Karnataka High Court
Raju S/O Siddappa Chaprashi vs The State Of Karnataka on 10 August, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR.JUSTICE B. A. PATIL
AND
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.200030/2014
Between:
Raju S/o Siddappa Chaparashi
Age: 31 years, Occ: Coolie Work
R/o Maddi No.1, Indira Nagar
Shahabad
... Appellant
(By Sri Iswaraj S. Chowdapur, Advocate)
And:
The State of Karnataka
Through Shahabad Town P.S.
Represented by PP:
High Court of Karnataka
Bench at Gulbarga
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
This Criminal Appeal is filed under Section 374(2) of
the Code of Criminal Procedure, praying to allow the appeal
and set aside the judgment dated 13.11.2012 passed by the
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IV-Addl. Sessions Judge at Gulbarga in S.C.No.255/2011
and acquit the appellant.
This appeal coming on for final hearing this day,
B.A.Patil J., delivered the following:-
JUDGMENT
This appeal is preferred by the appellant-accused challenging the legality and correctness of the judgment of conviction and order of sentence passed by the IV-Addl. Sessions Judge at Gulbarga in S.C.No.255/2011 dated 13.11.2012.
2. The gist of the case of the prosecution in brief is that, on 05.05.2011 at about 8.00 p.m. accused was sitting on Shahabad stones roof of his house. At that time, the brother-in-law of the complainant Subhash S/o Subbanna was on the way to answer the second call of nature from his house. On seeing the accused sitting on the shahabad stones roof of his house, deceased Subhash asked accused not to sit on shahabad stones roof of his house as the stones may fall. After hearing the same, the accused started 3 throwing shahabad stones on deceased one by one stating that who is he to ask him not to sit on the roof of his house. The accused thrown stones on deceased by saying "¸Á¬Ä ªÀÄUÀ£"É . The stones thrown by the accused hit on the head of the deceased due to which he sustained injury on his head and he started crying. When the complainant asked the accused as to why he is throwing stones on the deceased, accused abused her and again thrown stones on the head of the deceased due to which he sustained grievous injuries on his head and fell down on the ground. By that time, another brother-in-law of the complainant by name Shankreppa and one Smt. Renuka W/o Shivappa came and they took the injured in front of his house by lifting him and there the injured succumbed to the injuries. Therefore, the complainant has filed a complaint against the accused. On the basis of the said complaint, a case has been registered in Crime No.74/2011 for the offence 4 punishable under Section 302 of IPC and after investigation, the charge sheet came to be filed.
3. After submission of the charge sheet, the committal Court took the cognizance and has committed the case to the Sessions Court, Gulbarga and the same is registered in S.C.No.255/2011. The Sessions Court has made over the case to the IV-Addl. Sessions Judge, Gulbarga. After transfer of the case, the said IV-Addl. Sessions Judge has secured the presence of the accused and after hearing both sides, the charge was framed, read over and explained to the accused. The accused pleaded not guilty and he claimed to be tried. Hence, the prosecution was called upon to lead evidence on its side to prove the guilt of the accused.
4. In order to prove the guilt of the accused, prosecution has examined in all 14 witnesses as PWs.1 to 14 and got marked 9 documents as Exs.P1 to P9 and 5 4 material objects as MOs.1 to 4. Thereafter, the statement of the accused was recorded by putting incriminating materials against him, but the accused denied the same. The accused has not led any defence evidence, nor produced any documents. After hearing both the sides, the Trial Court has convicted the accused for the offence punishable under Section 302 of IPC by holding that the prosecution has proved the guilt of the accused. Challenging the legality and correctness of the same, the appellant is before this Court.
5. We have heard Sri Iswaraj S. Chowdapur, learned counsel for the appellant-accused and Sri Prakash Yeli, learned Additional State Public Prosecutor for the respondent-State.
6. Learned counsel for the appellant-accused submits that the Trial Court without looking into the material placed on record has come to a wrong conclusion and has wrongly convicted the accused. It is 6 further submitted that the appellant was not having any motive or intention to cause the death of the deceased. The said incident has taken place in a spur of moment, that too when the deceased asked the accused why he is sitting on the shahbad stones as the same may fall. But, being enraged, the accused has thrown the stones and because of that the deceased died. It is further submitted that the Trial Court has not properly kept this aspect in mind while analyzing the evidence. Further it is submitted that the Trial Court has not properly appreciated the evidence while coming to the conclusion that the prosecution has proved the guilt of the accused. On these grounds, he prays to allow the appeal and to set aside the judgment of conviction and the order of sentence of the Trial Court.
7. Per contra, learned Additional State Public Prosecutor vehemently argued and submitted that PWs.1 to 4 are the eyewitnesses to the alleged incident 7 and they have categorically deposed before the Court that it is the accused, who had put the stones on the head of the deceased and because of that the deceased sustained injuries and died immediately. It is further submitted that PW.10 is the doctor, who conducted autopsy over the dead body of the deceased and in his evidence he has deposed that death is due to cardio vascular failure as a result of shock and hemorrhage caused by assault and he has also found the fracture of occipital bone of head and fracture of right parietal bone and that is the cause for death. That itself goes to show that the accused with an intention to cause the death has thrown the stones on the deceased and caused the death. It is further submitted that even during the course of cross-examination of these witnesses nothing has been elicited so as to discard their evidence. It is further submitted that the trial Judge, after considering the evidence and material placed on record has rightly 8 convicted the accused. On these grounds, he prays to dismiss the appeal.
8. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records, including Trial Court records.
9. To prove the case of the prosecution, the prosecution got examined as many as 14 witnesses as PWs.1 to 14.
10. PWs.1 to 4, 7 and 8 are the eyewitnesses. In their evidence, they have categorically deposed that on 05.05.2011 at about 8.00 p.m., the deceased was proceeding to attend the second call of nature and the accused was sitting on the top of the roof of shahabad stones. On seeing the same, the deceased questioned him why he is sitting on the shahabad stones and the same may fall on anybody. By hearing the same, the 9 accused took the shahabad stones and thrown on the head of the deceased and as a result of the same, the deceased suffered bleeding injuries and immediately PW.1 and other witnesses came and took him in front of his house and while providing the water, he succumbed to the injuries. During the course of cross-examination of these witnesses, except denying the evidence, nothing has been elicited so as to discard the presence of these witnesses and that they are not the witnesses to the said incident. There is consistency and corroboration in the evidence of these witnesses. This evidence is also corroborated with the evidence of the doctor PW.10, who has conducted autopsy over the dead body of the deceased.
11. In his evidence, PW.10 has deposed that he has found cut lacerated wound on occipital region of head and cut lacerated wound on right parietal region of head and on dissecting the dead body, he found fracture 10 of occipital bone of head and fracture of right parietal bone and he has opined that the cause of death is due to cardio vascular failure as a result of shock and hemorrhage caused by assault. During the course of cross-examination of this witness also, nothing has been elicited so as to discard the evidence. This evidence is fully corroborated with the evidence of the eyewitnesses.
12. On perusal of the entire evidence, the Trial Court has come to a right conclusion and has rightly convicted the accused.
13. At this juncture, learned counsel for the appellant-accused submits that the appellant was not having any motive or intention or preparation to cause the death of the deceased and the alleged incident as narrated has taken place in a spur of moment and in that light, the Trial Court instead of convicting the accused for the offence punishable under Section 302 of 11 IPC, ought to have convicted him for the offence punishable under Section 304 Part I or II of IPC.
14. In order to consider the case under Section 304 Part I and II of IPC, the case has to be made out under exceptions 1 or 4 of Section 300 of IPC. For the purpose of brevity we quote Section 300 of IPC and exceptions 1 and 4 which reads as under:
300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or - 4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in 12 all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1. - When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:-
First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.13
Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.- xxx xxx xxx Exception 3.- xxx xxx xxx Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."
15. On going through the exception 1 of Section 300 of IPC, culpable homicide is not murder if the offender while doing the act deprived of the power of self control, by grave and sudden provocation. In order to bring the case under the said exception accused has to show that he deprived of the power of self control, by grave and sudden provocation which is caused by the person whose death has been caused. 14
Second aspect is in order to attract exception No.4, four requisites must be satisfied by the accused (i) it was a sudden fight, (ii) there was no premeditation,
(iii) the act was committed in heat of passion and
(iv) assailant has not taken undue advantage or acted in cruel manner.
16. We have carefully and cautiously gone through the said provision of law by giving our thoughtful consideration. In order to invoke the benefit under exception No.1 to Section 300 of IPC, the accused persons must show that there was provocation and such provocation was both grave and sudden. There must be simultaneous reaction and which deprived him of the power of self control which is caused by the person whose death has been caused. Culpable homicide is not murder if the offender while doing the act deprived of the power of self control by grave and sudden provocation and caused the death of the person 15 who gave provocation or caused the death of any other person by mistake, then exception No.1 will come into play.
17. Looking into the said proposition of law and on perusal of the facts of the case on hand, it is admitted fact that the deceased was proceeding to attend the second call of nature and the accused was sitting on the top of the roof of shahabad stones and at that time, the deceased asked the accused that why he is sitting there and that the stones may fall on anybody. In that light, there were some exchange of words and in that spur of moment it might have provoked the deceased to throw the stones and in that light he has thrown the stones. Even on perusal of the evidence of PWs.1 to 4, 7 and 8, there is no motive or intention or preparation while doing the said act. In that light, if the factual matrix of the case are appreciated, the Trial Court instead of convicting the appellant for the offence 16 punishable under Section 302 of IPC, ought to have convicted him for the offence punishable under Section 304-I of IPC. To this extent, the judgment of the Trial Court requires interference by this Court.
18. Taking into consideration the above said discussion, we pass the following:
ORDER The appeal is allowed in part. The judgment of conviction and order of sentence passed by the IV-Addl. Sessions Judge at Gulbarga in S.C.No.255/2011 dated 13.11.2012 is modified. The appellant-accused is hereby convicted for the offence punishable under Section 304-I of IPC instead of Section 302 of IPC and he is sentenced to undergo imprisonment for a period of ten years and to pay fine as imposed by the Trial Court i.e., Rs.1,000/- with the same default sentence i.e., in default of payment of fine, he shall undergo simple imprisonment for a period of one month. 17
The appellant is entitled for the benefit of set off under Section 428 of Cr.P.C.
In view of disposal of the appeal, I.A.2/2014 for suspension of sentence and bail does not survive for consideration and the same is dismissed.
Registry is directed to send back the trial Court records.
Sd/-
JUDGE Sd/-
JUDGE LG