Karnataka High Court
Jayaram vs State Of Karnataka on 16 April, 2020
Bench: S Sunil Dutt Yadav, Nataraj Rangaswamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL 2020
PRESENT
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
CRIMINAL APPEAL NO.1696 OF 2016
BETWEEN:
JAYARAM
AGED ABOUT 45 YEARS,
S/O LINGE GOWDA,
RESIDING AT KIRUGAVALU,
MALAVALLI TALUK,
MANDYA-571430.
...APPELLANT
(BY SRI. P.D. SUBRAMANYA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY KIRUGAVALU P.S.,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
BENGALURU-560 001.
...RESPONDENT
(BY SRI. THEJESH P., HIGH COURT GOVERNMENT
PLEADER)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
DATED 07.06.2014 PASSED BY THE I ADDL. DIST. AND
S.J., MANDYA IN SPL.C.NO.47/2013 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 18.01.2020, COMING ON THIS DAY,
NATARAJ RANGASWAMY J., PRONOUNCED THE
FOLLOWING:
JUDGMENT
This Criminal Appeal is filed by the accused, who is in judicial custody, assailing the Judgment of conviction dated 07.06.2014 and the consequent order of sentence passed by the I Additional District and Sessions Judge at Mandya in Spl.Case No.47/2013. The Trial Court had convicted the accused for an offence punishable under Section 302 IPC and sentenced the accused to undergo simple imprisonment for life and to pay a fine of `10,000/-, in default, simple imprisonment for six months.
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2. The case of the prosecution is that the wife of the deceased lodged a report with the respondent on 27.05.2013 at 2.30 p.m., stating that she came to know from the villagers that the body of her husband was lying near Raghavendra Wine Store at Kirugavalu village bus stand. She stated that she took the body of the deceased to the Government Hospital, wherein, the doctors declared him brought dead. She suspected that it was a case of murder and therefore, sought the intervention of the police to bring the perpetrators to book. The police registered UDR No.5/2013 under Section 174(3)(iv) of the Cr.P.C and an inquest was conducted on 27.05.2013. The towel which was used to strangulate the deceased and the other clothes found on the body of the deceased were seized on 27.05.2013. The statement of Abhishek (PW3) employed as a supplier at Raghavendra Wine Store was recorded on 28.05.2013 and he narrated that the accused had gone to Raghavendra Wine store on 27.05.2013 at about 4 11.00 a.m. and consumed 180 ml. of whiskey and stood outside ranting against passersby that the JD(S) candidate was fraudulently defeated by the electorate at the elections. He also stated that the deceased consumed 90ml of whiskey at Raghavendra wine store and went out and confronted the accused. He stated that both of them got into fisticuffs and both of them held each other by their collars. The accused kicked the deceased in his leg and the deceased fell down. The accused thereafter strangled the deceased with a towel, which the deceased was wearing around his neck, while the deceased was struggling to get away. Later, when the deceased stopped struggling, the accused went back into Raghavendra wine store and consumed 90 ml of whiskey and went away. PW3 stated that both the accused and the deceased were regulars at the wine store and since he thought that the deceased had lost consciousness, he kept quite. Later, the wife of the deceased came and took the deceased to 5 Shankaregowda hospital and then to Government Hospital where the doctors declared him brought dead.
3. Based on the statement of PW3, a first information report (Ex.P5) was registered in Cr.No.68/2013 for the offences punishable under Section 302 IPC r/w Section 3(2)(v) of the Scheduled Castes / Scheduled Tribes (Prevention of Atrocities) Act, 1989.
4. PW3 claimed that he had recorded the scuffle between the accused and the deceased on his mobile phone. The Samsung mobile phone which contained the video recording of the scuffle between the accused and the deceased was seized. The memory card in the mobile was also seized. It is stated that the video in the mobile was played and the same was captured in a digital camera and the videos were copied onto three CDs. Since PW3 and PW4 gave their statements saying that the accused had abused the deceased taking his 6 caste, the Tahsildar sought and obtained information from the Deputy Commissioner that the deceased belonged to schedule caste. The postmortem report indicated the following external and internal injuries:
i) Abrasion 2 x 2 cm seen over the chin;
ii) Abrasion 2 x 2 cm present below the chin;
iii) Abrasion 2 x 1 cm present over the right cheek and
iv) A transverse broad joint ligature mark encircling the neck 28 x 4 cm.
Internal injuries
Neck - soft muscles of neck shows
extravasation of blood on both sides of thyroid cartilage measuring 4 x 2 cm over front of neck. The cause of death was asphyxia, as a result of the combined effect of pressure over the neck, mouth and nose.
5. The respondent obtained a report whether the ligature marks found on the neck of the deceased could be caused by using the towel that was seized. 7 PW16 gave her report that the ligature marks could be caused by the towel that was seized.
