Karnataka High Court
Sanjeev S/O Ramchandra Mopagar vs The State Of Karnataka on 1 March, 2019
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF MARCH 2019
PRESENT
THE HON'BLE MR.JUSTICE B.VEERAPPA
AND
THE HON'BLE MR.JUSTICE P.G.M.PATIL
CRIMINAL APPEAL NO.3599/2011
BETWEEN:
SANJEEV
S/O RAMCHANDRA MOPAGAR
AGE: 40 YEARS
OCC: KANNADA SCHOOL TEACHER
R/O KALAKERI, TQ.SINDHAGI
NOW AT JORAPURPET, UPPARONI
BIJAPUR
...APPELLANT
(BY SRI V. M. SHEELVANT,
SRI SHARANABASAPPA M. PATIL &
& SRI SANJAY KULKARNI, ADVOCATES)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS
2
PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
GULBARGA
... RESPONDENT
(BY SRI PRAKASH YELI, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE DT: 12.04.2011 IN
S.C.NO.89/2007, ON THE FILE OF I-ADDL SESSIONS JUDGE
BIJAPUR, PERSUE THE SAME, ALLOW THIS APPEAL, AND SET
THE APPELLANT AT LIBERTY IN THE INTEREST OF JUSTICE.
THIS APPEAL HAVING BEEN HEARD, RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, P.G.M.PATIL J., DELIVERED THE
FOLLOWING:
JUDGMENT
This criminal appeal is filed under Section 374(2) of Cr.P.C. by the appellant-accused being aggrieved by the judgment of conviction and order of sentence dated 12.04.2011 in Sessions Case No.89/2007 passed by the I-Addl. Sessions Judge, Bijapur, whereby the appellant- accused was convicted for the offences punishable 3 under Sections 498-A, 302 of IPC and sentenced to undergo imprisonment for life and also to pay fine of Rs.50,000/- for the offence punishable under Section 302 of IPC, in default, he shall suffer further imprisonment for a period of five months and he shall undergo imprisonment for a period of 3 years and shall also pay fine of Rs.5,000/- for the offence punishable under Section 498-A of IPC, in default, he shall further undergo imprisonment for a period of five weeks.
2. The brief facts of the prosecution case are as follows:
The complainant one Somanna Sakri lodged a complaint before Bijapur town police on 13.03.2007.
He has alleged in his complaint that his sister Sitabai was given in marriage to the accused about 18 years back and she gave birth two sons by name Harish aged about 8 years and Girish aged about 5 years. His sister 4 was working as Teacher in Bijapur and her husband is also working as Teacher in Government School, Ukkali.
The accused, his wife and children were living in a rented house at Jorapur peth, Bijapur. He has further alleged that at the time of marriage, they had given cash for Rs.11,000/- and 3 tolas of gold to the accused. The accused used to give ill-treatment to his wife compelling her to bring money from her parents. The complainant advised the accused to lead happy married life inspite of that accused gave ill treatment to his wife. It is further alleged that on 13.03.2007 at about 4:30 a.m. the accused informed him on phone that his wife died due to heart attack. Immediately the complainant along with his wife and other relatives came to Bijapur and found the dead body of his sister in the hall of the house of the accused and he also noticed injury over the forehead and dark mark on the neck. On enquiry, the accused stated that his wife quarreled with him and 5 died at about 4:00 a.m. The accused assaulted his wife and caused her death by hanging her. Therefore, the complainant requested the respondent police to register a case and take action against the accused. On the basis of the said complaint, the respondent police registered a case in Crime No.38/2007 for the offences punishable under Sections 498-A, 302 of IPC and took up investigation of the case. After completing investigation, the Investigating Officer submitted charge sheet against the accused for the aforesaid offences before the jurisdictional Magistrate. The learned Magistrate took cognizance of the alleged offences and registered the case, secured the accused and complaint with Section 207 of Cr.P.C. by furnishing prosecution papers to him. Thereafter under Section 209 of Cr.P.C.
committed the case to the Sessions Court.6
3. On the receipt of committal records, the learned Prl. Sessions Judge registered a case in S.C.No.89/2007 and made over the same to I-Addl. Sessions Court for disposal according to law. Accused was secured before the trial Court. The trial Court after hearing both the accused and the prosecution framed the charge for the aforesaid offences and when the charge was read over and explained to accused he pleaded not guilty and claimed to be tried. Thus, case was posted for trial.
