Karnataka High Court
Murthi vs The State Of Karnataka on 20 October, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF OCTOBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
CRIMINAL APPEAL No.72/2017 c/w
CRIMINAL APPEAL No.1909/2016
IN CRIMINAL APPEAL No.72/2017
BETWEEN:
THE STATE OF KARNATAKA
BY HOSADURGA POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001. ... APPELLANT
(BY SRI VIJAYKUMAR MAJAGE, ADDITIONAL SPP)
AND:
MURTHI,
S/O. KODIHALLI DASAPPA,
AGED ABOUT 36 YEARS,
OCC: COOLIE,
R/O. YALLABHOVIHATTI VILLAGE,
HOSADURGA TALUK,
CHITRADURGA DISTRICT - 577 527. ... RESPONDENT
(BY SRI P.B. UMESH, ADVOCATE FOR SRI R.B. DESHPANDE,
ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377
CR.P.C BY THE STATE P.P. FOR THE STATE PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO MODIFY THE JUDGMENT
-2-
AND ORDER DATED 08.08.2016 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN
S.C.NO.48/2014 - AND IMPOSING INADEQUATE SENTENCE TO
THE ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC.
IN CRIMINAL APPEAL No.1909/2016
BETWEEN:
MURTHI
S/O. KODIHALLI DASAPPA,
AGED ABOUT 36 YEARS,
OCC: COOLIE,
R/O. YALLABHOVIHATTI VILLAGE,
HOSADURGA TALUKA,
CHITRADURGA DISTRICT - 577 527.
(NOW IN JUDICIAL CUSTODY). ... APPELLANT
(BY SRI P.B. UMESH, ADVOCATE FOR SRI R.B. DESHPANDE,
ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY HOSADURGA POLICE STATION,
CHITRADURGA DISTRICT - 577 527.
(REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU - 560 001.) ... RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDITIONAL SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C BY THE ADVOCATE FOR THE APPELLANT/ACCUSED NO.1
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 08/16.08.2016 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA
IN S.C.NO.48/2014 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 302,504 OF IPC.
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:-
-3-
JUDGMENT
Criminal Appeal No.72/2017 is filed by the State for not imposing any fine while convicting the accused under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC" for short). The Criminal Appeal No.1909/2016 is filed by accused No.1 for imposing imprisonment for life both under the provisions of Sections 302 and 504 read with Section 149 of the IPC. These two appeals are filed against the impugned judgment of order of sentence dated 08/08/2016 made in S.C.No.48/2014 on the file of the I Addl. District & Sessions Judge, Chitradurga ("Sessions Judge" for short), convicting the accused for the offences punishable under Sections 302 and 504 of IPC and not imposing fine by the State and reduction of sentence by the accused. Facts of the case:
2. It is the case of the prosecution that on 24/11/2013 at 10.00 p.m. at Yallabhovihatti Village, Hosadurga Taluk, near the house of the deceased Rajamma, when the goats owned by Accused Nos.1 to 6 -4- were eating ragi stock in the land belonging to Rajamma, Rajamma abused accused Nos.1 to 6, thereby the accused persons in common object formed into an unlawful assembly committed rioting, abused deceased Rajamma in filthy and indecent language and at the instigation of accused Nos.2 to 6, accused No.1 poured kerosene and lit fire on Rajamma. Thereby Rajamma succumbed to the burnt injuries on 28/11/2003. CWs.2, 3 and PW.7 who made efforts to extinguish fire also caused injuries. PWs.1 and 7 shifted the injured Rajamma in 108 ambulance to the Government Hospital, Hosadurga. Rajamma informed that accused No.1 poured kerosene and lit the fire. On 25/11/2013 at 1.05 hours, PW.15-Head Constable No.265 received MLC intimation marked at Ex.P-7 and then went to Government Hospital, Hosadurga and recorded statement of Rajamma which is marked at Ex.P-6, in the presence of Dr.Sridhara with the help of PW.9 and based on the said statement, PW.15-Head Constable registered a case in Crime No.357/2013 for the offences punishable under Sections 143, 147, 114, 504, 307 read with Section -5- 149 of the IPC and forwarded the FIR marked at Ex.P-5 to the JMFC Court within the time stipulated. It is the further case of the prosecution that on 25/11/2013 at 1.30 p.m., PW.17-PSI along with the Head Constable went to the place of incident, in the presence of CW.11 and PW.2 inspected the spot shown by PW.8 and seized a kerosene can, burnt cloth pieces and match box marked at MOs.1 to 3 and recorded mahazar Exs.P-3 and P-16 and took sixteen photographs marked at Exs.P-7(a) to (f). On the request of Hosadurga police, on 25/11/2013 at 7.40 p.m. at C.G.Hospital, Davanagere, in the presence of CW.35-
Dr.Bharathi who issued certificate marked at Ex.P-14(a). PW.16 - Tahsildar, Davanagere, recorded statement of Rajamma marked at Ex.P-13. On 28/11/2013 at 1.30 p.m., PW.17-PSI received death message of Rajamma through email marked at Ex.P-19. On the basis of Ex.P- 19, PW.17 sent memo marked at Ex.P-18 requesting the court to insert Section 302 of the IPC in Cr.No.357/2013. The matter was referred to the learned Sessions Court as the case was triable by the learned Sessions Judge. -6-
3. Learned Sessions Judge summoned all the accused and framed charges under the provisions of Sections 143, 147, 114, 504, 307 and 302 read with Section 149 of the IPC and explained to accused Nos.1 and 3 to 6 in the language known to them and they pleaded not guilty and claimed to be tried. As against accused No.2, the case stood abated as he is dead.
