IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MAY, 2019 PRESENT THE HON’BLE MR.JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL NO.1697/2016 (C) BETWEEN:
RAMU @ RAMAKRISHNA AGED ABOUT 29 YEARS S/O MOHAN SHET WORKING AS MASON R/O DEVANGI THIRTHAHALLI TALUK SHIMOGA – 577 432 ... APPELLANT (BY SRI. MAHESH Y. L., ADVOCATE) AND:
STATE OF KARNATAKA BY THIRTHAHALLI P.S. SHIMOGA – 577 432 REP. BY SPP HIGH COURT OF KARNATAKA ... RESPONDENT (BY SRI. I. S. PRAMOD CHANDRA, SPP-II) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 20/21.12.2013 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIMOGA IN S.C.NO.159/2012, CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 26.04.2019, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant is the sole accused in SC No.159/2012 on the file of the II Additional District and Sessions Judge at Shivamogga, has preferred this appeal calling in question the judgment of conviction dated 20.12.2013 and sentence dated 21.12.2013 passed in the above case, convicting and sentencing the appellant for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs.5.000/-, and in default of payment of fine amount, to undergo imprisonment for a period of three months.
2. Before adverting to the grounds elaborately urged before this court by the learned counsel for the appellant, we feel it just and necessary to have the brief factual matrix of this case.
3. PW.1-Prema is the complainant, who lodged a report before the police on 08.06.2012. As per the case of the prosecution, the deceased Venkatesh along with his wife- PW.1 and children, was residing in the PHC Hospital Quarters at Devangi Village in Thirthahalli Taluk. On 07.06.2012 at about 8.30 p.m., the deceased Venkatesh told his wife that, he would like to go to the hospital and by saying so, he went near the main door of his house, at that time, the deceased Venkatesh saw the accused–Ramu @ Ramakrishna going on the road situated in front of the house of the deceased, at that time, he asked the accused –Ramakrishna, whether he had his dinner. Being enraged by the said question put by the deceased, the accused told the deceased that, who is he to ask him such question and by saying so, he assaulted on the head of the deceased with a Bamboo Stick. On sustaining severe injuries to the head, the deceased fell down and there was bleeding from the eyes and nose of the deceased. Immediately with the help of witnesses ie., Geetha, Krishnappa and Ramesha, the deceased was shifted to the hospital. After the deceased being shifted to various hospitals at Devangi, Theerthahalli and Shvamogga, ultimately, the deceased died in Manipal Hospital. Requesting for taking action against the accused, a report was given by PW.1 to the Police as per Ex.P1, on the basis of which, a case in Crime No.131/2012 was registered initially for the offence punishable under Section 324 of IPC, as at that time, the injured was taking treatment in Manipal Hospital. Subsequently, the deceased died in Manipal Hospital and a request has been made to the court of convert the said criminal case for the offence under Section 302 of IPC.
4. The respondent/Police have investigated the matter and found that, the accused was responsible for the homicidal death of the deceased, as such, a charge sheet has been laid against the accused for the said offence, for which he was convicted later.
5. In order to prove the guilt of the accused, the prosecution has examined as many as 24 witnesses viz., PWs. 1 to 24 and got marked 31 documents-Exs. P1 to P31 and a receipt is marked as per Ex.D1. Seven material objects have been marked as Mos. 1 to 7 on the side of the prosecution. The accused was also examined under Section 313 of Cr.PC. After completion of the prosecution evidence, the accused was also later called upon to enter into the defence evidence if any, on his side. As the accused did not choose to lead any defence evidence, after hearing on both sides, the trial court, after appreciation of the oral and documentary evidence on record, came to the conclusion that, the accused was the perpetrator of the crime and as such convicted and sentenced him for the alleged offence as noted supra, against which the present appeal is preferred by the accused.
6. Learned counsel for the appellant/accused has strenuously contended before this court that, the prosecution has relied upon the circumstances like motive, homicidal death and also the eyewitness’s version and recovery of material object-Bamboo Stick (No.3) at the instance of the accused and connection of the same with that of the alleged crime. But, the prosecution was not able to produce any material to show the existence of any proof, as PW.1 and PW.22 have not in categorical terms spoken about the existence of motive and further the said motive is also not substantially shown to have been in existence at the time of commission of the alleged offence. Though there is no dispute with regard to the death of the deceased, learned counsel contended that, some suggestion were made to some of the eyewitnesses that, ‘the deceased died due a fall on the stones which were laid in front of the house of the deceased, as the deceased was in the habit of consuming alcohol and on that day also, he was fully drunk and due to which he lost his balance and fell on the stone slab lying in front of his house’. Therefore, the homicidal death is also not properly established by the prosecution. In so far as eyewitness’s version is concerned, he contended that, there is no mention of the presence of any other eyewitnesses in the FIR-Ex.P1 except PW.1-Prema at the time of the incident. Even perusal of the evidence of these eyewitnesses creates a serious doubt with regard to their presence on the spot, as there are various contradictions and omissions in their evidence and out of the eyewitnesses, the independent eyewitnesses-PWs. 10 & 11 have turned hostile and though PWs.17 & 18 were also cited as eyewitnesses, but they are actually not eyewitnesses, since they are the circumstantial witnesses and their evidence also does not fully corroborate the evidence of the other eyewitnesses. The other eyewitnesses PWs. 1, 7, 8 & 9 are the close relatives and friends of the deceased and their presence is not spoken to by PW.1. Therefore, it is an after-thought by the Investigating Officer as he recorded their statement later ie., after much delay. Therefore, the evidence of these witnesses may not be sufficient to inspire the court to draw any inference regarding the guilt of the accused. Last but not least, the recovery portion is also not proved by the prosecution. PW.1 has stated in her evidence that, after assaulting the deceased, the accused has left the said Bamboo Stick on the spot itself and ran away. But, the prosecution has led evidence to show that, the said club was recovered later at the instance of the accused in presence of PW.2. The learned counsel also contended that, the medical evidence also does not fully corroborate the evidence of the eyewitnesses. Therefore, for all these reasons, the learned counsel submitted that, the accused is entitled to the benefit of doubts and as such, he is entitled for an acquittal.
6.1 Alternatively, the learned counsel has also submitted that, the evidence also shows that, there is no motive and there was no pre-meditation by the accused and he had no intention to kill the accused and it is due to sudden quarrel and in a heat of passion the accused might have assaulted the deceased. If for any reason, the court comes to the conclusion that, the prosecution has proved the case against the accused beyond all reasonable doubt, the offence may not fall under Section 302 of IPC, but it falls under Section 304 Part I or II of IPC. If that is the case, it has to be considered that, the accused has already been in custody for more than six years and his custody may be taken into consideration and sentence may be passed either under Section 304 Part I or II of IPC, sentencing him for the period already undergone by him.
