Karnataka High Court
Shankarappa Rachappa Kajagar @ Baligar vs The State Of Karnataka on 10 June, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JUNE 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL APPEAL NO.100167/2015
BETWEEN
SHANKARAPPA RACHAPPA KAJAGAR @ BALIGAR
AGE:78 YEARS, OCC. AGRICULTURE
R/O UGARKHOD, TQ. BAILHONGAL,
DIST. BELAGAVI.
... APPELLANT
(BY SRI.S.B.DEYANNAVAR, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH: CPI KITTUR
REP. BY SPP HIGH COURT OF KARNATAKA
BENCH AT: DHARWAD.
... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO CALL FOR THE PAPERS PENDING ON
THE FILE OF HON'BLE IIND ADDL. DIST. & SESSIONS JUDGE,
BELAGAVI IN SC NO.384/2012 AND SET ASIDE THE JUDGMENT
OF CONVICTION AND ORDER OF SENTENCE DATED
30/07/2015 AND THAT THE ACQUITTAL OF THE APPELLANT /
ACCUSED HEREIN IN THE CHARGES LEVELED AGAINST HIM IN
THE ABOVE CASE.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, B.A.PATIL J., DELIVERED THE
FOLLOWING:
:2:
JUDGMENT
The present appeal has been preferred by the appellant-accused challenging the judgment of conviction and order of sentence passed by the II Additional Sessions Judge, Belgaum, in Sessions Case No.384/2012 dated 30.07.2015.
2. We have heard the learned counsel Sri. S.B.Deyannavar, for the appellant and the learned Additional S.P.P. Sri V.M. Banakar for the respondent- State.
3. The genesis of the case of the prosecution in brief is that the complainant and his family members were staying together. On 2/6/2012, the complainant, his deceased father Shettapa and other relative have gone to their land for plucking the ladies fingers and tomato at about 6.00 a.m. As there was scarcity of storing big baskets, the deceased went to the house to bring big basket. But even after lapse of long time, he did not returned back. In the meanwhile, Basavaraj Chinnappa Chakadi, the brother of the complainant :3: came to the land and informed the complainant that the accused has assaulted his father with sickle, while passing through the backyard of the accused by picking up the quarrel with his father that why he was passing through the backyard of his house. Immediately, complainant went to the spot and at that time, PWs.2 and 3 have narrated about the incident and PW3 drafted the complaint and filed the complaint as per Ex.P1.
4. On the basis of the complaint, a case has been registered in Crime No.160/2012. Thereafter, after the investigation the charge sheet was came to be filed.
5. The learned Magistrate took the cognizance and after compliance of the provisions of Section 207, he committed the case to the Sessions Court. The Sessions Court secured the presence of the accused. After hearing the learned Public Prosecutor and the learned counsel for the accused, the charge was prepared, read over and explained to the accused. :4: Accused pleaded not guilty. He claims to be tried and as such, the trial was fixed.
6. In order to prove the case of the prosecution, prosecution got examined 19 witnesses and got marked 23 documents and 6 material objects. Accused was questioned under Section 313 of Cr.P.C. by putting incriminating materials as against him. He denied the said incriminating material, but he has not led any evidence nor got marked any documents. After hearing both the sides, the learned Sessions Judge passed the impugned judgment of conviction and order of sentence. Challenging the legality and correctness of the said judgment, the appellant - accused is before this Court.
7. Learned counsel for the appellant accused submits that the judgment of conviction and order of sentence is perverse, contrary to the facts and circumstances of the case. It is his further submission that though PWs.2 and 3 were eye-witnesses to the alleged incident, but for the reasons best known to them they have not informed about the incident either to the :5: complainant or to any other relatives of the complainant. Till PW-4 came and informed to the complainant they have kept quite. It is his further submission that when the complaint went to the place by that time, already the deceased was shifted to his house, but who has shifted him is not forthcoming. It is his further submission that the wife of the deceased was also an eye-witness to the incident. But for the reasons best known to the prosecution, neither she has been cited as a witness nor she has been examined before the Court. Under such circumstance, the case of the prosecution creates a doubt and the benefit of doubt ought to have been given to the accused.
