Karnataka High Court
Sri. Ravichandra vs State Of Karnataka By on 27 March, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 1299 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR JUSTICE B.VEERAPPA
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 1299 OF 2017
BETWEEN:
1. SRI. RAVICHANDRA,
S/o KEMPARANGAIAH,
AGED ABOUT 27 YEARS
R/at JONIGARAHALLI,
KORATAGERE TALUK,
TUMKUR DISTRICT.
2. SRI. RAGHAVENDRA
S/o KEMPARANGAIAH
AGED ABOUT 25 YEARS
R/at JONIGARAHALLI
KORATAGERE TALUK
TUMKUR DISTRICT.
Digitally 3. SRI. KEMPARANGAIAH
signed by S/O VEERANNA
SUMITHRA AGED ABOUT 75 YEARS
R
R/at JONIGARAHALLI
Location:
HIGH KORATAGERE TALUK
COURT OF TUMKUR DISTRICT.
KARNATAKA ...APPELLANTS
(BY SRI. M.SHASHIDHARA FOR A1 TO A3., ADVOCATE)
AND:
STATE OF KARNATAKA BY
KORATAGERE POLICE
TUMKUR DISTRICT
BY STATE PUBLIC PROSECUTOR.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE ADDL, SPP-2)
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CRL.A No. 1299 of 2017
CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 20.07.2017 PASSED BY THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MADHUGIRI IN
S.C.NO.5046/2016, CONVICTING THE APPELLANT/ACCUSED NO.1 TO
3 FOR THE OFFENCES P/U/SS. 302 AND 448 R/W 34 OF IPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
B VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The accused persons (accused Nos.1 and 2 are brothers, accused No.3 is father of accused Nos.1 and 2) filed the present criminal appeal against the judgment of conviction and order of sentence dated 20.07.2017 passed in Sessions Case No.5046/2016 on the file of the IV Additional District and Sessions Judge at Madhugiri, convicting accused Nos.1 to 3 for offences punishable under Section 448 and 302 IPC read with Section 34 of IPC and sentencing them for imprisonment of life with fine of Rs.10,000/- each, in default, to undergo simple imprisonment for six months under the provisions of Section 302 of the Indian Penal Code and S.I. for one year each for the offence punishable under Section 448 r/w.34 of IPC.
2. It is the case of the prosecution that, on the basis of Ex.P1-complaint dated 9.4.2016 filed by PW1-Rangamma, who is none other than the mother of the deceased-Siddaraju, -3- CRL.A No. 1299 of 2017 engagement of accused No.1 was performed along with PW.6- Savitha, daughter of the deceased, on 12.1.2013. Accused No.1 had taken PW.6-Savitha and her mother-PW5, Gangalakshmamma to Bengaluru prior to the marriage and on 9.4.2016 at about 3.00 p.m. when accused No.1 was walking on the road in front of the house of deceased, the deceased had questioned accused No.1 as to why he took his wife and daughter to Bengaluru even before the marriage and in that regard, quarrel had ensued between them and later, on the same day i.e. 9.4.2016 at about 7.00 p.m. accused persons, with an intention to kill Siddaraju, suddenly barged into the hall of the house of Siddaraju, where he was sleeping, dragged him outside the house on to the cement road in front of his house. Accused No.1 had told that they should finish of Siddaraju somehow, as he would not come in the way of his marriage with PW6-Savitha and told accused No.3 to catch hold of the hands of Siddaraju and that, himself and accused No.2 would assault and kill Siddaraju and thus, accused No.3, caught hold of the hands of Siddaraju, accused No.2 assaulted Siddaraju on the forehead and right cheek with a cement brick causing grievous injury and accused No.1 assaulted Siddaraju on the -4- CRL.A No. 1299 of 2017 back of the head with a wooden club causing grievous injury and as a result, Siddaraju died on the spot.
3. Based on the aforesaid complaint, the jurisdictional police registered a case in Crime No.80/2016 on 09.04.2016 against the accused for the offences punishable under Sections 302 of the Indian Penal Code.
4. The Jurisdictional Police, after investigation, filed the charge sheet against the accused persons for the offences punishable under Sections 448 and 302 r/w 34 of IPC. After committal of the matter, the learned Sessions Judge secured the presence of the accused and framed the Charge on 18.02.2017. The same was read over to the accused persons, in the language known to them, who pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution, in all examined 20 witnesses as P.Ws.1 to 20 and marked the documents Exs.P.1 to P.21 and the material objects M.Os.1 to
8. After completion of the evidence of prosecution witnesses, the statement of the accused was recorded as contemplated -5- CRL.A No. 1299 of 2017 under Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating circumstances adduced against them by the prosecution witnesses and did not choose to lead any defence evidence.