6. Based on the above, the respondent filed a final report against the accused on 03.08.2013 for the offence punishable under Section 302 IPC r/w Section 3(2)(v) of the Scheduled Castes / Scheduled Tribes (Prevention of Atrocities) Act, 1989. The case was committed for trial, upon which the accused was charged for the offences punishable under Section 302 IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused pleaded not guilty and sought to be tried.
7. Before the Trial Court, the evidence of PW1 who was the Sub-Inspector of Police was recorded and he stated that on 27.05.2013 at about 3.00 p.m., he received a phone call from the Medical Officer of the Government Hospital about the murder of a person. Immediately thereafter, he recorded the information in 8 the station diary and went to the hospital. At the hospital, PW1 received the complaint and forwarded the complaint through PC-727 for further action. He thereafter conducted an inquest and recorded the statements of PW2, Sri.Chunchaiah and Sri.Siddalingu and sent the body for postmortem. He later went to Kirugavalu bus stand to the scene of crime and recorded the statement of PW3 and registered Crime No.68/2013. PW1 sought permission of the District and Sessions Judge to register the crime and take up investigation as per Ex.P6. PW1 seized the mobile phone which contained the recording of the scuffle in terms of Ex.P7. The memory chip in MO.7 was also seized and marked as MO.7(a). He stated that the video found in MO.7 was seen through another camera and downloaded into a computer from which he copied it onto three CDs which were marked as Exs.P8 to P10. During the course of cross examination, PW1 stated that he downloaded the video from MO.7 through the 9 Bluetooth and thereafter burnt the three CDs. The Trial Court noticed that these three CDs were not copied from any source but the video was played on a computer screen which was captured in another camera and then copied into the three CDs. This is also the version of PW1. Therefore, the CDs were not primary evidence but were a duplication of what was contained in MO.7(a).
8. PW2 is the wife of the deceased who in her chief examination stated that she had not seen the accused. She supported the case of the prosecution and claimed that she came to know about the death of her husband which was flashed on the television.
9. PW3 is the supplier at Raghavendra Wine stores and an eye witness to the incident and his evidence is relevant for the purpose of deciding this case and is therefore extracted below:
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"DgÉÆæ ªÀÄvÀÄÛ ªÀÄÈvÀ ¤AUÀAiÀÄå £ÀªÀÄä CAUÀrUÉ ªÀÄzÀå¥Á£À ªÀiÁqÀ®Ä §gÀÄwÛzÝÀ gÄÀ . ªÀÄÈvÀ ¤AUÀAiÀÄå DgÉÆæAiÀÄ ªÀÄ£ÉAiÀÄ°è PÉ®¸À ªÀiÁqÀÄwÛzÝÀ ."
"£Á£ÀÄ CzÀ£ÀÄß £À£ßÀ ªÉƨÉʯï£À°è «rAiÉÆà awæÃPÀgÀt ªÀiÁrzÉ."
"£À£Àß ªÉƨÉÊ¯ï ªÀÄÄ ªÀiÁ 7 gÀAvÉ EzÀÄÝ CzÀPÉÌ £Á£ÀÄ ªÉĪÉÆj PÁqïð ºÁQzÉÝ. CzÀÄ ªÀÄÄ ªÀiÁ 7J gÀAvÉ EzÉ. £Á£ÀÄ DgÉÆæ ªÀÄvÀÄÛ ªÀÄÈvÀ ¤AUÀAiÀÄå£À £ÀqÀÄªÉ DVzÀÝ dUÀ¼ÀªÀ£ÀÄß CzÉà ªÉƨÉʯï£À°è awæÃPÀj¹zÉÝ."
"¢: 27-05-2013 gÀAzÀÄ £Á£ÀÄ £À£ßÀ ªÉƨÉÊ®£ÀÄß QgÀÄUÁªÀ®Ä ¥ÉÆðøï oÁuÉUÉ ºÁdj¹zÉÝ. DUÀ ¸ÀAeÉ 7.00 jAzÀ 7.30 UÀAmÉ DVvÀÄÛ. D jÃw awæÃPÀgÀt ªÀiÁrzÉÝÃ£É JAzÀÄ £Á£Éà ¥ÉưøÀjUÉ ºÉýzÉÝãÉ. £À£ßÀ ªÉƨÉʯï¤AzÀ £À£Àß ªÉƨÉʯï awæÃPÀgÀtªÀ£ÄÀ ß ¥ÉÆðøÀgÄÀ AiÀiÁªÀ jÃw ¥ÀjªÀvÀð£É ªÀiÁrPÉÆAqÀgÄÀ JAzÀÄ UÉÆwÛ®è. D ªÉüÉUÉ ¥ÀjªÀvÀð£É ªÀiÁqÀĪÁUÀ £À£ßÀ £ÀÄß ¥ÉÆðøÀgÄÀ PÀgɹ®è."