8. Alternatively, it is the submission of the learned counsel for the appellant-accused that there is no motive and the alleged incident has taken place in a sudden quarrel which had taken place between the accused and deceased. It is his further submission that the incident took place out of a petty quarrel there is neither any intention, premeditation to commit the :6: offence. In that quarrel, the accused has given one blow near the neck, that too it is simple in nature and another one on his stomach. It is his further submission that as per the evidence of PW-11, the Doctor who conducted autopsy over the body of the deceased has clearly deposed that the death of the deceased is due to septisemia as a result of the injuries sustained. That itself goes to show that deceased had not died due to the injuries suffered by him, it shows that the accused was not having any intention to cause death, it is only because of septisemia the deceased died. It is his further submission that the injures which are said to have been caused by the accused are without premeditation and allegation of acting in a cruel or unusual manner. It is his further submission that there is no evidence to show that the accused with an intention to cause the death has assaulted the deceased.
9. It is under such circumstance, the Trial Court instead of convicting under Section 302 of IPC :7: ought to have convicted under Section 304-II of IPC. He further submitted that alternatively if at all this Court comes to a conclusion that the accused has committed an offence, it will fall under Section 304-II of IPC and accused be sentenced for the period which he has already under gone. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of conviction. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence.
10. Per contra, learned Additional S.P.P. vehemently submitted that P.Ws.2 and 3 are the eyewitnesses to the alleged incident and they have clearly deposed that the accused took up the quarrel with the deceased and abused him with filthy language and thereafter, the accused went to his house and brought the sickle and assaulted on the neck and stomach of the deceased. It is his further submission that the evidence of P.W.3 clearly goes to show that the accused assaulted on the stomach of the deceased. The :8: liver of the deceased had come out, that itself goes to show that the accused with an intention to cause the death of the deceased has assaulted. It is his further submission that the evidence of P.W.1 clearly goes to show that the accused has admitted the alleged incident and his presence. Under such circumstances, the minor discrepancy in the evidence is not going to take away the case of the prosecution. It is his further submission that it is not the case of the prosecution that the wife of the deceased Neelawwa was present at the place of the incident. But a stray sentence has been given by complainant and other witnesses that the wife of the deceased was also present. Under such circumstances, non-examination of the material witness is not fatal to the case of the prosecution that too when P.Ws.2 and 3 are eyewitnesses to the alleged incident and have deposed before the Court. He further submitted that it is the quality of the evidence and not the quantity which has to be seen. P.Ws.2 and 3 are natural, independent and trustworthy witnesses, they have corroborated with :9: medical evidence. It is his further submission that it is the prerogative of learned Public Prosecutor to examine the witnesses according to his convenience and if the material witnesses have already supported the case of the prosecution, then under such circumstances, even if the wife of the deceased has not examined, it is not fatal to the case of the prosecution. It is his further submission that there are no good grounds to bring the case within the purview of provision of Section 304-II of IPC. On these grounds, he prayed to dismiss the appeal as devoid of merits.
11. We have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records, including the Trial Court records.
12. In order to prove the case of the prosecution, prosecution got examined 19 witnesses. P.W.1 is the son of the deceased and he is the complainant. In his evidence, he has deposed with regard to P.W.4 coming on a motorcycle and informing about the incident and : 10 : immediately thereafter he went to the house and there he noticed that the deceased had suffered with injuries and then he was shifted to the hospital and as per the say of P.W.3, he wrote the complaint and the same has been registered. Admittedly he is not an eyewitness to the alleged incident. During the course of cross- examination of this witness, nothing has been elicited so as to discard his evidence. On the contrary, it has been suggested that the accused has assaulted without there being any intention.
