Karnataka High Court
Mallesha Son Of Dodda Annappa Shetty vs State By Aldur Police on 23 December, 2020
Bench: B.Veerappa, Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF DECEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
CRIMINAL APPEAL NO.886 OF 2015
BETWEEN:
MALLESHA
SON OF DODDA ANNAPPA SHETTY,
AGED ABOUT 40 YEARS,
AGRICULTURIST,
R/O. KALLARE, KADAVANTHI VILLAGE,
KHANDYA HOBLI,
CHIKKAMAGALURU TALUK - 577 101.
...APPELLANT
(BY SRI. JEETHU R.S., ADVOCATE)
AND:
STATE BY ALDUR POLICE,
REPRESENTED BY PUBLIC PROSECUTOR,
CHIKKAMAGALURU 577 101.
... RESPONDENT
(BY SRI. VIJAYKUMAR MAJAGE, ADDITIONAL STATE
PUBLIC PROSECUTOR)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CRIMINAL PROCEDURE CODE PRAYING TO
SET ASIDE THE JUDGMENT DATED 18.04.2015 PASSED BY
THE I ADDITIONAL SESSIONS JUDGE, CHIKKAMAGALURU
IN S.C. NO.82/2013 - CONVICTING THE APPELLANT /
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF THE INDIAN PENAL CODE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 09.12.2020 AND COMING ON FOR
PRONOUNCEMENT, THIS DAY, NATARAJ RANGASWAMY
J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the accused challenging the Judgment dated 18.04.2015 passed by the I Additional Sessions Judge, Chikkamagaluru, in S.C. No.82/2013 by which the accused was convicted for an offence punishable under section 302 of the Indian Penal Code, 1860 and the consequent Order sentencing the accused to undergo imprisonment for life and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo further simple imprisonment for six months.
3
2. A criminal prosecution was initiated on the written report filed on 30.04.2013 at 1.30 p.m with the respondent - police by Nirvanegowda, whereby he informed that he along with his wife and three children were residing at Kadavanthi Village since 35 years. He stated that five years since then, the accused had constructed his house. He stated that, there were skirmishes between his family and the accused over a pathway leading to their house. He stated that fifteen days prior thereto, he had undertaken repairs to his house and for that purpose had got wood from the saw mill. He stated that on 30.4.2013, his son (deceased) had got a load of sand from the farm of Annegowda in a tractor hired from Basapura and had dumped it near the house of the accused. He stated that at 11.00 a.m., he, his wife and the deceased were shifting the sand in plastic bags to their house at which time, the accused came out of his house with a machete in hand and demanded the complainant as to why they had dumped sand near his house. The accused foul mouthed the complainant and his family members as 4 bastards and threatened to chop off the complainant and his family members. The complainant informed the accused that they were shifting sand to their house. The deceased intervened and informed the accused not to create a ruckus and they would shift the sand. Then the accused without any provocation assaulted the deceased with the machete on his neck. The deceased ran to escape but was tailed by the accused for about 300 meters and near the barren land belonging to Shankaregowda, the accused assaulted the deceased on his head, upper neck, left knee, left forearm and chopped off four fingers of his left hand. The complainant intervened and separated them. The deceased collapsed and the accused ran away with the machete. The residents of the village named Annegowda and Shankaregowda who came to the spot, called ambulance on 108 and shifted the deceased near to the road by which time, he had expired. The complainant alleged that to wreck vengeance, the accused had amplified a minor issue of dumping sand in front of his house and killed his son. The jurisdictional Police 5 registered Crime No.105/2013 against the accused for the offence punishable under section 302 of IPC and took up investigation.
3. An inquest was conducted on 30.04.2013 under Section 173 of the Criminal Procedure Code, 1973 (Cr.P.C.) and a spot panchanama of the first scene of crime was drawn on the same day which indicated the mound of sand dumped by the complainant which was six feet away from the crime spot and the house of the accused lay 12 feet away from the crime spot. The police had also taken photographs of the first scene of crime. Later, a mahazar was drawn of the second scene of crime which indicated that it was 300 metres away from the house of the accused and in the land of Shankaregowda. The police had also taken photographs of the second scene of crime. The clothes worn by the deceased was seized under a mahazar. The police collected the leaves of basri tree and plantain leaves which were blood stained from the first scene of crime under the mahazar and also collected 6 the bloodied mud as well as control sample of mud from the second scene of crime under a mahazar. The blood stained clothes worn by the deceased were seized under a mahazar. The police drew a rough sketch of the spot of the crime. The accused was apprehended by PW.12 near Jenugadde bus stop on 01.05.2013. The accused was subjected to medical examination on 01.05.2013 and no external injuries were found on his body. The confession of the accused was recorded and the relevant portion was marked. Later, on the confession of the accused, the machete used for the crime, the shirt, trouser worn by the accused at the time of the crime and a towel carried by the accused which were all blood stained were recovered from the house of the accused under a mahazar in the presence of the panchas. Photographs were taken at the time of seizure of the machete and blood stained clothes of the deceased. The blood stained mud, leaves containing drops of blood, sample mud, mud stained clothes of the deceased, accused and the machete were sent for forensic examination and the FSL report indicated that these 7 objects contained stains of human blood of 'O' group. A sketch of the spot of the crime was prepared by a Junior Engineer, PWD and the RTC of the Government land bearing Sy.No.306/P1 and the RTC of the land belonging to the brother of Shankaregowda were also obtained. The statement of the complainant, seizure witnesses, the inquest witnesses, the eye witnesses, the mother of the deceased, the doctor who conducted the post mortem, the Assistant Sub Inspector of Police, who apprehended the accused, the Police Sub Inspector before whom the accused was produced, the Investigating Officer and the statement of the other witnesses who spoke about the circumstances, the official witnesses were recorded and a charge sheet was filed against the accused in C.C.No.755/2013 for the offence punishable under Section 302 of IPC.
4. The accused was committed in S.C.No.82/2013 and was charged for an offence punishable under Section 8 302 of IPC, but he pleaded not guilty and sought to be tried.
5. Before the Trial Court, the prosecution examined PWs.1 to 13 and marked Exs.P1 to P25 and marked M.O. Nos.1 to 11. PW.1 was the father of the deceased / complainant who identified his complaint as Ex.P1, his signatures on the spot mahazars (Exs.P2 and P3) and also objects seized by the police (M.O Nos.1 to 8). He also identified a photograph taken by the police at the time of Ex.P2 as Ex.P4. PW.2 was a witness to the spot mahazar (Ex.P2) of the first scene of crime where M.O. Nos.1 and 2 were seized and he identified the clothes worn by the accused as M.O. Nos.9 and 10. He identified the photos taken at the time of seizure of M.O. Nos.5, 9, 10 and 11 from the house of the accused as Exs.P7 to P10. PW.3 was the witness to the seizure mahazar (Ex.P6) by which the machete and blood stained clothes of the accused were seized from the house of the accused (M.O. Nos.5, 9, 10, and 11). PW.3 and PW.4 were the eye 9 witnesses to the incident and witnesses to the spot mahazar (Ex.P3) of the second scene of crime from where the samples of bloodied mud and a control sample of mud was seized (M.O. Nos.3 and 4). PW.5 was the witness to the Inquest mahazar (Ex.P11), PW.6 is the mother of the deceased who identified the blood stained clothes of the deceased. PW.7 is the eye witness to the incident and a witness to the Inquest who identified the blood stained clothes of the deceased. PW.8 is also an eye witness and a witness to the Inquest. PW.9 is the Constable who arrested the accused. PW.10 is the Head Constable who received the complaint and registered Crime No.105/2013 which was marked as Ex.P12. PW.11 is the Doctor who conducted a post mortem on the deceased and identified the report as Ex.P13. PW.12 is the Sub Inspector of Police at Aldur who received a call informing about the murder and thereafter arrested the accused and produced him before the Investigating Officer in terms of Ex.P14. PW.13 is the investigating officer who identified the photographs as Exs.P7, P8, P9, P10 and P21. He identified the receipt 10 of M.O. Nos.1 to 11 and the FSL report as Ex.P15 and the serology report as Ex.P16. He prepared a sketch of the two crime scenes as Exs.P17 and 18. He identified the receipt issued for receiving the body of the deceased as Ex.P19. He recorded the confession of the accused as Ex.P20 and the report of the medical examination of the accused as Ex.P22. He collected the RTCs of Sy.No.79/P2 of Aldur that stood in the name of B.A.Ramesh and Sy.No.306/P1 of Aldur that stood in the name of Government as Exs.P23 and 24. Later the sketch prepared by the Junior Engineer of PWD was identified as Ex.P25.
