Karnataka High Court
Shrishail S/O Bapuraya Kshatri vs The State Of Karnataka on 6 August, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL No.200011/2014
Between:
Shrishail S/o Bapuraya Kshatri
Age: 28 Years, Occ: Agriculture
R/o Shivapur KD, Tq. Indi
Dist. Bijapur
... Appellant
(By Sri Iswaraj S. Choudapur, Advocate)
And:
The State of Karnataka
Through Indi P.S.
Represented by
Addl. State Public Prosecutor
Bench at Gulbarga
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
This Criminal Appeal is filed under Section 374(2)
of Cr.P.C., praying to set aside the judgment of
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conviction and order of sentence dated 13.12.2013
passed by the I Addl. Dist. & Sessions Judge, Bijapur in
SC No.67/2011 and acquit the appellant by allowing the
appeal.
This appeal coming on for Final Hearing this day,
B.A.PATIL J., delivered the following:-
JUDGMENT
The appellant being the sole accused seeking the intervention of this Court in the judgment of conviction and order of sentence dated 13.12.2013 passed by the I Addl. District and Sessions Judge, Bijapur in S.C.No.64/2011.
2. We have heard the learned counsel Sri Iswaraj S. Choudapur, appearing for the appellant and Sri Prakash Yeli, learned Addl. State Public Prosecutor for respondent - State.
3. Facts leading to the case of the prosecution are that;
The son of the complainant i.e., deceased-Ravi was not having any job, as such he had taken a sum of -3- Rs.70,000/- from his elder sister-Pavitra to run the Tum-Tum vehicle. Subsequently, appellant was facing financial problem, as such he requested the deceased- Ravi to give him a sum of Rs.60,000/- by promising that he is going to return the said amount within two months. By believing the words of the appellant, deceased-Ravi had given an amount of Rs.60,000/- to the appellant. But the appellant failed to return the said amount of Rs.60,000/-. In that light, the appellant and the deceased used to quarrel and inspite of that the appellant did not return the amount which was in due from him. In that light, on 07.12.2010, deceased-Ravi and one Pundalik (P.W.6) had went to Golasar village in order to go to Nad village. It is alleged that when both were standing near the bus-stand to have tea, at that time appellant came from Nad village side and the deceased asked the appellant to return the due amount of Rs.60,000/-. In that light, a quarrel took place between the appellant and the deceased. Appellant was -4- having a knife with him picked the same and stabbed on the left hip of the deceased and as a result of the same, he fell down and breathed his last. On the basis of the complaint, a case has been registered in Crime No.247/2010, thereafter after investigation the charge sheet was filed against the appellant.
4. The learned Magistrate after receipt of charge sheet, committed the case to the Sessions Court as per Section 209 of Cr.P.C, Sessions Court took the cognizance, secured the presence of the appellant, and after hearing both the sides, charge came to be framed, read over and explained to the appellant, who pleaded not guilty and claims to be tried and as such the trial was fixed.
5. To prove the case of the prosecution, prosecution got examined fifteen witnesses as P.Ws.1 to 15 and got marked 18 documents as Exs.P.1 to 18 and nine material objects as per M.Os.1 to 9. After closure of -5- prosecution side, statement of the appellant as required under Section 313 of Cr.P.C. was recorded by putting incriminating material as against him. Appellant denied the same and not chosen to lead defence evidence nor got marked any documents.
6. After hearing both the sides, the trial Court convicted the appellant for the offence under Section 302 of IPC. Challenging the same, the appellant is before this Court as appellant.
7. The main grounds urged by the learned counsel for the appellant are that the judgment of conviction and order of sentence passed by the trial Court is contrary to law, evidence and material placed on record. It is his further submission that the trial Court has relied upon only on interested testimony of the relatives, no independent witnesses have been examined though they were present at the place of the incident. It is his further submission that the -6- prosecution has not got examined the investigating officer whose evidence is very much essential either for the purpose of contradictions or omissions. In that light, the right of the appellant has been deprived. It is his alternative submission that the alleged incident in question has been taken place in a sudden and grave provocation. When the appellant went to the spot he was not knowing the fact that the deceased and P.W.6 were standing near bus-stand and in that light there is no pre-meditation or intention to cause the death of the deceased. The alleged incident has taken place when the deceased asked to repay the amount and being enraged the appellant has given a single blow that too on the hip of the deceased. Under such circumstances, the trial Court instead of convicting the appellant for the offence under Section 302 of IPC, it ought to have convicted the appellant for the offence under Section 304 Part-II of IPC. It is his further submission that the appellant is in custody for a period of 09 years and 07 -7- months and the benefit of set off may be given to him while acquitting him under Section 304 Part-II of IPC. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence.
