Karnataka High Court
K. Gurunath vs State Of Karnataka on 9 December, 2020
Bench: B.Veerappa, Nataraj Rangaswamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
CRIMINAL APPEAL No.118/2016
BETWEEN:
K. GURUNATH
S/O. KRISHNAPPA,
AGED ABOUT 40 YEARS,
R/O. KALENAHALLY,
KODIGENAHALLY HOBLI,
MADHUGIRI TALUK,
TUMAKURU DISTRICT-572 127.
...APPELLANT
(BY SRI KARTHIK YADAV, ADVOCATE FOR
SRI S. K. VENKATA REDDY, ADVOCATE)
AND:
STATE OF KARNATAKA
BY KODIGENAHALLY POLICE,
TUMAKURU DISTRICT-572 127.
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA.
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDL. STATE PUBLIC PROSECUTOR)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 21.12.2015, PASSED IN S.C.No.162/2012, BY
THE IV ADDL. DISTRICT AND SESSIONS JUDGE, MADHUGIRI, BY
ALLOWING THIS APPEAL AND CONSEQUENTLY ACQUIT THE
APPELLANT/ACCUSED OF THE CHARGES LEVELLED AGAINST HIM,
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302,201 IPC,
IN THE INTEREST OF JUSTICE.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The accused, elder brother of the deceased, filed the present Criminal Appeal against the impugned Judgment and Order of conviction dated 21.12.2015 made in S.C.No.162/2012 on the file of the IV Additional District and Sessions Judge, Madhugiri, convicting the accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay fine of `5,000/-, in default, to undergo simple imprisonment for six months for the offence punishable under Section 302 of the Indian Penal Code and to undergo simple imprisonment for three years and to pay fine of `5,000/-, in default, to undergo simple imprisonment for six months 3 for the offence punishable under Section 201 of the Indian Penal Code.
2. It is the case of the prosecution that, the accused with an intention to knock off the share of his brother-Ashwathanarayana, on 07.01.2012 between 12.00 pm to 1.00 am, in the night, in Sy.No.26/2 of Kalenahalli, Kodigenahalli Hobli, Madhugiri Taluk, Tumakuru District, assaulted his brother Ashwathanarayana, on the head with spade and then threw stones on his head and limbs and killed him, and to conceal the crime, he put the dead body in a gunny bag and buried it in the sand pile by the side of the house, so that nobody could know about the murder.
3. On the basis of the voluntary information furnished by the accused before P.W.1-Ujjinappa, PSI, on 08.01.2012 stating that he killed his brother Ashwathanarayana, as the family members were frustrated because of the conduct of the deceased, the jurisdictional police submitted the report dated 08.01.2012 as per Ex.P.1 and a case in Crime No.3/2012 came to be registered as per Ex.P.2 for the offences punishable under Sections 302, 201 of the Indian Penal Code.
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4. After committal of the case to the Sessions Court, the learned Judge framed the charge, it was read over and explained to the accused who pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution examined P.Ws.1 to 15 and marked the documents Exs.P.1 to 23 and material objects, M.Os.1 to 16. After completion of the evidence of prosecution witnesses, the learned Sessions Judge recorded the statement of the accused as contemplated under Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating evidence adduced against him by the prosecution witnesses. A portion of the deposition of P.W.13 was marked as Exs.D.1 and D2.
6. Based on the material on record, the learned Sessions Judge formulated two points for consideration. Considering the entire oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution has proved beyond reasonable doubt that on the intervening night of 07.01.2012 and 08.01.2012, between 12 pm to 1 pm, in Sy.No.26/2 of Kalenahalli, Kodigenahalli, Madhugiri Taluk, Tumakuru District, with an intention 5 to knock off the share of his brother-Ashwathanarayana in the properties, the accused assaulted him on the head with spade and then threw stones on his head and limbs and killed him and thereby, committed an offence punishable under Section 302 of the Indian Penal Code; and the prosecution proved beyond reasonable doubt that, after committing the murder of his brother Ashwathanarayana, the accused, with an intention to conceal the crime, put the dead body in a gunny bag and buried it in the sand pile by the side of the house so that no body would know about the murder and thereby, committed an offence punishable under Section 201 of the Indian Penal Code. Accordingly, the learned Sessions Judge, proceeded to convict the accused for the offences made out in the Charge. Hence, the present Criminal Appeal is filed.