"£Á£ÀÄ ªÀiÁrzÀÝ awæÃPÀgÀtzÀ°è lªÀ¯ï E®è ªÀÄvÀÄÛ PÁtĪÀÅ¢®è JAzÀgÉ ¸ÀjAiÀÄ®è."11
"ªÀÄÈvÀ ¤AUÀAiÀÄå£À ªÀÄ£É gÁWÀªÉÃAzÀæ ªÉÊ£ïì ¸ÉÆÖÃgï¤AzÀ ¸Àé®à zÀÆgÀzÀ°èzÉ. ¸ÀPÁðj D¸ÀàvæÉ £ÀªÀÄä ªÉÊ£ïì ¸ÉÆÖÃgï¤AzÀ JµÀÄÖ zÀÆgÀzÀ°èzÉ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è."
"ªÀÄÈvÀ ¤AUÀAiÀÄå £ÀªÄÀ ä ªÉÊ£ïì ¸ÉÆÖÃgïUÉ PÀÄrAiÀÄ®Ä §gÀÄwÛzÀÝ. ¥Àæw ¢£À 5-6 ¸À® §gÀÄwÛzÀÝ. £Á£ÀÄ ºÉýzÀ ªÀÄÄ ªÀiÁ 7 ªÀÄvÀÄÛ ªÀÄÄ ªÀiÁ 7J £À°è DgÉÆæAiÀÄ avÀæt E®è JAzÀgÉ ¸ÀjAiÀÄ®è. ºÉÆgÀUÀqÉ PÁåªÄÀ gÁ¢AzÀ ªÉƨÉʯï awæÃPÀgÀtªÀ£ÀÄß avÀæt ªÀiÁrzÀAvÉ PÁtÄvÀÛzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ ªÀiÁrzÀ awæÃPÀgÀt ¹ r UÉ ºÉÃUÉ §AvÀÄ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è."
"ªÀĺÀdgÀ£ÀÄß oÁuÉAiÀÄ°è §gÉ¢zÁÝgÉ JAzÀgÉ ¸Àj."
10. PW4 is the cashier at Raghavendra Wine stores who also spoke about the scuffle between the accused and the deceased who also stated that PW3 had recorded the commission of the entire crime in his mobile (MO.7). PW5 is also a cashier at Raghavendra Wine Stores, but he claimed that he was not there at the time of the incident and came to know about the 12 incident at about 4.30 p.m.. He claimed that PW4 was working as a cashier at the wine store.
11. PW6 is the witness to the inquest mahazar (Ex.P2) and he identified his signature at Ex.P2(b) and he claimed that his signature was first obtained and later it was filled up by the police.
12. PW7 is the witness to the seizure mahazar at Ex.P3 and he stood by the prosecution. PW8 is the witness to the seizure mahazar by which MOs 8 to 10 were seized.
13. PW9 is the owner of "Cool Drink and Fast Food Joint" that lay adjacent to M/s.Raghavendra Wine Stores and his evidence is relevant and is extracted below:
"CªÀgÀ ¥ÁrUÉ CªÀgÄÀ ºÉÆgÀ¼ÁqÀÄwÛzÝÀ gÄÀ . DgÉÆæ dAiÀÄgÁªÀÄÄ JzÀÄÝ ºÉÆgÀlÄ ºÉÆÃVzÀÝ. ¤AUÀAiÀÄå G:
PÁ¼ÀAiÀÄå£À£ÀÄß AiÀiÁgÉÆà D¸ÀàvæÉUÉ PÀgÉzÄÀ PÉÆAqÀÄ ºÉÆÃzÀgÀÄ. EµÀÖ£ÀÄß ©lÄÖ £Á£ÀÄ ¥ÉưøÀjUÉ ¨ÉÃgÉ K£À£ÀÄß ºÉüÀ°®è."13
"DgÉÆæ dAiÀÄgÁªÀÄÄ ¤AUÀAiÀÄå¤UÉ 'K£ÉÆà ºÉƯÉAiÀÄ £À£ÀäUÀ£Éà JAzÀÄ eÁw »rzÀÄ ¨ÉÊAiÀÄÄwÛzÀÝ. DUÀ dAiÀÄgÁªÀÄÄ PÁ¼ÀAiÀÄå¤UÉ MzÀÝ ªÀÄvÀÄÛ PÁ¼ÀAiÀÄå£À PÀÄwÛUÉUÉ PÀªÉ¯ï ºÁQ PÀÄwÛUÉAiÀÄ£ÀÄß ©VAiÀÄÄwÛzÝÀ ªÀÄvÀÄÛ ¤AUÀAiÀÄå ©r¹PÉƼÀî®Æ ¥ÀæAiÀÄvÀß ¥ÀlÖgÀÆ ©qÀ°®è. ¤AUÀAiÀÄå ©zÀÄÝ ºÉÆÃzÀ, dAiÀÄgÁªÀÄ PÉʬÄAzÀ DvÀ¤UÉ ºÉÆqÉzÀ. D£ÀAvÀgÀ DgÉÆæ dAiÀÄgÁªÀÄ£À£ÄÀ ß ©Läö gÁWÀªÉÃAzÀæ ªÉÊ£ïì CAUÀrUÉ ºÉÆÃV ªÀÄvÉÛà PÀÄrzÀÄ ºÉÆgÀlÄ ºÉÆÃzÀ' JAzÀÄ £Á£ÀÄ ¥ÉưøÀjUÉ ºÉýPÉ PÉÆnÖzÝÉ Ã£É JAzÀgÉ ¸ÀjAiÀÄ®è."
