Karnataka High Court
Sri Nage Gowda vs State Of Karnataka on 25 August, 2020
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
CRIMINAL APPEAL NO.624/2015
BETWEEN:
Sri Nage Gowda,
W/o Late Made Gowda,
Aged 62 years,
Residing at
Damadahalli Village,
Pandavapura Taluk,
Mandya District-571434.
...APPELLANT
(BY SRI. NANJUNDA GOWDA M.R., ADVOCATE)
AND:
State of Karnataka
By Srirangapattana Police
Mandya District-571438.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 9.4.2015 PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA
SITTING AT SRIRANGAPATNA IN S.C. No.5038/2013 -
2
CONVICTING THE APPELLANT/ ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING
JUDGMENT
The accused-appellant has filed the present Criminal Appeal against the impugned judgment and Order of conviction dated 09.04.2015 made in S.C.No.5038/2013 on the file of the III Additional District and Sessions Judge, Mandya, sitting at Srirangapatna, sentencing the accused to under go imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months, for the offence punishable under Section 302 of the Indian Penal Code.
I - FACTS OF THE CASE
2. It is the case of the prosecution that the accused-Nagegowda had two daughters and a son, all married and there was a dispute between Nagegowda i.e., the accused and his son Anilkumar @ Niranjan with reference to the house and other properties. Anilkumar 3 along with his wife and children was residing separately and they used to quarrel frequently with reference to the landed property. About 7-8 months back, Anilkumar had demanded division in the property and quarreled with Nagegowda-accused. About three days prior to lodging of the complaint, Anilkumar had harvested tender coconut. In that regard, accused had lodged a complaint with the jurisdictional police on 15.01.2013 against the deceased stating that the deceased had quarreled with him, even though he had already partitioned the property and gave his share. Accordingly, the police registered NCR.
3. On the next day, i.e., on 16.01.2013 at 8.45 pm, near the house of the accused i.e., near Huchhamma temple of Harijana colony, the complainant heard the sound of quarrel. Complainant, Jayaprakash and Ramegowda went near the farm house of Ramegowda and they proceeded towards the house of the accused to enquire the same. At that time, accused by holding a sickle in his hand came there and when 4 they enquired him, he had replied that his son- Anilkumar came to assault him and therefore, he himself has assaulted Anilkumar with sickle and he is lying on the ground. Immediately, they went to the house of Nagegowda and found Anilkumar in a pool of blood and he was dead. He had sustained injuries on his left head, ear, cheek and left hand. Accordingly, a complaint came to be lodged on the same day at about 10.30 pm. On the basis of the complaint, the investigation was conducted, charge sheet was filed and the matter was committed to the Court of Sessions.
4. In order to prove its case, the prosecution examined P.Ws.1 to 29 and marked the documents Exs.P.1 to 43 and material objects M.Os.1 to 9. After completion of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded and he has denied all the incriminating evidence appeared against him by the prosecution witnesses and has not adduced any evidence. 5 II FINDING RECORDED BY THE LEARNED SESSIONS JUDGE
5. The learned Sessions Judge considering both oral and documentary evidence on record has recorded a finding that the prosecution has proved beyond all reasonable doubt that on 16.1.2013 at about 8.45 p.m. within the jurisdiction of Srirangapatna Police Station, in front of the house of the accused situated near Hucchamma Temple of Harijana Colony, Damadahally village of Pandavapura Taluk with an intention to kill Anilkumar @ Niranjan with reference to enmity with him regarding immovable property assaulted him with sickle on his left head, ear, back side head, cheek, over the legs and caused bleeding injury and committed his murder thereby attracting the provisions of Section 302 of IPC. Accordingly, the learned Sessions Judge proceeded to convict the accused under the provisions of Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of 6 months for the said 6 offence. Hence, the present appeal is filed by the accused.