6. Based on the aforesaid pleadings, the learned Sessions Judge framed the following points for consideration:
"(1) Whether the prosecution has proved that accused No.1 had quarreled with deceased on the same day earlier and all the accused had a motive to commit murder of deceased Siddaraju?
(2) Whether the prosecution has proved that the death is homicidal and not accidental?
(3) Whether the prosecution has proved that the accused persons barged into the house of deceased and dragged him outside the house with an intention to kill him?
(4) Whether the prosecution has proved that the accused persons are the cause for death of deceased Siddaraju?
Considering both oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution proved beyond reasonable doubt that, accused No.1 had quarreled with deceased on 09.04.2016 at 3.00 P.M. and all the accused had a motive to commit murder of deceased Siddaraju -6- CRL.A No. 1299 of 2017 and accordingly, barged into the house of deceased, dragged him outside the house and thereafter, accused No.3, caught hold of the hands of Siddaraju, accused No.2 assaulted Siddaraju on the forehead and right cheek with a cement brick causing grievous injury and accused No.1 assaulted Siddaraju on the back of the head with a wooden club causing grievous injury and as a result, Siddaraju died on the spot. Thereby, they have committed the offences punishable under Sections 448 and 302 r/w 34 of IPC.
7. Accordingly, by the impugned judgment of conviction and order of sentence dated 20.7.2017, the learned Sessions Judge, sentenced the accused for imprisonment of life with fine of Rs.10,000/- each, in default, to undergo simple imprisonment for six months under the provisions of Section 302 of the Indian Penal Code and simple imprisonment for one year each for the offence punishable under Section 448 r/w.34 of IPC.
8. Hence, the present Criminal Appeal is filed.
9. We have heard the learned counsel for the parties. -7- CRL.A No. 1299 of 2017
10. Sri M Shashidhara, learned counsel for the appellants/ accused would contend that the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge is erroneous and contrary to the material on record and is unsustainable in law and is liable to be set aside. He would further contend that the injuries sustained by the deceased as per Ex.P8-inquest report clearly depicts a lacerated wound over the occipital region at the right side of the head of the deceased, the wound over the face was an abrasion and these wounds would have been caused by the deceased falling into a drain. Thereby, accused No.2, could, at the most, be charged for an offence under Section 323 of IPC. He would further contend that, in the evidence of PW2- wife of deceased, it has been categorically mentioned that accused No.1 had agreed to marry PW6 and that the deceased was willing to give PW6 in marriage to Appellant No.1. Further, PW.3-Naganna in his evidence has stated that on 9.4.2016, at about 3.00 P.M., the villagers had pacified the quarrel between accused No.1 and the deceased and had arranged for the marriage of PW6 with Appellant No.1 on 13.04.2016. If this evidence is taken into account, there was no reason for the appellants/accused to -8- CRL.A No. 1299 of 2017 take such an extreme step of murdering the deceased. The learned Sessions Judge ought to have scrutinized this piece of evidence and must have given the benefit of doubt to the appellants. He further submitted that the Sessions Court has failed to consider that the prosecution witnesses have contradicted each other in specifying the motive behind the alleged murder. In addition, the deceased was a drunkard and the prosecution witnesses have admitted this fact. The defence of the accused that, the deceased had sustained injuries when he fell into a drain was possible and therefore, the Sessions Court ought to have given the benefit of doubt to accused Nos.1 to 3. He would further contend that the Sessions Judge has failed to notice the alleged motive of the appellants in committing the alleged crime as, admittedly, appellant No.1 was engaged to PW6 and the deceased had allegedly taken objection to the appellant No.1 taking PW6 and PW5 to Bengaluru before the marriage. However, the prosecution has failed to drive home the alleged motive of the accused to murder the deceased on 9.4.2016 while the villagers had pacified both the parties and arranged to solemnize the marriage of Accused No.1 with PW6-Savitha on 13.4.2016 and -9- CRL.A No. 1299 of 2017 therefore, contended that the learned Sessions Judge was not justified in convicting the accused for the offences punishable under Section 448 and 302 IPC read with Section 34 of IPC.