6. The accused in his statement under Section 313 of the Criminal Procedure Code, 1973 (Cr.P.C.) stated that he had purchased 0-22 guntas of land which was the subject matter of a litigation before the Civil Court and which was decreed in his favour and an appeal against it was pending. He claimed that there was an enmity between him and the prosecution witnesses. The accused 11 led his defence evidence as DW.1 and examined his daughter as DW.2 and marked Exs.D1 to D8.
7. Before the Trial Court, the following questions fell for its consideration:
1) Whether the prosecution proves beyond reasonable doubt that the death of Kanakaraju is homicidal?
2) Whether the prosecution proves beyond reasonable doubt that on 30.4.2013 at about 11.30 a.m. at Kadavanthi village, Khandya Hobli, Chikkamagaluru Taluk, the accused intentionally and knowingly caused the death of the deceased Kanakaraju by assaulting him on his head, neck, left leg knee and other parts of the body with a sickle and thereby committed an offence punishable under Section 302 of I.P.C.?
3) What Order?
8. The Trial Court after examining the oral and documentary evidence on record held that the prosecution had proved the commission of an offence by the accused 12 under section 302 of IPC beyond doubt and therefore, convicted the accused for an offence punishable under Section 302 of IPC and sentenced the accused to undergo life imprisonment and to pay a fine of Rs.5,000/- and in default, to undergo simple imprisonment for six months.
9. The accused has appealed against the conviction and consequent sentence.
10. The learned counsel for the accused pointed out that the evidence of the prosecution pointed to the fact that PW.1 and his family members had vandalized a fence to dump the tractor load of sand in respect of which, there was a verbal duel between the accused and complainant/his family members. The learned counsel contended that later, the deceased tried to dismantle the stone revetment of the house of the accused, while trying to shift the sand. The learned counsel contended that soon after he was informed by his daughter about the deceased vandalizing the stone revetment, the accused came from his land. The learned counsel for the appellant further 13 contended that usually all farmers in the Western Ghats carry a machete when they go to their land for their protection. He claimed that when the accused reached the spot, he was infuriated when he saw that some revetment stones were removed and was thus, provoked and assaulted the deceased. The learned counsel also brought to the notice of the Court, the contents of spot mahazar (Ex.P3) and the evidence of PW.3 and contended that there were visible evidence to show that a fence put up by the accused was vandalized by the deceased to dump sand. He also contended that the accused had purchased the land measuring 0.27 guntas in Sy.No.90, block No.2, of Kadavanthi village from Smt.Gowramma and her children in terms of a sale deed dated 18.06.2007 and that his vendors were disturbing his possession which compelled him to file a suit in O.S. No.234/2007 which was decreed and an appeal filed by his vendors in R.A No.99/2011 was dismissed.
14
11. The learned counsel for the appellant further contended that his vendors thereafter set up their sister to file a partition suit in O.S. No.23/2009 which was dismissed and an appeal filed therefrom in R.A No.125/2012 was pending. He claimed that some of the witnesses whose statements were recorded by the police were relatives of the vendors of the accused. Therefore he contended that the case of the prosecution is not totally believable and that the accused was framed in the case. He also contended that PW.13 failed to note that the revetment stones were removed and thus contends that the investigation was done half heartedly to help PW.1 and his family members to secure his conviction. He invited our attention to Ex.D1 which was the statement of PW.7 under Section 161 of Cr.P.C. and contended that there was an inconsistency in the evidence of PW.7 and that therefore his evidence cannot be believed. He therefore contended that the accused had no motive to kill the deceased but he was overcome by sudden provocation to assault the deceased. Lastly, the learned counsel 15 contended that even if the accused is guilty of homicidal death, then the accused had acted due to grave and sudden provocation which did not amount to murder.
12. Learned counsel submits that even if the accused is guilty of homicide, he had no pre-meditation to commit the murder of the accused. He contended that the accused was overcome by grave and sudden provocation due to the deceased removing the revetment stones as that would have damaged his house. He claimed that the police had deliberately not noticed the removal of the stones though the confession statement did bear a reference. He claimed that the accused has three children and that the accused had undergone imprisonment of seven years seven months and thus prays that the case may be considered as one falling under Section 304-Part II of IPC.
13. In support of his contentions, the learned counsel for the appellant relied upon the following authorities:
16
1) Sita Ram vs. State (NCT of Delhi) reported in 2019 (7) SCC 531.
2) A. Maharaja vs. State of Tamil Nadu reported in 2008 (17) SCC 173.
3) R. Jayapal vs. State of Tamil Nadu and another reported in 2019 (8) SCC 342.
4) State of Madhya Pradesh vs. Mohar Singh reported in 2019 (15) SCC 57.
14. Per contra, the learned Additional State Public Prosecutor submits that the evidence on record clearly pointed to the fact that there was a long standing enmity between the accused and the family of the deceased. The fact that the accused came out of his house with a machete indicates that he had an intention to commit the murder. Further, he stated that the accused after assaulting the deceased once pursued the deceased for nearly 300 meters and again fatally assaulted the deceased, thereby making it clear that the accused had the intention to murder the deceased. The Learned Addl. SPP took us through the oral testimony of the prosecution witnesses who all spoke about the long standing feud 17 between the accused and the deceased. He also took us through the post mortem report which indicated that the accused had inflicted nearly 7 deep wounds on the deceased and therefore contended that these wounds indicate the grudge that the accused nurtured against the deceased and therefore contended that it was not due to any grave and sudden provocation. The learned Addl. SPP submitted that the seizure of M.O. No.5 at the behest and custody of the accused was proved by the evidence of PW.2. He stated that the eye witnesses have stood by the prosecution and that there was no inconsistency or contradiction in their evidence which all pointed to the culpability of the accused. He therefore submitted that the Trial Court was justified in convicting the accused for the offence under Section 302 of IPC.
15. We have given our thoughtful consideration to the arguments advanced on both the sides and perused the records of the Trial Court, its Order of Conviction and 18 Order of sentence as well as the grounds urged by the accused in the present appeal.
16. The following points arise for our consideration:
1) Whether there was sufficient evidence before the Trial Court to prove beyond doubt that the accused was guilty of causing the homicidal death of the deceased?
2) Whether the evidence on record indicated that the accused had caused the death due to grave and sudden provocation by the deceased entitling the accused for a lesser punishment under Section 304-II of IPC?
17. Since both the points are interlinked, they are answered together.
Before dealing with the evidence on record to ascertain whether the prosecution had proved beyond doubt that the accused had committed an offence 19 punishable under Section 302 of IPC, it is imperative that the following evidence is first dealt with, as this gives a gross idea of the strained relationship between the accused and PW.1, PW6 which ultimately would be crucial to determine the existence of any motive for the homicidal death of the deceased.
18. PW.1 stated in his cross-examination that he was the first to construct a house in the Government land while the accused had constructed his house seven years prior to 30.04.2013. He stated that he had to pass through a footpath behind the house of the accused to reach his house. He deposed that the accused had constructed a 4 feet stone wall behind his house to prevent his house sliding off. He further stated that the Tahasildar had visited the spot and had ordered that the space should be used as a pathway and not for movement of vehicles. He stated that there was dispute between him and the accused over the pathway and that his wife (PW.6) had lodged two- three complaints against the accused.
20
19. PW.2 stated that the houses of the accused, deceased and their neighbours were lying lower than the Kadavanthi main road. He stated that a fence was put up between the house of the brother of the accused and the house of the accused. Ex.P17 which is the sketch drawn by the investigating officer tallies with the evidence of this witness.
20. PW.6 in her chief examination stated that her family and the accused were at loggerheads from a long time over the usage of the pathway. She stated that the accused had fenced the pathway and had reprimanded against usage of the pathway. She stated that in respect of this pathway, her family members had lodged complaints with the police, Tahasildar and also convened a Panchayath in the village. She stated in her cross- examination that adjacent to this pathway was the estate of Ganesh who had encroached into the pathway and therefore the pathway had become too narrow for PW.1, PW.6 and her family members to pass through. She 21 identified the sketch prepared by the Junior Engineer, PWD which was marked as Ex.P25. A perusal of this sketch shows that the house of the accused lay 5 feet above the 3 feet pathway behind his house and a stone revetment was laid to protect the house from sliding off.
