Karnataka High Court
Datta @ Dattatrayya Ganapati vs State Of Karnataka on 17 June, 2020
Equivalent citations: AIRONLINE 2020 KAR 1564, 2020 (4) AKR 245
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17th DAY OF JUNE 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL. APPEAL NO.100123/2016
BETWEEN
DATTA @ DATTARAYYA GANAPATI
DESHBHANDARI,
AGED: 47 YEARS, OCC: FISHERMAN,
R/O: JADDIMOOLE, VILLAGE DEVAGI,
TAL: KUMTA, DIST: KARWAR.
... APPELLANT
(By SMT. ANURADHA DESHPANDE, ADVOCATE)
AND
STATE OF KARNATAKA,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD,
THROUGH KUMTA RURAL POLICE
BY PSI.
... RESPONDENT
(By SRI.V.M.BANAKAR, ADDL SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C., PRAYING TO CALL FOR RECORDS IN SC
NO.47/2012 ON THE FILE OF DISTRICT AND SESSIONS
JUDGE, UTTARA KANNADA, KARWAR AND SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
PASSED AGAINST THE APPELLANT/ACCUSED FOR THE
OFFENCE UNDER SECTION 302 Cr.P.C.
:2:
THIS APPEAL COMING ON FOR HEARING THIS DAY,
B.A.PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/accused is before this Court challenging the judgment of conviction and order of sentence passed by the learned District and Sessions Judge, Uttara Kannada, Karwar (hereinafter referred to as the 'trial Court') in S.C.No.47/2012 dated 26.11.2014.
2. We have heard the learned counsel for the appellant Smt.Anuradha Deshpande and the learned Additional SPP Sri.V.M.Banakar for the respondent- State.
3. The genesis of the case of the prosecution in brief is that the accused and deceased were brothers and in respect of some immovable property held by their family, there was a dispute. On 06.02.2012 at about 10.00 p.m., there was quarrel between the accused and the deceased, further they came quarreling near the house of PW4 and at that time, accused who was carrying the rod assaulted the deceased on his head and :3: caused bleeding injuries. Though PW4 and 5 tried to pacify and rescue the deceased, accused also assaulted the complainant-PW3-the second wife of the deceased. By receiving the information police came to the spot and recorded the statement as narrated by PW3 and registered the case in Crime No.30/2012 for the offence punishable under Section 302 of IPC. Thereafter after investigation, charge sheet has been filed.
4. After committal, Sessions Court took cognizance and secured the presence of the accused and after hearing both the parties, the charge was framed. The accused pleaded not guilty. He claims to be tried. In that light, the prosecution examined 17 witnesses, got marked 22 documents and 7 material objects. The statement of the accused under Section 313 of Cr.P.C. was recorded and the accused denied all the incriminating materials but has not led any evidence neither got marked any documents.
5. After hearing both the parties, the trial Court acquitted the accused for the offence :4: punishable under Section 323 of IPC and convicted him for the offence punishable under Section 302 of IPC. Challenging the legality and correctness of the said judgment, the appellant/accused is before this Court.
6. It is the contention of the learned counsel appearing on behalf of the appellant that the alleged incident has taken place without there being any preparation, motive or intention. It is her further submission that the deceased himself has gone to the house of the accused and they started quarreling and came near the house of PW4 and assaulted the deceased with a rod, as the deceased was doing centering work, the rod was available there itself. That itself goes to show that the alleged incident has taken place without there being any intention. It is her further submission that in the voluntary statement of the accused, he has stated before the police that the deceased had thrown stone :5: and in that rift, the accused has assaulted with a rod. In that light, it is her contention that though the accused has committed the offence, the trial Court without properly appreciating the evidence has convicted him for the offence punishable under Section 302 of IPC instead of convicting him under Section 304-I or II of IPC.
7. It is the contention of the learned Additional SPP that earlier the accused has committed the murder of his mother in respect of the same property dispute and subsequently in the appeal, the accused has been released and thereafter he has committed the offence of similar nature. It is his further submission that PW3 is an injured eye witness. She has clearly deposed that the accused has carried iron rod and while quarreling with the deceased, has assaulted not only one blow but with multiple blows. The said evidence is also corroborated with the evidence of PW10-the doctor who has :6: conducted autopsy over the body of the deceased. It is his further submission that the prosecution has clearly established the fact that there was a motive behind the alleged quarrel and assault.
8. Taking into consideration the evidence of PW3 to 5, medial evidence and conduct of the accused, the trial Court has came to the right conclusion and has convicted the accused for the offence punishable under Section 302 of IPC instead of Section 304-I or II of IPC. There is no material brought by the accused so as to bring the case under Section 304-I or II of IPC. In that light, he prays to dismiss the appeal.
9. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and have perused the records.
10. It is not in dispute that the deceased died a homicidal death. Even the doctor who has conducted autopsy over the body of the deceased had issued post :7: mortem report as per Ex.P10, has opined that the cause of death is cardio respiratory arrest due to head injury. In that light, we will not hesitate to hold that the deceased died a homicidal death. Though the learned counsel for the appellant has urged many more grounds to her arguments which materially boils out to the fact that the trial Court ought to have convicted the accused for the offence punishable under Section 304-I or II of IPC and not under Section 302 of IPC.
