Karnataka High Court
State Of Karnataka vs Chandravathi on 5 January, 2022
Bench: K.Somashekar, P.N.Desai
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO. 253 OF 2016
CONNECTED WITH
CRIMINAL APPEAL NO. 252 OF 2016
CRL.A.No.253 OF 2016:
BETWEEN:
State of Karnataka
By Station House Officer
Byndoor Police Station-576214
Rep. by SPP
High Court Building
Bengaluru - 560 001. ...Appellant
(By Smt. K.P. Yashodha - HCGP)
AND:
Chandravathi
Aged about 61 years
W/o. Late Nagappa Acharya
R/o Muguli, Shiroor Village
Kundapura Taluk
Udupi District - 576201. ...Respondent
(By Sri. B. Anand - Advocate appointed as amicus
curiae for respondent vide court order dated 9.11.2021)
2
This Criminal Appeal filed under Sec.378(1) and
(3) of Criminal Procedure Code, by the Advocate for the
appellant praying to grant leave to appeal against the
judgment and order of acquittal dated 27.08.2015
passed by the Addl. District and Sessions Judge, Udupi
(sitting at Kundapura) Kundapura, in S.C.No.16/2014,
thereby acquitting the respondent / accused for the
offences punishable under Section 302 of IPC and set
aside the judgment and order of acquittal in
S.C. No.16/2014 dated 27.08.2015.
CRL.A.No.252 OF 2016:
BETWEEN:
State of Karnataka
By Station House Officer
Byndoor Police Station
Rep. by SPP
High Court Building
Bengaluru - 560 001. ...Appellant
(By Smt. K.P. Yashodha - HCGP)
AND:
Chandravathi
Aged about 61 years
W/o. Late Nagappa Acharya
R/o Muguli, Shiroor Village
Kundapura Taluk
Udupi District - 576201. ...Respondent
(By Sri. B. Anand - Advocate appointed as amicus
curiae for respondent vide court order dated 9.11.2021)
This Criminal Appeal filed under Sec.377 of
Criminal Procedure Code, by the Advocate for the
3
appellant praying to allow this appeal and modify the
order of sentence imposed by the learned Addl. District
and Sessions Judge, Udupi (sitting at Kundapura)
Kundapura dated 27.08.2015 in S.C.No.16/2014 and
impose appropriate and adequate sentence against the
respondent / accused for the offences punishable under
Sec. 304(2) of IPC.
These criminal appeals coming on for hearing this
day, P.N.Desai.J delivered the following:
JUDGMENT
These two appeals arise out of the judgment passed by the learned Additional District & Sessions Judge, Udupi (Sitting at Kundapura), Kundapura, in S.C.No.16/2014 dated 27.08.2015. By the said judgment, the accused is convicted for offence under Exception 4 of 300 of Indian Penal Code, 1860 (hereinafter shortly called as IPC) punishable under Section 304 Part-II of IPC and sentenced that the accused be released by extending the benefit of Section 4 of the Probation of Offenders Act, 1958 (hereinafter in short P.O.Act) and directed to execute a personal bond without surety for maintaining good behaviour and 4 peace for a period of 3 years in the locality, where she resides. However, the accused has been acquitted for the offence punishable under Section 302 of IPC.
2. Crl.A.No.252/2016 is preferred by the State seeking enhancement of sentence and Crl.A.No.253/2016 is also filed by the State challenging acquittal of the accused for offence punishable under Section 302 of the IPC and thereby seeking to set aside the said judgment of acquittal.
3. The brief case of the prosecution before the Trial Court is that the accused by name Chandravathi is mother-in-law of deceased - Nagarathna. PW.6 - Manjunatha is son of the said Chandravathi and also husband of the deceased - Nagarathna. It is further case of the prosecution that the said Manjunatha is working as a carpenter at Sirsi for last 15 years. In the year 2006 he married Nagarathna. He has got two sons and one daughter. The deceased - Nagarathna and 5 accused were residing at Shiroor village along with children of PW.6-Manjunath.
4. It is further case of the prosecution that there was some misunderstanding between mother-in-law and daughter-in-law in respect of domestic relations. The accused used to pick up quarrel with daughter-in- law. It is alleged by the prosecution that on 19.05.2014 at about 9.15 a.m. both deceased and accused were in their house at Shirur village and PW.5 -
Sumanth/grand son of the accused was playing in the open yard of the house with his sister and other children. At that time quarrel started between the deceased and accused in respect of wearing saree on a particular occasion. Immediately in the heat of passion upon a sudden quarrel the accused assaulted the deceased Nagarathna with scissors on the left portion of neck, due to which deceased sustained injury to her neck. Immediately she fell down. There was bleeding 6 injury to her neck. Somehow she crawled towards the main door of the house and she was lying in the pool of blood in the open yard of the house. At that time neighbourers by name Smt.Mohini - PW.1 and Revathi Acharthi - PW.2, hearing the cry from deceased house came there and found that the deceased had sustained bleeding injury to her neck and was lying in the pool of blood. Immediately injured was shifted to hospital with the help of Sridhar Acharya - PW.8 in an ambulance to Government Hospital, Byndoor. Doctor in the hospital declared that she was brought dead. Later on her dead body was shifted to Manipal Hospital for postmortem examination.
