Karnataka High Court
Bhagawanth S/O Venkatappa Mogli vs The State Of Karnataka Through Mudhool ... on 7 August, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.200115/2015
BETWEEN:
Bhagwanth S/o Venkatappa Mogli,
Age 35 years, Occ. Agriculture,
R/o Kotapalli, Tq. Sedam,
Dist. Kalaburagi
Now at Central Prison, Kalaburagi.
... Appellant
(By Sri Iswaraj S.Chowdapur, Advocate)
AND
The State of Karnataka
(Through Mudhool PS)
Represented by
Additional State Public Prosecutor,
High Court of Karnataka,
Kalaburagi Bench.
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
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This Appeal is filed under Section 374 (2) of Code
of Criminal Procedure praying to call for the records and
set aside the order of conviction and sentence including
fine passed in Sessions Case No.131/2011 dated
21.04.2012 by I Additional Sessions Judge, at
Kalaburagi in the interest of justice and equity.
This Appeal is coming for final hearing this day,
B.A.Patil J., delivered the following;
JUDGMENT
This appeal is filed by the appellant/accused seeking intervention of this Court in the judgment of conviction and order on sentence passed by the I Additional Sessions Judge, Gulbarga in S.C.No.131/2011 dated 21.04.2012.
2. We have heard the learned counsel Sri Ishwaraj S Chowdapur, for the appellant/accused and the learned Additional State Public Prosecutor Sri Prakash Yeli, for the respondent/State.
3. The case of the prosecution is as follows ;- The younger sister of the complainant was given in marriage to accused about 12 years ago. Out of the said 3 wedlock, they have given birth to one male child and one female child. Accused was making efforts to sell his open site for which, the deceased used to object, for which reason the accused used to ill-treat her mentally and physically. In that light, the elders advised the accused but on 24.01.2011 at 8.30 p.m. when the complainant was in his house and at that time one Sharanappa (PW.7) informed over the phone that the accused assaulted Nagamma with club and has caused the murder. Immediately complainant went and he noticed that some injuries on the left ear and swelling on her neck and he came to know that at about 7.30 p.m. accused picked up quarrel with the deceased and assaulted with the club and has caused the murder. On the basis of the complaint a case has been registered in Crime No.4/2011. Thereafter, investigation was conducted and charge sheet came to be filed. The learned Magistrate committed the said case after following the formalities to the Sessions Court. The 4 Session Court took the cognizance and secured the presence of the accused and after hearing both the sides, charge was framed against the accused, accused pleaded not guilty and claims to be tried as such a trial was fixed.
4. To establish the case of the prosecution, the prosecution got examined 15 witnesses and got marked 14 documents and 04 material objects. Thereafter statement of the accused was recorded by putting the incriminating materials as against the accused, accused denied the same. Accused has not choosen to lead any defence evidence nor produced any documents. After hearing both the sides the Trial court came to the conclusion that the prosecution has proved the guilt beyond all reasonable doubt and convicted the accused. Challenging the same the appellant/accused is before this court.
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5. The main grounds urged by the learned counsel for the appellant/accused are that the judgment of conviction and order on sentence passed by the Trial Court is contrary to law, evidences and material placed on record. Though PW.5 is an eyewitness to the alleged incident. His evidence is not trustworthy and reliable, as he is a child witness. It is his further submission that a duty cast upon the prosecution to establish that the injuries which have been caused are sufficient in the ordinary course of nature to cause the death of the deceased. But the prosecution has utterly failed to establish the said fact. In order to substantiate the said contention he relied upon the decision of the Hon'ble Supreme Court in the case of Nankaunoo vs. State of U.P. [2016 (1) Crimes 209 (SC)].
6. It is his further submission that as per the evidence of PW.8 the Doctor who has conducted autopsy over the body of the deceased he has mentioned only 6 two external injuries, one is lacerated wound over the left ear measuring 1.5 x 0.5 cm and black coloured contusion over the left side of the back measuring 15x1 cm and by taking into consideration the said evidence, it is the submission that in the ordinary course of business such injury is not likely to cause death of a person. In that light, it is his submission that the Trial Court without properly appreciating the evidence of this witness it has come to a wrong conclusion and wrongly convicted the accused.
7. It is his further submission that the other witnesses have not supported the case of the prosecution and they have been turned hostile. The Trial Court ought to have given the benefit of doubt to the accused. On these grounds he prayed to allow the appeal and to set aside the judgment of conviction and order on sentence.
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8. Alternatively, it is the submission by the learned counsel for the appellant/accused that the injuries which have been suffered by the deceased indicates that they are simple injuries and that the accused if really was having any intention to cause the death definitely he could have inflicted grievous injuries and even injuries caused are only lacerated wound, then under such circumstances it indicates that accused was not having any intention or premeditation to cause the death of the deceased. Under such circumstances the Trial Court instead of convicting the accused for the offence punishable under Section 302 of Indian Penal Code, it ought to have convicted the accused for the offence under Section 304 Part II of Indian Penal Code. On these grounds he prayed to allow the appeal.