14. PW10 is a vendor of fruits in front of M/s.Raghavendra Wine Stores who is the witness to the spot mahazar (Ex.P11). PW11 is a witness to the seizure mahazar (Ex.P13). PW12 is the Deputy Commissioner and Administration of City Corporation, Belgaum who submitted his report regarding the caste of the deceased as per Ex.P14 and P14(a). PW13 is the Station House Officer who registered UDR No.5/2013 as per Ex.P1 and later registered Crime No.68/2013 as per Ex.P15.
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15. PW14 is the Deputy Superintendent of Police, Mandya. She deposed that she took over charge as Deputy Superintendent of Police on 28.05.2013 and prepared a sketch of the scene of the crime as per Ex.P11.
16. PW15 was the DSP at Malavalli Sub-Division between 14.04.2013 and 14.07.2013 who recorded the statement of PW9 as per Ex.P12 and requisitioned confirmation of the caste of the deceased and also requested the PWD to prepare the sketch of the spot of crime. He stated that he recorded the statement of PW17 and also received the P.M. report (Ex.P17). He collected the viscera sample and forwarded it to the FSL, Mysore. He prepared the sketch of the spot as per Ex.P18 and thereafter handed over charge to Sri.Prathap Reddy.
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17. PW16 is the Medical Officer of Primary Health Centre at Kirugavalu. PW17 is the Constable who submitted the first information report to the Court.
18. The accused /appellant denied the questions put to him and did not offer any explanation in his defense under Section 313 of Cr.P.C.
19. The Trial Court based on the evidence led by the prosecution convicted the accused for the offences punishable under Section 302 of IPC and acquitted the accused in respect of the offence under Section of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced the accused to undergo simple imprisonment for life and to pay a fine of `10,000/-.
20. The accused has therefore appealed against the conviction and sentence.
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21. This appeal is listed for final hearing and we have heard the counsel for the accused / appellant and the respondent and we have also perused the record secured from the Trial Court and its Judgment of conviction and order of sentence and also the grounds urged in the appeal memorandum filed before this Court.
22. The learned counsel pointed out the following contradictions / omissions / inconsistencies and contended that the case of the prosecution was doubtful and that the accused is liable to be acquitted.
i) That PW2, the wife of the deceased claimed that she did not know who the perpetrators were. If PW3 was the eye witness and employed at Raghavendra wine stores, then he must have informed PW2 about the accused and about the crime.
ii) that if the crime as alleged was committed, PW3 and other witnesses who were allegedly present would have made some attempt to 17 intervene and not doing so is unnatural but indicates that the offence was not committed.
iii) that while PW3 deposed that both the accused went to Raghavendra Wine stores at 11 a.m. and consumed 180 ml of alcohol and deceased also consumed 90 ml of alcohol but PW4 deposed that both of them went to Raghavendra Wine store between 2.30 to 3.00 p.m. and consumed alcohol.
iv) That the ligature marks found on the neck of the deceased was not mentioned in the inquest mahazar (Ex.P2).
v) That while PW3 stated that after the incident, the accused went into Raghavendra Wine store and consumed 90 ml of alcohol but PW4 stated that after the incident the accused left the place.
vi) That PW3 was aged 19 years as on the date of his evidence before the Trial Court. That under Section 20 of the Karnataka Excise Act, any person below the age of 18 years 18 could not be employed. Therefore, the evidence of PW3 is not believable.
vii) that the video recording was not accompanied by a certificate under Section 65-B of the Indian Evidence Act. That the evidence of PW1 disclosed that the video in the mobile was transferred to a computer via blue tooth and MOs 7 to 9 were burnt is not supported by any certificate. Further, it is deposed by PW1 that the video was played on the mobile screen which was in turn captured in a hand held digital camera. However, the details of the digital camera were not forthcoming. Thus, the MOs 7 to 9 was not a piece of evidence that could be relied upon to hand out a conviction.
viii) that the FIR was drawn on 27.05.2013 at 11.00 p.m. but it reached the magistrate on 28.05.2013 at about 2.40 p.m. and therefore the prosecution has failed to explain the delay.
ix) The accused was under the influence of alcohol and thus, he cannot be held guilty of 19 the offence and that he has the benefit of Section 85 of the Indian Penal Code.
x) That the investigating officer was not examined
23. Alternatively he argued that even if the case of the prosecution is believed, the accused could be convicted for an offence of culpable homicide not amounting to murder.
