Karnataka High Court
Udaya @ Udayaraj @ Baba vs State Of Karnataka on 6 July, 2023
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2023:KHC:23357-DB
CRL.A No. 1007 of 2017
C/W CRL.A No. 367 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1007 OF 2017
C/W
CRIMINAL APPEAL NO. 367 OF 2018
IN CRL.A.NO.1007 OF 2017
BETWEEN:
1. UDAYA @ UDAYARAJ @ BABA,
AGED ABOUT 35 YEARS,
S/O NARAYANA SHETTY,
R/AT BAGAMBILLA SITE HOUSE,
DERALAKATTE, KOTEKAR,
MANGALURU - 575 001.
Digitally signed 2. LANCY D SOUZA @
by VINUTHA M LANCY @ MAMU,
Location: HIGH S/O LEO D SOUZA,
COURT OF
KARNATAKA AGED ABOUT 32 YEARS,
R/AT 3-257/9,
SANTHOSH NAGAR ROAD,
PANDITH HOUSE, PERMANNUR,
MANGALURU - 575 005.
...APPELLANTS
(BY SRI. NISHIT KUMAR SHETTY, ADVOCATE)
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NC: 2023:KHC:23357-DB
CRL.A No. 1007 of 2017
C/W CRL.A No. 367 of 2018
AND:
STATE OF KARNATAKA,
BY POLICE INSPECTOR,
ULLAL POLICE STATION,
REPRESENTED BY STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE - 560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 8.5.2017 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN
S.C.NO.21/2015 - CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCE P/U/S 302 R/W 34 OF IPC.
IN CRL.A.NO.367 OF 2018
BETWEEN:
THE STATE-BY-POLICE INSPECTOR,
ULLAL POLICE STATION,
REPRESENTED BY STATE
PUBLIC PROSECUTOR,
BENGALURU - 560 001.
...APPELLANT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP)
AND:
VINAYA @ VINAYAKUMAR,
S/O PARMESHWARA GATTY,
AGED 32 YEARS,
MECHANIC, KSRTC DEPOT,
B.C. ROAD,
NEAR SATHYANARAYANA
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NC: 2023:KHC:23357-DB
CRL.A No. 1007 of 2017
C/W CRL.A No. 367 of 2018
BAJANA MANDIR, BAGAMBILA,
KUMPALA, KOTEKAR,
MANGALURU- 575 002.
...RESPONDENT
(BY SRI. NISHIT KUMAR SHETTY, ADVOCATE)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT
DATED 8.5.2017 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, D.K., MANGALURU IN S.C.NO.21/2015 -
INSOFAR AS ACQUITTING THE ACCUSED NO.3/RESPONDENT
FOR THE OFFENCE P/U/S 302 R/W 34 OF IPC.
THESE APPEALS, COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, RAJESH RAI K, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Criminal Appeal No.1007/2017 is filed by the convicted accused Nos.1 and 2 against the judgment of conviction and order of sentence dated 08.05.2017 passed in Sessions Case No.21/2015 by the I Addl. District and Sessions Judge, D.K., Mangaluru, and Criminal Appeal No.367/2015 is filed by the State against the acquittal of accused No.3 in the same judgment in S.C No.21/2015 for the offence punishable under Section 302 r/w 34 of IPC. Accused Nos.1 and 2 are convicted for the offence punishable under Section 302 of IPC and thereby, directed to undergo imprisonment for life so also sentenced to pay a fine of Rs.20,000/- and in default to pay -4- NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 fine, they shall undergo further imprisonment for a period of six months.
2. The brief facts of the prosecution case is that, Ullal Police registered a case on the basis of a complaint filed by one Rajesh who examined as PW.1 in this case, on 16.08.2014 in Crime No.248/2014, that, he is an auto rickshaw driver and on 15.08.2014, he picked up some passengers and dropped them at Maya Bar and Restaurant, which is near Nethaji Hospital at Thokkottu, at about 11:00 p.m., in front of the said Maya Bar and Restaurant, his friend Yatish Kumar (for short, 'deceased') was talking to other persons i.e., one Udaya (Accused No.1), Vinay, Robin and Pushparaj, who were known to PW.1. When PW.1 got down from his auto rickshaw and was going near to them, accused No.1 stabbed Yatish Kumar with a knife on the left portion of the abdomen and tried to commit the murder. On seeing the same the complainant, Udaya, Vinay and Robin ran away from the spot. It is further alleged in the complaint that the complainant and his two other friends were standing at some distance, i.e. one Nitesh and one Kishore and they all took the injured Yatish to Nethaji Hospital. The Medical Officer of the said hospital advised that injured Yatish Kumar has to be -5- NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 taken to the hospital at Mangaluru and therefore, he was taken to Unity Hospital at Mangaluru. On arrival at Unity Hospital, the doctors informed that Yatish Kumar was brought dead. Hence, PW.1-Rajesh lodged a complaint before PW.27- Inspector of Police of the respondent Police Station and the said complaint was registered in FIR as per Ex.P45 in Crime No.248/2014 dated 16.08.2014 against one Udaya i.e., accused No.1, Pushparaj, Vinaya and Raju.
