Karnataka High Court
Manjegowda vs State Of Karnataka on 17 April, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No.515 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF APRIL, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL No.515 OF 2023
BETWEEN:
1. MANJEGOWDA,
S/O BOMMEGOWDA,
AGED ABOUT 25 YEARS,
R/AT MADAPURA VILLAGE,
KIKKERI HOBLI,
K. R. PETE TALUK,
MANDYA 571423.
...APPELLANT
(BY MS. RAKSHA KEERTHANA K., ADVOCATE FOR
Digitally signed SRI. KEMPARAJU., ADVOCATE)
by MALATESH AND:
KC
Location: High
Court of 1. STATE OF KARNATAKA,
Karnataka BY KIKKERI POLICE STATION,
REP. BY ITS PUBLIC PROSECUTOR,
HIGH COURT COMPLEX,
BENGALURU 560001.
...RESPONDENT
(BY SRI K.S. ABHIJITH, HIGH COURT GOVERNMENT PLEADER)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C BY THE APPELLANT PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
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CRL.A No.515 of 2023
DATED 28.12.2022, PASSED BY THE III ADDITIONAL DISTRICT
AND SESSIONS JUDGE, MANDYA (SITTING AT
SRIRANGAPATNA) IN S.C.NO.5039/2018, CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 341, 504 AND 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/accused-Manjegowda, son of the victim- Bommegowda, filed the present Criminal Appeal against the judgment of conviction and order of sentence dated 28.12.2022 passed in S.C.No.5039/2018 on the file of the III Additional District and Sessions Judge, Mandya, sitting at Srirangapatna, convicting him for the offence punishable under Section 341 of the Indian Penal and sentencing to undergo simple imprisonment for a period of three months, convicting for the offence punishable under Section 504 of the Indian Penal and sentencing to undergo simple imprisonment for a period of six months, and convicting for the offence punishable under Section 302 of the Indian Penal and sentencing to undergo rigours imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of six months.
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2. It is the case of prosecution that, on the basis of complaint-Ex.P.2 lodged by P.W.1-Shankara, stating that Bommegowda had two sons viz., Dileepkumar and Manjegowda. Dileepkumar was working as a driver at Bengaluru and Manjegowda was doing agricultural work at Madapura village. Manjegowda-accused used to pick up quarrel with his father-Bommegowda (victim) on the ground that the property has not been equally partitioned. The property was orally partitioned and katha and other revenue documents were not changed. P.W.1-Shankara, cousin brother of Dileep Kumar and accused, had conveyed panchayath and advised the accused not to quarrel with his father.
3. When things stood thus, on 23.07.2017, at 9.00 am, when accused and deceased were going to their agricultural land along with agricultural equipments, when they reached near the land of C.W.6-Chandra, who has not been examined, quarrel started between them in relation to partition of property. When the accused demanded to effect partition, the deceased told that it is not possible to give the entire property to accused's share. Thereby, verbal altercations took place. The deceased abused the accused in filthy language and -4- CRL.A No.515 of 2023 accused also abused the deceased. In the rift between son and father, accused assaulted his father on the back side of the head, left ear and other parts of the body with M.O.7-axe and caused grievous injuries. Thereby, killed Bommegowda. Thereafter, he fled away from the spot on motorcycle bike bearing registration No.KA-54/H-2587 belonging to P.W.3.
4. On the basis of the aforesaid complaint lodged at 11.00 am on 23.07.2017, the jurisdictional police registered a case in Crime No.163/2017 for the offences punishable under Sections 341, 504 and 302 of the Indian Penal Code. After investigation, jurisdictional police filed Charge Sheet against the accused for the aforesaid offences.
5. Since the matter is exclusively triable by the Sessions Court, the learned JMFC, committed the matter to the Court of Sessions. The learned Sessions Judge secured the presence of accused, framed the Charge, read over the same to the accused in the language known to him, who pleaded not guilty and claimed to be tried.
6. In order to establish its case, the prosecution, in all, examined 19 witnesses as P.Ws.1 to 19, marked the -5- CRL.A No.515 of 2023 documents Exs.P.1 to P.43 and material documents M.Os.1 to
15. The accused though did not lead any defense evidence, except marking four documents as per Exs.D.1 to D.4.
7. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge framed the following points for consideration:
"1. Whether the prosecution proves beyond reasonable doubt that, on 23.07.2017 at 9.00 am, in agricultural land bearing Sy.No.247/1 of Madapura village, Kikkeri Hobli, K.R.Pete Taluk, within the limits of Kikkeri Police Station, accused wrongfully restrained his father deceased Bommegowda and picked up quarrel with him regarding the partition of the properties and thereby accused has committed the offence punishable under Section 341 of Indian Penal Code?