24. On a careful perusal of the case of the prosecution, the evidence recorded before the Courts below, the following points arise of our consideration.
(i) Whether the prosecution has proved beyond doubt the commission of an offence by the accused/ appellant punishable under Section 302 r/w Section 201 IPC ?
(ii) Whether the Trial Court committed an error in sentencing the accused for an offence under Section 302 of IPC?
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25. The eye witnesses to the incident are PW3, PW4 and PW9. They have stated that both the accused and the deceased were regulars at Raghavendra Wine Store and they have recognized both the accused and the deceased. They have stood by the prosecution and have narrated the incident and there aren't any noticeable contradictions in their evidence. The only contradiction in the evidence of PW3, as pointed out by the counsel for the accused was that, in his statement under Section 161 of Cr.P.C. at Ex.P4, PW3 stated that the accused went into the wine store at 11 a.m. and consumed 180 ml. of whiskey and went out and stood in front of the wine store and was ranting at passersby. He stated that the deceased consumed 90 ml. of whiskey at Raghavendra Wine Store. The counsel for the accused / appellant argued that PW3 did not mention anything about the time when the accused and deceased entered the wine store and consumed liquor in his evidence before the Court but merely mentioned that 21 both the accused and the deceased after consuming alcohol were found quarreling between 2.30 to 3.00 p.m. PW4 deposed that both came and consumed whiskey between 2.30 and 3.00 p.m. According to the counsel for the accused, this inconsistency between the evidence of PW3 and PW4 generated suspicion about the case of the prosecution. Further he argued that, while PW3 stated that after the incident the accused came into the wine store and consumed 90 ml. of whiskey but PW4 did not say anything about the accused consuming whiskey.
26. It is noticed that PW3 was the supplier at Raghavendra Wine Stores and he deposed that the accused went out of the wine store and was scorning passersby for defeating the JD(S) candidate at the elections. He also spoke of the deceased consuming liquor and later both of them were quarrelling outside the wine store. He deposed that the accused held the 22 deceased by his shirt collar and then held him by the towel that the deceased was wearing. He deposed that the deceased fell down. The Photograph marked as Ex.P12 shows that Raghavendra Wine Store is situate just alongside the road and it is not inconceivable that PW3 could not have noticed the commotion. As a matter of fact, it was PW3 who had recorded the whole incident on his mobile and his account cannot be doubted. Further, PW3 did not depose that both the accused and the deceased came into the wine store at the same time but he deposed that after having liquor at Raghavendra Wine stores, the accused and the deceased were found quarrelling outside the wine store and later accused strangled the deceased with the towel. PW3 who is the witness to the spot mahazar identified his signature on Ex.P11 as Ex.P11(a). He also identified the photograph of the place of incident as Ex.P12.
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27. It is no doubt true that PW4 deposed that both the accused and the deceased went into Raghavendra Wine Store between 2.30 and 3.00 p.m. and thereafter were quarrelling outside and were rolling over one another. He also deposed that PW3 recorded the scuffle between the accused and the deceased on the mobile phone. It is thus clear both PW3 and PW4 knew the accused and the deceased and that both the accused and the deceased were regulars at the Wine store. The inconsistency between the evidence of PW3 and PW4 cannot mar the prosecution but the evidence of PW4 may not assist the prosecution. It is relevant that both PW3 and PW4 deposed that the accused and the deceased were quarrelling and later were found rolling over one another on the street. PW3 and PW4 spoke about the accused strangling the deceased with the towel. Thus the inconsistency in their evidence is not so material that their evidence cannot be believed. 24
28. The post mortem report indicated "a transverse broad faint ligature mark encircling the neck 28 x 4 cm" and internal injuries showed "extravasation of blood on both side of thyroid cartilage measuring 4 x 2 cm over front of neck" and the cause of death was due to "asphyxia as a result of combined effect pressure over the neck, mouth and nose". The time of death was stated to be around 2-3 hrs prior to the post mortem. Ex.P19 is the report submitted by PW16 which indicated that "injuries on the neck and cause of death can be caused with MO1: towel".