4. In order to prove the alleged offences against the accused, the prosecution has got examined in all 23 witnesses as PW.1 to PW.23 and got marked Exs.P1 to P15 and documents Mos.1 to 4. Thereafter, the learned Sessions Judge examined the accused under Section 313 of Cr.P.C. and recorded his statement. The accused has also got examined himself as DW.1 and one witness 7 was examined as DW.2 and got marked Exs.D.1 to D7. The learned Sessions Judge after hearing both sides, framed the following points for consideration:
1. Whether the prosecution proves beyond all reasonable doubts that accused being husband of the deceased Sitabai subjected her to mental and physical cruelty pressurizing her to bring money from her parental house and quarrelling with her and giving ill treatment and assaulting her and thereby accused committed the offence punishable under Section 498-A of IPC?
2. Whether the prosecution further proves beyond all reasonable doubt that on 13.03.2007 at 4:00 a.m. in the rented house of accused situated in Uppar lane of Jorapur peth in Bijapur city, again the accused picked up quarrel and assaulted with hand and dragged her from hall to kitchen and strangulated her with polyester sari by putting it into the iron 8 hook and pulled it and hanged her and thereby accused committed her murder and he has committed the offence punishable under Section 302 of IPC?
3. What order?
5. On the basis of the materials on record, the learned Sessions Judge answered both the points in affirmative holding that the prosecution has proved the case beyond all reasonable doubt. Accused being husband of deceased Sitabai subjected her to mental and physical cruelty pressurizing her to bring money from her parental house and caused ill-treatment, assaulted her and thereby he has committed offence punishable under Section 498-A of IPC. Further the Sessions Court held that the prosecution has proved beyond all reasonable doubt that on 13.03.2007 at about 4:00 a.m. in the rented house situated in Uppar lane, Jorapur peth, Bijapur, accused picked up quarrel 9 and assaulted the deceased with hands and dragged her from hall to the kitchen, strangulated her with polyester saree by putting into iron hook of the roof of kitchen and committed her murder, which is punishable under Section 302 of IPC. Therefore, the trial Court after having convicted the accused for the aforesaid offences, heard the accused and prosecution and passed the sentence, whereby the accused was sentenced to undergo imprisonment for life and also to pay a fine of Rs.50,000/- for the offence punishable under Section 302 of IPC, in default, he shall suffer further imprisonment for a period of five months, the accused shall also undergo imprisonment for a period of 3 years and shall also pay fine of Rs.5,000/- for the offence punishable under Section 498-A of IPC, in default, he shall undergo imprisonment for a period of five weeks.10
6. The accused has challenged the impugned judgment of conviction and order of sentence in this appeal.
7. We have heard the learned counsel for the appellant-accused and also learned Addl. SPP for the respondent-State.
8. On the basis of the material on record, the learned counsel for the appellant-accused submitted that as per the post mortem examination report, the vegetable food was found in stomach of deceased.
Therefore, deceased died within two hours from taking her last meal. In that case the evidence of PW.7 that on the previous night they had meal around 10:00 p.m. and slept in the house and alleged incident took place at about 4:00 a.m. cannot be accepted. Therefore, it was submitted that PW.7 is got up witness and he was not present at the time of alleged incident. 11
9. Learned counsel further submitted that the prosecution has suppressed the genesis of the case i.e. true facts are suppressed. Learned counsel further submitted that inquest on body of the deceased was conducted in the hospital and there is no explanation as to why the inquest was not conducted in the place where dead body was found. The learned counsel further submitted that the presence of PW.7 at the time of incident is not mentioned in the Ex.P1. Therefore, it is an after thought.
10. In support of his arguments, he has relied on the following decisions:
1. State of Himachal Pradesh vs. Dhani Ram reported in 1997 SCC Cri 244;
2. Bhagwan Singh vs. State of Madhya Pradesh reported in (2003) 3 SCC 21;
3. Satish Nirankari vs. State of Rajasthan reported in (2017) 8 SCC 497 12
11. Per contra, Sri Prakash Yeli, learned Addl. SPP submitted that PWs.1 to 4, PW.7, PW.17 have supported the case of the prosecution and that the evidence of PW.7 is acceptable and he being the only eyewitness has supported the case of the prosecution. So also PW.17 has supported the case of the prosecution regarding extra judicial confession made by the accused and by producing cogent and acceptable evidence against the accused the prosecution has proved its case beyond reasonable doubt and appeal is liable to be dismissed.