4. In order to prove its case, the prosecution examined PWs.1 to 18 and got marked Exs.P-1 to P-26(a) and material objects MOs.1 to 3 which are charred cloth pieces, plastic can and match box. The defence has neither examined any witness on its behalf nor got marked any document. After complaint of the evidence of the prosecution witnesses, the statement of the accused as contemplated under Section 313 of Cr.P.C. was recorded. The accused denied all incriminating circumstance against him. No defence evidence is adduced.
5. Learned Sessions Judge, considering both oral and documentary evidence on record recorded a finding -7- that the prosecution has proved beyond all reasonable doubt that on 24/11/2013 at about 10.00 p.m. at Yallabhovihatti Village, Hosadurga Taluk, near the house of the deceased Rajamma when the goats belonged to accused Nos.1 to 6 were eating ragi stock belonging to the deceased, she abused accused Nos.1 to 6 thereby accused Nos.1 to 6 with a common object formed continued being members of an unlawful assembly, committed rioting, abused the deceased Rajamma in filthy and indecent language at the instigation of accused Nos.2 to 6 provoked accused No.1 who poured kerosene and lit the fire, thereby, the deceased Rajamma succumbed to the burnt injuries and thereby, they committed offences punishable under Sections 143, 147, 504, 302, 114 read with Section 149 of the IPC.
6. Accordingly, the learned Sessions Judge convicted accused No.1 for imprisonment of life for the offences punishable under Section 302 of the IPC and three months for the offences punishable under Section 504 of the IPC and both the sentences to run concurrently -8- and convicted accused Nos.3 to 6 for the offences punishable under Sections 143, 147, 504, 302, 114 read with Section 149 of the IPC. Hence, Crl.A.No.72/2017 is filed by the State for not imposing fine on the accused, while Crl.A.No.1909/2016 is filed by the accused to set aside the impugned judgment of conviction and order of sentence under Section 302 of the IPC. The State has not filed any appeal against acquittal of accused Nos.3 to 6 under the provisions of Sections 143, 147, 504 read with Section 149 of the IPC.
7. We have heard learned counsel for the parties to the lis.
8. Sri Umesh P.B., learned counsel appearing on behalf of Sri R.B.Deshpande, learned counsel for the accused contended with vehemence that the learned Sessions Judge committed serious error in convicting the appellant only on the basis of the prosecution evidence which is highly contradictory, unreliable, artificial and cannot be sustained. He would further contend that -9- learned Sessions Judge has erred in imposing life imprisonment under Section 302 of the IPC holding that the prosecution has proved its case beyond reasonable doubt, when the prosecution is not proved the guilty of the accused and has not come out with the true version of the incident, there was a delay in filing the complaint and the delay has been conveniently used by the complainant and other interested persons and concocted false case against the accused and his family members.
9. He would further contend that when PWs.1, 7, 8, 9 and 10 are the eyewitnesses who have not deposed as to who poured kerosene and lit the fire on the deceased and PWs.1 and 10 having turned hostile and not supporting the case of the prosecution and thus the order of conviction is not justifiable. He further contended that CWs.3, 4 and PW.7 who tried to extinguish the fire according to the prosecution has not been examined PW.7 who is the mother of the deceased is an interested witness and PW.2 the panch witness also turned hostile PW.4-the doctor who treated the deceased issued MLC and in whose
- 10 -
presence statement was recorded, in the cross- examination, he has admitted that he never issued any fitness certificate as the deceased has filed complaint at Ex.P-6, declaration a statement made before the hospital. Ex.P-13 is the dying declaration of the deceased Rajamma recorded by the Tahsildar-PW.16 in the presence of the PSI-CW.35 and the medical officer who was treating the deceased and the doctor who issued endorsement has not been examined. Thereby, the prosecution failed to prove beyond reasonable doubt and the learned Sessions Judge proceeded to convict the accused based on the presumption and assumption which cannot be sustained.
10. He would further contend that learned Sessions Judge has erred in committing serious error in convicting the accused under Section 302 of the IPC mainly relying upon the interested witnesses PWs.7, 9, 15 to 18 whose evidence is not corroborated by any other prosecution witness. Finally, he would contend that the unfortunate incident occurred when the deceased Rajamma scolded the accused and his family members as
- 11 -
the goat belonging to the accused was eating the ragi stock in her land, thereby, it was a sudden provocation for the accused to pour kerosene due to the verbal altercation between the accused and the deceased, thereby, it is not a case which falls under the provisions of Section 302 of the IPC., but the case falls under Section 304 part II of the IPC. Thereby, he contended that learned Judge should have acquitted the accused on the ground that since two views are possible and the accused is entitled for the benefit of doubt and thereby he sought to allow the appeal filed by the accused and dismiss the appeal filed by the State.