2. Whether the prosecution further proves beyond reasonable doubt that on the above said date, time and place accused intentionally insulted the deceased Bommegowda by abusing him with filthy words, he gave provocation to the deceased intending and knowing it to be likely that such provocation will cause the deceased to break public peace and thereby accused has committed the offence punishable under Section 504 of IPC?-6- CRL.A No.515 of 2023
3. Whether the prosecution further proves beyond reasonable doubt that on the above said date, time and place accused assaulted Bommegowda with Axe and intentionally caused his death and thereby accused has committed the offence punishable under Section 302 of IPC?"
8. Considering both oral and documentary evidence available on record, the learned Sessions Judge recorded a finding that the prosecution proved beyond reasonable doubt that on 23.07.2017 at 9.00 am, in agricultural land bearing Sy.No.247/1 of Madapura village, Kikkeri Hobli, K.R.Pete Taluk, within the limits of Kikkeri Police Station, accused wrongfully restrained his father deceased Bommegowda, picked up quarrel with him with regard to partition of properties and thereby committed an offence punishable under Section 341 of Indian Penal Code. Further, accused intentionally insulted his father deceased Bommegowda by abusing him in filthy language, gave provocation to the deceased intending and knowing it to be likely that such provocation will cause the deceased to break public peace and thereby accused committed an offence punishable under Section 504 of IPC and further, accused assaulted Bommegowda with Axe and intentionally caused his -7- CRL.A No.515 of 2023 death and thereby committed an offence punishable under Section 302 of the Indian Penal Code. Accordingly, the learned Sessions Judge convicted the accused for the offence punishable under Section 341 of the Indian Penal and sentenced to undergo simple imprisonment for a period of three months, convicted for the offence punishable under Section 504 of the Indian Penal and sentenced to undergo simple imprisonment for a period of six months, and further convicted the accused for the offence punishable under Section 302 of the Indian Penal and sentenced him to undergo rigours imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of six months. Hence, the present Criminal Appeal is filed.
9. We have heard the learned Counsel for the parties.
10. Ms.Raksha Keerthana, learned counsel for the appellant contended with vehemence that the impugned Judgment of conviction and order of sentence passed by the Trial Court convicting the accused for the offencepunishable under Sections 341, 504 and 302 of IPC is erroneous and contrary to material on record and is liable to be set aside. She -8- CRL.A No.515 of 2023 is further contended that PW.1-Shankara has lodged a complaint as if he is the eye-witness, but has turned hostile to the case of the prosecution. Thereby, evidence of PW.1 cannot be taken into consideration. Further, PW.3 who came to the village on the same day on the information given by PW.1 who is the elder son of the deceased and brother of the accused, has not lodged any complaint before the jurisdictional police and admittedly, CW.6 in whose land the incident is alleged to have happened, has not been examined. Thereby, learned Sessions Judge was not justified in convicting the accused merely on the basis of evidence of PW.1 and PW.2. She further contended that the spot mahazar witness to Ex.P3 and seizure mahazar witness as per Ex.P7 turned hostile and not supported the case of the prosecution. She would further contend that though the prosecution in all examined 19 witnesses, alleged eye-wintesses PW.6, PW.7, PW.14 and PW.15-material witnesses have turned hostile to the case of the prosecution. Learned Sessions Judge without considering the evidence of the above said witnesses in a proper perspective, proceeded to convict the accused erroneously.
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11. The learned counsel for the appellant further contend that as admitted by PW.3 who is the elder son of the deceased and brother of the accused, there was an oral partition, but there was no division between the parties. There was no quarrel between parties until marriage of accused one year prior to the incident. Accused and deceased were residing together in the village as PW.3 was residing at Bengaluru as admitted in the cross-examination of PW.3. The accused demanded for partition, for which, deceased had refused. When the accused and deceased were going to their land, the accused picked up a quarrel regarding partition of the property. Deceased told accused that he has to give share to another son also and property cannot be divided. Thereby, due to sudden provocation, the accused abused the deceased in filthy language and assaulted the deceased on his head and other parts of body with an axe. PW.3 who was residing in Bangalore, used to visit the village during festivals and other occasions. Admittedly, deceased had given Rs.1,00,000/- to PW3 to purchase a car. Thus, accused was unhappy that there was a discrimination between two sons, even though he looked
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CRL.A No.515 of 2023after his father. Therefore, he asked for division of the property.