10.1. He would further contend that the Sessions Judge has wrongly considered that the appellants had conspired a pre-meditated attempt to murder the deceased, while on the contrary, the material objects viz., MOs. 1 and 8 would clearly show that there was no pre-meditation to commit the alleged murder. The case of the prosecution could be utmost based on under grave threat and provocation, accused persons might have committed the said offence and therefore, the Sessions Judge was not justified in convicting the accused under Section 302 of IPC and it could have been treated as 'culpable homicide not amounting to murder', which falls under Section 304 Part I of IPC. He further contended that the inquest Mahajar at Ex.P4 disclosed that the injuries on the person of the deceased were simple in nature but the post mortem report disclosed grave injuries and hence the prosecution has failed to prove Ex.P4 and hence, he sought to allow the appeal. He would further contend that, except that accused No.3 held the arms of the deceased, there is no material against him and that he is
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CRL.A No. 1299 of 2017already aged 74 years and that bail has been granted by this Court. Therefore, there is no case made out against accused No.3 and he may be acquitted.
11. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment of conviction and order of sentence, would contend that though quarrel took place at about 3.00 P.M. on 09.04.2016 between Accused No.1 and the deceased and the same was pacified by the villagers, there was no need for Accused Nos.1 to 3 to barge into the house of deceased Siddaraju, when he was sleeping, dragged him outside the house on to the cement road in front of his house and when Accused No.3 was holding the hands of deceased Siddaraju, Accused No.2 has assaulted him on the forehead and right cheek with a cement brick causing grievous injury and Accused No.1 has assaulted Siddaraju on the back of his head with a wooden club causing grievous injury resulting in his death and thereby, the act of Accused Nos.1 to 3 clearly indicates that, it is a case of pre-planned murder by the accused persons only because that the deceased abused Accused No.1 as to why he
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CRL.A No. 1299 of 2017had taken PWs 5 and 6, his wife and daughter, even before his marriage with PW6 and that, it is not due to sudden provocation that the accused have killed Siddaraju. Thereby, he submits that the accused persons had taken law into their hands and have murdered deceased-Siddaraju and the said incident was witnessed by PWs 1 and 2. Their evidence clearly depicts that there was an intention of causing the injury resulting in death of the deceased. He would further contend the evidence of PWs 1 and 2 is corroborated by the medical evidence and which clearly depicts the death of the deceased is homicidal in nature. Therefore, he sought to dismiss the appeal.
12. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that arise for our consideration are:
i) "Whether accused No.1 and 2 have made out a case to interfere with the impugned judgment of conviction and order of sentence, convicting them for the offences punishable under Section 448 and 302 IPC read with Section 34 of IPC and sentencing them for imprisonment of life with fine of Rs.10,000/- each, in default, to undergo simple
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imprisonment for six months under the provisions of Section 302 of the Indian Penal Code and S.I. for one year each for the offence punishable under Section 448 r/w.34 of IPC ?
ii) Whether accused No.3, who is aged 74 years, has made out a case for interference with the impugned judgment of conviction and order of sentence, convicting him for the offences punishable under Section 448 and 302 IPC read with Section 34 of IPC and sentencing him for imprisonment of life with fine of Rs.10,000/- in default, to undergo simple imprisonment for six months under the provisions of Section 302 of the Indian Penal Code and S.I. for one year each for the offence punishable under Section 448 r/w.34 of IPC, in the peculiar facts and circumstances of the case ?
13. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record and the original documents, carefully.
14. This Court being the Appellate Court, in order to re- appreciate the material on record, it is relevant to consider the
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CRL.A No. 1299 of 2017evidence of prosecution witnesses and the documents relied upon.
(i) PW1-Rangamma who is the mother of the deceased-Siddaraju and sister of Accused No.3, has deposed that engagement between PW6 and Accused No.1 took place and thereafter, Accused No.1 has taken PWs 5 and 6 to Bengaluru even before marriage and kept in his house. On the fateful day, at about 3.00 P.M. there was quarrel between the accused persons and deceased. Thereafter, on the same day, when the deceased after having his dinner was sleeping, about 6.00 P.M. to 7.00 P.M., the accused persons barged into the house of the deceased, dragged him out of the house and when Accused No.1 assaulted him with club, deceased fell down and Accused No.2 assaulted him with the cement brick on his face and as they screamed, PWs 3 and 4 came to the spot and by that time, her son, the deceased died on the spot and they all went to police station and lodged the complaint as per Ex.P1. Thereby she supported the case of the prosecution.
