Karnataka High Court
Vaddar Yallappa S/O Sanneppa vs The State Of Karnataka on 23 December, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MS.JUSTICE J.M. KHAZI
CRIMINAL APPEAL NO.100112/2019
BETWEEN
VADDAR YALLAPPA S/O SANNEPPA
AGED ABOUT: 32 YEARS,
R/O: BHOVI COLONY, H.B. HALLI,
TQ: H.B. HALLI, DIST: BALLARI-583212.
...APPELLANT
(BY SRI.S.L.MATTI, ADV.)
AND
THE STATE OF KARNATAKA
BY THE C.P.I. H.B.HALLI CIRCLE,
H.B. HALLI POLICE STATE, H.B. HALLI,
DIST: BALLARI-583212,
REP. BY ADDITIONAL SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE PASSED BY THE III-
ADDITIONAL DISTRICT & SESSIONS JUDGE, BALLARI (SITTING
AT HOSAPETE) IN S.C.NO.5027/2017, DATED 15.11.2018 AND
ORDER OF SENTENCE DATED 16.11.2018 FOR OFFENCES
PUNISHABLE UNDER SECTIONS 302, 324 & 504 OF IPC.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 15.12.2021, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by his conviction and sentence for the offences punishable under Sections 302, 324 and 504 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC" for short), the appellant/accused has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C." for short).
2. For the sake of convenience, the parties are referred to by their rank before the Trial Court.
3. The case of the prosecution is that the daughter of complainant's sister by name Shanthamma was given in marriage to accused Vaddar Yallappa. They are having 4 daughters. There was a site standing in the name of Renukamma, the mother of the accused. PW.7 Shanthamma, the wife of accused was insisting that since they are having 4 daughters, the site standing in the name of Renukamma be transferred to her name. For this reason 3 there used to be frequent quarrel between the accused and his wife PW.7 Shanthamma. On 05.09.2016 also at 05:00 p.m. a quarrel took place between accused and PW.7 Shanthamma with regard to the above subject. The accused became angry and saying that she is not allowing him to live peacefully and started assaulting her with the handle of the axe on her back and body. When deceased Hanumawwa, who is no other than the maternal grandmother of PW.7 Shanthamma, intervened and came to her rescue and advised the accused, he became enraged and saying that she being a old women is giving advice to him (¯Éà ªÀÄÄ¢UÀÆ¨É ¤Ã£ÀÄ §Ä¢Ý ºÉüÀ®Ä §A¢¢ÝÃAiÀiÁ). So saying he assaulted the deceased with the handle of the axe on her head, ear and right elbow, resulting in bleeding injury. The deceased was shifted in the Ambulance to Hagari Bommanahalli Government Hospital. However, the doctors after examining, declared her dead and thereby accused has committed the offences punishable under Sections 302, 307 and 504 of IPC.
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4. Charge came to be framed for the offences punishable under Sections 302, 307 and 504 of IPC. Accused has pleaded not guilty and claimed trial.
5. In support of the prosecution case in all 22 witnesses are examined as PWs.1 to 22 and Exs.P1 to 35 and MOs.1 to 11 are marked.
6. The statement of accused is recorded under Section 313 of Cr.P.C., he has denied the incriminating material in the evidence led by the prosecution. In reply to question No.21, he has stated that the Police took him near Galemma Temple and captured few photographs.
7. Accused has not chosen to lead defence evidence on his behalf.
8. After hearing the arguments of both sides, the Trial Court came to the conclusion that the charges levelled against the accused are proved and convicted him for the offences punishable under Sections 302, 324 and 504 of IPC and sentenced him as detailed in the impugned judgment and order.
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9. During the course of arguments, the learned counsel representing the accused submitted that the impugned judgment and order is not in accordance with law and liable to be set aside. The prosecution has failed to establish the guilt of the accused beyond the reasonable doubt. Motive, preparation and actual incident are not proved. The learned Trial Judge has not examined the evidence of the witnesses properly. There is no appreciation of the oral and documentary evidence in proper perspective. PWs.1, 2 and 7, who are eye witnesses have turned hostile.
10. The learned counsel representing the accused would further submit that the deceased fell in drainage and sustained injuries and this aspect has not been appreciated by the Trial Court and prays to allow the appeal.