13. P.Ws.2 and 3 are the eyewitnesses to the alleged incident. They have also deposed to the effect that when they were working in the field, at that time, deceased was passing through the land and there was a quarrel between the deceased and the accused and at that time, the deceased thrown clod of mud and in that context, the accused went to the house and brought the sickle and he assaulted on the neck and the stomach of the deceased. During the course of cross-examination, though it has been suggested to the witnesses that they : 11 : have not tried to pacify the quarrel and they have not went and tried to snatch the said sickle, but it has been brought on evidence that the accused has shown the sickle and because of the fear that they did not come forward to pacify the quarrel. There is nothing to discard their evidence.
14. P.W.4 is the cousin brother, who had informed about the incident to the complainant. P.W.5 the younger brother of the deceased. He has also deposed with reference to the facts of the alleged incident and taking the deceased in an ambulance. During the course of cross-examination, he has admitted that he is not an eyewitness and nothing has been elicited to discard his evidence.
15. P.W.6 is the inquest mahazar pancha to Ex.P-2. He has also supported the case of the prosecution. P.W.7 is the spot mahazar pancha to Ex.P- 3 and recovery mahazar pancha of the clothes of the deceased as per Ex.P-4. He has not supported the case of the prosecution. P.W.8 is the spot mahazar pancha to : 12 : Ex.P-3, whereunder M.Os.1 to 3 have been recovered. P.W.9 is the recovery mahazar pancha of the sickle, recovered at the instance of the accused, as per Ex.P-5. He has not fully supported the case of the prosecution. So also P.W.10 has not supported the case of the prosecution.
16. P.W.11 is the Doctor, who has conducted the autopsy over the body of the deceased. In his evidence, he has deposed that the deceased had suffered with injuries to his neck, chest and abdomen. He has further deposed for having conducted autopsy over the body of the deceased and giving opinion that the death is due to septicaemic shock consequent upon multiple injuries sustained.
17. P.W.12 is the Assistant Engineer, who has prepared the sketch, as per Ex.P-2. P.W.13 is the Police Constable, who carried the FIR to the Jurisdictional Court. P.W.14 is the SHO, who recorded the complaint and issued the FIR as per Ex.P-10. P.W.15 is the Police Constable, who had carried the body of the deceased for : 13 : autopsy and thereafter he has returned the body to the relatives. P.W.16 is the Police Constable, who went to the Hospital to record the statement of the injured, but he has not recorded the statement, as he was in the operation theatre. P.W.17 is the CPI who has partly investigated the case. P.W.18 is the SHO who carried the seized articles to RFSL, Belagavi. P.W.19 is the Investigating Officer who investigated the case and filed the charge sheet as against the accused.
18. We have gone through the submissions made by the learned counsel for the appellant. The solitary question that arise for our consideration in this appeal is "whether the accused has committed an offence as alleged by the prosecution or whether the accused was not having any intention to cause the death and the accused can be held guilty for the offence punishable under Section 304-II of IPC or alternatively whether the accused is liable to be convicted for the offence punishable under Section 302 of IPC?" : 14 :
19. On perusal of the evidence which has been produced before the Court, P.Ws.2 and 3 are the eyewitnesses to the alleged incident. In their evidence, they have deposed that when the deceased was passing through the land behind the house of the accused, at that time, accused abused and there were exchange of words in between the accused and the deceased, at that time, the deceased has thrown a mud clod and at that time, the accused was holding the sickle has assaulted on the left side of the neck and the stomach, as a result of the same, he fell down. Even as could be seen from the evidence of P.W.1, during the course of cross- examination, he has admitted that there was no dispute whatsoever between the accused and the deceased and that there was no enmity. If this evidence which has been produced by the prosecution, if it is perused, the incident in question has not been disputed. In that light, the prosecution has proved the fact that the deceased died due to the assault caused by the accused. But the only question that arises for consideration of : 15 : this Court is "whether the accused has caused the death of the deceased without intention and is liable to be convicted under Section 304-II of IPC?". In that light, the evidence which has been given before the Court, if it is perused, it indicates that the quarrel which had taken place is for a silly reason as the deceased was passing through the backyard of the accused and as per evidence of P.W.1, there was no intention, enmity or animosity whatsoever in between the families. The cause of the assault by the accused is without premeditation and there is no allegation of acting in a cruel or unusual manner.
