Karnataka High Court
Sri Nagaraju vs State Of Karnataka on 3 March, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 1163 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR JUSTICE B.VEERAPPA
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 1163 OF 2018
BETWEEN:
SRI. NAGARAJU
S/O CHIKKATHIMMAIAH,
AGED ABOUT 56 YEARS
R/AT KENCHANAKUPPE VILLAGE,
BIDADI HOBLI,
RAMANAGARA TALUK AND DISTRICT
...APPELLANT
(BY SRI. ARVINDA N, ADVOCATE
SRI. MOHANKUMAR D., ADVOCATE)
Digitally signed
AND:
by
DHARMALINGAM
Location: HIGH
COURT OF
STATE OF KARNATAKA
KARNATAKA BY BIDADI POLICE,
REP BY SPP
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
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CRL.A No. 1163 of 2018
THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C
PRAYING THIS HON'BLE COURT TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION AND SENTENCE DATED
11.06.2018 PASSED BY THE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, RAMANAGARA IN S.C.NO.71/2017
CONVICTING AND SENTENCING THE APPELLANT/ACCUSED FOR
THE OFFENCE P/U/S 302 OF IPC AND ETC., AND ETC.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS, THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The Accused, who is an ex-soldier of the Border Security Force has preferred the present Criminal Appeal against the impugned judgment of conviction and order of sentence dated 11.06.2018 made in S.C.No71 of 2017 on the file of the III Additional District and Sessions Judge, Ramanagara, convicting the accused to undergo imprisonment for life with a fine of Rs.10,000/- for the offence under the provisions of Section 302 of IPC with a default clause; to undergo rigorous imprisonment for six months.
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2. It is the case of the prosecution that the accused- Nagaraju had married one Smt.Mangalamma, the complainant-PW.12, about 26 years back and she is the daughter of deceased Smt.Chikkathimmamma. The said Smt.Mangalamma was residing with her mother from last ten years at Kenchanauppe village, Bidadi Hobli, Ramanagara District. Since from the date of marriage, the accused used to harass PW.12, Smt.Mangalamma, the complainant. In that regard, during the year 2009, a criminal case came to be registered against the accused for the offence punishable under Sections 498A, 323, 504 and 506 of IPC and that was ended in a compromise. Subsequently, the accused-Nagaraju started to harass the complainant, PW.12, Smt.Mangalamma. One week prior to the date of incident, i.e., on 06.04.2017, the accused picked up quarrel with his wife and hence, she went to the house of her mother-Smt.Chikkathimmamma and she was residing therein and therefore, the accused asked his wife to return back to his matrimonial home, but, the deceased Chikkathimmamma refused to send her daughter -4- CRL.A No. 1163 of 2018 Mangalamma, the wife of the accused along with him. Thereby, on 06.04.2017 at 9.00 a.m. the accused being enraged went to the house of his mother-in-law at Kenchankuppe village and when the deceased Chikkathimmamma was near the cattle shed of PW.2- Hotte Muthaiah, the accused picked up quarrel with her and assaulted her by holding tuft with the sickle and as a consequence, Chikkthimmamma died on the spot. On the basis of the complaint lodged by the complainant at Ex.P8, the jurisdictional police registered a criminal case against the accused on 06.04.2017 at 9.30 a.m., for the offence punishable under Section 302 of IPC. After the investigation, the Investigating Officer filed charge sheet against the accused for the said offence.
3. Since the case is triable by the learned Sessions Judge, the jurisdictional court committed the matter to the Sessions Court. The learned Sessions Judge secured the presence of accused on 09.01.2018 and framed the charge and read over the charge in the language known to the -5- CRL.A No. 1163 of 2018 accused. The accused pleaded not guilty and claimed to be tried.
