Karnataka High Court
Sri. Subramani vs State Of Karnataka on 22 March, 2022
Author: B. Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR.JUSTICE. S.RACHAIAH
CRIMINAL APPEAL NO.482 OF 2019
BETWEEN:
1. SRI. SUBRAMANI
S/O LATE NANJUNDAPPA,
AGED ABOUT 32 YEARS,
R/AT 2ND MAIN ROAD,
6TH CROSS, GANDHINAGAR,
KOLAR - 563 101.
2. SRI. LOKESH
S/O LATE NANJUNDAPPA,
AGED ABOUT 30 YEARS,
R/AT 2ND MAIN ROAD,
6TH CROSS, GANDHINAGAR,
KOLAR - 563 101.
... APPELLANTS
(BY SRI. BHARATH KUMAR .V, ADVOCATE)
AND:
STATE OF KARNATAKA BY
GULPET POLICE
KOLAR - 563 101.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
B.R. AMBEDKAR VEEDHI,
2
BANGALORE - 560 001.
... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374 (2) OF THE CODE OF CRIMINAL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT
OF CONVICTION AND ORDER OF SENTENCE DATED
01.03.2019 PASSED BY THE II ADDITIONAL SESSIONS
JUDGE, KOLAR IN S.C. NO.76/2013 - CONVICTING THE
APPELLANTS/ACCUSED NOS.1 AND 2 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 READ WITH
SECTION 34 OF IPC.
THIS APPEAL COMING ON FOR HEARING, THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The present criminal appeal is filed by the appellants/accused Nos.1 and 2 against the impugned judgment of conviction and order of sentence dated 01.03.2019 passed in S.C.No.76/2013 on the file of the II Additional District and Sessions Judge, Kolar, sentencing to undergo imprisonment for life for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code and to pay fine of 3 Rs.25,000/- each, in default, to undergo simple imprisonment for a period of one year.
2. It is the case of the prosecution that the complainant-mother of the deceased Hanumappa filed the complaint before Gulpet Police Station, Kolar stating that Narayanappa was the husband of complainant-Nanjamma and he had three brothers namely, Dodda Venkataravanappa, Chikka Venkataravanappa and Nanjundappa. About 15 years back, Narayanappa and his brothers got separated from joint family and started residing separately and they are cultivating in their respective lands allotted to their shares. After the death of Narayanappa, his brother Dodda Venkataravanappa, Chikka Venkataravanappa and Nanjundappa and their children i.e., accused No.1 - Subramani and accused No.2 - Lokesha filed a suit before the Civil Court seeking partition on the ground that the land allotted to them in the 4 partition was not proper/inappropriate. It is alleged in the complaint that on 09.02.2013 at about 8.30 p.m., deceased Hanumappa, who is none other than son of the complainant was in his house, received a call to his mobile phone and thereby proceeded towards shop of Sampangi Ramaiah Shetty-PW.9. Complainant-mother of the deceased also went following her son and she heard shouting of people near the shop of Sampangi Ramaiah Shetty-PW.9. At that time, accused No.1- Subramani and accused No.2-Lokesha threw chilly powder in the eyes of Hanumappa, Hanumappa escaped and went inside the shop of Sampangi Ramaiah Shetty. Accused persons chased him and went inside the shop. It is alleged that accused No.2-Lokesha assaulted the deceased Hanumappa with knife on his abdomen, chest, neck and other parts of the body. Thereafter, both accused persons fled away. When Hanumappa was being taken to R.L. Jalappa Hospital, on the way he died. Based 5 on the aforesaid complaint, the jurisdictional police registered a case against the accused persons in Crime No.9/2013 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.
3. After investigation, the Investigating Officer filed charge-sheet against the accused persons holding that accused persons committed the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. After committal of the matter, the learned Sessions Judge secured the presence of the accused, framed the charge, read over it to the accused persons in the language known to them, who denied the charge and pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution examined in all 18 witnesses as PWs.1 to 18 and marked the documents Exs.P.1 to P.27 6 and Material Objects M.Os.1 to 12. After completion of the evidence of prosecution witnesses, the statement of the accused persons as contemplated under Section 313 of the Code of Criminal Procedure was recorded. The accused persons denied all the incriminating circumstances adduced against them.