8. Per contra, learned Addl. State Public Prosecutor vehemently argued and submitted that there are eyewitnesses to the alleged incident. P.W.6 is the person who was present along with the deceased and he has categorically deposed with regard to the deceased asking the money and at that time the appellant took out a knife and has pierced into the hip of the deceased and the deceased collapsed and died on the spot. It is further submitted that the said witnesses are natural witnesses and their presence is also not denied during the course of the evidence. It is his further submission that immediately after the incident, P.Ws.7 and 8 have seen the appellant running away from the scene of the -8- offence. The trial Court after taking into consideration the evidence of these witnesses has rightly convicted the appellant. It is his further submission that the appellant has taken a sum of Rs.60,000/- from the deceased and in this regard frequently quarrel was going on in between them and in that light the appellant used to carry knife always with him, which itself goes to show that he was having intention to take away the life of the deceased and in that light the appellant has assaulted the deceased and caused the death on the fateful day. There are no good grounds made out to convert the conviction entered into by the trial Court to one under Section 304 Part-II of IPC. On these grounds, he prayed to dismiss the appeal.
9. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the trial Court records.
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10. To prove the case, prosecution got examined P.W.15 witnesses. P.W.1 is the father of the deceased and the complainant. In his evidence, he has deposed that appellant is his co-brother's nephew and on 07.12.2010 when he was in the field, P.W.6-Pundalik called him over the phone and informed about the murder of his deceased-son-Ravi. Immediately, he along his wife, son Mallikarjun and daughter Sudharani went in a jeep to the place of incident and there they saw the dead body of the deceased and the injuries over it and he came to know that an amount of Rs.60,000/- was given by the Ravi to the appellant and when the deceased asked the appellant to return the same, appellant assaulted with knife and committed the murder and he has deposed that in this regard he has filed a complaint as per Ex.P-1. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness and this witness is not an eyewitness.
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11. P.W.2 is the inquest mahazar to Ex.P-2 Inquest Panchanama and also spot Mahazar to Ex.P-2 and seizure of M.O.1-knife. P.W.3 is the seizure mahazar of the clothes of the deceased as per Ex.P-4 and he is also a seizure mahzar pancha of the footwear of the appellant as per Ex.P-5. He has partly supported the case of the prosecution. P.W.4 is the co-pancha to Exs.P-4 and 5. P.W.5 is the sister of the deceased and she is a hearsay witness who deposed she has come to the place only after coming to know about the said incident which has been informed to her. P.W.6 is the material witness and he is an eyewitness to the alleged incident. In his evidence, P.W.6 deposed that on 07.12.2010 the murder of Ravi has taken place and on that day they were proceeding Golasar village for bank work as previously he was alone in house, he called the deceased-Ravi and both were wanted to go to Kalasar and when they want to catch the bus, at that time the appellant came from Nad village side and that there was
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a quarrel between the deceased and the appellant two months prior to the alleged incident and at that time he has resolved the dispute. On the date of incident, the deceased asked the appellant to return the amount and when appellant refused to repay the same there was exchange of words taken place and appellant by taking the knife pierced on the hip and removed the same and the deceased fell down on the ground and died on the spot. Thereafter, appellant ran away from the spot. He has further deposed that he has informed the same to P.W.1. During the course of cross-examination of this witness, nothing has been elicited so as to discard his presence at the place of incident.
12. P.W.7 is a circumstantial witness who has seen the appellant running away from the said place. He has deposed that after hearing the cry, came out of the hotel and saw the appellant running away and by the time he came to the place of incident, the body of
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the deceased was lying and the blood was also oozing from the hip. Though this witness has been partly treated as hostile, he has supported the case of the prosecution insofar as the appellant running away from the place of incident. This witness has not been cross- examined by the appellant. P.W.8 is also the similar witness to that of the P.W.7 and he has also supported to that extent and the said evidence corroborates with the evidence of P.W.7. On perusal of P.Ws.6 to 8, it indicates that the appellant came from Nad side village and when the deceased asked to return the amount of Rs.60,000/- an altercation took place in-between them and at that time the appellant while taking out the knife has assaulted and as a result of the same the alleged death has taken place. In this behalf the prosecution has clearly established the fact that the appellant has caused the death of the deceased. There is nothing to discard the evidence. Though P.W.6 is a relative and eyewitness and merely because he is related to the
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complainant his evidence does not fall to ground. His evidence is trustworthy and reliable, the same can be accepted and the accused can be convicted.
13. It is the alternative submission of the learned counsel for the appellant that the alleged incident has taken place without there being any pre- meditation or intention and the said incident has taken place in a spur of moment when the appellant came near the bus-stand and at that time the deceased asked him to repay the amount and there was exchange of words and in a heat of passion he has taken out the knife and that too assaulted on the hip of the appellant. If really he was having any intention to take away the life of the deceased, he could have chosen the vital part of the body instead of piercing into the hip and in that light it is his submission that he was not having any intention to cause the death of the deceased. In that light, though the trial Court has come to the conclusion
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that the appellant has committed the offence it ought not to have convicted the appellant under Section 302 of IPC instead it could have been considered the case for the offence punishable under Section 304 Part-I or II of IPC.