11. Relying upon the decisions reported in AIR 2019 SC in the matter of Khuman Singh V/s. State of Madhya Pradesh and AIR 2020 SC 315 in the matter of Ananth Kamilya V/s. State of Bengal, as an alternative prayer, the learned counsel representing the accused 6 submits that the incident has taken place in a sudden quarrel and during altercation and spur of moment the accused caused injury on the head of the deceased and there was no premeditation and therefore the case comes under exception 4 of Section 300. He submits that in case this Court comes to the conclusion that accused is not entitled for acquittal his conviction may be altered to Section 304 of IPC.
12. On the other hand, the learned Additional State Public Prosecutor representing the State supported the impugned judgment and submits that PWs.1, 2, 7 and 8 are the eye witnesses to the incident. All of them have supported the prosecution case. However, subsequently accused has got PWs.1, 2 and 7 recalled and at this stage they have turned hostile and tried to save the accused by saying that the deceased sustained injury due to fall in the drain. However, this defence taken by the accused is contrary to the medical evidence. He would further submit that the weapon used by the accused to assault the deceased was recovered at his instance. So also the blood stained clothes of the accused were seized and the FSL 7 Report proves that they are stained with blood of human origin. Appreciating the oral and documentary evidence placed on record, the Trial Court has come to a correct conclusion and imposed the punishment and there is no perversity in the said conclusions.
13. So far as the alternative argument that offence under Section 302 of IPC to be converted into 304 of IPC, the learned Additional State Public Prosecutor would submit that the evidence placed on record clearly establishes the fact that accused assaulted his wife i.e., PW.7 Shanthamma as well as deceased repeatedly with the handle of the axe. The manner in which accused assaulted PW.7 as well as the deceased prove his intention to cause the death of the deceased. At least intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused could be attributed to the accused. He would further submit that there was no provocation let alone a grave and sudden provocation either by PW.7 Shanthamma or the deceased so as to bring the case under exception 4 to Section 300 of IPC and there are no 8 grounds to interfere with the impugned judgment and order and prays to dismiss the appeal.
14. We have heard elaborate arguments of both sides and perused the records.
15. PWs.1, 2, 7 and 8 are eye witnesses to the incident. PW.1 Ajjaiah is the son of deceased. PW.2 Nagaveni and PW.7 Shanthamma are sisters. They are the granddaughters of the deceased. PW.7 is also the wife of the accused. PW.8 Karibasappa is related to deceased, accused as well as PWs.1, 2 and 7.
16. The complaint averments reveal that the deceased Hanamawwa and her husband Choudappa are having 2 sons and a daughter. Complainant is one of their son. PW.7 Shanthamma is the granddaughter of Hanamawwa i.e., her daughter's daughter. The mother of accused i.e., Renukamma was owning a site. Though no document is produced to evidence the same, the fact that Renukamma was owning a site is not disputed by the accused. Infact a suggestion is made to PW.7 Shanthamma, the wife of the accused that she was 9 pressurizing the accused to transfer the said site to her name. During the course of their evidence, PW.1 Ajjaiah PW.2 Nagaveni, PW.7 Shanthamma and PW.8 Karibasappa have deposed regarding Renukamma the mother of accused owning a site and there used to be frequent quarrel between the accused and PW.7 Shanthamma regarding the said site.
17. The evidence of PWs.1, 2, 5, 7 and 8 establish the fact that all these persons are residing in the same vicinity. PWs.1, 2, 7 and 8 have deposed in unequivocal terms that on the date of incident at about 05:00 p.m. accused was quarrelling with the complainant and when he started assaulting the complainant with the handle of the axe, deceased Hanamawwa intervened and accused saying that she is a old hag and always comes to the rescue of PW.7 Shanthamma and so saying he assaulted deceased on her head, ear and right hand elbow with the handle of the axe, as a result of which she died on the spot. Though complainant and others tried to make her drink water they realized that she is not alive. They called 108 Ambulance 10 and shifted deceased to the Hospital, but the Doctors informed that she is already dead.