5. It is further case of the prosecution that neighbourer of the house of the deceased informed sister of the deceased by name Savitha that the accused Chandravathi assaulted the deceased Nagarathna with scissors on her neck due to which Nagarathna has 7 sustained injury and lying in the open yard of her home. Immediately, Raghavendra - PW.7 who is the brother of deceased along with sister Savitha went to Shiroor village and found blood stains in the open yard of the house of deceased. They also found that the accused was sitting in the room holding scissors in her hands. PW.7 enquired in this regard and came to know about the incident. He also came to know that injured was taken to the Government Hospital at Byndoor. Accordingly, he went to Government Hospital, Byndoor, PW.7 found that his sister was already dead and there was injury on her neck. In this regard, he lodged a complaint to Byndoor Police Station as per Ex.P4 on 19.05.2014 at 10.40 a.m.
6. The Sub-Inspector of Police, PW.16 - Naseer Hussain who was the Station House Officer on that day received the said complaint and registered the case in Crime No.122/2014 for the offence punishable under 8 Section 302 of IPC and sent the FIR at Ex.P.15 to the Court. Then PW.16 visited the hospital. As the offence was heinous he informed higher officers. Then he collected information about the accused also. Accordingly, he got credible information that accused was near the railway bridge at Shiroor Kelapate and arrested accused - Chandravathi with the help of CW.27 - Pushpa, ASI and brought her back to police Station and produced her before PW.19 - Radhika G, Asst. Superintendent of Police, Kundapura and gave the report as per Ex.P16.
7. PW.19 - Radhika G, Asst.Superintendent of Police took further investigation, she visited the hospital, secured panchas and conducted inquest panchanama as per Ex.P8. When the accused was produced before her, she recorded her voluntary statement as per Ex.P24. As per the information given by the accused she secured panchas and at the 9 instance of the accused seized the scissors used for commission of offence and also the clothes by conducting seizure panchanama as per Ex.P6. Scissors is marked as MO.1 and photographs were taken at that time of panchanama as per Exs.P25 to P28. Then the accused also produced the clothes worn by her at the time of incident from her house. The same were seized under panchanama as per Ex.P7 in the presence of panchas which were marked as M.Os.8, 9 and 10. Then accused took the investigating officer to scene of offence and shown the place of offence. In this regard a panchanama was drawn as per Ex.P1. Then PW.19 - Investigating Officer collected the blood stained mud and unstained other mud from the place of offence. She got prepared plan at Ex.P2 in respect of place of offence. Then the investigating officer recorded statement of eyewitnesses and produced the accused before Court. She also sent the clothes, other articles and the blood collected for chemical examination to Forensic Science 10 Laboratory. She secured the records in respect of the accused house. Recorded the statements of other witnesses. After securing the report from the Forensic Science Laboratory and after completing investigation, PW - 19 filed the charge sheet against the accused for the offence stated above.
8. The learned committal judge after complying with the provisions of Sections 207 and 209 of Code of Criminal Procedure, 1973 (herein after in short called as Cr.P.C.) committed the case to Court of Sessions. The learned Sessions Judge after hearing both sides framed the charge against the accused for offence punishable under Section 302 of IPC.
9. Thereafterwards, the prosecution examined 19 witnesses as PWs.1 to 19 and got marked 28 documents as Exs.P1 to 28 and got identified 13 material objects as MOs.1 to 13. The statement of the accused as required under Section 313(1)(b) Cr.P.C was recorded. The 11 accused denied the incriminating circumstances appearing against them in the evidence of the prosecution. However, accused has stated that when she was cutting clothes, the deceased started quarreling with her in respect of saree and the deceased also assaulted her, at that time the scissors in her hand touched the deceased. But she has not done anything and she has no ill-will or enmity against deceased - Nagarathna. The accused has not chosen to adduce any defence evidence.
10. After hearing arguments, learned Sessions Judge passed the impugned judgment of conviction and order of sentence which is challenged by the State by filing these two appeals.
11. We have heard Smt. K.P.Yashoda, the learned HCGP for the State and learned counsel Sri. B.Anand Amicus Curiae. Perused the appeal memo and records. 12
12. Learned HCGP for the State argued that the judgment of acquittal rendered by the Sessions Judge is contrary to law, facts and evidence on record. Therefore, the same is liable to be set aside. It is further argued that learned Sessions Judge has not properly appreciated the evidence of witnesses and also the mahazars. The learned Sessions Judge has not properly appreciated the evidence of Dr. Harama Sultana.N who conducted postmortem over the body of the deceased and has given the report and opinion as per Ex.P12 and P13. It is further argued that the learned Sessions Judge has not followed the dictum of the Supreme Court regarding appreciation of evidence and ought to have convicted the accused for the offence punishable under Section 302 of IPC. It is further argued that the learned Sessions Judge has not raised proper points for consideration. Though the prosecution has established the guilt of the accused beyond all reasonable doubt, the trial court is not justified in acquitting accused for 13 offence under Section 302 IPC. The trial Court though convicted the accused for offence under Section 304 II IPC, but took very lenient view and imposed sentence which is nominal sentence and it has to be enhanced. With these main argument the learned HCGP prayed to allow both the appeals.