29. The argument of the counsel for the appellant that the ligature marks were not mentioned in the inquest at Ex.P2 is though true, yet we cannot lose sight of the fact that the incident occurred between 2.30 p.m. and 3.00 p.m. and the inquest is stated to have commenced at 3.10 p.m. and concluded by 5.10 p.m. Forensic Medical science indicates that in 25 cases of strangulation, the marks depend upon the ligature used. In some cases the marks can become dry and hard several hours after death while in some cases, the mark in the neck may not be present at all, or may be very slight, if the ligature used is soft and if it is removed soon after death. Thus, it could be that these ligature marks were not as pronounced that it could be noticed by PW1.
30. The seizure of the mobile phone and the memory card from PW3 is proved by PW1 and also by the evidence of PW3. The phone and memory card at MO.7, MO.7(a) respectively were secured from the trial Court. The mobile phone could not be operated since the battery was bloated. However, we found from Exs.P8 to 10 which was played in the Court and we found a man with his back to the camera and handling a towel strewn around the one who was lying on the ground. We also saw that the man sitting on the ground was trying 26 to wake up the man who was lying on the ground. The video footage found in CDs at Exs.P8 to 10 would have been outrightly rejected as inadmissible in evidence in the absence of the memory card - MO.7(a). PW3 identified the video at Exs.P8 to P10 as the one that he had shot on his mobile. Likewise, PW8 who is the witness who saw the videograph in MO.7, MO.7(a) being copied into Exs.P8, 9 and 10 also identified the video as well the accused and the deceased. Even if Exs.P8 to 10 are not considered, the ocular evidence of PW3 and the other witnesses prove the offence beyond doubt.
31. The memory card seized as MO.7(a) is itself primary evidence which does not require any certification under Section 65B(4) of the Evidence Act. The Apex Court in a path breaking Judgment reported in P.Gopalakrishnan alias Dileep vs State of Kerala reported in 2019 SCC online SC 1532 held as follows: 27
"55. In conclusion, we hold that the contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/ witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial".
32. It was perhaps to comply the requirement of Section 207 of Cr.P.C and Section 173(6) of Cr.P.C that the prosecution though treated the memory card as a material object in the case, yet had cloned the contents of MO.7(a) by furnishing Exs.P8, 9 and 10. The videograph cloned by the prosecution is identified by PW3 and PW8. We find that in the absence of any serious dispute that the contents of Exs.P8 to P10 did 28 not correspond with the contents of MO.7(a), we hold that non production of a certificate under Section 65-B of the Indian Evidence Act is not fatal.
33. The question whether a certificate under Section 65-B(4) of the Evidence Act is mandatory for production of electronic evidence is under examination before the Apex Court in the case of Arjun Panditrao Khotkar vs Kailask Kushanrao Gorantyal and others wherein the Judgment of the Apex Court in the case of Anvar P.V vs P.K.Basheer and others reported in 2014(10) SCC 473 relied upon by the counsel for the appellant came up for re-consideration. Be that as it may Section 65-B of the Indian Evidence Act is designed to meet a definite purpose namely to ensure that there is no tampering, alteration, transposition, excision etc., in the process of producing electronic evidence from a source. However, if the source itself is capable of being produced in a court of law, the question of it requiring a 29 certificate under Section 65-B of the Indian Evidence Act would not arise. It is not the case of the accused that the memory card - MO.7(a) was not seized or marked. It is not even his case that the memory card did not contain the recording and it is not even his case that the card was not installed in the mobile phone when it was seized. In the absence of any material that could generate doubt about the credibility of MO.7(a), the production of the memory card, which is in itself the primary evidence, non-production of a certificate under Section 65-B of the Indian Evidence Act is not fatal to the case.
34. The incident occurred in broad day light and PW3 and PW4 were the supplier and the cashier at Raghavendra Wine stores and the eye witness account of the incident is not in any way doubtful. The argument that PW3 was ineligible to be employed at Raghavendra Wine Store as he was a minor on the date of the 30 incident and that therefore his evidence is not trustworthy, is of no avail in a criminal prosecution.
35. The argument of the appellant that the FIR was drawn on 27.05.2013 at 11.00 p.m. but it reached the magistrate on 28.05.2013 at about 2.40 p.m. and therefore the prosecution has failed to explain the delay, it is to be noted that the statement of PW3 was recorded between 8.30 to 9.30 p.m. on 27.05.2013. MO.7 and MO.7(a) were seized and the video contained therein was copied to Exs.P8, P9, P10 between 11.45 p.m. on 27.05.2013 and 1.00 a.m. on 28.05.2013. PW8 deposed in categorical terms that he was at the police station upto 1.00 am on 28.05.2013. Thus, in Ex.P5 which is the FIR, it is stated that that the videograph had to be copied and thus there was a delay in submitting the FIR to the Court. We find that the explanation offered is tenable and the prosecution of the accused cannot fail on this ground.