11. Per contra, Sri Vijaykumar Majage, learned Additional Special Public Prosecutor while justifying the impugned judgment, contended that it is mandatory on the part of the learned Judge while imposing the punishment under the provisions of Section 302 of the IPC has to impose fine. As the learned Judge has not imposed any fine, the State has come up with Crl.A.No.72/2017 seeking for imposition of fine while convicting the accused under
- 12 -
Section 302 of the IPC. He would further contend that the crime registered by the jurisdictional police is based on the statement made by the victim as per Ex.P-6 and subsequently, she made a second statement under Section 32 of the Indian Evidence Act, 1872 before the Tahsildar and the same was certified by the doctor that the patient/injured was in fit conscious to give statement. Based on the statement and material document which clearly indicate that the deceased died of burnt injuries. He would further contend that even though Ex.P-23 the post-mortem report issued by Dr. Manjunath, though not examined, opined that the cause of death was due to septicemic shock as a result of 95% to 99% prevailing deep burnt injuries, still she was capable of giving statement before the Tahsildar.
12. He further contended that the learned Sessions Judge, considering both oral and documentary evidence on record in right perspective, rightly convicted accused No.1 under the provisions of Section 302 of IPC, but however has not imposed any fine as contemplated under the said
- 13 -
provision. Therefore, he sought to allow the appeal filed by the State and dismissed the appeal filed by the accused.
13. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that arise for our consideration in the present appeals are:
(i) Whether the learned Sessions Judge is justified in not imposing any fine while convicting the accused for the offence punishable under the provisions of Section 302 of IPC?
(ii) Whether the accused has made out a case for this Court to interfere with the impugned order of sentence and modify the offences fall under Sections 302 and 504 of the IPC in the peculiar facts and circumstances of the present case?
14. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused entire material on record including the original records carefully.
- 14 -
15. This Court, being the Appellate Court, in order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon:
(a) PW.1 Rangamma, who is the resident of neighbour of deceased Rajamma, deposed that three years prior to the date of giving evidence, she has returned from the coolie work and came to know that the deceased Rajamma had expired due to burn injuries suffered by pouring kerosene and she further stated that she never witnessed any attack on Rajamma. Inspite of lengthy cross-examination, nothing has been elicited from the evidence of PW.1 to prove contrary.
(b) PW.2 Sri Thimmaiah who is a panch witness to Ex.P-3 mahazar who identified the signature as on the date of the evidence and clearly stated that Yallabhovihatti village, at the instance of the police made signature on the spot mahazar marked at Ex.P-3(a) and did not support the case of prosecution. Nothing has been elicited in the cross-
- 15 -
examination from PW.2 with regard to recording of the mahazar, seizure of matchbox, burnt cloth pieces and plastic can in the house of Maheshwarappa son of Mahanthappa.
(c) PW.3 is also a panch witness to Ex.P-4-inquest mahazar who deposed that prior to one year as on the date of his evidence, when he had been to Belur Taluk, Hassan District, to work as coolie at Yellabhovihatti Village, he came to know about the death of Rajamma after two days and at the instance of police, he signed the mahazar Ex.P-4 and nothing has been elicited in the cross- examination with regard to recording of inquest mahazar at C.G.Hospital at Davangere.
(d) PW.4 Dr. S.N.Sridhar, Medical Officer, who treated Rajamma at the first instance has deposed that he has been working in the said hospital from 28/02/2013 and on 25/11/2013 at 00.05 hours in 108 ambulance Rajamma wife of Venkatappa Rajappa came to the hospital with the history burn injuries and gave first aid to
- 16 -
Rajamma and noted appearance of Rajamma with burn injuries in the MLC register/slip as per Ex.P-7 Hosadurga Police Station and the statement of Rajamma was recorded and though she suffered injuries, she spoke to the police and identified Ex.P-6. In the cross-examination, he has admitted that he never issued certificate about the status of Rajamma to the police. He also stated that police received MLC slip and further stated in the hospital that he never gave statement about Rajamma to the police. He further admitted in the cross-examination that in Ex.P-6 nothing has been stated about fitness of Rajamma. He plead ignorance about the name of person who recorded the statement of Rajamma and did not remember the name of medicine provided to the deceased and further stated that 80% burn injuries on Rajamma and stated that the part of the body where Rajamma suffered burn injuries and the same was mentioned in the case sheet. He further deposed that due to burn injuries suffered by the deceased was unable to make signature and hence, the police got thumb impression. Nothing has been elicited about the
- 17 -
status of Rajamma. Through him Ex.P-7 MLC slip medico legal case was registered.
(e) PW.5 Hanumanthappa was a panch witness to Ex.P-8 who identified the signature on the mahazar and deposed that prior to one and a halff years, the police made signature on the mahazar, but in the evidence he did not support the prosecution case with regard to drawing of Ex.8/ mahazar in the house of Maheshwarappa when accused Nos.1, 3 and 5 shown the place and nothing has been elicited in the cross-examination.
(f) PW.6 is Mahanthesh is a panch witness to Ex.P-8 who identified his signature on the mahazar Ex.P-8. He also did not support the prosecution case and has not elicited anything in the cross-examination.
(g) PW.7 Thimmakka mother of the deceased deposed that on the ground of eating of grass by the accused persons' goats which was stored by the deceased Rajamma and thereby verbal altercations took place and thus, the accused assaulted Rajamma at the instance of
- 18 -
her grand children and accused No.1 poured kerosene and lit the fire. Thereafter, accused Nos.2 to 7 ran away and the deceased was shifted to C.G. Hospital, Hosadurga and for one day the deceased took treatment in the said hospital and on the next day she died. In the cross- examination it is stated that there is a distance of one furlong between her house and the house of accused persons and Rajamma and she owned one acre of land and she did not have goats. She never witnessed the method how or on whose act fire attacked on Rajamma.
