Karnataka High Court
Devappa Yappappa Sunagar vs The State Of Karnataka on 25 June, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JUNE 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL APPEAL NO.100234/2017
BETWEEN
DEVAPPA YALLAPPA SUNAGAR
S/O YALLAPPA SUNAGAR,
AGE: 43 YEARS, OCC: AGRICULTURIST,
R/O: HOSUR VILLAGE, TQ: SIGGAON,
DIST: HAVERI. (PRESENTLY IN JC)
... APPELLANT
(BY SRI.T.HANUMAREDDY, ADV.)
AND
THE STATE OF KARNATAKA
BY TADAS POLICE STATION,
TQ: SIGGAON, DIST: HAVERI,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA, DAHRWAD.
... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., SEEKING TO CALL FOR RECORDS IN S.C.NO. 13 OF
2013 DATED 25.10.2014 ON THE FILE OF I ADDL. DISTRICT
AND SESSION JUDGE AT HAVERI AND TO ALLOW THE APPEAL
AND SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE IN S.C.NO. 13 OF 2013 DATED 25.10.2014 ON THE
FILE OF I ADDL. DISTRICT AND SESSIONS JUDGE AT HAVERI
AND CONSEQUENTLY ACQUIT THE APPELLANT FROM ALL THE
CHARGES LEVELED AGAINST HIM.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.A.PATIL J., DELIVERED THE FOLLOWING:
:2:
JUDGMENT
Appellant - accused is before this Court seeking intervention in the judgment of conviction and order of sentence passed by the I Additional District and Sessions Judge, Haveri in S.C. No.13/2013 dated 25.10.2014.
2. We have heard the learned counsel Sri.T.Hanumareddy and the learned Additional S.P.P. Sri.V.M.Banakar for the respondent - State.
3. The factual matrix of the case are that the accused is none other than the own brother of mother of the complainant. His marriage was performed with P.W.5 - Kamalavva. For sometime, the accused looked after his wife very well. Thereafter, he started ill-treating and harassing, both mentally and physically by suspecting the fidelity of his wife - Kamalavva. In that light, in the intervening night on 20.10.2012 and 21.10.2012, accused harassed his wife and subjected her to cruelty both physically and mentally. Because of the said harassment, Kamalavva informed the said fact :3: over the phone to her mother Seetavva (deceased) on 21.10.2012 at about 06:00 a.m. Immediately, the deceased along with other elders came and advised the accused. He did not heed to the said advise and at that time, the deceased sent away Kamalavva and her son on the motorcycle. Accused with anger chased them by holding the club. As he was unable to catch them, immediately he returned back and as the deceased was sitting on a katta and as it was she who supported his wife to leave the place, the accused assaulted her forcibly with the club on her head. Due to which she fell down and became unconscious and subsequently she died in KIMS Hospital at about 02:20 p.m. On the basis of the complaint, a case was registered in Crime No.66/2012. Thereafter, after investigation, the charge sheet was laid against the accused.
4. The committal Court after following the procedure, committed the case to the Sessions Court, Sessions Court took the cognizance and secured the presence of the accused. The charge was framed. :4: Accused pleaded not guilty. He claims to be tried and as such, trial was fixed.
5. In order to prove the case of the prosecution, it got examined 28 witnesses, marked 26 documents and 9 material objects. Thereafter, accused was questioned under Section 313 of Cr.P.C. and he denied all the incriminating materials on record. The accused has not led any evidence on his behalf nor produced any documents. After hearing both the parties, impugned judgment came to be passed.