7. We have heard the learned counsel for the parties.
8. Sri Karthik Yadav, learned counsel for Sri S.K.Venkata Reddy, learned counsel for the appellant contended with vehemence that the impugned judgment and order of conviction passed by the learned Sessions Judge is erroneous and contrary to the material on 6 record and is liable to be set-aside. Learned counsel for the appellant further contended that, recovery of dead body of the deceased at the instance of the accused is not in accordance with law. The prosecution has not proved the 'motive' beyond reasonable doubt. M.O.6-Salike and M.O.7-stone used in commission of the offence is not proved. The learned Sessions Judge failed to notice that the statement of K.C.Hanumantharayappa-owner of the land adjacent to the land of the deceased, which was recorded by the Taluka Executive Magistrate on 09.01.2012 in column-X of the Inquest Report/Ex.P.6 between 8.00 am and 10.30 am, depicts that Ex.P.1 is not at all a complaint, which has set the law in motion to register the alleged crime. The said Hanumantharayappa, who was examined as P.W.13 has deposed that he informed P.W.1 over phone about the alleged incident. The police arrived at the spot at 10.00 pm and a police was deputed to watch there and on the next day morning, the Tahsildar examined the body, inquest was drawn, postmortem was conducted and dead body was delivered to the relatives. The said material has not been considered by the learned Sessions Judge.
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9. The learned counsel further contended that the Police Inspector submitted the report-Ex.P.1 and registered the case in crime No.3/2012 against the accused and thereafter submitted Ex.P.2/proforma FIR with one enclosure Ex.P.1 to the jurisdictional JMFC, on 08.01.2012. P.W.1-PSI has not arrested the accused on 08.01.2012. P.W.1 has recorded the voluntary statement of accused as per Ex.P.3. It was typed on the same day. The accused has not signed on page Nos.1 and 2, but has signed only on page No.3 of Ex.P.3- voluntary statement, the last sentence of which is culled out in the Appeal Memo which reads as under "PÀ®Äè ªÀÄvÀÄÛ ZÀ°PÉAiÀÄ£ÀÄß £Á£ÀÄ vÉÆnÖzÀÝ §mÉÖUÀ¼À£ÀÄß §aÑnÖgÀĪÀ eÁUÀªÀ£ÀÄß vÉÆÃj¹PÉÆqÀÄvÉÛãÉ." Therefore, the spot mahazar drawn-Ex.P.4 and seizure of M.Os.1 to 12 by P.W.1 is contrary to the material on record and the learned Sessions Judge ought not to have relied upon the evidence of P.W.1 and Exs.P.1 to 4 before passing the impugned judgment and order of conviction.
10. Learned counsel further contended that P.W.2, a witness to Exs.P.4 to 6 has not supported the case of the prosecution and was treated as hostile. The other material witnesses including P.W.5- 8 father of the deceased, P.W.6-mother of the deceased and P.W.8- wife of the accused have turned hostile. The learned Sessions Judge proceeded to convict the accused based on assumption and presumption and the same cannot be sustained. He further contended that though M.Os.6 to 10 were seized under Ex.P.4, they were not sent to Forensic Science Laboratory and there is no report before the Court. Therefore, he sought to allow the Criminal Appeal.
11. In support of his contentions, learned counsel relied upon the dictum of the co-ordinate Bench of this Court, in the case of K.M.Balakrishna vs. The State of Karnataka reported in ILR 1997 KAR 1946 (para 14).
