Karnataka High Court
Prasad Alias Shivaprasad vs State on 22 December, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.2132 OF 2016
BETWEEN:
PRASAD ALIAS SHIVAPRASAD
S/O. E. C. THIMMEGOWDA,
AGED 44 YERS,
ERALAGERE VILLAGE,
KASABA HOBLI,
TIPTUR TALUK - 572 201.
... APPELLANT
(BY SRI HASHMATH PASHA, SENIOR COUNSEL, ALONG WITH
SRI KARIAPPA N. A., ADV.)
AND:
STATE
BY TIPTUR RURAL POLICE,
TIPTUR TALUK,
TUMKUR DISTRICT - 572 201,
REPRESENTED BY S.P.P., HCK,
BENGALURU.
... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.)
***
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER ON SENTENCE DATED 21-11-2016
PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE,
TIPTUR, IN S.C. NO.10002 OF 2014 CONVICTING THE APPELLANT-
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302
OF the IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR FURTHER
HEARING THIS DAY, B. VEERAPPA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present appeal is filed by the appellant- accused against the impugned judgment of conviction and order on sentence dated 21-11-2016 passed in Sessions Case No.10002 of 2014 on the file of the V Additional District and Sessions Judge, Tiptur, for having convicted him for the offence punishable under Section 302 of the Indian Penal Code (for short, 'the IPC').
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2. The case of the prosecution is that the complainant and his brothers are residing in a joint family at Eralagere Village, Kasaba Hobli, Tiptur Taluk, Tumukuru District. E.C. Shekar (hereinafter referred to as 'deceased') is the father of the complainant. The deceased had three brothers, namely Thimmegowda, Karibasappa and Shivananda Murthy. The elder uncle of the complainant, i.e. Thimmegowda is having five children and the present accused is the third son of Thimmegowda. There was a property dispute between the children of Thimmegowda and they were quarrelling with each other often and often. The deceased being a Chairman of Grama Panchayat intervened with the property dispute and convened panchayat. The accused developed grudge against the father of the complainant and he used to pick up quarrel with the deceased stating that he should not intervene in the 4 family or property disputes pending between them. Apart from that, he threatened the deceased if he intervene then his life will be taken away. Such being the situation, on 4-10-2013 at about 8:00 a.m., the deceased went to his garden land in order to sprinkle pesticide. The complainant and P.W.4 were also sprinkling pesticide in the land, at that time, at about 10:15 a.m., P.W.1 of Eralagere Village telephoned the complainant stating that the father of the complainant is struggling for his life with bleeding injuries. Immediately, the complainant and P.W.4 rushed to the spot and found that the deceased was struggling for life and got inflicted multiple bleeding injuries on his body. The complainant hugged his father and asked about the incident, then his father told the name of the accused that he assaulted him and requested the complainant to take him to the Hospital and further told 'Prasada had did as he was 5 telling.' Immediately, the complainant contacted 108 Ambulance and took the deceased to the Hospital and the Doctor, who examined the injured in the ambulance, said that the deceased is succumbed to the injuries. Further, it is alleged that the accused having ill-will against the deceased with regard to the panchayat conveyed by his father of their family properties and keeping all these in his mind, the accused assaulted the deceased with a lethal weapon on his head and face and thereby caused the murder of the deceased. Accordingly, the complainant lodged a complaint before the Tiptur Rural Police as per Ex.P.3. Tumukuru Police after investigation filed charge-sheet against the accused for the offence punishable under Section 302 of the IPC.
3. The jurisdictional Magistrate after taking cognizance committed the case to the Sessions Court. 6 The learned Sessions Judge framed the charges against the accused, read over and explained the charges to him, he pleaded not guilty and claimed to be tried.
4. In order to prove the case, the prosecution examined twenty witnesses as P.W.1 to P.W.20, got marked twenty-two documents as Ex.P.1 to Ex.P.22 and twenty material objects as M.O.1 to M.O.20. After completion of evidence of the prosecution witnesses, the statement of the accused as contemplated under Section 313 of the Code of Criminal Procedure, 1973, (for short, 'the Cr.P.C.') was recorded. The accused denied all incriminating evidence against him and has not examined any witnesses on his behalf, but he got marked three documents as Ex.D.1 to Ex.D.3.
