Karnataka High Court
Sidharth Chowdary vs State Of Karnataka on 11 April, 2022
Author: B. Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF APRIL, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO.1207 OF 2017
BETWEEN:
SIDHARTH CHOWDARY,
S/O RAJESH CHOWDHARY,
AGED ABOUT 32 YEARS,
R/AT NO.6, 3RD CROSS,
RAJASHRI LAYOUT,
RAJASHRI LAYOUT,
MUNEKOLAL MARATHALLI POST,
BANGALORE - 560 037.
PERMANENT ADDRESS:
FLAT NO.202, TOWER 7,
ORCHID PETAL SOCIETY
SECTOR 49, SOHNA ROAD,
GURGAON, HARYANA-122 018.
... APPELLANT
(BY SRI HASMATH PASHA, SENIOR COUNSEL
FOR SRI KAPIL DIXIT, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY HAL P.S.,
REPRESENTED BY SPP,
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HIGH COURT BUILDING,
BANGALORE - 560 001.
... RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF ACT CR.PC PRAYING TO SET ASIDE
THE JUDGMENT DATED 17.01.2017 AND SENTENCE
DATED 19.01.2017 PASSED BY THE LXI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-
70) IN S.C.NO.431/2013 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:
JUDGMENT
This is a case where the husband/accused, in a fit of rage, killed his wife, who got married in the year 2008 out of love, is before this Court against the impugned judgment of conviction dated 17.01.2017 and order of sentence dated 19.01.2017 made in S.C.No.431/2013 on the file of LXIX Additional City Civil and Sessions Judge, Bengaluru, convicting the accused for the offence punishable under Section 302 of IPC and sentencing him to undergo for rigorous imprisonment for life with a fine of Rs.10,000/- with a default clause. 3
2. It is the case of the prosecution that the accused-Sidhartha Chaudhary married the deceased- Ruchi Chaudhary out of love. Both the husband and wife were highly educated, having Engineering degrees. The marriage was solemnized on 09.11.2008. After the marriage, they were residing in Gorgaon, Delhi and both were working in software companies. Afterwards, both were transferred to Bengaluru and started to reside at Bengaluru with their three years old daughter, Pranya, who was born on 31.10.2009 out of wedlock.
3. It is further the case of the prosecution that accused started to quarrel with his wife demanding her salary amount. After sometime, he left to foreign and returned back after 2 months. Since the accused used to quarrel with his wife and used to ill treat her, PW.2 and PW.3, the parents of the deceased-Ruchi Chaudhary, tried to pacify them. Thereafter, the accused got transferred his job to Delhi and the deceased started to live with her parents at Munnekolal, Marathalli.
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4. It is further case of the prosecution that on 12.11.2012 at about 1.45 p.m., the accused came from Delhi with an intention to kill the deceased-Ruchi Chaudhary and entered inside the house, where her parents PW.2 and PW.3 were residing, started quarrel with his wife in the presence of PW.2 and PW.3 and took knife and stabbed on her stomach, on right side shoulder, on left hand fingers, right side cheek on face, on backside of throat. Totally, he stabbed her in 17 places and caused her murder. On the basis of complaint by PW.1-Divya, the sister of the deceased, on 12.11.2012, the Jurisdictional Police registered a criminal case in Crime No.424/2012 for the offence punishable under Section 302 of IPC. After investigation, PW.11-Investigating Officer filed a charge sheet against the accused.
5. The committal Court after taking cognizance of the charge-sheet registered in C.C.No.22120/2013 and secured the presence of the accused and framed charge for the offence punishable under Section 302 of 5 IPC and explained him in the language known to him, who pleaded not guilty and claimed to be tried.
6. In order to prove the case of the accused, the prosecution examined PW.1 to PW.18 and got marked material documents as per Ex.P1 to Ex.P35 and material objects at MO.1 and MO.14. During the cross examination of the prosecution witnesses, the defence marked 20 documents as Ex.D1 to Ex.D20. After completion of the evidence of the prosecution witnesses, the statement of the accused was recorded as contemplated under Section 313 of Cr.P.C., who denied the incriminating evidence adduced by the prosecution witnesses and not adduced any evidence.
7. Based on the aforesaid pleadings, the learned Sessions Judge framed two points for consideration, which read as under:
1. "Whether the prosecution proves beyond all reasonable doubt that the death of deceased is a homicidal death amounting to murder?
2. Whether the prosecution proves beyond all reasonable doubt that on 12.11.2012 at about 1.45 p.m. the 6 accused committed the murder of his wife Ruchi Chaudhary by stabbing on 17 places through knife and thereby committed an offence punishable under Section 302 of IPC?