12. Per contra, Sri Vijaykumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment and order of conviction, contended that the jurisdictional police-P.W.1, based on the voluntary information furnished by the accused after murdering his brother, submitted the report as per Ex.P.1 and thereafter, registered the complaint as per Ex.P.2 and the voluntary statement of the accused was recorded as per Ex.P.3. Considering 9 the entire oral and documentary evidence on record, the learned Sessions Judge has rightly convicted the accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code. The statement made before the Police as per Ex.P.1 has been treated as complaint and a case has been registered. Nowhere in the cross-examination of P.W.1 it was suggested that the accused has not made such statement before the police. Therefore, he sought to dismiss the Criminal Appeal.
13. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration is:
"Whether the Appellant/accused has made out a case to interfere with the impugned judgment and order of conviction, convicting the accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code, in the facts and circumstances of the present case?"
14. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including original records, carefully. 10
15. In order to re-appreciate the oral and documentary evidence on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon.
(i) P.W.1-Ujjinappa, PSI, Kodigenahalli Police Station has deposed that, on 08.01.2012 at about 2.00 pm, the accused appeared before him in the Police Station and stated that he has murdered his younger brother and buried him in the sand pile. On the basis of the statement of the accused, he prepared the report as per Ex.P.1 and registered a case in crime No.3/2012 and sent the FIR to the Court as per Ex.P.2. He recorded the voluntary statement of the accused as per Ex.P.3 and seized M.Os.1 to 12 under Ex.P.4 and supported the prosecution case.
(ii) P.W.2-Ashwathanarayanappa- witness to the spot Mahazar-Ex.P.4, Exhumation Mahazar-Ex.P.5 and Inquest Mahazar-Ex.P.6, turned hostile.
(iii) P.W.3-Hemanth Kumar, an independent witness has deposed that his land is situated next to the land of the appellant. He went to the spot when the police arrived and saw the dead body lying on 11 the land and was not buried. He has stated that the accused did not show the spot to the police, and turned hostile.
(iv) P.W.4-Gopala Krishna, an independent witness has deposed on par with P.W.3 and turned hostile.
(v) P.W.5-Krishnappa, father of the deceased and the accused has deposed that the deceased had quarreled with him and broke his leg. While quarreling, the deceased fell on the stones and died. He saw the deceased being dead at about 5 to 6 am. He signed Ex.P.4-spot mahazar in the Police Station and turned hostile.
(vi) P.W.6-Ashwathamma, mother of the deceased has deposed that the deceased had quarreled with her and broken her leg. While quarreling, the deceased fell on the stones and died and she saw the deceased being dead at about 5 to 6 am, and turned hostile.
(vii) P.W.7-Nafiz Ahmed, witness to Ex.P.4-Amanath Mahazar and Ex.P.6-Inquest mahazar, turned hostile.12
(viii) P.W.8-Suvarnamma, wife of the accused and sister-in-law of the deceased has deposed that at about 4 am, when the accused was watering the land, deceased tried to outrage her modesty.
When the accused arrived, the deceased assaulted the accused. Out of fear, the accused tried to escape from the hands of the deceased.
The deceased fell on stones and died on the spot while chasing the accused. The accused arrived at the spot along with police at about 9 'O' Clock and the accused's clothes were not blood stained and turned hostile.
(ix) P.W.9-Nagaraj Shetty, Tahsildar, has deposed that on 09.01.2012, he received requisition from the police. Later at about 7.30 am, he proceeded to the spot in Sy.No.26/2 and the body which was buried was exhumed from the sand pile under Ex.P.5- Exhumation mahazar and he has drawn the inquest mahazar as per Ex.P.6 and supported the prosecution case.
(x) Ex.P.10-Dr.Bhanu Prakash, has deposed that he conducted post mortem on the dead body of the deceased and gave the postmortem report as per Ex.P.11 and gave his opinion as per Ex.P.12 on 13 M.O.6-stone and M.O.7-Shovel and supported the case of the prosecution.
