Karnataka High Court
Smt.Gangamma @ Anaji Gangamma vs The State By Jagalur P.S. on 16 September, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.316 OF 2015
CONNECTED WITH
CRIMINAL APPEAL NO.291 OF 2015
IN CRL.A. NO.316/2015:
BETWEEN:
SMT. GANGAMMA @ ANAJI GANGAMMA
W/O. SIDDESH,
AGED ABOUT 26 YEARS,
NISARGA ORGANISATION
DISTRICT CO-ORDINATOR,
RESIDENT OF ANAJI VILLAGE,
DAVANAGERE TALUK - 577 513.
... APPELLANT
(BY SRI D. NAGARAJA REDDY, AMICUS CURIAE)
AND:
THE STATE
BY JAGALUR POLICE STATION,
DAVANAGERE DISTRICT,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001.
... RESPONDENT
(BY SRI S. RACHAIAH, H.C.G.P)
2
IN CRL.A. NO.291/2015:
BETWEEN:
MR. ZAKIR HUSSAIN
S/O. IMAM ALI,
AGED ABOUT 30 YEARS,
RESIDING AT GOGUDDU VILLAGE,
JAGALUR TALUK,
DAVANAGERE DISTRICT - 577 513.
... APPELLANT
(BY SRI B.V. PINTO, ADVOCATE)
AND:
THE STATE
BY JAGALUR POLICE STATION
DAVANAGERE DISTRICT,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001.
... RESPONDENT
(BY SRI S. RACHAIAH, H.C.G.P)
***
THESE CRIMINAL APPEALS ARE FILED UNDER
SECTION 374(2) OF THE CR.P.C. PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION AND ORDER ON
SENTENCE DATED 3-2-2015 PASSED IN S.C. NO.94 OF 2013
CLUBBED WITH S.C. NO.82 OF 2012 BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DAVANAGERE,
CONVICTING THE APPELLANTS/ACCUSED NOS.1 AND 2
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A
AND 302 READ WITH SECTION 34 OF THE IPC.
THESE CRIMINAL APPEALS ARE COMING ON FOR
HEARING, THIS DAY, B. VEERAPPA, J., DELIVERED THE
FOLLOWING:
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JUDGMENT
The accused No.1 has filed Criminal Appeal No.291 of 2015 and accused No.2 has filed Criminal Appeal No.316 of 2015 against the judgment of conviction and order on sentence dated 3-2-2015 passed by the I Additional District and Sessions Judge, Davanagere, in Sessions Case Nos. 82 of 2012 clubbed with 94 of 2013 convicting the accused for the offences punishable under Sections 498A, 302 read with Section 34 of the Indian Penal Code (for short, 'the IPC'). Accused Nos.1 and 2 have been sentenced to undergo simple imprisonment for two years with fine of Rs.5,000/- each, in default of payment of fine, to undergo simple imprisonment for a period of three months for the offence punishable under Section 498A read with Section 34 of the IPC and sentenced to undergo imprisonment for life with fine of Rs.20,000/- each 4 and in default of payment of fine, to undergo simple imprisonment for one year for the offence punishable under Section 302 read with Section 34 of the IPC.
2. The status of the parties before the trial Court is retained for the sake of convenience.
3. It is the case of the prosecution that accused No.1 married Smt. Nasreena Banu (hereinafter referred to as 'deceased') on 18-11-2005 and they were residing at Goguddu Village. Later, they shifted to rented house of P.Ws.5 and 6 at Jagalur. A year back, prior to the incident, accused No.1 was having illicit relationship with accused No.2 and when the deceased objected for the same, accused Nos.1 and 2 in furtherance of their common intention used to harass and ill-treat the deceased both mentally and physically. It is further case of the prosecution that accused Nos.1 and 2 with 5 common intention hatched up a plan to eliminate the deceased. On 10-1-2012, when the deceased was present in the house, accused Nos.1 and 2 with intention to commit murder of the deceased, poured kerosene and set her ablaze. Accused No.1 shifted the deceased to the Hospital with burn injuries. On 17-1-2012 midnight, the deceased succumbed to burn injuries while taking treatment at CG Hospital, Davanagere, and thereby, the accused persons committed the offences punishable under Sections 498A and 302 read with Section 34 of the IPC.