4. In order to prove the case of the prosecution, the prosecution examined in all 21 witnesses, as PWs.1 to 21 and material documents exhibited as Exs.P1 to P25 and material objects were marked as MOs.1 to 11. After completion of the evidence of the prosecution witnesses, the statement of the accused as contemplated under the provisions of Section 313 of Cr.P.C. was recorded. The accused has taken specific defence in question No.35 to the effect the he was not aware of the death of her mother-in-law and as on the date of incident, he himself and his wife were in his house, which is 500 meters away from the place of incident and both of them were having coffee. Thereafter, somebody informed about the death of the deceased, therefore, they both rushed to the spot and they came to know that someone had killed his mother-in- law and police who were also present in the spot took the signature of his wife on a blank paper and the accused was -6- CRL.A No. 1163 of 2018 standing there, thereafter the police took the accused to the police station.
5. Based on the aforesaid pleadings, the learned Sessions Judge framed the following points for consideration:
1. Whether the prosecution has proved beyond reasonable doubt that the death of Smt.Chikkathimmamma is homicidal?
2. Whether the prosecution has proved beyond reasonable doubt that Accused Nagaraju has married CW.3 Mangalamma about 26 years back. Since from the date of marriage, accused used to harass CW.1 Mangalamma. During 2009, a criminal case has been registered against the accused for the offence punishable u/s 498A, 323, 504 and 506 of IPC and that matter is ended.
Subsequent to that incident, accused Nagaraju started to harass CW.1 Mangalamma. One week back to 06.04.2017, accused has picked up quarrel with CW.1 and thereafter, CW.1 started to stay in her matrimonial home. Accused has called -7- CRL.A No. 1163 of 2018 CW.1 to come back to his matrimonial home, however deceased Chikkathimmamma has refused to send CW.1 to the house of the accused. Being enraged, on 06.04.2017 at 9 a.m., at Kenchanakuppe village when deceased Chikkathimmamma was there near the cattle-shed of CW.3 Hotte Muthaiah, accused Nagaraju picked up quarrel with her and by holding her tuft assaulted on her neck by a sickle as a consequence Chikkathimmamma died at the spot itself and thereby, accused has committed the offence punishable u/s 302 r/w Sec.34 of IPC?
6. Considering both oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution proved beyond reasonable doubt that the death of deceased Chikkathimmamma, the mother of PW.12 and mother-in-law of the accused-Nagaraju, is homicidal death. Learned Sessions Judge recorded a finding that one week prior to 06.04.2017, the accused picked up quarrel with his wife, PW.12 and therefore, she went to the house of the deceased and was staying with -8- CRL.A No. 1163 of 2018 her mother. Thereafter, on 06.04.2017 when the accused went to the house of the deceased and requested his wife to come back to his matrimonial home at that time, deceased Chikkathimmamma, the mother-in-law of the accused refused to send her daughter with the accused and she taunted him and enraged the accused, therefore, he picked up quarrel and assaulted the deceased with MO.1-Sickle and caused bleeding injuries, due to which she died on the spot and thereby the accused committed the offence punishable under Section 302 of IPC. Accordingly, the learned Sessions Judge by the impugned judgment convicted the accused and sentenced to undergo imprisonment for life for the offence punishable under the provisions of Section 302 IPC with a fine of Rs.10,000/-. Hence, the present appeal is filed.
7. We have heard the learned counsel for the parties to the lis.
8. Sri. Aravind N, learned counsel appearing on behalf of Sri.Mohan Kumar D, learned Counsel for the -9- CRL.A No. 1163 of 2018 accused/appellant vehemently contended that the impugned judgment and order of the Sessions Court convicting the accused under the provisions of Section 302 of IPC with imprisonment for life and fine of Rs.10,000/- is erroneous and contrary to the material on record and the same cannot be sustained and the same is liable to be set aside. He would further contend that the learned Sessions Judge failed to consider the material evidence on record and the prosecution failed to prove the guilt of accused beyond reasonable doubt. He further contended that all the prosecution witnesses i.e., PWs.1 to 10 turned hostile to the prosecution case. PW.11, the Chief Judicial Magistrate, who recorded the statement of the accused under Section 164 of Cr.P.C., supported the case of the prosecution. Only PW.12, Smt.Mangalamma, who is the wife of the accused and daughter of the deceased and the complainant in this case, PW.15 the daughter of the accused and PW.12 and the official witnesses have supported the case of the prosecution. Thereby, there is
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CRL.A No. 1163 of 2018no other material witnesses to prove that the accused was involved in committing homicidal death of the deceased.