21. PW.4 stated that there was longstanding animosity between the accused and PW.1 over the usage of the pathway. He further deposed that in respect of the usage of this pathway, a representation was made to the Grama Panchayath whereupon the Tahsildar had visited the spot and directed that the pathway shall be used only as a footpath and not for movement of vehicles.
22. PW.7 deposed that there was a dispute between the PW.1 and the accused over the usage of the passage and that a panchayath was convened whereat, it was decided that the passage should be used as a footpath. He stated that only a bike could pass through the passage. He further deposed that PW.1 and his wife were 22 requesting the accused time and again to allow movement of vehicles in this passage.
23. On the fateful day i.e., on 30.04.2013, the deceased had dumped a load of sand near this pathway to transport it manually to his house. It is found from Ex.P3 that the wire fencing was removed to dump the sand load and PW.3 stated that the wire fencing was removed to dump the sand load and this ignited a quarrel between the accused and PW.1, PW6 and deceased, which snuffed out the life of the deceased. This case has to be therefore considered in the context of the previous animosity between the accused and PWs.1 and 6 over the alleged usage of the passage.
24. PWs.1 and 6 are the father and mother of the deceased and are eye witnesses to the incident when the accused had assaulted the deceased not only at the first crime scene but also at the second.
23
25. PW.1 stated that on 30.04.2013 at about 10.00 a.m., a tractor load of sand was dumped behind the house of the accused and he, his wife, deceased were shifting the sand in gunny bags, to their house. At about 11.00 a.m., the accused came with a machete in his hand and demanded why the complainant had dumped sand behind his house. He stated that though they told the accused that they would shift the sand within one hour but yet, the accused without any provocation assaulted the deceased on his neck. The deceased ran to escape but the accused pursued him for nearly 300 meters while PW.1 and PW.6 followed them. He deposed that the accused again assaulted the deceased on his left leg, left hand and on the head. PW.1 and PW.6 raised an alarm. He stated that due to the injuries, the deceased collapsed and the accused ran away with the machete in his hand. He identified his signature on his written report (Ex.P1) and the spot mahazar (Ex.P2) of the first scene of crime and also under which 6 leaves which contained blood droplets were collected by the police.
24
26. PW.2 was the witness to the spot mahazar (Ex.P2) who deposed that the police collected the blood marks on 6 leaves at the first scene of crime where the accused assaulted the deceased. He was also the witness to the seizure of M.O. Nos.5, 6, 7, 8 and 9 in terms of Ex.P5. He identified his signatures on Exs.P2 and P5 and also identified M.O. Nos.1, 2, 5, 6, 7, 8, 9 and 10. He also identified the photographs taken by the police at the time of drawing Ex.P6 which were marked as Exs.P7 to 10. This witness supported the prosecution.
27. PW.3 is an eye witness to the incident who deposed that at about 11.00 a.m. he and PW.4 were sitting on a rock about 200 feet away from the house of the accused. They heard some commotion near the house of the accused and they went to the house of the accused. At that time, the accused had assaulted the deceased on the neck and leg and was chasing the deceased. They also saw PWs.1 and 6 running behind the accused and the deceased. This witness and PW.4 also ran behind the 25 accused, deceased, PWs.1 and 6 for about 300 meters. He stated that he saw the deceased assaulting the deceased with the machete in the land of Shankaregowda which was about 300 meters away from the house of the accused. He identified the bloodied mud and the sample mud collected by the police which were already marked as M.O Nos.3 and
4. He identified his signature on Ex.P3 and also deposed that the police drew the mahazar in the land of Shankaregowda. He identified the photographs taken by the police at the time of mahazar and the photographs were marked as Ex.P4. He also identified the machete used by the accused for committing the crime. This witness stood with the prosecution and supported the prosecution as the accused failed to elicit anything to discredit the trustworthiness of this witness.
28. PW.4 is the witness to the spot mahazar (Ex.P3) and identified his signature thereon. He deposed that the police drew Ex.P3 in the land of Shankaregowda and collected the bloodied mud and sample mud. He 26 identified the machete used by the accused to commit the crime (M.O. No.5) and stated that the police recorded his statement. He deposed that hearing the commotion he reached the place and saw that the accused was chasing the deceased and by the time he saw the deceased, he had suffered 7 to 8 injuries and that the accused was assaulting the deceased. He deposed about the presence of PWs1, 3 and 6 at the scene of crime. He was also of the persons who shifted the deceased near the house of Ramshetty. He denied the suggestion that he had not seen the incident.
29. PW.5 was a witness to the Inquest conducted on the deceased and deposed that the police conducted the inquest (Ex.P11) near the house of Ramshetty and he identified his signature thereon. He has supported the prosecution by stating that PW.7 and PW.8 were present at the time of the Inquest.
30. PW.6 - the mother of the deceased deposed that she, her son (deceased) and her husband were 27 shifting the sand dumped near the pathway in bags to their house. At that time, the accused demanded why they had dumped sand in the pathway. She deposed that they told the accused that they would shift the sand. The accused assaulted the deceased on the neck with a machete. The deceased ran away to escape but the accused chased him and assaulted him with the same machete. She deposed that three of four fingers of the left hand were chopped off and he had suffered injuries on his left leg and head. She screamed out loud and that PW.7 and PW.8 came to the spot. The accused fled from the spot. This witness supported the prosecution.
31. PW.7 is another eye witness to the incident, who saw the commotion in front of the house of the accused between PW1, PW6, deceased and the accused. He stated that the accused chased the deceased with a machete in hand and that in the land of one Shankaregowda the accused assaulted the deceased. He deposed that he saw PWs.1 and 6 running behind the 28 deceased and the accused and he also ran behind them. He stated that he saw the accused assaulting the deceased with the machete. He deposed that he tried to intervene but the accused threatened him. He identified the machete used by the accused to commit the crime. He also identified his signature on the Inquest mahazar (Ex.P11) and stated that the Inquest mahazar was drawn at the place where the deceased was lying. He identified the clothes worn by the deceased (M.O. Nos.6, 8 and 11).
32. PW.8 deposed that a year next before the date of his examination-in-chief he had gone to his aunt's house and at 11.00 a.m., he heard some commotion near the way to his farm. He went near the house of the accused. When he reached the place, he saw complainant PWs.1, 6 and accused were present and were quarrelling. When this witness reached this place, the accused had already assaulted the deceased on the head and neck. The deceased escaped and ran away towards the land of one Ramesha. The deceased fell down in the land of one 29 Ramesha and the deceased was assaulted by the accused with the machete that he was holding. This witness identified his signature on the Inquest (Ex.P11) and deposed that the police drew the Inquest at the spot where the deceased lay. This witness also supported the prosecution. When he was questioned whether he saw the accused assaulting the deceased, he stated that he saw the accused assaulting the deceased with a machete.
33. PW.9 is the Constable who saw a person standing suspiciously at Jenugadde bus stop and tried to run away after seeing the police. He was apprehended and it was found that the person was the accused in the present case. He was produced before PW.13.
34. PW.10 is the head constable at Aldur Police station who received a written report of PW.1 from CW.23 at 1.30 p.m. on 30.04.2013 and he registered Crime No.105/2013 and submitted it before the Court and his superiors. He identified his signatures on the written report 30 of PW.1. He deposed that Ex.P1 was recorded by Constable Ravindra but no endorsement was made about it on Ex.P1.
35. PW.11 is the Doctor who conducted the post mortem who deposed that the body bore 6 injuries and rigor mortis was present all over. The injuries were stated to be ante mortem and death was due to hypo volemic shock (due to excess loss of blood). The deceased had a fractured skull, fractured cervical vertebra, cut wounds on then middle, ring and little fingers of the left hand and on the left knee joint etc. She stated that the injuries found on the deceased could be caused by M.O. No.5 and that death could be caused by the injuries. She identified her signature on the post mortem report (Ex.P13). An attempt was made to discredit this witness by suggesting that M.O. No.5 was not sent for examination before finalising Ex.P13. She deposed that she had not examined M.O. No.5. She deposed that injuries No.2 and 5 in Ex.P13 could be caused by a crowbar. She deposed that on examination, it 31 was found that the parietal arteries were cut but were not shown in Ex.P13.