7. Per contra, the learned SPP-II has contended before the court that, the version of the eyewitnesses’ is very strong, though they are friends and eyewitnesses, they are the persons, who were supposed to be present on the spot and they are not the chance witnesses. The kith and kin of the deceased, particularly the wife and children, whose presence in the house, is not much disputed in the course of cross-examination. Though their names are not specifically mentioned in the First Information Report, for that reason alone, their evidence cannot be discarded. If once the eyewitnesses’ version is believed, even in the absence of the motive and proof with regard the recovery of incriminating article at the instance of the accused, it will not any in any manner discredit the case of the prosecution. The prosecution has proved the homicidal death of the deceased and there is a direct connection of the accused and the incident. Therefore, there is no room to interfere with the judgment of conviction and sentence passed by the trial court. The learned SPP further contended that, looking to the conduct of the accused, after quarrel with the deceased, he brought a Bamboo Stick and assaulted the deceased, not once, but on two three times on the vital part of the body ie., head. That shows his cruelty and he has taken undue advantage of the situation and caused severe injuries intentionally to cause the death of the deceased, therefore, the alleged offence exactly falls under Section 302 of IPC. Hence, even with reference to the sentence also there is no ground to interfere with the trial court’s Judgment of conviction and sentence. Hence, he pleaded for dismissal of the appeal.
8. In the light of the above submissions made by the learned counsel on both sides, it is just and necessary to have a cursory look at the evidence of the prosecution witnesses before discussing the material evidence on record.
8.1 PW.1-Prema is the wife and PW.7-Praveen is the son and PW.8-Arjuna is another son, PW.9-Gayathri is the daughter of the deceased Venkatesh. They are all eyewitnesses to the incident. Apart form that, PW.10- Krishna, PW.11-Ramesh, PW.17-Murali , PW.18-Geetha are also examined before the court as eyewitnesses to the incident. Out of the above said witnesses, PWs.1, 7, 8, 9, 17 & 18 have supported the case of the prosecution.
However, PWs. 17 & 18 though not fully supported the case of the prosecution, but they are shown to be circumstantial witnesses. PWs. 10 & 11 have in fact not supported the case of the prosecution, but still the court has to examine and verify whether in any manner their evidence corroborate the evidence of the other eyewitnesses to the incident, as to whether their evidence can be totally discredited or their evidence can be still relied upon by the court. Therefore, we would like to discuss the evidence of these eyewitnesses little later.
8.2 PW.2-Ashok is the inquest panch, who deposed with reference to his presence on the spot and he identified his signature in the inquest as per Ex.P4(a) and he is also a witness for recovery of a club-MO.3 under Mahazar Ex.P5. He also identified the said club and the accused before the court.
8.3 PW.3-Manjunath is the brother of the deceased. He is a hear-say witness, who heard about the incident. He states that he received information from PW.8–Arjun who is the son of the deceased and thereafter he went to the spot and assisted in shifting the injured to various hospitals. He also to some extent spoken about the existence of motive.
8.4 PW.4-Dr. Dhananjaya, has stated that, he first examined the injured on 07.06.2012 at 8.45 p.m. in a hospital at Devangi and after the death of the deceased in Manipal Hospital, he also went to the Manipal Hospital and seen the dead body of the deceased.
8.5 PW.5-Amaranatha Shetty is a witness to the spot mahazar. The spot was shown by the complainant- PW.1 and the spot-mahazar is marked as Ex.P2. He identified Mos. 1 & 2, the blood-stained mud and plain mud and he also identified himself in the photograph- Ex.P3. There is no much dispute in the course of cross- examination with regard to this aspect.
8.6 PW.6-Manjunath is the witness to the seizure of blood stained clothes of the deceased after the post- mortem examination under manazar-Ex.P6. Mos. 4 to 7 are Banion, Pant, Kacha and Towel of the deceased. There is no much cross-examination in this regard and only a formal examination has been done. When there is no dispute with regard to the death of the deceased, the court has to see whether there is any connection of these items, with the alleged crime.
8.7 PW.12 is Dr. Prabhakar, who treated the injured at about 10.10 p.m. in Thirthahalli Government Hospital and thereafter, directed to shift the injured to any higher hospital.
8.8 PW.13 Dr. Ramachandrachari, who was working as a Medical Officer at Mc.Gann Hospital at Shivamogga has treated the injured. He deposed that the injured was brought to the hospital at 00.17 hours on 08.06.2012 and in fact he treated the said injured and after CT Scan was done and after finding that the injuries were very severe, he directed that, the injured to be shifted to higher hospital.
8.9 PW.14-Dr.Narendranath, who was working as a Doctor in the surgery division in Manipal hospital has deposed that, he got admitted the injured to the hospital on 08.06.2012 and declared that the deceased died on 08.06.2012 at 11.45 p.m.. He has sent the death report to the police as per Ex.P12. He has given his opinion that, the death was due to fracture of the head bone and pressure on brain stem.
8.10 PW.15-Dr. Ashwini Kumar has conducted Post Mortem examination and observed nine injuries on the deceased and after examination, he furnished Post Mortem report stating that, the death was due to head injury, secondary to blunt force trauma to the head, consistent with the history provided.
8.11 PW.16-D.G.Pradeep Kumar was working as a Professor and Dean in Kasturba Medical College at Manipal. He examined the Bamboo Stick sent for examination by the Investigating Officer as per Ex.MO.3 and gave his opinion that the injuries on the deceased could be caused by assaulting with the help of MO.3. He has also seen the photograph of the club examined by him as per Ex.P14. His report is marked at Ex.P15.
8.12 PW.20-Yogesha, is Police Constable No.2063, who carried the Pant, shirt of the deceased to FSL and he submitted a report to CPI as per Ex.P20.
8.13 PW.21 S. Parameshwarappa, who was working as ASI at Thirthahalli Police Station has deposed that, on 08.06.2012, he went to Manipal Hospital and recorded the statement of PW.1-Prema as per - Ex.P1 and registered a case in Crime No. 131/2012 initially for the offence punishable under Section 324 of IPC and dispatched the FIR as per Ex.P21 to the jurisdictional court. He has also apprehended the accused on 10.06.2012 and produced him before the Investigating Officer with a report (Ex.P.22).
8.14 PW.22-Sridhara, a Head Constable-504 of Thirthahalli Police Station, has spoken about the previous galata between the deceased Venkatesh and the father-in- law of the accused by name Dakappa. He has produced certain documents viz., statement of the deceased Venkatesh as per Ex.P23 and statement of the Dakappa, the father-in-law of the accused as per (Ex.P25) and the endorsement given by the police as per Ex.P26. He has spoken about the motive in connection with this case.