6. The main grounds urged by the learned counsel for the appellant - accused are that the judgment of conviction and order of sentence is against the law and the circumstances of the case on hand. It is further contended that the Trial Court has committed an error in appreciating the evidence of the material witnesses. It is his further submission that though the prosecution has made P.Ws.4, 5 and 6 as eyewitnesses, but the different timings which is stated by all these witnesses, creates a doubt in the case of the :5: prosecution, about their presence at the place of alleged incident and they are not the eyewitnesses. In that light, it falsifies the case of prosecution. It is his further submission that P.W.4 is from Kunnur Village and the incident has taken place in Hosur Village. No explanation has been given under what circumstances the presence of the said witnesses was there at the place of the incident. He further submitted that this witness is a chance witness and the same has been converted into eyewitness, only with an intention to rope the accused and get him convicted. It is his further submission that P.W.5 is none other than the wife of the accused and she with a grievance though not present, as per the case of the prosecution itself, she has been cited as an eyewitness. It is the case of the prosecution that immediately after the deceased telling to flee away. P.Ws.6 and 5 flee away on the motorcycle, they did so and even accused had chased them but could not reach them. Thereafter, the incident has taken place. Under such circumstances, they cannot be turned to be :6: eyewitnesses. It is his further submission that most of the other witnesses have not supported the case of the prosecution. Under such circumstances, the Trial Court ought to have given the benefit of doubt to the accused. It is his further submission that the recovery of material objects has also not been proved in accordance with law. The Trial Court without considering the said fact, has taken the evidence which is not acceptable and convicted the accused.
7. Alternatively, it is the contention of the learned counsel for the appellant that the materials goes to show that after abusing and insulting the accused, the deceased sent the wife of the accused and P.W.6 on the motorcycle and because of the said act, he chased to get back his wife and as he could not get back his wife, he was provoked and because of depriving of self control, in a sudden provocation, he has assaulted the deceased and he was not having any intention to cause the death of the deceased. The target was towards P.W.5 and under such circumstances, the Trial Court could :7: have given the benefit under Section 304-I or II of IPC, instead of convicting him for the offence punishable under Section 302 of IPC.
8. It is his further submission that already accused is in judicial custody for nearly 8 years and he may be given the benefit of set off, if this Court comes to the conclusion that the accused is liable to be convicted either under Section 304-I or II of IPC. On these grounds, he prayed to allow the appeal and set aside the judgment of the Trial Court.
9. Per contra, learned Additional S.P.P. vehemently argued and contended that there are eyewitnesses to the incident in question and the same which are produced is cogent, corroborative with the medical evidence and there is no reason to discard their testimony. Though the other witnesses have not supported the case of the prosecution, there is nothing to discard the evidence of P.Ws.4, 5 and 6. It is his further submission that though P.W.4 is from Kunnur Village, but during the course of cross-examination, his :8: presence has not been denied. Under such circumstances, he cannot be considered to be a chance witness and his evidence is acceptable in law. It is his further submission that the prosecution has clearly established the fact that the deceased died a homicidal death and the defence has not made out any case that it is other than the accused somebody has committed the said offence. Under such circumstances, the Trial Court has came to the right conclusion and has rightly convicted the accused. On these grounds, he prayed to dismiss the appeal.
10. We have carefully and cautiously gone through the submissions and perused the records, including the Trial Court records.
11. On perusal of the records, it indicates that P.Ws.1 and 2 are the inquest mahazar pancha to Ex.P-
1. They have not supported the case of the prosecution and they have been treated as hostile. P.W.3 is the spot mahazar pancha. He has also not supported the case of the prosecution. P.W.7 is another brother of the accused :9: and P.Ws.8 to 15 are the relatives and eyewitnesses to the alleged incident. They have not supported the case of the prosecution and they have been treated as hostile. P.W.22 is the scribe of the complaint - Ex.P-5. He has also not supported the case of the prosecution and he has been treated as hostile. Only evidence available before the Court is that of P.Ws.4, 5 and 6 for the alleged incident.