3. Thereafter, the respondent Police investigated the case and during the course of investigation, PW.1 complainant gave a statement before the Investigation Officer on 20.10.2014 alleging that in the incident dated 16.08.2014, along with accused No.1 Udaya, Pushparaj, Vinay and Robin were not present, and according to him, on that day, along with accused No.1, one Lancy was present. Accordingly, the Investigation Officer inserted the name of accused No.2-Lancy in the crime and investigated the matter and thereafter collecting the material and also recording the statement of all the witnesses, the Investigation Officer laid charge sheet against accused Nos. 1 to 3 for the offence punishable under Section 302 r/w 34 of IPC, before the committal Court. -6-
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4. Subsequently, on committal of the case before the Sessions Court, the learned Sessions Judge framed the charge against the accused for the aforesaid offence and read over the same to the accused. However, the accused pleaded not guilty for the charges and claims to be tried.
5. In order to bring home the guilt of the accused, the prosecution in total examined 28 witnesses as PW.1 to PW.28 so also got marked 48 documents as Ex.P1 to Ex.P48 and 21 material objects as MO.1 to MO.21. However, after closure of the prosecution evidence, the learned Sessions Judge read over the incriminating portions of the evidence of the material witnesses to the accused as contemplated under the provision of Section 313 of Cr.P.C. However, the accused denied the same however, they examined one witness on their behalf as DW1 who is none other than the mother of accused No.2 so also, got marked 4 documents as per Ex.D1 to Ex.D4.
6. After hearing the learned counsel for the accused so also the learned Public Prosecutor and after the assessment of oral and documentary evidence placed, the trial Court convicted accused Nos.1 and 2 for the charges leveled against them i.e., -7- NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 for the offence punishable under Section 302 r/w 34 IPC. However, the learned Sessions Judge acquitted accused No.3 from the charges leveled against him.
7. We have heard Sri. Nishit Kumar Shetty, learned counsel for the appellant and Sri. Vijaykumar Majage, learned Addl. SPP for the respondent-State.
8. Sri. Nishit Kumar Shetty, learned counsel for the appellant, vehemently contended that the judgment under appeal suffers from perversity and illegality since the learned Sessions Judge without properly considering the evidence available on record and without appreciating the same, convicted the accused based on assumption and presumption and as such, the said judgment is liable to be set-aside.
9. He would further contend that the learned Sessions Judge totally failed to consider the material contradictions and omissions in the evidence of eyewitnesses to the incident i.e., PWs.1, 11, 13 to 15. Those material contradictions goes to the root of the case of prosecution, in spite of that, the learned Sessions Judge convicted the accused for the charges leveled against them. He would further contend that at the inception -8- NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 of the prosecution case itself, a serious doubt arise in respect of the commission of crime by these accused Nos.1 and 2 for the reason that the contents of Ex.P1-complaint lodged by PW.1 totally differs from his further statement given before the Investigation Officer as per Ex.D1. In the complaint, he named accused Nos.1 and 3 and others. However, after 4 day, he differently stated before the Investigation Officer that by mistakenly, he has named accused Nos.2 to 4 and it was accused No.1 and one Lancy (present accused No.2) were there in the scene of occurrence. Such discrepancy in the statement of PW.1 i.e., his complaint and Ex.D1, goes to the root of the prosecution case and the same was not considered by the learned Sessions Judge. As such, the judgment under appeal is liable to be set-aside.
10. He would further contend that, the learned Sessions Judge much relied on the CCTV footage produced by the prosecution as per MO.20, seized under Mahazar Ex.P42. But, according to the learned counsel the said MO.20 cannot be looked into, for the reason that, the certificate which is contemplated under law as per Section 65B of Indian Evidence Act, was not filed by the proper person, as such, the same -9- NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 cannot be looked into. Nevertheless, he also contended that the said MO.20 is not visible and it is totally morphed or edited and as such conviction cannot be based on the CCTV footage as per MO.20.
11. He further contend that the recovery of material objects i.e., MO.1 to 15 i.e., the weapon used for the commission of the crime is not properly seized at the instance of accused Nos.1 and 2. Mahazar-Ex.P34 and Ex.P23- photographs were not supported by the witness examined thereon i.e., PW.9. Hence, the same cannot be considered for convicting the accused for the charges leveled against them. He also contended that, as per the medical evidence is concerned, though the doctor opined that the death of the deceased was a homicidal one, the weapon used for the same i.e., MO.1, though sent for FSL and the blood group found in the MO.1 i.e., 'O' blood group, however, but the prosecution failed to draw any blood from the body of the deceased or from the spot, in such circumstances, it cannot be claimed that the blood group found in MO.1-weapon and so also, the clothes of the deceased, is that of deceased blood group.