4. On the basis of complaint, the jurisdictional Police registered a case against the accused for the aforesaid offences. The jurisdictional Police, after investigation, filed report against the accused. The Magistrate committed the case to the Sessions Judge. The learned Sessions Judge framed the 6 Charges on 10-10-2013 and the same was read over to the accused. However, they pleaded not guilty and claimed to be tried.
5. In order to bring home the guilt of the accused, the prosecution examined 24 witnesses as P.Ws.1 to 24, got marked 36 documents as Ex.P.1 to Ex.P.36 and M.O.1 to M.O.4. After completion of evidence, the learned Sessions Judge recorded the statements of the accused under Section 313 of the Code of Criminal Procedure, 1973. Accused Nos.1 and 2 denied all the incriminating evidence adduced against them and have not led any defence evidence.
6. The learned Sessions Judge, after considering the oral and documentary evidence, framed two points for its consideration and recorded a finding that the prosecution proved the case beyond all reasonable doubt that accused No.1, 7 being the husband of the deceased, was having illicit relationship with accused No.2 and when the deceased objected the same, accused Nos.1 and 2 used to harass and ill-treat the deceased both mentally and physically. On 10-1-2012, when the deceased was present in the house, accused Nos.1 and 2 with intention to commit murder, poured kerosene and set her ablaze and caused grievous burn injuries to her. Later, she succumbed to burn injuries in the Hospital. Thereby, accused Nos.1 and 2 committed the offences punishable under Sections 498A and 302 read with Section 34 of the IPC. Accordingly, the Sessions Judge by impugned judgment and order of conviction convicted accused Nos.1 and 2 for the aforesaid offences. Hence, the present appeals.
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7. We have heard Sri B.V. Pinto, learned counsel appearing for accused No.1, Sri D. Nagaraja Reddy, Amicus Curiae appearing for accused No.2 and Sri S. Rachaiah, learned High Court Government Pleader for the respondent-State.
8. Sri B.V. Pinto, learned counsel appearing for accused No.1, has contended that the impugned judgment and order of conviction passed by the Sessions Judge convicting the accused is without any basis as there is no eyewitness to the incident. Entire case is based upon the circumstantial evidence and dying declaration of the deceased. He further contended that accused No.1 had no intention to kill his own wife and he is having three children. The incident happened due to sudden provocation and himself shifted the deceased to the 9 Hospital. Therefore, it is not a case of homicidal death.
9. Learned counsel further contended that out of twenty-four prosecution witnesses, majority witnesses i.e., fourteen witnesses have turned hostile including the parents of the deceased, except official witnesses. P.W.15 has deposed with regard to Marriage Certificate of the deceased with accused No.1. P.Ws.16 to 18 and 20 are the Doctors, who deposed regarding fitness of the deceased at the time of treatment and reason for the death and other prosecution witnesses are investigating agencies and no other independent witnesses have supported the case of the prosecution. Official witnesses evidence ought to not to have considered by the Sessions Judge. He further contended that accused No.1 also sustained burnt injuries and he was treated by 10 P.W.18-Dr. Shilpa, which clearly establishes that accused No.1 tried to extinguish the fire on the deceased. Hence, offence under Section 302 of the IPC does not attract. Therefore, he sought to allow the appeal.
10. Sri D. Nagaraja Reddy, Amicus Curiae appearing for accused No.2, while adopting the arguments of Sri B.V. Pinto, learned counsel for accused No.1, has contended that accused No.2 was not at all involved in the homicidal death. Absolutely, there is no material against accused No.2 to attract the provisions of Section 498A or Section 302 of the IPC. Therefore, he sought to allow the appeal.