8. Considering both oral and documentary evidence on record, the learned Sessions Judge answered point Nos.1 and 2 in the affirmative holding that the prosecution has proved beyond all reasonable doubt that the death of the deceased-Ruchi Chaudhary is a homicidal death amounting to murder. The prosecution has further proved beyond all reasonable doubt that on 12.11.2012 at about 1.45 p.m., the accused committed murder of his wife-Ruchi Chaudhary by stabbing her in 17 places with a knife, thereby committing an offence punishable under Section 302 of IPC. Accordingly, the learned Sessions Judge proceeded to convict the accused for the aforesaid offence. Hence, the present criminal appeal is filed by the accused.
9. We have heard the learned counsel for the parties to the lis.
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10. Sri Hasmath Pasha, learned Senior Counsel for the appellant-accused contended with vehemence that the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, convicting the accused and sentencing him to undergo for rigorous imprisonment for life with a fine of Rs.10,000/- with default clause under the provisions of Section 302 of IPC is erroneous, contrary to the material on record and cannot be sustained.
11. He further contended that the evidence of PW.1, PW.2 and PW.3, the sister, the father and the mother of the deceased respectively was declared partially hostile by the prosecution due to their un- natural conduct, contradictory statements with each other and that in the absence of any circumstances proved beyond reasonable doubt, no conviction can be based on the evidence of such witnesses. It is further contended that the trial Court erred in convicting the accused as per the evidence of PW.1-Divya, the sister of the deceased, in her cross examination, she has 8 admitted that she had written the complaint on 13.11.2012 and the spot mahazar as per Ex.P7 was drawn on 12.11.2012, investigation had begun even before the FIR was registered. Hence, Ex.P7 is hit by Section 162 of Cr.P.C.
12. He further contended that the trial Court erred in coming to the conclusion that the accused had brought a knife from Delhi, which is highly improbable and not a believable version. In the complaint, PW.1- complainant has stated that on 12.11.2012, the accused, in the presence of PW.3- the mother of the deceased, stabbed the deceased 3 to 4 times on her stomach in the room and murdered her which is without any basis. None of the evidence of the prosecution witnesses depicts that he brought a knife as per MO.5 from Delhi and flew from flight which is impossible. Therefore, the trial Court erred in convicting the accused for the offence punishable under Section 302 of IPC.
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13. He further contended that the accused and the deceased were highly educated, had love marriage, were salaried persons and were earning handsome salary. Their marriage was solemnised on 09.11.2008 out of their wedlock a female child-Pranya was born on 31.10.2009. They celebrated the birthday of their daughter on 31.10.2012. On 12.11.2012, the accused came to Bengaluru, reached the house of the deceased and started quarrelling with the deceased. The same was stated in the statements of PW.1, PW.2 and PW.3, the sister, father and mother of the deceased, respectively. In the scuffle during the grappling between the accused and the deceased, the accused lost self control and thereby, an unfortunate incident has taken place at the instance of the accused. It was not intentional but due to sudden provocation in the heat of passion. In view of the peculiar facts and circumstances of the case, it is not a case made out by the prosecution to grant an extreme punishment of life as the said incident happened on spur of a moment. Therefore, it is a clear case that falls under the provisions of Section 10 304 (Part-I) of IPC and not under Section 302 of IPC. Therefore, he sought to allow the appeal.
14. Per contra, Sri K. Nageshwarappa, learned High Court Government Pleader appearing for the respondent/State while justifying the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, contended that there is no dispute with regard to husband and wife, but the unfortunate incident happened on 12.11.2012 within 5 years from the date of marriage. Though there was no complaint earlier against the accused, the fact remains that both the accused and the deceased were highly educated and were getting a salary. The accused used to demand the salary of the deceased. When she refused to pay the same, the accused intentionally brought MO.5-knife from Delhi and stabbed his wife 17 times mercilessly and brutally murdered her. Therefore, it is a clear case of murder that attracts the provisions of Section 302 of IPC which is rightly held by the learned Sessions Judge.
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15. He further contended that the evidence of PW.1, PW.2 and PW.3, the sister, the father and the mother of the deceased, respectively, in a categorical terms deposed that the accused, with the intention of murdering his wife, picked up the knife and stabbed the deceased. He further contended that the evidence of PW.9-the Doctor clearly depicts that it is a clear case of murder. The postmortem report as per Ex.P24 also indicates about 17 inside wounds on the body of the deceased. PW.9-the Doctor also opined that the death was due to shock and hemorrhage, as a result of multiple stab wounds sustained. Therefore, the trial Court justified in convicting the accused under the provisions of Section 302 of IPC.