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5. Based on the aforesaid material on record, the learned Sessions Judge framed the following point for consideration:
"Whether the prosecution proves that, on 04.10.2013 at about 9.30 AM when the deceased E.C. Shekar was returning to his village from his garden land, then the accused with an intention to murder the deceased dragged his collar assaulted with stone on his head, when the deceased fell down then the accused assaulted him with big stones on his head, face, neck and chest, thereby caused severe bleeding injuries on the background that the deceased was intervening with his family property disputes pending between the accused and his brothers and sisters, immediately after knowing the incident, the complainant took the deceased to the Tiptur General Hospital for treatment in 108 Ambulance, but the deceased died on the way at about 11.30 PM due to bleeding injuries affected on his body 8 by the accused, thereby the accused committed the offence punishable under Section 302 of IPC?"
6. After considering the oral and documentary evidence on record, the learned Sessions Judge found the accused guilty for the offence punishable under Section 302 of the IPC and sentenced him to undergo imprisonment for life with fine of Rs.5,000/- and with default sentence. Being aggrieved by the same, the accused filed this appeal.
7. We have heard the learned counsel for the parties.
8. Sri Hashmath Pasha, learned senior counsel, along with Sri Kariappa N. A., learned counsel appearing for the accused, has contended that the impugned judgment of conviction and order on sentence passed by the trial Court is without any 9 basis and same cannot be sustained and is liable to be set aside. He has further contended that none of the prosecution witnesses, i.e. P.Ws.1 to 9 have supported the case of the prosecution. P.W.7-first informant has turned hostile. The learned Sessions Judge wrongly convicted the accused based on the evidence of P.Ws.2 and 12-sons of the deceased and P.W.4-labour working under P.W.2, who are highly interested witnesses. He has further contended that the motive is very suspicious and it is based on the oral statement made by the deceased. He has further contended that P.W.1 deposed that when he went to the spot, by that time, the deceased died. The oral dying declaration made by the deceased before P.Ws.2, 4, 11 and 12 cannot be relied upon as the deceased was already dead. The evidence of P.W.8 is abnormal and cannot be given any credence. Recovery of M.O.8 (a to c) and M.O.12 (a to d) on the 10 voluntary statement of the accused is not proved. Recovery of M.Os.13 and 14 as per Ex.P.11 is highly impossible to believe as the medical evidence is contrary to the evidence of P.W.8.
9. The learned senior counsel has further contended that P.W.16 has deposed that the injuries cannot be caused with M.Os.8 and 12. Therefore, the incident might have happened as different weapons used and none of the weapons are recovered at the instance of the accused. He has further contended that the deceased had so many enemies and hence, somebody might have committed the murder. He has further contended that F.I.R. and charge are like instruments used against the accused is serious doubtful. He has further contended that P.W.12-another son of the deceased has not stated the name of the accused. P.Ws.2, 4 and 11 though 11 stated the name of the accused, their evidence are inconsistent. The prosecution witnesses, in particular P.Ws.2, 4, 11 and 12 have not deposed that the deceased made the statement when he was in a fit state of mind. He has further contended that the Doctor, who issued Post-Mortem report, has stated that all injuries are anti-mortem and fresh in nature. The time since death is between 12 to 24 hours prior to Post-Mortem examination and opined that the death is due to shock and hemorrhage as a result of multiple injuries sustained. Therefore, the death would have occurred between 8:00 p.m. on 3-10-2013 and 8:00 a.m. on 4-10-2013. He has further contended that absolutely there is no material against the accused to implicate him on the basis of the evidence of the deceased and his family members. 12
10. The learned senior counsel for the accused alternatively contended that Ex.P.21-voluntary statement of the accused clearly depicts that the deceased was intentionally intervening in the family affairs of the accused and the deceased himself picked up quarrel with the accused and thereby, the accused was provoked and assaulted the deceased with stone on a spur of moment and without any premeditation and on that ground, the case of the prosecution falls under Section 304 Part-II of the IPC and not under Section 302 of the IPC. Therefore, he sought to allow the appeal.