5. Based on the aforesaid pleadings, the learned Sessions Judge has framed the following point for consideration:
" Whether the prosecution proves beyond all reasonable doubt that on 9.2.2013 at about 8.30 p.m., near the shop of CW.2 Sampangi Ramaiah Shetty at Gandhinagar, Kolar accused persons with their common intention, picked up quarrel with Hanumappa due to old vengeance and land dispute, threw chilly powder in the eyes of Hanumappa, stabbed on the chest, stomach and back of Hanumappa with knife and did commit murder by intentionally or knowingly causing the death of deceased Hanumappa 7 and thereby committed an offence punishable U/S 302 r/w Sec.34 of IPC?"
6. After considering both oral and documentary evidence on record, the learned Sessions Judge, answered the point in the affirmative holding that the prosecution has proved beyond reasonable doubt that on 09.02.2013 at about 8.30 p.m., near the shop of PW.9 at Gulpet, Kolar, the accused persons with the common intention picked up quarrel with deceased Hanumappa and threw chilly powder on the eyes of the deceased and stabbed with knife on his abdomen, chest, neck and other parts of the body and committed murder intentionally and thereby, the accused persons committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Accordingly, by the impugned judgment of conviction and order of sentence, the learned Sessions Judge, sentenced accused Nos.1 and 2 to undergo imprisonment for 8 life and to pay fine of Rs.25,000/- each, in default, to undergo simple imprisonment for a period of one year. Hence, the present Criminal Appeal came to be filed.
7. We have heard the learned counsel for the parties.
8. Sri. Bharath Kumar, learned counsel for accused Nos.1 and 2 contended with vehemence that the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge sentencing the accused persons to undergo imprisonment for life for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and to pay fine of Rs.25,000/- is erroneous and is contrary to the material on record, cannot be sustained and is liable to be set-aside. Learned counsel contended that the learned Sessions Judge failed to record the finding regarding the question of reality, credibility, 9 correctness and legality of the witnesses and failed to consider other attending circumstances, which are normally expected to do so. He further contended that an unfortunate incident took place between cousin brothers near the shop of PW.9- Sampangi Ramaiah Shetty in respect of land dispute. The said aspect has not been considered by the learned Sessions Judge. He further contended that dispute arose between the cousin brothers only in respect of allotment of lesser share and due to sudden provocation, accused Nos.1 and 2 caused the death of Hanumappa. This is not a case to impose extreme punishment for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code to the accused persons, who are none other than family members of deceased/cousin brothers of deceased.
9. He further contended that the evidence of the prosecution and documents relied upon 10 clearly depicts that it is a case which falls under the provisions of Section 304 Part I and not under Section 302 of the Indian Penal Code. He further contended that the trial Court committed an error in relying upon the evidence of PW.6-K.V. Anjanappa, who is said to be the eye witness and panch witness to Ex.P4 and he has not supported the case of the prosecution. He further contended that the evidence of PW.7 is no way assistance to the prosecution case since he turned hostile and he is said to be the panch witness to Ex.P.4 i.e., recovery of M.Os.4 to
6. He further contended that during the cross- examination of PWs.6 and 7, nothing has been elicited by the prosecution and it is further contended that PW.8-complainant-mother of the deceased is said to be eye witness to the incident, she also denied lodging the complaint and she has not even stated the motive. Therefore, prosecution has made an attempt to create false story against the appellants and filed false case against innocent 11 persons. Merely because of civil dispute with regard to partition between Narayanappa-husband of PW.8 and his brothers, the trial Court convicted the accused persons and the said aspect was not considered. Therefore, the trial Court has committed a grave error in convicting the accused persons and therefore, sought to allow the Criminal Appeal.