12. It is further contended that there was no other incidents prior to the present incident of quarrel and the incident has happened due to sudden provocation. She would further contend that in the absence of any motive on the part of the accused, the accused has been falsely implicated and the conduct of the witnesses PW.1, PW.3 and inquest mahazar witnesses is highly unnatural and cannot be relied upon. The evidence of the prosecution witnesses is inconsistent. Therefore, it cannot be relied upon. Therefore, it is not a case attracting Section 302 of IPC as both accused and deceased were residing together and due to sudden provocation, the unfortunate incident has happened. Hence, she prays for allowing of the appeal.
13. Per contra, Sri.K.S.Abhijith, learned HCGP while justifying the conviction and order on sentence passed by the learned Sessions Judge, would contend that as per Ex.P2- complaint by PW.1 who is the relative of deceased, accused and PW.3, there was a quarrel with regard to division of the
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CRL.A No.515 of 2023property and a Panchayath was held. On the unfortunate day, i.e., on 23.07.2017 , when PW.1 was going along with one Ramegowda, he has seen the accused and deceased quarreling and accused assaulted the deceased with MO.7. Thereby, he has killed his own father. Based on the aforesaid complaint, the jurisdictional Police registered a case in Crime No.163/2017 for the offence under Sections 341, 504 and 302 of IPC. PW.1 has reiterated the averments made in the evidence. Even though he turned hostile to the case of the prosecution, the fact remains that he is an eye-witness to the homicidal death of deceased, which is not in dispute. He would further contend that the evidence of PW.3 who is the son of the deceased and brother of the accused discloses that there was a partition among the deceased, accused and PW.3. Therefore, in order to get the share of his father, the accused has committed the murder of his father. The evidence of the doctor-PW.4 and evidence of PW.1 and PW.3 clearly depicts the death of the deceased as homicidal death. He would further contend that the evidence of PW.1 and PW.3 clearly depicts that the accused picked up quarrel in the matter of transfer of property with deceased and assaulted him with M.O7-axe of the left side of
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CRL.A No.515 of 2023his head. Thus, he has intentionally murdered his father for the sake of property. Thereby, he is liable to be convicted for the offence under Sections 341, 504 and 302 of IPC, which is just and proper. Therefore, he sought for dismissal of the appeal.
14. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in this appeal is:
"Whether the accused has made out a case to interfere with the impugned Judgment and Order of sentence, convicting the accused for the offence under Sections 341, 504 and 302 of IPC and whether the appellant has made out a case to allow the present appeal in the peculiar facts and circumstances of the case?"
15. We have given our anxious consideration to the arguments advanced by the learned counsels for the parties and perused the entire material on record including original records carefully.
16. This Court being the appellate Court, in order to re- appreciate the entire material on record, it is relevant to
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CRL.A No.515 of 2023consider the evidence of the prosecution witnesses and the documents relied upon.
i) PW-1 Shankar is the first informant and eye-
witness to the incident as per the case of the prosecution who has lodged an FIR as per Ex.P2 and he is the relative of the deceased, accused and PW.3. In the examination-in-chief, he has deposed that he does not know with whom accused and deceased Bommegowda were residing. He has further stated that he has not seen accused and deceased in his lands and he is not aware of the murder of Bommegowda. He has further deposed that there was a partition amongst accused, deceased and PW.3, but he does not know about the properties available with Bommegowda and he has not seen his land. He has further denied the contents of Ex.P2. Therefore, the evidence of P.W.1 is totally against his own averments in the complaint-Ex.P3. The evidence of PW.1 is contrary to each other in so far as the averments made in the complaint, examination-in-chief and cross-
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CRL.A No.515 of 2023examination. He has turned hostile to the case of the prosecution and his evidence is no more helpful to the case of the prosecution.