18. PW.1 is cross-examined suggesting that accused is a drunkard and he was not earning and it is the complainant, who was taking care of his family and whenever accused used to involve in fighting, he used to intervene and rescue. These suggestions supports the case of the prosecution and explain the presence of PWs.1, 2 and 8 at the scene of occurrence when accused started fighting with his wife i.e., PW.7 Shanthamma.
19. As already discussed PWs.1, 2 and 7 are relatives of the accused. At the first instance they have supported the prosecution case and infact during the cross-examination by the defence, PW.2 has denied that when the incident took place she was not at all present at the scene of occurrence and she is giving false evidence at the instance of Police. She has specifically stated that after assaulting the deceased, accused ran away with the handle of the axe. Similarly, during her cross-examination, at the first instance PW.7 Shanthamma, who is the wife of the 11 accused has denied that accused did not assault either her or the deceased with MO.1 and that CW.4 (PW.2) and CWs.14 to 16 were not present at the scene of occurrence and that due to ill will she is deposing falsehood. When suggested that the handle of the axe would be made with hard wood, PW.7 has replied that in their house they had axe handle prepared out of Bamboo which is MO.1.
20. During his cross-examination PW.8 has specifically stated that when the incident took place he was present at the spot. He has denied the suggestion that deceased was a drunkard and she died due to fall in the drain (channel) and that he was not present at the scene of occurrence and due to ill will he is deposing falsely. However, the defence has not established that this witness was having any ill will against the accused.
21. It is pertinent to note that subsequently the accused has got PWs.1, 2, 7 and 8 recalled and at this stage PWs.1, 2 and 7, who are related to the accused, in their desperation to help him have turned hostile. During his further cross-examination, PW.1 has admitted that he 12 went to the spot after the incident and as such, he has not witnessed the same. However, he has denied that even though he is not having any information about the incident, he is giving false evidence.
22. After her recall, PW.2 Nagaveni has admitted that her house is little far away from the scene of occurrence and by the time she went there, the deceased had fallen down dead and she has not seen the assault made by the accused. During her cross-examination by the prosecution, she has claimed that before the Police she has stated that deceased died due to fall in the drain. However, her statement before the Police does not have any averment to that effect.
23. Similarly, PW.7 Shanthamma, the wife of accused during her further cross-examination after recall has tried to help the accused by admitting that she and deceased fell down in the drain and sustained injuries. But no suggestions are made to PW.18 Dr.B.Padmavathi, the Medical Officer, who has treated PW.7 that the injury sustained by her are possible if a person falls in a drain. 13 However, PW.7 has denied that deceased was a drunkard. She has also denied that on the date of incident, there were only verbal exchange and accused did not assault the deceased. Infact she has volunteered and stated that when accused attempted to threaten her, deceased rushed there (implying that when accused was assaulting her, deceased came to her rescue). She has admitted that she was pressurizing the accused to transfer the property to her name. This very suggestion supports the case of prosecution that this was the reason for the frequent quarrel between the accused and PW.7. When questioned about their evidence supporting the prosecution case during the examination-in-chief, PWs.2 and 7 have claimed that Police pressurized them to give such statement, but they have not complained either to the Court or to the higher Police Officials about it.
24. In fact, during the course of her evidence, PW.7 Shanthamma has deposed that after receiving the blows when the deceased was falling down, PW.2 and CWs.14 to 16 caught hold of her. This piece of evidence of PW.7 is not disputed by the defence. It falsifies the 14 defence of the accused that both deceased and PW.7 fell in the drain and sustained injuries. It also falsifies the subsequent claim of PW.2 that she went to the spot after the incident and as such, she has not witnessed the same and that she has stated before the Police that deceased died due to fall in the drain which is not forthcoming in her statement under Section 161 of Cr.P.C. All these factors would establish that at the first instance in spite of deposing as per the prosecution case, subsequently PWs.1, 2 and 7 have turned hostile only to help the accused.