36. PW.12 is the Sub Inspector of Police at Aldur Police Station. He stated that he received a phone call from Kadavanti village at 12.30 p.m. and the caller informed him that there was a murder in the village. He deposed that he reached the village at 1.00 p.m. along with his staff. He deposed that the body of the deceased lay near the road in front of the house of Ram Shetty. He enquired and PW.1 submitted his complaint which was forwarded through CW.23 to the police station. He deposed that he arrested the accused from Jenugadde bus stop and submitted his report of arrest of accused to PW.13 as per Ex.P14 and identified his signature on Ex.P14. He also identified his signature on Ex.P1.
37. PW.13 is the investigating officer who deposed that he conducted the inquest on the deceased on 30.04.2013 and recorded the statements of PWs1, 6 and
7. He conducted a spot mahazar in the presence of PW.1 32 and PW.2 and identified his signature on Ex.P2 and prepared a rough sketch as per Ex.P17 and identified his signature thereon. He deposed that he prepared the mahazar as per Ex.P3 in the presence of PWs.3 and 4 and identified his signature thereon. He also prepared a sketch of the second crime scene as Ex.P18 and identified his signature thereon. He identified M.O. Nos.1 to 4. The body of the deceased was handed over to the relatives of PW.1 as per Ex.P19. The accused was apprehended on 01.05.2013 and was produced before him as per the report at Ex.P14. He recorded the confession of the accused as per Ex.P20 and identified his signature thereon. Based on his confession M.O. No.5 was recovered from behind the coffee bags stacked in the house of the accused. He also seized the blood stained clothes worn by the accused at the time of the accident which were seized under Ex.P6 and identified his signature thereon. He identified a photograph taken near the house of the accused which was marked as Ex.P21 and the photographs taken at the time of seizure of M.O. Nos.5 to 9 which were marked as 33 Exs.P7 to 10. He identified the M.O. Nos.5 to 9 before the Court. He deposed that after obtaining the post mortem report and the FSL report, he submitted a charge sheet on 13.07.2013. The PWD prepared a sketch and submitted the same on 29.07.2013 which was identified by him and marked as Ex.P25.
38. Thus, it is clear that all the prosecution witnesses had supported the prosecution and the eye witnesses who saw the incident have categorically stated about the accused first assaulting the deceased near the house and later chasing the accused for about 300 meters and further assaulting the deceased. The prosecution proved the seizure of the machete from the house of the accused which was stained with blood and his blood stained clothes from his house and that the blood stains contained on M.O. Nos.1, 2, 3, 5, 6 to 11 were human blood of 'O' group. There was no inconsistency, contradiction or improvement in the evidence of the prosecution witnesses. The prosecution was able to prove 34 that the accused had assaulted the deceased at a place which was about 300 meters away from the house of the accused. The PWs.1, 3, 4, 5, 6 and 7 have all deposed that they shifted the deceased from the spot of crime to a nearby place so as to shift him to hospital in an ambulance. They also stated that till he was shifted, he was breathing but after he was shifted near Ramshetty's house, the deceased died. Since all the prosecution witnesses have stated about the quarrel as well the subsequent assault by the accused, it is clear that the accused was guilty of homicide. The accused was not able to punch holes in the case of the prosecution. On the contrary, the accused argued before the Trial Court for a reduced sentence under Section 304 Part II of IPC and even before this Court, the learned counsel for the accused pointed out the circumstances to treat the offence falling under Exception-I to Section 300 of IPC. Even otherwise, the material evidence on record point out that the accused is clearly guilty of causing the death.
35
39. The Trial Court which was under a duty to consider the defence of the accused which he set out in his statement under Section 313 Cr.P.C., did find that the only assertion based on Exs.D1 to D4 were that the defendants in O.S.No.234/2007 and plaintiffs in O.S.No.23/2009 were related to the prosecution witnesses. However, it found that the accused did not even suggest about the proceedings to the witnesses who were examined on behalf of the prosecution. Hence, it rightly rejected the defence of the accused. Even before this Court, when it was pointed out that the cross-examination of the prosecution witnesses proceeded on the ground that the deceased attempted to pull down the revetment of the house while such a defence was not taken in his statement under Section 313 Cr.P.C, the learned counsel stated that the accused is entitled to take as many defences as are available in law. The Apex Court in the case of Prahlad vs. State of Rajasthan reported in 2019 (14) SCC 438 has held at para No.11 as follows: 36
"11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
Though the accused has not taken the defence that is palpable from his cross examination of the witnesses for the prosecution, yet the evidence on record dispelled the defence of the accused and pointed more towards his guilt and therefore, this Court too considers the defence of the accused as unreal and not believable and does not cast any doubt upon the evidence of the prosecution. Hence Point No.1 framed by this Court is held in the affirmative and all the evidence clearly prove beyond doubt that the accused was guilty of causing the homicidal death of the deceased.
37
40. Now coming to the question whether the accused was guilty of culpable homicide amounting to murder or not, it is necessary to note that Section 299 of IPC defines "culpable homicide" 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. Thus, the former part lays emphasis on the expression "intention" while the latter part upon "knowledge". If the intention to cause death or the knowledge that such act is likely to cause death is discernible, then it would be culpable homicide. Section 300 of IPC deals with murder but does not define it. However, it defines when culpable homicide does not amount to murder. Thus when culpable homicide is murder, the punitive consequence would follow in terms of Section 302 of IPC and if it is not murder, then the punishment would be handed down under Section 304 of IPC.
38
41. In the case of Sita Ram vs. State (NCT of Delhi) reported in (2019) 7 SCC 531, relied upon by the accused herein is distinguishable on facts. The deceased in that case was going along with her husband and on the way saw the accused and asked him not to tap or hook electricity from the electricity pole connecting her house. The accused was annoyed and abused the deceased. Later the accused and others assaulted the deceased. The defence put forth was that there was a grave and sudden provocation by the deceased and there was no pre- meditation to commit murder. The Apex Court on facts held:
"11. As discussed earlier the occurrence was without premeditation and sudden fight between the parties started in the heat of passion upon a sudden quarrel. The occurrence happened when deceased Mangal Singh on his way back home questioned Girdhari (A-1) as to his conduct of tapping electricity from the pole. The appellant Sita Ram (A-2) was not pre-armed and the other accused were also not pre-armed. Though, deceased Mangal Singh has sustained as 39 many as nine injuries, except Injuries 1 to 3 which are the injuries caused on the head, all other injuries are on the hand, shoulder, arms etc."
42. In the case of A. Maharaja vs. State of Tamil Nadu reported in (2008) 17 SCC 173 relied upon by the accused is distinguishable on facts. In the above case, the complainant had been to the garden to fetch vegetables. At that time, her father-in-law (deceased) was cutting Karuvela trees and was having a spade and aruval in hand. At that time, the accused questioned the complainant's father-in-law as to how the trees were cut illegally following which there was a wordy duel between him and the accused. The accused snatched the aruval and cut the deceased on the neck and shoulder resulting in his instantaneous death. The defence of the accused was that he was engulfed by grave provocation which resulted in the death. The Apex Court on facts has held as follows: 40
"10. "11. The substantive plea relates to the applicability of Exception 4 of Section 300 IPC.
'9. ... For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
10. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to do deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with 41 cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the 42 ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage" .'
12. '19. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, 43 that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan (AIR 1993 SC 2426) it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage.' "
These aspects have been recently highlighted in Iqbal Singh v. State of Punjab at SCC pp. 701- 02, paras 11-12."