She has further deposed that, afterwards police came to their house and conducted spot seizure mahazar as per Ex.P2 seizing the club, cement brick, blood stained mud, blood stained cotton and also normal mud found on the spot. PW1 has admitted
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CRL.A No. 1299 of 2017that she has signed on Ex.P2- Mahazar said to have been conducted by the police and when shown to her, identified her signature on Ex.P2. Further, she has also identified her signature as Ex.P3(a) on Ex.P3-spot mahazar but denied the suggestion that accused persons had come to their house with the police.
In the cross examination, she has denied the fact that, police had brought the accused to their house and after showing the place where her son was murdered, the police conducted spot Mahazar as per Ex.P3 and only after reading Ex.P3, herself and accused have signed. Further, in the cross examination, to the suggestion made by the defence that, deceased by consuming alcohol fell into the drainage, sustained injuries and due to which he died, was denied by PW1. Therefore, she has supported the case of the prosecution.
(ii) PW2- Radhammma, third wife of deceased - Siddaraju has also deposed on par with PW1 and has stated that the deceased had intended to give his daughter in marriage to Accused No.1. She has deposed that, on the date of incident, after having dinner, when PW1 and herself were sitting in the house, her husband, deceased - Siddaraju went to sleep. At that time, accused persons barged into
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CRL.A No. 1299 of 2017their house; when they opposed, Accused Nos.1 & 2 pushed them and dragged the deceased outside, Accused No.1 assaulted the deceased on his head, Accused No.3 held the hands of the deceased and Accused No.2 assaulted deceased with brick, which broke into two pieces; and on seeing this, PW1 and herself started screaming. Then, PWs 3 and 4 came to the spot but, by then her husband had died. Thereafter, PW1 lodged the complaint-Ex.P1 and police came to the spot. PW2 has further deposed that, if shown to her, she can identify the brick by which accused No.2 assaulted her husband. She has further deposed that, in fact, on the date of incident at about 3.00 P.M., her husband had agreed to perform marriage of PW6 with Accused No.1 and in spite of it, the incident had occurred. She has identified MO.8-club by which Accused No.1 assaulted the deceased on his head.
In her cross-examination, though she has accepted that her husband-deceased Siddaraju was consuming alchohol, she has denied the suggestion of the defence that, the deceased had consumed alcohol on the date of incident. She has further stated it is true that police has not summoned her and that she has not given any statement. She has further denied the suggestion that, her husband - deceased Siddaraju had drunk on the date of incident
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CRL.A No. 1299 of 2017and that under the influence of alcohol, he fell into the drainage, sustained injuries and had died. She has further denied the suggestion that all of them accepted for the marriage and were in cordial terms with the accused. Accordingly, she supported the case of the prosecution.
(iii) PW3-Naganna has deposed that he knew the accused and the deceased and also knew about the engagement between Accused No.1 and PW6- Savitha. He further deposed that Accused No.1 was running a Tempo and about two months after performing the engagement with PW6, there was no cordial relationship between the accused persons and deceased-Siddaraju. Accused No.1 had taken PWs 5 and 6 to Bengaluru even before the marriage. As deceased Siddaraju told Accused No.1 that, he will not perform the marriage with PW6, there was enmity between Accused No.1 and deceased. It is further stated that Accused No.1 came to the village for festival. There was quarrel between accused and the deceased at about 3.00 P.M. and villagers pacified the quarrel. Thereafter, at about 7.00 P.M., accused persons barged into the house of the deceased and assaulted him. Thereby, his evidence support the case of the prosecution. Nothing has been elicited to disbelieve the statement of PW3 in his cross examination.
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CRL.A No. 1299 of 2017
(iv) PW4-Srikantaiah, the villager, who came to the spot immediately after hearing the screaming sound of PWs 1 and 2, has deposed that, engagement was performed between Accused No.1 and PW6 and thereafter, quarrel took place regarding performing of their marriage. He has further deposed that hearing the screaming sound, they went near the spot i.e., the house of deceased and noticed that deceased had fallen down in front of his house and had sustained injuries. At that time, accused persons were abusing the deceased. Thereby, the evidence of PW4 also supported the case of the prosecution.