(h) PW.8 V. Yallappa is the circumstantial and panch witness for Ex.P-3 and he deposed that prior to three years of date of incident i.e., the death of Rajamma, Erappa and father of accused No.1 went to graze goats and Rajamma-deceased quarreled with accused No.1 for the reason that goats owned by accused No.1 ate ragi stock owned by Rajamma. In that regard there was assault by the accused persons on Rajamma. Further, PW.1 deposed that the deceased after taking treatment at C.G.HHospita she expired. He further stated that when he
- 19 -
came outside the house of Rajamma, noticed that the deceased Rajamma was burning and Rajamma informed to the effect that accused No.1/Murthy poured kerosene and lit fire and immediately secured Erappa/son-in-law who extinguished fire with the help of gunny bag and secured yallappa who called ambulance and thereafter shifted the Rajamma to the hospital. In the Cross-Examination, PW.8 deposed that approximately about 350 houses are situated in the street where his house and in a distance of 1.00 k.m., from his house, the house of deceased Rajama was situated. He further stated that when the quarrel took place, several persons were gathered and there was darkness and the persons so gathered never advised accused persons not to quarrel. He deposed that within half an hour of the incident ambulance came and that no first aid was given to the deceased in the place of incident. PW.8 identified Ex.P-3(b) his signature on Ex.P-3 and MO.1 charred cloth pieces, MO.2 plastic can and MO.3 match box.
- 20 -
(i) PW.9 Yallappa, the circumstantial witness, who deposed that there was quarrel between Rajamma and the accused persons with regard to eating of crops in the land owned by the deceased Rajamma by the goats belonging to accused No.1 and the quarrel took place in the agricultural land and in the evening near the house of Rajamma and accused persons assaulted the deceased and PW.9 further stated that when he went near Rajamma, Rajamma was speaking and insisted to admit her in he hospital and when enquired, she told that accused No.1/Murthy lit fire to her body. PW.9 stated that he shifted Rajamma to a Government Hospital at Hosadurga, wherein she gave statement before the police officer and medical officer and the doctor took thumb impression of Rajamma and as per the advise of the doctor, he shifted Rajamma to C.G.Hospital, Davangere and the doctor has endorsed the same. It is further stated that as per the evidence of the doctor, after taking treatment after two days she expired. But not stated anything about the death of deceased at the instance of accused No.1.
- 21 -
(j) PW.10 Chandrappa another circumstantial witness deposed that when he was working in the paddy field owned by Chandregowda situated at Mudigere Taluk, he received message about the quarrel that took place between the accused persons and Rajamma at Yallabhovihatti village. PW.10 further stated that after two days of the incident, he came to Yallabhovihatti Village and at the instance of police he made signature on a document. In the cross-examination, nothing has been elicited from PW.10 about the reason or method how fire attack was taken place on Rajamma. Exs.P-9 and P-10 are the statements of PW.10.
(k) PW.11 R. Dayanand is one of the panch witnesses to the inquest mahazar Ex.P-4 and he deposed that one year prior to the date of evidence, he had seen the body of the deceased Rajamma at Davangere C.G. Hospital wherein he made signature on the mahazar Ex.P-4.
- 22 -
(l) PW.12 Thippamma who is the daughter of the deceased, deposed that her mother died in a quarrel between the accused and her mother in respect of the accused No.1's goats eating the grass stock in the land of deceased Rajamma and when she was informed over phone about the incident and she saw her mother in the Government Hospital at Davangere wherein she noticed burn injuries and was informed that accused persons poured kerosene and accused No.1 lit fire to the body of Rajamma.
(m) PW.13 Shashidhara son of Venkatarajappa, son of the deceased who deposed that when he was working as coolie near Belur, Hasana District, he was informed by his maternal uncle through telephone that accused persons came near the house of Rajamma and assaulted the deceased, poured kerosene and lit fire to Rajamma. Thereafter, she was admitted to the hospital wherein she died after three days during treatment.
- 23 -
(n) PW.14 Shivamma sister-in-law of the deceased, who deposed that accused persons lit fire to Rajamma thereby killed her and further stated that there was quarrel between the accused and Rajamma due to goats of accused persons ate ragi stock in the land owned by Rajamma and further deposed that she noticed burn injuries on the body of Rajamma and thus accused suffered case of prosecution.
(o) P.W.15-H.Jayappa S/o Hanumappa, HC No.265, deposed that, he was working as Head Constable at Hosadurga Police Station, since last four and a half years. On 25/11/2013 at 1.05 am, when he was incharge of the police station, he received Ex.P.7-MLC and registered it in the station book. Later, he went to Government Hospital, Hosadurga, and with the assistance of one Yellappa, recorded the statement of Rajamma, as per Ex.P.6. He returned to the police station around 2.00 am and based on the statement of Rajamma, he registered a case against the accused in Crime No.357/2013 for the offences punishable under Sections 143, 147, 114, 504,
- 24 -
307 r/w 149 of the Indian Penal Code. He identified his signatures found on Exs.P.5 to 7. He deposed that while recording the statement of Rajamma in the hospital, her relatives and the doctor were present and Rajamma was in a fit state to give statement. In the cross-examination, the witness deposed that he registered the case based on the complaint written by Yellappa in the presence of the doctor, and supported the case of the prosecution.