14. The co-ordinate Bench of this Court in the case of Shankara @ Malla & Ors. Vs. The State of Karnataka in Crl.A.No.1324/2015 and connected matter rendered on 09.01.2019, held as under;
"18. In order to consider the case under Section 304-I and II of IPC, the case has to be made out under 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 -
2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
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3rdly. - If it is 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 -
4thly. - 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.
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 causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:-
First.-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
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offence from amounting to murder is a question of fact.
Exception 2.- xxx xxx xxx Exception 3.- xxx xxx xxx Exception 4.--Culpable ho mic ide is not murder if it is co mmitted without pre meditation in a sudden f ight in the heat of pass ion upon a sudden quarrel and withou t the off ender's hav ing taken undue advan tage 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."
19. 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.
Second aspect is in order to attract exception No.4, four requisites must be satisfied by the accused (i) it was sudden fight (ii) there was no premeditation (iii) the act was committed in heat of passion and (iv) assailant has not taken undue advantage or acted in cruel manner."
15. We have carefully and cautiously by thoughtful consideration gone through provisions of
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law. In order to invoke the benefit of Exception-1 to Section 300 of IPC, the appellant himself show that there was provocation. Such provocation both sudden and grave which deprived him of the power of self control which is caused by the person whose death has been caused. In order to invoke Exception-4 to Section 300 of IPC, appellant himself must show that there exists above said conditions, then the cause of the quarrel is not material. With the above said ingredients, we have perused the evidence placed on record which indicates that the appellant came to the place of incident when the deceased and P.W.6 were standing and he was not participating, he may be standing there. When the appellant came there the deceased asked him to return the amount of Rs.60,000/- and in that light some altercation took place and when the altercation took place then in that light the appellant took out the knife and has given a single blow that too on the hip of the deceased which goes to show the appellant was not
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having any intention to cause the death of the deceased and in a spur of moment when the alleged incident took place he pierced on the hip of the deceased and as a result of the same, he fell down and collapsed. In that light, we are of the considered opinion that the trial Court instead of convicting the appellant for the offence under Section 302 of IPC it ought to have considered the case under Section 304 Part-II of IPC.
16. Though during the course of the argument, the learned counsel for the appellant contended that the investigating officer has not been got examined, but merely because the investigating officer has not been examined, it is not going to vitiate the entire case of the prosecution. At the most, he may come and depose what investigation he has done. But on perusal of the evidence of P.W.13, he has also registered the case and issued the FIR and partly investigated the case. In that light, it is not going to take away the case of the
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prosecution. Even the prosecution has clearly established by examining the inquest mahazar pancha as per evidence of P.W.2 and the doctor, P.W.14 in his evidence he has deposed that the death of the deceased is due to injuries over abdominal organs caused by hemorrhage shock secondary to the cardio respiratory failure as a result of stab wound caused with sharp object to the abdominal organs. In that light, the prosecution has established the fact that the deceased died an unnatural death.
17. Taking into consideration the above said factual matrix and the manner in which the alleged incident has taken place in a heat of passion, we are of the considered opinion that appellant is no doubt liable to be convicted but the trial Court instead of convicting the appellant for the offence under Section 302 of IPC ought to have convicted the appellant - accused under
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Section 304 Part-I of IPC. Taking into consideration, the above said aspect, we pass the following;
ORDER The appeal is allowed in part.
The judgment of conviction and order of sentence passed by the I-Addl. District and Sessions Judge at Bijapur in S.C.No.67/2011 dated 13.12.2013 is modified.
The conviction of the appellant for the offence under Section 302 of IPC is modified and the appellant-accused is hereby convicted for the offence under Section 304 Part II of IPC and he is sentenced to undergo imprisonment for the period, which he has already undergone and he is further sentenced to pay fine of Rs.10,000/- for the offence under Section 304 Part II of IPC instead of fine amount of Rs.70,000/- imposed by the trial Court for the
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offence under Section 302 of IPC. In default of payment of fine of Rs.10,000/-, the appellant- accused shall further undergo rigorous imprisonment of SIX months.
The Jail Authorities are hereby directed to release the appellant-accused Shrishail S/o Bapuraya Kshatri forthwith if he is not required in any other case.
The Registry is directed to intimate the I- Addl. Sessions Judge, Vijayapura and the concerned Jail Authorities through e-mail to release the appellant-accused- Shrishail S/o Bapuraya Kshatri forthwith.
Sd/-
JUDGE Sd/-
JUDGE BL