8.15 PW.23-K. Seetharama was working as PSI at Thirthahalli Police Station at that particular point of time. He received the death report of the deceased from Manipal Hospital and sent a message as per Ex.P27, to the court regarding death of Venkatesh, requesting the court to convert the case for the offence punishable under Section 302 of IPC The death intimation was marked at Ex.P28. There is no cross-examination so far as this aspect is concerned.
8.16 PW.24-Thirtharaju is the Investigating Officer, who has deposed about the fact as to in what manner he has conducted investigation and how he found the accused guilty, and also collection of materials during the investigation and submitting the charge sheet before the court.
9. On the basis of the above said evidence, this court has to examine whether on the basis of the above said evidence, the prosecution has proved the case beyond all reasonable doubts.
10. As rightly contended by the learned counsel for the appellant and as fortified by the learned SPP that the prosecution has relied upon the evidence of the eyewitnesses very strongly and thereafter recovery of a Club at the instance of the accused and the homicidal death of the deceased.
11. Before adverting to the eyewitnesses’ version and recovery and motive factors, this court has to examine first, whether the prosecution has proved the homicidal death of the deceased and thereafter, the court has to ascertain whether the accused is responsible for such homicidal death of the deceased.
12. Homicidal Death:
Of course, there is no dispute with regard to the death of the deceased. As discussed above, all the eyewitnesses cited above have very specifically stated about happening of the incident and the deceased sustaining injury to his head and also shifting of the injured to four hospitals and ultimately the deceased dying in Manipal Hospital. The evidence of PW.2-Ashok, has spoken about drawing up of inquest by the police as per Ex.P4. He has also specifically stated about the injuries sustained by the deceased. Much has been concentrated with regard to recovery of the club at the instance of the accused, but it does not show much dispute so far as the presence of the witnesses, at the time of the inquest proceedings. Therefore, all the witnesses ie., eyewitnesses, even PWs.10 and 11, who have turned hostile, did not deny sustaining of the injury by the deceased. In fact, they have also seen the deceased having sustained injury, who was shifted to the hospital.
13. The Doctor PW.12-Dr. Prabhakar, who was working as a Medical Officer at Thirthahalli and PW-14-Dr. Narendranath have in detail stated about the injuries sustained by the deceased and the treatment given by them and suggesting that the injured should be shifted to the higher hospital. They also stated about the injuries sustained by the deceased and in fact PW.14 has stated that after examining the CT Scan report, he observed injuries to the head and there was bleeding inside the head and there was also a fracture to the frontal bone etc. and he tentatively stated that the death was due to fracture of frontal bone and bleeding, and also destruction of brain stem.
14. Apart from the above said evidence, Dr. Ashwin Kumara (PW.15), who was working as an Assistant Professor in Manipal Hospital has also deposed that, he conducted post-mortem examination on the dead body of the deceased and he found nine external injuries and he also stated about internal injuries which were severe in nature and which caused damage to the brain stem and he also gave his opinion that the deceased died due to head injury, secondary to blunt force trauma to the head, consistent with the history provided, and such injuries could be caused by assaulting a person with a wooden log. PW.16-Dr.G.Pradeep Kumar also stated about the examination of the bamboo stick and stated that the injuries found on the dead body could be caused by assaulting a person with such bamboo stick. In fact, a suggestion has been made to these witnesses that, if a person falls on a sharp edged stone or object whether those injuries could be caused and also suggested that, if a person falls on a stone steps whether those injuries could be caused. But the doctor with all certainty stated that, those injuries could not be caused in such manner as suggested.
14.1 Therefore, looking to the above said evidence, it is clear that, it is not an accidental or natural or suicidal death of the deceased. Even there is no suggestion put to that effect to any of the other witnesses. It is the suggestion made to the Doctor that those injuries also could be caused if a person falls on a hard and rough object or on the stone steps. Therefore, the death of the deceased by sustaining the said injuries is not much disputed in the course of cross-examination. Therefore, it is clear that the death of the deceased was due to the injuries sustained by means of external force. Therefore, we are of the opinion that the prosecution has established the homicidal death of the deceased. However, the proof for homicidal death itself is not sufficient to prove the guilt of the accused. The prosecution has further proved that the accused is the person, who was the root-cause for the homicidal death of the deceased.
14.2 As we have discussed above, the prosecution is very strongly relied upon the evidence of the eye-witnesses. Before adverting to the eye-witnesses’ version, the other two small circumstances relied upon by the prosecution are required to be discussed ie., as to whether those circumstances also in any manner support the case of the prosecution, which in our opinion, are the motive and the recovery of bamboo stick at the instance of the accused.
15. MOTIVE:
So far as motive factor is concerned, it is the allegation against the accused that, earlier to the incident, the accused and the father-in-law of the accused by name Kooga @ Dakappa were quarreled with each other and the said Dakappa has assaulted the deceased. In that connection there was a complaint and further the accused was suspecting that, the deceased was having illicit intimacy with the wife of the accused. Later there was a compromise with regard to the earlier complaint lodged by Venkatesh against Dakappa, as the same was withdrawn by way of the compromise. So far as this aspect is concerned, learned counsel for the appellant has drawn our attention to Ex.P1. In fact there are absolutely no such allegations made in the First Information Report. Therefore, the court has to examine with regard to the existence of motive with reference to the evidence of the prosecution witnesses, whether the same has been established before the court. PW.1-Prema has deposed about the motive factor in her evidence, but, in the course of cross-examination, the same has been denied by the other side. But no effort was made for denial of statement made by PW.1 with regard to the above said motive which has been subsequently spoken by her. Nothing has been elicited from her in the course of cross-examination with regard to this motive and there is no much concentration so far as this aspect is concerned, except formal denial.
15.1 PW.3-Manjunath is the brother of the deceased, who in fact has given a different version with regard to the motive. He has stated that the deceased Venkatesh was the root-cause for performance of marriage between the accused and his wife-Netra. Except this, he has not stated anything, but he was only suspecting that the accused might had a wrong impression that the deceased and the wife of the accused having intimacy with each other. Again in the course of cross- examination, so far as this aspect is concerned, there was no much dispute. PWs. 7, 8 &9 have not deposed anything about the motive. Even PW.1 has also not whispered about this version of PW.3.