(p) P.W.16-Manjunatha Ballari, S/o Raghavendra, Tahsildar, Davanagere, deposed that on 25/11/2013 at 7.00 pm, on the requisition sent by the Hosadurga police, he went to Chigateri hospital to record the statement of Rajamma, W/o Venkatappa who was admitted to take treatement for burn injuries. The doctor certified in writing that Rajamma was in a fit state to give the statement. After ascertaining that Rajamma is in a fit state to give statement, he recorded her statement in the presence of the doctors and the staff nurse. The doctor who was present at that time has endorsed on the statement recorded by him to the effect that the patient is in a fit
- 25 -
state of mind to give statement. He has further deposed that, Rajamma stated before him that in the quarrel with regard to gracing the goats, Murthy and his relatives came to her house, abused her in filthy language and Murthy poured kerosene on her and lit the fire.
In the cross-examination, he deposed that envelop- Ex.P.11 was sealed and before sealing Ex.P.11 which contained Exs.P.12 to 15, the xerox copies of the said documents were not given to any one and Ex.P.11 was despatched from their office, after sealing it. The witness supported the case of the prosecution.
(q) P.W.17-B.Manjunath, PSI, Kote Police Station, deposed that, on 25/11/2013 he received the case file from C.W.31. He sent requisition to the Tahsildar, Davanagere, requesting him to record the statement of the victim-Rajamma. At 3.00 pm on 25/11/2013, he went to the place of incident along with panchas viz., Ajjappa and Thimmaiah and inspected the spot shown by Yellappa and seized the plastic can, match box, the burnt cloth pieces
- 26 -
and drawn the mahazar and sketch as per Ex.P.3 and got the photos of the spot. The plastic can, match box and burnt cloth pieces were marked as M.Os.1 to 3. In the cross-examination, the witness deposed that on 29/11/2013 when C.W.3-Erappa came to police station, he noticed the burn injury on his shoulder. He further deposed that none of the witnesses deposed before him that they have seen the assault on Rajamma by the accused. The witness supported the case of the prosecution.
(r) P.W.18-Manjunatha, S/o Channappa, Dy.SP, Chitradurga, deposed that, he obtained the case file from C.W.32. On 24/03/2014, the accused No.1-Murthy, voluntarily surrendered before him and his voluntary statement was recorded. On the said date, at 11.00 am, he went to the spot along with accused No.1-Murthy and inspected the spot in the presence of panchas viz., Hanumanthappa and Mahanthesha and took the photographs. In the cross-examination, he denied the suggestion that, being tutored by C.W.7-Yallappa and
- 27 -
C.W.16-Rajappa, he has created fake documents and prepared the false charge sheet and is deposing falsely before the Court. He further denied the suggestion that the accused are not responsible for the death of the deceased, and supported the case of the prosecution.
16. Based on the aforesaid oral evidence of the the prosecution witnesses and the material documents, the learned Sessions Judge proceeded to pass the impugned Judgment of conviction and Order of Sentence, sentencing the accused to undergo imprisonment for life for the offence punishable under Section 302 of the Indian penal Code and rigorous imprisonment for a period of three months for the offence punishable under Section 504 of the Indian Penal Code.
17. It is the case of the prosecution that, based on Ex.P.6-statement of the victim, a criminal case came to be registered on 25/11/2013 at 1.05 am, against the accused persons in Crime No.357/2013 for the offences punishable under Sections 143, 147, 114, 504, 307 r/w 149 of the
- 28 -
Indian Penal Code. The substance of the case of the prosecution is that, the victim had abused the accused persons on the ground that the goats belonging to the accused had eaten away the ragi stock belonging to the victim. Keeping that in mind, on 24/11/2013 at 10.00 pm when the victim-Rajamma was in her house, Accused No.1 and his family members who belong to the same community as that of the victim, formed unlawful assembly and came to the house of the victim and altercation took place between them. The victim who had lost ragi stock, naturally abused the accused, in turn, the accused persons abused the victim in filthy language. In the altercation between the parties, who belong to the same community, the accused No.1 poured kerosene on the victim and lit the fire. The other accused persons instigated the accused No.1 to commit the offence. However, it cannot be lost sight that, the unfortunate incident has occurred when the accused lost the power of self control and by grave and sudden provocation, committed the offence. Thereby, the case clearly falls
- 29 -
under Exception I to Section 300 of the Indian Penal Code, which reads as under:
Section 300- Murder:
xxx xxx xxx 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 mistake or accident.
A careful reading of the said provision makes it clear that, culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
18. In the present case, the cause for the unfortunate incident was that the goats belonging to
- 30 -
accused had eaten away the ragi stock belonging to the victim. If the deceased was calm and cool and sought compensation from the accused for the loss suffered by her and in turn, if the accused, with calm and cool behaviour had assured the victim to pay some compensation for the loss suffered by her on account of the action of the goats belonging to the accused, the unfortunate incident would not have happened, and both the parties could have lived happily. Unfortunately, for the mistake committed by goats belonging to the accused, the deceased-victim used filthy language against the accused and his family and in turn, the accused persons used filthy language against deceased. In the altercation, the accused No.1 at the instigation of accused Nos.2 to 6, lost the power of self control and poured kerosene on the victim and lit her on fire using the match stick. Thereby, it is a case, where the accused, lost the power of self control by grave and sudden provocation and caused the death of the deceased. It is nothing but culpable homicide not amounting to murder. Therefore, offence clearly falls
- 31 -
under Part I Section 304 of the Indian Penal Code and not under Section 302 of the Indian Penal Code. The said aspect has not been considered by the learned Sessions Judge while convicting the accused.