9. Learned Counsel further contended that the Mahazar witnesses, PW.3-Sri.Chikkeeraiah and PW.4- Nagendra, have deposed that they have signed to the Ex.P3-Mahazar at Bidadi Police Station and nothing has been recovered in their presence and they did not support the case of the prosecution and the said crucial aspect of recovery has not been considered by the learned Sessions Judge. He would further contend that the Seizure Mahazar witnesses, PW.5 and P.W.6, who categorically stated that they have not signed the Ex.P4-Seizure Mahazar nor seized any material object in their presence and they have turned hostile to the case of the prosecution and the said aspect of the matter also has not been considered by the learned Sessions Judge. He further contended that PW.21- Medical Officer who deposed that on 06.05.2017, she has received 9 items and she has analyzed and submitted a report as per Ex.P20-FSL Report. According to her, the
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CRL.A No. 1163 of 2018bloodstains were detected on the Article Nos.1, 2, 4, 6, 7, 8 and 9 of Blood Group 'B', but blood stains found on the sickle was 'O' Blood Group. The same has not been considered by the learned Sessions Judge, while convicting the accused under the provision of 302 of IPC.
10. He would further contend that learned Sessions Judge proceeded to convict the accused mainly on the basis of the statement of PW.12, who is the interested witness, the daughter of the deceased and Ex.P21-Post Mortem Report and in the absence of the material evidence, the conviction is liable to be set aside. He further contended that while recording the statement under Section 164 of Cr.P.C., before the learned Magistrate the accused has stated that his mother-in-law used to harass him and she used to take his wife to her house at about 20-30 occasions and he requested his mother-in-law many times to send back his wife and one day earlier to the date of incident, he wanted to take his wife to his home as there was a head tonsuring ceremony
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CRL.A No. 1163 of 2018of his grandson, but she refused to go back with him and thereafter, he himself performed the said ceremony. On the next day, i.e., on 06.04.2017, the accused went to the house of his mother-in-law and requested her to send back his wife, but she not responded to the same and abused the accused in filthy language and thereby the villagers taunted him that as to what type of service he had done in the Army and he is prophet of his wife and therefore, he lost his self-control and picked up quarrel with his mother-in-law and assaulted her with M.O.1 but, not with an intention to kill her and therefore, it is a clear case which falls under the provisions of Part I of Section 304 of IPC and thereby the accused is entitled for the reduction of the punishment imposed by the learned Sessions Judge and seeks to allow the criminal appeal.
11. Per contra, Sri Vijaykumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment of conviction and order of sentence, would contend that as could be seen from the Post Mortem
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CRL.A No. 1163 of 2018Report, there are 10 injuries sustained and thereby it cannot be said that it happened due to sudden provocation as the accused lost self-control and the evidence of eye witness-PW.12 clearly depicted that the accused assaulted the deceased-Chikkathimmamma with M.O.1-Sickle and intentionally murdered her mother. Considering the evidence of the PW.12 and material documents, particularly Ex.P21-Post Mortem Report, the learned Sessions Judge has justified in convicting the accused under the provisions of Section 302 of IPC. He further contended that very curiously, while recording the statement, the accused has taken the plea of alibi that he was not present at the place of incident on the that date, which is about 500 meters away from his house, and he was staying in his house along with his wife and having Coffee and the same has not been proved, thereby the learned Sessions Judge has proceeded to pass the impugned order and therefore sought for dismissal of the appeal.
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CRL.A No. 1163 of 2018
12. In view of the aforesaid rival contentions urged by the learned Counsels for the parties, the only point that would arise for our consideration in the present appeal is:
(i) Whether the accused/appellant has made out a case to interfere with the impugned judgment of conviction and order of sentence convicting him under the provisions of Section 302 of IPC with imprisonment for life and fine of Rs.10,000/- and whether he has made out a case to modify/reduce the punishment imposed into other provisions of IPC in the peculiar facts and circumstances of the case?
13. We have given our anxious consideration to the arguments advanced by the learned Counsel for accused/ appellant and learned Additional State Public Prosecutor for the State and perused the entire material on record including the original records, carefully.