(v) PW5-Gangalakshmamma, second wife of the deceased and mother of PW6-Savitha, has deposed about the engagement performed between Accused No.1 and PW6. Further, deposed that, herself and PW6 had gone to Bengaluru with Accused No.1. She has further deposed that Accused No.1 went to his Village and called PW6 over mobile at about 7.00 P.M. to 8.00 P.M., stating that, as deceased Siddaraju did not agree for marriage, he along with his brother had murdered her husband-Siddaraju. She has further deposed that, though her husband did not intend to perform the marriage of PW6 with Accused No.1, he had performed their engagement
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CRL.A No. 1299 of 2017for the sake of their daughter as she was in love with Accused No.1. Hence, she also supported the case of the prosecution. Further, in her cross examination, she has admitted that, even after the engagement of Accused No.1 and PW6, all of them (PW1, PW2, PW4 and PW6) were residing together with the deceased.
(vi) PW6-Savitha is the star witness in this appeal. She being the daughter of the deceased has deposed that herself and accused No.1 were in love with each other and that, though her father had not agreed to perform their marriage, he had performed their engagement. She has further stated that, her father had died on 9.4.2016. She was informed that, when her father was sleeping in the hall, accused persons had dragged him, accused No.1 assaulted him with the club and accused No.2 assaulted him with the brick. Accused No.1 had taken her mother herself and to Bengaluru even before performance of their marriage. Accused No.1, leaving both of them at Bengaluru, had himself come to the Village to speak regarding performance of their marriage and in that regard, quarrel had taken place between Accused No.1 and her father. She has further deposed in her cross examination that, her father was in the habit of consuming alcohol and further volunteered to depose that, from past 6 to 7 years, he had stopped consuming alcohol. She has further deposed that,
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CRL.A No. 1299 of 2017her father had attended her engagement with accused No.1 and he had not lodged any complaint against Accused No.1 regarding taking away of her mother and herself to Bengaluru. Hence, there was no enmity between the accused persons and her father. Therefore she supports the case of the prosecution.
(vii) P.W.7-Lakshmamma, wife of Rangaiah, elder sister of accused No.3 deposed that she has seen accused persons assaulting Siddaraju. She does not know whether deceased liked or disliked the alliance between accused No.1 and P.W.6. She further deposed that deceased Siddaraju had expressed his resentment since accused No.1 had taken P.W.6- Savitha and her mother to Bengaluru, even before marriage. In the cross-examination she deposed that she saw accused persons assaulting the deceased, and supported the case of prosecution.
(viii) P.W.8-Lakshminarasaiah, brother of accused No.3 stated that he saw the dead body lying on the floor. Police prepared the spot mahazar as per Ex.P.4 and he signed the said document. He denied the suggestion that he is making false submission before the Court, and supported the case of prosecution.
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(ix) P.W.9-Bettasiddaiah, deposed that police prepared spot mahazar as per Ex.P.4 and he signed the said mahazar. He deposed that material objects were seized from the spot, and supported the case of prosecution.
(x) P.W.10-Nagaraju, younger brother of the deceased deposed that he heard about the alleged incident. He heard that deceased was shouting that he will not perform the marriage of accused No.1 with P.W.6, and therefore, quarrel took place and the unfortunate incident happened. Thereby, supported the case of prosecution.
(xi) P.W.11-Rangaraju, deposed that on coming to know about the incident, he went to the spot and saw deceased lying on the road. The club and stone were which were at the spot were identified as M.Os.1 and 8, and supported the case of prosecution.
(xii) P.W.12-Narasamma, daughter-in-law of P.W.1 though deposed about the incident, partly turned hostile. She deposed that she heard the shouting of the deceased, went to the spot and saw the dead body.
(xiii) P.W.13-Nagaraj, deposed that he saw the dead body. The police drawn the mahazar as per Ex.P.2
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CRL.A No. 1299 of 2017and seized M.Os.1 and 4. His signature was obtained as per Ex.P.2(b) and supported the case of prosecution.
(xiv) P.W.14-Shivakumar, deposed on par with P.W.13 and stated that his signature was obtained as per Ex.P.2© and supported the case of prosecution.
(xv) P.W.15-Raghuprasad, deposed that police visited the spot and drawn the mahazar as per Ex.P.3 and his signature was marked as Ex.P.3(b), and supported the case of prosecution.