12. In support of his contentions, he has relied on the following decisions:
1. Khujji @ Surendra Tiwari vs. State of Madhya Pradesh reported in (1191) 3 SCC 627;13
2. Mrs. Shakila Khadar and Others vs. Nausheer Cama and Others reported in (1975) 4 SCC 122;
3. State of Uttar Pradesh vs. Krishna Master & Others reported in 2010 (2) Criminal 335;
4. Baskaran & Another vs. State of Tamil Nadu reported in (2014) 5 SCC 765.
13. In view of rival contentions, the following points arise for our consideration in this appeal:
1. Whether the prosecution has proved that the death of the deceased was homicidal death?
2. Whether the appellant-accused has made out a ground to interfere with the impugned judgment of conviction and order of sentence?
3. What order?14
14. We have given our anxious consideration to the arguments advanced by both the counsels. We have examined the records carefully.
15. The oral evidence of the prosecution reveals that PW.1-Somanna is the complainant and he is elder brother of the deceased. He lodged the complaint Ex.P.1. PW.2 Laxmibai is wife of PW.1. PW.3 Satirawwa is elder sister of the deceased, she received information from PW.1 and she accompanied PWs.1 and 2 to the house of the accused after receiving the information of the death of the deceased. All these three witnesses have deposed to this effect and PW.7 Harish son of accused and deceased narrated the incident before them. PW.4 Dundappa is neighbour of the complainant. He also accompanied the complainant to the house of the accused.
15
16. PW.5 Dr.R.M.Sajjan, conducted post mortem examination on the body of the deceased and issued post mortem report as per Ex.P2. He has given final opinion as to cause of death that it was due to asphyxia as a result of ligature strangulation (compression of neck). PW.6 S.S.Dhale, is the Tahsildar who conducted inquest panchanama as per Ex.P4 in the presence of PWs.8 and 9 panchas. PW.7-Harish is the son of accused and the deceased and he is sole eyewitness to the incident. PW.8 Parvati is a witness to the inquest panchanama Ex.P4. PW.9 Babu is co-pancha for inquest panchanama. PW.10 R.S.Tuppad, PSI registered the case on receiving complaint in Crime No.38/2007 and according to him the body of the deceased was lying in the hall of the house of the accused. PW.11 Mohan is the witness to the spot panchanama-Ex.P6 and seizure panchanama-Ex.P7, 16 under which MO.4 polyester saree was seized at the instance of the accused from his house.
17. PW.12-Kamalabai is neighbour of the accused. It is the case of the accused that the deceased died in the house of this witness and not in the house of accused. PW.13 Raju is the AE of PWD, he has drawn the sketch map of the scene of offence. PW.14 woman police constable she was present at the time of post mortem examination and thereafter produced clothes of deceased before IO marked in Mos.1 to 3. PW.15 Bhimaraya is the co-pancha for Ex.P6-spot panchanama and seizure panchanama of saree at the instance of accused. PW.16-Mahiboob is the pancha witness for Ex.P10 cloth seizure panchanama i.e. Mos.1 to 3 of the deceased. He has turned hostile.
18. PW.17 Rachappa is an independent witness. It is the case of the prosecution that the accused has 17 made extra judicial confession before this witness and therefore he is also one of the material witnesses. PW.18 Iranna is scribe of complaint Ex.P1. He scribed the said complaint as dictated by PW.1. PW.19- Basavaraj is neighbour of accused, he has not supported the case of the prosecution and was treated as hostile. PW.20 Mohammadali is co-pancha for Ex.P10 cloth seizure panchanama of the deceased has turned hostile. PW.21 Sayad Kashimsab Pathan HC carried FIR to the Magistrate and he has explained with regard to delay in carrying the FIR. PW.22 Rajendra is another neighbour of accused has turned hostile. PW.23 N.S.Patil CPI is the IO in the case, he seized MO.4 on the information of the accused. After completing investigation he submitted the charge sheet.