11. Per contra, Sri S. Rachaiah, learned High Court Government Pleader, while justifying the impugned judgment and order of conviction, has 11 contended that in view of the dying declaration recorded by P.W.22-P.S.I as per Ex.P.30 in front of P.W.16-Dr. Chaitanya, who issued Fitness Certificate as per Ex.P.22 and second dying declaration made before P.W.23-Tahsildar as per Ex.P.27 in front of P.W.20-Dr. Kumar R., who issued Fitness Certificate as per Ex.P.26 clearly indicate the involvement of the accused persons for the aforesaid offences made out by the prosecution. He further contended that after declaration made by the deceased, on 17-1-2012, the deceased succumbed to burn injuries. Therefore, the evidence of statement/dying declaration as per Exs.P.30 and 27 made in front of the Investigating Officers and Doctors have to be taken into consideration.
12. Learned High Court Government Pleader further contended that the material on record clearly 12 depicts that accused Nos.1 and 2 having illicit relationship eliminated the deceased on fateful day by pouring kerosene and set her ablaze. Therefore, the Sessions Judge rightly convicted the accused persons for the offences punishable under Sections 498A and 302 read with Section 34 of the IPC. He further contended that based on the evidence of two dying declarations made by the deceased and the evidence of P.Ws.16, 20, 22 and 23 clearly depict that the prosecution has proved the case beyond all reasonable doubt. The offence committed by the accused is heinous one and no leniency should be shown to the accused. Therefore, he sought to dismiss the appeals.
13. In view of the rival contentions urged by learned counsel for the accused and learned High 13 Court Government Pleader, the only point that arises for our consideration is;
"Whether accused Nos.1 and 2 have made out any case to interfere with the impugned judgment and order of conviction dated 3-2-2015 in S.C. Nos.82 of 2012 clubbed with 94 of 2013 passed by the I Additional District and Sessions Judge, Davanagere, for the offences punishable under Sections 498A and 302 read with Section 34 of the IPC in the facts and circumstances of the case?"
14. We have given our anxious consideration to the arguments advanced by the learned counsel on both side and perused the material on record carefully.
15. In order to re-appreciate the evidence of the prosecution witnesses, we feel it just and 14 necessary to have a cursory look at the evidence of the prosecution witnesses.
16. P.W.1-Attar Unnisa, P.W.10-Dadapeer, and P.W.13-Azam Ali are the witnesses to the inquest mahazar-Ex.P.1. They have not supported the case of the prosecution and turned hostile.
17. P.W.2-Abdul Salam and P.W.3-Rajiyabanu, parents of the deceased, turned hostile.
18. P.W.4-Abdul Sattar, uncle of the deceased and brother of P.W.1, turned hostile.
19. P.W.5-Ningappa and P.W.6-Lakshmidevi, landlord and wife of the landlord respectively, where accused No.1 and the deceased were residing on rent at Jagalur, turned hostile.
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20. P.W.7-Obamma, neighbour of accused No.1 and the deceased, turned hostile.
21. P.W.8-Saleem and P.W.9-Mohamed Aslam are the witnesses to the spot mahazar-Ex.P.16 and M.Os.1 to 4, turned hostile.
22. P.W.11-Imam Ali and P.W.12-Sharfan, father and mother of accused No.1 respectively, turned hostile.
23. P.W.14-Shammusab, Member of the Gram Panchayat and elder of the village where accused No.1 and deceased were residing, turned hostile.
24. P.W.15-Fazlulla, Secretary of the Masjid, has stated about issuing of Marriage Certificate- Ex.P.21 in respect of marriage between accused No.1 and the deceased.
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25. P.W.16-Dr.Chaitanya, Senior Specialist, CG Hospital, Davanagere, who examined the deceased on 12-1-2012 at 12.48 a.m. and issued Ex.P.22-Endorsement/Fitness Certificate and Ex.P.30-Statement/dying declaration is recorded in his presence by P.W.22-P.S.I and upon which, the case is registered.