25. It is pertinent to note that PW.8 Karibasappa is also recalled as done in case of PWs.1, 2 and 7. However, during the further cross-examination by the defence, he has denied that he could not witness the incident as there was heavy crowd gathered at the scene of occurrence. He has specifically stated that accused assaulted the deceased with the handle of the axe, but he did not try to rescue her. He has denied that as he was not present at the scene of occurrence, he did not make any attempt to rescue the deceased. Merely because this witness did not go to the rescue of the deceased, it cannot be presumed that he was 15 not present when the incident took place. PW.8 has denied that by the time he saw the deceased, she was laying in a pool of blood. He has also denied that even though deceased died due to fall in the drain, he is deposing falsely since the accused was resisting transfer of property in the name of his children. In spite of PWs.1, 2 and 7 who are the close relatives of the accused turning hostile and resiling from their earlier statement, PW.8 has stood to his grounds and maintained his testimony that accused assaulted his wife i.e., PW.7 Shanthamma as well as deceased with the handle of the axe as a result of which, PW.7 and deceased sustained injuries, while deceased succumbed to the same.
26. The evidence of PWs.1, 2 and 7 at the first instance supporting the prosecution case vis-à-vis after they turned hostile to the prosecution is to be examined and appreciated with reference to the medical evidence. PW.18 Dr. Padmavathi is the Medical Officer who has treated PW.7 Shanthamma. She has deposed that she was working as Medical Officer at H.B.Halli from November- 2015 to March-2017. On 05.09.2016 at about 6:30 p.m. 16 she has examined CW.13 Shanthamma (PW.7) who was brought with the history of assault. She noticed multiple abrasions over her back, shoulder and all over the body and in her opinion the said injuries are simple in nature. The wound certificate issued by her is marked as Ex.P-25 and she has deposed that such injuries are possible if assaulted with MO.1. During her cross-examination, she has admitted that such injuries are possible due to fall on stone. However, no suggestion is made to this witness that such injuries are possible if a person falls into the drain. It is pertinent to note that no suggestion is made to PW.18 that PW.7 has not sustained injuries due to assault. If at all PW.7 Shanthamma had sustained injuries due to fall, there was no need for giving the history as due to assault. At the earliest available opportunity, she has given the history of the injuries sustained by her as assault which supports her testimony in the examination-in-chief.
27. PW.14 Dr. Rajesh has conducted the postmortem examination of the deceased as per the report at Ex.P-19. He has deposed that he noticed the following injuries;
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i) A deep cut wound on the scalp
measuring 8X2X2 Cm with heavy
bleeding.
ii) A cut wound over the right ear with
bleeding.
iii) Swelling over the right hand.
28. He has further deposed that on inside
examination he noticed fracture of scalp with hemorrhage. He has given the cause of death as due to head injury and bleeding inside the brain. Deposing with regard to the opinion given about the weapon used, he has stated that after examining MO.1 he has given opinion at Ex.P-21 that the injury suffered by the deceased is possible if assaulted with MO.1. During his cross-examination, though he has admitted that death of a person could be caused if he falls on a rock, but volunteered that it depends on the size of the rock. However, he has denied the suggestion that the injuries noted in the Postmortem Report at Ex.P-19 are possible due to fall in the ditch in an inebriated state. No suggestion is made to this witness that the injuries as detailed in Ex.P-19 are possible due to fall in a drain. Even where the word ditch suggested to PW.14 is accepted as drain, the reply given by PW.14 that such injuries are not 18 possible due to fall in the ditch (drain) falsify the suggestions made to and accepted by PWs.1, 2 and 7. Consequently, we have no hesitation to hold that as an after thought, PWs.1, 2 and 7 have changed the version by deposing that PWs.7 and deceased sustained injury due to fall in the drain. Consequently, we hold that their evidence in the examination-in-chief is admissible and it corroborates the documentary evidence placed on record by the prosecution.