10. Per contra, learned Additional Special Public Prosecutor for respondent-State justified the impugned judgment of conviction and order of sentence passed by the trial Court and contended that PW.9, who is the eye witness to the incident has stated that there was quarrel between accused persons and deceased-Hanumappa in front of his shop and accused No.1 threw chilly powder in the eyes of the Hanumappa and accused No.2 stabbed the Hanumappa with M.O.1-knief on his chest, abdomen and stomach. PW.8, who is mother of the 12 deceased and complainant specifically stated in the complaint that there was a dispute between deceased-Hanumappa and accused persons in respect of land property and thereby, the accused persons had vengeance/enmity against the deceased. Thereby, unfortunate incident occurred. Therefore, he sought to dismiss the appeal.
11. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration in the present appeal is:
"Whether the appellants/accused persons have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and to lesser the punishment under the provisions of Section 304 Part I and II of the Indian Penal Code, in the facts and circumstances of the present case?13
12. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record including the original records carefully.
13. This Court being the Appellate Court, in order to re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon.
(a) PW.1-Ramesh, eye witness deposed that he never seen the accused persons and deceased Hanumappa and he does not know anything about the case and he has not personally witness the accused persons assaulting deceased with knife and committed murder near the shop of PW.9 - Sampangi Ramaiah Shetty.
During his cross-examination, he denied 14 the statement for having given as per Ex.P1 before the Police, he turned hostile.
(b) P.W.2- K. Ramanjalu, eye witness deposed that he know the accused
persons and deceased Hanumappa. On 09.02.2013 at 8.00 p.m. when he was standing in the upstairs of his house, Hanumappa went inside the shop of Sampangi Ramaiah Sheety-PW.9 and when he came down, he saw blood stains on the body of Hanumappa and he was shifted to hospital in an ambulance and then, he came to know that somebody stabbed Hanumappa with knife. He further stated that he does not know whether there was vengeance between the accused persons and deceased Hanumappa, turned hostile. 15 He denied the case of the prosecution and also denied the statement given before the police as per Ex.P.2.
(c) PW.3 - Nagaraja, inquest mahazar witness to Ex.P3 deposed that about 3 to 4 months back at 10.00 a.m. when he went to Jalappa Hospital, Kolar, the police took his signature on inquest mahazar and he does not know the contents of the documents. The police have not conducted the inquest in his presence, thereby he turned hostile.
(d) PW.4 - Narayanaswamy, inquest mahazar witness to Ex.P.3 deposed that on 10.02.2013 at 10 a.m., in his presence, the police drawn inquest mahazar on the dead body of Hanumappa and thereby, supported the case of the prosecution.
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(e) PW.5 - Bharathi deposed that deceased Hanumappa is none other than her husband, PW.8 -Nanjamma is her mother-in-law, accused persons are sons of younger brother of her father-in-law; about 10 years back her father-in-law Narayanappa was dead; after the death of her father-in-law, there was land dispute between her husband and cousins of her husband and same was decided in the Civil Court, her husband told her that again accused persons are making galata for the purpose of property. She further deposed that on 09.02.2013 at 9.00 p.m., after finishing dinner, when they were watching TV, at that time, her husband deceased Hanumappa received call to his mobile phone and he proceeded towards the shop of Sampangi Ramaiah Shetty-PW.9 17 in his motor cycle. After sometime, her mother-in-law/complainant also gone near the shop of Adeppa. She further deposed that when she came outside the house, she saw crowd near the shop of Sampangi Ramaiah Shetty-PW.9. On enquiry, she came to know that one person was stabbed by knife and then, she saw her husband was murdered and she asked her mother-in-law that who murdered her husband, CW.1 told that Sampangi Ramaiah Shetty-PW.9 know about the same. She further deposed that she had been to R.L. Jalappa Hospital, Kolar along with dead body of her husband in an ambulance and from there to police station and police enquired Sampangi Ramaiah Shetty- PW.9 and he gave statement that one of the accused threw chilly powder on her 18 husband and another stabbed her husband with knife and police recorded the statement, thereby she supported the case of the prosecution.