(xi) Ex.P.11-Prakash, Junior Engineer has deposed that he prepared the spot sketch in Sy.No.26/2 as per Ex.P.13 and supported the prosecution case.
(xii) P.W.12- Jabiulla, is the witness to Exhumation Mahazar-Ex.P.5 and his statement under Section 161 of the Code of Criminal Procedure was marked as Ex.P.14. He turned hostile.
(xiii) P.W.13-Hanumantharayappa, independent eye witness has deposed that his land is situated next to the land of the accused. He went to the spot and noticed bleeding injuries on the face of the deceased. Then, accused assaulted the deceased with M.O.7-salike and M.O.6-stone due to which the deceased died on the spot. Thereafter, the accused buried the body of the deceased in the sand pile using two gunny bags. He informed the same to P.W.1 over phone. The police arrived to the spot at about 10 'O' clock. Next day, P.W.9- Tahsildar visited the spot, exhumed the body and conducted the inquest. The witness identified M.Os.6 and 7 and supported the prosecution case. 14
(xiv) P.W.14-Chandraiah, Head Constable, has stated that he carried the dead body of the deceased to the Government Hospital, Madhugiri, for post mortem. He has taken photographs of the spot, marked as Exs.P.15 to P.20 and supported the prosecution case.
(xv) P.W.15-Sathyanarayana Kumar, CPI and Investigating Officer, who conducted major portion of the investigation and filed charge sheet has stated that on 09.01.2012, he took over the investigation from P.W.1. He marked Ex.P.21- P.F.No.6/12 seizing clothes of the deceased after the postmortem, Ex.P.22-P.F.No.7/2012 seizing viscera collected by the doctor, marked Ex.P.23- RTC pertaining to Sy.No.26/2 and on 11.03.2012, he received the FSL report. After completion of the investigation, he filed the charge sheet and supported the case of the prosecution.
Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to pass the impugned judgment and order of conviction against the accused for the offences made out in the Charge.
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16. Being the appellate Court, in order to re-appreciate the material on record, it is relevant to consider both oral and documentary evidence on record. It is not in dispute that the accused lodged the first information before the Police on 08.01.2012, he himself had set the law into motion stating that he has killed his brother, as the deceased used to quarrel with his father and mother and had broken their hands. The deceased was addicted to alcohol and tried to outrage the modesty of the wife of the accused. Thereby, in retaliation, the accused killed his brother- the deceased.
17. Based on the aforesaid information, P.W.1-PSI registered the FIR on 08.01.2012 in Crime No.3/2012 as per Ex.P.2. He recorded the voluntary statement of the accused as per Ex.P.3. In the cross- examination, P.W.1 has deposed that during the investigation, he learnt about the conduct of the deceased regarding the harassment meted out by him to his brother-accused and parents, and being unable to bear the harassment of the deceased, P.W.5-father, P.W.6-mother and P.W.8-sister-in-law of the deceased left the village to Doddaballapura for coolie work and settled there. Later, 16 villagers brought them back. He also deposed that, during the course of investigation, he came to know that, prior to the incident, the deceased attacked the accused, P.Ws.5 and 6 with knife and club, and tried to outrage the modesty of P.W.8-wife of the accused. P.W.2 alleged eye witness to the spot mahazar turned hostile. P.W.3-independent witness though turned hostile, has deposed in the cross-examination that that the police arrived at the spot at 9.00 am on 08.01.2012. The deceased used to frequently fall down and suffer injuries under the influence of alcohol. When he went near the spot, he found big boulders near the spot and the deceased died when he fell on the said boulders. No re- examination was made by the prosecution.