13. Against this, learned Amicus Curiae Sri. B.Anand argued that, the eyewitnesses cited by prosecution are not actual eyewitnesses. As per their evidence, they came only after the incident. The evidence of child witness - Sumanth cannot be believed as he was playing outside the house and he is a planted witness. The said Sumanth has stated that he has not seen the incident. Amicus Curiae further argued that the other witnesses are all hearsay witnesses. There are no eyewitness to show that the accused actually assaulted the deceased and caused the said injury. On the other hand, the evidence on record indicates that 14 the accused was cutting clothes and somehow deceased
- Nagarathna herself came in contact with scissors and sustained injury. Therefore, Amicus Curiae argued that, the accused is infact entitled for acquittal. But however, learned Sessions Judge has rightly taken into consideration the facts of the case, situation, occurrence of the incident, and imposed the punishment by considering the age of accused and released her under Section 4 of P.O Act which needs no interference of this Court. Absolutely there is no perversity in the findings recorded by the learned Sessions Judge. With these main arguments the learned Amicus Curiae prayed to dismiss both the appeals.
14. We have given our anxious consideration to the arguments advanced by both sides and perused the evidence meticulously.
15
15. PW.1-Mohini is stated to be the neighbourer of the house of the accused and deceased. In her evidence she has stated that she heard some galata on 19th at about 9.30 a.m. and immediately, ran to the house of accused and saw from window that accused was assaulting deceased - Nagarathna with Scissors. In this regard, she informed her brother - Sridhar over phone. He brought an Ambulance and injured Nagarathna was taken to Government Hospital at Byndoor and PW.1 lost her conscious. Thereafter she came to know that deceased succumbed to injuries. She has identified M.O.1 - Scissors.
16. In her cross-examination she has admitted that there was no enmity or ill-will between accused and deceased. She has also admitted that when she went to the place of offence she found deceased Nagarathna lying in open yard of her house and nobody was there. Subsequently, people gathered there. On the same day 16 police came and she has given statement to police. Her evidence shows that she has not witnessed the accused assaulting deceased and she came to spot after hearing the galata sound. Her evidence again supporting the accused in subsequent deposition indicates that she has not actually witnessed the incident. It is evident from her evidence that she found deceased lying in pool of blood with neck injury and the accused was holding Scissors in her hand.
17. Similar is the evidence of PW.2 - Smt.Revati Acharti who is also a neighbourer. She has also deposed in the same line as that of PW.1 and the evidence of PW.2 also indicates that Nagarathna had already sustained injury by the time PW.2 saw her. Injured Nagarathna was not in a position to speak and was lying near Tulasikatta. PW.2 deposed that in respect of saree there was some galata between accused and deceased. For that silly reason the said incident 17 had taken place. She has clearly stated that she has not seen the actual incident i.e., the accused assaulting the deceased with Scissors. Though the prosecution treated this witness as hostile witness nothing helpful to the prosecution was elicited in her cross examination but her statement was marked as Ex.P3. So her evidence will not help the case of prosecution much.
18. PW.3 - Sandeep Acharya is the younger brother of deceased - Nagarathna. He is working as goldsmith at Uppund village, Kundapura. He came to know about the incident through his brother and thereafter he came to the spot. He is a hearsay witness. He has also stated that there is no ill-will or enmity in between accused and deceased.
19. PW.4 - Savitha is the sister of deceased. She has also not seen the incident but she came to know that there was some quarrel between deceased and accused in respect of wearing a saree. The accused 18 caused injuries to deceased - Nagarathna. The PW.4 is a hearsay witness and she came to know about the incident through phone call received from her neighbourer.
20. PW.5 - Sumanth is the grand son of accused and son of deceased. In his examination-in-chief he has stated that he was playing near his house, at that time, accused and his mother who is deceased were making galata. Accused assaulted with Scissors on the neck of deceased. His mother sustained bleeding injury. The neighbourers also came there. His sister was also present and both of them started weeping. Then his mother was taken to hospital. He also identified M.O.1
- Scissors which was in the hands of accused. He has also stated that he came to know his mother succumbed to the injury subsequently. Though he was cross-examined by accused side at length, but the fact that the accused was holding the Scissors and his 19 mother sustained injury on her neck and deceased was assaulted by the accused, is not denied specifically by the accused in the cross-examination. So his evidence, of course, to some extent, supports the case of the prosecution, but as there is nothing in the cross- examination so as to make his presence doubtful on the date and at the time of incident. His evidence supports the prosecution case. The argument on behalf of respondent side that PW.5 is child and planted witness so his evidence will not help prosecution, cannot be accepted.