(f) PW.6 - Anjinappa, eye witness and seizure mahazar witness to Ex.P.4 has deposed that on 09.02.2013 between 8-30 to 9-00 p.m. after dinner, he came near the shop of Sampangi Ramaiah Shetty-PW.9 and people gathered there and saw Hanumappa lying with blood stains. He himself along with Shankarappa and Lakshminarayana took Hanumappa in an Ambulance to Hospital. He further stated that he has not personally witnessed accused No.1 and accused No.2 assaulting the deceased with knife and murdered him. He never gave any statement before the 19 police saying that he had seen the quarrel and thereby, turned hostile.
(g) PW.7 - Narayanaswamy, seizure mahazar witness has deposed that about 6 to 7 months back on the say of police, he put his signature on Ex.P.4 mahazar and police have not seized any articles in his presence and he does not know the contents of Ex.P.4 and turned hostile.
(h) PW.8 - Nanjamma, who is complainant as per Ex.P.6 supported the case of the prosecution.
(i) PW.9 - Sampangi Ramaiah Shetty, eye witness deposed that his shop is located in 2nd Cross of Gandhinagar, Kolar. He know deceased Hanumappa and accused persons. On 09.02.2013 at about 5.00 p.m., deceased Hanumappa came 20 to his shop, at that time, Teacher Venkataramanappa was sitting near his shop, deceased Hanumappa told some words to said Venkataramappa and then he left the place. He further deposed that on the same day, at about 8.00 p.m. deceased Hanumappa and accused persons quarreled near his shop, accused No.1 - Subramani threw chilly powder in the eyes of deceased, Hanumappa rushed inside his shop, at that time, accused persons chased Hanumappa and went inside his shop, again accused No.1 - Subramani threw chilly powder on deceased and accused No.2 - Lokesha stabbed with M.O.1 - knife on the chest, upper stomach, right side chest of Hanumappa. He fell down. He further deposed that they called ambulance and shifted the deceased to 21 R.L. Jalappa Hospital, Kolar, then police recorded his statement and prepared Ex.P.7 Mahazar near his shop and through Ex.P.7 mahazar, seized blood stained clothes, blood stained mud in his presence as per M.O. 7 and 8. Thereby, supported the case of the prosecution.
(j) PW.10 - Munivenkataramanappa, eye witness deposed that he knows accused persons, deceased Hanumappa and PW.8 Nanjamma and accused are cousins of deceased Hanumappa. On 09.02.2013 at 5.00 p.m. when he was sitting near the shop of Sampangi Ramaiah Shetty-PW.9 at that time, deceased Hanumappa told him that accused persons are making black magic on him, for that he advised him that there is nothing like black magic and 22 then he went away. He further stated that he does not know what happened then; he has not personally witnessed accused persons stabbing deceased Hanumappa with knife and murdered him. He never gave any statement before the police alleging that accused persons assaulted deceased Hanumappa and thereby turned hostile.
(k) PW.11 - Srinivas, eye witness deposed that he know PW.8 - Nanjamma, her son deceased Hanumappa and accused persons. But he does not know anything about the case. He has not personally seen accused persons stabbing the Hanumappa with knife and committed his murder and denied for having given statement before the police as per Ex.P.9 and turned hostile.
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(l) PW.12 - Hemavathi, eye witness has stated that she knows PW.8-Nanjamma, her son deceased Hanumappa and accused persons. PW.9 is her husband. On 09.02.2013 at 8.30 p.m., when she was cooking in her house, she heard sound near the shop, she came near shop and saw accused persons are coming out from their shop but she has not personally seen the accused persons stabbing deceased Hanumappa with knife and committed his murder and she denied for having given statement before the police as per Ex.P.10 and thereby turned hostile.