9. Per contra the learned State Public Prosecutor vehemently argued and submitted that PW.5 is an eyewitnesses to the alleged incident. He has 8 categorically deposed the overtacts of the accused assaulting the deceased and even the prosecution has established the fact that there was a motive for the alleged incident as the accused has picked-up quarrel with the deceased as he is intending to sell the site and in that light on the alleged date of incident also he quarrelled and took the stick and assaulted near her left ear and caused the injuries.
10. It is his further submission that Doctor who came to be examined before the Court has categorically opined that death is due to vasovagal shock and as a result of the above said injury. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness to show that the said injuries are not likely to cause the death of the deceased. Under such circumstances, benefit of doubt cannot be given to the accused.
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11. It is his further submission that Trial Court after taking into consideration all the evidences and material placed on record has come to a right conclusion and rightly convicted the accused. On these grounds he prayed to dismiss the appeal.
12. We have carefully and anxiously gone through the submissions made by the learned counsels appearing for the parties and perused the records including the Trial Court records.
13. In order to establish the case of the prosecution, prosecution got examined as many as 15 witnesses. PW.1 is the complainant and the elder brother of the deceased. He has deposed that accused wanted to sell the site/plot for which the deceased Nagamma used to object by stating that if the plot is not sold it would be helpful to their children. In this regard they used to quarrel. He has further deposed that one year back at about 9.00 p.m. CW.15 telephoned to him 10 and informed that the accused has murdered the Nagamma. He went and noticed injuries near her left ear, on the left side neck, on the back, her head and blood was oozing from her left ear. He has lodged the complaint as per Ex.P.1. During the course of cross- examination so many suggestions have been made but this witness has denied them.
14. PW.2 is the inquest mahazar panch to Ex.P.2 and also for seizure mahazar panch to Ex.P.3 whereunder a stick, which is said to have been used by the accused, has been seized by drawing a mahzar. During the course of cross-examination nothing has been elicited so as to discard the said evidence.
15. PW.3 is a seizure mahazar panch to Ex.P.4 whereunder the clothes of the deceased have been seized as per M.Os.2 to 5. He has not supported the case of the prosecution and he has been treated as hostile.
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16. PW.4 is also a co-panch to Ex.P.4. He has also not supported the case of the prosecution. He has been treated as hostile.
17. PW.5 is the son of the deceased and he is an eyewitness to the alleged incident. In his evidence he has deposed that the accused is his father, about one year back at about 7.00 p.m. or 7.30 p.m. his mother was giving food at that time accused came from the land he picked up quarrel with his mother stating that he would hit her and murder her, accused saying so dragged her to the varanda and took up stick and then assaulted to his mother with the said stick near her left ear and at the left side of her neck and on her head. His mother died at the spot. He has further deposed that he can identify the stick M.O.1. He has further deposed that his mother had opposed for selling of the open site. Though during the course of cross-examination it has been elicited that there was no electricity supply in their house but he has deposed that there was a chimni light 12 in their house except that nothing has been elicited so as to discard the evidence of this witness.
18. On perusal of the evidence of this witness admittedly this witness is a child witness. The evidence of a child witness is not require to be rejected per se but the court as a rule of prudence to consider the such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record the conviction, based thereon. On perusal of the evidence of PW.5 there is nothing to discard the evidence of this eyewitness and even during the course of cross-examination it has not been suggested that he is deposing as tutored and even his presence at the time of the alleged incident has not been denied. Under such circumstances the said evidence appears to be cogent and proper.
19. PW.6 is the circumstantial witness he received the message that the accused has murdered 13 the deceased Nagamma and he came to the house of the accused and he notified the injuries and on enquiry he came to know that because of the dispute of selling the site the accused has assaulted the deceased. During the course of cross-examination nothing has been elicited from the mouth of this witness.
20. PW.7 is also the circumstantial witness. He has also reiterated the evidence in the same line as that of PW.6.
21. PW.8 is the Doctor who has conducted autopsy over the body of the deceased. In his evidence he has deposed that he found a lacerated wound over the left ear and black coloured contusion over the left side of the back and has opined that the death is due to vasovagal shock and as a result of the above said injuries and has issued the post mortem report as per Ex.P5. During the course of cross-examination of this 14 witness nothing has been elicited so as to discard his evidence.
22. PW.9 is the brother of the accused. He has not supported the case of the prosecution and he has been treated as hostile.
23. PW.10 is the Junior Engineer who has prepared the sketch of the scene of the occurrence as per Ex.P.7.
24. PW.11 is the JESCOM Authority, he has issued the certificate as per Ex.P.8. In his evidence he has deposed that he verified the records and ascertained that on 24.01.2011 in between 7.00 to 8.00 p.m. there was electricity power in Kottapalli Village. During the course of cross-examination nothing has been elicited.