6. We have heard the learned Counsel for the parties to the lis.
III - ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE APPELLANT
7. Sri Nanjunda Gowda M.R., learned Counsel for the accused contended with vehemence that though the incident has taken place on 16.1.2013 at 8.45 p.m., the complaint Ex.P.3 was lodged at 1.30 p.m. on the same day stating that there was a dispute between the accused - Nagegowda, who is father and his son - deceased Anilkumar @ Niranjan with regard to house and other landed properties. There is no incriminating material produced by the prosecution against the accused to establish the charge framed on 6th May 2014 to attract the provisions of Section 302 of IPC. He would further contend that, out of prosecution witness P.Ws.1 to 29, the majority of witnesses (i.e., 21 7 witnesses) have turned hostile and they have not supported the prosecution case. Only P.Ws.14, 15, 25, 28 and 29, who are public servants have supported the case of the prosecution.
8. The learned Counsel for the accused would further contend that P.W.2 - Bhagyamma, wife of the accused and mother of the deceased; P.W.26 - Manoj son of the deceased and grand son of the accused and P.W.27 - Rathnamma, wife of the deceased and daughter-in-law of the accused have turned hostile and has not supported the case of the prosecution. There are no eye witnesses to the incident alleged to have been occurred as well as the last seen theory and the entire case of the prosecution is based on the circumstantial evidence, the burden is upon the prosecution to establish the complete chain of events and to prove the same. In the absence of the same, sentencing the accused for imprisonment of life for the offence punishable under Section 302 IPC is without any basis. 8
9. The learned Counsel for the accused further contended that as deposed by P.W.14 - Dr. Srinivas S.R., the doctor who conducted autopsy on the dead body of the deceased has opined that the cause of death was due to hemorrhagic shock following loss of blood as a result of multiple lacerated sharp wounds over the body including the head. He would further contend that in the absence of any corroborative evidence, convicting the accused on the basis of Ex.P.41 - the Forensic Science Laboratory report is illegal and perverse. He would further contend that the alleged sickle - M.O.4 used by the accused to commit the murder of the deceased was neither sent to the finger print expert, nor there were any blood stains on it and therefore, he contended that the learned Sessions Judge proceeding to convict the accused on assumptions and presumptions is without any basis and is liable to be set aside.
9
10. In support of his contentions, the learned Counsel for the accused relied upon the following the dictums of Hon'ble Supreme Court:
i) Bhimapa Chandappa Hosamani and Others
-vs- State of Karnataka in Appeal (Criminal) 367 of 2005 Disposal Date 20.9.2006 with regard to motive where the trial Court as well as the High Court have not accepted the evidence regarding existence of motive as alleged by the prosecution (P.W.1) witness in the First Information Report, when infact she herself in the course of her deposition has denied the existence of such a motive, and the High Court has agreed with the view of the trial Court on this issue, the Hon'ble Supreme Court has held that it is well settled that in order to bring home the guilt of an accused, it is not necessary for the prosecution to prove the motive. The existence of motive is only one of the 10 circumstances to be kept in mind while appreciating the evidence adduced by the prosecution. If the evidence of the witnesses appears to be truthful and convincing, failure to prove the motive is not fatal to the case of the prosecution and the law on this aspect is well settled.
ii) Govindaraju alias Govind -vs- State by Sriramapuram P.S. and Another reported in 2012 Crl.L.J. 1991 to the effect since no person from FSL was examined, an adverse inference against the prosecution can be drawn for not examining any material witnesses and recovery of weapon was not in conformity with the provisions of law as held at paragraphs-27, 29, 30, 32, 39, 40, 42, 43, 47 and 49.
11In view of the above, he sought to allow the appeal by setting aside the impugned judgment and order of conviction.
