Karnataka High Court
Sri Gopalaiah vs State By Kuduru Police Station on 6 June, 2023
Author: K.Somashekar
Bench: K.Somashekar
-1-
NC: 2023:KHC:19647-DB
CRL.A No. 662 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 662 OF 2019
BETWEEN:
SRI GOPALAIAH
S/O LATE RANGAIAH,
AGED ABOUT 52 YEARS,
R/AT DASARANGAMMA PALYA
KUDURU HOBLI,
MAGADI TALUK,
RAMANAGARA DISTRICT-562 120
(NOW IN JUDICAL CUSTODY SERVING SENTENCE)
...APPELLANT
(BY SRI MUZAFFAR AHMED, ADVOCATE)
Digitally signed by
VIJAYALAKSHMI B AND:
N
Location: HIGH
COURT OF STATE BY KUDURU POLICE STATION
KARNATAKA
REPRESENTED BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
HIGH COURT BUILDING,
BENGALURU-560 001.
...RESPONDENT
(BY SRI H.S. SHANKAR, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED 18.03.2019, PASSED BY
THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
-2-
NC: 2023:KHC:19647-DB
CRL.A No. 662 of 2019
RAMANAGARA IN S.C.NO.11/2016, CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
RAJESH RAI.K, J MADE THE FOLLOWING:
JUDGMENT
This appeal by the convicted Accused No.2 is directed against the judgment of conviction and order of sentence passed in SC No.70/2015 c/w. SC No.11/2016 dated 18.03.2019 by the III Additional District and Sessions Judge, Ramanagara, wherein appellant/accused No.2 is convicted for the offence punishable under Section 302 of IPC and sentenced to undergo simple imprisonment for life and shall also liable to pay a fine of Rs.25,000/-, in default of payment of fine, he shall undergo simple imprisonment for a period of six months.
2. The brief facts of the prosecution case in this appeal are as under:
On 14.07.2014 at 5.30 p.m., at Dasarangammanapalya, Kuduru Hobli, there was a quarrel between the complainant, i.e., PW.5-Manjunatha and the accused in respect of fencing by the side of the house. On the same day, later, at about 10.00 p.m., CW.1 to CW.6 were near the house of deceased -3- NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 Parvathamma in this case. At that time, the accused Nos.1 to
3 by forming an unlawful assembly, in order to take away the life of said Parvathamma, came there and accused No.1 assaulted her by a rod, accused No.2, i.e., the appellant assaulted her by an axe and accused No.3 assaulted by a club on her head and caused grievous injuries. When CW.1 and CW.2 came to pacify the quarrel, accused No.3 assaulted CW.1 on her right side of the neck and also on her left ear by a eucalyptus club and thereby caused simple injuries to her. Accused No.1 also assaulted on the nose and left forehead of CW.3 and caused grievous injuries. Further, accused No.2 has also assaulted CW.4 and CW.5 on their head by an axe and caused grievous injuries. Due to the same, Parvathamma sustained grievous injuries to her head and fell unconscious. Later she was shifted to Lakshmi Multi Specialty Hospital at Bengaluru, where she undergone surgery. Accordingly, a complaint has been lodged by Geetha-PW.1, the grand daughter of deceased Parvathamma as per Ex.P1 and based on the said complaint, FIR has been registered in Crime No.226/2014 dated 15.07.2014 against accused Nos.1 to 3 by arraying this appellant as accused No.2, for the offence -4- NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 punishable under Sections 324, 307 read with Section 34 of IPC. Later F.I.R submitted to the jurisdictional Magistrate. However, the injured Parvathamma could not regain her conscious and succumbed after two and a half months from the date of incident, i.e., on 25.09.2014. Hence, after her death, a requisition has been submitted by the concerned Police to the jurisdictional Magistrate to invoke Section 302 of IPC against the accused. Accordingly, after obtaining permission from the Jurisdictional Magistrate, Section 302 of IPC invoked by the Police. After completion of the investigation, by collecting necessary documents and other evidence, the police laid charge sheet against accused Nos.1 to 3 for the offence punishable under Section 302, 307, 324 read with Section 34 of IPC.