ii) PW.2-Ramesha is the eye-witness to the incident. He has identified Ex.P2-complaint, Ex.P3- mahazar and Ex.P4-photographs taken and recovery of MO.7. He has deposed that he knows PW.3-Dileep kumar, accused and Manjegowda and after the death of his wife, Bommegowda was residing with accused. According to PW.2, there was no enmity or quarrel between deceased and the accused. He has further deposed that his land is situated 300 meters from the land of Bommegowda. That he had no information about the lands and other issues of Bommegowda. He has deposed that on the date of the incident, he had gone to his land. There he heard the screaming sound at a distance of 20-25 meters. He has further stated that PW.3 and himself were working in the same factory at Bangalore and PW.3 has misused factory money. He has further
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CRL.A No.515 of 2023deposed that he has not seen the accused assaulting the deceased. Therefore, he has turned hostile to the case of the prosecution.
iii) PW.3-M.B.Dileep Kumar is the brother of accused and son of deceased. He has deposed that he is residing in Bangalore and working as cab driver. He deposes that there was division of property. There was no panchayath held earlier with regard to the fights between his father and accused. He further admits that he saw the accused bike in police station after 2 days of the incident and he admits that there were no blood stains on the said bike. He came to village on the date of the incident and has not lodged any case. Thereby, his evidence in no way is helpful to the prosecution.
iv) PW.4-Eshwaragowda is the pancha to seizure mahazar of axe-MO.7. He is the pancha to seizure mahazar of accused blood stain cloth ExP.8. He has deposed that the accused had taken out the axe hidden in the bush and handed over the same
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CRL.A No.515 of 2023to Police, which was seized under Ex.P7-mahazar. He is the pancha to seizure mahazar of bike as per ExP.11. He is the pancha to seizure mahazar of deceased clothes-MO.10 to 15 as per ExP.12. He admits that on the alleged date of incident he had not been to the police station and after 15 days of the incident police called him and took his signature on a document and he admits that he does not know what was written in the said documents at Ex.P8, P10, P11 and P12, which he signed. Thereby, his evidence is not helpful to the case of the prosecution.
v) PW5-Suresha M.N. has deposed that he came to know that accused Manjegowda assaulted on the head of his father Bommegowda and he died. As per his say earlier there was quarrel between the accused and deceased Bommegowda.
Subsequently, there was strained relationship. During the course of cross-examination, it is elicited that accused Manjegowda being Agriculturist, was
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CRL.A No.515 of 2023cultivating his portion of land. Later, he turned hostile to the case of prosecution.
vi) PW6-Devegowda is the panch witness.After the murder of Bommegowda, the police came near the canal bund and taken his signature on Ex.P3. According to him one Devarajegowda was also present at the spot. But he has turned hostile to the contents of Ex.P3-mahazar drawn at the earliest point of time and denied seizure of MOs 1 to 6 in his presence.
vii) According to PW.7-Devarajegowda, after the murder of Bommegowda, the Police came near canal bund and taken his signature on Ex.P3. Ex.P3 is the mahazar drawn by PW13-PSI of Kikkeri Police Station, at the spot of the incident where the dead body of Bommegowda was found. However, both PW6 and PW7, mahazar witnesses have not supported the case of the Prosecution. In the present case, there is no serious dispute with regard to drawing up of Ex.P3-mahazar at the spot.
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CRL.A No.515 of 2023
viii) PW8-Devegowda has deposed that there was quarrel between the accused and Bommegowda with regard to property matter and he came to know that the accused has assaulted Bommegowda by axe and killed him. He has admitted that PW.3 is is son-in-law and the marriage between his daughter and son-in-law was a love marriage. The evidence of this witness would indicate that he has witnessed inquest panchanama as per Ex.P14 at K.R.Pete Government Hospital. He has deposed that PW3-Dileepkumar brought him to the Court. His evidence is not helpful to the prosecution case.
ix) PW.9-Lakshmamma who is elder sister of deceased Bommegowda has deposed that the accused and Bommegowda were residing
separately. Her evidence would also show that six months prior to the death of Bommegowda, his wife also died. He has further deposed that that there was frequent quarrel between the accused and Bommegowda relating to property matter. According to her, on hearing the news of death of
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CRL.A No.515 of 2023her younger brother, she came near the plantation where dead body of her younger brother Bommegowda was found and she has seen the injuries on the back side of head and near ear. In her cross-examination, she admits that she came along with PW.3 and came to know about the incident on the same day at 10.00 a.m and he went to the spot. Her evidence does not support the case of the prosecution.