15.2 PW.22 –Sridhar has in fact stated that there was some quarrel between the father-in-law of the accused by name Kooga @ Dakappa and the deceased Venkatesh. On 23.01.2012, a case was lodged against the said Dakappa by the deceased Venkatesh. In that context, a case has been registered and in that case, a statement of Venkatesh as per Ex.P.24 and a statement of Dakappa as per Ex.P25 were recorded and thereafter an endorsement was given as per Ex.P26. Of course in the course of cross-examination, it is elicited that there is no involvement of the accused in respect of the said quarrel.
But the fact remains that all was not well between the family of the accused and the deceased. Though this cannot be taken as motive for the accused to commit such offence, nevertheless from reading the evidence of the above said witnesses, the existence of motive cannot be easily ruled-out and though the motive is not so strong enough to draw any inference with regard to the existence of any relationship between the wife of the deceased and the accused and further there was any quarrel between the accused, and the deceased at any point of time earlier. Nevertheless, the story narrated by PW.1 and others during the course of cross-examination has not been totally denied. Therefore, we are of the opinion that the prosecution has placed some material with regard to the existence of some suspicious attitude on the part of the accused in respect of the deceased. Though we cannot say that the prosecution has proved the existence of motive beyond reasonable doubt, but, the prosecution has shown that there was some disturbance in the mind of the family of the accused and the deceased with reference to the above said allegations made against the accused.
15.3 The establishment or proof of motive is not a decisive factor in criminal cases. Of course, in circumstantial evidence case, the motive also play a dominant role. But, in a case where the eye-witnesses are there, if the prosecution is able to prove the case from the evidence of the eye-witnesses, then motive becomes insignificant. In that eventuality, if the motive is also established, it can be taken into consideration by the court, to assess the conduct of the accused and the gravity of the offence in order to sentence the accused with severe punishment. With this background, now we will consider the next circumstance of ‘recovery of incriminating article at the instance of the accused’, before proceeding to discuss the evidence of the eye-witnesses.
16. RECOVERY:
It is the case of the prosecution that, the accused assaulted the deceased with a bamboo club and thereafter he took that bamboo club with him, and the same was recovered at his instance. The prosecution has relied upon the evidence of PW.2, PW.21 and PW.24 in this regard. PW.24 is the Investigating Officer, who has deposed before the Court that, the accused was apprehended by PW.21 and he was produced before the Investigating Officer on 11.06.2017. In turn, PW.24 has recorded the voluntary statement of the accused as per Ex.P29 and collected the panch-witnesses by name Sundeep and Ashok. It is further case of the prosecution that the accused took the police and panch-witnesses to Devangi Village near his house and took out a bamboo club from a bush, which was hidden therein by him and a mahazar was drawn in this regard between 1.30 pm to 2.30 p.m. on the said day as per Ex.P6 and a club was recovered, which was marked as MO.3. In the course of cross-examination the recovery aspect has not been completely denied. But it is elicited from the mouth of the Investigating Officer that, when the club (MO.3) was seized under a mahazar, the Investigating Officer cannot say whether the said club was wet or dry and MO.3 is a bamboo club which was hallow at the center. It is suggested that, no such recovery was made at the instance of the accused by the Investigating Officer. In this context, the evidence of PW.21 is of not much significance, because he has only apprehended the accused and produced him before the Investigating Officer, which has not been denied actually. But, it is only the case of the accused that, the accused was not arrested from Belthangady Bus Stand, but he was arrested in the house of the accused himself. Therefore, the arrest of the accused is not much in dispute.
16.1 PW.2-Ashok has deposed before the Court that on 11.06.2012, the accused was secured by the Circle Inspector of Police and the accused was there in the police station and he has categorically stated with regard to the recovery of a club from the accused and he has also identified his signature in Ex.P5 as per Ex.P5(a). In the course of cross-examination, he in fact reiterated or reaffirmed about the presence of the accused and the accused taking them to Devangi Village near his house and producing a Bamboo Stick.
16.2 From the above said material, it is clear that some evidence is placed before the court by the prosecution. Learned counsel for the appellant has strenuously relied upon Ex.P1, wherein PW.1 at the earliest point of time, has stated that, the accused after assaulting the deceased, threw away the said club on the spot and ran away from the spot. Therefore, the learned counsel contended that, when PW.1 herself, with all consciousness, has stated about throwing of the club at the spot, the recovery as projected by the prosecution is a concocted story. So far as this aspect is concerned, PW.1 has given her explanation that actually she has not given any written complaint and a police constable has recorded the same and she cannot say as to what exactly she stated before the police and therefore, she cannot say whether she has stated that the accused had left the club on the spot itself. Though some contradiction is there in the evidence of PW.1 and Ex.P1 with regard to the recovery of the club, but there is no much dispute in the course of cross-examination of PW.2 and the Investigating Officer.On the other hand, it was the question put to the Investigating Officer that, ‘at the time of taking of bamboo club and writing of the manazar-Ex.P5, whether the Bamboo club was wet or dry’ and that itself indicates that, the Investigating Officer has recovered the said club at that point of time as stated by him. Therefore, though there are some discrepancies in Ex.P1 and the evidence of PW.1, it will not in any manner completely take away recovery aspect when the prosecution witnesses have supported the recovery of the said club at the instance of the accused. We can also mention here that the opinion given by PW.1 as per Ex.P1 cannot be an Encyclopedia. Even so many things have not been stated in the said document, but, it is also worth to note here the evidence of PW.21-S. Parameshwarappa, who has stated that, on 08.06.2012 he came to know about the injured Venkatesh was admitted to the hospital. He went to the hospital with the permission of PSI and found that the deceased was not in a position to speak and he recorded the statement of PW.1 from 4.30 pm to 5.15 pm and came back to the Police Station and registered a case in Crime No. 131/2012 and he dispatched the FIR as per Ex.P21. In the course of his cross-examination, it is elicited that PW.1 has stated before this witness (PW.21) that, the accused has thrown the club on the spot and went away.
Therefore, though this aspect creates some discrepancy in the evidence of PW.1, nevertheless, when the recovery itself has not been much disputed, in view of the suggestions made to the Investigating Officer, we are of the opinion that the prosecution has also established the recovery of the club at the instance of the accused.
16.3 Be that as it may. The recovery of club (MO.3) and its connection with that of the crime has to be tested by the Court independently because of the simple reason that, the alleged club was not stained with any blood, even according to the Investigating Officer and further, the said club was not sent to FSL for examination. However, the court has to examine the evidence of the eye-witnesses with regard to using of this club by the accused at that particular point of time. In this background, we would proceed to discuss the evidence of the eye-witnesses.