However, after obtaining regular bail by the High Court, the appellant/accused No.2 failed to attend the committal Court. As such, the case against him was split up and as far as accused Nos.1 and 3 are concerned, the same has been committed before the Sessions Court and registered in S.C.No.70/2015. Subsequently, appellant/ accused No.2 was also produced before the Sessions Court. As such, a separate case registered against him in S.C.No.11/2016. However, both -5- NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 the cases were tried together by the learned III Addl. District and Sessions Judge, Ramanagara.
Before the Trial Court, the accused pleaded not guilty for the charges leveled against them and claimed to be tried. In order to bring home the guilt of the accused for the charges leveled, the prosecution examined 16 witnesses as PWs.1 to 16 and relied upon documentary evidence i.e. Ex.P1 to Ex.P28. Apart from denying all the incriminating circumstances appearing against them in the evidence of the prosecution witness, by way of defence, the accused examined DW.1 and also got marked six documents as Exs.D1 to D6. The defence of the accused was one of total denial and that of false implication. Alternatively, the accused put forward the defence that the deceased died due to some other reason and due to civil dispute pending against the accused and the deceased' family, they are falsely implicated.
3. After hearing the learned counsel appearing on both the sides and on assessment of oral as well as documentary evidence, the learned Sessions Judge by the Judgment dated 18.03.2019 convicted accused No.2, i.e., appellant herein for -6- NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 the offence punishable under Section 302 of IPC and acquitted Accused Nos.1 and 3 for the offence punishable under Sections 302, 324, 326 read with Section 34 of IPC by the impugned Judgment under appeal. Aggrieved by the said Judgment of conviction and order of sentence, the appellant/accused No.2 is in appeal before this Court.
4. We have heard Sri.Muzafar Ahmed, learned counsel appearing for the appellant and learned HCGP appearing for the respondent/State and perused the records secured from the trial Court.
5. Learned counsel for the appellant vehemently contended that Judgment under appeal suffers from perversity and illegality in as much as the learned Sessions Judge has failed to appreciate the material contradictions in the evidence of the prosecution witness. Admittedly, the deceased died at her house after 2 and 1/2 months from the date of alleged quarrel took place between the accused and the deceased. The injured eye-witnesses categorically deposed that there was a civil dispute pending between the deceased and accused No.3 in respect of the property situated at Kudur village, in -7- NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 O.S.No.106/2007 as per Ex.D3. Hence, the complainant in order to give a criminal colour to the civil dispute, lodged a false complaint against the accused persons. He would further contend that the learned Sessions Judge acquitted accused Nos.1 and 3 for the reason that the prosecution failed to produce sufficient evidence against them and strangely convicted the appellant/accused No.2 for the charges leveled against him. The learned counsel would further contend that by perusal of the evidence of PW.1 to PW.4, there are material contradictions in their version in respect of the manner in which the alleged incident is concerned. Further, the prosecution totally failed to prove the motive for the alleged incident. The learned counsel alternatively contended that, the accused had no such intention to take away the life of the deceased since the deceased died 2 and 1/2 months after the alleged date of incident. Therefore, in view of the fact, at the most, the appellant could be convicted for the offence punishable under Section 304 (I) of IPC instead of Section 302 of IPC. Accordingly, it requires to be modified and this is not a case to impose imprisonment for life to the accused. -8-
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019
6. Per contra, the learned HCGP while justifying the impugned Judgment of conviction and order of sentence, has contended that the Trial Court is justified in relying upon the evidence of PW.1 to PW.4, i.e., the injured witnesses and also the relatives of the deceased Parvathamma. He would further contend that by perusal of the post mortem report as per Ex.P23, the reason for the death given by the doctor is that "the death is due to cardio respiratory arrest due to the septic shock finally - preliminary due to grievous head injury - secondarily due to old age, surgery, debility and chronic infection." Hence, according to the learned HCGP due to the assault made by the accused, the deceased died. To substantiate that aspect, the evidence of the eye-witnesses coupled with the evidence of recovery mahazar witnesses, the prosecution proved the case against the appellant beyond reasonable doubt. Therefore, he sought for dismissal of the appeal.