29. At this stage, it is relevant to refer to the decision of the Hon'ble Supreme Court reported in (2015) 3 SCC 220 in the matter of Vinodkumar V/s. State of Punjab, wherein it is held that even if a witness is characterized as a hostile witness, his evidence is not completely effaced. Such evidence remains admissible in trial and there is no legal bar to base a conviction upon such testimony, if corroborated by other reliable evidence. Similarly in the case reported in (2012) 4 SCC 327 in the matter of Bhajju @ Karan Singh V/s. State of Madhya Pradesh, while discussing the admissibility and probative value of the testimony of hostile witness the Hon'ble Apex 19 Court held that it is admissible to use the examination in chief as well as the cross examination of such witness in so far as it supports the case of the prosecution. Referring to the factors and reasons for witnesses turning hostile, the Hon'ble Apex Court, in the case reported in (2017) 1 SCC 529 in the matter of Ramesh and Others V/s. State of Haryana has held that (1)Threat/ Intimidation, (2)Inducement by various means, (3)Use of muscle and money power by the accused, (4)Use of stock witnesses, (5)Protracted trials, (6)Hassle faced by the witnesses during investigation and trial and (7)Non-existence of any clear cut legislation to check hostility of the witnesses are some of the reasons for witnesses turning hostile. As in the present case accused being a close relative of PWs.1, 2 and 7 the possibility of they trying to save the accused cannot be ruled out. The Hon'ble Apex Court held that, it may be called as culture of compromise. However, merely because some of the witnesses have turned hostile, the court cannot turn away its face. On the other hand it increases the responsibility of the Court to examine such evidence and to ascertain whether inspite of they turning 20 hostile, the prosecution has succeeded in establishing the charges against the accused.
30. After registering the case, the Investing Officer has conducted the Inquest on the dead body on 06.09.2016 from 07:00 to 09:00 a.m. in the presence of PWs.4 and 10 and recovered the cloths of the deceased at MOs.5 to 7. Even though during his examination in chief PW.4 has stated that when he went to see the dead body, people were talking that deceased was addicted to drinking and she sustained injury on account of fall due to slipping, admittedly PW.4 is not an eye witness to the incident. As a witness to the inquest his evidence has limited scope and therefore his say that he came to know that deceased sustained injury due to slipping is hearsay and does not carry any evidentiary value.
31. The evidence of PW.3 prove the spot mahazar at Ex.P-2. It is supported by the sketch at Ex.P-3 which is prepared by PW.15 Shaikh Ahmed, Assistant Engineer, PWD. Though a suggestion is made to this witness that he did not visit the spot and that he has created Ex.P-22, the 21 contents and veracity of this document is not seriously tested by his cross examination. PW.17 Sayyad Shafiulla is the owner of the house where the incident has taken place. Ex.P-24 is the Demand Register extract of the said house. It is standing in the name of Sayyad Noorjahan W/o. Sayyad Shafiulla (PW.17).
32. After the accused was arrested, on the basis of his volunteer statement, the Investigating Officer has recovered MO.1, the weapon of offence i.e., handle of axe as well as the blood stained clothes of the accused through Ex.P-11. PWs.6 and 9 are the witnesses to this mahazar. These two witnesses have supported the prosecution case and deposed that accused led them near Galemma Temple and from near a tree took out MO.1 and at that time Exs.P12 to 16 photographs are taken. They have also deposed that at Police Station accused removed his blood stained Baniyan at MO.9 and blood stained Lungi at MO.8 and they have been seized through Ex.P-11. Even though these two witnesses are cross-examined at length nothing worthy is elicited to disbelieve their testimony. During the course of his statement under Section 313 of Cr.P.C. in 22 reply to question No.21 accused has stated that Police took him near Galemma Temple and captured few photographs. No such suggestions are made to PWs.6 and 9 who are witnesses to the seizure mahazar and PW.20 M.Varadaraju, the Investigating Officer. Therefore, this reply of the accused does not assume any importance.
33. A suggestion is made to PW.6 that the blood stains on the Baniyan and Lungi of the accused were due to injury sustained by him. Ofcourse PW.6 has denied the said suggestion. The accused has not taken up a defence that he had sustained any injury and consequently this suggestion has no basis. However, it supports the prosecution case that MOs.9 and 8 belong to accused. It is pertinent to note that Ex.P-11 also speaks about the accused pointing out the place of incident. Admittedly the incident took place out side the house of the accused and it was within the knowledge of everyone and therefore this part of the mahazar does not assume any significance. Thus through the testimony of PW.6 and 9 in as much as Ex.P-11 the prosecution has proved the recovery of MO.1 23 the weapon of offence as well as blood stained Baniyan and Lungi of the accused.