(xvi) P.W.16-Chikkanna, deposed that the police visited the spot and drawn the mahazar as per Ex.P.3(f), and supported the case of prosecution. (xvii) P.W.17-Mahesh, Assistant Engineer, Public Works Department, deposed that he prepared the sketch as per Ex.P.6 and supported the case of prosecution.
(xviii) P.W.18-Rangaraju, deposed that he issued katha extract of the house of deceased as per Ex.P.7, and supported the case of prosecution. (xix) P.W.19-Dr.Lakshmikanth, deposed that he conducted post mortem on the dead body of deceased Siddaraju, and issued the report as per Ex.P.8, and supported the case of prosecution.
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CRL.A No. 1299 of 2017(xx) P.W.20-Mallesh, CPI, Investigating Officer deposed that he received the complaint-Ex.P.1, registered a case and submitted the FIR as per Ex.P.10 to the learned Magistrate. He seized M.Os.1 to 3 and 8, conducted mahazar as per Ex.P.2 and subjected material objects to PF as per Ex.P-11. Conducted spot mahazar as per Ex.P.3 and thereafter conducted inquest panchanama as per Ex.P.4. He further deposed that he deputed the staff to apprehend the accused and accordingly, accused were apprehended and gave report as per Ex.P.12. He interrogated accused Nos.1 to 3, recorded their voluntary statements as per Exs.P.13 to 15. The photographs taken at the time of inquest were marked as Exs.P.16 and 17. He further deposed that he recorded the statements of witnesses, seized the clothes of deceased, conducted mahazar as per Ex.P.18, collected CDRS of mobile phones and filed the charge sheet against accused Nos.1 to 3. thereby, supported the case of prosecution.
15. Based on the aforesaid material on record, learned Sessions Judge proceeded to convict the accused for the offence punishable under Sections 302 and 448 of the Indian Penal Code.
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16. A careful perusal of the complaint dated 09.04.2016 lodged by P.W.1-Rangamma, depicts the engagement was performed between accused No.1 and P.W.6-Savitha, who is none other than the grand daughter of the complainant was performed about three months back. Deceased Siddaraju is the father of P.W.6-Savitha, whose engagement was performed with accused No.1. On 09.04.2016 at about 3.00 pm, when accused No.1 was walking on the road in front of the house of deceased Siddaraju, at that time, Siddaraju questioned accused No.1 as to why he took his daughter i.e., Savitha-P.W.6 and his wife to Bengaluru, even prior to the marriage. In that regard quarrel started between them. In the quarrel deceased uttered filthy language against the mother of accused No.1. Later at about 7.00 pm, accused Nos.1 to 3 barged in to the house of Siddaraju who was sleeping, dragged him to the cement road in front of the house. Accused No.1 told that they should finish Siddaraju so that he will not come in the way of his marriage with P.W.6. Accused No.3 caught hold of the hands of Siddaraju, accused No.2 assaulted Siddaraju on the forehead and right cheek with a cement brick and accused No.1 assaulted on the back of the head of Siddaraju with a wooden
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CRL.A No. 1299 of 2017club causing grievous injuries, due to which, Siddaraju, died at the spot. This clearly depicts that accused No.3 has not assaulted Siddaraju.
17. The material on record depicts that accused Nos.1 and 2 are the sons of accused No.3, who is the maternal uncle of deceased Siddaraju. P.W.6 is the daughter of P.W.5- Gangalakshmamma and deceased Siddaraju. Though engagement between accused No.1 and P.W.6 was performed, Siddaraju was not happy with the said alliance. Since accused No.1 and P.W.6 had liked each other and were willing to marry, engagement was performed. When things stood thus, accused No.1 had taken P.W.6 and her mother i.e., wife of deceased Siddaraju to his house at Bengaluru. Therefore, Siddaraju was not happy and when accused No.1 came to village on account of Ugadi festival, on 09.04.2016, at about 3.00 pm deceased Siddaraju abused accused No.1 in filthy language taking the name of his mother. Being enraged by the unconstitutional words used by Siddaraju against his mother, accused No.1 lost self control and, along with accused Nos.2 and 3 came to the house of Siddaraju at 7.00 pm on the same day i.e., on 09.04.2016, picked up quarrel and assaulted Siddaraju with
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CRL.A No. 1299 of 2017brick and wooden club. During the scuffle, Accused No.3 was holding the hands of Siddaraju. Due to the assault made by accused Nos.1 and 2, Siddaraju sustained grievous injuries and died at the spot. P.W.6 has not stated that there was enmity between her father and accused persons. None of the prosecution witnesses have whispered regarding enmity between deceased and accused persons. Since the engagement was over, the parties could have sat together and could have solved the issue amicably, in which case, the unfortunate incident would not have happened.