(m) PW.13 - Venkatesha, retired soldier deposed that on 10.02.2013 at the mortuary of R.L. Jalappa Hospital, Kolar he put his signature on Ex.P.3 - inquest 24 mahazar; about six to seven months back police prepared Ex.P.7 mahazar near the shop of P.W.9 and through Ex.P.7 seized MO.7 and MO.8 and through Ex.P.4 mahazar, police seized MO.3 to 6 blood stained clothes of deceased in his presence; then police drawn Ex.P.11 and thereby supported the case of the prosecution.
(n) PW.14 - Dr. A Bangarappa, Medical Officer deposed that on 10.02.2013 between 10.35 a.m. and 12.30 p.m., he conducted postmortem of deceased Hanumappa and found grievous injuries on the dead body and opined that the death is due to stab injury sustained over the chest and issued EX.P.15 Postmortem report and Ex.P.16 report and opined that injuries mentioned in 25 Ex.P.15 may be caused when assaulted with MO.1 and 2 knife, supported the case of the prosecution.
(o) PW.15 - Mustaq Ahmed, Junior Engineer, PWD, Kolar deposed that on the request made by police, he visited the spot and prepared the sketch as per Ex.P.27, supported the case of the prosecution.
(p) PW.16 - A. Krishnamurthy, ASI, deposed that on 09.02.2013 at 11.30 p.m., when he was Station House Officer of Police Station, PW.8 - Nanjamma appeared and filed written complaint - Ex.P.6. On the basis of the same, he registered Cr. No.9/2013 under Section 302 read with Section 34 of the Indian Penal Code and sent Ex.P.14 - FIR to the Court and to his official superiors and then handed over for further investigation to CW.27 - 26 Circle Inspector, supported the case of the prosecution.
(q) PW.17 - R. Jagadish, CPI deposed that on 09.02.2013 he took further investigation from PW.16 and verified the spot and deputed his staff to apprehend the accused; then he instructed his staff CW.21 to take photographs of dead body of Hanumappa and further deposed that he conducted inquest mahazar as per Ex.P.3 in the presence of panchas and prepared Ex.P.7 - mahazar and seized MO.8 sample blood from the spot and also seized MO.7 blood stained newspaper. Further deposed that CW.21 police constable produced MO.3 to 6 blood stained clothes of deceased and he seized the same through Ex.P.4 mahazar 27 on 10.02.2013, he recorded the statements of eye witnesses and after investigation he filed charge-sheet against the accused persons. Thereby, supported the case of the prosecution.
(r) PW.18 - Dr. Gundamma Patil, FSL Officer examined the articles, which are produced in sealed cover and opined that there is no poison in the body of the deceased.
Based on the oral and documentary evidence, the learned Sessions Judge proceeded to convict the accused under Section 302 read with Section 34 of the Indian Penal Code.
14. The gist of the Ex.P.6-Complaint by PW.8, who is none other than mother of the deceased is that her husband-Narayanappa had three brothers by name Dodda Venkataravanappa, 28 Chikka Venkataravanappa and Nanjundappa. About 15 years back, Narayanappa and his brothers got partitioned the joint family properties and residing separately with their respective shares. After the death of her husband - Narayanappa, his brothers i.e., brother-in-law of PW.8 Dodda Venkataravanappa, Chikka Venkataravanappa and Nanjundappa and their children i.e., accused No.1 - Subramani and accused No.2 - Lokesh filed a suit before the Civil Court on the ground that the land allotted to them in the partition was disproportionate. That on 09.02.2013 at about 8.30 p.m., deceased Hanumappa, who is son of the complainant was in his house, received a call and proceeded towards shop of one Sampangi Ramaiah Shetty. At that time, complainant heard shouting of people near the shop of Sampangi Ramaiah Shetty. At that time, accused No.1-Subramani and accused No.2-Lokesha threw chilly powder on the eyes of Hanumappa, Hanumappa escaped and went inside 29 the shop of Sampangi Ramaiah Shetty. Accused persons chased the deceased and went inside the shop. It is stated that accused No.2-Lokesha assaulted the Hanumappa with knife on his abdomen, chest, neck and other parts of the body. Based on the same, the complaint was lodged. Accordingly, the jurisdictional police filed a charge- sheet against the accused persons. The fact remains that deceased Hanumappa, accused Nos.1 and 2 are cousin brothers. The dispute is only in respect of landed