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12. The learned counsel for the appellants also disputed the spot sketch, stating that the witness for the same not supported to the prosecution case and it is two folded story that the initial incident caused in the first floor of the Maya Bar and Restaurant, however, later the actual alleged assault made by accused Nos.1 and 2 to the deceased caused in the ground floor of the said Bar. As such, the prosecution failed to prove the proper spot of the alleged incident said to have been taken place. Hence, the learned counsel submits that by overall circumstances, the prosecution failed to prove the guilt of the accused and as such, the conviction held against accused Nos.1 and 2 is liable to be set-aside.
13. The learned counsel alternatively contended that even if the prosecution proves the homicidal death of the deceased, the act caused by the accused not comes within the ambit of Section 302 of the IPC and at the most the same may fall under the provision, Exception 1 to Section 300 of IPC which is punishable under the provision of Section 304 Part I of IPC. According to him, by perusal of the evidence of eyewitness to the incident, all those witnesses have stated that the incident caused in a spur of moment, the deceased and accused were
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 sitting in the Bar on the eve of Independence Day and due to drunken condition, the incident occurred all of a sudden and due to loss of self-control, the accused might have committed the incident. In such circumstances, the case squarely false within Exception 1 to Section 300 of IPC which is punishable under Section 304 Part I of the IPC.
14. Refuting the above submissions made by the learned counsel for the appellant, the learned Addl. SPP for State Sri. Vijaykumar Majage, vehemently contended that the judgment under appeal does not suffers from any perversity or illegality and the same is based on the evidence available on record. The learned Sessions Judge after considering the evidence of the material witnesses and the other materials available on record, convicted the accused for the charges leveled against them and the same holds good.
15. The learned Addl. SPP would further contend that by perusal of the evidence of PWs.1, 11, 13 to 15, i.e., eye- witnesses to the incident, they categorically deposed that on the fateful day, accused Nos.1 and 2, at the instance of accused No.3, committed the alleged incident by causing
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 assault to the deceased with MO.1 and that aspect of the matter clearly deposed by eye-witnesses that accused No.1 repeatedly stabbed the deceased on his vital part and committed his murder. As such, considering said evidence available on record, the learned Sessions Judge convicted the accused for the charges leveled against them.
16. He would further contend that as far as the CCTV footage is concerned, the same is seized under the Mahazar- Ex.P42 and was witnessed by PW.23 and PW.25. PW.26 has opined that the same was not morphed or edited or manipulated, to that effect. PW.24 has given a certificate under the provisions of Section 65B of the Indian Evidence Act. The said aspect of the matter is supported by the evidence of PW.25 i.e., Investigation Officer. In such circumstances the same cannot be disbelieved. Hence, he would further contend that once the CCTV footage is admitted, then the entire incident has to be admitted and even there is no such necessity of proving the spot of incident as contended by the learned counsel for the appellants.
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17. He would further contend that the weapons said to have been used for the commission of the crime i.e., MO.1- knife is seized at the instance of accused No.1 based on his voluntary statement which is admissible within the ambit of Section 27 of the Indian Evidence Act. The same was seized under Mahazar and Ex.P23-photographs of the same was produced by the Investigation Officer and PW.9 has supported to that affect. In such circumstances the prosecution also proved the recovery of the material object. Further, by perusal of the evidence of PW.1, 11 to 15, the prosecution also proved the motive behind the commission of the incident by accused Nos.1 to 3. On the fateful day, accused Nos.2 and 3 quarreled with the deceased in the Bar and thereafter, accused No.2 called accused No.1 through phone and accused No.1 came there by possessing MO.1-knife and thereafter quarreled with deceased and thereby, committed the murder of the deceased. In such circumstances, the prosecution proved the guilt of the accused beyond all reasonable doubt and as such, the learned Sessions Judge rightly convicted the accused for the charges leveled against them. Hence, the learned Addl. SPP prays to dismiss the appeal file by accused and to allow the appeal filed
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 by the State, in Crl.A No.367/2018 against the acquittal order of accused No.3.
18. We have bestowed our anxious consideration on both the submissions made by the parties so also perused the documents available on record including the trial Court records.
19. In the facts and circumstances and in the light of the submissions made on behalf of both the parties, the points that would arise for our consideration are,
(i) Whether the Judgment under appeals suffers from perversity or illegality?
(ii) Whether the learned Sessions Judge is justified in convicting the Accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 of IPC?
20. This Court being the appellate Court, the re- appreciation of the entire evidence is very much required.
A cursory glance of the evidence deposed by the witnesses before the trial Court:
(i) PW.1-Rajesh, who is the complainant in this case lodged complaint Exhibit-P1 and he is the eye witness to the
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 incident. He deposed before the trial Court that on the date of the incident, he had seen Accused Nos.1 to 3 quarelled with deceased in Maya Bar and Restaurant and Accused No.2 called Accused No.1 to the said spot and thereafter Accused No.1 stabbed the deceased from MO.1-knife.
(ii) PW.2-Jayanth, is also eye witness to the incident who is the auto driver. However, this witness turned hostile to the prosecution case.
(iii) PW.3-Sharath is a cashier in Maya Bar and Restaurant where the alleged incident is said to have committed. However, this witness also not supported the case of the prosecution.