19. It is not in dispute that, during pendency of the trial, accused No.2 died and criminal case against him came to be abated.
20. The learned Sessions Judge, considering both oral and documentary evidence on record, acquitted accused Nos.3 to 6 for offences punishable under Sections 143, 147, 114, 302, 504 r/w 149 of the Indian Penal Code. Admittedly, the order of acquittal passed by the learned Sessions Judge in respect of accused Nos.3 to 6 has reached finality, as the prosecution has not challenged the same.
21. It is very curious that, the learned Sessions Judge, though framed a common charge for consideration in respect of all the accused persons, very strangely, acquitted accused Nos.3 to 6 and convicted accused No.1
- 32 -
for the offences punishable under Sections 302 and 504 of the Indian Penal Code. Due to passage of time, there might be some discrepancy in the evidence of the witnesses. However, the fact remains that the accused, in the statement recorded under Section 313 of the Code of Criminal Procedure, has not taken any defence and denied the charges in toto.
22. The material on record clearly depicts that both the accused and the deceased belong to the same community and there was no previous enmity or any litigation pending between parties, as could be seen from the oral evidence of P.Ws.1 to 18 and the material documents Exs.P.1 to 26A. In the absence of any previous enmity between the accused and the deceased, based on the material facts and the evidence of the witnesses, it can be inferred that, at the instance of accused Nos.3 to 6, the accused No.1 lost the power of self control and caused the death of the deceased. There was no intention for the accused No.1 to kill the deceased. The accused Nos.3 to 6 who provoked the accused No.1 have been acquitted by
- 33 -
the learned Sessions Judge. The judgment passed by the learned Sessions Judge has reached finality. Thereby, in the peculiar facts and circumstances, the present case, as rightly contended by the learned counsel for the appellant/accused No.1, the case falls under Exception I to Section 300 of the Indian Penal Code and therefore, attracts punishment under Section 304 Part I and not under Section 304 Part II of the Indian Penal Code. The learned Sessions Judge, while convicting accused No.1, has lost sight of these aspects and convicted him for the offence punishable under Section 302 of the Indian Penal Code.
23. The learned Sessions Judge relied upon Ex.P.6- the first statement of the victim, which became dying declaration after her death. There is no endorsement of the doctor on Ex.P.6 to the effect that the victim was in a sound state of mind to give statement. In the absence of such endorsement by the doctor, contents of Ex.P.6 about intention for the accused No.1 to kill the deceased, cannot be accepted. Ex.P.13- another statement of the victim
- 34 -
which is the cyclostyle statement recorded by the Tahsildar under Section 32 of the Indian Evidence Act, prior to the death of the victim. Though the doctor issued the certificate to the effect that the patient was conscious while recording Ex.P.13, for the best reasons known to the prosecution, the doctor who endorsed regarding fitness of the victim has not been examined.
24. The post mortem report-Ex.P.23 clearly depicts that the cause of death was due septicemic shocks as a result of 95 to 99% superficial deep burns. Though the learned counsel for the accused contended that the deceased was not in a position to give statement, the same cannot be accepted. The Hon'ble Supreme Court and this Court, have time and again held that even in case of 100% superficial burns, the victim will be able to give statement before the doctor.
25. In the present case, based on the statement of the victim, the police registered a case for the offences punishable under Sections 143, 147, 114, 504, 307 r/w
- 35 -
149 of the Indian Penal Code. The learned Sessions Judge, proceeded to convict only accused No.1 for the offences punishable under Sections 302 and 504 of the Indian Penal Code and acquitted accused Nos.3 to 6, though a single charge was framed against all the accused persons.
26. On meticulous reading of the entire material on record, it clearly depicts that the unfortunate incident took place at the spur of moment when Accused No.1 lost the power of self control on the dilutive words used by the deceased against accused No.1 and his family members, and it cannot be said that accused No.1 had any intention to kill the deceased or the knowledge that his act would cause her death. Considering the age of the accused No.1 who is having large family to look after and taking into consideration the mitigating circumstances, and the fact that the accused No.1 and the deceased belong to the same community and in the absence of any intention for the accused No.1 to kill the deceased, the conviction for the offence punishable under Section 302 of the Indian
- 36 -
Penal Code has to be modified. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Digamber Vaishnav vs. State of Chhattisgarh reported in (2019) 4 SCC 522, wherein, at paragraphs 18, 19, 40 and 41, it is held as under:
"18. In Sujit Biswas v. State of Assam [Sujit Biswas v. State of Assam, (2013) 12 SCC 406 : (2014) 1 SCC (Cri) 677] , this Court, while examining the distinction between "proof beyond reasonable doubt" and "suspicion" has held as under : (SCC p. 412, para 13) "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
- 37 -
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 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."
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
- 38 -
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 H.P. [Kali Ram v. State of H.P., (1973) 2 SCC 808 : 1973 SCC (Cri) 1048] ].