43. In the case of R. Jayapal vs. State of Tamil Nadu and another reported in 2019 (8) SCC 342 relied upon by the accused is distinguishable on facts. In the above case, the deceased and wife of the accused were rivals in politics. The deceased had allowed a candidate to be elected as President of Town Panchayath and got himself elected as Vice-President by defeating the wife of accused who had lodged a complaint against the deceased which was enquired and found to be false. On 23.08.1997, there was altercation between the accused and the 44 deceased in front of his house and the accused vowed to finish off the deceased within 24 hours. On the same day when the deceased left his house to visit Tanjavur and was crossing the lane in front of the house of the accused, all the accused in concert killed the deceased. The accused pleaded that the homicide was due to private defence. The Apex Court on facts held as follows:-
"22. In view of the foregoing and in the overall circumstances of this case, we are inclined to accept the alternative case of the appellant that the incident in question took place without any premeditation, in a sudden fight in the heat of passion upon a sudden quarrel, when the deceased attempted entry into his house; and the appellant did neither take any undue advantage nor acted in a cruel or unusual manner. A fortiori, we are inclined to extend the benefit of Exception 4 of Section 300 IPC to the appellant. However, the act of the appellant leading to the death having been with the intention of causing such bodily injury as is likely to cause death, the appellant deserves to be convicted for the offence under Part I of Section 304 IPC."45
44. In the case of State of Madhya Pradesh vs. Mohar Singh reported in (2019) 15 SCC 57 relied upon by the accused, the accused was hurling abuses against the deceased. The deceased confronted the accused and the accused No.2 exhorted the accused No.1 to bring his gun. The accused No.1 went into his house and brought the gun and shot the deceased in the neck. The accused took up the defence that the murder was not pre-meditated and that it was due to sudden provocation. While considering the defence of the accused that the act of the accused did not attract an offence under Section 302 of IPC, but would fall under Section 304 Part II of IPC, the Apex Court on facts held as under:
"6. In the above facts and circumstances of the case, the impugned judgment of the High Court modifying the conviction of the respondent from Section 302 IPC to Section 304 Part I IPC cannot be said to be perverse and we do not find any good ground to interfere with the impugned judgment. In the result, the appeal is dismissed."46
45. The test to distinguish murder from culpable homicide not amounting to murder is lucidly elucidated by the Apex Court in the case of State of Andhra Pradesh Vs. Rayavarapu Punnayya and another reported in 1976 SCC (Crime) 659, wherein it is held as under:
"12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa".
xxx "For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments 47 provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304."
The Court further held as under:
"The safest way of approach to the interpretation and application of Sections 299 and 300 IPC is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of Sections 299 and 300 IPC and drawing support from the decisions of this Court in Virsa Singh Vs. State of Punjab and Rajwant Singh Vs. State of Kerala, speaking for the Court Justice R.S.Sarkaria neatly brought out points of distinctions between the two offences which have been time and reiterated. Having done so, the Court said that whenever the court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case it would be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death leads to the second 48 stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299 of IPC. If the answer to this question is in the negative, the offence would be 'culpable homicide not amounting to murder', punishable under the first or the II-Part of Section 304 depending, respectively, on whether the (ii) or (iii) clause of Section 299 of IPC is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first Part of Section 304 IPC."
46. The Apex Court in the case of Rampal Singh vs. State of Uttar Pradesh, reported in AIR 2012(8) SCC 289 held:
"25. As we have already discussed, classification of an offence into either part of Section 304 is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of premeditated mind, the persons participating in the commission of the 49 crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view i.e. by applying the "principle of exclusion". This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, "culpable homicide amounting to murder". Then secondly, it may proceed to examine if the case fell in any of the Exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused".50
47. The accused has taken more than one defence which is evident from the cross-examination of the prosecution witnesses some of which were thoroughly inconsistent with each other, giving a clear impression that the accused was unsure of the defence.
48. When he cross-examined PW.1, he suggested that on 30.04.2013, the deceased was not present when they quarrelled. He thereafter took a different stand and stated that it was PW.1, deceased and PW.6 who attempted to kill the accused and that the accused in an effort to defend himself, assaulted the deceased. Later he took another defence namely, that the deceased held the accused and PWs.1 and 6 attempted to assault with a pick axe and a crowbar, he escaped and that the blows which were meant for the accused fell on the deceased and that he died due to those injuries. He next contended that he had not pursued the deceased and had not killed him. 51
49. However, when he cross-examined PW.3, he stated that the deceased had enemies in and around the villages and that someone had killed him.
50. When he cross-examined PW.6, he stated that the deceased, PWs.1 and 6 were chasing the accused and that the accused to defend himself, used the machete to stop the blows and that in the process, the deceased got injured. He turned around and suggested to PW.6 that a false case is lodged against the accused.
51. However, when he cross-examined PW.7, he stated that he had not assaulted the deceased with a machete but he was injured due to the implements that were used by PW.1 and the deceased.
52. In his defence evidence, he made a detour from his statement under Section 313 of Cr.P.C. The accused contended that on 30.04.2013 when he was in his house at 7.30 a.m. he and his three children had breakfast and his wife left to the farm. The accused took his cattle. 52 When he was going to his land he saw that the deceased, PWs.1 and 6 were removing the fence. When he confronted them, the deceased claimed that he wanted to form the road. When the accused accosted them, the deceased stated that he would fix the fence. He later left to his farm. He stated that soon thereafter, his daughter who was in the house, went to him and told him that the deceased was removing the revetment stones of the compound. Hearing this, the accused came running to the spot and saw that the deceased, PWs.1 and 6 were removing the stones and when questioned, the deceased stated that the accused cannot question him because he was forming the road in the Government land. He then stated that PW.6 tried to hit the accused with an pickaxe and the PW.1 tried to stab the accused with a crowbar. When the accused ducked to avoid the blows, the deceased was wounded and he fell down. It is therefore clear that the accused had raised various defences some of which are diametrically opposite to each other. It is relevant to note that the defence that the homicidal death 53 was due to grave and sudden provocation or that it was due to self defence etc. are essentially a question of fact and therefore, the accused should be definite of his defence.
53. In order to ascertain whether the evidence on record pointed that the accused committed the offence due to grave and sudden provocation, the evidence of PW.1 is extracted below:
"DgÉÆæ ªÀÄgÀ¼À£ÄÀ ß vÉUÉzÄÀ PÉƽî vÀAw j¥ÉÃj ªÀiÁr¹PÉÆr JAzÀÄ ºÉý vÀ£ßÀ vÉÆÃlzÀ PÀqÉUÉ ºÉÆÃzÀ£ÀÄ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. £À£ßÀ ªÀÄUÀ ¸ÀPÁðj eÁUÀ EzÀ£ÀÄß PÉüÀ®Ä DgÉÆæ AiÀiÁgÀÄ JAzÀÄ ºÉý ºÁgÉ PÉÆî£ÀÄß vÀAzÀÄ DgÉÆæ ªÀÄ£ÉAiÀÄ PÀ°è£À j«mï£ÀÄß vÉUÉAiÀÄ®Ä ¥ÁægÀA©ü¹zÀ JAzÀgÉ ¸ÀjAiÀÄ®è. £À£ßÀ ªÀÄUÀ PÀ°è£À j«mï£ÀÄß QüÀĪÁUÀ DgÉÆæAiÀÄ ªÀÄUÀ¼ÀÄ DgÉÆæAiÀÄ£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ §AzÀ¼ÄÀ JAzÀÄ ¸ÀÆa¹zÀgÉ £À£Àß ªÀÄUÀ j«mï£ÀÄß QüÀÄwÛgÀ°®è DgÉÆæAiÀÄ ªÀÄUÀ¼ÄÀ DgÉÆæAiÀÄ£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ §AzÀ¼ÄÀ JAzÀÄ ºÉüÀÄvÁÛgÉ."54
He further stated, "£ÁªÀÅ PÀÆVPÉÆAqÁUÀ CuÉÚÃUËqÀ ªÀÄvÀÄÛ ±ÀAPÀgÉÃUËqÀ §AzÀgÀÄ J£ÀÄߪÀÅzÀÄ ¸Àj. ªÉÆzÀ®Ä CuÉÚÃUËqÀ, ±ÀAPÀgÉÃUËqÀ §AzÀgÀÄ JAzÀgÉ ¸Àj. ªÀÄgÀ¼ÀÄ ºÁQzÀ eÁUÀzÀ°è DgÉÆæAiÀÄÄ £À£Àß ªÀÄUÀ£À PÀÄwÛUÉUÉ, ¨ÉgÀ½UÉ, PÁ°UÉ EvÀgÉ eÁUÀPÉÌ ºÉÆqÉzÀ£ÀÄ JAzÀÄ ºÉý ¸ÁQë ¥ÀÄ£ÀB ªÀÄgÀ¼ÀÄ ºÁQzÀ eÁUÀzÀ°è DgÉÆæ £À£ßÀ ªÀÄUÀ£À PÀÄwÛUÉUÉ MAzÉÃl£ÀÄß ªÀiÁvÀæ ºÉÆqÉ¢gÀÄvÁÛ£É JAzÀÄ ºÉüÀÄvÁÛgÉ."