(iv) PW.4-Sunil is also a waiter in Maya Bar and Restaurant where the alleged incident was committed and a circumstantial witness to the prosecution. However, he has not supported the case of the prosecution.
(v) PW.5-Parthasarathi is an inquest mahazar witness as per Exhibit.P14. This witness identified his signature on
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 Exhibit.P14 so also identified the injuries found over the dead body of deceased.
(vi) PW.6-Jayaprasad, is the brother of the deceased and he is also a circumstantial evidence. After the incident he identified the dead body of the deceased as that of his brother and also deposed that he came to know from somebody, that his brother was murdered by Accused Nos.1 to 3.
(vii) PW.7-Santhosh Bhandary, is a witness for spot mahazar i.e., Exhibit.P2. However, this witness turned hostile to the prosecution case.
(viii) PW.8-Laxminarayana, is also a witness for spot mahazar i.e., Exhibit.P2. However, this witness turned hostile to the prosecution case.
(ix) PW.9-Anand Kotian, is the witness for recovery mahazar i.e., Exhibit.P21, is recovery of the weapon which is said to have been used for commission of crime-MO.1-Knife and also M.O.s - 15 and 16 recovered at the instance of Accused No.1. This witness supported the case of the prosecution and deposed to that effect.
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(x) PW.10-Dr. Jagadish Rao, conducted the autopsy over the dead body of the deceased and issued post mortem report as per Exhibit.P31 and also issued his final opinion as per Exhibit.P32. He also gave an opinion in respect of the weapon which is examined by him i.e., MO.1 stating that the injuries found on the dead body of deceased could be caused by MO.1-Knife as per Exhibit.P33.
(xi) PW.11-Nithesh, PW-13 Kailash Babu, PW-14 Jeevan, PW-15 Kishore are the eye witnesses to the incident who are clearly supported the case of the prosecution and deposed before the Court that they, had been to Maya Bar and Restaurant on the night of 15.08.2014. There was an arrangement for singing [karaoke] by the customers of the restaurant on account of Independence Day. The karaoke facility was made by the restaurant and while deceased Yathish Kumar and his companions were having meals, PW.13 went for singing. At that time, Accused No.2 and some others were also at Maya Bar and Restaurant and they were having their food in another table. At that time, while PW.13 was signing, Accused No.2 started laughing and made fun of it and therefore the
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 deceased Yathish Kumar went to Accused No.2 and objected for such act of the Accused No.2 and thereby there appears to be heated exchanges and Accused No.2 called Accused No.1 over phone saying that he would teach a lesson to the deceased Yathish Kumar. Thereby, Accused No.1 came to the first floor of Maya Bar and Restaurant and thereafter once again Accused Nos.1 and 3 went to the deceased, picked up quarrel and pushed him and he was beaten by Accused No.1 and 3. When the deceased pushed by the Accused, the Accused No.1 fell down and therefore he was enraged and Accused No.2 asked him to finish the deceased and as such Accused No.1 picked up the knife and stabbed the deceased Yathish Kumar on the left side of the abdomen. Thereafter, he fell down and Accused No.2 stamped over the face of the deceased and thereafter Accused Nos.1 and 3 fled away from the scene of occurrence in their motor cycle. All these witnesses were cross examined by the learned defence counsel and they consistently deposed in respect of the alleged incident is concerned.
(xii) PW.12-Ranjith, is also witness for recovery mahazar i.e, shirt and mobile Exhibit.P34 at the instance of Accused
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 No.2 from his house and this witness also supported the prosecution case.
(xiii) PW.16-Roopa Shetty, the Commissioner of Town Municipality and she furnished existence and details of Maya Bar and Restaurant as per Exhibit.P37.
(xiv) PW.17-Ismail, is the Depot Manager of KSRTC depot and he has deposed that Accused No.3 was working as technical person in the KSRTC.
(xv) PW.18-Velentin D'Souza, is the Assistant Commissioner of Police who deposed about the apprehend of Accused Nos.1 and 2 and thereafter he produced them before PW.27 Investigating Officer.
(xvi) PW.19-N.R. Nayak, the Assistant Director of RFSL deposed about the examination of the blood sample and viscera and gave an opinion that the blood contained 34.277 mg of alcohol for every 100 ml in the blood and gave a certificate to that effect as per Exhibit.P39.
(xvii) PW.20-Pramod Kumar, is the Police Inspector who partially investigated the matter.
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 (xviii) PW.21-Dr. Geethalakshmi P, Assistant Director of RFSL and she issued serology report as per Exhibit.P41 stating that the blood stains found in MO.1 knife and clothes of the deceased is of human origin and belongs to 'o' group.
(xix) PW.22-Ramesh Hanapura, is the Police Inspector who apprehended the Accused Nos.1 and 2 along with PW.18 and thereafter produced before PW.27, the Investigating Officer.
(xx) PW.23-Deekshith deposed about the recovery of CCTV footage as per MO.20 and also deposed about Exhibit.P42 mahazar to that effect.