7. In the facts and circumstances of the case and in the light of the submission made on both sides, the points that would arise for our consideration are: -9-
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019
i) Whether the Judgment of conviction and order of sentence passed in SC No.70/2015 c/w.
SC No.11/2016 dated 18.03.2019 by the III Additional District and Sessions Judge, Ramanagar under appeal suffers from any perversity or illegality warranting interference by this Court?
ii) Whether the learned Sessions Judge is justified in convicting the appellant/accused for the offence punishable under Section 302 of IPC?
8. We have bestowed our anxious consideration to the submission made by the learned counsel appearing on both the sides and carefully perused the records secured from the Trial Court and also reasoning adopted by the learned Sessions Judge.
9. This Court being the Appellate Court, in order to re- appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witness and documents relied upon.
10. PW.1-Geetha, grand daughter of the deceased Parvathamma, who lodged the complaint as per Ex.P3 and
- 10 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 alleged eye-witness to the incident dated 14.07.2014 at about 10.00 p.m., and she took injured to the hospital and she was also the witness for Ex.P2, i.e., spot mahazar wherein MO.1 to MO.7 said to have been seized. She deposed in her chief- examination that she witnessed the incident dated 14.07.2014 at about 6.00 p.m., in respect of some fencing issue. The accused assaulted her grand-mother deceased Parvathamma and she admitted her in the hospital. Subsequently, after 2 and 1/2 months, her grand-mother was succumbed due to the injuries. However, in the cross-examination, she admitted that there was a civil dispute pending between the deceased and accused in respect of landed property.
11. PW.2-Susheelamma, the daughter of the deceased Parvathamma is also an eye-witness to the incident deposed that on 14.07.2014 at about 5.30 p.m., the accused quarreled with them and later, at about 10.00 p.m., the accused assaulted herself and her mother Parvathamma. However, in the cross-examination, she admitted that there was a civil dispute pending between the deceased and accused.
- 11 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019
12. PW.3 and PW.4 are also the daughters of the deceased Parvathamma. They also reiterated the version of PW.1 and PW.2.
13. PW.5-Manjunatha who is the husband of PW.1- Geetha is the scribe of Ex.P1 i.e., complaint and also a witness for the inquest panchanama as per Ex.P20.
14. PW.6, one Nagesh, the witness for Ex.P2 and Ex.P6, i.e., the mahazars, turned hostile to the prosecution case.
15. PW.7, one Syed Sammer, PDO of Kudur Grama Panchayath issued tax paid receipt in respect of the house belonging to accused as per Ex.P7 and Ex.P8.
16. PW.8-Chandrappa is a witness to Ex.P2-the spot mahazar and Ex.P6-recovery mahazar. He supported the case of the prosecution by identifying his signature on those mahazars.
17. PW.9, the then Head Constable of Kudur Police Station recorded the statement of PW.1 as per Ex.P1 and placed the same before PW.13-ASI, who in turn, registered
- 12 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 F.I.R in crime No.226/2014 for the offence punishable under Sections 224, 307 read with Section 34 of IPC.
18. PW.10-Dr.Raju, who treated PW.1, PW.2, PW.3 and PW.4 and issued wound certificate Ex.P12 to Ex.p15 respectively.
19. PW.11, the then Police constable of Kudur Police Station, submitted the F.I.R before the Magistrate on 16.07.2014. PW.12, the then Head Constable is a formal witness who carried the FSL items for scientific examination.
20. PW.12, the then Head Constable of Kudur Police Station received the written complaint from one H.C.Singegowda and registered the same in Crime No.226/2014 and also conducted the mahazar as per Ex.P2 and recovered MO.1 to MO.5.