11. If we take into consideration the evidence of PW3, she has clearly deposed that one year back the accused and the deceased have quarreled with regard to the property dispute. She has further deposed that at the time of the incident, she was there in the house. Prior to that there was a quarrel between the accused and the deceased in the house of the accused and thereafter they came to her house quarrelling, for the purpose of land and proceeded to the house of PW4. There also they quarreled and the accused assaulted on the head of the deceased with the iron rod and her :8: husband died on the spot. She has further deposed that when the deceased fell down, the accused also assaulted on his head, forehead and other parts of the body with the iron rod. She has further deposed that PW4 and 5 were also there in the house, where the incident has taken place. She has further deposed that in the said incident, she has also suffered with the injuries. She has been taken to Kumta hospital and got treated.
12. During the course of cross examination, though several suggestions have been made, some suggestions have been admitted but they are not going to throw any light to discard the evidence of this witness. PW4 and 5 also reiterated the evidence of PW3. Even in their evidence also nothing has been elicited so as to discard their evidence.
13. On perusal of the evidence of PW4 and 5, there is no dispute with regard to the accused assaulting the deceased with rod. The only question which arise for consideration is that, whether he was having any intention to cause the death or not. As can be seen, the :9: evidence of these witnesses, it goes to show that the accused and the deceased started quarrelling in the house of the accused and thereafter they came to the house of the deceased, they proceeded to quarrel in the house of PW4 and even it has been revealed in the evidence that the accused carried a rod. Thereafter he has assaulted the deceased. Even the evidence of PW3 as well as 4 goes to show that even when the deceased fell down, the accused assaulted him. Though during the course of argument, the learned counsel for the appellant by bringing to the notice of this Court the voluntary statement of the accused made before the police contending that in the first instance only the deceased had thrown stone and caused injuries and the same has been got treated with PW10. But it is well settled proposition of law that the voluntary statement of accused cannot be used for any purpose except for the purpose of recovery under Section 27 of Evidence Act. When nothing has been brought on record even by the suggestion to the effect that the deceased had : 10 : provoked the accused so as to commit the offence, then under such circumstances, it cannot be held that because of such provocation caused by the deceased, the accused assaulted with rod. Even no such suggestions have been made during the course of cross examination. Under such circumstances, the benefit of provisions of Section 304-I or II of IPC cannot be extended to the accused/appellant. When and under what circumstances the provisions of Section 304-I or II of IPC has to be applied has been elaborately discussed in the decision of this Bench, wherein I am (BAPJ) one of the member. In paragraphs 23, 24 and 25 the same has been observed as under:
"23.In order to consider the case under Sections 304-I and II of IPC, the case has to be made out under exceptions No.1 or 4 of Section 300 of IPC. For the purpose of brevity we quote Section 300 of IPC and exceptions (1) and (4) which reads as under:
300. Murder -Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--: 11 :
2ndly.--If its done with the intention of causing such bodily injury as the offender likely to cause the death of the person to whom the harm cause, or--
3rdly.--If its done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.-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 cause the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
Firstly.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a : 12 : public servant in the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defense.
Exception 2.- xxx xxx xxx Exception 3.- xxx xxx xxx Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.
24. On going through exception 1 of Section 300 of IPC, culpable homicide is not murder if the offender while doing the act deprived of the power of self control, by grave and sudden provocation. In order to bring the case under the said exception accused has to show that he deprived of the power of self control, by grave and sudden provocation which is caused by the person whose death has been caused.
25. Second aspect is in order to attract exception No.4, four requisites must be satisfied by : 13 : the accused (i) it was a sudden fight (ii) there was no premeditation (iii) the act was committed in heat of passion and (iv) assailant has not taken undue advantage or acted in cruel manner.
14. Keeping in view the ratio laid down in the above said decision, we are of the considered opinion that no such circumstances or benefits have been brought by the accused so as to attract the provisions of Section 304-I or II of IPC. In that light, the contention taken up by the learned counsel for the appellant/accused is not having any force and the same is rejected.
15. Further the prosecution examined PW11-the Director and Inspector General working as Chief Superintendent of Central Prison, Belagavi who deposed that the present accused was a convict in S.C.No.39/2000 vide judgment of conviction and order of sentence dated 27.10.2000 for the offence punishable under Section 302 of IPC for causing death of his mother and sentenced him to undergo life imprisonment as per Ex.P22. He further stated that when the accused had : 14 : challenged his conviction before this Court, his conviction was commuted for six years for the offence under Section 304-II of IPC and thereafter he was released from prison on 04.04.2005. During cross examination of this witness, it is elicited that the conviction imposed by the trial Court under Section 302 of IPC was reduced by the High Court as one under Section 304-II of IPC and reduced imprisonment for six years. There is absolutely no dispute regarding previous conviction of this accused for causing death of his mother. The previous conduct of accused in this regard is to be borne in mind in considering his conduct in committing the offence where he alleged to have caused death of his younger brother Krishna.
16. The other evidence if it is perused, the remaining witnesses are official witnesses and pancha witnesses. So when there is ample material of the eye witness, then under such circumstances, we feel that it is not just and proper to discuss there evidence in detail. Their evidence is neither going to help either for the : 15 : purpose of acquitting or for the purpose of giving any other benefit. So in that light the evidence of only material witnesses have been discussed and the judgment has been delivered.
17. We have perused the judgment of the trial Court. It indicates that though there is evidence to convict the accused for the offence punishable under section 323 of IPC for having assaulted PW3 with rod, the trial Court acquitted the accused for the offence under Section 302 of IPC. We are of the considered opinion that when the accused has been convicted and sentenced for a major offence then under such circumstances that too when the State has not preferred any appeal, we feel that we can leave the issue at that stage itself.
18. We have carefully and cautiously gone through the judgment of the trial Court. The trial Court after appreciating the evidence of eye witnesses has come to a right conclusion and has rightly convicted the accused. There are no good grounds made out so as to : 16 : interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed.
The appeal is dismissed as devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE KGK