16. He further contended that Ex.P1 by PW.1- the sister of the deceased specifically stated that on 12.11.2012, her brother-in-law, the accused came to Bengaluru along with a knife with an intention of murdering her sister. He started a fight with her sister. Her mother was also there. Her parents tried to stop 12 him, but he was furious, holding a knife and told them he would finish everyone. Accordingly, he stabbed her sister. Therefore, the trial Court justified in convicting the accused under the provisions of Section 302 of IPC. Therefore, he sought to dismiss the appeal.
17. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in the present appeal, are:
1. Whether the trial Court is justified in convicting the accused for imprisonment of life with a fine of Rs.10,000/- for the offence punishable under Section 302 of IPC?
2. Whether the accused has made out a case to interfere and modify the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting the accused for imprisonment of life under the provision of Section 302 of IPC, in the peculiar facts and circumstances of the present case?
18. We have given our anxious consideration to the arguments advanced by learned counsel for the 13 parties and perused the entire materials including the original records carefully.
19. This Court being the Appellate Court in order to re-appreciate the entire evidence on record, it is relevant to consider the evidence of prosecution witnesses and material documents relied upon:-
a) PW.1-Divya, the younger sister of the deceased and the complainant as per Ex.P1, deposed about the marriage between the deceased and the accused in the year 2008 in Delhi. Both the accused and the deceased were working in a private company and both were highly educated.
Out of their wedlock they have got a female child. She further deposed that in the month of March and April of 2012, there was quarrel in between them regarding loan and monetary aspect. The accused was causing cruelty to the deceased, both mentally and physically. Thereafter, the deceased came to her parents' house in Delhi and both got separated. Late in 14 the month of September-October, 2012, the deceased came to Bengaluru to continue her job along with her parents and reside at Munnekolala. She further deposed that on 12.11.2012, the accused came from Delhi and went to her sister's house, stabbed her sister and killed her. Accordingly, she lodged the complaint. Ex.P1 is the complaint and Ex.P7 is Spot Mahazar. She identified MO.1 to MO.11. She was treated partly as hostile and partly supported the case of the prosecution.
b) PW.2-Premnath Khurana, the father of the deceased-Ruchi Chaudhary, deposed on par with PW.1. He further deposed that the accused used to quarrel with the deceased regarding monetary aspects. On 31.10.2012, there was birthday of his granddaughter. The accused was called. He had attended with his brother and after 4-5 days stayed with them and went away. Again, on 12.11.2012 at 1.45 p.m., the accused came to 15 their house, at that time, he, his wife, the deceased and his granddaughter were there. He further deposed that he came down to smoke a cigarette. He heard the scream of the deceased. He went up and saw the accused had stabbed his daughter-Ruchi Chaudhary and the accused closed the door. Thereafter, his second daughter-PW.1, lodged the complaint and supported the case of the prosecution. Though a contradiction statement was made on Ex.P8, Ex.P9 and Ex.P10, it was not supported the case of prosecution.
c) PW.3-Jyothi Khurana, the mother of the deceased, deposed that about the marriage and employment of both the accused and the deceased (daughter and son-in-law). She further deposed that there was a frequent quarrel between the accused and the deceased for several reasons. She further deposed that on 31.10.2012, the birthday of her grant daughter 16 was performed. The accused and his brother came, and the accused stayed for 4 to 5 days.
On 05.11.2012, he went back to Delhi.
Thereafter, on 11.11.2012, the accused made a call to his wife, who was crying and telling him that she wanted a divorce. On 12.11.2012, the accused came in a taxi and directly went to their house to quarrel with the deceased and stabbed her stomach 2-3 times. On the arrival of Divya- PW.1, the complaint came to be lodged. She identified MO.1 to MO.4. She deposed that Ex.P2 to Ex.P6 are photos of deceased. She treated partly as hostile and partly supported the case of the prosecution.
d) PW.4-Bhaskar, Panch witness to the Seizure of Clothes of the accused in the police station. MO.13-T.shirt, MO.14-Jeans Pants, Ex.P21- Seizure Mahazar and supported the case of the prosecution.
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e) PW.5-Basava, the Panch witness to the inquest panchanama as per Ex.P22 and supported the case of the prosecution.
f) PW.6-Dr.V.R.Dayananda, the Taluk Executive Magistrate, as per the request of the jurisdictional police, conducted an inquest over the deceased-Ruchi Chaudhary. Ex.P22 is the inquest Report and Ex.P2 to Ex.P6 are photographs of the dead body and supported the case of the prosecution.
g) PW.7-T.Somashekar, the Police Sub-Inspector, deposed that on 14.11.2012, the Investigating Officer deputed him and a police constable to trace the accused. He received information that the accused in Yashomathi Hospital.