19. The prosecution mainly relies on the evidence of PWs.1 to 5, 7 and 17 in order to prove the 18 alleged offence against the accused. It is the case of the prosecution that PW.7 Harish who is none other than the son of the accused and the deceased is eyewitness and he is star witness for the prosecution. On the other hand, it is the defence of the accused that PW.7 was not present in the house at the time of alleged incident and he has been planted as eyewitness. The accused has also taken defence of alibi stating that he was not present in the house and he was out of station on the date of alleged incident. In order to appreciate the evidence of the material witnesses, it is necessary to refer their evidence in detail.
20. The undisputed facts are that the marriage of the deceased and the accused was performed on 20.02.2000 and the alleged incident took place on 13.03.2007. It is also admitted that the accused and the deceased were blessed with two sons, namely, PW.7- 19 Harish and his younger brother Girish. PWs.1 to 4 have deposed before the Court regarding marriage of the accused with the deceased and that at the time of marriage they have given cash of Rs.11,000/- and 3 tolas of gold and thereafter accused was illtreating the deceased demanding money from her parents house and there used to be quarrel between them. PW.1 received phone call from the accused on the date of incident at about 4:30 a.m. stating that his wife died due to heart attack. Thereafter, PW.1 along with PWs.2 to 4 rushed to the house of the accused and found the dead body of his sister in the hall. He noticed a dark colour injury over the forehead and also dark mark on her neck. On enquiry, the accused did not reply properly. Further these witnesses have stated that PW.7 Harish was present at the time of incident and he narrated the said incident to them, stating that on previous night there was quarrel between his mother 20 and father. At about 4:00 a.m. he heard the cries of his mother and when he woke up, he saw his father- accused dragging his mother by holding her hairs and dashed her head against the wall and assaulted her. Thereafter he dragged her to kitchen and strangulated with polyester saree and thereafter hanged her to the hook in the roof of the kitchen. His mother who was making noise died and thereafter his father-accused brought the dead body and placed in the hall and accused went away. These witnesses have further stated that PW.1 lodged the complaint in this regard and the said complaint was scribed by PW.18-Iranna who was also present with PW.1
21. In the cross examination of PWs.1 and 2 it is elicited that PW.1 had filed complaint against the accused and in all he had filed three cases against him. He has denied that the accused never ill-treated the 21 deceased and that he has lodged a false complaint. He has also denied that the deceased died in the house of PW.12-Kamalabai. However, throughout his cross- examination, there is no suggestion that PW.7 Harish was not present in the house at the time of incident and he never informed him about the incident. He has further denied that on 12.03.2007 at about 11:00 pm when the accused came to the house, knocked the door a person ran away from the house and in that connection there was quarrel between the accused and the deceased. Thereafter the deceased was sent to the house of Kamalabai PW.12.
22. PW.2 who is wife of PW.1 has also denied in her cross-examination that the deceased died in the house of Kamalabai. It is not denied that PW.7 was present at the time of incident though it is denied that he narrated the incident to them i.e. PWs.1 to 4. 22
23. PW.3 Sathvirawwa and PW.4 Dundappa are elder sister of the deceased and neighbour of PW.1 respectively. They also accompanied PWs.1 and 2 on the receipt of intimation that deceased died in the house of accused. All these witnesses came to the house of the accused and found the dead body of the deceased in the hall of the house of the accused.
24. PW.3 being elder sister of the deceased has also stated about ill-treatment given by the accused to the deceased. These witnesses have also stated that PW.7 narrated the incident before them.
25. In their cross-examination, they have denied that two days prior to the incident when the accused came to the house, an unknown person went out of the house and in that connection there was quarrel between the accused and the deceased and the deceased was 23 sent to the house of PW.12-Kamalabai. In the cross- examination of these witnesses also it is not denied that PW.7 Harish was present at the time of incident.
26. The evidence of PW.7 Harish who is none other than the son of the accused and the deceased was aged about 9 years on the date of giving evidence. According to prosecution, he is the only eyewitness to the incident and therefore his evidence is material. When he was examined before the Court, the trial Court has taken all precautions by putting preliminary questions to him and on the basis of the answers given by him, the trial Court has come to the conclusion that he is capable of understanding questions and giving proper and rational answers. Therefore, oath was administered to him.