IV - ARGUMENTS ADVANCED BY THE LEARNED ADDITIONAL STATE PUBLIC PROSECUTOR
11. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor for the respondent- State sought to justify the impugned judgment and order of conviction and contended that as all the prosecution witnesses have turned hostile, the case has been decided by the learned Sessions Judge on the basis of circumstantial evidence and last seen theory of P.W.26-the grand son of the accused and son of the deceased. He would further contend that mere non- examination of the authority, who issued the FSL report Ex.P.41 is not at all fatal to the prosecution case in view of the provisions of Sections 293 and 294 of the Code of Criminal Procedure and a presumption has to be drawn during the course of their official business. 12
12. The learned Additional SPP would further contend that motive aspect on the part of the accused to assault and cause the death of the deceased was with regard to a dispute that arose between them for a landed property. He further contended that use of the material object M.O.4 - sickle by the accused to assault the deceased itself amounts to murder. Even considering both oral and documentary evidence on record, the Court below has rightly convicted the accused under the provisions of Section 302 of IPC and sentenced him to undergo imprisonment for life with a fine of Rs.10,000/- and as the same is just and proper and therefore, this Court cannot interfere with the same under the provisions of Section 374(2) of Cr.P.C. Therefore, he sought to dismiss the appeal.
13. In view of the rival contentions urged by the learned Counsel for both parties, the point that arise for our consideration in the present appeal is: 13
"whether the accused-appellant has made out any case for interference with the impugned judgment and order of conviction sentencing him to undergo imprisonment for life and also to pay a fine of Rs.10,000/- for the offence punishable under Section 302 of IPC and in default of payment of fine to undergo simple imprisonment for a period of six months in the facts and circumstances of the case?"
14. We have given our anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material including original records carefully.
V - WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION
15. In order to re-appreciate the oral and documentary evidence on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.
14
16. P.W.1 - Muralidhara, who is the complainant and cousin brother of the deceased i.e, accused uncle's son has deposed that the accused was residing in the farm house and deceased was residing Dyamadahalli village. According to him, the deceased Anil Kumar had been to the farm house of the accused. As it was informed to him by the villagers that there was a quarrel between the accused and the deceased, he along with P.W.3-Jayaprakash and P.W.4 - Ramegowda went near the house of the accused and by that time, Anil Kumar was already murdered and his body was lying near the farm house of Nagegowda as per the photographs shown to him as per Exs.P.1 and 2. He does not know how Anil Kumar died and when he had been there, except dead body of Anil Kumar, no other person were found there. In his cross-examination, he has admitted that there was a property dispute between the accused and the deceased and hence, the deceased and his family members were residing in the village and three days prior to the incident, the deceased had quarreled with the accused (his father) with regard to removal of tender 15 coconut and therefore, the accused had lodged a complaint with the jurisdictional police on 16.1.2013 against his own son, who ultimately has not supported the case of the prosecution.
17. P.W.2 - Smt. Bhagyamma - wife of the accused and mother of the deceased, P.W.6 Puttegowda, villager of Damadahally village of Pandavapura Taluk, P.W.8 Ashoka and P.W.9-Mahesha, who are panch witnesses to the seizure of M.O.4 - sickle as per seizure mahazar - Ex.P.11, have turned hostile and have not supported the case of the prosecution.
18. P.W.3 Jayaprakash, P.W.4 Ramegowda and P.W.5 Thimmappa, who are panchathdars and before whom extra judicial confession was made by the accused, have spoken to that the accused had assaulted the deceased in front of their house and that his dead body was lying on the ground and they have not supported the case of the prosecution. 16
19. P.W.10 - Harisha and P.W.23 - Devanath, panch witnesses to the spot mahazar; P.Ws12, 16 and 24 panch witnesses to the inquest mahazar; P.W.14 the doctor, who has conducted postmortem on the dead body of the deceased; P.W.15 an Engineer, who has issued certificate certifying that at the time of incident there was electric supply at the scene of offence; P.W.17 and P.W.19 are panch witnesses to the seizure of clothes of the deceased; P.W.18 is the photographer, who has taken photograph of the dead body and the also recovery of M.O.4 - sickle; P.W.20 is the police constable, who apprehended the accused and produced him before the Investigating Officer along with other police officers; P.Ws.21 and 22 are the panch witnesses to the seizure of clothes as per the seizure mahazer; P.W.25 is the Police Officer, who received the complaint from the accused prior to the incident; P.W.26 is the son of the victim; P.W.27 is the wife of the victim; P.Ws.28 and 29 are the Investigating Officers. 17
20. Out of all these witnesses, except P.W.11 and Official witnesses, all other witnesses i.e., P.Ws.1 to 7, 26 and 27 as already stated above have turned hostile. The evidence of P.Ws.1, 11 and 26 and Ex.P.33 according to the prosecution have proved that there was a property dispute between the accused and the deceased. In the complaint - Ex.P.33, it is stated by the complainant that even though he had given a share to his son, he was quarreling with him and abusing him under the influence of alcohol. Ex.P.29 - Assessment extract show that the house is standing in the name of P.W.2 - wife of the accused. Based on the aforesaid evidence, the trial Court has proceeded to convict the accused.