25. PW.12 is the PDO, he has issued the demand Extract of the house property where the alleged incident has taken place as per Ex.P.9. 15
26. PW.13 is the Police Constable, who has carried the FIR and submitted the same to the Court.
27. PW.14 is the Police Constable, carried the body for conducting the autopsy to the hospital and he has also brought the clothes of deceased after the post mortem and produced before the Investigating Officer.
28. PW.15 is the CPI who has conducted the investigation and filed the charge sheet.
29. On perusal of the evidences which has been produced it goes to show that there is consistency in the evidences of these witnesses to the effect that there was a dispute between the deceased and the accused and the accused used to quarrel with the deceased as he was intending to sell the plot and the same is to be objected by the deceased and in that light on the alleged date of incident he came from the field and started quarrelling and he dragged her to varanda and he took the stick and assaulted and even the evidence of PW.5 16 who is none other than the son of accused as well as the deceased has categorically spoken with regard to the overtacts of the accused.
30. Though it is argued by the learned counsel for the appellant/accused that the evidence of the Doctor indicates that the injuries are not sufficient in the ordinary course of nature to cause the death. In that light he prays to acquit the accused. But on perusal of the evidence of PW.8 he has categorically deposed that because of the above said injuries the deceased succumbed and even during the course of cross- examination it has not been suggested that they are not sufficient in the ordinary course of nature to cause the death. Under such circumstances the contention raised by the learned counsel for the appellant/accused does not come to his aid. The decision quoted by him in this behalf in the case of Nankaunoo stated supra is not applicable to the present facts of the case on hand with all due respect.
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31. On perusal of the evidences and material placed on record, though the prosecution has established the fact that it is the accused who assaulted the deceased and caused the death. But on perusal of the evidence of PW.8 that the injuries which have been suffered a lacerated wound over the left ear and black coloured contusion over the left side of the back. Even the hyoid bone is intact, no fracture or dislocation is also noticed by the Doctor.
32. Under such circumstances, it can be inferred that the accused when he came from the field and in a rude fashion he might have taken the stick and might have been assaulted and even that force with which he is said to have been assaulted it appears that he was not having any intention or premeditation to cause the death of the deceased.
33. In order to consider the case under Section 304 Part I and II of IPC, the case has to be made 18 out under Exceptions 1 or 4 of Section 300 of IPC. For the purpose of brevity we quote Section 300 of IPC and Exception 1 and 4 which reads as under :
300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. - When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by 19 mistake or accident. The above exception is subject to the following provisos:-
First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.- xxx xxx xxx Exception 3.- xxx xxx xxx 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's 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."20
34. We have carefully and cautiously gone through the said provisions of law by giving our thoughtful consideration. In order to invoke the benefit under exception No.1 to Section 300 of IPC, the accused persons must show that there was provocation and such provocation was both grave and sudden. There must be simultaneous reaction and which deprived him of the power of self control which is caused by the person whose death has been caused. In order to invoke exception No.4 of Section 300 of IPC, accused must show that there exists above said condition, then the cause of quarrel is not material. With the above said ingredients, if we peruse the evidence on record, nowhere it is brought on record either in examination- in- chief or during cross-examination of any of the witnesses to the effect that there was provocation and such provocation was grave and sudden due to provocation caused by the deceased person. However, the evidence of the witnesses examined by the 21 prosecution indicates that there was quarrel between the accused and the deceased for selling the site and on the alleged date of incident, the accused came from the field and quarreled and assaulted the deceased. As discussed above, the injuries suffered by the deceased not appear to be grievous injuries and even though there is no fracture or dislocation. Under such circumstances, the facts infers that if really the accused was having any intention to kill the deceased, then he could have used force and caused grievous injuries. In that light, we are of the considered opinion that the act of the accused does not attract that he has assaulted the deceased with an intention to cause the death. In that light, the trial court instead of convicting the appellant for the offence punishable under Section 302 of IPC, ought to have convict him for the offence punishable under Section 304 Part-II of IPC.
35. Taking into consideration the above facts and circumstances, we pass the following: 22
ORDER The appeal is allowed in part. The judgment of conviction and order of sentence passed by the I-Additional Sessions Judge at Gulbarga in S.C.No.131/2011 dated 21.04.2012 is modified. The conviction of the appellant for the offence punishable under Section 302 of IPC is modified and the appellant - accused is hereby convicted for the offence punishable under Section 304 Part-II of IPC and he is sentenced to undergo imprisonment for the period, which he has already undergone, with fine of Rs.10,000/- and in default of payment of fine, he shall undergo simple imprisonment for one year as ordered by the Trial Court.
The Jail Authorities are hereby directed to release the appellant - accused forthwith, if he is not required in any other case.23
The Registry is directed to intimate the I-Additional Sessions Judge, Gulbarga and the concerned Jail Authorities through e-mail to release the appellant Sri Bhagwanth S/o Venkatappa Mogli forthwith, if he is not required in any other case.
Registry is directed to send back the trial Court records.
SD/-
JUDGE SD/-
JUDGE sn/LG