27. PW.7 has deposed in clear terms that there used to be quarrel between his father and mother 24 oftenly only for the reasons that his father was insisting her to bring money from her parents house and father- accused used to assault his mother almost everyday. He has further stated that about two years six months before one day in the night between 9:00 and 10:00 p.m. they slept in the hall of the house and before sleeping there was quarrel between his father and mother in connection with bringing money from the house of her parents. He has stated that at about 4:00 a.m. he heard cries of his mother and woke up. He witnessed that his father was assaulting his mother. His father dragged her by holding her hairs and dashed her head against the wall, due to which she sustained injury on her forehead. Thereafter, his father dragged his mother to kitchen took old polyester saree tied same around her neck and put the saree to the hook in the roof of the kitchen and hanged her. His mother made cries and ultimately remained silent. Thereafter, his 25 father took her to the hall and went away from the house. Himself and his younger brother Girish were weeping. On hearing their cries, neighbours came to the house. Thereafter his maternal uncle and aunt namely PWs.1 and 2 and along with others came to house at about 9:00 a.m. he narrated the entire incident before them. He identified the saree with which his father hanged his mother in MO.4. He has also further deposed that he has seen the incident in the electric light. He has also further stated that his father committed murder of his mother demanding money from her parental house.
28. In the cross-examination of this witness (PW.7), he has admitted that he has got much love and affection towards PW.1, however, he has denied that he is deposing before the Court as tutored by PW.1. In his cross-examination PW.7 has stated that his father 26 himself shifted body of the deceased to the hospital in auto before his maternal uncle PW.1 came to the house. However, he do not know why his father-accused shifted the body of his mother to the hospital. It is suggested him that on 12.03.2007 at about 11:00 p.m. there was quarrel between his father and mother and he has admitted the same. He has denied that he was sleeping at the time of incident. He has denied that after the quarrel, the elders sent his father out of the house and his mother was sent to the house of Kamalabai, He has also denied that on 11.03.2007 and 12.03.2007 his father was not present in the house. He has further stated that he tried to rescue his mother at the time of incident. It is suggested to him that on the previous night a stranger went out of the house when his father came to the house and thereafter there was quarrel between his father and mother. He had denied that his mother did not die in his house. Strangely it is noticed 27 that absolutely there is no denial or suggestion to this witness that he was not present during the incident, thereby evidence of this witness that he was present at the time of incident in the house and witnessed the entire witness incident has remained unchallenged.
29. PW.12 Kamalabai is also a material witness. It is defence of the accused that the deceased died in the house of this witness and not in the house of accused. She has deposed that she is neighbour of the accused. The accused and his wife, children were residing in the house situated next to her house after 4 to 5 houses. Both the deceased and the accused were serving as Teachers. There used to be quarrel between them, however, she do not know the reasons. The deceased used to tell her that husband used to assault her and insisting her to bring money from her parents house. About 2 ½ years back one day in the morning at 28 about 5:30 a.m. she heard weeping sound from the house of accused, when she went to the house, the dead body of Sitabai was in the hall of the house, she had sustained injury on the forehead and there were also scratch marks on her neck. When she enquired the accused, he informed her that his wife died due to heart attack. She was partly treated as hostile and cross- examined by the prosecutor.
30. In her cross-examination, she has admitted each and every suggestion put to her, thereby case of the prosecution is admitted by her. She has admitted that at the time of incident, PW.7 Harish was present in the house and he narrated the incident to herself and others. She has stated that the deceased died in the house of the accused and not in her house.
31. In her cross-examination she has denied that on the previous day, there was quarrel between the 29 accused and the deceased-Sitabai and that the deceased was sent to her house after pacifying quarrel and she died in her house. Therefore, the evidence of this witness will not help the defence that the deceased died in the house of this witness.