18. The material on record clearly depicts that when there was quarrel at 3.00 pm on 09.04.2016 between accused persons and deceased, panchayath was held and it was decided to perform the marriage between accused No.1 and P.W.6 on 13.04.2016. Inspite of the same, in the heat of passion and sudden provocation, the unfortunate incident has happened. Absolutely there is no motive for the offence. Thereby, this is a clear case falling under Exception I Section 300 of the Indian Penal Code.
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19. Exception I to Section 300 of the Indian Penal Code, reads as under:
"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."
20. A careful reading of the said provision makes it clear that 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.
21. In the present case, deceased Siddaraju -father of P.W.6- Savitha and husband of P.W.5-Gangalakshmanna, used filthy language against the mother of accused Nos.1 and 2, and wife of accused No.3. Thereby, accused persons suddenly attacked and assaulted Siddaraju and the unfortunate incident has happened. Thereby, it is culpable homicide not amounting to murder. Thereby, accused persons are liable to be punished for the offence punishable under Section 304 Part I of the Indian
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CRL.A No. 1299 of 2017Penal Code. The said aspect has not been considered by the learned Sessions Judge.
22. Our view is fortified by the dictum of Hon'ble Supreme Court in the case of Dauvaram Nirmalkar Vs State of Chhattisgarh reported in 2022 SCC OnLine SC 955, wherein, the Hon'ble Supreme Court, at paragraphs 8, 12, 13 and 17, held as under:
"8. However, in our opinion, this case will fall under Exception 1 to Section 300 of the IPC. Bhagwati Prasad Nirmalkar (PW-3), the younger brother of the appellant and the deceased, had deposed that the deceased used to frequently drink alcohol, barely interacted with the family, and used to debate and quarrel with the appellant. Nakul Ram Sahu (PW-4), the neighbour of the appellant, had similarly testified that the deceased was addicted to alcohol and his wife had left him. Dashrath Nirmalkar's addiction to alcohol, and that he was extremely abusive and ill- tempered is the common narration by Geeta Bai (PW-8), wife of Bhagwati Prasad Nirmalkar (PW-3), and Kumari Shanti Nirmalkar (PW-9), and Kumari Madhu Nirmalkar (PW-10), nieces of the appellant and Dashrath Nirmalkar. The prosecution does not dispute this position and in fact, has relied upon these facts to show motive.
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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 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-
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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 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 in the following words:
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"[T]he 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 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."
17. Applying the provocation exception, we would convert the conviction of the appellant from Section 302 to Part I of Section 304 of the IPC.
23. A careful perusal of the entire oral and documentary evidence on record clearly depicts that the prosecution has failed to prove beyond reasonable doubt, the motive for the offence and the unfortunate incident has happened after the engagement of accused No.1 with P.W.6. When deceased
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CRL.A No. 1299 of 2017abused the mother of accused No.1 in filthy language, accused persons lost self control and due to sudden provocation, in the spur of moment and heat of passion, the unfortunate incident has happened.
24. P.W.19-Dr.Lakshmikanth, who conducted post mortem on the dead body and issued the report as per Ex.P.8 has opined that cause of death is due to head injuries sustained. Ex.P.21- FSL report clearly depicts that item No.2-under wear, item No.3- banian, item No.4-lungi, item No.5-towel, item No.6- blood mix cotton, item No.7-soil, item No.8-half cement brick and item No.9-one wooden stick, were stained with human blood belonging to 'O' group. Thereby, homicidal death of deceased at the instance of accused Nos.1 and 2 is proved.
25. A careful perusal of oral and documentary evidence on record clearly depicts that as per Ex.P.1-complaint lodged by P.W.1 who is none other than the mother of deceased and sister of accused No.3 has stated with regard to assault made by accused Nos.1 and 2 only. None of the witnesses have whispered any overtact against accused No.3. All witnesses including P.W.6-Savitha, who is none other than the daughter
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CRL.A No. 1299 of 2017and P.W.5-Gangalakshmamma, wife of the deceased have stated that there was no enmity between accused persons and deceased, and that they were cordial. Thereby, learned Sessions Judge is not justified in convicting accused No.3.