property. PW.1 Ramesha, PW.2-K.Ramanjalu, PW.3 Nagaraja, PW.6 Anjinappa, PW.7 Narayanaswamy, PW.10 Munivenkataramanappa, PW.11 Srinivas and PW.12 Hemavathi were turned hostile and not supported the case of the prosecution. PW.5 wife of the deceased deposed that there was quarrel between her husband and cousin brothers of her husband with regard to the land dispute. PW.8 mother of the deceased also deposed that there was dispute 30 in respect of landed property and there was scruple. PW.9 Sampangi Ramaiah Sheety, who is the eye witness to the incident also deposed that there was a quarrel between the accused and deceased near his shop with regard to the landed property and in the scruple, due to sudden provocation, accused No.1 threw chilly powder on the deceased Hanumappa and accused No.2 stabbed the deceased on his abdomen, chest and other part of the body. Thereby, the Hanumanthappa died.
15. The entire case of the prosecution is only about the motive behind the murder, that is only regarding allotment of share. The quarrel between the parties is spoken by the PW.5-wife, PW.8- mother of the deceased and PW.9-eye witness. The said aspect has not been considered by the learned Sessions Judge. With regard to the allotment of shares, there was scruple between the parties, thereby the deceased uttered filthy language in 31 front of PW.10-Munivenkataramanappa, who deposed that he does not know about the incident that is who stabbed the Hanumappa. PW.12 also deposed that she does not know who stabbed the deceased. The evidence of prosecution witness in particular, PW.5-wife of the deceased, PW.8-mother of the deceased and PW.9-shop owner specifically stated on oath that there was a scruple between the parties in respect of allotment of shares of the property held by Narayanappa, father of the deceased Hanumappa and thereby, incident took place between the parties only in respect of property and nothing else. Due to quarrel and in view of provocation made by the deceased Hanumappa uttering a filthy language towards accused persons, they lost self control and accused No.1 threw chilly powder and accused No.2 stabbed the deceased with knife. Therefore, it is a clear case falls under Exception I to Section 300 of the Indian Penal Code and attracts punishment under Part I of 32 Section 304 and not under Part II of Section 304 of the Indian Penal Code. Without considering the said aspect, the learned Sessions Judge proceeded to convict the accused under Section 302 of the Indian Penal Code.
16. A careful perusal of the entire evidence on record clearly depicts that the present case falls under Exception I of Section 300 of the Indian Penal Code, which reads as under:
"Section 300.xxx xxx xxx Exception I: 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 or causes the death of any other the person by mistake or accident."
A careful perusal of the said provision makes it clear that Culpable homicide is not murder if the offender whilst deprived of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the 33 death of any other person by mistake or accident. In the present case, accused Nos.1 and 2 suddenly attacked the deceased and accused No.2 stabbed with MO.1 - knife is nothing but culpable homicide not amounting to murder. Therefore, the offence clearly falls under provision of Section 304 Part I of the Indian Penal Code and not under Section 302 of the Indian penal Code as already stated by us.
17. Taking into consideration the mitigating circumstances, the relationship between the deceased and the accused are cousin brothers and dispute is only with regard to the landed property an opportunity has to be given to the accused persons to reform themselves since they have already undergone sentence for a period of more than nine years. The core notion of the reformative theory is that, "the sanctions of the criminal law should be used to effect a transformation in the offender, with the two-fold aim of protecting society 34 and of enhancing the offender's well-being". Thus, the reformative theory aims at socialization of the offender so that the factors which motivated them to commit crime are eliminated and gets a chance of leading a normal life in the society. It is well known that the reformative theory has been defined as "an effort to restore a man to society as a better and wiser man and a good citizen".