(xxi) PW.24-Shailesh collected the CCTV footage, DVR and CD as per Exhibit.P43.
(xxii) PW.25-Jathin Kumar deposed about the CCTV footage, DVR and he transferred the same to CD as per M.O. Nos.20 and 21.
(xxiii) PW.26-Dr. Kumuda Rani Assistant Director of RFSL spoke about the FSL examination of the DVD and CD and
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 thereafter gave a certificate as per Exhibit.P44 stating that DVR or CD was not tampered.
(xxiv) PW.27-Dharmendra M Circle Police Inspector who conducted the investigation in this case and collected all the evidence and also recorded statement of the witness.
(xxv) PW.28-Savithru Tej P.D. The Police Inspector after completing the investigation has laid charge against the Accused for the aforesaid offences.
21. On a careful perusal of the above evidence, as far as homicidal death of the deceased is concerned, the prosecution relied upon the evidence of PW.10 Dr. Jagadish Rao, and his report as per Exhibit.P31 and Exhibit.P32. The post mortem report discloses that the death was due to hemorrhage, consequent to stab injuries to the left side of the abdomen. Even after examining the report of the medical examiner, he has maintained the said opinion as per Exhibit.P32.
22. The Doctor also gave an opinion in respect of the weapons which is said to have been used for the commission of
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 crime i.e., MO.1 stating that the injuries found on the dead body of the deceased might have been caused by the said weapon. This evidence of the Doctor coupled with evidence of PW.5 witness for inquest panchanama drawn by the Investigating Officer as per Exhibit.P14, which clearly discloses that the deceased sustained six injuries mentioned in the post mortem report as per Exhibit.P1 and those injuries are anti mortem in nature. Even otherwise, PW.5 clearly states that he had noticed the injuries on the dead body of the deceased. Nevertheless, the eye witnesses PW.11 to PW14 categorically stated that they witnessed the incident and the Accused No.1 stabbed the deceased on the vital parts of the body of the deceased. Hence, a conjoint reading of the evidence of PW.10 and his report as per Exhibit.P31 to P33 and also inquest panchanama Exhibit.P14 with the evidence of PW.5 and PW.1, 11 to 15 in our considered opinion, the prosecution proved the homicidal death of the deceased beyond reasonable doubt.
23. Once the homicidal death of the deceased is proved by the prosecution, the next aspect arises for our consideration is whether the accused are responsible for the same?
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24. On a careful perusal of the evidence of PW.1, 11 to 15 who are the eye witnesses to the alleged incident, these witnesses categorically deposed that on the date of the incident, the deceased along with his friends came to Maya Bar and Restaurant and they were having their food in said Bar and Restaurant and at the same time, Accused No.2 along with his friends came to the spot. At that time, PW.13 who is the eye witness to the incident was singing since Maya Bar and Restaurant made the karaoke facility for singing and at that time Accused No.2 started laughing and made fun of it in the first floor of the Maya Bar and Restaurant and therefore the deceased Yathish Kumar went to Accused No.2 and objected for such act of Accused No.2. Thereby some altercation exchanged between Accused No.2 and the deceased. Thereafter, Accused No.2 went out of the Bar and called Accused No.1 through mobile phone and informed him about the insult committed by the deceased, he asked him to finish the deceased. At that time, Yathish Kumar also came down and later Accused Nos.1 and 3 went near the deceased and picked up quarrel and punished him and he was pushed by the Accused Nos.1 to 3.
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 When Yathish Kumar pushed Accused No.1, the Accused No.1 fell down and therefore he enraged and picked up the quarrel and stabbed on the left side of the abdomen thereby Yathish Kumar also fell down and thereafter he was scuffled and Accused No.2 had stamped on the face of the deceased and thereafter they fled away from the scene of occurrence. This evidence with PW Nos.1, 11 to 15 are consistent and they all categorically deposed about the assault made by Accused No.1 to the deceased. Though the defence counsel made effort to demolish their version by way of cross examination, all these witnesses withhold cross examination and their evidence is very consistent in respect of the incident is concerned.
25. Hence, we are of the considered opinion that there is no reason to disbelieve the evidence of these witnesses i.e., PW Nos.1, 11 to 15. Though the learned counsel for the appellant vehemently contended that there is one day delay in recording the statement of these eye witnesses, that cannot be considered as inordinate delay in lodging the complaint since the incident was caused in the late midnight and after one day their statement was recorded. Hence, the same does not go to the root of the prosecution case. The learned counsel also
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 contended that contradictions and omissions in the evidence of PW.13 as per Exhibit.D4 which go to the root of the prosecution case and as their version cannot be believed. But as far as the remaining evidence of PW.1 and PW.13 to 15 are concerned, all of them consistently deposed about the act committed by Accused Nos.1 and 2.