x) PW10-Shivaramegowda has deposed that Bommegowda is the husband of his younger sister by name Manjula. As per his say, he received information that his brother-in-law Bommegowda died and he went to the spot and found injury on the head and ear of dead body of Bommegowda. It is also his evidence that from PW2-Ramesha, he came to know that accused Manjegowda was assaulted by an axe and killed Bommegowda. This evidence of PW10 is in accordance with the evidence of PW2-Ramesha who has stated as to what has happened on the fateful day. It is deposed
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CRL.A No.515 of 2023that there was quarrel between the accused and Bommegowda with regard to property dispute, but no panchayath was held. It is further deposed that Manjegowda was cultivating his portion of property. Under such circumstances, the evidence of PW10 with regard to non-division of property is of no consequence.
xi) PW11-Srinivasa has deposed that deceased Bommegowda is the son of his senior paternal uncle. He has deposed that eldest son of Bommegowda was working as a driver at Bengaluru and Bommegowda was living with accused Manjegowda in the village. He deposes that accused Manjegowda was frequently insisting his father to allot the share in the property. According to him, the accused has killed Bommegowda near the field. This evidence of PW11 would show that he has deposed as to what has happened at the given point of time. He has deposed that under Ex.P12- mahazar, the police have seized blood-stained sweater of Bommegowda as per MO.10. This
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CRL.A No.515 of 2023evidence of PW11 is in tune with the theory of the Prosecution in so far as seizure of MO.10 is concerned.
xii) PW.12-Dr.Ravi who conducted autopsy of the deceased has been examined to prove that the death is homicidal. He has deposed that on 23.07.2017, he on the request made by jurisdictional police, has examined dead body of deceased and given post mortem report as per Ex.P16 and Ex.P18-FSL report. According to him, all the five injuries found on the dead body of Bommegowda are ante mortem in nature and death is due to injuries sustained and haemorrhage. He supports the case of the prosecution.
xiii) PW13-Siddaraju, PSI who received the complaint as per Ex.P2 from PW.1 on 23.07.2017, registered the case and conducted the seizure mahazar. The accused after drawing Ex.P3- panchanama and seized one towel, slippers of Bommegowda, blood stained mud and sample mud.
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CRL.A No.515 of 2023He has dawn a sketch as per Ex.P24 and he has taken photographs as per Ex.P4 and Ex.P5 and submitted P.F to the Court as per Ex.P25. As per Ex.P14-Inquest panchanama, the evidence of PW8 and PW13 is consistent. As per the evidence of PW8 and PW13 and contents of Ex.P14, apparent cause of death of Bommegowda was due to head injury sustained. As deposed by PW13, on the same day, clothes found on the dead body of Bommegowda as per MO10 to MO15 are produced and he seized the same under Ex.P12-panchanama. This evidence of PW13 is in accordance with the investigation conducted by him.
xiv) PW.14-Nanjundegowda and PW.15- Thopegowda, relatives of the deceased and accused denied Exs.P2, P3 and P5 and thereby turned hostile to the case of the prosecution.
xv) PW16-Ningaraju, the then Head Constable, Kikkeri Police Station deposes that he has taken accused to custody and produced before the
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CRL.A No.515 of 2023Investigating Officer along with Ex.P31 report. Thus, he supports the case of the prosecution. xvi) PW18-H.B.Venkateshaiah, the investigating officer who took up the investigation, has interrogated the accused, recorded his confession statement leading to discovery as per Ex.P33 and based on which he has seized MO7-axe at the instance of the accused under Ex.P7-panchanama. In so far as this panchanama at Ex.P7 is concerned, Eshwaregowda and Srinivasa are independent witnesses. Both of them are examined as PW4 and PW11. The evidence of PW4 would show that it is the accused who has handed over MO7 Axe to the police and they have seized the same under Ex.P7-panchanama. He has further deposed that he has taken photographs as per Ex.P15. He has recorded the statement of PW.8 as per Ex.P13 and filed charge-sheet against the accused and that he has seized bike from the custody of the accused under Ex.P11-panchanama, T-Shirt and Pant worn
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CRL.A No.515 of 2023by him under Ex.P8-panchanama and reported the same to the Court.
xvii) PW.19-Radha S who is working as Scientific Officer at RFSL, Mysuru, has deposed that she has examined stains found in the article and issued report as per Ex.P19.
Based on the above said evidence and material on record, the learned Sessions Judge convicted the accused for the offence punishable under Sections 341, 504 and 302 of IPC.
