erringly point towards the accused proving that he is the perpetrator of the crime. Therefore, we do not find any strong reasons to interfere with the judgment of conviction and sentence passed by the trial Court for the offence punishable under section 302 and 324 of IPC.
15. Now, coming to the alternative submission made by the learned counsel for the appellant that the court has to find out whether the offence falls u/s.302 of IPC or falls under any of the exceptions to Section 300 of IPC. The learned counsel has strongly relied upon Section 300 of IPC. Exception-4 to Section 300 of IPC says that – “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.”
The explanation to this provision also shows that it is immaterial in such cases which party offers the provocation or commits the first assault.
16. Therefore, in order to attract this provision, there must not be any pre-meditation and the incident happened in a sudden fight in the heat of passion or in a sudden quarrel and without the offender having taken undue advantage, the accused must have acted upon and committed such offence and it should not be taken advantage by the accused to behave in a very cruel manner to virtually take any revenge against a person.
17. Now revisiting the factual aspects so far as the above said provision is concerned, it has been rightly brought to our notice by the learned counsel that, the accused and deceased were living together in the nearby house in the same village. It is not elucidated in the evidence of any of the witnesses that, at any point of time that the accused had intended to do any illegal act against the deceased. It is the regular quarrel that used to take place between the accused and his wife and often the quarrel was subsided by the neighbours including the deceased. In that context, there was absolutely no motive or pre-meditation to kill the deceased and there was no actual nor circumstance available to show any previous ill-will or hatredness between the accused and deceased. Re-perusal of the evidence regarding the incident day, it discloses that, on that particular day also, the accused was fully drunk and he was actually wobbling, which shows that his mind was not fully under his control and in that context, the incident has to be visualized. The deceased came to resolve the quarrel between the accused and his wife. In that context, deceased virtually abused the accused and also told him not to live in that particular house, vacate it and go out from that place itself. He did not stop there, deceased entered the house of the accused and started throwing the household utensils from inside the house of the accused, perhaps this act of the deceased might have enraged the accused and in that sudden quarrel between the accused and deceased, he went inside and brought a chopper and assaulted the deceased from backside on the neck of the deceased and caused such injury. Therefore, the above said circumstances, clearly in our opinion, falls under 4th exception to Section 300 of IPC, which is punishable u/s.304 Part I of IPC. The accused has not actually assaulted the deceased by causing multiple injuries. None of the witnesses have said that he has assaulted, more than once but all the witnesses have said that the accused dealt only one blow on the deceased and not given any multiple blows. This also clearly shows that in a heat of passion, he must have assaulted the deceased. Therefore, giving benefit of such situation, we are of the opinion that the prosecution has not made out a case for convicting the accused for the offence punishable under section 302 of IPC, but it definitely establish the case to punish u/s.304 part I of IPC and also u/s.324 of IPC. Hence, we accept the submission made by the learned counsel for the appellant in this regard with reference to the sentence.
18. Now, the next question is raised as to what could be the commensurate punishment that has to be imposed by the court though the accused has not acted in a very cruel or un-usual manner, but the injury dealt on the deceased clearly discloses that it is not an ordinary injury but is measuring 6 inch length, 3 inch in width and 3 inch depth; that shows the entire blade of the chopper was actually forced on the neck of the deceased. Therefore, in our opinion, the above said act of the accused though not be categorized very cruel in nature, but he has with sufficient force assaulted the deceased. Under the above said circumstances, we feel it just and necessary to impose punishment of 10 years and also a fine of Rs.5,000/- with default sentence. Hence, with this observation, we proceed to pass the following:
ORDER The appeal is partly allowed. Firstly, the impugned judgment of conviction and sentence passed by the trial Court for the offence punishable under section 324 of IPC is concerned, is hereby confirmed.
Secondly, the judgment of conviction and sentence passed by the trial Court for the offence punishable under section 302 of IPC is hereby set aside. However, the accused is convicted for the offence punishable under section 304 Part-I of IPC and sentenced to undergo imprisonment for a period of ten years and to pay a fine of Rs.5,000/-. In default of payment of fine, to undergo simple imprisonment for three months.
The rest of the judgment of the trial Court is not disturbed. The appellant/accused is entitled for set off as provided under Section 428 of Cr.P.C., so far as the substantive sentence of imprisonment is concerned.
Sd/- JUDGE Sd/- JUDGE PL*