18. P.W.4-independent witness has deposed in the cross- examination that the deceased frequently used to fall down under the influence of alcohol and sustain injuries. When he went to the spot, he found big boulders and the deceased had died due to fall on the boulders. P.W.5-father of the deceased has stated that the deceased used to quarrel with him and had broken his leg and hand. The deceased died by falling on the boulders. The accused 17 has not committed the murder. In the cross-examination, he has deposed that the deceased was addicted to alcohol and had raised loans and used to harass him to discharge the loan and there was quarrel between himself and the deceased and in fact, the deceased had obtained loan from the bank and for repayment also, he was harassing and some times, he used to fall down under the influence of alcohol without control over his body and on the day of the incident he died under the influence of alcohol by falling on the boulders.
19. P.W.6-mother of the deceased has stated that deceased had quarreled with her and had broken her leg. In the cross- examination, she has stated that the deceased used to fall down under influence of alcohol. On the date of the incident, deceased was under the influence of alcohol and by falling down on the boulders he died.
20. P.W.8-Suvarnamma, none other than the sister-in-law of the deceased and wife of the accused has deposed that the deceased was addicted to alcohol and used to quarrel with all the members of the family and used to assault his father and mother. About 2 18 years back, when her husband went to the land, and when she was preparing tea, at that time deceased tried to outrage her modesty and torn her saree and blouse. At that time, her husband/accused came. The deceased assaulted her husband also and when her husband tried to run, the deceased chased him and died by falling on the boulders and her husband's clothes were not stained with blood. In the cross-examination she has reiterated that the deceased died by falling on the boulders and he was in the habit of consuming alcohol and unnecessarily quarrel and act like a goonda.
21. A careful perusal of the evidence of prosecution witnesses depicts that though P.W.2/alleged eye witness, P.Ws-3 and 4 independent witness, P.W.5-father of the deceased, P.W.6-mother of the deceased, P.W.7-alleged independent witness and P.W.8- sister-in-law of the deceased and wife of the accused turned hostile, the fact remains that, based on the information given by the accused, P.W.1/PSI set the law into motion and registered a case as per Ex.P.2. Since the accused made voluntary statement before the police stating that he killed his brother in a fit of range, before arrest, the provisions of Section 27 of the Indian Evidence Act is not 19 available to the accused and based on the information, the police rightly set the law into motion. The material on record clearly depicts that the deceased was addicted to alcohol and used to quarrel with all the family members and had broken the legs of his parents. Being unable to control his body balance as he was fully drunk, fell down on the boulders, sustained injuries and died.
22. It is also not in dispute that, a careful perusal of Ex.P.3, voluntary statement given by the accused depicts that the deceased attacked him with a knife. But according to P.W.3, accused was armed with a spade and assaulted the deceased on his head and the deceased fell down. When the deceased tried to attack his father and mother-P.Ws.5 and 6 and broke their hands and legs and attacked his sister-in-law-P.W.8 who is wife of the accused and tried to outrage her modesty and torn her saree and blouse, at that time, the accused came and the deceased attacked the accused with shovel. At that time, to protect himself, accused attacked with spade on the head of the deceased who fell down and died. The accused himself went to the police station, gave the first information that he killed his own brother, which clearly indicates 20 that the death was not intentional and it was in a heat of passion without any pre-meditation. The material on record also clearly indicates that the deceased had obtained loans from villagers and had not discharged the same. His father had given him the money by raising loan on the land which was also not repaid by the deceased.
23. The learned Sessions Judge proceeded to convict the accused mainly on the ground that there was no partition in the family and in order to get the share of the deceased, the accused might have killed. When P.Ws.5 and 6 have specifically stated that the accused used to quarrel with them frequently and was addicted to alcohol and in fact he had broken their legs and tried to outrage the modesty of the wife of the accused and at the time of quarrel, in the spur of the moment, the accused to protect himself, he retaliated to avoid assault on him by the deceased. Thereby, the accused caused homicidal death of the deceased, as can be seen from the material evidence including the inquest panchanama conducted by P.W.9-Tahsildar.
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24. It is also not in dispute that P.W.13 who is the neighbouring land owner and said to be the witness to the inquest mahazar has supported the prosecution case. But he only stated that he came to know about the incident. However, his contradiction does not prove fatal to the case of the prosecution, in view of Ex.P.3-voluntary statement of the accused.