21. PW.14-T.M.Gangadhara, the then PSI of Kudur Police Station, recorded the statement of witnesses and conducted the investigation and laid the charge sheet against Accused Nos.1 to 3 for the offence punishable under Section 302, 307, 324 read with Section 34 of IPC.
- 13 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019
22. PW.15 is the medical officer of Nelamangala Government Hospital who conducted the autopsy over the dead body of deceased Parvathamma and issued P.M report as per Ex.P23.
23. PW.16-Dr.Chaitanya visiting faculty of Lakshmi Multi Speciality Hospital, who examined deceased Parvathamma when she was alive on 14.07.2014.
24. On careful perusal of the above evidence, the gist of the prosecution case as per Ex.P3-compliant that due to the civil dispute pending between the deceased and accused No.3, there was an ill-will between them and on 14.07.2014, at about 10.00 p.m., accused Nos.1 to 3 came in front of the house of deceased and assaulted the deceased and P.W.1 to PW.4 with iron rods and axe. Hence, a complaint has been lodged against accused persons and F.I.R. came to be registered for the offence under Section 307 of IPC. Subsequently, the injured parvathamma was admitted to Sri.Lakshmi Multi Speciality Hospital in an unconscious state and subsequently, she could not recover. She was in the hospital till 18.09.2014 and got discharged and died on 25.09.2014 at her house. By careful
- 14 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 perusal of the post mortem report issued by PW.15- Dr.Chowdayya as per Ex.P23 depicts that "the death is due to cardio respiratory arrest due to the septic shock finally - preliminary due to grievous head injury - secondarily due to old age, surgery, debility and chronic infection." Admittedly, the deceased was aged about 70 years at the time of her death. Hence, by perusal of the reason for her death, though it is stated that one of the reason for her death is due to the assault, but the corresponding reasons are due to her age and chronic infection and cardio respiratory arrest. Hence, the prosecution failed to prove beyond reasonable doubt that the death of the deceased Parvathamma is homicidal and only due to the injuries sustained by her on 14.07.2014, since she died after 2 and 1/2 months. Further, on meticulous examination of the evidence of PW.1 to PW.4, there are much contradictions and omissions in respect of the alleged incident is concerned. Admittedly, the alleged incident caused at about 10.00 p.m., near the house of deceased. The said aspect was not properly considered by the learned Sessions Judge. Nevertheless, the testimony of PW.1 to PW.4 who are the family members of the deceased must be viewed with a high degree of caution. The
- 15 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 Court must also look for independent corroboration to believe the version of interested witness. Further, by careful perusal of the evidence of PW.1 to PW.4 and materials on record, there was a civil dispute pending between accusedeNo.3-Jayamma and deceased Parvathamma and others before the Civil Judge (Jr.Dn.), Magadi in O.S.No.106/2007. The said case was pending at the time of alleged incident. As such, the evidence of PW.1 to PW.4 must be viewed with the high degree of caution, since there was a possibility of false implication of the accused in order to give criminal colour to the civil dispute.
25. On careful perusal of the material on record, it could be gathered that there was no intention on the part of the accused to take away the life of deceased Parvathamma. Admittedly deceased Parvathamma died after 2 and 1/2 months from the alleged date of incident. As rightly contended by the learned counsel for the appellant, at the most, the act of the accused will fit into the ambit of Section 300(I) punishable under Section 304(II). The accused in a spur of the moment, might have assaulted the deceased Parvathamma without any intention to commit her murder. In such circumstance, in our considered opinion, this is not a case to convict the appellant
- 16 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 for the offence punishable under Section 302 of IPC, whereby, to impose punishment for imprisonment for life. Exception 1 of Section 300 of IPC 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-
Secondly.-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-
Thirdly.-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-
Fourthly,-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.