14. This Court being the appellate Court, in order to re-appreciate the oral and documentary evidence on
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CRL.A No. 1163 of 2018record, it is relevant to reconsider the evidence of the prosecution witnesses and the material documents relied upon as under:
(i) PW.1-Shobha, the sister of the complainant, deposed in her evidence that she has neither seen the alleged incident nor seen the accused person. During the cross-examination, she deposed that deceased Chikka-thimmamma was indulged in lending money for interest and she used to quarrel with the borrowers. The statement of this witness is marked as Ex.P.1. This witness has not supported the case of prosecution and turned hostile.
(ii) PW.2-Hotte Muttaiah, the husband of the deceased, deposed in his evidence that, at the time of the death of his wife Chikkathimmamma, his daughter i.e., Mangalamma was residing with the accused in their matrimonial house. The statement of this witness is marked as Ex.P.2. This witness has not supported the case of prosecution and turned hostile.
(iii) PW3-Chikkiraiah, Spot Mahazar witness, deposed that the Respondent Police had neither conducted the Spot Mahazar nor seized any material objects his presence. Further, he stated that he had signed the Ex P.3 in the Bidadi Police Station. This witness has not supported the case of prosecution and turned hostile.
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CRL.A No. 1163 of 2018
(iv) PW.4-Nagendra, Spot Mahazar witness, deposed in his evidence that the Respondent Police had neither conducted the Spot Mahazar nor seized any material objects in his presence. Further, he stated that he had signed the Ex.P.3 in the Bidadi Police Station. This witness has not supported the case of prosecution and turned hostile.
(v) PW.5-Mutturaju, Seizure Mahazar witness, deposed in his evidence that the Respondent Police had neither conducted the Spot Mahazar nor seized any material objects in his presence. Further, he stated that he had signed the Ex.P.4 in the Bidadi Police Station. This witness has not supported the case of prosecution and turned hostile.
(vi) PW.6-Chandru, Seizure Mahazar witness, deposed in his evidence that the Respondent Police had neither conducted the Spot Mahazar nor seized any material objects in his presence. Further, he stated that he had signed the Ex.P. 4 in the Bidadi Police Station. This witness has not supported the case of prosecution and turned hostile.
(vii) PW.7-Chikkaswamy, Inquest Mahazar witness, deposed in his evidence that the Respondent Police has not conducted any inquest mahazar in his presence. Further, he stated that he has given his thumb impression in Ex.P.5 in the Bidadi PS. This witness has not supported the case of prosecution and turned hostile.
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CRL.A No. 1163 of 2018
(viii) PW.8-Mutturaju. D, Inquest Mahazar witness, deposed in his evidence that the Respondent Police has not conducted any inquest mahazar in his presence. Further, he stated that he had signed the Ex.P.5 in Bidadi Police Station. This witness has not supported the case of prosecution and turned hostile.
(ix) PW.9-Gopi, Brother of the deceased, deposed in his evidence that he neither knew the reason for the death nor the injuries sustained by the deceased. The portion of statement of this witness is marked as Ex.P.5(b). This witness has not supported the case of prosecution and turned hostile.
(x) PW.10-Naveen, Kumar, Accused son deposed in his evidence that his mother was in their home at the time of alleged incident. The statement of this witness is marked as Ex.P.6. This witness has not supported the case of prosecution and turned hostile.
(xi) PW.11-M. Anitha, CJM deposed in her evidence that she has recorded the voluntary statement of the accused under Section 164 of Cr.P.C, which is marked as Ex.P.7, wherein the accused has voluntary accepted the alleged incident. This witness has supported the case of prosecution.
(xii) P.W.12-Mangalamma, Complainant deposed in her evidence that the [Complainant accused used to pick up quarrel with her frequently and used to leave the house without any reasons.
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CRL.A No. 1163 of 2018Thus, she left the matrimonial house and started to reside with her mother at Kenchanakuppe. Further, the accused came with a sickle and picked up quarrel with her mother and at that point of time, the accused has assaulted on her neck by sickle for three times and left the place by holding sickle. Her mother died on the spot itself and accordingly, she had lodged the complaint before the police which is marked as Ex.P.8. Further, she has identified the material objects from M.O.1 to M.O.6. This witness has supported the case of prosecution.