21. Section 118 of the Evidence Act, 1872 states about competency of witness. Generally it is in favour of admission of evidence, though weight to be attached to it will naturally be matter for consideration by the court. It reads as under:-
118. Who may testify. --All persons shall be competent to testify unless the Court 20 considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation-- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
22. From the reading of the above section, it is evident that with reference to the children, no precise age is fixed by law within which they are absolutely excluded from giving the evidence on the presumption that they have no sufficient understanding. The competency of the child witness can be ascertained by questioning him or her to find out the intelligence to understand the occurrence witnessed and to speak truth before the court and thereby his or her statement inspire confidence and can be relied upon even without 21 corroboration. The Hon'ble Supreme Court in several judgments has relied upon the testimony of the child witness. Even the evidence of a child of tender age below 08 years which was found truthful was believed. The evidence of the child witness and its credibility would depend upon the circumstances of each case. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that the witness must be reliable one. If on close scrutiny, evidence of child witness is found to be truthful, there is no obstacle in the way of accepting the evidence whether corroborated or not. There is no rule or practice that in every case, the evidence of such witness be corroborated by other evidence before a conviction can be allowed to stand. But as a rule of prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. When the version of the incident is found truthful, the court would be justified in believing the evidence of the 22 child witness. The only precaution is, the evidence of such witness is to be taken with great care. It all depends upon particular facts of that case. The age of the child witness by itself is no criteria to reject the testimony.
23. So in the background of these settled principles, if the evidence of the child witness PW-5- Sumanth is considered with reference to the evidence of other witnesses who are neighbours, it is evident that all have consistently stated that deceased Nagarathna had suffered bleeding injury on her neck and accused Chandravathi was holding scissors in her hand. Except those two persons, there was no other person in the house. Apart from that, accused herself has admitted that injury was caused to deceased by coming in contact with scissors which was in her hand, though she states she has not done anything.
23
24. In the light of this evidence and the principles stated above, the evidence of the child witness who has no ill-will or enmity against his grandmother can be believed. He may not have actually seen accused piercing the scissors to the neck of the deceased, but he was present near the scene of occurrence and immediately after hearing cry, he saw the deceased and the accused. His evidence cannot be termed as either tutored or on account of tender age, it cannot be accepted. On account of the child's innocence and incapacity of partison motivation, the child is often a witness of truth. The learned trial Judge has rightly appreciated the evidence of the child witness with reference to the other evidence and the facts and circumstances of the case. Therefore, the evidence of PW.5, the child witness further corroborates the charge against the accused.
24
25. PW.6 - Manjunatha is the husband of deceased - Nagarathna and also son of accused Smt. Chandravathi. His evidence shows that he was doing carpentry work at Sirsi for the last 15 years. His mother, wife and children are residing together at Shiroor village. He has stated that he received a telephone call from his neighbourer and came to know that on 19.05.2014 there was quarrel between his wife and his mother and in that scuffle his wife sustained injury on her neck through Scissors and she was admitted to Government Hospital at Byndoor. Accordingly, he went to hospital and found that his wife
- Nagarathna is dead. He identified her body at the mortuary. He also found bleeding injury on her neck. When he enquired, he came to know that there was quarrel between his mother who is the accused and his wife deceased - Nagarathna in respect of saree and the accused assaulted her. He has not seen the incident. He has admitted in the cross-examination that from the 25 date of marriage both his wife and mother were residing together and there was no enmity or ill-will between them. His evidence indicates that the relationship between deceased and accused was cordial and there relationship was good. Both accused and deceased were residing together since the date of marriage of PW.6 with deceased - Nagarathna.
26. PW.7 - Raghavendra is the brother of deceased Nagarathna who set the criminal law into motion by lodging FIR. Of course, he has not seen the incident. He is a hearsay witness. He received information about incident through the neighbourers over phone and lodged the complaint. He has clearly deposed that only on the basis of information given by the villagers, he has lodged the complaint as per Ex.P4. So his evidence is not much helpful to the case of prosecution.
27. PW.8 - Sridhar Acharya is resident of Shiroor Village and is the brother of PW.1 - Mohini who is the 26 neighbourer of deceased house. In fact he received a call from Mohini about the assault on deceased - Nagarathna by accused - Chandravathi. Then he came to the house of deceased and found that Nagarathna had fallen in an open yard in front of her house with bleeding injury on her neck. Immediately, he called PW-9/Sarfaraz and got the ambulance. They took Nagarathna to Government Hospital, Byndoor. Their Doctor informed that injured Nagarathna was brought dead. He has given statement before the police. He came to know about the incident only from PW.1 and he has no personal information regarding the incident as evident from his cross-examination.
28. PW.9 - Sarfaraz @ Mugudi Sab is the ambulance driver who has stated about taking deceased
- Nagarathna injured, in a ambulance to Government Hospital at Byndoor.