26. The learned counsel also contends that Exhibit.D1 the statement given by PW.1 on 20.10.2014 after a lapse of two months from the date of incident, wherein PW.1 stated that he has not seen Accused Nos.2 and 3 on the date of the incident. On perusal of the complaint lodged by PW.1 indicates the name of Accused No.1 and three other persons, they were not either cited as a charge sheet witness nor arrayed as accused by the Investigating Officer. PW.27-Investigating Officer pleads ignorance about Exhibit.D1, which reflects the manner in which the investigation was conducted. The defence counsel cannot base such faulty investigation and as per the settled principles of law, those are curable defects when there are several eye witnesses categorically deposed about the alleged incident is concerned. Hence, in our considered
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 opinion, there is no reason to believe the evidence of PW Nos.1 and 11 to 15.
27. The evidence of these eye witnesses clearly corroborates with the medical evidence i.e., opinion issued by PW.10-Doctor in respect of MO.1 as per Exhibit.P33. PW.10 clearly stated that the injuries found on the dead body could be caused by MO.1. Moreover, all the eye witnesses also clearly deposed that on the left abdomen of the deceased, the accused caused injuries. Hence, the ocular evidence of eye witness corroborates with medical evidence in this case.
28. As far as motive for the alleged incident is concerned, the incident was caused on a sudden quarrel that happened at Maya Bar and Restaurant while both the deceased and accused were having alcohol. The said aspect was deposed by eye witnesses PW.1, 11 to 15. Hence, in our considered opinion, the motive aspect is also proved in this case. Nevertheless, when the case is based on the evidence of direct eye witnesses, the motive will not play any vital role as per settled law of the Hon'ble Supreme Court in catena of Judgments.
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29. In this case, the prosecution has also relied upon the electronic evidence i.e., CCTV footage as per MO.20. The DVR is produced as per Exhibit.P42, seizure mahazar and PW.23 and 25 witnessed and they supported the case of the prosecution and PW.26-RFSL Officer has opined that CCTV footage and CD was not morphed/edited or manipulated and PW.24-Shailesh, produced the certificate as per Exhibit.P43 at the time of investigation. As far as the admissibility of MO.20 in evidence is concerned, it is admitted fact that the Investigating Officer had not obtained the certificate as per Exhibit.P43 at the time of investigation. However, he filed application under Section 311 of Cr.PC at the final stage of the trial. To that effect, the question of law was raised by the defence counsel as the production of certificate as required under Section 65B of the Indian Evidence Act and that at a later stage the same is not maintainable. On that point is concerned, the learned Additional SPP would vehemently contend that when original DVR and hard disk is available on record, there is no necessity of certificate by the concerned person as contemplated under Section 65B of the Indian
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 Evidence Act. Hence, in our considered opinion there is sufficient force in the submission of the learned Additional SPP.
30. As far as recovery of MO.1 and MO.15 at the instance of Accused No.1 under Exhibit.P23 is concerned, PW.3 supported the said mahazar. Moreover, the prosecution also produced photographs of the seizure mahazar. The same is recovered at the instance of Accused No.1 based on his voluntary statement. Even recovery at the instance of Accused No.2, MO.17 to MO.19 as per Exhibit.P34 of Accused No.2 witness supported and the photographs also produced as per Exhibit.P35 and Exhibit.P36. Hence, recovery of material object, more particularly, MO.1 weapon which is said to have been used in the commission of the crime is proved by the prosecution in this case.
31. Moreover, scientific evidence of PW.21-Dr. Geethalakshmi P, Assistant Director, RFSL clearly stated that the blood stains found on the clothes of the accused is of human origin and of 'O' blood group. The learned counsel for the appellant contended that the blood was not drawn from the person of the deceased and as such, it cannot be said that the
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 deceased was of the same blood group. As per the settled law by the Hon'ble Apex Court that sending of the stained articles to FSL and also of the grouping of the blood is sufficient effort by the prosecution and that circumstances can be relied upon by the prosecution when evidence of eye witnesses are available. Hence, we are of the considered opinion that the said submission of the learned counsel for the appellant cannot be accepted.
32. The learned counsel vehemently contended that prosecution failed to prove the spot of accident since the witness for the spot mahazar turned hostile and the prosecution did not prove spot sketch and since there is dispute in respect of the alleged spot of incident whether the incident was caused inside the Maya Bar and Restaurant or outside, such being the case that benefit has to be extended to the accused. But, when MO.20-CCTV footage is very much available on record, in our considered opinion there is no necessity to proving the spot sketch. MO.20 itself clarifies spot of incident. The defence counsel also set up the plea of alibi that the Accused No.2 was at home at the time of incident. But the defence counsel failed to produce any such document to that effect either call register
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 or other documents to show that Accused No.2 was at home at the time of the incident. When such being the case alibi cannot be accepted that Accused No.2 was not in the spot at the time of incident. Hence, by perusal of the above evidence, the prosecution has proved its case beyond reasonable doubt by leading cogent and consistent evidence of eye witnesses PW.1, 11 to 15 and also other circumstances of recovery of material objects which is said to have been used for the commission of crime coupled with the electronic evidence CCTV footage as per Exhibit.P20. There is no reason to discard that evidence and as such the prosecution successfully proved the commission of the incident by Accused Nos.1 and 2.