(xiii) P.W.13-Venkatesh, Inquest Mahazar, deposed in his evidence that he has not seen the dead body of the deceased and no statement was recorded by the Respondent Police in his presence.
Further, he stated that he had signed the Ex.P.5 in the Bidadi Police Station.This witness has not supported the case of prosecution and turned hostile.
(xiv) P.W.14-B. M. Ramesh Kumar deposed in his evidence that he neither knew the accused nor seen the accused holding any sickle. The statement of this witness is marked as Ex.P9. This witness has not supported the case of prosecution & turned hostile.
(xv) P.W.15-Nagarathna, Daughter of the accused deposed in evidence that she came to know about the death of her grandmother through the villagers as she was not physically present at the incident spot. By the time she reached the incident
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CRL.A No. 1163 of 2018spot, the dead body was taken to Rajajeshwari Hospital for post-mortem. However, in the Cross-Examination, she deposed that her father used to take care of her mother and grandmother. This witness has supported the case of prosecution.
(xvi) P.W.16-Prakash Hidakal, Official Witness, deposed in his evidence that at the instance of PSI, he has handed over 9 items of properties to RFSL, Mysuru and accordingly, secured the acknowledgments. This witness has supported the case of prosecution.
(xvii) P.W.17- K.M. Ramesh, Investigating Officer, deposed in his evidence that he is the Investigating Officer in the above case wherein he had seen the dead body of Chikkathimmamma in the incident spot and he drew inquest panchanama in between 12:50 p.m. to 03:30 p.m. as per Ex.P.5 further, he deposed that he had found the injuries on the head of the deceased. After the inquest mahazar, the dead body was shifted to the Rajajeshwari Hospital for post- mortem. Further, this witness has secured all the material objects which has been marked from M.O.1 to M.0.11. This witness has supported the case of prosecution.
(xviii) PW.18-Kumar, deposed in his evidence that he has neither seen the accused nor knew the accused who has committed the alleged incident. The statement of this witness is marked as Ex.P.24. This witness
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CRL.A No. 1163 of 2018has not supported the case of prosecution and turned hostile.
(xix) PW.19-Dr. Punitha, deposed in her evidence that she has conducted the Post- Mortem Report of the dead body of Chikkathimmamma. According to her, on examination, she found 10 external injuries. Thereafter, she transmitted the PM Report to the Investigating Officer. On examination of M.O.1 -Sickle, she has opined that the shop injuries and incised wounds mentioned in PM Report couldhave been caused by the sickle [M.O.1]. This witness has supported the case of prosecution.
(xx) P.W.20-A.V.Kumar, Official Witness, deposed in his evidence that he had registered the F.I.R in Crime No.114/2017 based on the complaint lodged by the complainant personally in the police station. The statement of this witness is marked as Ex.P.24. This witness has supported the case of prosecution.
(xxi) P.W.21-Dr. Radha.S, deposed in her evidence that she has received 9 items of sealed properties for the examination and on examination, she has issued the chemical analysis report as per Ex.P.20 which shows that the blood stains were detected on the Article No. 1, 2, 4, 6, 7, 8 and 9 and that blood stains are human blood of 'B' group. This witness has supported the case of prosecution.
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CRL.A No. 1163 of 2018Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge has proceeded to pass the impugned judgment of conviction and order of sentence convicting the accused under Section 302 IPC.
15. A careful perusal of the material on record depicts that, Ex.P.8-complaint dated 06.04.2017 was lodged by the complainant-PW.12, who is none other than the wife of the accused and the daughter of the deceased; that the marriage of herself with the accused was performed about 26 years back and out of their wedlock they begot children, one female and another male and the accused was in Army and after his voluntary retirement, he came back to the village and constructed a house in a site which was given by her mother, deceased- Chikkathimmamma. Thereafter, the accused used to harass PW.12 and the Panchayaths were held in the village and she further stated that her son-Sri.Naveen Kumar also was residing with them as her daughter by name Smt.Nagarathna was already married. She further stated
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CRL.A No. 1163 of 2018that earlier the accused assaulted her and therefore, a criminal case has been registered against the accused and that case ended in a compromise. On the date of the incident, the accused came along with M.O.1-Sickle and picked up quarrel with her mother and assaulted thrice on the neck of her mother, due to which her mother screamed and fell down and the accused went away along with M.O.1-Sickle. Accordingly, she lodged the complaint, as per Ex.P8.