54. PW.3 stated "£ÁªÀÅ PÀĽwÛzÁÝUÀ ªÀįÉèñÀ£À ªÀÄ£ÉAiÀÄ ºÀwÛgÀ eÉÆÃgÁV PÀÆVzÀ ±À§Þ PÉý¹vÀÄ. ±À§Þ PÉý £Á£ÀÄ ªÀÄvÀÄÛ dUÀ¢üñÀ PÀÆrPÉÆAqÀÄ DgÉÆæ ªÀįÉèñÀ£À ªÀÄ£É PÀqÉ ºÉÆÃzɪÀÅ. DgÉÆæ ªÀįÉèñÀ PÀ£ÀPÀgÁdÄUÉ PÀÄwÛUÉ ªÀÄvÀÄÛ PÁ°UÉ PÀrzÀÄ CnÖ¹PÉÆAqÀÄ §gÀÄwÛzÀÝ£ÄÀ , CªÀgÀ »AzÉ ¥Áæ¸Á.1 ªÀÄvÀÄÛ CªÀgÀ ºÉAqÀw ªÀÄ°èUÀªÄÀ ä §gÀÄwÛzÀÝgÀÄ. ¥Áæ¸Á.1 ªÀÄvÀÄÛ CªÀgÀ ºÉAqÀw »AzÉ £ÁªÀÇ PÀÆqÀ NrzɪÅÀ . DgÉÆæAiÀÄ ªÀģɬÄAzÀ 300 «ÄÃlgï zÀÆgÀzÀ°è PÀ£ÀPÀgÁdÄ£À£ÄÀ ß CnÖ¹PÉÆAqÀÄ PÀwÛ¬ÄAzÀ PÀrAiÀÄÄwÛzÝÀ £ÀÄ. £Á£ÀÄ £ÉÆÃrzÁUÀ vÀ¯É, PÀÄwÛUÉ, §®UÉÊ ¨ÉgÀ¼ÀÄUÀ¼ÀÄ, JqÀ ªÉÆtPÁ°UÉ DgÉÆæ PÀrAiÀÄÄwÛzÝÀ £ÄÀ . DgÉÆæ PÀwÛAiÀÄ£ÀÄß »rzÀÄPÉÆAqÀÄ NrºÉÆÃUÀÄwÛzÀÝ£ÀÄ."
55Further he stated in his cross-examination "¤¦.3 gÀ°è £ÀªÀÄÆ¢¹gÀĪÀAvÉ vÀAw ¨Éð vÉUÉzÄÀ ªÀÄgÀ¼ÄÀ ºÁQzÀÝgÀÄ J£ÀÄߪÀÅzÀÄ ¸Àj EgÀÄvÀÛzÉ."
55. PW.4 in his evidence has stated as follows:
"§AqÉPÀ°èUÉ ¸Àé®à zÀÆgÀzÀ°è ¥Áæ¸Á.1 gÀªÀgÀ ªÀÄ£ÉUÉ ºÉÆÃUÀĪÀ PÁ®Ä zÁjAiÀÄ°è ªÀÄgÀ¼À£ÄÀ ß ºÁQzÀÝgÄÀ . DgÉÆæ PÀwÛ »rzÀÄPÉÆAqÀÄ PÀ£ÀPÀgÁdÄ£À£ÄÀ ß CnÖ¹PÉÆAqÀÄ ºÉÆÃUÀÄwÛzÀÝ£ÀÄ. £ÀªÄÀ UÉ ¸Àé®à UÁ§jAiÀiÁ¬ÄvÀÄ, ¸Àé®à »AzÉ ¤AvɪÀÅ. ¥Áæ¸Á.1 ªÀÄvÀÄÛ DvÀ£À ºÉAqÀw ZÁ¸Á.9 ªÀÄ°èUÀªÄÀ ä CªÀgÀ »AzÉAiÉÄà NqÀÄwÛzÝÀ gÄÀ . DgÉÆæ PÀwÛ¬ÄAzÀ PÀ£ÀPÀgÁdÄ£À PÀÄwÛUÉUÉ, JqÀUÁ®Ä, JqÀUÊÉ UÉ PÀrzÀ£ÀÄ. gÀPÀÛ ºÉÆÃV PÀ£ÀPÀgÁdÄ ±ÀAPÉæÃUËqÀgÀ eÁUÀzÀ°è ©zÀÝ£ÄÀ ."
Further he stated "zÁj ªÀiÁqÀĪÀ ¸À®ÄªÁV PÀ®ÄèªÀmïð£ÀÄß vÉUÉAiÀÄĪÀ CªÀ±ÀåPÀvÉ EgÀ°®è J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ¥Áæ¸Á.1 gÀªÀgÀÄ PÀ®ÄèªÀmïð£ÀÄß vÉUÉzÀÄ DgÉÆæUÉ C£ÉÃPÀ ¨sÁj vÉÆAzÀgÉ ªÀiÁrzÀÝgÆ À J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è.
F «ZÁgÀªÁV UÁæªÄÀ ¥ÀAZÁ¬ÄÛAiÀÄ°è Cfð ºÉÆÃVvÀÄÛ J£ÀÄߪÀÅzÀÄ ¸Àj. 56 vÀºÀ²Ã¯ÁÝgïgÀÄ PÁ®Ä zÁjAiÀÄ°è NqÁqÀ§ºÀÄzÀÄ ªÁºÀ£ÀUÀ¼ÀÄ NqÁqÀ¨ÁgÀzÀÄ JAzÀÄ ºÉýzÀÝgÀÄ J£ÀÄߪÀÅzÀÄ ¸Àj."
56. PW.6 stated in her cross examination, "PÁ®ÄzÁjAiÀÄ CUÀ® ¸ÀĪÀiÁgÀÄ 2 Cr EgÀÄvÀÛzÉ. PÁ®ÄzÁjAiÀÄ MAzÀÄ PÀqÉ UÀuÉñÀgÀªÀgÀ vÉÆÃl E£ÉÆßAzÀÄ PÀqÉ ªÀįÉèñÀ£À ªÀÄ£ÉUÉ ªÉÇqÀÄØ ºÁQzÀ eÁUÀ EgÀÄvÀÛzÉ. ªÀįÉèñÀ£À ªÀÄ£ÉUÉ PÀ°è¤AzÀ ºÁQzÀ ªÉÇqÀÄØ ºÁQzÀ eÁUÀ ¸ÀĪÀiÁgÀÄ 10-12 Cr JvÀÛgÀ EzÉ. PÀ®ÄèªÉÇrØUÉ ¹ªÉÄAmï£ÀÄß ºÁQgÀÄvÁÛgÉ. PÀ®ÄèªÉÇrØ£À GzÀÝ ¸ÀĪÀiÁgÀÄ 30-40 Cr EgÀ§ºÀÄzÀÄ. £ÀªÄÀ ä ªÀÄ£ÉAiÀÄ ¸ÀÄvÀÛªÀÄÄvÀÛ VqÀ ªÀÄgÀUÀ½ªÉ."
She stated "PÁ®ÄzÁjAiÀÄ°è ªÁºÀ£ÀUÀ¼À£ÀÄß vÉUÉzÄÀ PÉÆAqÀÄ ºÉÆÃUÀ®Ä zÁjAiÀÄ£ÀÄß CUÀ® ªÀiÁqÀ®Ä £ÁªÀÅ ¥ÀæAiÀÄwß¹zɪÀÅ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ªÀįÉèñÀ ªÀÄ£É PÀnÖ §gÀĪÀ ¥ÀƪÀðzÀ°è UÀuÉñÀ vÉÆÃl ªÀiÁrzÀÝgÀÄ. UÀuÉñÀgÀªÀgÀ vÉÆÃlzÀ ¥ÀPÀÌzÀ°è £ÀªÄÀ ä ªÀÄ£ÉUÉ ºÉÆÃUÀ®Ä zÁj EvÀÄÛ. UÀuÉñÀgÀªÀgÀ vÉÆÃlzÀ ¥ÀPÀÌzÀ°ègÀĪÀ gÀ¸ÉÛUÉ UÀuÉñÀgÀªÀgÀÄ ªÉÇqÀÄØ PÀnÖ MvÀÄÛªÀj ªÀiÁrgÀÄvÁÛgÉ J£ÀÄߪÀÅzÀÄ ¸Àj. UÀuÉñÀgÀªÀgÀÄ MvÀÄÛªÀj ªÀiÁrzÀÝjAzÀ £ÀªÀÄä ªÀÄ£ÉUÉ ºÉÆÃUÀ®Ä zÁj QjzÁVvÀÄÛ J£ÀÄߪÀÅzÀÄ ¸Àj." 57 Further she stated "DgÉÆæ ªÀÄ£ÉAiÀÄ PÀ°è£À ªÉÇrØ£À ¥ÀPÀÌzÀ°è ªÀÄgÀ¼À£ÀÄß ºÁQgÀ°®è. ¸ÀPÁðgÀzÀ d«Ää£À°è ªÀÄgÀ¼À£ÀÄß ºÁQzÉݪÅÀ ." Further she stated "£ÁªÀÅ ªÀÄgÀ¼À£ÀÄß vÉUÉzÄÀ PÉÆAqÀÄ ºÉÆÃUÀÄvÉÛêÉAzÀÄ £ÁªÀÅ ºÉýzÀ £ÀAvÀgÀ DgÉÆæ vÉÆÃlPÉÌ ºÉÆÃVgÀ§ºÀÄzÀÄ £À£ÀUÉ UÉÆwÛ®è JAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ."