17. EYE WITNESSES VERSION:
As we have already discussed, PWs. 1, 7, 8 & 9 are the close relatives of the deceased and PWs. 17 and 18 are the circumstantial witnesses, but they are not eye- witnesses. PWs. 10 & 11 have turned hostile to the prosecution and so far as the incident is concerned, they have not stated that, they have actually seen the accused assaulting the deceased. Nevertheless, they have also stated about their presence on the spot immediately after the incident. Therefore, the evidence of PWs. 10 & 11 cannot be completely discarded. But, to what extent their evidence can be relied upon has to be tested after considering the evidence of PWs. 1, 7 to 9. In this background, we take up the evidence of PWs. 1, 7, 8 & 9.
18. Of course, PWs.1, 7, 8 & 9 are the kith and kin of the deceased. PW.1 is the wife and PWs. 7, 8 and 9 are the children of the deceased Venkatesh and PW.1. It is well profounded principle of law that, the evidence of the related witnesses should not be discarded or rejected only on the ground that, they are the relatives of the deceased or the injured. But, their evidence has to be very meticulously dealt with and very carefully scanned and scrutinised for the purpose of ascertaining whether only on the ground of their relationship with the deceased, they are deposing before the court in order to falsely implicate the accused, though they are not eye-witnesses and whether they are the planted witnesses to the case. Therefore, it is incumbent upon the court to very carefully and meticulously examine these witnesses.
19. On careful reading of the evidence of PW.1 (Prema) it is noticed that, in her examination in chief, of course she has not stated about the presence of other witnesses at the time of the incident in Ex.P1, but she has categorically stated in Ex.P1 itself about the quarrel taken place between the accused and the deceased. Further she has stated that, the deceased asked the accused whether he had finished his dinner and due to which the accused enraged himself and assaulted the deceased with the help of a club on the head of the deceased and due to which the deceased sustained injury on his head and thereafter Geetha sister and other witnesses viz., Ramesha and Krishnappa came there and resolved the dispute and thereafter the accused went away from the spot. There was bleeding from the nose and eyes of the injured Venkatesh and thereafter, the injured was shifted to the hospital. In the course of evidence, she has exactly reiterated the same and apart from that, she has also stated that, on that particular day evening, all the three children viz., PWs. 7 (Praveena), 8 (Arjuna) & 9 (Gayatri) respectively were also very much present in the house. At about 8.30 pm on 07.06.2012, a patient came near their house and as such the deceased came out from the house to talk to the patient and told the patient to proceed to the hospital, in the meantime, the deceased also got himself ready to go to the hospital along with the hospital key. The witnesses viz., PWs. 1, 7, 8 & 9 also came out from the house and at that time they saw the accused proceeding near the house of the deceased and the deceased asked the accused that, whether he had his dinner and in turn immediately the accused questioned the deceased, who is he to ask him like that. By saying so, the accused assaulted two or three times on the head of the deceased with a bamboo stick. Remaining things have also been said by PW.1 with regard to the deceased sustaining injuries and presence of Geetha, Ramesha and Krishappa on the spot and they shifting of the deceased to various hospitals and the death of the deceased on 09.06.2012 in Manipal Hospital. She has also identified the blood stained mud and unstained mud collected by the police at the time of spot-mahazar and also identified the club (MO.3) used by the deceased to assault the accused. PW.7 almost reiterated the above said evidence. PW.7, 8 and 9 have reiterated the said facts stating that, they all came out from the house along with their father at that particular time. They have also reiterated the conversion taken place between the accused and the deceased and also assault by the accused on the head of the deceased for two or three times with a club and also shifting of the injured to the hospital. Therefore, so far as over all evidence in the examination-in-chief, of the above said witnesses are concerned, they have specifically stated about the incident.
20. Learned counsel for the appellant has drawn our attention to the evidence of PW.1 (Prema) stating that, PW.1 has not stated about the presence of any of the witnesses except Geetha, Krishnappa and Ramesha, who came to the spot later. She never stated about the presence of PWs. 7 to 9. She has also not stated about the patient coming to the house and the conversation taken place between the deceased and the patient. Except this particular aspect, nothing has been argued. When there is no much cross-examination has been done except with reference to the topography and the place where the incident has happened and also regarding the dispute between the first wife and the deceased Venkatesh. These are all in our opinion not relevant for consideration. It is elicited in the course of cross- examination that there is 40 to 50 feet open space in front of the house of the deceased and thereafter a road is there and thereafter, a shop of one Murali (PW.17) is located. It is also elicited from PW.1 and other witnesses that, the accused and the deceased were cordial to each other and on various occasions, the accused has also repaired the quarters of the deceased and he had been listening to the request of the deceased and doing some work in favour of the deceased. Learned counsel for the appellant also submits that, PW.1 has also stated that, the Thirthahalli Police have not enquired this lady (PW.1) and she do not know whether the police had gone to Mc.Gann Hospital or not. But, she has stated that, she has given her statement in Manipal Hospital. Very peculiarly enough it is suggested to her in the course of cross-examination that, the deceased was in the habit of consuming alcohol and due to which, on that day, the deceased was fully drunk and while coming out from the house, he fell on the stone steps of the house and sustained injuries and due to which he died. Therefore, it is clear that, the date, time and place of happening of incident, is not disputed. The alternative theory projected to PW.1 was that, the deceased himself has fallen down and sustained injury. Of course, from the evidence of these four witnesses (PWs. 1 & 7 to 9) it is elicited that, there is some space in front of the house of the deceased and there were stone steps laid in front of the house. Therefore, there are chances of the deceased falling down due to drunken status and sustain the alleged injuries. This argument of the learned counsel, in our opinion, has to be supported from other materials on record. If not, we cannot disbelieve the story stated by PWs. 1 and 7 to 9.
21. Of course, the names of three witnesses viz., PWs. 7, 8 & 9 have not been spoken to by PW.1 in the FIR. But, their presence at that time, particularly the evidence of PW.1 is not disputed and further suggestion made to these witnesses that, the deceased was in drunken state fell down on the stone slabs and has sustained injury, this suggestion itself is an indication of the presence of these witnesses at that particular point of time. In this background, now we will examine the cross- examination of PWs. 7, 8 & 9.
22. In the course of evidence of PW.7, it is suggested that, earlier to his evidence before the court, he was taken to the prosecutor’s office and he has gone through his statement. Therefore, it was questioned that, whether he is deposing before the court only after reading the statement by remembering the incident. But he answered that, even otherwise, he remembers the entire incident and therefore, he deposed before the Court. In the course of cross-examination it is elicited with regard to the existence of light near their house, though it was not stated by any of the witnesses in their examination-in- chief.