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36. Now coming to the question that the accused was intoxicated and therefore was incapable of Judgment and alleged crime is not an offence. Section 86 of the Indian Penal Code reads as follows:
"86. Offence requiring a particular intent or knowledge committed by one who is intoxicated..- In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will."
37. The Apex Court in the case of Paul vs State Of Kerala reported in 2020 SCC Online SC 57 while considering a case akin to the one on hand held as follows:
"27. Section 86 of the IPC enunciates presumption that despite intoxication which is not covered by the last limb of the provision, the 32 accused person cannot ward off the consequences of his act. A dimension however about intoxication may be noted. Section 86 begins by referring to an act which is not an offence unless done with a particular knowledge or intent. Thereafter, the law giver refers to a person committing the act in a state of intoxication. It finally attributes to him knowledge as he would have if he were not under the state of intoxication except undoubtedly, in cases where the intoxicant was administered to him either against his will or without his knowledge. What about an act which becomes an offence if it is done with a specific intention by a person who is under the state of intoxication? Section 86 does not attribute intention as such to an intoxicated man committing an act which amounts to an offence when the act is done by a person harbouring a particular intention. This question has engaged the attention of this Court in the decision in Basdev v. State of Pepsu AIR 1956 SC
488. In the said case the appellant, a retired military official went to attend a wedding. The appellant was very drunk. He asked a young boy to step aside a little so that he could occupy a convenient seat. The boy did not budge. The appellant fired from a pistol, he had with him, in 33 the abdomen of the boy which proved fatal. This Court inter alia held as follows:
"4. It is no doubt true that while the first part of the section speaks of intent or knowledge, the latter part deals only with knowledge and a certain element of doubt in interpretation may possibly be felt by reason of this omission. If in voluntary drunkenness knowledge is to be presumed in the same manner as if there was no drunkenness, what about those cases where mens rea is required.
xxx
5. So far as knowledge is concerned, we must attribute to the intoxicated man the same knowledge as if he was quite sober.
But so far as intent or intention is concerned, we must gather it from the attending general circumstances of the case paying due regard to the degree intoxication. Was the man beside his mind altogether for the time being? If so it would not be possible to fix him with the requisite intention. But if he had not gone so deep in drinking, and from the 34 facts it could be found that he knew what he was about, we can apply the rule that a man is presumed to intend the natural consequences of his act or acts.
6. Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion."
(emphasis supplied)
28. In this case there is no evidence about how drunk the appellant was or whether the drunkenness in any way stood in the way of the appellant forming the requisite intention. There is also gap between the time when he was 35 allegedly found drinking and the time of the crime. Moreover, in his 313 statement, according to him, he has stated that he fell fast asleep and he got up to see his wife hanging. The principle that would apply therefore is that appellant can be presumed to have intended the natural consequences of his act."
38. The evidence of PW3 and PW4 indicates that the accused consumed alcohol and there was nothing on record to indicate that it was administered without his knowledge or against his will. There is also no evidence to indicate the level of intoxication and or that the accused was so intoxicated that he could not comprehend his action. Therefore, the accused cannot plead that he was incapable of judgment by reason of intoxication and or that he had no particular intent or knowledge that his acts is likely to cause the death of the deceased. The accused is therefore not entitled to claim the benefit of Section 85 or 86 of the Indian Penal Code.
36
39. For the afore stated reasons, we are of the firm view that the appellant/ accused was guilty of homicidal murder.
40. In so far as the alternate submission of the accused/ appellant that there was no intention to commit the murder of the deceased but the incident occurred due to a sudden provocation by the deceased, is concerned, it is true that the eye witness account of PW3 does not indicate any pre-meditated intention of the accused to commit the murder of the deceased. The evidence of PW3 shows that the accused after consuming alcohol at about 11.00 a.m. went outside the wine store and was aimlessly ranting at passersby that the JD(S) candidate was defeated fraudulently at the elections. The deceased is stated to have consumed liquor at Raghavendra wine stores sometime after 2.00 p.m. as PW2 (wife of deceased deposed that deceased left his house at 2.00 p.m.). PW2 also stated 37 that she was not aware of the accused. The incriminating tool used to commit the crime is the towel that the deceased was wearing around his neck. It is found from the evidence of PW3, PW4 that both the accused and the deceased were quarrelling and thereafter got into fisticuffs. The accused kicked the deceased in the leg and the deceased fell to the ground. Thereafter, the accused caught hold of the towel that the deceased was wearing around his neck and dragged him. The deceased struggled to free himself and this explains the bruises found on the chin, cheeks of the deceased as found from Ex.P2. We found from the video graph that the accused was attempting to wake up the deceased and the accused was sitting next to the deceased for quite some time.
41. It is in the context of the above facts, we need to consider whether the case falls within the exception-4 to Section 300 of IPC.