18. The statement of Victor Hugo that, 'to open a school is to close a prison' contains a great truth. If persons of doubtful character are given training or education in such a manner as to enable them to earn their livelihood by honest means then they would not need to adopt criminal methods for their subsistence. Turner puts forward the logic of Carrit who said "reformative theories forget that if punishment is to be punishment it must be unpleasant while the cause of reformative education is only accidentally unpleasant. We cannot put 35 remorse ready-made into a criminals mind, but we can stimulate it by giving him a pain akin to that of remorse, making him feel the indignation of impartial observers. In rarest of rare case, extreme punishment of imprisonment for life can be imposed. Therefore, we are of the considered opinion that sentence has to be reduced.
19. Considering the relationship between the deceased Hanumappa and accused persons sentence has to be reduced. Considering the statements of the complainant, who is the mother of deceased and PW.5, who is the wife of deceased and PW.9, who is an eye witness that quarrel took place between the parties and when the deceased uttered filthy language towards accused persons, the sudden unfortunate incident took place. Taking into consideration the surrounding circumstances and that the accused persons are family holders, who have already incarcerated for more than NINE 36 years, an opportunity should be given to reform themselves and for rehabilitation.
20. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Lochan Shrivas vs. State of Chhattisgarh reported in 2021 SCC Online SC 1249, wherein, at paragraphs 53, 55 and 56, it is held as under:
"53. This Bench, recently, in the case of Mofil Khan v. The State of Jharkhand, has observed thus:
"8. One of the mitigating circumstances is the probability of the accused being reformed and rehabilitated. The State is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused. Death sentence ought not to be imposed, save in the rarest of the rare cases when the alternative option of a lesser punishment is unquestionably foreclosed (See : Bachan Singh v. State of Punjab (1980) 2 SCC 684). To satisfy that the sentencing aim of reformation is unachievable, rendering life imprisonment 37 completely futile, the Court will have to highlight clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigour when the Court focuses on the circumstances relating to the criminal, along with other circumstances (See : Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498). In Rajendra Pralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC 460, this Court dealt with the review of a judgment of this Court confirming death sentence and observed as under:
"45. The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability (not possibility or improbability or impossibility) that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence. This is one of the mandates of the "special reasons"
requirement of Section 354(3) CrPC and ought not to be taken lightly 38 since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the court, through evidence, that the probability is that the convict cannot be reformed rehabilitated. This can be achieved by bringing on record, inter alia, material about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Similarly, the convict can produce evidence on these issues as well."
55. In view of the settled legal position, it is our bounden duty to take into consideration the probability of the accused being reformed and rehabilitated. It is also our duty to take into consideration not only the crime but also the criminal, his state of mind and his socio- economic conditions.
56. The appellant is a young person, who was 23 years old at the time of commission of the offence. He comes from a rural background. The State has not placed any evidence to show that 39 there is no possibility with respect to reformation and the rehabilitation of the accused. The High Court as well as the trial court also has not taken into consideration this aspect of the matter. The appellant has placed on record the affidavits of Leeladhar Shrivas, younger brother of the appellant as well as Ghasanin Shrivas, elder sister of the appellant. A perusal of the affidavits would reveal that the appellant comes from a small village called Pusalda in Raigarh district of Chhattisgarh. His father was earning his livelihood as a barber. The appellant was studious and hardworking. He did really well at school and made consistent efforts to bring the family out of poverty. The conduct of the appellant in the prison has been found to be satisfactory. There are no criminal antecedents. It is the first offence committed by the appellant. No doubt, a heinous one. The appellant is not a hardened criminal. It therefore cannot be said that there is no possibility of the appellant being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative."