23. Very peculiarly these three witnesses were suggested with the same story that, the accused and deceased were in talking terms with each other prior to the incident and they were cordial with each other, and even about two or three days prior to the incident, the accused and deceased have talked with each other and there was absolutely no quarrel between them at any point of time. It is also suggested and admitted by the witnesses that, the accused was always listening to the deceased and used to do some work as told by the deceased and in fact the accused has repaired the house of the deceased prior to the incident. This clearly goes to show that these three witnesses are unmindful of what would happen if they give such a statement before the court and irrespective of the consequences, whether such statement made by them goes in favour of the accused or in favour of the prosecution, they have deposed very promptly and truthfully before the court. Even some of the portions of their evidence helped the accused to show that the accused and the deceased were cordial to each other and that, they were in talking terms prior to the incident.
24. So far as PW.8-Gayathri is concerned, apart from eliciting the above said facts from her, it is also suggested to her that, on that particular day at about 8.30 pm., this witness (PW.8) was watching Television inside the house and therefore, she did not know anything about the incident. But, actually this witness, after seeing the incident, informed the same to one Manjunath, who is the brother of the deceased and he in turn came to the spot, secured the ambulance and shifted the deceased to the hospital. But, by way of this suggestion, the presence of this witness was also not disputed. Even a suggestion was made to PW.9 –Gayathri that, she did not see any incident of the accused assaulting the deceased. But, it was suggested to her that, the deceased himself fell down on the stone steps and sustained injury and died. So without PW.9 being present at that time, how could she witness the incident of either accused assaulting the deceased or the deceased falling down on the stone steps and sustaining injury.
25. Looking to the evidence of the above said witnesses and suggestions made to them, of course there are certain discrepancies in the evidence of those witnesses with regard to PW.1 not stating in detail about the presence of PWs. 7 to 9 and 17 & 18, nevertheless, in the course of cross-examination of all these witnesses, their presence, particularly the children and the wife of the deceased is not disputed. Whether the incident happened as projected by the prosecution or as suggested by the accused, only has to be tested by the court. As we have already observed, the First Information Report itself is not an encyclopedia and it is not a substantive evidence before the Court and it can only be used for the purpose of contradicting the witnesses, who made such statement, under Section 145 or 157 of Indian Evidence Act. it cannot used as substantive evidence. Though contradiction is elicited that, PW.1 has not stated about the presence of other eye-witnesses, but, since suggestions were made to the said witnesses, their presence is not doubted and their presence is established, and it is also not disputed that said witnesses were not at all residing together with the deceased, therefore their evidence cannot be discarded, on the ground of their relationship with the deceased.
26. It is also to be visualized that, the deceased has sustained severe injuries to the head. PW.1, who is no other than the wife, must be in grief and hurry to see that the injured is shifted to the hospital and get him medical treatment as soon as possible, and that was the main concern of PW.1 at that particular point of time. Therefore, the court also cannot expect her to give a detailed version as to what happened on that particular date and time. It would suffice if PW.1 state about happening of the incident and later in detail she gives a picture as to how the incident happened and that statement has to be tested from other circumstances in the case. Merely because she has not in detail stated in the First Information Report about the meticulous conduct of the accused and the eye-witnesses, it cannot be stated that, her evidence has to be altogether discarded. It is incumbent upon the court that, on over all examination of the evidence of the eye-witnesses, to ascertain whether the presence of such witnesses is probable at the time, place and date of the incident. In this case, though there are some discrepancies that will not go to the root of the prosecution case.
27. In this background, now we will examine the evidence of PWs. 10 & 11 also, though they have turned hostile, and to what extent they have spoken about the incident. PW.10-Krishna has stated that on that particular date of the incident, at about 8.30 p.m., he was standing near the shop of one Murali (PW.17). He has deposed that, he was at some distance from the place of incident and he saw somebody assaulting on the head of the deceased. He could not see that person because, there was darkness and he was standing at some distance near the shop of Murali and thereafter they all came near the house of the accused and saw the injured sustained injuries and thereafter they shifted him to the hospital. Very particularly, he has stated that, he came to know about the incident from other persons on the spot that, actually the accused has assaulted the deceased. In the course of cross-examination he has also stated that, he has seen the accused going towards the petty shop of Murali (PW.17). Therefore, he has stated about the presence of the accused and the deceased, PW.1 and others and also somebody assaulting the deceased and the deceased sustaining injury. Therefore, perhaps the reasons best known to the witnesses he has not specifically implicated the accused, and to that extent has not supported the case of the prosecution. Though he has not fully supported the case of the prosecution, but, he has very well stated about happening of the alleged incident. Therefore, in our opinion, though he turned hostile, his evidence cannot be discarded. The portion of his evidence which corroborate the evidence of other witnesses, particularly the other eye-witnesses, can very well be taken into consideration. Therefore, the evidence of this witness (PW.10) is also supportive to the evidence of the other eye-witnesses.
28. PW.11 is Ramesha. According to the prosecution, he was also standing near the shop of Murali (PW.17) and seen the incident. He has stated that, on the date of incident at about 8.00 p.m., he was going towards Devangi Village. He came near the shop of Murali (PW.17) and he saw the accused and deceased quarrelling with each other. Thereafter, this witness proceeded to the shop of one Murali about half an hour later at about 8.30 or 8.40 p.m., while he was going back, he saw some galata near the house of the deceased. He went there along with Murali and Krishna and saw that the injured Venkatesh was lying in the front portion of his house sustaining bleeding injuries to his head, and immediately, sister Geetha and others shifted the injured to the hospital and after some time, he came to know that somebody has assaulted that man. He was cross-examined by the prosecutor and suggested that, he has actually seen the accused assaulting the deceased with a club, but he denied the same. In the course of cross-examination it is elicited from him that, there are three or four stone steps in front of the house of the deceased and some stone slabs were also laid in front portion of the house of the deceased and there was no street light near the said place. It is also suggested that, the deceased was an alcoholic etc., but the said suggestions were denied.
29. In our opinion, PW.11-Ramesha also, stated the same version as that of PW.10. Though he is not specific about seeing the accused assaulting the deceased, nevertheless he has stated about all other circumstances, which were in existence at that particular point of time ie., about the presence of accused, deceased and the deceased sustaining injury and shifting him to the hospital and also the presence of PW.1 and other witnesses. Therefore, though this witness also turned hostile, but the other circumstances, as stated by the eye-witnesses are fully corroborated by this witness.