12. On going through the evidence which has been produced, P.W.4 in his evidence has deposed that immediately after the marriage, accused has looked after P.W.5 well and thereafter, he started assaulting and abusing P.W.5 - Kamalavva suspecting her fidelity and inspite of advise, accused did not heed to the request. It is his further submission that on 21.04.2012 at about 06:00 a.m. the wife of the accused - Kamalavva informed over the phone that unnecessarily the accused is suspecting her fidelity and assaulting and ill-treating her and called them to come to her house or otherwise she is going to end her life and thereafter, the deceased : 10 : and the grandson P.W.6 came on a motorcycle to Hosur and others came in a private vehicle and at that time, the accused was there in the house. All of them advised the accused but he did not heed to their advise and he started scolding them by holding a stick in his hand and was telling that he is going to assault P.W.5. When they were running here and there, at that time, the deceased told P.W.5 that the husband is not going to improve and asked P.W.6 to take P.W.5 on the motorcycle and made her to sit on pillion. When they started to proceed, accused with an intention to kill them, chased but they escaped and went towards Kunnur Village. Accused came back and he saw the deceased sitting on the katta of the house and he assaulted her with the club which he was holding on her head. As a result of the same, she fell down and even thereafter, she was assaulted. Though during the course of cross-examination, it is brought out that he left Kunnur at about 07:45 a.m. and came to Hosur at about 08:15 a.m. and he do not know what has been : 11 : mentioned in the contents of the complaint, but his evidence is not shaken to the fact that he was present and has seen the incident. Nothing is there on record so as to discard his evidence.
13. P.Ws.5 and 6 are the material witness. P.W.5 is none other than the wife of the accused and P.W.6 is the son of the accused and P.W.5. Though they have been cited as eyewitnesses in the present case on hand, but as per the case of the prosecution itself, when the accused came to assault P.W.5, by holding a stick, at that time, the deceased told to P.Ws.5 and 6 to go away on the motorcycle and accordingly, P.Ws.5 and 6 went on the motorcycle and accused had chased them. Thereafter, the accused came back and assaulted the deceased with club. Under such circumstances, at any stretch of imagination, there is no possibility of these two witnesses present at that time and seeing the accused assaulting the deceased with stick. In that light, they cannot be considered to be eyewitnesses to the alleged incident and their evidence does not repose : 12 : confidence in this behalf, that too when other witnesses, who are the relatives have not supported the case of the prosecution and they have been treated as hostile. But merely because other witnesses have turned hostile, the evidence of P.W.4 cannot be discarded. Even as rightly pointed by the learned Additional S.P.P. during the course of cross-examination, the presence of this witness has not been denied. Under such circumstances, it can be safely held that it is the accused who immediately after P.Ws.5 and 6 left on motorcycle, chased them thereafter returned and had assaulted the deceased, because of the injuries due to assault, mother of P.W.5 died.
14. It is well settled proposition of law that if a single eyewitness supports the case of prosecution and if his evidence is creditworthy and there is nothing brought on record to show that he is deposing falsely to implicate the accused with some motive, then under such circumstances, the said evidence cannot be rejected. The evidence of P.W.4 is also corroborated with : 13 : the evidence of P.W.25, the Doctor, who has conducted postmortem and has issued the postmortem report as per Ex.P-20 and opinion as per Ex.P-21. On perusal of the postmortem report, it indicates that the deceased had sustained defuse subdural haemorrhage over left hemisphere and subarachnoid haemorrhage over both hemisphere and basal region of brain and that there was fracture of the skull over right temporal bone. Though during the course of arguments, it is contended by the learned counsel for the appellant that the deceased sustained the said injuries due to fall from the katta, but at any stretch of imagination, if a person, who is sitting on a katta falls, then under such circumstances, that person will not sustain the injuries as mentioned in Ex.P-20. Under such circumstances, we are of the considered opinion that the said contention is not acceptable. Taking into consideration the evidence of P.W.4, it is consistent on the aspect of ill-treatment and harassment and assault committed by the accused. The Trial Court after taking into : 14 : consideration the said aspect, has rightly convicted the accused.
15. At this juncture, the learned counsel for the appellant - accused submitted that the accused was not having any intention, motive and there was no enmity or animosity whatsoever between the accused and the deceased to assault. But only because she provoked to take his wife on the motorcycle of P.W.6, the accused being provoked, assaulted and caused the injuries without any intention. Because of the old age, being unable to bear the injuries, she succumbed. In that light, it is the submission that the Trial Court instead of convicting the accused under Section 302 of IPC ought to have been convicted for the offence punishable under Section 304-I or II of IPC.