She stated "QjAiÀÄ C©üAiÀÄAvÀgÀgÀÄ vÀAiÀiÁj¹zÀ £ÀPëÉAiÀÄ°è £ÀªÀÄÆ¢¹gÀĪÀ PÀÈvÀå £ÀqÉzÀ ¸ÀܼÀ ¸Àj¬ÄgÀÄvÀÛzÉ. D ¸ÀܼÀzÀ°è £À£Àß ªÀÄUÀ ºÁgÉ PÉÆî£ÀÄß vÀAzÀÄ PÀ®Äè ªÉÇqÀØ£ÀÄß QwÛgÀÄvÁÛ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è."
57. PW.7 stated "£Á£ÀÄ ºÉÆÃUÀÄwÛgÄÀ ªÁUÀ DgÉÆæAiÀÄ ªÀÄ£ÉAiÀÄ ºÀwÛgÀ UÀ¯ÁmÉAiÀiÁUÀÄwÛgÀĪÀ ±À§Þ PÉý¹vÀÄ. £Á£ÀÄ ºÉÆÃzÉ£ÀÄ, £Á£ÀÄ ºÉÆÃzÁUÀ DgÉÆæ ªÀÄvÀÄÛ PÀ£ÀPÀgÁdÄ«UÀÆ ªÀÄgÀ¼À£ÄÀ ß ºÁPÀĪÀ «ZÁgÀzÀ°è UÀ¯ÁmÉAiÀiÁUÀÄwÛvÀÄÛ. DgÉÆæ PÀwÛAiÀÄ£ÀÄß »rzÀÄPÉÆAqÀÄ PÀ£ÀPÀgÁdÄ£À£ÀÄß ¨É£ÀßnÖ §gÀÄwÛzÀÝ£ÀÄ. ²ªÀ±ÀAPÀgÀgÀªÀgÀ UÀzÝÉ AiÀÄ PÀqÉ DgÉÆæ ªÀÄvÀÄÛ PÀ£ÀPÀgÁdÄ ºÉÆÃUÀÄwÛzÀÝgÀÄ, CªÀgÀ »AzÉ PÀ£ÀPÀgÁdÄ«£À vÀAzÉ vÁ¬Ä §gÀÄwÛzÀÝgÀÄ. £Á£ÀÄ DgÉÆæ ªÀÄvÀÄÛ PÀ£ÀPÀgÁdÄ£À »AzÀÄUÀqÉ Nr ºÉÆÃzÉ£ÄÀ . DgÉÆæ 58 PÀwÛ¬ÄAzÀ 3-4 Kl£ÀÄß PÀ£ÀPÀgÁdÄUÉ ºÉÆqÉzÀ£ÄÀ . £Á£ÀÄ ©r¸À®Ä ºÉÆÃzÁUÀ DgÉÆæ £À£ÀUÉ ¨ÉzÀjPÉ ºÁQzÀ£ÄÀ . D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ, ±ÀAPÀgÉÃUËqÀ, PÀ£ÀPÀgÁdÄ«£À vÀAzÉ, vÁ¬Ä EzÀÝgÀÄ. PÀ£ÀPÀgÁdÄ«UÉ PÀwÛ¬ÄAzÀ PÀrzÀ ªÉÄïÉ, DgÉÆæ PÀwÛ ¸ÀªÄÉ ÃvÀ Nr ºÉÆÃzÀ£ÄÀ ." He stated in his cross examination as follows:
"DgÉÆæUÀÆ ªÀÄvÀÄÛ ¥Áæ¸Á.1 gÀªÀgÀ £ÀqÄÀ ªÉ zÁj «ZÁgÀzÀ°è UÀ¯ÁmɬÄzÀÝ §UÉÎ Hj£À°è ¥ÀAZÁ¬ÄÛ DVvÀÄÛ. ¥ÀAZÁ¬ÄÛAiÀÄ°è PÁ®ÄzÁjAiÀÄ°è PÁ®Ä £ÀrUÉAiÀÄ°è NqÁqÀ§ºÀÄzÉAzÀÄ ºÉýzÉݪÀÅ. PÁ®Ä zÁjAiÀÄ°è ªÀiÁvÀæ NqÁqÀ¨ÉÃPÀÄ ªÁºÀ£ÀUÀ¼À£ÀÄß vÉUÉzÄÀ PÉÆAqÀÄ ºÉÆÃUÀ¨ÁgÀzÉAzÀÄ ¥ÀAZÁ¬ÄÛAiÀÄ°è ºÉýzÉݪÅÀ JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæAiÀÄ ªÀÄ£ÉAiÀÄ »A¨sÁUÀzÀ gÀ¸ÉÛAiÀÄ°è MAzÀÄ ¨ÉÊPÀÄ NqÁqÀ§ºÀÄzÀÄ D gÀ¸ÉÛAiÀÄ°è mÁæPÀÖgï, ªÀUÉÊgÉ NqÁqÀ®Ä DUÀĪÀÅ¢®è. ¥Áæ¸Á.1, DvÀ£À ºÉAqÀw ªÀÄvÀÄÛ PÀ£ÀPÀgÁdÄ D gÀ¸ÛÉAiÀÄ°è ªÁºÀ£ÀUÀ¼ÄÀ NqÁqÀ®Ä C£ÀÄPÀÆ® ªÀiÁrPÉÆqÀ¨ÉÃPÉAzÀÄ DUÁUÉÎ PÉüÀÄwÛzÀÝgÀÄ J£ÀÄߪÀÅzÀÄ ¸Àj. ªÀįÉèñÀ£À ªÀÄ£ÉAiÀÄ PɼÀUÀqÉ PÀ®Äè UÉÆÃqÉ EgÀÄvÀÛzÉ. DgÉÆæ ªÀÄ£ÉAiÀÄ£ÀÄß PÀnÖ¹ ¸ÀĪÀiÁgÀÄ 7-8 ªÀµÀðUÀ¼ÁVgÀ§ºÀÄzÀÄ. PÀ®Äè UÉÆÃqÉ 6-7 CrAiÀĵÀÄÖ JvÀÛgÀ EgÀ§ºÀÄzÀÄ. D PÀ®ÄèUÆ É ÃqÉ PÁqÀÄ PÀ°è¤AzÀ PÀlÖ¯ÁVgÀÄvÀÛzÉ. DgÉÆæ gÀ¸ÉÛAiÀÄ°è ªÁºÀ£ÀUÀ¼À£ÄÀ ß vÉUÉzÄÀ PÉÆAqÀÄ ºÉÆÃzÀgÉ 59 PÀ®Äè UÉÆÃqÉ ©Ã¼ÀÄvÀÛzÉ D PÁgÀtPÁÌV ªÁºÀ£ÀUÀ¼À£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀ¨ÉÃr JAzÀÄ ºÉüÀÄwÛzÀÝ£ÄÀ JAzÀgÉ D «ZÁgÀ £À£ÀUÉ UÉÆwÛ®è."