11. In support of his contentions, the learned senior counsel has relied upon the decisions of the Hon'ble Supreme Court:
DIVISIONAL OFFICER, GUNTUR, 13 ANDHRA PRADESH reported in (2007) 15 SCC 465;
ii. WAIKHOM YAIMA SINGH v. STATE OF MANIPUR reported in (2011) 13 SCC 125;
iii. MANGILAL AND OTHERS v. STATE OF MADHYA PRADESH reported in 1990 (SUPP) SCC 529;
iv. MANI RAM AND OTHERS v. STATE OF U.P. reported in 1994 SUPP (2) SCC 289;
v. KARUNAKARAN v. STATE OF TAMIL NADU reported in (1976) 1 SCC 434;
vi. ANIL PHUKAN v. STATE OF ASSAM reported in 1993 AIR SCW 1336;
vii. STATE OF KARNATAKA v.
MAHADEVA AND OTHERS reported in (1995) 2 KLJ 100; and 14 viii. AMAR SINGH AND OTHERS v.
STATE OF PUNJAB reported in 1987 (1) SCC 679.
12. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor appearing for the respondent-State, has contended that the evidence of P.W.2-son of the deceased, P.W.4-labour, P.W.11- brother of the deceased and P.W.12-another son of the deceased clearly depict that the accused assaulted the deceased on the unfateful day of the incident. Therefore, the trial Court is justified in convicting the accused under Section 302 of the IPC. He has further contended P.W.8-one of the brothers son of the deceased and eyewitness to the incident has specifically stated about the incident that the accused assaulted the deceased with stone. He has further contended that the medical evidence clearly depicts that there are 32 external injuries on the body 15 of the deceased. He has further contended the Investigating Officer recovered M.O.8 (a to c), M.O.12 (a to d)-stones and M.Os.13 to 19-bloodstained clothes. Therefore, he sought to reject the appeal.
13. In view of the rival contentions urged by the learned senior counsel for the appellant-accused and the learned Additional State Public Prosecutor for the respondent-State, the point that arises for our consideration in this appeal is;
Whether the accused has made out a case to interfere with the impugned judgment of conviction and order on sentence passed by the learned Sessions Judge under Section 302 of the IPC under the facts and circumstances of the case?
14. We have given our anxious consideration to the arguments advanced by the learned counsel for 16 the parties and perused the entire material including the original record carefully.
15. Being the Appellate Court, in order to re-appreciate the evidence on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon;
i. P.W.1-Chandrashekar has deposed that on 4-10-2013 at 9:45 a.m., when he was near the land of the deceased, P.W.7-dumb and deaf person, informed that the deceased is lying dead. Immediately, he went near the ditch (halla) and saw that the deceased lying dead. Immediately, he informed P.W.2-son of the deceased and the villagers and all carried the deceased to the village and thereafter, in 108 Ambulance along with his sons to General Hospital, Tiptur, where the Doctor informed the deceased was brought dead. He has partly turned hostile. 17
ii. P.W.2-Ashok, son of the deceased and the complainant, has deposed that his senior uncle E.C. Thimmegowda had three sons by name Somashekar, Prakash and the accused-Prasad. There was dispute regarding partition of properties of E.C. Thimmegowda and his father had intervened. On 4-10-2013 at 8:00 a.m., he had been to another land for sprinkling pesticide and his father had been to Karekallu land and at about 10:15 a.m, P.W.1 telephoned him that his father is injured and struggling for life. Immediately, he went with P.W.4- labour working under him and found that his father was lying injured in the ditch. He lifted him and asked as to what happened, he told that Shivaprasad assaulted and caused injuries. He along with others lifted the deceased and taken to Village and from there to General Hospital, Tiptur, in 108 Ambulance, 18 where the Doctor declared brought dead. Thereafter, he lodged complaint as per Ex.P.3. He was present during Ex.P.1-spot mahazar and identified M.Os.1 to
8. He has supported the case of the prosecution.
iii. P.W.3-Shivanna has deposed that on the date of incident at 9:30 a.m., P.W.7 informed that something happened to the deceased and later, P.W.1 informed that the deceased has been murdered. Then, P.W.2 and all villagers including him went and saw the deceased and the deceased was brought near his house and thereafter, taken in Ambulance to General Hospital, Tiptur, where the Doctor declared brought dead. He has supported the case of the prosecution.