16. We have carefully and cautiously gone through the evidence and material placed on record.
17. In order to consider the case under Section 304-I and II of IPC, the case has to be made out under : 15 : exceptions No.1 or 4 of Section 300 of IPC. For the purpose of brevity we quote Section 300 of IPC and exceptions (1) and (4) which reads as under:
"300. Murder -Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly,--If its done with the intention of causing such bodily injury as the offender likely to cause the death of the person to whom the harm cause, or--
Thirdly. --If its done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.: 16 :
Exception 1.- When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or cause the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
Firstly.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of act.: 17 :
Exception 2.- xxx xxx xxx Exception 3.- xxx xxx xxx Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault."
18. On going through exception 1 of Section 300 of IPC, culpable homicide is not murder if the offender while doing the act deprived of the power of self control, by grave and sudden provocation. In order to bring the case under the said exception, accused has to show that he deprived of the power of self control, by grave and sudden provocation which is caused by the person whose death has been caused.
19. On going through the exception under Section 300 of IPC, the accused has to satisfy that : 18 : because of the provocation, he has deprived of the self control and has assaulted. On perusal of the evidence which has been produced, there is no motive or intention to cause death. When deceased informed the P.W.5 and P.W.6 that the accused is not heeding to the advise and when accused was holding the stick, the persons who were present there, apprehended that he may assault with the stick and they started to flee away. At that time, it is the deceased, who made P.Ws.5 and 6 to go away on the motorcycle. The accused chased them and thereafter, as he could not catch them, at that moment, he thought that it is only because, the deceased who made his wife and P.W.5 to flee away and in that light, because of the provocation, he has assaulted. In the normal circumstances, no man will allow his wife to go suddenly when somebody insists and if she goes away, then under such circumstances, the husband will be deprived his self control over the mind and will think that because of the act of deceased, his wife went away from him. In that light, he will be : 19 : provoked and will loose self control and he might have committed the offence. Even the evidence also goes to show that he was not intending to even assault the deceased, only because of the reason which has been stated above, he assaulted without intention or motive.
20. Under such circumstances, when a murder has been caused due to deprivation of self control, under the above said circumstances, then in that event, we are of the considered opinion that the act of the accused falls within the exception to Section 304-I of IPC and not under Section 304-II of IPC. He is liable to be convicted for Section 304-I of IPC. In that light, the Trial Court ought to have convicted the accused for the offence under Section 304-I of IPC instead of under Section 302 of IPC. In that light, accused is convicted for the offence punishable under Section 304-I of IPC, he is sentenced to undergo imprisonment which he has already undergone will meet the ends of justice and liable to pay fine of Rs.10,000/- with a default sentence of simple imprisonment for one year. The conviction and : 20 : sentence for the offence punishable under Section 498A is confirmed.
21. Keeping in view the facts and circumstances of the case, we proceed to pass the following order:
ORDER Appeal is partly allowed. The judgment of conviction dated 25.10.2014 and order of sentence dated 31.10.2014 passed by the learned I Additional District and Sessions Judge, Haveri in S.C. No.13/2013 is modified. The appellant - accused is convicted for the offence punishable under Section 304-I of IPC instead of Section 302 of IPC and sentenced to undergo imprisonment for a period which he has already undergone.
The imposition of fine amount with default sentence and conviction and sentence imposed for the offence punishable under Section 498A of IPC are confirmed.: 21 :
Registry is directed to intimate the Principal District and Sessions Judge, Haveri/concerned Jail Authorities through e-mail to release the appellant -
accused - Devappa Yallappa Sunagar forthwith, if he is not required in any other case.
Registry is directed to send back the Trial Court records forthwith.
Sd/-
JUDGE Sd/-
JUDGE Rsh