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 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 trustworthy, there can be no conviction. To constitute the last seen together
- 39 -
factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body.
41. In Arjun Marik v. State of Bihar [Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372 : 1994 SCC (Cri) 1551] , it has been held as under : (SCC p. 385, para 31) "31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed 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 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 [Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 : (2014) 2 SCC (Cri) 413] , the Court has reiterated that the last seen
- 40 -
together does not by itself lead to the inference that it was the accused who committed the crime. It is held thus: (SCC p.
719, para 12) "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."
27. The Hon'ble Supreme Court has declared that the principles for sentencing and proportionality/balancing of aggravating and mitigating circumstances have to be taken into consideration while imposing imprisonment for life, in the case of State of M.P. vs. Suresh reported in (2019) 14 SCC 151, at paragraphs 13 and 14 held as under:
- 41 -
"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 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
- 42 -
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.Xxxxxxx"
28. The Hon'ble Supreme Court while considering provisions of Sections 299, 300, 302, 304 of the Indian Penal Code, in the case Rampal Singh vs. State of U.P., reported in (2012) 8 SCC 289, at paragraphs 11, 14, 29 and 30, held as under:
"11. Sections 299 and 300 of the Code deal with the definition of "culpable homicide"
and "murder", respectively. In terms of Section 299, "culpable homicide" is described as an act of causing death: (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from a reading of this provision, the former part of it,
- 43 -
emphasises on the expression "intention" while the latter upon "knowledge". Both these are positive mental attitudes, however, of different degrees. The mental element in "culpable homicide", that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted above, it would be "culpable homicide". Section 300, however, deals with "murder" although there is no clear definition of "murder" in Section 300 of the Code. As has been repeatedly held by this Court, "culpable homicide" is the genus and "murder" is its species and all "murders" are "culpable homicides" but all "culpable homicides" are not "murders".
14. Section 300 of the Code proceeds with reference to Section 299 of the Code.
"Culpable homicide" may or may not amount to "murder", in terms of Section 300 of the Code. When a "culpable homicide is murder", the punitive consequences shall follow in terms of Section 302 of the Code while in other cases, that is, where an offence is "culpable homicide not amounting to murder",
- 44 -
punishment would be dealt with under Section 304 of the Code. Various judgments of this Court have dealt with the cases which fall in various classes of Firstly, Secondly, Thirdly and Fourthly, respectively, stated under Section 300 of the Code. It would not be necessary for us to deal with that aspect of the case in any further detail. Of course, the principles that have been stated in various judgments like Abdul Waheed Khan v. State of A.P. [(2002) 7 SCC 175 : 2005 SCC (Cri) 1301] , Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 Cri LJ 818] and Rajwant Singh v. State of Kerala [AIR 1966 SC 1874 : 1966 Cri LJ 1509] are the broad guidelines and not cast-iron imperatives. These are the cases which would provide precepts for the courts to exercise their judicial discretion while considering the cases to determine as to which particular clause of Section 300 of the Code they fall in.
29. From the above statement of this witness, it is clear that there was heated exchange of words between the deceased and the appellant. The deceased had thrown the appellant on the ground. They were separated by Amar Singh and Ram Saran. She also
- 45 -
admits that her husband had told the appellant that he could shoot at him if he had the courage. It was upon this provocation that the appellant fired the shot which hit the deceased in his stomach and ultimately resulted in his death.
30. Another very important aspect is that it is not a case of previous animosity. There is nothing on record to show that the relation between the families of the deceased and the appellant was not cordial. On the contrary, there is evidence that the relations between them were cordial, as deposed by PW
1. The dispute between the parties arose with a specific reference to the ladauri. It is clear that the appellant had not committed the crime with any premeditation. There was no intention on his part to kill. The entire incident happened within a very short span of time. The deceased and the appellant had had an altercation and the appellant was thrown on the ground by the deceased, his own relation. It was in that state of anger that the appellant went to his house, took out the rifle and from a distance i.e. from the roof of Muneshwar, he shot at the deceased. But before shooting, he expressed
- 46 -
his intention to shoot by warning his brother to keep away. He actually fired in response to the challenge that was thrown at him by the deceased. It is true that there was knowledge on the part of the appellant that if he used the rifle and shot at the deceased, the possibility of the deceased being killed could not be ruled out. He was a person from the armed forces and was fully aware of the consequences of use of firearms. But this is not necessarily conclusive of the fact that there was intention on the part of the appellant to kill his brother, the deceased. The intention probably was to merely cause bodily injury. However, the Court cannot overlook the fact that the appellant had the knowledge that such injury could result in the death of the deceased. He only fired one shot at the deceased and ran away. That shot was aimed at the lower part of the body i.e. the stomach of the deceased. As per the statement of PW 2, Dr A.K. Rastogi, there was a stitched wound obliquely placed on the right iliac tossa which shows the part of the body the appellant aimed at."