Accordingly, he has taken him into custody and produced him before the Investigating Officer and supported the case of the prosecution. 18
h) PW.8-Raja, the panch witness to Ex.P23- Mahazar, deposed that the police constable brought cloths of the deceased from the hospital after postmortem as per MO.1 to MO.4 and they were seized under mahazar as per Ex.P23 and supported the case of the prosecution.
i) PW.9-Dr.K.V.Sathisha, who deposed that on 13.11.2012, while he was in Bowring Hospital, on the requisition made by the jurisdiction police, he conducted a postmortem over the dead body of the deceased-Ruchi Chaudhary and issued a postmortem report as per Ex.P24. Later, on 07.01.2012, he received MO.5-knife for an opinion, and he opined, as per Ex.P25 that it is possible to cause death. Ex.P26 is sample seal. He identified MO.1 to MO.4, the clothes found over the dead body and supported the case of the prosecution.
j) PW.10-N.M.Girish, the police constable, deposed that on 12.11.2012, he carried the FIR on this 19 case and delivered it to the Magistrate at 7.00 p.m. Ex.P27 is an FIR and supports the case of the prosecution.
k) PW.11-Balakrishna C., the police inspector of HAL Police Station, deposed that on 12.11.2012 at 2.30 p.m. he received information that the husband had committed the murder of his wife. Immediately, he went and observed the scene of the occurrence and the dead body. Later, at 5.15 p.m., PW.1 gave a written complaint and on receiving it, he returned to the police station and registered FIR in Crime No.424/2012 under Section 302 of IPC and submitted FIR as per Ex.P27. He conducted an investigation and filed a charge sheet and supported the case of the prosecution.
l) PW.12-Jagadish, the Police Constable No.5730, who carried 14 articles to FSL on 15.12.2012 and delivered MO.1 to MO.14. Ex.P30 is a 20 passport and supported the case of the prosecution.
m) PW.13-Murthy, neighbour of spot and acting as panch to Ex.P7-spot mahazar, deposed that the police conducted spot mahazar as per Ex.P7 and seized MO.5 to MO.12 articles and supported the case of the prosecution.
n) PW.14-Mallappa Devas, the Junior Engineer, BBMP, deposed that on requisition made by the jurisdictional police, issued Ex.P31 and sketch of the scene of occurrence as per Ex.P29 was drawn by him and supported the case of the prosecution.
o) PW.15-Latha Sharma, the aunt of the deceased, deposed that about the marriage between the accused and the deceased in the year 2008 and she came to know that the accused murdered his wife-Ruchi Chaudhary on 12.11.2012 but 21 she was treated as hostile and contradiction to Ex.P32.
p) PW.16-Upakar Marrva, the maternal uncle of the deceased, who deposed about the marriage of the accused and the deceased and the accused killed her on 12.11.2012. he further deposed that the accused was a money minding person because of which he had killed her and he came to know this on 12.11.2012 in the afternoon and supported the case of the prosecution.
q) PW.17-Madhuresh, the Police Constable, deposed that on 13.11.2012, the investigating office had deputed him to get a postmortem and thereafter to bring clothes for the deceased. After the postmortem, the Doctor gave cloths of the deceased and he brought them, which are MO.1 to MO.4 and produced before the police inspector and they were seized and supported the case of the prosecution.
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r) PW.18-Shahnaz Fathima, the Scientific Officer, FSL, deposed that on 15.12.2012, she received 14 sealed articles and conducted Chemical Analysis and issued Report as per Ex.P34 and Ex.P35 is sample seal. He identified MO.1 to MO.14 as the articles. He opined that the presence of blood was detected in Item Nos.1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13. He further opined that items 1, 2, 9, 10, 11, 12 and 13 were stained with group B of blood and supported the case of the prosecution. Based on the aforesaid oral and documentary evidence on record, the learned Session Judge has convicted the accused for the offence punishable under Section 302 of IPC.
20. The gist of the complaint dated 12.11.2012 as per Ex.P1 by PW.1-Divya, the sister of the deceased, is that the marriage of the deceased-Ruchi Chaudhary with the accused-Siddharth Chaudhary was solemnised on 09.11.2008 in New Delhi. The deceased was an MBA 23 graduate and was working in Bengaluru. The accused was M.Sc. graduate and was working at Accenture, Bengaluru. After their marriage, they lived in Delhi for few months and later shifted to Bengaluru. Out of their wedlock, they have got a female child-Pranya. It is further stated in the complaint that the accused, after marriage, started torturing her sister for her salary and other money related things. So many times, PW.2 and PW.3 tried to sort out the differences between the deceased and the accused, but he continued to abuse and beat her for all these things and they were planning for divorce.