20. On perusal of the evidence of P.W.11 Doctor, he has opined that the death of the deceased is due to septicaemic shock consequent upon multiple injuries sustained. The evidence produced by the prosecution shows that the accused was not having any intention to cause the death and there was no motive. Even the injuries which are though on a vital part are not so serious and they have been inflicted suddenly when a : 16 : quarrel has taken place in between the accused and the deceased.
21. Taking into consideration, the above said facts and circumstances, we are of the considered opinion that though the prosecution has proved the guilt of the accused, but the act of the accused is without there being any intention or premeditation. Under such circumstances, the Trial Court instead of convicting the appellant - accused for the offence punishable under Section 302 of IPC ought to have convicted for the offence punishable under Section 304- II of IPC. There is material produced by the prosecution to show that the accused used unparliamentary words and has threatened with life. Evidence of the prosecution attracting the ingredients of Sections 504 and 506 of IPC are concerned, the said conviction is liable to be confirmed.
22. Taking into consideration the above said facts and circumstances, we are of the considered opinion that the appellant - accused has made out a : 17 : case that he was not having any intention to cause such injury which is likely to cause the death. But he was having knowledge that he is likely to cause death. In that light, the provisions of Section 304-II of IPC is attracted.
23. In order to consider the case under Sections 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--
Secondly,--If its done with the intention of causing such bodily injury as the offender likely to cause the death of the person to whom the harm cause, or--
Thirdly. --If its done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is : 18 : sufficient in the ordinary course of nature to cause death, or--
Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.- When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or cause the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
Firstly.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the : 19 : law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of act.
Exception 2.- xxx xxx xxx Exception 3.- xxx xxx xxx Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault."
24. 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, : 20 : 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.
25. Second aspect is in order to attract exception No.4, four requisites must be satisfied by the accused viz., (i) it was a 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.
26. On perusal of the evidence, there was no motive but when the accused questioned, the deceased he has thrown the mud clod and at that time, the alleged incident took place. It is a sudden fight, in a heat of passion, without taking any undue advantage the accused committed the offence. In that light, the ingredients of Section 304-II of IPC are attracted to the case on hand and accused is liable to be convicted for : 21 : the offence punishable under Section 304-II of IPC instead of Section 302 of IPC.
27. At this juncture, it is brought to our notice that the accused was in the custody for a period of four years eight months and as this Court has come to the conclusion that the accused is not liable to be convicted for the offence punishable under Section 302 of IPC, he is liable to be convicted for the offence under Section 304-II of IPC. Then under such circumstances, he prays to sentence him for the period which he has already undergone, when there is no motive, enmity and it is a sudden fight. In that light, we are of the considered opinion that if the accused is convicted for the offence under Section 304-II of IPC instead of Section 302 of IPC and sentence to undergo imprisonment for the period which he has already undergone, it will meet the ends of justice.
28. Keeping in view the facts and circumstances of the case, we proceed to pass the following order: : 22 :
ORDER Appeal is partly allowed.
The conviction of the appellant - accused is modified and he is convicted for the offence under Section 304-II of IPC instead of Section 302 of IPC and sentenced to undergo imprisonment which he has already undergone. Payment of fine amount and default sentence imposed by the Trial Court is confirmed.
Insofar as conviction and sentence for the offences punishable under Sections 504 and 506 of IPC is concerned, they have been confirmed and sentence is ordered to be merged with the major offences and they should run concurrently.
SD/-
JUDGE SD/-
JUDGE Vmb - Para 1 to 9 Rsh -para 10 to end