26. P.W.17-Dr.Dakshayani B.R., Senior Specialist, CG Hospital, Davanagere, who conducted Post-Mortem examination on the deceased on 17-1-2012 and issued Ex.P.23-Post Mortem Report.
27. P.W.18-Dr. Shilpa, Medical Officer, Government Hospital, Jagalur, who treated accused No.1 on 12-1-2012 and issued Ex.P.24-Wound Certificate.
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28. P.W.19-J.T. Hanumantha Raju, Chief Officer, Jagalur, has issued Ex.P.25-Tax Register Extract pertaining to the property of P.W.5- Ningappa.
29. P.W.20-Dr. Kumar R., Medical Officer, CG Hospital, Davanagere, has stated that he examined the deceased on 12-1-2012 and issued Ex.P.26- Endorsement/Fitness Certificate and Ex.P.27-dying declaration was recorded before him by P.W.23- Tahsildar and his signature is at Ex.P.27(b).
30. P.W.21-E.Malleshi, Police Constable, Jagalur P.S., who carried Ex.P.28-F.I.R to the Court.
31. P.W.22-E. Anand, Sub Inspector of Police, who recorded the first dying declaration of the deceased in the Hospital as per Ex.P.30 before 18 P.W.16-Dr. Chaitanya, who issued Ex.P.22- Endorsement/Fitness Certificate.
32. P.W.23-Dr. B.R. Harish, Tahsildar, who recorded the second dying declaration as per Ex.P.27 before P.W.20-Dr. Kumar R., who issued Ex.P.26- Endorsement/Fitness Certificate.
33. P.W.24-J.S. Tippeswamy, Investigating Officer, who investigated the case and filed charge- sheet against accused Nos.1 and 2.
34. Based upon the oral and documentary evidence on record, the Sessions Judge recorded a finding that in view of the evidence of P.Ws.15, 16, 17, 18, 20, 22 and 23 and documents Exs.P.21 to 36 and M.Os.1 to 4 held that prosecution proved the case beyond all reasonable doubt that accused Nos.1 and 2 with their common intention used to harass 19 and ill-treat the deceased both mentally and physically, thereby committed the offence punishable under Section 498A read with Section 34 of the IPC. Further, with common intention, accused Nos.1 and 2 committed murder of the deceased by pouring kerosene and set her ablaze and caused serious burn injuries to the deceased. On 17-1-2012, the deceased succumbed to burn injuries while taking treatment in the Hospital, thereby accused Nos.1 and 2 committed the offence punishable under Section 302 read with Section 34 of the IPC. The Sessions Judge further recorded a finding that in view of the evidence of the Investigating Officers, medical evidence of the Doctors and documents Exs.P.22, 26, 27 and 28 clearly depict that it was homicidal death at the instance of accused Nos.1 and 2. Therefore, the Sessions Judge passed the impugned judgment by 20 convicting the accused for the offences punishable under Sections 498A and 302 read with Section 34 of the IPC.
35. Though learned counsel for accused Nos.1 and 2 contended that out of twenty four prosecution witnesses, majority of the witnesses, including the father and mother of the deceased and the landlord, have turned hostile, the Sessions Judge proceeded to convict the accused only on the basis of official witnesses, medical witnesses and dying declarations cannot be sustained. The said contention cannot be acceptable for the simple reason that, admittedly the material on record clearly depicts that accused No.1 having illicit relationship with accused No.2 since a year back and the same was objected by the deceased. Accused Nos.1 and 2 with their common intention used to harass and ill-treat the deceased 21 both mentally and physically and with common intention hatched up a plan to kill the deceased. Accordingly, on 10-1-2012, when the deceased was in her house, accused Nos.1 and 2 committed murder by pouring kerosene and set her ablaze and caused serious burn injuries to the deceased.