10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra,
- 17 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 this Court has held that the conditions which have to be satisfied for the exception to be invoked are (a) the deceased must have given provocation to the accused; (b) the provocation must be grave; (c) the provocation must be sudden;
(d) the offender, by the reason of the said provocation, should have been deprived of his power of self-control; (e) the offender should have killed the deceased during the continuance of the deprivation of power of self-control; and (f) the offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident. For determining whether or not the provocation had temporarily deprived the offender from the power of self-control, the test to be applied is that of a reasonable man and not that of an unusually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. K.M. Nanavati (supra) succinctly observes:
"84. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down.
- 18 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.
85. The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self- control. (2) In India, words and gestures may
- 19 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
11. K.M. Nanavati (supra), has held that the mental background created by the previous act(s) of the deceased may be taken into consideration in ascertaining whether the subsequent act caused sudden and grave provocation for committing the offence. There can be sustained and continuous provocations over a period of time, albeit in such cases Exception 1 to Section 300 of the IPC applies when preceding the offence, there was a last act, word or gesture in the series of incidents comprising of that conduct, amounting to sudden provocation
- 20 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 sufficient for reactive loss of self-control. K.M. Nanavati (supra) quotes the definition of 'provocation' given by Goddard, C.J.; in R. v. Duffy, as :
"...some act or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-
control, rendering the accused so subject to passion as to make him or her for the moment not master of his own mind...[I]ndeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person had the time to think, to reflect, and that would negative a sudden temporary loss of self-control which is of the essence of provocation...".
12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self- control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First,
- 21 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation. The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self-control.
The second part emphasises that the offender's reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused
- 22 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim's abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.
26. A careful perusal of the said provision makes it clear that culpable homicide does not amounts to murder if the offender whilst deprived of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. In the present case, as stated supra, the accused suddenly attacked the deceased in view of the oral altercation in connection with the civil dispute and the same comes within
- 23 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 the ambit of culpable homicide not amounting to murder. In that view of the matter, we are of the considered opinion that the conviction of the accused punishable under Section 302 of IPC has to be modified and altered into one under Section 304(I) of IPC.
27. Admittedly, the case on hand totally rests on the evidence of PW.1 to PW.4, i.e., the family members of the deceased Parvathamma without any corroborative evidence of the independent witness. It is also not in dispute that there was a civil dispute pending between the parties and the deceased Parvathamma died after 2 and 1/2 months from the date of incident. As stated supra, the evidence of interested witness has to be viewed in a high degree of caution. It is also not in dispute that while convicting the accused based on the evidence of interested witnesses, the Court should be careful as there are greater chances of turning out to be wrongful conviction. Later on, in comparison to ones which are based on fitter source of proof.
28. The evidence on record in this case which establishes the socio-economic condition of the appellant who is
- 24 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 aged about 55 years, as a person below poverty line as he was a Bar Bendor, can also be considered as one of the mitigating factors, while balancing the aggravating and mitigating factors. In the present case, the accused is having wife and children and as on the date of conviction, he is in judicial custody, i.e., for a period of 04 years 06 months 20 days. Taking into consideration the age of the accused and the future career of two children of the accused and considering the totality of the facts and circumstances of the case and also Accused Nos.1 and 3 are acquitted by the Trial Court and the State has not prepared any appeal against the said Judgment of acquittal, we are of the considered opinion that the period which the accused already undergone, i.e., 04 years 06 months 20 days with fine imposed by the Trial Court would suffice to service of sentence in order to meet the ends of justice for the offence punishable under Section 304(I) of IPC.
29. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Nanak Ram -vs- State of Rajasthan reported in (2014)12 SCC 297, wherein the Hon'ble Supreme Court held at paragraphs-18, 19, 20 and 21 as under:
- 25 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 "18. It is true that the accused party had land dispute with the victim party. The Collector ordered conversion of subject land into abadi and on the applications made by Shivji Ram and his two brothers, Pattas were issued as evident from P12, P16, P17, P20, P21 and P24. Accused Bhera Ram preferred appeals against the grant of Patta to Panchayat Samiti at the first instance and they came to be dismissed and the revision preferred before the Collector was pending. PW8 Sarpanch Dhura Ram and PW5 record keeper Hanuman Das have stated so. Thus the evidence shows that the accused party was desirous to get the subject land to themselves and were taking legal steps to achieve it. On coming to know of the fencing put by Shivji Ram and his brothers they were annoyed and went there to remove the fencing. While they were dismantling the fencing, Shivji Ram and his brothers came there and objected to it by saying that they have obtained Patta and a sudden quarrel erupted.
19. A fight suddenly takes place for which both parties are more or less to be blamed and it is a combat whether with or without weapons. It may be that one of them starts
- 26 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 it, but if the other had not aggravated it by his own conduct, it would not have taken the serious turn it did. 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. Out of the 9 injuries, only injury no.1 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The assaults were made at random. Even the previous altercations were verbal and not physical. The earlier disputes over land do not appear to have assumed the characteristics of physical combat. This goes to show that in the heat of passion upon a sudden quarrel the accused persons had caused injuries on the deceased. That being so the Exception 4 to Section 300 IPC is applicable. The fact situation bears great similarity to that in Ghapoo Yadav & Ors. vs. State of M.P. (2003) 3 SCC 528.
20. Looking at the nature of injuries sustained by the deceased and the circumstances as enumerated above the conclusion is irresistible that the death was caused by the acts of the accused done
- 27 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 with the intention of causing such bodily injury as is likely to cause death and therefore the offence would squarely come within the first part of Section 304 IPC and the appellants would be liable to be convicted for the said offence. The conviction of the appellants/accused under Section 304 Part II read with Section 149 IPC by the High Court is liable to be set aside.
21. We are of the considered view that imposition of 7 years rigorous imprisonment on each of the appellants for the conviction under Section 304 Part I IPC would meet the ends of justice. We sustain the other conviction and sentences imposed on the appellants. We are also of the view that the appellants are not entitled for release on probation."
CONCLUSION
30. On re-appreciation of the entire oral and documentary evidence on record and in the light of the principles enunciated in the judgment of the Hon'ble Supreme Court stated supra, we answer the point raised in the present appeal partly in the affirmative holding that the impugned
- 28 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 judgment of conviction and order of sentence passed by the trial Court calls for interference and the impugned Judgment convicting the appellant/accused for the offence punishable under Section 302 of IPC has to be modified and altered into one under Section 304 (I) of IPC and the appellant/accused shall be sentenced to the period already undergone i.e., 04 years 05 months 20 days with a fine of Rs.25,000/- and in default of payment of fine to undergo Simple Imprisonment for two months, in the peculiar facts and circumstances of the present case, would meet the ends of justice.
In view of the above, we pass the following:
ORDER
i) The Criminal Appeal filed by the appellant/accused No.2 is allowed in part;
ii) The impugned Judgment of conviction and order of sentence dated 18.03.2019 passed in S.C.No.70/2015 c/w.S.C.No.11/2016 on the file of III Addl. District and Sessions Judge, Ramanagara, convicting the appellant/Accused No.2 for the offence punishable under Section 302 of IPC and sentencing him to undergo rigorous imprisonment
- 29 -
NC: 2023:KHC:19647-DB CRL.A No. 662 of 2019 for life and to pay fine of Rs.25,000/- is hereby modified and the appellant/accused No.2 is convicted for the offence punishable under Section 304(I) of IPC and he is sentenced for the period which he has already undergone, i.e., the substantive sentence of 04 years 05 months 20 days;
iii) The sentence in respect of the fine amount of Rs.25,000/- imposed by the Trial Court and order regarding award of monetary compensation by DLSA under Section 357(A) of Cr.P.C., shall be kept in tact.
The Registry is directed to communicate this Order to the Jail authorities, forthwith and the Jail Authorities are directed to release the appellant/Accused No.2 in the above case, forthwith, if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE BNV