Karnataka High Court
Prakash S/O Shivaraya Mandeval vs The State Of Karnataka Through Madbool ... on 29 July, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JULY, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL No.3511/2013
Between:
Prakash S/o Shivaraya Mandeval
Age: 25 Years, Occ: Coolie
R/o Peth Siroor, Tq. Chittapur
Dist. Gulbarga
... Appellant
(By Sri Mahantesh H. Desai, Advocate)
And:
The State of Karnataka
Through Madbool P.S.,
Represented by Addl. S.P.P.
Hon'ble High Court of Karnataka
Circuit Bench, Gulbarga
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
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This Criminal Appeal is filed under Section 374(2)
of Cr.P.C., praying to set aside the impugned judgment
of conviction and order of sentence passed by the
Hon'ble I Addl. Sessions Judge at Gulbarga in Sessions
Case No.254/2011 dated 06.12.2012 by allowing this
appeal and consequently acquit the appellant of the
charges leveled against him.
This appeal coming on for Final Hearing this day,
B.A.PATIL J., delivered the following:-
JUDGMENT
Appellant-accused seeking the intervention of this Court in the judgment of conviction and order of sentence passed by I Addl. Sessions Judge, Kalaburagi in S.C.No.254/2011 dated 06.12.2012.
2. We have heard Sri Mahantesh H. Desai, learned counsel appearing for the appellant and Sri Prakash Yeli, learned Addl. State Public Prosecutor appearing for the respondent-State.
3. The brief facts of the case as averred in the complaint are that:
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The complainant is having two male and two female children. Daughters are residing in their matrimonial home and elder son Dasarath, who is working in State Bank of Hyderabad is residing along with his family at Kalaburagi and used to come and go to the house of the complainant situated at Peth Siroor village. Complainant, his wife and his younger son Basavaraj, his wife are residing together at Peth Siroor village. About one month prior to the alleged incident, when appellant was quarreling with his mother and was assaulting her, at that time, son of the complainant i.e., Basavaraj went to the house of the appellant to pacify the quarrel, appellant questioned the same stating as to how he has come to his house to advice him, since then they used to quarrel with each other. It is further alleged that the appellant used to threaten the deceased Basavaraj, the son of the complainant stating that he would take away his life. It is further alleged that on 15.04.2011 at 8.45 p.m. when the complainant himself, -4- his wife and daughter-in-law were sitting in their house, deceased Basavaraj returned to house after answering second call of the nature and at that time appellant came there and picked up quarrel with his deceased son Basavaraj and abused him in filthy language and when deceased Basavaraj questioned as to why he is abusing him, the appellant caught hold the deceased and dragged him on the road situated infront of their house, later appellant went to his house and brought the wooden latch and assaulted with it on the head of his son due to which he sustained bleeding injuries and fell down and he became unconscious, when the complainant himself, his wife tried to rescue the deceased, appellant assaulted with the said wooden latch to him and also to his wife and when they raised a hue and cry, the appellant by throwing away the said wooden latch fled away from the scene of offence. The injured was shifted to the hospital for treatment but on the way to the hospital he succumbed to the injuries.-5-
On the basis of the complaint, a case came to be registered in Crime No.43/2011. After investigation, the charge sheet came to be filed for the offence punishable under Section 302, 324, 504 & 506 of Indian Penal Code ('IPC', for short)
4. The learned jurisdictional Magistrate committed the case to the Sessions Court after following the formalities, thereafter Sessions Court took the cognizance and secured the presence of the appellant and after hearing both the sides, charge was framed, read over and explained to the appellant, who pleaded not guilty and claims to be tried and as such the trial was fixed.
5. In order to prove the case, the prosecution got examined in all seventeen witnesses as per P.Ws.1 to 17 and got marked twenty four documents as per Exs.P1 to 24 and got marked seven material objects as M.Os.1 to 7. After closure of prosecution evidence, -6- statement of appellant has been recorded as per Section 313 of Cr.P.C. by putting incriminating material. Appellant denied the same and has not chosen to lead any defence evidence nor produced any documents. However, during the course of the cross-examination of P.Ws.1, 7 and 8, they have got marked Exs.D.1 to 3.