iv. P.W.4-Murthy Naika has deposed that on 4-10-2013 at 8:00-8:15 a.m, he along with P.W.2 had been to the land situate at Kenchamaranahalli for 19 sprinkling pesticide. At about 10:00-10:15 a.m., P.W.2 received phone call from P.W.1 about the deceased lying injured near Karekallu land. Immediately, P.W.2 and himself went and saw the deceased lying injured. P.W.2 held and hugged the deceased and asked as to what happened, then he told Prasad assaulted him. Then, the deceased was brought near the house of P.W.3 and from there, the deceased was taken to the Hospital in Ambulance, where the Doctor declared brought dead. He has supported the case of the prosecution.
v. P.W.5-E.N. Raghu has deposed that at about 10:00 a.m. about one year and two months back, while he was in his house learnt that E.C. Shekar has been assaulted. He went near the house of Shivanna and noticed that the deceased had sustained injuries. From there, P.W.2 and himself carried the deceased 20 in Ambulance to General Hospital, Tiptur, where the Doctor declared brought dead. He has supported the case of the prosecution.
vi. P.W.6-Hemalatha, Head Mistress, deaf and dumb Residential School, Belagumba, translated the signs and gestures of P.W.7 and her statement is recorded as per Ex.P.6. She has supported the case of the prosecution.
vii. P.W.7-Kempaiah, dumb person, who is the eyewitness to the incident. He has treated hostile. Though in the cross-examination, Exs.P.4 and P.5- photos are shown, but he denied the same.
viii. P.W.8-Harish is the eyewitness and brother's son of the deceased. He has deposed that there was dispute regarding partition of properties of E.C. Thimmegowda and the deceased had intervened. 21 He has further deposed about the assault made on the accused by the deceased with stones. He has supported the case of the prosecution.
ix. P.W.9-Prakash, elder brother of the accused, has turned hostile.
x. P.W.10-Somashekar, another elder brother of the accused, has deposed that there was partition of his father's properties and there was a dispute for not giving the share to the sisters, the deceased had intervened and a civil suit was filed by the accused and his sisters. On the date of the incident, it is learnt that the deceased was injured and was taken to the Hospital. He has also turned hostile in respect of the incident.
xi. P.W.11-Shivanandamurthy, brother of the deceased, has deposed that there was property 22 dispute in the family of the accused and the deceased had intervened. On 4-10-2013, he came to know that the deceased was assaulted near Karekallu land and all villagers were going to see and he also went and saw the deceased. The deceased made oral statement that the accused assaulted him.
xii. P.W.12-Dinesh, son of the deceased, has deposed regarding the property dispute in the family of the accused. On 4-10-2013, when he was in the Village, P.W.2 informed about the incident and he went to the spot and noticed that his father had sustained injuries. He has supported the case of the prosecution.
xiii. P.W.13-Dr. Renuka, General Hospital, Tiptur, has deposed that on 5-10-2013, she examined the accused and found the mark of scratch over chest 23 and noted and issued Wound Certificate as per Ex.P.8.
xiv. P.W.14-Arun, son of the deceased, has deposed that on 4-10-2013, he had been to Thyagatoor, where his son is studying. At about 10:30 a.m, P.W.2 informed about the incident and bringing the deceased to General Hospital, Tiptur, and he noticed that his father had sustained injuries. He has supported the case of the prosecution.
xv. P.W.15-Gangaiah is a panch witness to Exs.P.10 and P.11-seizure mahazar drawn by the Police. He has treated as hostile.