21. It is well settled and whilst it is undoubtedly true that society has a right to lead a 40 peaceful and clearance life, without pre-roaming criminals creating rope in the life of ordinary peace- loving symbol but it is equally strong in the foundation of reformative theory, which propounds that a single society cannot be achieved only through creative attitudes and inductiveness and that public harmony, brotherhood and mutual acceptability ought to be fastened. Doubt Thus, first time offenders (present accused persons) have to be liberally accorded a chance to repent their fault and look forward to a bright future and to reform themselves to lead a happy life through model in the village not only themselves and to the deceased Hanumappa's family members PW.8 - mother and P.W.5 - wife and should not show their anguish and ensure that there should not be any further abuse or invoke the law on their own hands and should not disturb the public peace and harmony. 41
22. Whist, the Hon'ble Supreme Court has declared that the principles for sentencing and proportionality/balancing of aggravating and mitigating circumstances have to be taken into consideration while imposing imprisonment for life. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of State of Madhya Pradesh vs. Suresh reported in (2019) 14 SCC 151, wherein, at paragraphs 13 and 14, it is held as under:
"13. Therefore, awarding of just and adequate punishment to the wrongdoer in case of proven crime remains a part of duty of the court. The punishment to be awarded in a case has to be commensurate with the gravity of crime as also with the relevant facts and attending circumstances. Of course, the task is of striking a delicate balance between the mitigating and aggravating circumstances. At the same time, the avowed objects of law, of protection of society and responding to the society's call for justice, need to be kept in mind while taking up the question of sentencing in any given case. In the ultimate 42 analysis, the proportion between the crime and punishment has to be maintained while further balancing the rights of the wrongdoer as also of the victim of the crime and the society at large. No straitjacket formula for sentencing is available but the requirement of taking a holistic view of the matter cannot be forgotten.
14. In the process of sentencing, any one factor, whether of extenuating circumstance or aggravating, cannot, by itself, be decisive of the matter. In the same sequence, we may observe that mere passage of time, by itself, cannot be a clinching factor though, in an appropriate case, it may be of some bearing, along with other relevant factors. Moreover, when certain extenuating or mitigating circumstances are suggested on behalf of the convict, the other factors relating to the nature of crime and its impact on the social order and public interest cannot be lost sight of."
23. During the course of arguments, when the Court proposes the reformative theory to the accused, learned counsel, Sri. Bharath Kumar for accused persons on instructions submits that proportionate fine may be imposed and the accused 43 persons will reform themselves and will not indulge in any criminal activities and will not harm the deceased family members PW.5, 8 or any other persons in the village and they will ensure that they will become model to the entire village. The said submission is placed on record.
24. Taking into consideration all the facts and circumstances of the present case, we are of the considered opinion that the accused have made out a case to interfere with the impugned order of sentence for the offence punishable under Section 302 of the Indian Penal Code.
25. For the reasons stated above, the point raised in the present appeal is answered partly affirmative holding that the accused persons made out a case to interfere with the impugned judgment of conviction and order of sentence and modify the same.
44
26. In view of the above, we pass the following:
ORDER
(i) The Criminal Appeal is allowed in part.
(ii) The impugned judgment of conviction dated 01.03.2019 made in S.C.No.76/2013 on the file of the II Additional Sessions Judge, Kolar is hereby modified.
(iii) Accused Nos.1 and 2 are hereby convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.2,00,000/- each (Total Rs.4,00,000/-), in default, to undergo further imprisonment for a period of 2½ years for the offence punishable under Section 302 of the Indian Penal Code.
(iv) The appellants/accused are entitled to the benefit of set off under Section 428 of the Code of Criminal Procedure.
(v) Exercising powers under Section 357(3) of the Code of Criminal Procedure, out of the fine amount of Rs.4,00,000, Rs.3,00,000/-45
is ordered to be paid to PW.5 - wife of deceased and Rs.1,00,000/- is ordered to be paid to PW.8 - mother of the deceased through demand draft within a period of one month from the date of receipt of certified copy of this order.
(vi) The jail authorities after completion of sentence (ten years rigorous imprisonment) imposed by us and after payment of fine through demand draft shall proceed to release the accused persons in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE MBM