30. PW.17 (Murali) is the shop owner. In fact, he has supported the case of the prosecution. He has deposed that, his shop is situated in front of the house of the deceased at some distance. On that particular day, the accused at about 8.30 p.m., came to his shop. At that time, Ramesha and Krishna were present near his shop and they all saw the injured Venkatesh was lying in front of his house. So this evidence clearly goes to show that, there is no dispute with regard to the presence the witnesses- Krishna, Ramesha, PW.1 and others. Nothing worth has been elicited in the course of cross-examination of this witness. Therefore, the evidence of this witness also fully corroborates the evidence of the wife and children of the deceased. Therefore, in our opinion, though PW.1 and 7 to 9 are the close relatives, their evidence cannot be discarded, because the other witnesses (PWs. 10 and 11) to some extent corroborate the evidence of PWs.1 and 7 to 9, and PW.17 also has fully corroborated the evidence of the said witnesses.
31. PW.18-Geetha is another eye-witness.
According to the prosecution, PW.18 has stated that, she was working as a Staff Nurse and was residing in the quarters nearby the house of the deceased. In fact, she also knew the accused-Ramakrishna. She further deposed that, on 07.06.2012 at about 8.30 p.m., when she was in her house, she came to know that, the deceased Venkatesh had sustained injuries. Then immediately, she went to that spot and she found PWs. 1 and 7 to 9 on the spot and she also secured some localites and with the help of them she shifted the injured to the hospital in an ambulance and thereafter, she came to know about the death of the deceased at Manipal Hospital, and she also came to know from PW.1 that the accused has actually assaulted the deceased. Therefore, she denied the suggestion that, she was an eye-witness to the incident. Even in the course of cross-examination by the learned Public Prosecutor, she has supported the case of the prosecution to the extent as stated by her, in her examination-in-chief. In the course of her cross- examination by the counsel for the accused, she has stated that, first the injured was shifted to hospital at Devangi Village and where, they have not disclosed anything about the accused assaulting the deceased etc., though they were knowing that the accused assaulted the deceased as per the information received from PW.1. It is also elicited that there was street light at some distance of the house, though she was not stated the same in her examination in chief. Looking to the evidence of this witness, the presence of PWs. 1 and 7 to 9 at the place, date and time has not been disputed in the course of her cross-examination, as stated by her in her examination- in-chief. Therefore, the presence of the eye-witnesses and the injured sustaining injuries to his head are all not in dispute and in fact though she turned hostile to some extent, she corroborated the evidence of the eye- witnesses, to that extent.
32. Of course, learned counsel for the appellant drawing our attention and submitted that, though said witnesses had been to the hospital, they have not disclosed the name of the accused before any of the doctors. In this background, the evidence of PW.4, who was working as a Doctor in the hospital at Devangi Village can be looked into. PW.4 Dr. Dhananjaya has deposed that, the injured was first admitted to their hospital by Geetha Sister and others and when he enquired as to how the incident has happened, they have stated that the accused Ramakrishna has assaulted Venkatesh on his head and immediately he told PW.1 to shift the injured to the hospital at Thirthahalli. Therefore, this witness has stated at the earliest point of time that the name of the accused has been disclosed to him. Of course, the other doctors have not stated about any of the witnesses disclosing the name of the accused at that particular point of time. PW.12-Dr.Prabhakar, who was working as a Doctor in the hospital at Thirthahalli, who has in fact treated the injured on the history that he has sustained injury due to assault, but the name of the accused has not been disclosed to him. But, in the course of cross- examination, it was elicited that, PW.1 has told that the accused has actually assaulted the deceased and the same has been entered in MLC Register and that also clearly goes to show that, at the earliest point of time, the name of the accused was disclosed. If at all the name of the accused was not written in the MLC register, the accused could have secured the said document to show that the said statement of the Doctor is false. In fact, this fact is elicited in the course of cross-examination by the defence counsel. Of course PW.13-Dr. Ramachandrachari has not stated about anybody disclosing the name of the accused, but in the course of cross-examination, he has stated that, ‘a wooden log was used for the purpose of assault’, according to the learned counsel for the appellant, this evidence contradicts the seized articles, in this case. PW.14-Dr. Narendranath also in fact, in detail has examined the deceased and given his opinion in detail, which we have already discussed as to how the death was occurred and he also stated that if a person is assaulted with a club, wooden rod or any stick, such type of injuries could be caused. Therefore, on over all looking to the above said evidence reveals that, even at the earliest point of time the name of the accused was disclosed.
33. The discrepancies which are elicited in the evidence of PWs.1 & 7 to 9 and other eye-witnesses, in our opinion, are not the material contradictions or omissions, which can be seriously taken into consideration so as to uproot the case of the prosecution. The mere contradictions or omissions are not sufficient to discard the evidence of the eye-witnesses in this case. It is trite that the witnesses may improve or give different versions during the course of their evidence before the court, compared to their statements made earlier. It is the human tendency to differ from their earlier statement, but the said difference must not be so broad enough so as to totally disbelieve the said witnesses. In this context, it is worth to refer a decision of the Hon’ble Apex Court reported in AIR 1983 SC 753 [Bhawada Byhogibhai Vs. State Vs. State of Gujarath, wherein it has been observed inter alia that, “…..A witness though wholly truthful is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel, and out of nervousness, mix up facts, get confused regarding sequence of events or fill up details from imagination on the spur of moment.” Merely because of that, the court cannot dub those witnesses as ‘false witnesses’, but. their evidence has to be tested from other surrounding circumstances.”
34. We also add to the above said decision that, if more than one eye-witness are present, who witness one incident, there could be different types of reactions from each of them. It cannot be styled either as tutored impact or structured reaction of the witnesses. It is fallacious to suggest that the eye-witness would have done this or that on seeing the incident. Unless the reaction demonstrated by the eye-witness is so improbable or so inconceivable from any human being pitted in such a situation, it is unfair to dub his reaction as unnatural. Therefore, in our opinion, it is unfair to dub the evidence of the eye- witness/s as ‘interested testimony’. Therefore, we do not find any strong reason to discard the evidence of the eye- witnesses. In our opinion, the prosecution has proved beyond reasonable doubt the fact that, the accused on that particular day assaulted the deceased with a bamboo club and caused severe injuries to the deceased and due to which the deceased succumbed to the injuries later.
35. Now coming to the alternative submission made by the learned counsel for the appellant, as we have already noted in this judgment in the earlier part. The court has to examine whether the act of the accused falls under Section 302 of IPC or 304 Part-I or II of IPC.