36. It is not in dispute that the deceased in her first dying declaration made before P.W.22-P.S.I in the presence of P.W.16-Dr. Chaitanya, who issued Fitness Certificate-Ex.P.22 clearly stated that her husband was having illicit relationship with accused No.2. On 10-1-2012 at about 10:00 p.m., her husband brought accused No.2 to her house and when the deceased objected for the same, both of them quarreled with her and further at the instigation of accused No.1, accused No.2 with intention to finish the deceased, poured kerosene 22 and set her ablaze and caused serious burn injuries to the deceased. After recording the dying declaration, the deceased has signed it in the presence of P.W.22-P.S.I and P.W.16-Dr. Chaitanya, that too, when the deceased was in a fit state of mind.
37. It is also not in dispute that P.W.23- Tahsildar, who recorded the second dying declaration as per Ex.P.27 before P.W.20- Dr. Kumar R., who issued Ex.P.26-Fitness Certificate, specifically narrated the incident that "since from one year, her husband Jakeer Hussain (accused No.1) was having illicit relationship with one Gangamma (accused No.2) and in this regard quarrel took place between herself and her husband on several occasions and further her husband used to harass and illtreat her persistently. On 10-1-2012, 23 during night hours at 10:00 p.m. her husband brought Gangamma to her house, and when she objected for the same, both of them quarreled with her, and further at the instigation of Jakeer Hussain, Gangamma with intent to finish her, she brought kerosene and poured on her and set her ablaze, and as such she sustained burn injuries all over her body. Accordingly, she has prayed to take action against the accused." When the said statement was made before P.W.23-Tahsildar, the victim has identified her signature as Ex.P.27(f). He further stated that the victim was conscious and well oriented throughout the period of recording dying declaration-Ex.P.27.
38. It is also relevant to consider the medical evidence adduced by the Doctors. P.W.16- Dr. Chaitanya, in examination-in-chief, has stated 24 that he is working at CG Hospital from past 12 years. On 11-1-2012, Jagalur Police submitted requisition to record the dying declaration of one Nasreena Banu, wife of Jakeer Hussain. On 12-1-2012, he has examined the said victim at about 12:48 a.m. On examination of the victim, he has stated that, the patient was well oriented time and place and she was fit to give her statement. Ex.P.22- Endorsement/Fitness Certificate issued by him and his signature is at Ex.P.22(a) and the relevant portion of endorsement is marked as Ex.P.22(b). In the cross-examination, he has specifically stated though his duty hours is from 9:00 a.m. to 4:30 p.m., but if any dying declaration is to be recorded, they have to attend the call and all Doctors got power to record the dying declaration. On that particular day, he does not know who was on duty. In order to assess the mental fitness, they have to 25 examine the patient. On examination of the patient, we have to record the same. If any patient admitted in the Hospital with the history of severe pain, they will administer seductive drugs under such circumstances, the patient will not be in conscious.
39. P.W.17-Dr. Dakshayani B.R. has stated that she is working as Senior Specialist at CG Hospital, Davanagere, from 2008. On the requisition made by the jurisdictional Police on 17-1-2012 to conduct Post-Mortem of the deceased, aged about 25 years, she has conducted Post-Mortem of the deceased along with Dr. K.B.C. Sogi from 11:20 a.m. to 1:00 p.m. On examination, they have noticed that the superficial to deep burns of a chest interior and posterior, upper abdomen anterior and posterior both over limbs anterior and posterior both upper limb-forearm anterior and posterior and perionium 26 involved. She further stated that the skull was intact and healthy. Superficial to deep burn present to the chest. Other parts of the body are intact and congested. In their opinion, the cause of death is due to septicemic shock as a result of burns (Superficial of burn to 65 to 70%). Accordingly, she issued Ex.P.23-Post-Mortem Examination Report and her signature is marked as Ex.P.23(a). Nothing has been elicited in the cross-examination, except suggesting that any type of immolations of kerosene on a human, such injury may cause.