21. It is further stated that on 12.11.2012, the accused came to Bengaluru by flight along with a knife with the intention of murdering the deceased-the sister of the complainant. He reached the house of the deceased at about 1.45 p.m. and started assaulting her sister with a knife. At the time, PW.3-the mother of the complainant was also there and PW.2-the father of the complainant was in ground floor. PW.3 was trying to 24 get help from the neighbours, at that time, PW.2 also came to the place. Both tried to stop him, but he was furious and was holding a knife and telling them that he would finish everyone. When she came to her sister's place, at that time, she saw that PW.3 was shouting at me not to come up. By that time, he had already stabbed her sister 3 to 4 times on her stomach in the room and murdered her sister. Thereby, she lodged a complaint.
22. The material on record clearly depicts that it is not in dispute that the accused and the deceased were husband and wife and their marriage was solemnised on 09.11.2008 which was a love marriage. Both were highly educated and earning handsome salary. It is also not in dispute that on 31.10.2012, the birthday of their daughter-Pranya was celebrated. Though the marriage anniversary of both the accused and the deceased was on 09.11.2012, the accused could not reach. But when he comes to Bengaluru for Deepavali festival, i.e. on 12.11.2022 and thereafter, 25 there was a quarrel between the accused and the deceased as per the statement of PW.1, PW.2 and PW.3, the sister, the father and the mother of the deceased, respectively. During the course of the quarrel, an unfortunate incident occurred and ended with the homicidal death of the deceased.
23. PW.1-Divya, who is the complainant and the sister of the deceased, deposed on par with the averments made in the complaint. In the Cross- examination, she deposed that her parents, herself, her sister-Ruchi Chaudhary, accused and his brother attended the cake cutting ceremony of birthday of daughter of accused on 31.10.2012. No others attended the said ceremony. She again visited the house of her sister once during the stay of accused subsequent of 31.10.2012. She cannot say the exact date on which she visited the house of her sister. She did not receive any complaint from her sister on the conduct of accused during his stay of 2 or 3 days subsequent to 31.10.2012. It is correct to suggest that 26 the accused alone stayed along with her sister and her parents during those days. She did not remember whether the accused had contacted through telephone during those 2 or 3 days. It is correct to suggest that there was no talk of divorce in my presence between the accused and her sister during those days." She further admitted in the Cross-examination that one day before the date of marriage anniversary of her sister, accused requested her to book a bouquet which was to be delivered to my sister on 09.11.2012 on behalf of accused. It is correct to suggest that herself and accused was telephonically contacted in between 31.10.2012 and 12.11.2012 and she was not known regarding accused will be coming on 12.11.2012. It is incorrect to suggest that on 12.11.2012 there was Diwali. Diwali was on 13.11.2012. On 12.11.2012 at about 2.00 p.m. She came to know that accused had reached Bengaluru on that day. She did not know the name of house in which she had stayed. she did not know the said house number, she had stayed in the said house for an hour.
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24. PW.2, who is the father of the deceased, has admitted in the cross-examination that it is true that 10 days prior to the incident, the accused came to our house for the Karva Chouth Festival. He also admitted that the deceased-Ruchi Chaudhary celebrated the said festival for her husband only. He denied that he was not aware on the day of the festival, whether they had gone to the market and whether the accused had gifted her a diamond ring. He further admitted that when the accused came for the festival, he stayed in their house for about 4 to 5 days and during those days, the deceased and the accused went to the market and other places together at one time. He further admitted in the cross-examination that his younger daughter PW.1-Divya was called by the accused on the date of the incident and she used to chat with him on his mobile phone. On the date of the incident, when he came inside, by that time, his daughter-the deceased, was dead, accordingly, he taken his grand daughter and went outside. Later, the accused closed the door from inside the house. After 20 minutes, the police came 28 along with the media, and he gave a statement to the police. The accused alone opened the door before the police and media persons. He further admitted that the accused was arrested in his presence.
25. He further admitted in the cross-
examination that on 31.10.2012, there was a birthday celebration for his grand-daughter, i.e. the daughter of the deceased and the accused. The accused and his younger brother attended the said birthday ceremony. All the acts of the police regarding the investigation were covered through video coverage by media persons. There were 8 to 10 media persons, out of them one was in the room. He met his younger daughter, where he was smoking, on the same day at 1.40 p.m. It is true that the accused also had an injury to the wrist at the time of incident. Witness volunteers that the accused himself cut his arm. He did not know whether the accused attempted to commit suicide by cutting his wrist arm. The accused had an injury to his wrist before police arrived at the crime scene. It is true that the 29 accused was bleeding from the said injury and the accused armed knife in his right arm.