VI - CONSIDERATION
21. Having re-appreciated the entire oral and documentary evidence on record, it is clear that there was a dispute between the accused - father and deceased- son of the accused with regard to landed property which ultimately ended in the death of the 18 deceased by the accused using M.O.4 sickle in a spur of moment without any pre-meditation.
22. Though the learned Additional State Public Prosecutor sought to justify the impugned judgment contending that there was motive for murder of the deceased, the fact remains that as per the material on record, the deceased is the only son to the accused along with two daughters. According to the accused, in the complaint Ex.P.33. dated 15.1.2013 lodged by the accused, that even though there was division in the landed property, and he had given a share to his son, he was unnecessarily quarreling with him under the influence of alcohol. When the unfortunate incident occurred on 16.1.2013, the deceased was influenced by the alcohol which he had on the previous day. Though there was dispute between the father and the son with regard to the landed property, it ended in the homicidal death of the deceased. The entire case of the prosecution is based on the circumstantial evidence. Out 29 witnesses - P.Ws.1 to 29, majority of the 19 witnesses i.e., 21 witnesses have turned hostile including P.Ws. 2-mother of the deceased, P.W.26 - son of the deceased and grand son of the accused and P.W. 27 - wife of the deceased and daughter-in-law of the accused. Therefore, the case falls under Exception-4 to Section 300 of IPC which reads as under;
"300. Murder: xxxxx Exception 1: xxxxxx Exception 2: xxxxxx Exception 3: xxxxxx 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.20
23. On careful perusal of the said provisions makes it clear that 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. It clearly indicates that offence comes under Section 304 of IPC, for which the punishment is imprisonment for life or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a terms which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. 21
24. To invoke of the provisions of Exception 4 to Section 300, four requirements must be satisfied:
i) It must be a sudden fight;
ii) There should 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.
25. Admittedly in the present case, the fight was between the father and the son with respect to the landed property at the place of the accused-father where the deceased-son went to that place. The material on record clearly depicts that there was no premeditation on the part of the accused and the act committed by him was in a heat of passion and use of sickle - M.O.4 on the head of the deceased is without premeditation. 22 As stated supra, accused has not taken any advantage or acted in a cruel manner in causing the death of the deceased. In view of the above, the case does not fall under the provisions of Section 302 of IPC, but it falls under Exception-4 to Section 300 of IPC., since the accused has inflicted injuries on the head of the deceased without an intention to cause death and the act of the accused is punishable under the provisions of Section 304 Part II of IPC for imprisonment of ten years or fine or both.
26. It is well settled that one of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion, howsoever, grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious 23 factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstances, if other circumstances unfailingly point to the guilt.
27. Having considered the rival contentions of the learned Counsel for the parties and on perusal of the entire material on record, it clearly depicts that the alleged unfortunate offence undoubtedly has taken place in a spur of moment without premeditation and it cannot be said that the accused-father had an intention to kill his own son or knowledge that the death was likely to ensure. The accused only intended to vent his ire against his son deceased and there was no occasion for him to kill his own son. Admittedly, the accused is aged 67 years and his wife - P.W.2 is 65 years. Taking into consideration the mitigating circumstances that while there was a fight between father and son, the son succumbed to the injuries on his head which was 24 attributable to the accused and in the absence of any intention makes him individually answerable, the conviction has to be converted into one under Section 304 Part-II of IPC.
28. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Ahmed Shah and Another -vs- State of Rajasthan reported in (2015) 3 SCC 93 wherein at paragraph 21 it is held as under:
"21. As elaborated earlier, the complainant party went to the field and Sabbir Shah was armed with gum. In the sudden fight, there was a scuffle.
During the course of scuffle, the
appellants inflicted injuries on the
deceased Sabbir Shah. The accused
tried to grapple the gun from Sabbir Shah. There was no premeditation and that the incident was the result of sudden fight. In the scuffle, the other accused inflicted injuries on Rakhu Shah and PW 8 Rakhia. Considering the facts and circumstances of the case, in our view, the present case cannot be 25 said to be a case punishable under Section 302 IPC but a case falling under Exception 4 to Section 300 IPC. Since the appellants inflicted injuries on the neck and scalp of Sabbir Shah with the intention of causing death, the act of the appellant-accused is punishable under Section 304 Part I IPC."
29. It is relevant to state at this stage that in order to sustain the act of conviction on the basis of circumstantial evidence, the following conditions must be satisfied:
i) Circumstances from which inference of guilt is sought to be drawn must be cogently and firmly established;
ii) The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the 26 crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
30. Though the learned SPP sought to justify the impugned judgment and order of conviction that the prosecution has proved the guilt of the accused on the basis that the death of the deceased was homicidal, motive and recovery of M.O.4, the fact remains that the when the deceased-son went to the farm house of the accused-father with regard to the property dispute between them (father and son/accused and deceased respectively), the incident has taken place in a heat of passion or at the spur of the moment as there was sudden provocation and aggression and there was no previous deliberation or premeditation. Therefore, the incident has occurred as a result of sudden fight in respect of landed property.
31. Admittedly, the prosecution has not proved that the accused had the intention to kill the deceased 27 in view of the evidence of P.Ws.2 - wife of the deceased; P.W.26 - son of the deceased and also grand son of the accused; and P.W.27 - daughter-in-law of the accused and wife of the deceased and no other material is produced except the evidence of official witnesses that the accused had assaulted the deceased (son of the accused) with a sickle - M.O.4 on his head with an intention to kill the deceased. Therefore, the sentence imposed by the learned Sessions Judge for imprisonment of life, cannot be sustained.
32. The Hon'ble Supreme Court while considering the provisions of Sections 302 and 394 r/w 34 of IPC and Section 27 of the Evidence Act in the case of Digamber Vaishnav and Another -vs- State of Chhattisgarh reported in (2019) 4 SCC 522 at pagraphs- 18, 19, 40, 41 and 42 has held as under:
"18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between 'proof 28 beyond reasonable doubt' and 'suspicion' has held as under:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof.
This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a 29 convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense".30
19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808].
40. The prosecution has relied upon the evidence of PW-8 to show that the accused and victims were last seen together. It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the 31 accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trust worthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body.
41. In Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2) SCC 372, it has been held as under:-
"31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stated in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last 32 seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded".
42. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC, 715, the Court has reiterated that the last seen together does not by itself lead to the inference that it was the accused who committed the crime. It is held thus:
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-
explanation on the part of the
appellant, in our considered
opinion, by itself cannot lead to
proof of guilt against the
appellant"
33
33. While considering the provisions of Section 304 of IPC in the case of State of Madhya Pradesh -vs- Suresh reported in (2019) 14 SCC 151, the Hon'ble Supreme Court has laid down the principles for sentencing, proportionality and balancing of aggravating and mitigating circumstances and at paragraphs 13 and 14 it has held as under:
"13. Therefore, awarding of just and adequate punishment to the wrongdoer in case of proven crime remains a part of duty of the court. The punishment to be awarded in a case has to be commensurate with the gravity of crime as also with the relevant facts and attending circumstances. Of course, the task is of striking a delicate balance between the mitigating and aggravating circumstances. At the same time, the avowed objects of law, of protection of society and responding to the society's call for justice, need to be kept in mind while taking up the question of sentencing in any given case. In the ultimate analysis, the proportion between the crime and punishment has to be maintained while further balancing the 34 rights of the wrongdoer as also of the victim of the crime and the society at large. No straitjacket formula for sentencing is available but the requirement of taking a holistic view of the matter cannot be forgotten.