6. The Sessions Court after hearing both the sides convicted the appellant for the offence under Sections 302 and 324 of IPC. Challenging the legality and correctness of the same, the appellant is before this Court.
7. The main grounds urged by the learned counsel for the appellant are that the motive, which has been urged by the prosecution is scanty and there is no substance in the case of the prosecution. It is his further submissions that as per the evidence of P.W.1, appellant has thrown away the wooden latch at the place of incident. But the prosecution has tried to bring -7- on record that M.O.1-Wooden latch, which is said to have been used for the commission of offence has been recovered at the instance of appellant from the bush. There is no corroboration between Ex.P-23, Voluntary Statement recorded by P.W.7 and Sketch as per Ex.P-12 and this itself falsifies the case of the prosecution. It is his further submission that though there are material contradictions, the Sessions Court without looking into these aspects has come to a wrong conclusion and has wrongly convicted the appellant-accused. It is his further submission that as per Ex.P-3, Spot Panchanama the alleged incident has taken place on a public road. But in Ex.P-1, Complaint, the incident alleged to have taken place in front of the house of the complainant. It is his further submission that Ex.P-7, Postmortem Report indicates that only one blow was inflicted near the head of the deceased. If really, the appellant was intending to cause the death of the deceased, then under such circumstances, the -8- appellant could have assaulted further. It is his further submission that there was no intention or pre- meditation in the mind of the appellant to inflict such injuries to the deceased as he has consumed alcohol, he has done such an act in intoxication and that the alleged incident if it is seen it is not likely to cause death. It is his further submission that the appellant has not taken undue advantage of assaulting or to take away the life of the deceased. In order to substantiate the said contention, learned counsel relied upon the decision of Co-ordinate Bench of this Court in the case of Kenchappa vs. State of Karnataka reported in 2018 Crl.R.663 (Kant.) and another decision in the case of Chandra & Ors. vs. State of Karnataka by Hosakote Police Station [Crl.A.No.1250/2015 DD:
29.06.2018].
8. It is the further submission of the learned counsel for the appellant that when there is no pre- -9- meditation or intention and he has not taken any undue advantage, under such circumstances, the Sessions Court instead of convicting the appellant for the offence under Section 302 of IPC, it ought to have convicted for the offence punishable under Section 304 Part-II of IPC. On these grounds, he prayed to allow the appeal by setting aside the judgment of conviction and order of sentence and acquit the appellant.
9. Per contra, learned Addl. State Public Prosecutor vehemently argued and submitted that when there are eyewitnesses to the alleged incident, motive does not play any role. It is his further submission that P.Ws.1, 7 & 9 are the injured eyewitnesses and they have categorically deposed before the Court the specific overtacts of the appellant for having assaulted the deceased with wooden latch and Ex.P-7, Post Mortem Report also indicates that the death of the deceased is due to assault committed by the appellant on the head
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of the deceased. It is his further submission that earlier the appellant used to quarrel with the deceased and in that light on the alleged date of incident, appellant came and assaulted with an intention to take away the life of the deceased. There is ample material to connect the appellant to the alleged crime. The Sessions Court after taking into consideration all the said aspects has rightly convicted the appellant. Hence, on these grounds prayed to dismiss the appeal.
10. We have carefully and consciously gone through the submissions canvassed by both the sides and perused the records made available to this Court including the Trial Court records.
11. The prosecution to prove its case got examined as many as seventeen witnesses. To prove the fact that the death of the deceased is a homicidal death, the prosecution got examined P.W.12-Doctor, who conducted autopsy over the dead body of the
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deceased as per Ex.P-7 and given his opinion as per Ex.P-8. The prosecution has also got examined PWs.1, 5 to 11 who are eyewitnesses, P.W.2 is the Mahazar to Ex.P-2, Inquest Panchanama. All these witnesses have categorically stated with regard to injuries found over the body of the deceased. In that light, we are of the considered opinion that on perusal of the Postmortem Report, Ex.P-7 which indicates that the deceased suffered injury over right side of upper part of head and fracture of skull was present. In that light, it can safely be held that the deceased death is a homicidal or unnatural death.