xvi. P.W.16-Dr. S. Rudra Murthy conducted Post-Mortem on the dead body of the deceased and issued Ex.P.12-Post-Mortem report and opined that 24 the death was due to shock and hemorrhage and he further opined regarding stones as per Ex.P.13.
xvii. P.W.17-Manjunath, Tahsildar, who gave a report regarding scene of occurrence as ditch (halla) to an extent of 13 guntas in Sy.No.78 of Eralagere Village as per Ex.P.14. He has supported the case of the prosecution.
xviii. P.W.18-S. K. Nagabhushanaradhya, Assistant Engineer, prepared spot sketch as per Ex.P.16.
xix. P.W.19-Dr. Chandrashekara, Scientific Officer, F.S.L., Bengaluru, has deposed that he has examined twenty sealed articles and issued report as per Ex.P.17 and specimen seal as per Ex.P.18. He has supported the case of the prosecution. 25
xx. P.W.20-C.P. Balachandregowda, Circle Inspector of Police, has deposed that on 4-10-2013, he took up investigation from Sri Ashok Kumar, Sub- Inspector of Police, and investigated the case and filed final report.
16. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to convict the accused for the offence made out in the charge-memo.
17. On meticulous reading of the evidence of the prosecution witnesses, P.Ws.1, 3 and 7 have not supported the case of the prosecution. P.Ws.2, 4, 8 and 11 have stated that the accused is involved in the homicidal death of the deceased on the unfateful day and have supported the case of the prosecution. P.W.12-another son of the deceased has not mentioned the name of the accused, but supported 26 the case of the prosecution. The evidence of P.Ws.2, 4 and 12 is consistent and corroborative from the fact that P.W.1 telephoned P.W.2 that his father is fighting for his life. The other circumstantial witnesses and circumstances clearly depict that there was any reason for the accused to take away the life of the deceased and that circumstantial evidence goes in lines with the version of the material witnesses to make the chain complete pointing to the guilt of the accused in giving an end to the life of the deceased. It is evidence of P.W.2 that there was property dispute between the family of the accused, his father, brothers and sisters. His father had intervened and ensured partition without giving any shares to the sisters of the accused and the accused was forced to file original suit for partition along with father against his sisters and brothers. He has further deposed in the cross-examination that he received the 27 information from P.W.1, neighbour owner of the land, who deposed that though he is not aware of the dispute between the accused and his family members, the fact remains that the deceased used to interfere with the family of the accused to resolve the civil dispute. Therefore, in order to resolve the dispute, father of P.W.2 was called for the settlement. Accordingly, his father has divided the properties between the accused and his brothers. On the date of the incident, at about 10:15 a.m., P.W.1 telephoned him and informed that his father was struggling for life. He went along with P.W.4 and found that his father was injured and lifted him up and asked as to what happened, at that time, the deceased told that the accused assaulted him. Thereafter, he has taken his father to the General Hospital, Tiptur, where the Doctor declared brought dead. Nothing has been elicited in the cross-examination. 28
18. P.W.3 is from the same Village that of the deceased and the accused. He has deposed on par with P.W.1 that the deceased used to solve the civil dispute between the family members of the accused and the accused was not happy with the partition effected by the deceased. P.W.4 has deposed that when he himself and P.W.2 went to Kenchamaranahalli for sprinkling pesticide, at about 10:15 a.m., P.W.2 received information from P.W.1 that his father fell in the ditch (halla) and struggling for life. Immediately, P.W.2 and himself went to the spot. Then, P.W.2 hugged his father and asked as to what happened to him, at that time, he stated that the accused assaulted him. Though he was shifted to the Hospital, but he was brought dead. He has also deposed that the accused is addicted to alcohol stating that partition was not effected in accordance 29 in law. Nothing has been elicited in the cross- examination of P.W.4. P.W.5 has deposed on par with P.Ws.1 to 4. In his cross-examination, he has specifically stated that the deceased had sustained injuries and not in a position to speak, but he was conscious and was taken to the house of P.W.3 and thereafter, somebody called 108 Ambulance and was taken to General Hospital, Tiptur, where the Doctor declared brought dead. P.W.6-Head Mistress translated the gestures of P.W.7. P.W.7 turned hostile and not supported the case of the prosecution. P.W.8, eyewitness and brother's son of the deceased, deposed that there was property dispute in the house of the accused with regard to sharing of his father's properties and the deceased had intervened. The accused demanded share to the sisters also, but the deceased supported his brothers and the accused was not happy with the partition effected by the deceased 30 from the property of his ancestral. Therefore, keeping vengeance, the accused assaulted the deceased on his head and when he fell down, he assaulted on face, hands and neck and has identified M.Os.8 (a to c) and 12 (a to d). He has supported the case of the prosecution. Nothing has been elicited in the cross- examination.