25. The Ex.P.11- postmortem report clearly depicts that the death was due to shock and hemorrhage due to injuries sustained. Ex.P.12-opinion of the Doctor also depicts that on account of the assault using spade and injuries sustained, the deceased might have died. The said material evidence on record clearly depicts that the case clearly falls under Exception 4 of Section 300 of the Indian Penal Code, which reads as under:
"300.Murder-xxxx Exception 1-xxxx Exception 2-xxxx Exception 3-xxxx 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 22 offender having taken undue advantage or acted in a cruel or unusual manner."
26. To invoke the provisions of Exception 4 to Section 300, four requirements must be satisfied.
(i) It must be a sudden fight;
(ii) There should be no premeditation;
(iii) The act must be done in a heat of passion; and
(iv) The assailant should not have taken any undue
advantage or acted in a cruel manner.
27. Admittedly, in the present case, the oral and documentary evidence on record clearly depicts that the evidence of P.Ws.5 and 6, father and mother of the accused, P.W.8-wife of the accused that the deceased was addicted to alcohol and had borrowed hand loans and also bank loan and used to quarrel frequently with the family members and had broken the hands and legs of his parents-P.Ws.5 and 6 and tried to outrage the modesty of P.W.8-wife of the accused. Thereby, the accused got provoked and to protect himself, his wife, mother and father, committed homicidal death of the deceased without any premeditation and it happened in a heat 23 of passion. He used M.O.3-sickle on the head of the deceased and he has not taken any advantage or acted in a cruel manner in causing death of his own brother.
28. It is well settled that one of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion, howsoever, grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstances, if other circumstances unfailingly point to the guilt.
29. On meticulous perusal of the oral and documentary evidence on record clearly depicts that the unfortunate incident undoubtedly has taken place between brothers in a spur of moment without 24 premeditation when the deceased assaulted his father and mother, broke their legs and when he tried to outrage the modesty of the wife of the accused, i.e., his own sister-in-law, torn her saree and blouse and tried to assault the accused. It cannot be said that the accused had any intention to kill his own brother, or had the knowledge that the death was likely to ensue. The accused-brother of the deceased, only intended to vent his ire against his brother- deceased as he tried to outrage the modesty of his wife and there was no occasion for him to kill his own brother. Admittedly, the accused is a coolie taking care of his own father, mother and wife and taking into consideration the mitigating circumstances that while there was a fight between the brothers, the younger brother- deceased succumbed to the injuries which was attributable to the accused and in the absence of any intention, makes him individually answerable, the conviction has to be converted into one under Section 304 Part II of the Indian Penal Code.
30. In view of the above facts and circumstances, the instant case does not fall under Section 302 of the Indian Penal Code. But it falls under Exception 4 to Section 300 of the Indian Penal Code, 25 since the accused inflicted the injuries on the deceased without any intention to cause his death and in view of the same, act of the accused is punishable under Section 304 Part II of the Indian Penal Code and is liable to be convicted under the said provision.
31. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Ahmed Shah and Another -vs- State of Rajasthan, reported in (2015) 3 SCC 93 wherein at paragraph 21 it is held as under:
"21. As elaborated earlier, the complainant party went to the field and Sabbir Shah was armed with gun. In the sudden fight, there was a scuffle. During the course of scuffle, the appellants inflicted injuries on the deceased Sabbir Shah. The accused tried to grapple the gun from Sabbir Shah. There was no premeditation and that the incident was the result of sudden fight. In the scuffle, the other accused inflicted injuries on Rakhu Shah and PW 8 Rakhia. Considering the facts and circumstances of the case, in our view, the present case cannot be said to be a case punishable under Section 302 IPC but a case falling under Exception 4 to Section 300 IPC.26
Since the appellants inflicted injuries on the neck and scalp of Sabbir Shah with the intention of causing death, the act of the appellant-accused is punishable under Section 304 Part I IPC."