27
29. PW.10 - Manju Venkappa Shetty and PW.11 - Mahadeva Acharya are the panch witnesses in respect of seizure panchanamas as per Exs.P5, P6 and P7 and seizure of M.Os.1 to 7. In their evidence both have stated that on 19.05.2014 at about 2.45 p.m. the police had arrested accused in this case and in this regard they prepared mahazar as per Ex.P5 and they have signed on panchanama as per Ex.P5(a) and P5(b) respectively. Further, they have stated that the accused gave statement that if she was taken she will produce the Scissors. Accordingly, they were taken near the coconut tree and the Scissors was recovered and seizure panchanama was drawn as per Ex.P6. Both panchas have identified the Scissors as per M.O.1 and signed on the said mahazar as per Ex.P6(a) and P6(b) respectively. Further, they have stated that accused took them to her house and shown the place of offence. A panchanama was prepared as per Ex.P1 and they have signed on the said panchanama as per Ex.P1(b) and P1(c) respectively. 28 They have also stated, at that time the police have collected the cloths, blood stained mud, unstained mud and seized them which are marked as M.Os.2 to 7 and prepared a sketch of place of offence as per Ex.P2. They have signed the said sketch as per Ex.P2(b) and P2(c) respectively. The accused produced the cloths worn by her at the time of incident and the same has been seized under seizure mahazar at Ex.P7 and they have signed on the said mahazar at Ex.P7(a) and P7(b) and identified the said cloths as per M.Os.8, 9 and 10. They have also stated that police took the photographs at that time which are at Ex.P25 to 28. Police recorded their statement. Though they were cross-examined at length, nothing is elicited in their cross-examination so as to disbelieve their evidence. Their evidence has stood the test of cross-examination regarding seizure of scissors, material objects and drawing up of panchanamas. 29
30. PW.12 - Jayalakshmi is the witness to the inquest mahazar at Ex.P8. She has also stated that there was injury on the neck of deceased. Other witnesses have signed Ex.P8.
31. PW.13 - Ramachandra Acharya is the father of the deceased. Of course, he has not seen the incident but he has stated about what was heard by him from others and his evidence is also of not much consequence.
32. PW.14 - Dr.Harama Sulthana is the Lady Medical Officer who conducted post mortem of the dead body of deceased - Nagarathna and issued P.M.report as per Ex.P11. She conducted the post mortem on 19.05.2014 between 3.00 p.m. to 6.45 p.m. She has mentioned the details of wounds which are as under:
- Stab wound on the left side of the neck, located 5 cm above the left mid-clavicular point, 6 cm below left angle of mandible, 5 cm from the midline of neck anteriorly.30
- Spindle shaped wound with clear cut
margins.
- No abrasion, no bruising in surround
tissue, measures 2 cm in length, 0.5 cm in width and 10 cm deep. Direction of wound is oblique, downward and medial.
- Track: - Entered the neck by piercing the skin at left side of neck, advanced cutting through the platysma and sternocleido mastoid muscle obliquely medially, downwards. Further entered the thorax by piercing the supra pleural membrane behind the clavicle at mid-clavicular point. Progressing medially downwards cutting the common carotid artery and piercing the esophagus at second thoracic vertebra level.
33. PW.14 - Doctor has opined that "the cause of death" is "hemorrhagic shock due to the above sustained injury and the time since death is less than 12 hours". PW.14 has stated that she has given the said report as per Ex.P11. Doctor has opined that the said injury could be caused on the person who was assaulted with M.O.1 - scissors. She has given the opinion after 31 examining M.O.1 - scissors. Both Ex.P12 and P13 are her opinion. Though the doctor was cross-examined at length but nothing was elicited in her cross-examination which could help accused. The death of the deceased due to said injury is also not disputed by the accused.
34. PW.15 - Manjunath Shepur is the Junior Engineer who has prepared the sketch copy of the place of offence as per Ex.P14.
35. PW.16 - Naseer Hussain is the PSI of Kundapur Police Station who received the complaint and registered the case and arrested the accused.
36. PW.17 - Dr.Geeta Lakshmi is the Scientific Officer of Regional Forensic Science Laboratory, Mangaluru. PW.17 has stated in her evidence regarding chemical examination of the material objects sent by the investigating officer and giving certificate of examination as per Ex.P17 and serology report as per Ex.P19. The 32 said Scientific Officer has opined that the items as per A, B, C, D, E, F, G, H, I, L and M are stained with human blood. Blood in item-K was disintegrated so its origin could not be determined and she has also stated that the blood group of the said items is 'O' group. The blood group of the stains in the item No.1 could not be determined because the results of the tests were inconclusive. There is nothing in the cross-examination to disbelieve the said evidence of Scientific Officer.
37. PW.18 - Hanume Gowda is the Tahsildar who issued the records in respect of ownership of the house of accused as per Ex.P20 and Record of Rights as per Ex.P21.