32. PW.5 Dr. Ramappa Madivalappa Sajjan, is also a material witness. He conducted post mortem examination on the dead body of the deceased. He has deposed before the Court on 13.03.2007 at 5:00 a.m. he received dead body of Sitabai with a history of death due to assault and strangulation. He found following external injuries on the body of the deceased.
a. Contused abrasion over the forehead measuring 4cm 4cm read in colour.
b. There is horizontal ligature mark around neck over thyroid cartilage and deficient over right sub-occipital region. It measures 27cms x 4cms and situated 6cm below each ear lobule. Skin under 30 ligature mark is parchmenttised. Oh dissection of neck structure around edges of ligature mark and over right ale of thyroid cartilage and thyroid gland shows extravasions of blood. Focal tiny hemorrhages present in strap muscles of neck on either side hyod and thyroid on dissection of the dead body I found the following;
a) On reflection of scalp blood extravasioned over the frontal region
b) Pethial hemorrhages present in white matter
c) Pethial hemorrhages present on surface of both lungs
d) Heard is congested and left chamber is empty
e) Stomach contains full of vegetable meals.
Smells present and Pethial mucus hemorrhages present. f) Other parts of the body are intact.
2. I am of the opinion that all the injuries are anti mortem in nature and all fresh. I 31 have takenblood and viscera for chemical analysis.
3. I am of the opinion that death was due to asphyxiz as a result of compression of neck. However, I reserved my final opinion till availability of chemical analysis report.
Accordingly, issued report as per Ex.P2. He has further stated that in his opinion cause of death was due to asphyxia as a result of ligature strangulation (compression of neck). When polyester saree MO4 shown to him he has stated that death of deceased is possible by using said saree by hanging.
33. In his cross-examination he has stated that in this case death may be due to strangulation- compression of the neck. In case of hanging there will be mark, which go beyond pinna of the ear. In case of strangulation same distance will be maintained between 32 both ear Pinna. The parallel mark will also be maintained between both the Pinna and also there is no fracture of thyroid and hyoid bone. If fracture is there, it will be hanging. The struggling marks may or may not be there in manual strangulation. The manual strangulation in this case is directly pressure over the neck. It can be directly putting the pressure with an object over neck without putting any knot, it may be without knotting the saree, one person can be hanged by taking the saree through the hook. He has denied that in this case there are no symptoms are there to give his opinion that there is strangulation. He has denied that in case of manual strangulation the bleeding can be occurred from nose and mouth, but not from ear and eyes. He has denied that his opinion regarding death in the instant case as strangulation is against opinion expressed by the author like Dr.Modi. Throughout his 33 cross-examination there is no suggestion that the death of deceased is suicidal hanging.
34. PW.17 Rachappa is another material witness in the case. He has deposed that about 2 ½ years back at about 6:00 a.m. when he was in Tamba, one person by name Iranna Hipparagi telephoned him and stated that the sister of the complainant died due to heart attack and you should come along with villagers of Tamba. Himself and others came to Bijapur in tempo, when they went to the house of the accused, accused was present. The deceased was put in the hall of the house of the accused. When he enquired regarding death of the deceased, the accused confessed that he has beaten her and hung her and then they enquired Harish he also narrated the incident of beating his mother by his father and that his father hanged his mother with saree.
34
35. In his cross examination he has denied suggestion that the accused never made confessional statement before him stating that he beaten his wife and hung her. Except this suggestion nothing is elicited in his cross-examination.
36. The other official witnesses have deposed about their official acts and investigation done in the case.
37. The evidence of the material witnesses including PW.7 as discussed above goes to show that the incident occurred on a sudden quarrel between the accused and his wife namely deceased. Even PW.7 has stated that on that night there was quarrel between his father and mother. It is also the case of the prosecution that the said incident occurred on a sudden quarrel between the accused and the deceased. Even when the 35 charge was framed against the accused for the offence punishable under Section 302 of IPC, it is alleged that on 13.03.2007 at about 4:00 a.m. in the rented house the accused picked up quarrel, assaulted his wife with hand and dragged her, strangulated and caused her death. Therefore, incident took place on a sudden quarrel between the accused and the deceased.