40. P.W.18-Dr. Shilpa, Medical Officer, Government Hospital, Jagalur, has examined accused No.1 on 12-1-2012 on the request made by the jurisdictional Police. She has stated that injured sustained superficial burn about 7x5 cm over right lateral aspect of right forearm, scab found over burn 27 area, and superficial burn of about 6x4 cm over right hand and palm. Scab found on the burnt area. She is of the opinion that the said injuries are simple in nature and they are about 36 to 48 hours old and surface area affected constitutes about 2%. Accordingly, she issued the Report as per Ex.P.24 and her signature is marked as Ex.P.24(a) and no cross-examination was made.
41. P.W.20-Dr. Kumar R. has stated that he is working as Medical Officer at CG Hospital, Davanagere from 2008. On 12-1-2012, P.W.23- Tahsildar intended to record the dying declaration of the injured and to examine her in order to know whether the patient is in a fit state of mind to give her statement or not. On the same day, at about 9:00 a.m., he has examined the injured, who was admitted in Ward No.73-74 with the history of burn 28 injuries and certified that the patient was conscious oriented mentally sound and fit to give statement. He issued Ex.P.26-Fitness Certificate and his signature is marked at Ex.P.26(a). P.W.23-Tahsildar recorded the dying declaration as per Ex.P.27. Nothing has been elicited from the Doctor, except that the deceased was in fit state of mind to make a statement.
42. On careful perusal of the oral and documentary evidence, it clearly depicts that accused Nos.1 and 2 are involved in the homicidal death of the deceased. The fact remains, whether accused Nos.1 and 2 had an intention to kill the deceased. The material on record clearly depicts that accused No.1 was married to the deceased on 18-11-2005 and they were residing at Goguddu Village and they shifted their residence to a rented 29 house of P.W.5 and the incident occurred on 10-1-2012. For more than six years, they led happy life and out of their wedlock, three children are born. Since a year back, accused No.1 was having illicit relationship with accused No.2 and the incident occurred when accused No.1 brought accused No.2 to the house of the deceased. Naturally, any dutiful wife will object the husband. During the quarrel between the deceased and accused Nos.1 and 2, due to sudden altercation, accused No.1 along with accused No.2 poured kerosene on the deceased and set her ablaze. The deceased sustained burn injuries up to 60 to 70% and on 17-1-2012, the deceased succumbed to burn injuries. The fact remains that accused No.1 had no intention to kill his dutiful wife, having led the happy life for more than six years and having three children and the incident occurred due to sudden altercation between the 30 deceased and accused Nos.1 and 2. Previously, there was no deliberation and premeditation, as a result of sudden fight between the husband and the deceased and there was no intention for the accused to kill the deceased. Therefore, the Sessions Judge was not justified in convicting accused Nos.1 and 2 under Section 302 of the IPC and sentencing them for imprisonment for life, that too, mainly on the basis of the evidence of the Doctors and Investigating Officers.
43. The provisions of Exception (4) to Section 300 of the IPC would attract to the facts and circumstances of the present case, which reads as under:
"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in 31 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. 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;
(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.
45. Admittedly, in the present case, it was a sudden fight on the fateful day that accused No.1 brought accused No.2 to the house, when the 32 deceased objected for the same, quarrel took place between the deceased and accused Nos.1 and 2. In a heat of passion, accused Nos.1 and 2 committed the act by pouring kerosene on the deceased without premeditation. In view of the above, the present case cannot be said to be a case punishable under Section 302 of the IPC. But, it is a case falling under Exception 4 to Section 300 of the IPC. The injuries on the deceased by accused Nos.1 and 2 is without intention to cause the death, therefore, the act of the accused is punishable under the provisions of Section 304 Part-II of the IPC with imprisonment for ten years, or fine, or both.