33. As far as Accused No.3 is concerned, from the inception of the case itself, there is clear contradictory version in respect of his presence in the scene of occurrence. Admittedly, in Exhibit.P1 complaint, PW.1 has not stated his name. There is contradiction in Exhibit. P1 and Exhibit.D1. Nevertheless, all the eye witnesses also during the course of cross examination deposed contradictorily in respect of the presence of Accused No.3 and on careful perusal of the Judgment rendered by the trial Court, the learned Sessions
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 Judge observed that by perusal of the CCTV footage except the presence of Accused No.2, CCTV is not visible in respect of the presence of Accused No.3 is concerned. In such circumstances, the presence of Accused No.3 and his participation in the crime is quite doubtful. As such, in our considered opinion, prosecution failed to prove beyond reasonable doubt that the Accused No.3 participated in the incident. Nevertheless, by considering the entire evidence on record, the learned Sessions Judge acquitted the Accused No.3 for the charges leveled against him. In such circumstances, we decline to interfere with the acquittal Judgment passed by the learned Sessions Judge. Accordingly, the appeal preferred by the State in respect of acquittal of Accused No.3 is liable to be rejected.
34. As discussed supra, as far as Accused Nos.1 and 2 are concerned, the prosecution proved the charges leveled against them with cogent evidence. As such in our considered opinion, the prosecution successfully proved that Accused Nos.1 and 2 are the perpetrators of the crime and they committed the murder of the deceased Yathish Kumar in this case.
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35. As far as the alternative submission of the learned counsel for the appellant that by overall perusal of the evidence on record and the manner in which the incident has taken place and also injuries sustained by the deceased, this case falls under the provisions of sub-section [1] of Section 300 of IPC which is punishable under Part-I of Section 304 of IPC instead 302 of IPC. On careful perusal of the entire evidence on record so also the manner in which incident was committed, as far as grave and sudden provocation theory is concerned, the Hon'ble Apex Court in the Judgment rendered in 'DAUVARAM NIRMALKAR v. STATE OF CHATTISGARH' reported in AIR 2022 SC 3620 in paragraphs 10 to 13 and 15 which read as under:
"10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra reported in AIR 1962 SC 605, this Court has held that the conditions which have to be satisfied for the exception to be invoked are (a) the deceased must have given provocation to the accused; (b) the provocation must be grave; (c) the provocation must be sudden; (d) the offender, by the reason of the said provocation, should have been deprived of his power of self-control; (e) the offender should have
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 killed the deceased during the continuance of the deprivation of power of self-control; and (f) the offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident. For determining whether or not the provocation had temporarily deprived the offender from the power of self-control, the test to be applied is that of a reasonable man and not that of an unusually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. K.M. Nanavati (supra) succinctly observes:
"84. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden"
provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization.
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.
85. The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of "grave and sudden"
provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 to Section 300 of the Indian Penal Code.
(3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
11. K.M. Nanavati (supra), has held that the mental background created by the previous act(s) of the deceased may be taken into consideration in ascertaining whether the subsequent act caused sudden and grave provocation for committing the offence. There can be sustained and continuous provocations over a period of time, albeit in such cases Exception 1 to Section 300 of the IPC applies when preceding the offence, there was a last act, word or gesture in the series of incidents comprising of that conduct, amounting to sudden provocation sufficient for reactive loss of self-control. K.M. Nanavati (supra) quotes the definition of
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 'provocation' given by Goddard, C.J.; in R. v. Duffy reported in [1949] 1 All.E.R. 932, as :
"...some act or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-
control, rendering the accused so subject to passion as to make him or her for the moment not master of his own mind...[I] indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person had the time to think, to reflect, and that would negative 11 (1949) 1 All.E.R. 932 a sudden temporary loss of self-control which is of the essence of provocation...".
12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation. The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self-control. The second part emphasises that the offender's reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short- sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim's abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.
13. Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused's reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. This has been aptly summarised by Ashworth reported in 1975 Criminal LR 558-559, and George Mousourakis's elucidation in his paper 'Cumulative Provocation and Partial Defences in English Criminal Law' in the following words:
"The significance of the deceased's final act should be considered by reference to the previous relations between the parties, taking into account any previous incidents which add colour to the final
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act. This is not to argue that the basic
distinction between sudden provoked
killings and revenge killings should be blurred, for the lapse of time between the deceased's final act and the accused's retaliation should continue to tell against him. The point is that the significance of the deceased's final act and its effect upon the accused - and indeed the relation of the retaliation to that act - can be neither understood nor evaluated without reference to previous dealings between the parties."
Exception 1 to Section 300 recognises that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation.