26. PW.3, who is the mother of the deceased, also stated in the examination-in-chief that on 31.10.2012, the birthday of the daughter of the accused and the deceased was celebrated. Two days prior to the birthday of , the accused called the deceased-Ruchi Chaudhary through his mobile phone and requested to allow him to participate in the birthday party. The deceased refused the same on the ground that the conduct of the accused was not good. Therefore, she did not allow him to attend the birthday ceremony. Thereafter, three days prior to the birthday, the accused made his brother Adithya Choudhary call the deceased, who assured that nothing would happen, let him attend the birthday ceremony. Later on, the father and mother of the accused also gave assurance that nothing would happen, let him attend the ceremony. Accordingly, on 31.10.2012, the accused and his brother came to their house and on the same day 30 evening, the birthday of her grand daughter-Pranya was celebrated. Thereafter, the brother of the accused went away to Gorgaon, Delhi but the accused stayed 2 to 3 days more with them and went on 05.11.2012. When he was at home, he was very well cared for. Again, on 11.11.2012, the accused called the deceased, but she did not know what the conversation was between them. Later, her daughter-the deceased started to weep. On enquiry, she disclosed as "the accused scolded me by using bad words. It would be a shame to tell those words. Though I gave him plenty of opportunities, he did not improve, so, I can't tolerate him anymore". Thereafter, she disclosed that within 2 to 3 days, she would file a divorce petition against him and the same was informed to the accused over the phone. Thereafter, she slept on that day weeping. On 12.11.2012 at about 1.30 p.m. that she was at the gallery of the house, at about 1.45 p.m., the accused came to their house in a Taxi and he entered the house, at that time, herself, her husband, her daughter and grand daughter were present in the house. As he 31 entered the house, he straight away went to the room of the deceased, and at that time, her husband was having lunch. After taking lunch, he went to the ground floor to smoke a cigarette, and she went to the kitchen to bring water to the accused. At that time, she heard the sound of the deceased screaming as the accused was quarrelling with her and asked why they were quarreling. The accused did not listen to her words and took the knife and stabbed the deceased. She further stated in the cross examination that she could not remember that 31.10.2012, the accused stayed with us in the house for about 3 to 4 days. She was not aware of whether the accused and the deceased went outside together. She was not aware of whether the accused came only to give the diamond ring to the deceased or not. She was also not aware that on 31.10.2012, after the celebration of the birthday of her granddaughter, there was photography, videos, or photos taken on her mobile. She is also not aware whether the accused gave the bouquet to the deceased on their wedding anniversary on 09.11.2012. She further stated that 32 there was a quarrel in the room between the accused and the deceased. Thereafter, she succumbed to the injury.
27. On a careful reading of Ex.P1, the complaint dated 12.11.2012 and the evidence of PW.1, PW.2 and PW.3, the sister, the father and the mother of the deceased, respectively, it clearly depicts that there was a quarrel between the accused and the deceased on that day. What conspired between the accused and the deceased was not known to either PW.2 or PW.3, but they only stated that they had seen that the accused was stabbing their daughter. At that time, PW.2 was in the ground floor as he has the habit of smoking cigarettes after lunch. During the scuffle, what had happened between the accused and the deceased was known only to them. The prosecution has not produced any evidence as to the manner in which the quarrel was ensured and the probability of receiving 17 stab injuries during the grappling is not ruled out. Both the accused and the deceased were highly qualified and out of 33 wedlock, they have got a female child-Pranya. From 2008 to 2012, there were no other complaints between the accused and the deceased. When the unfortunate incident occurred on 12.11.2012, due to the sudden provocation of scuffle between the husband and wife, the accused might have used MO.5-knife as he lost self control and stabbed the deceased as stated by him in question Nos. 10, 11, 25 and 42 of the statement under Section 313 of Cr.P.C. In question No.91, he has deposed that at the time, he came to the room of the deceased, she was in a pool of blood, but he has not offered any explanation as to who killed his wife, despite his statement that somebody killed his wife. When the prosecution proved the involvement of the accused, he did not disclose as to what happened to his wife on that day. PW.3, the mother of the deceased, who is said to be the eye witness to the alleged incident, deposed that the accused stabbed the deceased. In the absence of any explanation offered by the accused, an adverse inference has to be drawn against the accused. Our view is fortified by the dictum 34 of the Hon'ble Supreme Court in the case of Prahlad vs. State of Rajasthan reported in (2020)1 SCC Crimes 381 at paragraph 11, wherein, it is held as under:
"No explanation is forthcoming from the statement of the accused under section 313 Cr.P.C as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
28. On a careful re-appreciation of both oral and documentary evidence and material on record, it clearly depicts that the marriage is not in dispute. Out of their wedlock a female child-Pranya was born on 31.10.2009. It is also not in dispute that they celebrated the birthday of their daughter on 31.10.2012. The wedding anniversary of the accused and the deceased was celebrated on 09.11.2012 which is also not in dispute. Though in all these events, they were cordial, but 35 PW.1, PW.2 and PW.3 specifically stated on oath before the Court that there was a constant quarrel between the accused and the deceased. On the date of incident, PW.3, who is the eye-witness to the incident, stated that there was a scuffle between the husband and wife. During the scuffle, the accused might have lost his self control, thereby, he inflicted the injuries during the grappling, which cannot be ruled out. Therefore, it ended with the homicidal death of the deceased and it is a clear case falls under Exception 1 of Section 300 of IPC, which reads as under:-
"Exception 1: When culpable homicide is not murder.
Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
29. The exception is no doubt subject to certain limitations. In the instant case, the provocation is not sought or provoked by the accused. The oral evidence of PW.1 to PW.3 and medical evidence depicts that the 36 injuries found on the deceased were due to grappling and cannot be ruled out. In such cases, it cannot be said that the accused caused the injuries by way of an excuse for killing the deceased, but the material on record clearly depicts that while scuffling, the accused lost self control, thereby an unfortunate incident occurred. The said aspect is not at all considered by the learned Sessions Judge, as rightly contended by the learned Senior Counsel for the appellant.
30. The material on records clearly depicts that the unfortunate incident occurred on 12.11.2012 due to sudden provocation by quarrelling between the accused and the deceased and there was no premeditation and it was occurred in a sudden spur of moment, thereby, this case clearly falls under Exception 1 of Section 300 of IPC. Therefore, the offence would not fall under Section 302 of IPC and would fall under Section 304 Part I of IPC.
31. Though the learned High Court Government Pleader contended that the accused stabbed the 37 deceased with MO.5-knife and caused 17 injuries, thereby it was the intention of the husband to kill the wife. But, the material on record clearly depicts that there was a quarrel between the accused and the deceased, merely number of wounds caused by the offender is not decisive. Ultimately, on a sudden quarrel, a person in the heat of moment picks up MO.5- knife and caused injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided, he has not acted cruelly. The number of wounds caused during the occurrence is not a decisive factor. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Surinder Kumar Vs. Union Territory, Chandigarh reported in (1989)2 SCC 217 at paragraphs-7 and 8, wherein, it is held as under:
"To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The 38 number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. In the present case, the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they found that the appellant was disinclined to handover possession of the kitchen, PW 2 quarrelled and uttered filthy abuses in the presence of the appellant's sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the other. In the course of this heated argument it is the appellant's case that PW 2 took out a knife from his pant pocket. This part of the appellant's case seems to be probable having regard to the antecedents of PW 2. It is on record that PW 2 was convicted at Narnaul on two occasions under Section 411, IPC and his name was registered as a bad character at the local police station. It was presumably because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4. When the appellant found that PW 2 had taken out a pen knife from his pocket he went into 39 the adjoining kitchen and returned with a knife. From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant. It further seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the 5th rib about 2" below the nipple- It may incidentally be mentioned that the Trial Court came to the conclusion that the injury found on the neck of PW 2 was a self-inflicted wound and had therefore acquitted the appellant of the charge under Section 307, IPC, against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that PW 2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter's sister, tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW 2 and inflicted a simple injury on his neck. It would be reasonable to infer that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were 40 caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under Section 304, Part I, IPC and direct him to suffer rigorous imprisonment for 7 years.
8. In the result, this appeal partly succeeds. The order of conviction and sentence passed under Section 302, IPC is set aside and the fine, if paid, is directed to be refunded. The appellant is convicted under Section 304 Part I, IPC and is directed to suffer rigorous imprisonment for 7 years."
32. Dr. K.V.Sathisha-PW9, deposed that he conducted postmortem of the deceased between 3.30 p.m. to 5.00 p.m. on a request made by the Jurisdictional Police. He found 17 stab injuries on different parts of the body and he issued postmortem report as per Ex.P24 and opined that death was due to shock and haemorrhage as a result of multiple stab wounds sustained. The FSL report was issued by PW.18, who has deposed that she examined all the items sent to her and opined that the presence of blood was detected in Item Nos.1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 and she further opined that item Nos.1, 2, 9, 41 10, 11, 12 and 13 were stained with B group blood. Thereby the prosecution has proved beyond all reasonable doubt that the homicidal death of the deceased and the involvement of the accused but not the intention to kill the deceased as it happened due to a sudden provocation due to a scuffle between the couple, i.e. husband and wife.