34. Ex.P-26 is the FSL Report with regard to the blood stained mud from the spot, cloths of the deceased, the axe handle, blood stained Baniyan and Lungi of the accused. PW.19 Dr. Shrividya is the Scientific Officer who has examined these articles and given report at Ex.P-26. Her evidence coupled with Ex.P-26 prove that the blood stained mud from the spot, cloths of the deceased, the axe handle, blood stained Baniyan and Lungi of the accused were stained with blood of human origin of 'B' Group. It is pertinent to note that in Ex.P-26 the weapon examined is described as Axe. It is nobodies case that accused used axe to assault the deceased. It is only the handle of the axe. Infact the acknowledgment received from the RFSL, Kalaburgi indicate that along with the remaining articles, 2 ½ ft., long blood stained axe wood (PÉÆqÀ° PÁªÀÅ) is received for examination. It appears by mistake in Ex.P-26 the weapon is described as axe instead of handle of the axe. Infact this aspect is not at all disputed by the defence. 24
35. Ex.P-26 coupled with the testimony of PW.19 Dr.Srividya establish the fact that MO.1 was discovered at the instance of accused as well as his clothes were stained with human blood of 'B' Group, so also the blood stained cloths of deceased and the mud collected from the scene of occurrence. This piece of evidence falsifies the defence of the accused that the deceased as well as PW.7 Shanthamma sustained injuries due to fall in the drain. This also falsifies the subsequent testimony of PW.1, 2 and 7 that the deceased died due to fall in the drain and we have no hesitation to hold that in the light of the ratio in the decision of the Hon'ble Apex Court in Bhajju's and Vinodkumar's case referred to supra, their testimony at the first instance is reliable and admissible and only to help the accused, subsequently they have turned hostile. We have carefully examined the testimony of PWs.1, 2, 7 and 8 who are the eye witnesses as well as the other witnesses. Coupled with the evidence of the Investigating Officers the prosecution has proved the allegations against the accused beyond reasonable doubt.
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36. As an alternative argument, the learned counsel representing the accused submitted that in the event of this Court coming to the conclusion that accused is responsible for causing the death of the deceased, it would attract the provisions of exception 4 of Section 300 of IPC punishable under Section 304 of IPC. Exception 4 to Section 300 of IPC reads as follows:
"Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."
37. The plain reading of this provision makes it amply clear that the offence must have been committed by the offender without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The reading of this provision makes it 26 clear that the incident should have occurred without premeditation, in a sudden fight and in the heat of passion upon such quarrel and that the offender not taken undue advantage or acted in a cruel or unusual manner. As evidence from the material placed on record, in the present case, the accused has indiscriminately assaulted his wife PW.7 Shanthamma and when deceased intervened and came to her rescue, by referring to her as a old hag and that she always come to advice him, he has assaulted the deceased with such a force that the deceased has sustained grave injuries to her head, ear and right elbow and she has died on the spot. As evident from the testimony of PW.7 that PW.8, CWs.4 and 16 were present and PW.8 and CW.14 though catch hold of her and thereby prevented the deceased from falling down, they could not prevent the accused from assaulting the deceased giving the fatal blows. Absolutely there was no sudden fight or quarrel so as to say that, in a heat of passion, the offence was committed by the accused.
38. Having regard to the oral and documentary evidence placed on record, we are of the considered 27 opinion that this case does not attract the provisions of exception 4 to Section 300 of IPC punishable under Section 304 of IPC. In Khuman Singh's case, referred to supra, there was sudden fight between accused and deceased leading to the assault by the accused. In Ananth Kamilya's case also accused during altercation and in a spur of moment caused the injury on the head of the deceased by a club (¯Áp) which was lying there. Deceased died after seven days while undergoing treatment. In the present case, after accused assaulting PW.7, when deceased intervened and came to her rescue, he has inflicted three major blows to the deceased, one on the head, one on the ear and one on her arm and the deceased died on the spot. Therefore, having regard to these aspects, we hold that these two decisions are not applicable to the case on hand. Appreciating the oral and documentary evidence placed on record, the Trial Court has come to a right conclusion and convicted the accused for the offences punishable under Sections 302, 324 and 504 of IPC and imposed the punishment appropriately. We 28 find absolutely no grounds to interfere with the same. In the result, the appeal fails and accordingly it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE PJ / Rsh