14. xxxxx xxxxx
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15. For clarity, it must be stated that the prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court. It is in this context we would refer to the case of the prosecution, which is that the deceased was addicted to alcohol and used to constantly torment, abuse and threaten the appellant. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. There was sudden loss of self-control on account of a 'slow burn' reaction followed by the final and immediate provocation. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, we hold that the acts of provocation on the basis of which the appellant caused the death of his brother, Dashrath Nirmalkar, were both sudden and grave and that there was loss of self-control." discussed about the standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation and clarified that it must be stated that the prosecution must
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 prove the guilt of the accused. It must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court. In the case on hand, on a careful perusal of the material available i.e., Exhibit.D1 and complaint lodged by PW.1 immediately after the incident at the earliest point of time. Those two statements totally differ. The Investigating Officer also did not clarify that aspect of the matter, and he totally pleaded ignorance about Exhibit.D1. Further, Exhibit.D1 also contains signature and seal of the Investigating Officer. There is no reason forthcoming that how the name of the Accused is missing in Exhibit.P1 and Exhibit.D1 and subsequently in the course of investigation, the Investigating Officer impleaded Accused No.2 in the crime.
36. Further, as per identification of the accused are concerned, all the eye witnesses PW.1 and PWs.11 to 15 deposed that they witnessed the incident in the street light. The Investigating Officer also failed to prove to produce any
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 certificate from the concerned officers of the KEB or MESCOM to substantiate that on that day, there was electricity supply in the concerned area.
37. More over, by perusal of the judgment rendered by the Trial Court depicts that the learned Sessions Judge opined that as per the identification of the accused in the scene of occurrence, insofar as CCTV footage is concerned, except identification of accused No.2, no other person is visible. The CCTV footage is not visible and clear to notice the participation of other accused persons are concerned. Hence, as per the identification of the accused is concerned, some ambiguity in the case of prosecution as contended by the learned counsel for appellant. More over, doubt arises as to how the accused No.1 kept M.O.1-knife in the waist belt. On perusal of description of M.O.1-knife, it could seen the its length is almost 2 ft and it is difficult or impossible to keep it in the waist belt of accused No.1. Hence, an inference can be drawn that M.O.1-knife was picked up by accused No.1 from the Bar and Restaurant itself and there was no such preparation by accused No.1 to commit the murder of the deceased and, admittedly, the incident was caused after consuming alcohol by both accused and the
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 deceased. That aspect has been proved by the prosecution through the evidence of the doctor who deposed that alcohol contents were found in the dead body and the same finds a mention in the post mortem report-Ex.P.39.
38. In such circumstances, an inference can be drawn that the incident occurred in a spur of moment, due to sudden loss of self control, for the reason that while P.W.13 was singing karoke songs arranged by the staff of the Maya Bar and Restaurant, accused No.2 objected the same and deceased- Yathish Kumar quarreled for that reason and at that time, all of a sudden, with a grave and sudden provocation, the incident was caused. The accused picked up quarrel and, lost his self control and accused might have inflicted injuries by using M.O.1-knife. Further, the employees of Maya Bar and Restaurant also turned hostile in this case. Hence, in such circumstances, as per the law laid down by the Apex Court in the judgment cited supra, in our considered opinion, this case, falls under category of exception to Section 300 of the Indian Penal Code. The Apex Court, in the case of Narendra Singh v. State of M.P., reported in (2004)10 SCC 699, held that,
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 while appreciating the evidence, generally, proof and suspicion, however grave may be, cannot take the place of proof, there is a long distance between "may be" and "must be".
39. By considering the above theory, and also the above mitigating circumstances, we are of the considered opinion that the present case falls under category of exception.
40. Accordingly, applying the provocation exception, we would convert the offence from Section 302 to Section 304 Part I of the Indian Penal Code. On the question of sentence, we are informed that accused No.1 has already been incarcerated for 7 years 10 months and accused No.2 has been incarcerated for 8 months 8 days. In the aforesaid circumstances, we are inclined to modify the sentence of imprisonment to the period already undergone by accused Nos.1 and 2. In addition, appellants will have to pay fine of Rs.20,000/- each and in default, they have to undergo simple imprisonment for a period of six months.
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NC: 2023:KHC:23357-DB CRL.A No. 1007 of 2017 C/W CRL.A No. 367 of 2018 Accordingly, we answer the points raised and proceed to pass the following:
ORDER
(i) Criminal Appeal No.1007/2017 is allowed in part by modifying the conviction imposed by the Trial Court for the offence punishable under Section 302 to Section 304 Part I of the Indian Penal Code.
(ii) Accused Nos.1 and 2 are hereby convicted for the offence punishable under Section 304 Part I of the Indian Penal Code and they are sentenced to the period of imprisonment already undergone by them, in addition to payment of fine of Rs.20,000/- each, in default, to undergo simple imprisonment for a period of six months.
(iii) Criminal Appeal No.367/2018 filed by the State in respect of accused No.3 is hereby dismissed as being devoid of any merit.
(iv) Accused Nos.1 and 2 are directed to pay fine amount within a period of two months from the date of receipt of copy of this Order, failing which, the Sessions Judge is directed
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(v) Upon payment of fine as stated supra, or upon serving the default sentence, as the case may be, the bail bonds executed by them shall stand cancelled.
(vi) Registry is directed to return the Trial Court Records, forthwith.
Sd/-
JUDGE Sd/-
JUDGE HKV, AN, kcm List No.: 1 Sl No.: 9