33. The material on record clearly depicts that both the accused and the deceased were highly educated, employed in software companies and earning handsome salaries. The unfortunate incident occurred on 12.11.2012. The scuffle took place between the husband and wife. They used to quarrel possibly for ego reasons as they were earning. Thereby, the unfortunate incident happened in a sudden provocation without pre-meditation. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Shri Murli Alias Denny V. State of Rajasthan reported in AIR 1994 SC 610 at paragraphs-5, wherein, it is held as under:
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"5. Having examined the circumstances on record, we are satisfied that it was the accused who inflicted injuries on the deceased person, as a result of which he died. But the learned senior counsel, Shri Sibal submits that there are any number of circumstances indicating that the accused acted on a grave and sudden provocation and, therefore, exception No.1 to S.300 is attracted. We find considerable force in this submission. To start with, the prosecution evidence itself indicates that the deceased was a man of violent nature and had no regard for law and was creating terror and fear in the minds of common people. In such an aggressive mood, he must have gone to the shop of the accused. As to what exactly preceded the attack is not borne out by the evidence. However, there is a clear indication in the first statement given by the accused himself which formed the FIR in this case to the effect that the deceased in an aggressive manner went to the shop of the accused and showered virulent abuses. It may be mentioned here that we are not using the statement of the accused before the SHO for any purpose in favour of prosecution and against the accused. The only admission which we find in the statement in favour of the accused is being taken into account to examine whether the case falls under exception No.1 to S.300, IPC, particularly, in view of the fact that there is no other evidence disclosing as to how the quarrel ensued and attack took place. Having carefully considered the entire material, we are of the view that Exception No.1 to S.300 is attracted in this case. The Exception lays down:-
"Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden 43 provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident".
This Exception is no doubt subject to certain limitations. In the instant case, the provocation is not sought or provoked by the accused. The medical evidence also shows that most of the injuries were found on the hips and the possibility of having received injuries by the deceased during grappling cannot be ruled out. In such cases, it cannot be said that the accused caused the injuries by way of an excuse for killing the deceased. Accordingly, we set aside the conviction of the appellant Under Section 302, Indian Penal Code and imprisonment for life awarded thereunder and, instead, we convict him under Section 304, Part I, Indian Penal Code and sentence him to undergo Rigorous Imprisonment for 10 years."
The said aspect is not at all considered by the learned Session Judge, thereby the conviction of the accused under the provision of Section 302 of IPC is erroneous and contrary to law, cannot be sustained. .
34. For the reasons stated above, the points raised in the present appeal are answered partly in the negative holding that the trial Court is not justified in 44 convicting the accused for rigorous imprisonment for life with a fine of Rs.10,000/- under the provisions of Section 302 of IPC. The accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court and to reduce the sentence under the provisions of Section 304 Part I of IPC.
35. In view of the above, we pass the following:
ORDER
(i) The criminal appeal filed by the appellant-
Sidhartha Chowdary is allowed in part.
(ii) The impugned judgment of conviction dated 17.01.2017 and order of sentence dated 19.01.2017 passed by LXIX Additional City Civil and Sessions Judge, Bengaluru City (CCH-70) made in S.C.No.431 of 2013 in convicting the appellant/accused for the offence punishable under Section 302 of IPC is hereby modified.
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(iii) The appellant is convicted under the provisions of Section 304 Part I of IPC and he shall undergo rigorous imprisonment for a period of TEN years with fine of Rs.3,00,000/-, in default, he shall undergo imprisonment for a further period of 2½ years.
(iv) The appellant is entitled for a set off under Section 428 of Cr.P.C.
(v) In view of the provisions of Section 357(3) of Cr.P.C., out of the fine amount imposed, a sum of Rs.1,00,000/- shall be paid to PW.2, the father of the deceased, a sum of Rs.1,00,000/- to PW.3, the mother of the decease and a sum of Rs.1,00,000/- shall be kept in fixed deposit in any Nationalized Bank in the name of female child 'Pranaya' till she attains the age of majority.
(vi) Registry is directed to return the Trial Court Records, forthwith.
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(vii) Let a copy of this operative portion of the judgment be sent to the jail Authorities forthwith.
Sd/-
JUDGE Sd/-
JUDGE KTY