16. The complainant examined as PW-12, who deposed on par with the averments made and specifically stated in examination-in-chief that on the date of incident, the accused came with M.O.1-Sickle and when her mother shouted and abused the accused in filthy language, the accused picked up quarrel and assaulted thrice on the neck of the deceased. In the cross-examination, she has specifically stated that the marriage between the accused and herself was held about 26 years back; earlier the accused was in Army and after his retirement, he used to
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CRL.A No. 1163 of 2018work in TOYOTA company; he had performed the marriage of their daughter and has educated his son-Naveen Kumar and they were cordially living; her mother-deceased has given a site to her and in the said site, her husband-the accused constructed a house and she, her son and her husband were residing together. Admittedly, PW.10, the son of the complainant, PW-12 not supported the case of the prosecution and turned hostile. She further admitted in the cross-examination that her mother was rearing the cattle and she used to get sufficient income and she also used to carry out money lending business but she denied the fact that there were so many enemies. The fact remains that the accused was in Army and after his retirement, he constructed a house, performed their daughter's marriage and educated their son and the complainant, her son, along with her husband were residing together. According to the statement made by the accused before the Magistrate under Section 164 of Cr.P.C., nowhere he has made a confession as to the guilt alleged by the prosecution, but he has stated that his
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CRL.A No. 1163 of 2018mother-in-law used to give torture continuously and at about 2 years back they performed the marriage of their daughter, thereafter the mother-in-law started more harassment and she used to take his wife again and again to her house and every day he used to go private company for work and he himself used to prepare food and wash clothes and about 20-30 times his mother-in-law had taken his wife to her house and thereby the general public used to taunt as to what type of service he had done in Army and he is a prophet of his wife and on 05.04.2017, when he wanted to perform a religious ceremony of Head tonsure of his grand-son, he requested his wife to come back to his matrimonial home, but when his mother-in-law refused to send his wife and did not respect his words, the accused sent one Sri.B.M.Ramesh Kumar, the member of the Town Municipal Council, to the house of his mother-in-law, but not yielded anything. Next day, i.e., on 06.04.2017 the accused went to the house of his mother-in-law and requested to sent his wife, as his mother-in-law taunted, insulted and threatened him
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CRL.A No. 1163 of 2018that she will ensure that she would send him to jail and thereby he lost his self-control and he was not aware as to what happened thereafter. When the police removed his clothes, then he regained his conscious and he lost his health, but nothing was admitted by him, and due to harassment made by his mother-in-law, he lost his self- control. Thereby, he has not given any confession before the Magistrate as contemplated as under Section 164 of Cr.P.C., except stating the harassment made by his mother-in-law and the insult by the villagers and his wife.
17. As already stated supra, PW.1-Shobha, the sister of the complainant, PW.2-the husband of the deceased, Spot Mahazar witnesses, Seizure Mahazar witnesses, Inquest Mahazar witnesses, and PW.9 the brother of the deceased and PW-10, the son of the accused & the complainant-Sri.Naveen Kumar all have turned hostile and none of the witnesses, except PW.12 and the official witnesses, there is no other material to prove that there was a motive of the accused to commit murder of his own
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CRL.A No. 1163 of 2018mother-in-law on that day. By careful perusal of the complaint Ex.P8 and the statement made before the Magistrate by the accused, clearly depict that the villagers and the mother-in-law of the accused used to taunt him and his wife was not co-operative with him to live in matrimonial house, and in the quarrel, when his mother- in-law shouted at him, and posed a threat that she will ensure that she would send him to jail and thereby, he lost self-control and an unfortunate incident has been happened. PW.12, both in her complaint and in her evidence has categorically deposed that the accused assaulted with M.O.1 on the neck of her mother thrice but, in the Post Mortem Report, it is stated there were about 10 external injuries. Therefore, there is contradiction in the evidence of PW.12 and the averments made in the complaint and also the medical evidence, Post Mortem Report, Ex.P21.