12. P.W.1 in his evidence deposed that the appellant used to quarrel with his mother oftenly and he also used to assault her and the deceased used to advice the appellant as not to behave in such a way with his mother, which led in no cordial relationship between the appellant and the deceased. It is his
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further deposition that about one year back at about 9.30 p.m. when the deceased and others were in the house after finishing their dinner, the appellant came to their house in a state of intoxication and abused them in filthy language and assaulted the deceased, dragged him out of the house and assaulted him with wooden latch on the right portion of the back of his head, as a result of which deceased collapsed on the ground, in the meanwhile P.Ws.7 and 9 intervened and tried to rescue the deceased, but appellant has also assaulted them. Though during the course of the cross-examination it has been brought on record that the deceased and the appellant have worked together in Goa and there was no animosity between them and the said galata took place about one year prior to the alleged incident, when there are eyewitnesses to the alleged incident, then under such circumstances the motive for the alleged offence will not be having much importance and in that light we are of the considered opinion that the contentions of the
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learned counsel for the appellant that there was no motive will not have any force.
13. Even P.W.5 has also deposed that he heard the galata near the house of the deceased and on hearing the same he went to the spot and saw that quarrel was going on, thereafter appellant brought the wooden latch and assaulted with it on the back portion of the head of the deceased who consequent upon collapsed on the ground. P.W.5 and P.W.9 separated this galata. During the course of cross-examination, nothing has been elicited from the mouth of this witness.
14. P.Ws.6 to 9 who are also eyewitnesses to the incident have reiterated the said evidence of P.W.5 and during the cross-examination nothing has been elicited from the mouth of these witnesses so as to discard their evidence. P.W.10 also an eyewitness to the alleged incident though during the course of his examination-
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in-chief has reiterated the evidence of P.W.5, but during the course of cross-examination he has admitted that he has not seen the alleged incident. In that light, the evidence of this witness does not help the case of the prosecution.
15. P.W.11 being an eyewitness has not supported the case of the prosecution and has been treated him as hostile witness. By taking into consideration the evidence of P.Ws.1, 5 to 11 coupled with the evidence of P.W.12, Doctor who deposed that while conducting autopsy he noticed the injury over the right side of upper part of head of the deceased present and fracture of skull present Erythema over back present. He has deposed that the deceased person died because of the head injury leading cardio-respiratory arrest and he has issued Postmortem Report as per Ex.P-7 and given his opinion as per Ex.P-8. The evidence of P.W.12 corroborates with the evidence of
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eyewitness. All the eyewitnesses have categorically deposed before the Court that the appellant came and started quarreling with the deceased and by taking the wooden latch has assaulted on the back of his head. There is consistency and corroboration in the evidence of all these witnesses and their evidence also corroborated with the evidence of PW.12-Doctor, who conducted the autopsy over the dead body of the deceased. In that light, the prosecution has clearly established the fact that the deceased died because of the blow, which has been given by the appellant- accused.
16. At this juncture, learned counsel for the appellant has contended that the appellant has given a single blow with M.O.1, wooden latch and as per the evidence of the prosecution, the appellant has consumed alcohol and even in the evidence of PW.12 - Doctor, he has deposed that only one injury is inflicted
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on the backside of the head of the deceased and no other injuries were found over the dead body of the deceased. Even there was no intention or premeditation and even the accused has also not used any word as he will take away the life of the deceased, at the time when he assaulted the deceased and the accused has inflicted a single blow on the head of the deceased. All these evidence would indicate that the accused was not having any intention to cause the death of the deceased and if any action is done without there being any intention, then it will not amounting to culpable homicide amounting to murder. In order to substantiate the said contention, learned counsel for the appellant has relied upon the decision of Co- ordinate Bench of this Court in the case of Chandra & Ors. vs. State of Karnataka as cited supra, wherein at paragraph Nos.13 to 16, it has been observed as under:
"13. It is the contention of the learned counsel for the accused-appellants that accused No.1 was
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not having any intention to cause the death and even the injured has not sustained any bleeding injuries and if really accused No.1 was having an intention to cause the death of the deceased, definitely he could have used force at the time of assault. In that light, the learned counsel submitted that the offence does not fall within the provisions of Section 302 of IPC and it comes under the provisions of Section 304 Part-I or II of IPC.