17. By careful perusal of the evidence and the contents of the complaint-Ex.P2 by PW.1, who is the relative of the deceased, accused and PW.3 who deposed as if he is an eye- witness to the incident that happened on 23.07.2017, it is relevant to note that PW.1 has not supported the case of the prosecution. Further, he has deposed that he does not know whether the deceased, his wife and accused were residing together in the same house on the date of the incident. He has further stated that he does not know what are the properties available with deceased Bommegowda and whether there was partition of properties. He has further deposed that he was not
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CRL.A No.515 of 2023aware whether accused was not taking care of the deceased properly or not. In his cross-examination, he has admitted that deceased died about two years back and he has neither seen the dead body of deceased nor attended the funeral ceremony and he does not know the reason for the death of deceased. That the Police took his signature on the blank papers and he signed the same. He has further denied that he himself and villagers have made a division before the accused, PW3 and the deceased. His evidence and averments made in the complaint and the evidence in cross-examination are totally inconsistent and there are improvements in the evidence. Thereby, his evidence was in no way helpful to the prosecution and he was treated as hostile.
18. The other hear-say witness PW.3 who is the son of the deceased and brother of the accused has deposed that he has not seen the accused assaulting the deceased, but he came to know on the same day of the incident by the information given by PW.1 that there was a quarrel between the accused and deceased with regard to partition. Admittedly, PW.3 is the elder son of the deceased who has not lodged the complaint, but the material documents clearly depict as admitted by him
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CRL.A No.515 of 2023that his father has given Rs.1,00,000/- to him to purchase a car and both the accused and deceased were residing together in the same village. It is further deposed by PW.3 that partition was orally made, but khata was not transferred. He has deposed that prior to the marriage of accused, there was no quarrel between accused and deceased. PW.3 being a tutored witness does not inspire the confidence of this Court regarding involvement of accused in the crime.
19. As rightly contended by the learned counsel for the appellant, there was an oral partition between the accused, deceased as well as PW.3, but no documents are produced in that regard and khata was not changed. As admitted by PW.3, both accused and deceased were residing together in the village. On the unfortunate day, i.e, 23.07.2017, there was a quarrel between the accused and deceased regarding partition and deceased used filthy language, thereby, accused lost control and due to sudden provocation assaulted the deceased. From the evidence of the doctor-PW.12, who issued Ex.P16- post mortem report, it is evident that there are injuries on the person of the deceased and homicidal death of deceased is established. As per Ex.P14-inquest mahazar, when the accused
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CRL.A No.515 of 2023and deceased were going to their lands with agricultural equipments, the quarrel took place between them and due to sudden provocation, the unfortunate incident has happened and there was no motive for the accused to kill the deceased as both were residing together. Thus, considering the totality of the facts and circumstances of the case, we are of the considered opinion that imposing imprisonment for TEN YEARS with fine for the offence punishable under the provisions of Section 304 Part I of IPC would meet the ends of justice.
20. It is also relevant note at this stage that the spot mahazar-Ex.P3 and seizure mahazar-Ex.P7 support the case of the prosecution in the examination-in-chief, but in the cross- examination, admitted the suggestions made by the defence counsel and admittedly, PW.1, PW.5, PW.6, PW.7 and PW.8 turned hostile to the case of the prosecution and PWs.4 to 15 also turned hostile to the case of the prosecution. Therefore, this is not a case to impose extreme punishment of imprisonment for life and the case falls under Exception 1 of Section 300 of IPC, which reads as under:
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Section 300: Murder:
xxx xxx xxx xxx Exception I - When culpable homicide is not murder.-- 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 death of any other person by mistake or accident.
21. 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 death of any other person by mistake or accident. In the present case, when the accused and deceased were on the way to their agricultural lands, there was a quarrel regarding partition of lands between them and deceased used filthy language. Due to sudden provocation, the accused assaulted the deceased with MO.7-axe and both accused and deceased were residing together. Thus, the offence is a culpable homicide not amounting to murder and the case falls
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CRL.A No.515 of 2023under Exception 1 of Section 300 of IPC. Hence, the accused is not entitled for extreme punishment under Section 302 of IPC.