58. The aforesaid evidence coupled with the sketch prepared by the Junior Engineer of PWD at Ex.P25 and the sketch prepared by the police at Ex.P17 would indicate that there is a small pathway behind the house of the accused which led to the house of the PW.1. It also discloses that the pathway was 5 feet below than the house of the accused and that the accused had put up a stone revetment so as to secure his house. Ex.P17 would disclose that the sand was dumped near the pathway. It was recorded in Ex.P3 that "F ¢£À ¨É½UÉÎ 11.30 UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è F ¸ÀܼÀ¢AzÀ 300 «ÄÃlgï ªÉÄïÁãUÀzÀ°ègÀĪÀ £ÀªÀÄä ªÀÄ£ÉAiÀÄ j¥ÉÃj ¸À®ÄªÁV ªÀÄgÀ¼À£ÀÄß £ÀªÀÄä ªÀÄ£ÉAiÀÄ ºÀwÛgÀzÀ ªÁ¹ ªÀįÉèñÀ JA§ÄªÀgÀ eÁUÀzÀ°èzÀÝ vÀAw ¨Éð vÉUÉzÀÄ ºÁQPÉÆArzÀÄÝ, F wgÀÄUÁqÀĪÀ eÁUÀzÀ §UÉÎ »A¢¤AzÀ®Æ CªÀjUÀÆ £ÀªÀÄUÀÆ «ªÁzÀ«zÀÄÝ, F ¢£À £À£Àß ªÀÄUÀ PÀ£ÀPÀgÁdÄ, 18 ªÀµÀð FvÀ£ÀÄ ªÀÄgÀ¼À£ÀÄß vÀÄA§ÄwÛgÄÀ ªÁUÉÎ ªÀįÉèñÀ£ÀÄ 60 PÀwÛAiÀÄ£ÀÄß »rzÀÄPÉÆAqÀÄ §AzÀÄ £À£ßÀ ªÀÄUÀ£À PÀÄwÛUÉUÉ PÀrzÀ, DUÀ £À£Àß ªÀÄUÀ vÀ¦à¹PÉÆAqÀÄ NrzÀ."
59. The evidence indicates that there was a long standing feud between PW.1 and the accused over the usage of the pathway behind the house of the accused. PW.4, PW.6, PW.7 deposed that several panchayats were held and a petition was lodged with the Tahasildar regarding the usage of the pathway. It is also not in dispute that on the fateful day, the dispute arose between the accused and the deceased over the deceased dumping sand by removing the fence. There is no dispute regarding the fact that PW.1 had dumped a mound of sand behind house of the accused. There are traces to indicate that the fence in fact was removed. PW.1 stated that the accused was brought to the spot by the daughter of the accused. The only link missing is whether the deceased had removed the revetment stones which presumably was the cause for infuriating or provoking the accused to commit the crime. The police have failed to investigate and report 61 regarding the removal of the revetment stones though the confession allegedly recorded by them did indicate that removal of the revetment stones was the cause for committing the death of the deceased. Be that as it may, the fact that the accused was under sudden provocation could be accepted by seeing the injuries at the first scene of crime, where sand was dumped. However, the prosecution witnesses have all in one voice stated that after the first assault, the accused chased the deceased for nearly 300 meters and that PWs.1, 6 and 7 followed them and raised an alarm.
60. The nature of wounds inflicted by the accused on the deceased as stated by PW.11 are as follows:
1. vÀ¯ÉAiÀÄ JqÀ¨sÁUÀzÀ°è 4.5 EAlÄ 5 ¸ÉA.«ÄÃ. ºÁUÀÆ 8 ¸ÉA.«ÄÃ. ZÀªÀÄðzÀ D¼ÀzÀªÀgÉVzÀÝ PÉÆAiÀÄÝ UÁAiÀÄ PÀAqÀħA¢vÀÄ. vÀ¯ÉAiÀÄ JqÀ¨Ás UÀzÀ ªÀÄÆ¼É ªÀÄÄj¢vÀÄÛ.
2. PÀÄwÛUÉAiÀÄ »A¨sÁUÀzÀ §®¨sÁUÀzÀ°è 4 EAlÄ 2.5 ¸ÉA.«ÄÃ. C¼ÀvÉAiÀÄ EjzÀ UÁAiÀÄ PÀAqÀħA¢vÀÄÛ.
PÀÄwÛUÉAiÀÄ 3 ªÀÄvÀÄÛ 4£Éà ªÀÄƼÉUÀ¼ÄÀ ªÀÄÄj¢zÀݪÅÀ . 62
3. §®UÉÊ£À°è 4 EAlÄ 3 EAZÀÄ C¼ÀvÉAiÀÄ ºÀjzÀ UÁAiÀÄ EzÀÄÝ gÉÃrAiÀÄ¸ï ªÀÄvÀÄÛ C¯Áß ªÀÄƼÉUÀ¼ÀÄ ªÀÄÄj¢zÀݪÅÀ . gÀPÀÛ£Á¼ÀUÀ¼ÀÄ, ªÀiÁA¸ÀRAqÀUÀ¼ÀÄ, UÁAiÀÄUÀ¼ÁVzÀÄÝ, ZÀªÄÀ ð JzÀÄÝ §A¢vÀÄÛ.
4. JqÀUÉÊ£À ªÀÄzsÀåzÀ ¨ÉgÀ¼ÄÀ , GAUÀÄgÀzÀ ¨ÉgÀ¼ÄÀ ªÀÄvÀÄÛ QgÀÄ ¨ÉgÀ¼ÀÄUÀ¼À°è D¼ÀªÁzÀ ºÀjzÀ UÁAiÀÄ«zÀÄÝ, ªÉÄmÁ¥Á¯ÉAfAiÀiÁ ªÀÄƼÉ, gÀPÀÛ£Á¼ÀUÀ¼ÀÄ, £ÀgÀUÀ¼À°è UÁAiÀÄ«gÀĪÀÅzÀÄ PÀAqÀÄ §A¢vÀÄÛ.
5. JqÀ ªÀÄArAiÀÄ 3 EAZÀÄ EAlÄ 2 EAZÀÄ EAlÄ 1 EAZÀÄ C¼ÀvÉAiÀÄ EjzÀ UÁAiÀÄ PÀAqÀÄ §A¢vÀÄ.
6. §®¨sÁUÀzÀ ¨sÀÄdzÀ PɼÀ¨sÁUÀzÀ°è 2 EAlÄ 0.5 ¸ÉA.«ÄÃ. C¼ÀvÉAiÀÄ PÀvÀÛj¹zÀ UÁAiÀÄ PÀAqÀÄ §A¢vÀÄ. The death was due to hypo-volemic shock.
61. If the evidence on record, the presence of accused, deceased, PW.1, PW.2 at the scene of crime, the previous animosity between them, the removal of a fence to dump the load of sand, the injuries on the deceased, the weapon seized, the account of eye-witness is considered, they all point to a fact that the accused was provoked by the deceased, PW.1 and PW.6 and he in a fit of rage 63 assaulted the deceased with M.O. No.5 on the neck in the first instance. This could have qualified for an act caused due to sudden and grave provocation, if it had resulted in the death of the deceased. However, such provocation could not be so prolonged that the accused chased the deceased for 300 meters and belaboured him with several wounds till he collapsed. Therefore, as there was no injury on the accused, it is telling on the face of the record that the accused developed an intention to kill the deceased and he disregarded the pleas of PW.1 and PW.6 to spare the deceased and threatened PW.7 who tried to intervene.
62. In view of the above, if the state of mind of the accused at the time of the first incident and at the time of the second incident is considered, it is clear that at the time of the first incident, the accused landed a single blow and caused injury on the neck of the deceased. The deceased ran for nearly 300 meters. Between the first incident and the second incident, the accused had developed a motive to do away with the life of the 64 deceased and therefore, pursued the accused for nearly 300 meters and landed several cut wounds on the accused which resulted in his death. The wounds on the deceased would demonstrate that the accused had a definite intention to maim the accused and kill him. Therefore, it cannot be held that the homicide was not murder and the accused was clearly guilty of committing the murder of the deceased and the palpable motive was to settle the disputes between him and the deceased over the pathway. Hence, the accused had not caused the death of the deceased due to grave and sudden provocation by the deceased and hence Point No.2 framed by this Court is answered in the negative and against the accused.
63. In that view of the matter, conviction of the accused for an offence punishable under Section 302 of IPC is just and proper and there is sufficient evidence available on record to convict the accused for the offence punishable under Section 302 of the IPC. The accused was 65 rightly sentenced to undergo life imprisonment along with fine of Rs.5,000/-.
64. This Court does not find any error in the appreciation of evidence by the Trial Court to convict the accused for an offence punishable under Section 302 of the Indian Penal Code and the consequent order of sentence imposed upon him by the Trial Court.
Hence, the appeal lacks merit and the same is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Gh/mbb/sma