14. As could be seen from the evidence of PW.5 and the postmortem report at Ex.P3, the deceased sustained the following injuries:-
1. Contusion over inner aspect of right upper arm;
2. Contusion seen over inner aspect of left upper arm and after dissection he found scalp on reflection of scalp there was an extravasation prevent over the left temporal region and in the brain there was subdoual haematoma.
The doctor-PW.5 he has also opined that the possibility of death is due to the assault with
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weapon like MO.1 and the injuries sustained by the injured.
15. Even as could be seen from the evidence which has been produced by the prosecution, all the witnesses who took the injured to the hospital, have categorically deposed that when they were taking the injured Shivanna, he was not having any bleeding injuries, but he was in coma. They took the injured to the Government Hospital at Maralavadi Village and as the doctors were not available there they insisted him to take to a bigger hospital at Bangalore. Thereafter they brought back the injured to their place and by that time, the injured shivanna succumbed to the injuries. Even as could be seen from the evidence of the Doctro-PW.5 he has deposed in the cross- examination that if the injured is hit with great force with weapon like MO.No.1, it is likely to cause bleeding injuries. He did not find any bleeding injuries on the body of the deceased. He has further admitted that there were no blood stains on the clothes of the deceased. When the said evidence is available before this Court, the said act of accused No.1 appears to be that though he might have assaulted with the club- MO.No.1, he was not having any intention to
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cause the death. A single lathy blow in a spur of moment resulting in death and the evidence produced by the prosecution establishes that the injury caused by accused No.1 is though fatal and at that time, there was no intention or premeditation in the mind of accused No.1 to inflict injuries to the deceased as were likely to cause death in the ordinary course of nature. In that light, the offence falls under Section 304 Part-II of IPC instead of offence punishable under Section 302 of IPC. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Gurmukh Singh Vs. State of Haryana reported in 2009 (15) SCC 635, wherein at paraghraphs-10, 21, 25 and 26, it has been observed as under:-
"10. We have carefully perused the judgments of the trial court and the High Court as also the evidence of witnesses. It is fully established from the evidence on record that the appellant had caused the injury to the deceased Hazoor Singh which proved fatal.
xxx xxx xxx xxx
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21. In the instant case, the occurrence had taken place on the spur of the moment. Only the appellant Gurmukh Singh inflicted a single lathi-blow. The other accused have not indulged in any overt act. There was no intention or premeditation in the mind of the appellant to inflict such injuries to the deceased as were likely to cause death in the ordinary course of nature. On consideration of the entire evidence including the medical evidence, we are clearly of the view that the conviction of the appellant cannot be sustained under Section 302 IPC, but the appropriate section under which the appellant ought to be convicted is Section 304 Part II IPC.
xxx xxx xxx xxx
25. When we apply the settled principle of law which has been enumerated in the aforementioned cases, the conviction of the appellant under Section 302 IPC cannot be sustained. In our considered view, the appellant-accused ought to have been convicted under Section 304 Part II IPC instead of under Section 302 IPC.
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26. We accordingly convert the conviction and sentence of the appellant Gurmukh Singh from Section 302 IPC to one under Section 304 Part II IPC and sentence him to suffer rigorous imprisonment for seven years. The fine as imposed by the trial court and as upheld by the High Court is maintained. The appellant would be entitled to get benefit of Section 428 of the Code of Criminal Procedure."