18. The fact remains that the accused was earlier in the Army and after his voluntary retirement, he
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CRL.A No. 1163 of 2018constructed a house in the site given by his mother-in-law, deceased Chikkathimmamma and as admitted by PW.12 in her cross-examination that the accused used to take care of their family and has performed their daughter's marriage 2-3 years prior to the date of incident and also educated their son. The material on record clearly discloses that an unfortunate incident happened on the fatal day when he went to the house of his mother-in-law to request her to send his wife along with him and his wife refused to come with him and when his mother-in-law taunted and abused him in filthy language, he lost his self- control and thereby, it is a clear case which falls under the provisions of Exception (1) of Section 300 of IPC., which reads as under:
"Section 300-Murder:- xxxx xxxx 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.
The above exception is subject to the following provisos:-
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First. --That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly. --That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly. -- That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact."
19. A careful reading of the aforesaid provision, makes it clear that in order to invoke said provisions, four requisite ingredients must be satisfied, namely;
i) It must be a sudden fight;
ii) There should be no premeditation;
iii) The act must be done in a heat of
passion; and
iv) the assailant should not have taken any undue advantage or acted in a cruel manner.
20. A careful reading of the said provision makes it clear that culpable homicide is not amounting to murder
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CRL.A No. 1163 of 2018the offender while deprived of his self control by sudden provocation and causes a death of a person by mistake or negligence. In the present case, when the accused went to the house of the deceased Chikkathimmamma, his mother-in-law to request her to send his wife with him and when his wife refused to come with him, his mother-in- law, taunted the accused, abused in filthy language and shouted on him that she will ensure to send him to jail, thereby she provoked the accused, therefore, the accused assaulted the deceased with M.O.1-Sickle thrice as admitted by PW.12 in her evidence as well as in the complaint. Hence, it is nothing but a culpable homicide and not amounting to murder. Therefore, the offence clearly falls under the provisions of Part I of Section 304 of IPC and not under the provisions of Section 302 of IPC. The said aspect of the matter has not been considered by the learned Single Judge.
21. Learned Sessions Judge proceeded to convict the accused mainly on the basis of the evidence of PW.12,
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CRL.A No. 1163 of 2018the Complainant who is none other than the daughter of the deceased and wife of the accused and also the alleged eye-witness, when there is no averment in the examination-in-chief or in the complaint that earlier there were quarrel between the accused and deceased- Chikkathimmamma and except there were quarrels between the accused and his wife as she always used to reside in the house of the deceased.
22. As already stated supra, except PW.12 and the official witnesses, all the other witnesses, like eye- witnesses, mahazar witnesses, seizure witnesses, and also PW.10.Sri.Naveen Kumar, the son of the complainant and the accused have turned hostile to the prosecution witnesses. The prosecution has not proved any motive for murder. Nevertheless, an unfortunate incident has happened due to loss of self-control by the accused as the villagers taunted the accused as he is prophet of his wife and his wife was not preparing food and not washing his cloths and she always residing with her mother and when
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CRL.A No. 1163 of 2018he wanted to perform the head tonsuring of his grandson, his wife and mother-in-law did not co-operate with him and on the fatal day, the accused lost his self-control and thereby an unfortunate incident happened. Thereby, it is clear which case falls under the provisions of Section Part I 304 of IPC and not under the provisions of Section 302 of IPC.
23. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of PAWAN KUMAR VS. STATE OF UTTARAKHAND, reported in (2021) 11 SCC 53, wherein it has held at paragraph No.10 as follows:
"10. Considering the totality of the circumstances on record, in our view, the conviction of the appellant ought to be under Section 304 Part I IPC and the appropriate punishment to be imposed upon the appellant ought to be rigorous imprisonment for 10 years. Ordered accordingly."
24. And also in the case of PARDESHIRAM VS. STATE OF MADHYA PRADESH, reported in (2021) 3 SCC
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CRL.A No. 1163 of 2018238, wherein it has held at paragraph Nos.5, 6 and 7 as follows;
"5. The accused is an agriculturist, and the shovel is a part of an agricultural tool that is possessed by agriculturists. The accused was attributed with the first blow with the shovel followed by a hit by a stone on the head of the deceased which was picked up from the street.