19. Though the learned senior counsel for the accused has contended that all the prosecution witnesses, in particular, P.Ws.2, 4, 11 and 12 have not deposed that the deceased was in a fit state of mind and they are highly interested witnesses, but the homicidal death of the deceased is not in dispute. It is also not in dispute that the deceased had effected the partition in the family of the accused between his father and his brothers. The accused was not happy with the partition effected and the deceased used to 31 interfere with the family affairs of the deceased. It is also not in dispute that P.W.16-Dr. Rudra Murthy, who conducted Post-Mortem on the dead body of the deceased and issued report as per Ex.P.12, has noted thirty-two external injuries and opined all the injuries are anti mortem and fresh in nature, the time since death is between twelve to twenty-four hours prior to Post-Mortem examination and the death is due to shock and hemorrhage as a result of multiple injuries sustained. Further, on the requisitions made by the Circle Inspector of Police, he examined the weapons and opined that all the stone blocks and pieces were having rough surfaces and the contused abrasion, lacerated wound, abrasion head injuries, chest injuries and neck injuries are possible with weapons type that are examined and numbered from 1 to 6. P.W.19-Dr. Chandrashekara, Scientific Officer, F.S.L., Bengaluru, who examined item Nos.6 to 12-stones 32 opined that there is possibility of assault on the accused by the deceased. He issued Ex.P.17-F.S.L. report, which reads as under:
1. Presence of blood stain was detected in item No.1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19.
2. Presence of blood stain was not detected in item No.2.
3. Item No.1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 were stained with human blood.
4. The blood in item No.20 was disontegrated.
5. Item No.1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 were stained with "A" group blood.
20. The oral and documentary evidence on record clearly depicts that the accused is involved in the homicidal death of the deceased and it is evident 33 from Ex.P.12-Post-Mortem examination report that the death is due to shock and hemorrhage as a result of multiple injuries sustained. Though the learned senior counsel for the accused has contended that the prosecution witnesses, i.e. P.Ws.2 and 12-sons of the deceased and P.W.4-labour working under P.W.2 are highly interested witnesses and they cannot be relied upon, but the fact remains that P.W.8, who is eyewitness to the incident, stood the examination and nothing has been elicited in the cross-examination to disbelieve his evidence and his evidence is trustworthy to accept.
21. The material on record including Ex.P.21- voluntary statement of the accused clearly depicts that on the date of the incident, i.e. on 4-10-2013, he went to his land, at that time, the deceased came to his land and insulted him that he cannot do anything, 34 even though he partitioned the properties between the family members of the accused. The accused has further stated that the deceased informed him that he will tear the clothes himself and will inform the same to his children and family members and so that, they will kill the accused. Due to the filthy language and words uttered by the deceased, the accused was provoked and on a spur of moment, he used the jelly stones-M.Os.8 (a to c) and 12 (a to d) and assaulted the deceased. The deceased lost is control and fell down. The accused is not armed with weapon, except M.Os. 8 and 12 and it was due to sudden provocation and heat of passion in view of provocation words uttered by the deceased to the accused. Though the accused is involved in the homicidal death of the deceased, but the incident occurred due to sudden provocation and there was no intention to kill the deceased. Therefore, the offence committed by the 35 accused falls under the category of culpable homicide not amounting to murder. In the peculiar facts and circumstances of the case, it clearly falls under the provisions of Exception (4) to Section 300 of the IPC, which reads as under:
"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
22. A careful reading of the aforesaid provision makes it clear that, to invoke the said provision, four requisites must be satisfied, namely;
(i) it was a sudden fight;
(ii) there was no premeditation;
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(iii) the act was done in a heat of passion and
(iv) the assailant had not taken any undue advantage or acted in a cruel manner.