14. In the process of sentencing, any one factor, whether of extenuating circumstance or aggravating, cannot, by itself, be decisive of the matter. In the same sequence, we may observe that mere passage of time, by itself, cannot be a clinching factor though, in an appropriate case, it may be of some bearing, along with other relevant factors. Moreover, when certain extenuating or mitigating circumstances are suggested on behalf of the convict, the other factors relating to the nature of crime and its impact on the social order and public interest cannot be lost sight of."
34. In so far as the judgment relied upon by the learned Counsel for the appellant in the case of Bhimapa Chandappa Hosamani and Others -vs- State of Karnataka in Appeal (Crl.) 367/2005 D.D. 20.9.2006, we 35 have no quarrel with the principle laid down by the Hon'ble Supreme Court that the existence of motive is only one of the circumstances that has to be kept in mind while appreciating the evidence adduced by the prosecution and if the evidence of the witnesses appears to be truthful and convincing, failure to prove the motive is not fatal to the case of the prosecution. The circumstantial evidence with regard to involvement of the accused with an intention to kill his own son is not proved and it was a sudden provocation and at the spur of the movement, the incident has happened. Therefore, the impugned sentence for imprisonment of life has to be modified.
35. Another judgment relied upon by the learned Counsel for the appellant in the case of Govindaraju alias Govinda -vs- State by Sriramapuram P.S. and Another reported in 2012 Crl.L.J.1991, that an adverse inference can be drawn against prosecution for not examining material witnesses, we have no quarrel with the law laid down by the Hon'ble Supreme Court in the 36 facts and circumstances of the said case as this Court has taken a view that the intention of the accused to cause the death of his own son is not a premeditation and it was in a heat of passion. Therefore, the said judgment has no application to the facts and circumstances of the present case.
VII - CONCLUSION
36. In view of the aforesaid circumstances, the point raised in the present appeal is answered partly in the affirmative holding that the appellant-accused has made out a case to interfere with the impugned judgment and order of conviction by modifying the sentence imposed.
37. The material on record clearly depicts that the circumstances warrant that the cause for death is only with regard to land dispute between the father and the son as already stated supra and because of sudden aggravation, the accused might have used M.O.4 - sickle on the deceased thereby inflicting injuries over the body of the deceased including head. There was no 37 premeditation and the incident has occurred in a sudden provocation. Therefore, the conviction of the accused under the provisions of Section 302 IPC is converted to one under Section 304 Part-II of the IPC. In view of the altered conviction into one under Section 304 Part II IPC the accused is sentenced to undergo imprisonment for a period of 10 years with a fine of Rs.50,000/- (Rupees Fifty Thousand Only).
38. In view of the above, we pass the following:
ORDER
i) The Criminal appeal is allowed in part;
ii) The impugned judgment and order of conviction passed by the Sessions Judge convicting the appellant-accused for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/- is hereby modified;
iii) The accused is convicted for the offence punishable under Section 304 Part II of IPC 38 and he is sentenced to undergo imprisonment for TEN years and to pay a fine of Rs.50,000/- (Rupees Fifty Thousand Only). In default of payment of fine, the accused shall undergo further Simple Imprisonment for one year;
iv) The accused is entitled to the benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure;
v) The fine amount imposed on the accused shall be paid to the wife of the deceased -
P.W.27-Rathnamma as compensation in terms of the provisions of Section 357 (3) of Cr.P.C.
Sd/-
Judge Sd/-
Judge Nsu/-