38. PW.19 - Smt.Radhika, Assistant Superintendent of Police is the Investigating Officer who has conducted the investigation and filed charge sheet. In her evidence she has stated about conducting the inquest panchanama, arresting the accused, recording 33 voluntary statement of accused and recovery of scissors used for commission of offence at the instance of accused in the presence of panchas and also recovery of cloths and other material objects. PW.19 has also stated about conducting the panchanama at the scene of offence and taking photographs, sending the blood stained cloths and other materials and blood stained mud and unstained other mud for chemical examination to the Forensic Science Laboratory. She has further stated about recording statement of witnesses. She has admitted in the cross-examination that she could not find any reason or intention for which the accused caused murder of the deceased. PW.19 has stated that she came to know from others that there was some domestic quarrel between them earlier. But there are no records or no incidents in which they came to police station or there was any panchayath held between accused and deceased regarding any such quarrel. PW.19 evidence shows that 34 there was no motive or intention on the part of the accused to commit any offence as alleged. Of course, some suggestions were made which were denied by her. It is suggested that it was not a homicide. Except this there is nothing in her cross-examination which would help accused.
39. On consideration of the entire evidence adduced by the prosecution, learned Sessions Judge found that the evidence placed before the Court indicates that though there is evidence that it is a culpable homicide committed by the accused by causing death of deceased Nagarathna, but it is a culpable homicide not amounting to murder falling under Exception 4 of Section 300, IPC which is punishable under Section 304(II) of IPC. Accordingly, the learned Sessions Judge after discussing the entire evidence and considering the age and the relationship, the circumstances under which the incident took place, 35 though convicted the accused for the offence under Section 304 Part II of IPC but acquitted the accused under Section 302 of IPC and imposed the impugned sentence which is under challenge.
40. It is borne out from the evidence of prosecution that from the date of marriage, deceased - Nagarathna was residing with accused nearly for more than 08 years at Shirur Village. The relationship between them is daughter-in-law and mother-in-law. There may be some quarrel between them which can be called as natural wear and tear in family which usually take place. But it is evident that accused had no intention or ill-will to commit murder of the deceased. The only eye witness to the incident is the grand son of accused and he is none other than the son of deceased - Nagarathna. Of course, others though have not seen the incident, but it is evident from their evidence that they found deceased - Nagarathna lying in pool of blood in 36 front of her house and there was injury on her neck. They also found the accused was holding scissors in her hand. This evidence of other witnesses is not shaken and it is a credible evidence which can be accepted to corroborate the charge against the accused. The accused has also stated in her 313 Cr.P.C statement that when the deceased tried to assault her, the scissors came in contact with deceased and she has not done any thing. But the accused has not led defence evidence in this regard. However, looking into the nature of the injury and the evidence of all witnesses it is evident that some sudden fight took place between the accused and deceased. May be there were verbal exchange of words and abuse by them in a heat of passion. As evident from the evidence, the accused who was stitching the cloths on a sewing machine along with a scissors cutting the cloths might have tried to push the accused and in that scuffle the scissors might have touched the vital part of neck thereby deceased sustained grievous injury which 37 is found to be a fatal one. It is evident that the accused had neither intention to commit any serious injury nor she had intention to cause death of deceased. There was no pre-planning. The accused has not taken any undue advantage or acted in a cruel and she has not acted in a unusual manner. Because there was only one injury. If at all the accused had any intention to cause death or brutal injury, she could have assaulted with scissors number of times, but it is not so. As per the medical evidence there was only one injury.
41. It is evident that accused has not tried to call for help. She might be in a state of shock because of the unexpected incident. But she was present at the place of offence when other witness came there. Therefore, when only accused and deceased were present in the house and deceased was found with bleeding injury to her neck, at the same time accused was found holding scissors in her hand, then in the absence of any 38 satisfactory explanation by the accused, about the injury to deceased, the presumption is, it is the accused who caused injury to deceased through scissors, though it may not be intentional one. This unfortunate incident has taken place because of silly reason i.e. with respect to wearing saree.
42. We have perused the impugned judgment. The learned Sessions Judge has rightly come to a conclusion that the alleged offence does not fall under Section 302 of IPC as there is no evidence to show that the accused has committed the culpable homicide amounting to murder. Therefore, the accused has been acquitted for the offence punishable under Section 302 of IPC and was convicted for Section 304 Part II of IPC.
43. Whereas keeping in view Section 299 of IPC, 1860 relating to culpable homicide and the distinction between culpable homicide and murder, the culpable homicide is the genus and murder is its species and all 39 murders are culpable homicides but all culpable homicides are not murders as stated in a decision of Hon'ble Supreme Court reported in Rampal Singh v. State of Uttar Pradesh (2012) 8 SCC 289.
44. The Hon'ble Supreme Court in a decision reported in State of Maharashtra v. Krishna Murti Lazmipatti Naidu (AIR 1981 SC 617) has extensively addressed when the provocation caused by act that the assault for murder cannot be said to be sudden and without meditation as the deceased was not armed.
