IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF NOVEMBER 2019 PRESENT The Hon’ble Mr.Justice B. M. Shyam Prasad And The Hon’ble Mr. Justice Sachin Shankar Magadum CRIMINAL APPEAL NO.59/2017 Between:
SYED ALI, S/O NANNESAB, AGED ABOUT 42 YEARS, R/AT CHIKKAJAMBURU VILLAGE, SHIKARIPURA TALUK, SHIVAMOGGA – 577 427.
(BY SRI.VENKATESH.P.DALWAI, ADVOCATE) AND:
STATE OF KARNATAKA, BY SHIRALAKOPPA POLICE STATION, REPT. BY PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE – 560 001.
(BY SMT. NAMITHA MAHESH, HCGP) ...APPELLANT ...RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 04.01.2016 PASSED BY THE III ADDL. SESSIONS JUDGE, SHIVAMOGGA IN S.C.NO.35/2015 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC AND ETC., THIS APPEAL COMING ON FOR HEARING THIS DAY, B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the accused calling in question the judgment of conviction and order of sentence passed in S.C.No.35/2015 on the file of the III Additional Sessions Judge, Shivamogga (for short, ‘the Sessions Court’) convicting 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.50,000/- with the provision for default rigorous imprisonment for a period of two years.
2. The prosecution’s case is that the appellant on 22.09.2014, committed the murder of his wife, Smt. Dilfiza Kanum. There was difference of opinion between the couple because the appellant was insisting upon his wife to handover the custody of certain property papers to enable him to secure certain financial assistance, and she was reluctant because they had five children to look after. On the unfortunate day, a fight in this regard broke out between the couple when the wife was working in the kitchen. The wife refused to handover the papers and therefore, the appellant, who was agitated, picked up a stick (M.O.1) lying in the kitchen and repeatedly assaulted the deceased on her head. The wife suffered bleeding injuries. She was initially taken on a motorcycle to the local Government Hospital and later shifted to Shikaripura by an ambulance. From there, the deceased was shifted to Government Hospital at Shivamogga, where she was declared brought dead. The elder daughter of the couple lodged the first information with the police, and such information was lodged in the early hours on 23.09.2014, and the appellant was apprehended in the evening hours of the very same day.
3. The Sessions Court has framed charges against the appellant for the offence punishable under Section 302 of IPC and as an alternative charge for the offence punishable under Section 304 Part-II of IPC. The prosecution has examined as many as 14 witnesses and marked 21 exhibits and produced 7 material objects. The witnesses examined by the prosecution include the eldest daughter, Smt. Sameera Parveen (PW.1), the neighbors, Sri. Iqbal Ahammed Khan (PW-3) and Sri. Musheer Khan (PWs – 4), the staff nurse at the local Hospital, Smt. Shwetha (PW.2), inquest mahazar witness, Smt. Thaseena Khanum (PW-5), the brother of the deceased, Sri. Issar Ahamed Khan (PW.6), the spot mahazar witnesses, Basaiah and Revanasiddappa (PWs-7 and 8) and the Doctor who has conducted the postmortem and furnished the Postmortem Report (Ex.P-11), Dr. Nagappa as PW.9. The stick with which it is alleged that the appellant assaulted the deceased is marked as M.O.1, and the witnesses to the mahazar under which the stick is seized, Sri Nasrulla Khan and Sri Siddeshwara are examined as PWs.10 and 11. Sri Nasrulla Khan (PW-10) has not supported the prosecution’s case. The Tahsildar, who has conducted inquest, Smt.Kavitha Yogappanavar is examined as PW.13. Sri. Shivakumara and Sri. Nalavagalu Manjunatha, the Investigating Officers, are examined as PWs.12 and 14. The documents are the Postmortem Report, FSL Report, the Spot Mahazar, Inquest Mahazar and Seizure Mahazar. All the witnesses, except PW.10 as stated above, have supported the case of the prosecution.
4. The Sessions Court, on appreciation of the evidence, has convicted the appellant for the offence punishable under Section 302 of IPC, and sentenced the appellant to undergo imprisonment as aforesaid concluding that the prosecution, based on the evidence on record, is able to bring home the guilt of the appellant for the offence punishable under Section 302 of IPC beyond doubt.
5. The learned counsel for the appellant submitted that the appellant does not dispute the homicidal demise of the deceased, and in fact, the ground urged in this appeal is confined to the submission that the appellant could not have been found guilty of the offence punishable under Section 302 of IPC, and the appellant, at the most, could have been found guilty only for the offence punishable under Section 304 Part-II of IPC. Further, if it is established that the appellant could only have been found guilty of the offence punishable under Section 304 Part-II, the sentence be confined to the imprisonment already undergone by the appellant-accused. Therefore, the questions for consideration in this appeal would be, “1) Whether the conviction of the appellant- accused by the Sessions Court for the offence punishable under Section 302 of IPC is irregular and impermissible in the light of the evidence on record, and the appellant-accused could be convicted only for the offence punishable under Section 304 Part-II of IPC?