36. We have made an observation that the motive fact is very feeble in this case. Actually, though the motive is not fully established by the prosecution, but some smoke of accusation is found to be in existence. In this background, the court has to examine the conduct of the accused and the deceased at the time of the incident. In this regard, the learned counsel for the appellant has relied upon a decision reported in AIR 2019 SC 264 [Bhagirath Vs. State of Madhya Pradesh], wherein the Hon’ble Apex Court considering the facts and circumstances of that case, has reduced the sentence for the offence under Section 304 Part II, though it found injuries sustained by the deceased are more than one and the prosecution has not explained about the injuries on the accused, and sentenced the accused to a period already undergone by them. In another ruling reported in AIR 2011 SC 2325 [Gopal and others Vs. State of MP], wherein also the Hon’ble Apex Court has considered that, the appellant had attacked an unarmed person and has caused as many as three gunshot injuries and it has not been held that he had acted in a cruel manner. The court has considered that, there was anonymity in the matter to assess and ultimately considered the facts and circumstances and observed that three knife injuries are caused and has reduced the sentence to 304 Part-I of IPC and sentenced the accused to suffer Rigorous Imprisonment for seven years. These decisions are not applicable to this case in a straightjacket manner.
37. However, the court has to consider the facts and circumstances of each case. There cannot be any precedent on facts, but only the law which has been laid down by the Hon’ble Apex Court has to be taken into consideration. In the above cited cases, only on the basis of the facts, the court has converted the offence from 302 IPC to 304 Part-I of IPC.
38. In our view in operating the sentence system, Court should adopt the corrective measures or the deterrence theory based on factual aspects. In each and every case by means of modulation, sentencing process be stern where it should be, and tampered with mercy where it warrants to be. The facts and circumstances in each case, pertaining to the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, conduct of the accused, the nature of weapons used and also injuries inflicted on the deceased and all other attending circumstances should be taken into consideration while imposing the sentence. The criminal law adheres in general to the principles of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. In fact, it ordinarily allows some significant discretion to the court in arriving at a sentence in each case. Therefore, we have to see in this particular case, whether the appellant has made out any ground for conversion of the offence from 302 of IPC to 304 Part-I or Part-II of IPC.
39. As we have visualized the entire case, on that particular day, the accused did not go to the spot armed with a bamboo stick, as none of the witnesses have stated that, when he came near the shop of Murali (PW.17), he was armed with a club. On the other hand, PW.11- Ramesha in his evidence has stated that, on that particular day, when he was coming from his house to Devangi village, to the shop of Murali (PW.17), he observed that, the accused and the deceased were quarrelling with each other and he went to the shop of one Naresh, and after half an hour, ie., at about 8.30 p.m. or 8.45 p.m., when he came back, he saw Venkatesh was lying in front of his house with some injuries. Therefore, he never stated that, at that particular point of time, the accused was having any club in his hand. PW.17-Murali also stated in his evidence that the accused and deceased were quarrelled with each other, and actually the deceased questioned the accused whether, ‘he had his dinner’, and thereafter, the accused went near the Gram Panchayath offence and brought a bamboo stick and went towards the house of the deceased Venkatesh and assaulted him. Therefore, on reading of the evidence of these witnesses and analyzing the entire evidence on record, it is clear that, the accused had come near the shop of Murali (PW.17) and at that time he was not armed with any club or stick and it appears he had no intention to assault the deceased. But, after conversation between the deceased, he went near the Gram Panchayath Office and brought a bamboo club and assaulted the deceased. This also clearly goes to show that, suddenly during conversation between the accused and deceased, the incident had taken place. What was the exact conversation taken place between the accused and deceased has not been either stated in detail by any of the witnesses or elicited from the witnesses during the course of their cross-examination. Therefore, it is clear that, the accused was unarmed at the time of conversation taken place between the accused and deceased and only thereafter, he went near the Gram Panchayath Office and brought a club and assaulted the deceased Venkatesh. This indicates that there must be some serious conversation taken place between the accused and deceased, which must have enraged the accused to bring a club and assault the deceased. Therefore, in our opinion, though the accused has brought a bamboo stick and assaulted three times on the head of the deceased and caused severe injuries, but we cannot say that it was premeditated or planned murder by the accused, but it was taken place in a spur of moment. The accused might be knowing that, if he assaults a person with a club for three times on the head, it may cause severe injuries and in turn the death of such person also may occur. Therefore, intention can be gathered even from the sudden action of the accused that, he had intended to assault the deceased on his head and particularly selecting the vital part of the body of the deceased. But, it can be said that, the said act of the accused emanate from the conversation between the accused and the deceased. Therefore, the Court can draw an inference on the basis of the above said circumstances that, due to the conversation between the accused and the deceased, the accused was enraged and due to sudden provocation of quarrel, he has brought a club and assaulted the deceased. Therefore, we are of the opinion that the above said act of the accused may not fall under Section 302 of IPC, but it fall under Section 304 Part-I of IPC. If the said provision 304 Part-I is read in a proper perspective, it clearly goes to show that if any act of the accused though not premeditated, but it was intentional and it is not due to the accused taking any undue advantage acted in cruel manner, but it has happened in sudden provocation or in a spur of moment due to quarrel. Such act of the accused fall under the Exception-IV to Section 300 of IPC. In this case also, in our opinion, the act of the accused fall under Section 304 Part-I of IPC.
40. Last but not least, what is the commensurate or proportionate punishment that requires to be imposed on the accused. The said Section 304 Part-I of IPC prescribes that, the sentence may be passed for life imprisonment or imprisonment for ten years with fine. In our opinion, this is not a case where maximum punishment requires to be imposed, because the accused and the deceased were cordial to each other and they were in talking terms prior to the incident. Even three or four days prior to the incident, they talked with each other and the accused in fact repaired the house of the deceased. Therefore, in our opinion, imposition of punishment of eight (08) year’s imprisonment and fine of Rs.1,00,000/- (Rupees One Lakh) with default sentence would be appropriate and commensurate with the act done by the accused. It is also to be noted that the accused is not shown to be an anti-social element and he has got any evil antecedents to his credit. Therefore, we are of the opinion that the above said sentence would meet the ends of justice.
41. With the above observation we proceed to pass the following:
ORDER i) The appeal is allowed in part.
ii) The judgment of conviction dated 20.12.2013 and order of sentence dated 21.12.2013 passed by the trial Court against the appellant/accused- Ramakrishna 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. The accused is sentenced to undergo imprisonment for a period of eight (08) years and to pay fine of Rs.1,00,000/- (Rupees One Lakh), in default of payment of fine, to undergo simple imprisonment for a period of two (02) years.
iii) If the appellant/accused deposits the fine amount of Rs.1,00,000/- (Rupees One Lakh), out of that, a sum of Rs.95,000/-
(Rupees Ninety Five Thousand) shall be paid as compensation to PW.1-Prema, who is the wife of the deceased Venkatesh and remaining amount of Rs.5,000/- (Five Thousand) shall be forfeited to the State.
Sd/- JUDGE KGR* Sd/- JUDGE