29. The Hon'ble Supreme Court while considering Exception I Section 300, 302 and Section 304 Part I of the
- 47 -
Indian Penal Code, in the case of Murli alias Denny vs. State of Rajasthan, reported in 1995 Supp (1) SCC 39, at para 5 held as under:
"5. Having examined the circumstances on record, we are satisfied that it was the accused who inflicted injuries on the deceased person, as a result of which he died. But the learned Senior Counsel, Shri Sibal submits that there are any number of circumstances indicating that the accused acted on a grave and sudden provocation and, therefore, Exception 1 to Section 300 is attracted. We find considerable force in this submission. To start with, the prosecution evidence itself indicates that the deceased was a man of violent nature and had no regard for law and was creating terror and fear in the minds of common people. In such an aggressive mood, he must have gone to the shop of the accused. As to what exactly preceded the attack is not borne out by the evidence. However, there is a clear indication in the first statement given by the accused himself which formed the FIR in this case to the effect that the deceased in an aggressive manner went to the shop of the
- 48 -
accused and showered virulent abuses. It may be mentioned here that we are not using the statement of the accused before the SHO for any purpose in favour of prosecution and against the accused. The only admission which we find in the statement in favour of the accused is being taken into account to examine whether the case falls under Exception 1 to Section 300 IPC, particularly, in view of the fact that there is no other evidence disclosing as to how the quarrel ensued and attack took place. Having carefully considered the entire material, we are of the view that Exception 1 to Section 300 is attracted in this case. The Exception lays down:
"Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
This Exception is no doubt subject to certain limitations. In the instant case, the provocation is not sought or provoked by the accused. The medical evidence also shows that
- 49 -
most of the injuries were found on the hips and the possibility of having received injuries by the deceased during grappling cannot be ruled out. In such cases it cannot be said that the accused caused the injuries by way of an excuse for killing the deceased. Accordingly, we set aside the conviction of the appellant under Section 302, Penal Code, 1860 and imprisonment for life awarded thereunder and, instead, we convict him under Section 304 Part I, Penal Code, 1860 and sentence him to undergo rigorous imprisonment for 10 years."
30. It is also our experience that, the Trial Courts while convicting the accused for the offence punishable under Section 302 of the Indian Penal Code with imprisonment for life, ignore the mandate of legislation to impose fine.
Section 302 of the Indian Penal Code reads as under:
302. Punishment for murder: Whoever commits murder shall be punished with death, or
- 50 -
imprisonment for life, and shall also be liable to fine.
A careful reading of aforesaid provision makes it clear that, when the Trial Court comes to a definite conclusion that the accused has committed the murder and is liable to be punished with death or imprisonment for life, he shall also be liable to fine. Ignoring the said mandate of Section 302 of the Indian Penal Code, in the present case, the learned Sessions Judge, while convicting the accused No.1 for the offence punishable under Section 302 of the Indian Penal Code, sentencing him to undergo imprisonment for life, has not imposed any fine. That is why, the State has rightly filed Criminal Appeal No.72/2017.
31. For the reasons stated above, the first point raised for consideration in the present appeals is answered in the negative holding that the learned Sessions Judge is not justified in not imposing the fine on the accused No.1
- 51 -
while sentencing him for the offence punishable under Section 302 of the Indian Penal Code.
And the second point is answered partly in affirmative holding that accused No.1 has made out a case to interfere with the impugned judgment of conviction and order of sentence and the appellant/accused No.1 is liable to be convicted for the offence punishable under Section 304 Part I of the Indian Penal Code.
32. In view of the above, we pass the following:
ORDER
(i) Criminal Appeal No.72/2017 filed by State is hereby allowed.
(ii) It is hereby declared that whenever the accused is convicted for the offence punishable under Section 302 of the Indian Penal Code, sentencing him to undergo the punishment of death or imprisonment for life, it is mandate for the Sessions Court to
- 52 -
impose fine, as envisaged under Section 302 of the Indian Penal Code.
(iii) Criminal Appeal No.1906/2016, filed by the Appellant/Accused No.1 is hereby allowed in part.
(iv) The impugned judgment of conviction dated 08/08/2016 and order of sentence dated 10/08/2016 passed in S.C.No.48/204 on the file of the I Additional District and Sessions Judge, Chitradurga, is hereby modified.
(v) The impugned judgment of conviction and
order of sentence, sentencing the
appellant/accused No.1 to undergo rigorous imprisonment for a period of three months for the offence punishable under Section 504 of the Indian Penal Code, is hereby confirmed.
(vi) The impugned judgment of conviction and
order of sentence, sentencing the
- 53 -
appellant/accused No.1 to undergo
imprisonment for life for the offence
punishable under Section 302 of the Indian Penal Code is hereby modified. The appellant/accused No.1 is sentenced to undergo rigorous imprisonment for a period of TEN years and to pay fine of Rs.80,000/-, in default, to undergo simple imprisonment for a period of 02 years, for the offence punishable under Section 302 of the Indian Penal Code.
(vii) In exercise of Appellate powers under the provisions of Section 357(3) of the Code of Criminal Procedure, out of the fine amount of Rs.80,000/- a sum Rs.75,000/- shall be paid to the legal representatives of the deceased and remaining amount of Rs.5,000/- shall vest with the State Government towards defraying charges.
(viii) Both the sentences shall run concurrently.
- 54 -
(ix) The appellant/accused No.1 is entitled to the benefit of set-off, as provided under Section 428 of the Code of Criminal Procedure.
(x) It is needless to observe that, since the Karnataka State Legal Services Authority has not paid any compensation to the legal representatives of the victim under the Victim Compensation Scheme, the Authority is directed to take necessary steps to ensure that adequate compensation is paid to the legal representatives of the victim, in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE Page Nos. 1 to 24.... S* 25 to end ...kcm