38. On careful examination of evidence of PW.7, it is seen that he has never deposed that on that night they had meal at 10:00 p.m. and slept in the house. However, he has only stated that on that night they slept in the hall at about 9:00 to 10:00 p.m. and before sleeping there was quarrel between his mother and father. Thereafter, he heard cries of his mother at about 4:00 a.m. This witness was aged about 8 years at the time of incident and as such his evidence that he heard cries of his mother at about 4:00 a.m. has to be 36 considered by looking to his tender age. Further he has not stated that on that night the deceased had meal at about 9:00 or 10:00 p.m. as submitted on behalf of appellant-accused. Therefore, only because vegetable meal was found in the stomach of the deceased at the time of post mortem examination, it cannot be held that PW.7 was not at all present in the house at the time of incident and that he is a got up witness. As already referred absolutely there is no suggestion either in the cross-examination of PW.7 or in the cross-examination of PWs.1 to 4 that PW.7 was not present at the time of incident and he has not witnessed the entire incident. Therefore, presence of PW.7 at the time of incident is proved by the prosecution and as such his evidence is acceptable.
39. Learned counsel for the appellant in support of his arguments has relied on decision in the case of 37 State of Himachal Pradesh vs. Dhani Ram reported in 1997 SCC Cri. 244, in which the Hon'ble Apex Court held that corroboration is required to the testimony of child witness if it is made out child witness was tutored. In the present case no such evidence is brought about by the defence, that PW.7 was tutored. There is no unusual conduct of PW.7 and as such his evidence cannot be held as not reliable. As such the judgment in the case of Bhagwan Singh vs. State of Madhya Pradesh reported in (2003) 3 SCC 21 relied by the learned counsel for the appellant will not help the appellant. The defence has not made out that the prosecution has suppressed genesis of the case. On the other hand, the accused who has taken the defence of alibi and got examined himself and one witness as DW.2 has failed to prove the said defence and this defence was not at all canvassed before this Court. Learned counsel for the appellant has also relied on the decision in the case of 38 Satish Nirankari vs. State of Rajasthan reported in (2017) 8 SCC 497 in which distinction between hanging and strangulation is dealt with.
40. Per contra, learned Addl. SPP has relied on the decision in the case of Khujji @ Surendra Tiwari vs. State of Madhya Pradesh reported in (1991) 3 SCC 627 in which it is held by the Hon'ble Apex Court that Section 174 of Cr.P.C. non mention of names of eye witnesses in inquest report held would not render their testimony unreliable. Therefore, in the present case only because name of PW.7 is not mentioned in the inquest panchanama his testimony cannot be held as unreliable. Similar proposition of law was held in the case of Mrs.Shakila Khadar and Others vs Nausheer Cama and Others reported in (1975) 4 SCC 122. It is also settled law that FIR need not contain all the details. Further learned Addl. SPP relied on the decision in the 39 case of State of Uttar Pradesh vs. Krishna Master & Others reported in 2010(2) Criminal SC 335 in which the Hon'ble Apex Court held that the child witness of tender age - A child of tender age is always receptive to abnormal events which takes place in its life and would never forget those events for the rest of his life - child would be able to recapitulate correctly and exactly when asked about the same in future. Therefore, in the present case PW.7 Harish though was aged about 8 years at the time of incident he would never forgot the said incident throughout his life and as such, his evidence narrating the incident inspires the confidence of the Court.
41. The learned Addl. SPP has also relied upon the decision in the case of Baskaran & Another vs. State of Tamil Nadu reported in (2014) 5 SCC 765 in which the Hon'ble Apex Court held that - 40
"A confession extra judicial confession/hearsay when admissible - duty of courts with regard to extra judicial confession extra judicial confession can be relied upon if the same is voluntary and true and made in fit state of mind value of evidence as to extra judicial confession, like any other evidence, depends upon veracity of witness to whom it has been made. But it is not open to any Court to start with presumption that extra judicial confession is insufficient to convict accused, even though it is supported by other circumstantial evidence and corroborated by independent witness courts cannot be unmindful of legal position, that if evidence relating to extra judicial confession is found credible after being tested on touchstone of credibility and acceptability, it can solely form basis of conviction. Therefore, in the present case, the evidence of PW.17 who has deposed about extra judicial confession made by the accused is admissible and his evidence supports 41 the case of the prosecution, that the accused caused death of the deceased by strangulation.
42. The evidence of PW.5 Doctor is sufficient to prove that the death of deceased was due to manual strangulation and it is not a case of death by hanging. Therefore, the evidence on record is sufficient to prove that the death of deceased is homicidal death.