22. Our view is fortified by the decision of the Hon'ble Supreme Court in the case of DAUVARAM NIRMALKAR vs. STATE OF CHATTISGARH reported in 2022 SCC 955. In Paragraphs 13, 15, 16 and 17, it has been observed as under:
13. Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused's reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. This has been aptly summarised by Ashworth in the following words:
"The significance of the deceased's final act should be considered by reference to the previous relations between the parties, taking into account any previous incidents which add colour to the final act. This is not to argue that the basic distinction between sudden provoked killings and revenge killings
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should be blurred, for the lapse of time between the deceased's final act and the accused's retaliation should continue to tell against him. The point is that the significance of the deceased's final act and its effect upon the accused
- and indeed the relation of the retaliation to that act - can be neither understood nor evaluated without reference to previous dealings between the parties."
15. Following the view expressed in K.M. Nanavati (supra), this Court in Budhi Singh v. State of Himachal Pradesh observed that in the test for application of Exception 1 to Section 300 of the IPC, the primary obligation of the court is to examine the circumstances from the point of view of a person of reasonable prudence, if there was such grave and sudden provocation, as to reasonably conclude that a person placed in such circumstances can temporarily lose self-control and commit the offence in the proximity to the time of provocation. A significant observation in Budhi Singh (supra) is that the provocation may be an act or series of acts done by the deceased to the accused resulting in inflicting of the injury. The idea behind this exception is to exclude the acts of
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CRL.A No.515 of 2023violence which are premeditated, and not to deny consideration of circumstances such as prior animosity between the deceased and the accused, arising as a result of incidents in the past and subsequently resulting in sudden and grave provocation. In support of the aforesaid proposition and to convert the conviction from Section 302 to Section 304 Part I of the IPC in Budhi Singh (supra), the Court also relied upon Rampal Singh v. State of Uttar Pradesh.
16. For clarity, it must be stated that the prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court. It is in this context we would refer to the case of the prosecution, which is that the deceased was addicted to alcohol and used to constantly torment, abuse and threaten the appellant. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. There was sudden loss of self-control on
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CRL.A No.515 of 2023account of a 'slow burn' reaction followed by the final and immediate provocation. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, we hold that the acts of provocation on the basis of which the appellant caused the death of his brother, Dashrath Nirmalkar, were both sudden and grave and that there was loss of self- control.
17. Applying the provocation exception, we would convert the conviction of the appellant from Section 302 to Part I of Section 304 of the IPC.
23. On re-appreciation of the entire oral and documentary evidence on record and in the light of the principles enunciated in the judgment of the Hon'ble Supreme Court stated supra, we are of the opinion that the incident has happened due to sudden provocation when the accused asked for partition of the property and a quarrel took place and accused assaulted the deceased with an axe. As per the evidence on record, the accused and deceased were staying together and accused was looking after his father. There were no quarrels on the earlier occasion. the said aspect of the matter has not been considered by the learned Sessions Judge.
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24. For the reasons stated above, we answer the point raised in the present appeal partly in the affirmative holding that the impugned judgment of conviction and order of sentence passed by the trial Court calls for modification and the impugned Judgment convicting the appellant/accused for the offence punishable under Section 302 of IPC has to be modified and altered into one under Section 304 Part I of IPC and the appellant/accused shall be sentenced to undergo Rigorous Imprisonment for a period of TEN YEARS with a fine of Rs.10,000/- and in default of payment of fine to undergo Simple Imprisonment for two years, in the facts and circumstances of the present case.
25. In view of the above, we pass the following:
ORDER
i) The Criminal Appeal filed by the appellant/accused is allowed in part.
ii) The impugned Judgment of conviction and order of sentence dated 28.12.2022 made in S.C.No.5039/2018 on the file of the III Addl.
District and Sessions Judge, Mandya (sitting at
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CRL.A No.515 of 2023Srirangapatna), convicting the appellant - accused for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs.10,000/- is hereby modified and the appellant/accused is convicted for the offence punishable under Section 304 Part I of IPC and sentenced to undergo Rigorous Imprisonment for a period of TEN YEARS and to pay a fine of Rs.10,000/- (Rupees twenty thousand only) and in default of payment of fine, he shall undergo Simple Imprisonment for a period of two years. The sentence of imprisonment of three months for the offence under Section 341 of IPC and the sentence of imprisonment of six months for the offence under Section 504 of IPC, is hereby confirmed.
iii) The appellant - accused is entitled to the benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure.
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iv) Registry is directed to return the Trial Court Records, forthwith.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE kcm-paragraphs 1 TO 9 BNV-paragraphs 10 till end.