45. It is also relevant to refer Section 300 of IPC, 1860 in Exception - 1 - when culpable homicide is not a murder - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by a 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. 40
46. Whereas in Exception No.4 - Culpable homicide is not murder if it is committed without pre- meditation 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.
47. Insofar as Exception-5 - Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
48. Whereas in the instant case, the incident took place in between the accused who is the mother-in-law and the deceased who is the daughter-in-law. But there was no enmity in between them. On the fateful day for some quarrel in between them perhaps when the accused was holding the iron scissors in her hand the said scissors would have come into contact with the vital part of the neck of deceased and resultantly 41 causing the injuries and lost her breath. The accused in question No.107 in the incriminating statement recorded by the trial Court as contemplated under Section 313 of Cr.P.C. has specifically answered that she did not had any enmity or ill-will against her daughter-in-law. But lost her breath by sustaining injury on the vital part of her neck with means of M.O.1
- scissors said to have been used by the accused. But M.O.1 - scissors there shall be some two folds, inner fold which has sharp edge and the outer fold which has blunt edge. The tip of the scissors perhaps may be sharp. It is difficult to infer whether M.O.1 -scissors has been opened by the accused intentionally to cause some injury to the vital part of the neck of deceased - Nagarathna as at the particular time of the incident narrated in a complaint at Ex.P4.
49. But the trial Court had arrived at a conclusion that the prosecution has proved the guilt of 42 the accused under Section 304 Part II of IPC. Section 304 Part II of IPC indicates no intention or no knowledge. If the accused had intention to commit the murder of her daughter-in-law namely Nagarathna, certainly would not have inflicted only one more injury as indicated at Ex.P11 - P.M.Report, as a prudent man can infer. Whereby the incident took place in between mother-in-law who is accused arraigned in the sessions trial and the deceased who is no other than the daughter-in-law. But there might be some incident ensuing in between them, though her husband - Manjunatha by avocation as a carpenter and was staying at Sirsi for the last 15 years and he was maintaining his wife Nagarathna and also his mother who is accused and their family consisting two sons and a daughter. But they have been residing in Shiroor village in Kundapura Taluk. However, at a cursory glance of the entire evidence and in totality of the circumstances of the case, we are of the opinion that 43 the prosecution did not facilitate worthwhile evidence to prove the guilt of the accused in terms of corroborative, cogent and positive evidence to probabalise that the accused has committed the offence punishable under Section 302 of IPC by infliction of injury on the vital part of the neck of the deceased. It is specifically stated in Exception - 4 to Section 300 IPC that culpable homicide is not murder if it is committed without pre-meditation 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. Further, Section 3 of Indian Evidence Act, 1872, it is specifically stated that the domain is vested with the trial Court for appreciation of entire evidence on the part of the prosecution and also on the part of defence. But in the instant case, the prosecution did not facilitate worthwhile evidence to prove the guilt of the accused for the offence under Section 302 of IPC. 44 Therefore, we find no grounds to interfere with the finding of learned Sessions Judge in convicting the accused for the offence under Section 300 Exception 4 and punishable under Section 304 Part II of IPC.
50. It is argued by learned HCGP that the sentence imposed for the offence under Section 304-II IPC by the Sessions Court i.e. releasing the accused by extending benefit of Section 4 of Probation of Offenders Act, 1958 needs to be set-aside and proper sentence as per law to be imposed.
51. We are not inclined to accept such contention of the State in view of the facts and circumstances of this case and the factors to be taken into consideration for awarding sentence.
52. Section 53 of IPC enumerates the punishments to which offenders are liable under the provisions of this Code. They are -
45
(i) Death;
(ii) Imprisonment for life;
(iii) Imprisonment -
(a) Rigorous, i.e. with hard labour
(b) Simple;
(iv) Forfeiture of property; and
(v) Fine.
53. It is evident that Section 304 Part II of IPC prescribes punishment of imprisonment for ten years, or fine, or both. It is settled principles of law that the punishment must be appropriate and proportional to the gravity of the offence committed. Imposition of appropriate punishment is a discretion left to the Court. It is the duty of the Court to consider all relevant circumstances which may be broadly classified as 'aggravating' or 'mitigating' / 'extenuating'. If there are aggravating circumstances, they call for deterrent/severe punishment. Whereas mitigating circumstances favour lenient approach in sentencing. However, the sentences are determined on other 46 relevant consideration as sometimes it needs to consider the circumstances under which the offence is committed. The degree of deliberation shown by the offender in committing a crime is a material one. The other relevant consideration are prior criminal record of the offender, age of the offender, background of the offender with reference to education, homelife, the emotional and mental condition, prospects of reformation and rehabilitation. The aim of punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence. In modern civilized society reformatory aspect is being given somewhat greater importance. Choice of appropriate sentence is a serious matter and they should not be dealt with casual or mechanical manner. The Court is expected to consider all relevant facts and circumstances before determining the quantum of sentence as stated above. 47
54. It is to be noted here that the provisions of Probation of Offenders Act, 1958 are in force in the State of Karnataka. The object of the Act is to reform and rehabilitate the offender as a useful and self-reliant member of the society without subjecting him or her to the deleterious effects of daily life.