23. In view of the facts and circumstances of the case and taking into consideration that there was no property dispute between the family of the accused and the deceased, it is only between the accused and his family and thereby, the deceased was called as Pancha of the Village to resolve the dispute and the deceased has partitioned the properties between the accused, his father and brothers. As there was no share allotted to the sisters, the accused was not happy and in spite of the same, the deceased provoked the accused. In view of the provocation words used by the deceased, the accused without any premeditation and in a sudden provocation assaulted 37 the deceased with M.Os.8 (a to c) and 12 (a to d)- stones. Therefore, the impugned judgment of conviction under Section 302 of the IPC has to be modified as it falls under Section 304 Part-II of the IPC.
24. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of AHMED SHAH AND ANOTHER v. STATE OF RAJASTHAN reported in (2015) 3 SCC 93, wherein at paragraph No.21, it has been held as under:
"21. As elaborated earlier, the complainant party went to the field and Sabbir Shah was armed with gum. In the sudden fight, there was a scuffle. During the course of scuffle, the appellants inflicted injuries on the deceased Sabbir Shah. The accused tried to grapple the gun from Sabbir Shah. There was no premeditation and that the incident was 38 the result of sudden fight. In the scuffle, the other accused inflicted injuries on Rakhu Shah and PW 8 Rakhia.
Considering the facts and circumstances of the case, in our view, the present case cannot be said to be a case punishable under Section 302 IPC but a case falling under Exception 4 to Section 300 IPC. Since the appellants inflicted injuries on the neck and scalp of Sabbir Shah with the intention of causing death, the act of the appellant-accused is punishable under Section 304 Part I IPC."
25. By meticulous reading of the prosecution witnesses and material documents and recovery of M.Os.8 (a to c) and 12 (a to d) clearly depict that the accused had no intention to kill the deceased. The accused was unarmed and thereby there has been no intention, but it was on sudden provocation due to heat of passion without premeditation. In view of the 39 above, we hold that the present case clearly falls under Section 304 Part-II of the IPC and not under Section 302 of the IPC. Therefore, the judgments relied by the learned senior counsel for the accused has no application to the facts and circumstances of the present case.
26. For the reasons stated above, the point raised in the appeal is answered partly in the affirmative holding that the accused has made out a case to interfere with the impugned judgment of conviction and order on sentence passed by the learned Sessions Judge in convicting the accused for the offence punishable under Section 302 of the IPC and sentencing him to undergo imprisonment for life is modified and converted into one under Section 304 Part-II of the IPC.
27. Accordingly, we pass the following 40 ORDER
i) The appeal is allowed-in-part;
ii) The impugned judgment of conviction and order on sentence dated 21-11-2016 passed in S.C. No.10002 of 2014 on the file of V Additional District and Sessions Judge, Tiptur, convicting the accused for the offence punishable under Section 302 of the IPC and sentencing him to undergo imprisonment for life is modified. The accused is hereby convicted for the offence punishable under Section 304 Part-II of the IPC and sentenced to undergo imprisonment for eight years with fine of Rs.25,000/- (Rupees twenty-five thousand only) and in default of payment of fine, he shall undergo further imprisonment for two years;
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iii) Accused is entitled to the benefit of set off as contemplated under Section 428 of the Code of Criminal Procedure, 1973; and
iv) Exercising the power under Section 357(3) of the Code of Criminal Procedure, 1973, the fine amount imposed on the accused shall be recovered and paid to the complainant.
Sd/-
JUDGE Sd/-
JUDGE kvk