16. Be that as it may, even as could be seen from the evidence of PW.5, he has admitted during the course of cross-examination that if the injured had been treated at the right time he would have survived. When admittedly the injured was taken to the Government Hospital at Maralavadi, thereafter to Kanakapura and instead of taking him to Bangalore, they took him back to the village and at about 3.00 p.m. he succumbed to the injuries. This fact also substantiates the evidence of the Doctor-PW5. Had he been treated immediately, there could have been every chance of he being survived. In that light, it appears that the death of the deceased was due to lack of treatment immediately after the incident."
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17. On careful perusal of the ratio laid down in the above said decision and on perusal of the factual matrix of the case on hand, it appears that the appellant had only the knowledge that such act may cause the death. But, when it has been brought on record that the appellant has consumed alcohol and only one blow has been given and he was not having any premeditation and he has not taken any undue advantage, under such circumstances, the alleged act of the appellant does not fall within the purview of Section 302 of IPC as alleged by the prosecution. In order to invoke the benefit of exception 1 or 4 to Section 300 of IPC, the accused must show that there was provocation and such provocation was both grave and sudden and there must be simultaneous reaction and which deprives them and the power of self control which is caused by the person whose death has been caused. For the purpose of brevity, we quote the provisions of
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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 -
2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. - When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden
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provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.- xxx xxx xxx Exception 3.- xxx xxx xxx Exception 4.--Culpable homicide is not murder if it is committed without premeditation in
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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."
18. Applying the ratio laid down in the decision cited supra and the provisions and exceptions to Section 300 of IPC, if all the facts and circumstances are looked into, the evidence produced by the prosecution would establish the guilt of the accused- appellant, but at the same time there was no intention to cause the death of the deceased and even the factual matrix would show that the accused has not come over there with any wooden lathi or that he has brought any weapon. When quarrel started between the deceased and the accused-appellant, at that time, the accused took the said lathi and has inflicted a single blow; immediately, the deceased fell down and even the
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accused has not taken any undue advantage by further assaulting the deceased, though he has assaulted PWs.1, 7 and 9, but it was not with any intention. Under such circumstances, the Trial Court ought to have convicted the accused-appellant for the offence punishable under Section 304, Part II of IPC instead of convicting for the offence punishable under Section 302 of IPC. In that light, we are of the considered opinion that there is some force in the contention of the learned counsel for the appellant that though the prosecution has proved the guilt of the appellant for having assaulted and taken away the life of the deceased, but it will not come within the purview of Section 302 of IPC. In that view of the mater, the appellant is liable to be convicted for the offence punishable under Section 304, Part II of IPC instead of Section 302 of IPC.
19. Even on perusal of the evidence and the wound certificates, it also indicate that PWs.1, 7 and 9
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have also suffered injuries. The Trial Court has rightly convicted the accused-appellant for the offence punishable under Section 324 of IPC. In that light, the same is liable to be confirmed.
20. Keeping in view the above said proposition of law and the evidence on record, we pass the following:
ORDER The appeal is allowed in part. The judgment of conviction and order of sentence passed by the I-Addl.
Sessions Judge at Gulbarga in S.C.No.254/2011 dated 06.12.2012 is modified. The conviction of the appellant-
accused for the offence punishable under Section 324 of IPC is confirmed and the conviction of the appellant for the offence punishable under Section 302 of IPC is modified and the appellant-accused is hereby convicted for the offence punishable under Section 304 Part II of IPC and he is sentenced to undergo imprisonment for the period, which he has already undergone.
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The Jail Authorities are hereby directed to release the appellant-accused forthwith, if he is not required in any other case.
The Registry is directed to intimate the I-Addl. Sessions Judge, Gulbarga and the concerned Jail Authorities through e-mail to release the appellant- accused forthwith.
In view of disposal of the appeal, I.A.1/2013 for suspension of sentence and bail does not survive for consideration and the same is dismissed.
Sd/-
JUDGE Sd/-
JUDGE BL/LG