6. The accused and the deceased were from the same family. The cause of provocation was sudden, without premeditation. We find that, in the facts and g circumstances of the case, it is a case falling under Exception 4 of Section 300 IPC. The injuries were inflicted without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken advantage or acted cruelly or unusually. In this view of the matter, we find that the appellant is liable to be convicted for an offence under Section 304 Part 1 IPC.
7. The appellant has served more than 18 years of his jail sentence. Therefore, keeping in view the period of custody undergone: the relationship between the accused and the deceased and the background in which the injuries were caused, we are inclined to allow this appeal partly. We thus convict the appellant for an offence under Section 304 Part I IPC and sentence him to the sentence already undergone. He is to be
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released forthwith, if not wanted in any other case."
25. It is also relevant to state at this stage that though the accused was involved in homicide death of the deceased and in a fit of rage, he lost his self-control. While recording the statement under Section 313 of Cr.P.C., he has taken a plea of alibi that at the time of incident he was in his house along with his wife and he was not aware of the death of his mother-in-law and only after somebody informed about the incident, he along with his wife went to the spot, at that time police were present in the spot and they took the signature of his wife on a blank paper and thereafter arrested the accused. When once the accused has taken plea of alibi, the accused has to prove the provisions of Section 103 of Indian Evidence Act, as per the decision of the Hon'ble Supreme Court in the case of STATE OF HARYANA VS. SHER SINGH AND OTHERS, reported in AIR 1981 SC 1021, wherein it has held at paragraph No.4 as follows;
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"4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:
"103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustrations: (a) A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C. A must prove the admission. B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it."
26. The Hon'ble Supreme Court has declared that the principles of sentencing and proportionality to be applied while deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court, while imposing the imprisonment of life in the case of STATE OF MADHYA PRADESH VS. SURESH, reported in (2019) 14 SCC 151, wherein at paragraphs No.13 and 14 it has held as follows;
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"13. Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges, in essence, affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence, sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably, these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.
14. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is
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unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences."
27. Admittedly, in the present case, earlier the accused was in Military and after his voluntary retirement, he has constructed a house and got educated both children and performed the marriage of his daughter as admitted by PW.12, the complainant who is wife of the accused and taking into consideration age of the accused and the relevant facts and circumstances and the balanced aggravating and mitigating circumstances, we are of the considered opinion that this is a fit case to award the punishment of rigorous imprisonment for a period of 10 years for the punishable under Section 304 Part I of IPC and not a extreme case for imposing Imprisonment of Life under the provisions of Section 302 of IPC.
28. For the reasons stated above, the point that arises for consideration in this appeal is answered partly in
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CRL.A No. 1163 of 2018the affirmative, holding that the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence, convicting the accused to undergo imprisonment for life with a fine of Rs.10,000/- for the offence under the provisions of Section 302 of IPC and thus, has made out a case for modifying the same into the provisions of Section 304 Part I of IPC.
29. In view of the above, we pass the following:
ORDER
(i) Criminal Appeal filed by appellant/ accused-Nagaraju is allowed in-part.
(ii) The impugned judgment of conviction and order of sentence dated 11.06.2018 passed in Sessions Case No.71/2017 on the file of the III Additional District and Sessions Judge, Ramanagara convicting and sentencing the appellant/accused to undergo imprisonment for Life and to
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pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 302 of the Indian Penal Code, is hereby modified.
(iii) The appellant/accused is convicted and sentenced to undergo rigorous imprisonment for Ten years and to pay fine of Rs.25,000/-, in default, to undergo further imprisonment for a period of two years for the offence punishable under Section 304 Part I of IPC.
(iv) The appellant/accused is entitled to set up under the provisions of Section 428 of Cr.P.C.
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(v) On such deposit of fine amount, the same shall be paid to the State, as defraying charges.
(vi) Registry is directed to return the Trial Court Records, forthwith.
Sd/-
JUDGE Sd/-
JUDGE DL