26. It is submitted by learned counsel for appellants that, accused No.3 is aged about 74 years. It is not in dispute that P.W.1 is the sister of accused No.3. Accused No.1 is the son of accused No.3 and engagement of P.W.6, daughter of the deceased was performed with accused No.1. They are all relatives. Taking into consideration the mitigating circumstances and that the incident happened in the spur of moment, absolutely there is no material against accused No.3 and is liable to be acquitted.
27. On re-appreciation of the entire oral and documentary evidence on record and in the light of the principles enunciated in the judgment of the Hon'ble Supreme Court stated supra, we answer the first point raised for consideration in the present criminal appeal partly in the affirmative holding that, impugned judgment of conviction and order of sentence passed by the learned Sessions Judge calls for modification and the
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CRL.A No. 1299 of 2017impugned judgment convicting the accused Nos.1 and 2 for the offence punishable under Section 302 r/w Section 34 of Indian Penal Code has to be modified and altered into one under Section 304 Part I of Indian Penal Code and accused Nos.1 and 2 shall be sentenced to undergo Rigorous Imprisonment for TEN YEARS with a fine of `50,000/- each, and in default of payment of fine, to undergo Simple Imprisonment for a period of two years. Further, accused Nos.1 and 2 have not made out any case to interfere with the impugned judgment of conviction and order of sentence, convicting them for the offence punishable under Section 448 r/w Section 34 of Indian Penal Code and sentencing them to undergo simple imprisonment for a period of one year.
28. Further, second point raised for consideration in the present criminal appeal is also answered partly in the affirmative holding that the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge calls for modification and the impugned judgment convicting accused No.3 for the offence punishable under Section 302 r/w Section 34 of Indian Penal Code has to be set-aside and accused No.3 has to be acquitted for the said offence and,
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CRL.A No. 1299 of 2017further, accused No.3 has not made out any case to interfere with the impugned judgment of conviction and order of sentence, convicting him for the offence punishable under Section 448 r/w Section 34 of Indian Penal Code and sentencing him to undergo simple imprisonment for a period of one year.
29. For the reasons stated above, we pass the following:
ORDER
(i) Criminal Appeal No.1299/2017 is allowed in part.
(ii) The impugned judgment of conviction and order of sentence dated 20.07.2017 passed in S.C.No.5046/2016 on the file of IV Additional Sessions Judge, Madhugiri, convicting the accused Nos.1 and 2 for the offence punishable under Section 302 r/w Section 34 of the Indian penal Code and sentencing them to undergo imprisonment for life and to pay fine of `10,000/- each, in default, to undergo simple imprisonment for a period of one year, is hereby modified.
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(iii) The Accused Nos.1 and 2 are hereby convicted for the offence punishable under Section 304 Part I of the Indian Penal Code and are sentenced to undergo rigorous imprisonment for ten (10) years and to pay fine of `50,000/- each, in default, to undergo simple imprisonment for a period of two years.
(iv) The impugned judgment of conviction and order of sentence, convicting accused No.3 for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay fine of `10,000/-, in default, to undergo simple imprisonment for a period of one year, is hereby set- aside.
(v) Accused No.3-Kemparangaiah, S/o late Veeranna, is acquitted of the offence punishable under Section 302 of the Indian Penal Code.
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(vi) The impugned judgment of conviction and order of sentence, convicting accused Nos.1 to 3 for the offence punishable under Section 448 r/w Section 34 of the Indian Penal Code and sentencing them to undergo simple imprisonment for one year, is hereby confirmed.
(vii) All the sentences shall run concurrently.
(viii) The Accused No.1 and 2 are entitled to the benefit of set-off under Section 428 of the Code of Criminal Procedure.
(ix) Out of the fine amount of `1,00,000/- to be deposited by accused Nos.1 and 2, `50,000/- is directed to be paid to P.W.1-Rangamma, `25,000/- is directed to be paid to P.W.2-Radhamma and remaining `25,000/- is directed to be paid to P.W.5- Gangalakshmamma, on proper identification.
(x) The concerned Jail Superintendent is directed to release Accused No.3, forthwith, if not required in any other case.
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(xi) Office is directed to return the Trial Court records.
Sd/-
JUDGE Sd/-
JUDGE rs- paragraphs No. 1 to 14(vi) kcm- paragraphs No. 14(vii) to till end List No.: 1 Sl No.: 4