55. Admittedly, the accused at the time of incident was aged about 60 years. Now she must be nearly 68 years old and she has lost her daughter-in-law. There is no history of earlier quarrel or any untoward incident between accused and deceased. There is no record or past history to show that accused is having criminal background or involved in any criminal cases. It is also evident that trial Court judgment was rendered in the year 2015, thereafterwards there are no reports of any misbehaviour or violating any conditions of good behavior or disturbing peace in the family or in the village. The husband of the deceased or the other 48 witnesses have not stated anything about any misbehavior or misconduct of the accused with deceased. It appears the accused is a rustic woman. As discussed above the unfortunate incident took place without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel. There was only one injury which itself shows that the accused had no intention to kill. It is also evident that the accused has not acted in a cruel or unusual manner. The accused has not taken any undue advantage. The said only one injury proved to be fatal one. It is also evident that the accused was in judicial custody for one year three months eight days during trial. Therefore, we are of the opinion that it can be termed as service of sentence and the same would meet the ends of justice.
56. Therefore, looking into the circumstances under which the said incident occurred, the nature of injury, weapon used, the relationship of deceased and 49 accused, age of the accused, the period of imprisonment already undergone by the accused during trial, at this stage, we find no ground to interfere with the sentence imposed by the learned Sessions Judge for convicting the accused for offence punishable under Section 304 Part II IPC and sentencing to release her under Section 4 of Probation of Offenders Act, 1958. Already she might have repented for her act which was unintentional. Therefore, the ends of justice will suffice, if the sentence imposed by the learned Sessions Judge is confirmed in view of peculiar facts and circumstances of this case.
57. The Hon'ble Supreme Court in a decision reported in State of Karnataka v. Muddappa (1999) 5 SCC 732 considered the applicability of Section 4 of Probation of Offenders Act and factors to be taken into consideration when the accused was convicted for offence under Section 304 Part II IPC. In that case it was a appeal from a judgment of this Court, the 50 conviction was under Section 302 of IPC and the High Court set-aside the conviction under Section 302 of IPC and convicted the accused under Section 304 Part II of IPC and the accused was ordered to be enlarged under Section 4 of Probation of Offenders Act, 1958. The said finding of imposition of sentence and conviction was challenged before the Hon'ble Supreme Court. It was held by the Hon'ble Supreme Court that the High Court has rightly considered the relevant material and came to the conclusion that the accused be released on probation by applying Section 4 of the Probation of Offenders Act and accordingly, dismissed the appeal. The Hon'ble Supreme Court at para No.2 observed as under:
"The learned Counsel for the appellant is not in a position to assail the acquittal of the accused under Section 302 I.P.C., but he vehemently contends that the Court did not bear in mind germane considerations for releasing the accused on probation after 51 convicting him under Section 304 Part II I.P.C.
Whether the benefit of the Probation of Offenders Act could be extended in any particular case depends upon the
circumstances of that case. Admittedly, there is no statutory bar for application of the Act to an offence under Section 304 Part II where the maximum punishment is neither death nor imprisonment for life. In that view of the matter and on examining the impugned judgment of the High Court, we find that the Court did consider the relevant material and then came to the conclusion that the accused should be released on probation by applying the provisions of Section 4 of the Probation of Offenders Act. We see no infirmity with that order to be interfered with by this Court after this length of time, more so when nothing has been pointed out as to whether the accused has, in any way, violated the terms and conditions of allowing him on probation".
58. Therefore, in view of the discussion made above, evidence on record and the principle stated in 52 Muddappa's case supra by the Hon'ble Supreme Court, we find no illegality or perversity in the sentence imposed by the learned Sessions Judge. There are no grounds to interfere with the impugned judgment of conviction and order of sentence. Hence, both the appeals being devoid of merits are liable to be dismissed. Accordingly, we proceed to pass the following:
ORDER
(i) Crl.A.No.253/2016 and Crl.A.No.252/2016 preferred by the State are hereby dismissed.
(ii) Consequently, the judgment of conviction and order of sentence rendered by the Addl. District and Sessions Judge, Udupi (sitting at Kundapura) Kundapura, in S.C.No.16/2014 dated 27.08.2015 relating to offence under Section 304 Part II of IPC, 1860 is hereby confirmed.53
(iii) Learned counsel Sri B.Anand is appointed as Amicus Curiae in both these appeals. This Court appreciates the services rendered by the learned Amicus Curiae who appeared on behalf of the respondent/accused and assisted the Court.
Therefore, State is directed to pay honorarium of Rs.10,000/- (Rupees Ten Thousand only) to the Amicus Curiae.
Sd/-
JUDGE Sd/-
JUDGE KS/DKB/RJ