43. In view of the above, we hold that the prosecution has proved that the death of the deceased is homicidal death and accused caused her death by strangulation. Absolutely there are no reasons to interfere with the reasoning of the trial Court in this regard. However, the facts proved before the Court goes to show that the present case falls under Exception No.4 of Section 300 of IPC which reads as under;
"Culpable homicide is not murder if it is committed without premeditation in a sudden 42 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"
44. It is the case of the prosecution that the accused picked up quarrel with the deceased and strangulated her. Therefore, the incident was committed without premeditation on a sudden fight in the heat of moment and therefore, the offence proved in the case is culpable homicide not amounting to murder which is punishable under Section 304 Part-II of IPC and not the offence punishable under Section 302 of IPC. The offence under Section 304 of IPC provides that-
"Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to 43 fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, Or with imprisonment of either description for a term which may extend to ten years, or with find, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
Therefore, in the present case the facts proved are sufficient to prove the offence punishable under Section 304 Part-II of IPC and it is not a case of culpable homicide amounting to murder punishable under Section 302 of IPC.
45. Our view is fortified by the following two decisions of the Hon'ble Supreme Court in the case of Sukhbir Singh vs. State of Haryana reported in (2002) 3 SCC 327 at para 17 held as under: 44
"To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of pre-meditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by courts that a fight is not per se palliating circumstance and only unpre-meditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time 45 gap is not sufficient, the accused may be held entitled to the benefit of this exception."
Further in the case Pappu vs. State of M.P. reported in (2006) 7 SCC 391 the Hon'ble Supreme Court in para 11 to 13 held as under:
The pivotal plea relates to the applicability of Exception 4 of Section 300 IPC.
For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The 46 exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be 47 Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury 48 on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.
46. Therefore, it is necessary to interfere with the order of convicting the accused-appellant for the offence punishable under Section 302 of IPC, which needs to reduced to the offence punishable under Section 304 Part-II of IPC. The other offence under 49 Section 498-A of IPC is proved and there is no need to interfere with the conviction and order of sentence passed in respect of 498-A of IPC.
47. The trial Court has convicted the appellant-
accused for the offence punishable under Section 302 of IPC and has sentenced him to undergo imprisonment for life and to pay fine of Rs.50,000/- in default, he shall suffer further imprisonment for a period of five months. In view of our finding that the offence proved against the accused falls under Section 304 Part-II of IPC, we hold that the appellant-accused has to be sentenced to undergo imprisonment for a period of 10 years and also to pay fine of Rs.50,000/- as imposed by the trial Court for the offence punishable under Section 304 Part-II of IPC, in default of payment of fine, the appellant shall suffer further imprisonment for a period of five months. So far as the order of sentence in 50 respect of Section 498-A of IPC needs to be confirmed. The order of the trial Court that if fine amount is realized Rs.50,000/- shall be deposited in the name of children of the accused and deceased namely Harish and Girish till they attain age of majority also deserves to be confirmed.
48. Under these circumstances, we answer point No.1 in the affirmative and point No.2 partly in the affirmative, holding that the judgment of conviction and order of sentence passed for the offence under Section 302 of IPC needs to be reduced to the offence punishable under Section 304 Part-II of IPC and the accused-appellant shall be sentenced to undergo imprisonment for a period of 10 years with fine as stated supra.
51
49. Accordingly, we pass the following:
ORDER Criminal Appeal filed under Section 374(2) of Cr.P.C. is partly allowed.
The order of conviction of the appellant-accused for the offence punishable under Section 302 of IPC is set aside. The appellant-accused is convicted for the offence punishable under Section 304 Part-II of IPC. He is sentenced to undergo imprisonment for a period of 10 years and also to pay fine of Rs.50,000/- for the said offence. In default of payment of fine, he shall further undergo imprisonment for a period of five months.
Further the accused-appellant shall undergo imprisonment for a period of 3 years and shall also pay fine of Rs.5,000/- for the offence punishable under 52 Section 498-A of IPC. In default, he shall undergo imprisonment for a period of five weeks.
It is further ordered that both sentences shall run concurrently.
If the fine amount is realized Rs.50,000/- shall be deposited in any Nationalized Bank in the name of minor children of the accused and the deceased namely Harish and Girish till they attain the age of majority.
Sd/-
JUDGE Sd/-
JUDGE sdu