2) If the appellant-accused could be convicted only for the offence punishable under Section 304 Part-II of IPC, what would be the appropriate sentence?”
6. There is no dispute that the prosecution’s case is pivoted on the testimony of the elder daughter of the couple, who is the eye witness to the occurrence, and except this witness, none of the other witnesses is an eye witness. The elder daughter - PW.1 in the first information lodged with the police immediately after the incident while narrating the reason for the assault by the appellant, has stated that the couple had heated exchange of words while they were in the kitchen. The appellant was enraged because the deceased was refusing to handover the custody of property papers despite telling her that he would do away with her life if she did not hand over such papers. The deceased did not handover the papers, and therefore, he picked up a stick, which was lying in the kitchen. The wife came out of the kitchen and entered the room where the witness was present with her siblings. The appellant assaulted the deceased on her head. She protested with her father against assaulting the deceased, the appellant despite such protest, assaulted the deceased again. The deceased, her mother, collapsed to the floor with bleeding injuries. She cried for help, and her uncle and others rushed in. The father dropped the stick, and stood at the place of occurrence. It is thereafter the deceased was taken on a motorcycle to a local hospital and later shifted to Shivamogga after having stopped at Primary Health Centre in Shikaripura. The doctors at the Government Hospital at Shivamogga declared that the deceased was brought dead, and the appellant was apprehended in the evening on the next date.
7. These circumstances will have to be read in conjunction with the testimony of the elder daughter, PW-1. In her evidence, the daughter has spoken about the disagreement and the exchange of words between the couple in the kitchen and for the first time, contrary to the statement in the complaint, has deposed about the appellant assaulting the deceased in the kitchen, the deceased running out of the kitchen and entering the room where she was present with her siblings. In departure from her statement in the complaint she has also deposed that the appellant once more assaulted the deceased despite her protestations and pleading with the appellant to spare the mother at least in the interest of children. It is from these material on record it will have to be seen whether the appellant intended to commit the murder of his wife.
8. It is settled that even if it is established that the appellant could have known that his action would likely to cause death, only the offence punishable under Section 304 Part-II is made out if the assaulting person did not have the intention to kill. The circumstance that could be gathered from the testimony of the daughter (eye witness), and material for deciding whether the appellant had the intention of causing bodily injury to the deceased with the intent to bring about her death, would be that the daughter mentions persisting disagreement between the couple over sale of an immovable property which led to heated exchange of words between the couple in this regard just before the occurrence.
The appellant, being enraged because the deceased refused to hand over the custody of the papers and to look at the problem from his perspective, picked up the stick, which was available in the kitchen, and assaulted the deceased. If the subsequent turn of events, are objectively assessed, excluding the embellishment, it is obvious that the appellant did not assault the deceased in the kitchen, but being enraged, he followed her after the exchange of words in the kitchen to the room where the children were and assaulted her with a stick that was immediately available. It would also be pertinent to mention that it is undisputed that the appellant did not flee from the place of occurrence and he was at the place of occurrence until the relatives came in.
9. These circumstances, in the considered opinion of this Court, do not speak about any intendment in the appellant to commit the murder of the deceased. The Sessions Court has not considered the aforesaid circumstances. If it is established that the appellant did not have the intent to kill the deceased and he assaulted the deceased with a stick immediately available after a persisting disagreement with her, he cannot be convicted for murder. The appellant would only be guilty of the offence punishable under Section 304 Part-II of IPC. For the foregoing reasons, the first of the questions is answered in favour of the appellant-accused.
10. The appellant, being taken into custody on 23.09.2014, has been in custody for over five years as of now. There is no allegation against the appellant of any wrong doing while in custody. Considering the maximum penalty prescribed for the offence, and the length of detention already undergone by the appellant-accused, we are of the considered opinion that it would be just and proper to confine the sentence to the substantive sentence already completed by the appellant-accused allowing set off for the said period as contemplated under section 428 of Cr.P.C. The sentence of fine remains unaltered. Therefore, the following:
ORDER The appeal is allowed-in-part. The judgment of conviction and order of sentence passed by the III Additional Sessions Judge, Shivamogga dated 04.01.2016 in S.C.No.35/2015 for the offence punishable under Section 302 of IPC is set aside. The appellant-accused is convicted for the offence punishable under Section 304 Part-II of IPC and is sentenced to undergo imprisonment for the period that he has already undergone during the pendency of the case before the Sessions Court and before this Court. The appellant-accused shall deposit the fine amount as imposed by the Sessions Court within the prescribed time.
The Prison Authorities are 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, forthwith.
Sd/- Judge Sd/- Judge CA