32. The Hon'ble Supreme Court while considering the provisions of Sections 302 and 394 r/w 34 of the Indian Penal Code and Section 27 of the Indian Evidence Act, in the case of Digamber Vaishnav and Another -vs- State of Chhattisgarh reported in (2019) 4 SCC 522 at pagraphs-18, 19, 40, 41 and 42 has held as under:
"18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance 27 between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a 28 reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense".
19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808].
40. The prosecution has relied upon the evidence of PW-8 to show that the accused and victims were last seen together. It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to 29 the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trust worthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body.
41. In Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2) SCC 372, it has been held as under:-
"31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7- 1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased.
But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, 30 therefore, no conviction on that basis alone can be founded".
42. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC, 715, the Court has reiterated that the last seen together does not by itself lead to the inference that it was the accused who committed the crime. It is held thus:
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant"
33. While considering the provisions of Section 304 of the Indian Penal Code in the case of State of Madhya Pradesh -vs- Suresh reported in (2019) 14 SCC 151, the Hon'ble Supreme Court has laid down the principles for sentencing, proportionality and 31 balancing of aggravating and mitigating circumstances and at paragraphs 13 and 14 it has held as under:
"13. Therefore, awarding of just and adequate punishment to the wrongdoer in case of proven crime remains a part of duty of the court. The punishment to be awarded in a case has to be commensurate with the gravity of crime as also with the relevant facts and attending circumstances. Of course, the task is of striking a delicate balance between the mitigating and aggravating circumstances. At the same time, the avowed objects of law, of protection of society and responding to the society's call for justice, need to be kept in mind while taking up the question of sentencing in any given case. In the ultimate analysis, the proportion between the crime and punishment has to be maintained while further balancing the rights of the wrongdoer as also of the victim of the crime and the society at large. No straitjacket formula for sentencing is available but the requirement of taking a holistic view of the matter cannot be forgotten.
14. In the process of sentencing, any one factor, whether of extenuating circumstance or 32 aggravating, cannot, by itself, be decisive of the matter. In the same sequence, we may observe that mere passage of time, by itself, cannot be a clinching factor though, in an appropriate case, it may be of some bearing, along with other relevant factors. Moreover, when certain extenuating or mitigating circumstances are suggested on behalf of the convict, the other factors relating to the nature of crime and its impact on the social order and public interest cannot be lost sight of."
34. For the reasons stated above, the point raised for consideration in the present Criminal Appeal is answered partly in the affirmative holding that the accused has made out a case to interfere with the impugned judgment and order of conviction convicting the accused for the offence punishable under Section 302 of the Indian Penal Code sentencing him to undergo imprisonment for life, which requires for modification and has not made out any ground to interfere with the impugned judgment and order of conviction sentencing the accused to undergo simple imprisonment for 3 years for the offence punishable under Section 201 of the Indian Penal Code.
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35. Hence, we pass the following:
RESULT
(i) The Criminal Appeal is allowed in part.
(ii) The impugned judgment and order of conviction dated 21.12.2015 made in S.C.No.162/2012 on the file of the IV Additional District and Sessions Judge, Madhugiri, sentencing the accused to undergo imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code is hereby modified. The appellant/accused is convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and sentenced to undergo imprisonment for a period of six years and to pay fine of `5,000/-, in default, to undergo imprisonment for a period of six months.
(iii) The judgment and order of conviction passed by the learned Sessions Judge sentencing the accused to undergo simple imprisonment for a period of 34 three years and to pay fine of Rs.5,000/-, in default, to undergo simple imprisonment for six months for the offence punishable under Section 201 of the Indian Penal Code, is hereby confirmed.
(iv) The sentences to run concurrently.
(v) The accused is entitled to the benefit of set off, as contemplated under Section 428 of the Code of Criminal Procedure.
Sd/-
JUDGE Sd/-
JUDGE kcm