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42. The Apex Court in State Of Andhra Pradesh vs Rayavarapu Punnayya and Another reported in AIR 1977 SC 45 held as follows:
"21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the 39 offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Sec.299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first part of Section 304, Penal Code.
22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so inter-twined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages".
43. The dictum of the Apex Court referred above was followed in the later Judgment in Paul vs State Of Kerala reported in 2020 SCC Online SC 57 and it was held as follows:
40
"29. As far as the contention that appellant should be handed down conviction under Section 304, Part-I, we are not impressed by the said argument. As to what constitutes murder under Section 300 of the IPC and what constitutes culpable homicide amounting to murder has been a vexed issue and the subject matter of a large body of case law. Section 300 of the IPC declares that except in those cases which are specifically excepted culpable homicide is murder in situations which have been specifically laid down. There are commonly referred to as firstly, secondly, thirdly and fourthly under Section 300 of the IPC. If the intention of the Legislature was that culpable homicide would amount to murder if it did not fall in any of the five exceptions enumerated in Section 300 of the IPC. What was the need for the Legislature to 'waste words' as it were by declaring that culpable homicide is murder if the act fell within any of the 4 clauses in Section 300 of the IPC? In order that an act is to be punished as murder, it must be culpable homicide which is declared to be murder. Murder is homicide of the gravest kind. So is the punishment appropriately of the highest order. Murder requires establishment of the special 41 mens rea while all cases of culpable homicide may not amount to murder.
30. As far as this case is concerned, there can be no doubt that the act which led to the death has been committed by the appellant. We can safely proceed on the basis also that it amounts to culpable homicide. Going by the circumstances present in this case and in particular injuries suffered, it is quite clear that the act would fall within the scope of Section 300 of the IPC. If the act results in culpable homicide which does not amount to murder, then and then alone the question arises of applying Section 304 Part-I or Part-II as the case may be. Appellant cannot extricate himself from the consequence of his act attracting the ingredients of murder by pointing out Section 304 Part I which also contains the expression, "the act with the intention to cause death". The implications are vastly different. Section 304 of the IPC would apply only in a case where culpable homicide is not murder. If the act amounting to culpable homicide satisfies any of the four criteria to bring it under the offence of murder, being mutually exclusive, there can be no scope for applying Section 304 of the IPC. On the other hand, if the 42 act is culpable homicide as falling in any of the five exceptional circumstances mentioned in Section 300 and then it would amount to culpable homicide not amounting to murder. In cases where the accused is able to establish he is entitled to the benefit of any of the exceptions under Section 300 then his case may be considered under Part-I or Part-II of Section 304 of the IPC depending on whether the act which caused the culpable homicide was done with the intention of causing death or with knowledge that it is likely to cause death. That apart cases of culpable homicide which do not attract any of the four situations under Section 300 would still be culpable homicide to be dealt with under Section 304 of the IPC. However, if the case falls under any of the four limbs of Section 300, there would be no occasion to allow Section 304 to have play. If the act which caused the death and which is culpable homicide is done with the intention of causing death, then it would be murder. This is however subject to the act not being committed in circumstances attracting any of the 5 exceptions. Appellant's contention that it would be culpable homicide not amounting to murder and reliance placed on the words 'done with the intention of 43 causing death' in Section 304 Part-I is wholly meritless."
44. Applying the test as aforesaid, there is no material on record to indicate that the accused had any intention to commit the murder of the deceased. It is found from the evidence of PW3, PW4, PW5, PW9 that both the accused and deceased were regulars at Raghavendra Wine Stores. PW3, PW4 and PW9 deposed that both the accused and the deceased were quarrelling and later got physical. Thus one fact is certain that both of them got into a fight and in the heat of that fight, the accused caught hold of the towel that was worn around the neck by the deceased and dragged him. In the melee, the deceased struggled to free himself which resulted in strangulation. Thus, the accused was clearly guilty of homicide. However, the eye witness account would indicate that the accused and the deceased got into an argument at which point in time the accused was already drunk. The fact that 44 both of them got into a brawl is evident from the case of the prosecution. Thus, the case fell within exception 4 to Section 300, we deem it appropriate to hold that the appellant/ accused was guilty of culpable homicide not amounting to murder. There are no mitigating circumstances that entitle the accused for a reduced sentence.
ORDER This Appeal is therefore allowed in part. The Judgment dated 07.06.2014 passed by the I Additional District and Sessions Judge at Mandya in Spl.Case No.47/2013 convicting the appellant / accused for the offence punishable under Section 302 of IPC is set aside and the appellant / accused is convicted for an offence punishable under Section 304 Part (2) of IPC.
The appellant / accused is sentenced to undergo simple imprisonment for a term of ten years and pay 45 fine of a sum of Rs.10,000-00, in default to undergo simple imprisonment for six months.
Sd/-
JUDGE Sd/-
JUDGE GH