46. Having considered the submissions of the learned counsel and perusal of entire material including original record, admittedly, the incident occurred on the spur of moment without 33 premeditation and it cannot be said that accused had any intention to kill or knowledge that death was likely to ensue. Accused No.1 only intended to vent his ire against the deceased and there was no occasion for him to kill the deceased. Accused No.1 was aged about 30 years as on the date of the incident and having three children. Accused No.2 was aged about 26 years as on the date of the incident and having two children. Therefore, taking into consideration, the mitigating circumstances that both the accused have children, the conviction has to be under Section 304 Part-II of the IPC. The Division Bench of this Court has considered the similar issue in Criminal Appeal No.227 of 2015 disposed of on 8-7-2020, the relevant portion of which reads as under:
"36. Our view is fortified by the dictum of Hon'ble Supreme Court in the case of 34 AHMED SHAH AND ANOTHER -VS-STATE OF RAJASTHAN, reported in (2015) 3 SCC 93 relied upon by the learned counsel for accused No.1. In paragraph 21 the Hon'ble Supreme Court has held as under:
"21. As elaborated earlier, complainant party went to the field and Sabbir Shah was armed with gun. 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 the result of sudden fight. In the scuffle, 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 35 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 and the act of the accused- appellants is punishable under Section 304 Part I IPC."
xxx xxx xxx "40. The Hon'ble Supreme Court while considering the provisions of Section 302 r/w 34, Section 394 r/w 34 of IPC and Section 27 of Evidence Act in the case of DIGAMBER VAISHNAV AND ANOTHER -VS-
STATE OF CHATTISGARH, reported in (2019) 4 SCC 522, at paragraphs 18, 19, 40, 41 and 42 has held as under:
18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between 'proof beyond 36 reasonable doubt' and 'suspicion' has held as under:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof.
This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and 37 unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that 38 a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense".
19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808].
40. The prosecution has relied upon the evidence of PW-8 to 39 show that the accused and victims were last seen together. It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trust worthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close 40 proximity between the time of seeing and recovery of dead body.
41. In Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2) SCC 372, it has been held as under:-
"31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stated in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no 41 conviction on that basis alone can be founded".
42. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC, 715, the Court has reiterated that the last seen together does not by itself lead to the inference that it was the accused who committed the crime. It is held thus:
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-
explanation on the part of the
appellant, in our considered
opinion, by itself cannot lead to
proof of guilt against the
appellant."
42
47. In view of the above, the point for consideration in this appeal is answered partly in the affirmative holding that though accused Nos.1 and 2 committed the homicidal death of the deceased, but not with intention to murder the deceased and it happened on the spur of moment and there was no premeditation and the incident occurred in a sudden altercation. Hence, we found that accused Nos.1 and 2 are guilty for the offences punishable under Sections 498A and 304 Part-II of the IPC. Therefore, the impugned judgment of conviction in convicting the accused for the offence punishable under Section 302 of the IPC and sentencing them to undergo imprisonment for life is modified and converted into one under Section 304 Part-II of the IPC.43
48. For the reasons stated above, we pass the following:
ORDER i. The appeals are allowed-in-part.
ii. The impugned judgment and order of conviction dated 3-2-2015 passed in S.C. Nos.82 of 2012 clubbed with 94 of 2013 on the file of I Additional District and Sessions Judge, Davanagere, convicting the accused for the offence punishable under Section 302 read with Section 34 of the IPC and sentencing them to undergo imprisonment for life is modified and accused Nos.1 and 2 are hereby convicted for the offence punishable under Section 304 Part-II read with Section 34 of the IPC and sentenced to 44 undergo imprisonment for nine years with fine of Rs.30,000/- each (Rupees thirty thousand only), in default of payment of fine, to undergo further imprisonment for one year;
iii. The judgment of conviction and order on sentence imposed by the Sessions Judge for the offence punishable under Section 498A read with Section 34 of the IPC is hereby confirmed;
iv. The aforesaid sentences to run concurrently;
v. Accused Nos.1 and 2 are entitled to the benefit of set off as contemplated under Section 428 of the Code of Criminal Procedure, 1973; and 45 vi. Exercising the power under Section 357(3) of the Code of Criminal Procedure, 1973, the fine amount imposed on both the accused shall be recovered from them and shall be kept in Fixed Deposit for a period of five years in the names of the children of accused No.1 and the deceased proportionately.
Sd/-
JUDGE Sd/-
JUDGE kvk