Karnataka High Court
Thimmappa vs State Of Karnataka on 7 January, 2013
Bench: K.L.Manjunath, L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF JANUARY, 2013
PRESENT
THE HON'BLE MR. JUSTICE K.L. MANJUNATH
AND
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
CRIMINAL APPEAL No.1024/2008 (C)
BETWEEN:
Thimmappa s/o Siddappa,
26 years, Coolie,
Yedehalli, Bhadravathi Tq. .. APPELLANT
(By Advocate Sri.Hareesh Bhandary T.)
AND:
State of Karnataka,
By its State Public Prosecutor,
High Court Building,
Bangalore.
Sub-Inspector of Police,
Hole Honnur Police Station,
Bhadravathi. .. RESPONDENT
(By Sri.Sampangiramaiah, HCGP)
- - - - -
This Appeal is filed under Sec.374(2) of
Cr.P.C. to set aside the judgment and order
dated 14.3.2006 passed by the Addl. Sessions
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Judge, Shimoga in SC No.132/2004 convicting the
appellant/accused No.1 for the offence
P/U/S.341, 504 & 302 of IPC and appellant/
Accused No.1 is sentenced to pay a fine of
Rs.200/- in default to suffer S.I. for 15 days
on first count and S.I. for 3 months on second
count for the offence P/U.Ss.341 & 504 of IPC
and further sentenced him to imprisonment for
life and to pay a fine of Rs.1000/- I.D. to
suffer imprisonment for another period of one
month for the offence P/U/S.302 of IPC all the
sentences are shall run concurrently.
This Appeal is coming on for final hearing
this day, MANJUNATH J. delivered the following:
J U D G M E N T
Appellant is challenging the legality and correctness of the judgment of conviction and order of sentence passed by the Addl. Sessions Judge, Shimoga in SC No.132/2004 on 14.3.2006 wherein the appellant has been convicted for the offence punishable under Sec.302 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/- in default to suffer imprisonment for another period of one month. 3
2. Appellant along with his elder brother Rangappa were tried for the offence punishable under Secs.341, 504, 302, 324 R/w Sec.34 IPC. It is the case of the prosecution that the appellant and A-2 Rangappa are brothers. Based on the complaint lodged by PW-1 Venkatesha as per Ex.P-1 a case was registered against the appellant and his brother Rangappa by PW-14 Madappa PSI, Holenarasipura police station registered the case in Cr.No.68/2004 and FIR was sent to JMFC., Bhadravathi. It is the case of the prosecution that at about 8 a.m. on the morning of 30.5.2004 Gangamma wife of Rajappa (sister-in-law of the appellant) was quarreling with deceased Chandrappa in front of their house in regard to sharing of water from the public tap. A-2 brother of the appellant having seen the quarrel between his sister-in-law Gangamma and deceased Chandrappa came out of the house and thereafter there was quarrel between 4 deceased Chandrappa and A-2 Rangappa. When they were quarrelling, appellant also came to the spot. Appellant and A-2 Rangappa grappled with Chandrappa and pushed him towards the floor mill of Palakshappa situated near their house. Suddenly, A-1 went to his house and brought a knife hiding in a cloth and when A-2 was holding deceased Chandrappa he caused a stab injury on his neck as a result of which Chandrappa fell down which was witnessed by PW-1 Venkatesha, brother of the deceased and PW-2 Nagendrappa, father of the deceased and also by two independent witnesses PW-3 Umesha and his brother PW-4 Vinayaka. Appellant-A1 after stab- ing the deceased Chandrappa on his neck, started running away from the place and A-2 having seen PW-1 & 2 hit them with a stone which resulted in causing injuries to PW-1 & 2. PW-3 & 4 having seen A-1 running away from the place chased him for a while and A-1 fell in the wet land near 5 the garden land of Manjappa and as a result of which he sustained injuries to his head. While running A-1 threw the knife used for commission of offence. PW-3 & 4 apprehended A-1 and brought him near Boothappana Katte of the village, he was made to stay there till arrival of the police. In the mean while, PW-1 and deceased Chandrappa were shifted to Holehonnur Hospital, since it was Sunday as no doctor was available at Holehonnur, they were shifted to Mc.Gann Hospital, Shimoga and before reaching Mc.Gann Hospital Chandrappa breathed his last. PW-1 was treated by doctor at Mc.Gann Hospital and based on the complaint of PW-1 case was investigated. Police arrested A-1 and on the same day A-2 was also arrested, MO-1 was seized in the presence of panchas as per Ex.P-4, autopsy was conducted on the deceased on the same day evening by Dr.Rudramurthy PW-11 and investigation was further taken over by PW-15 6 N.Rudramuni, CPI, Bhadravathi Rural. Apart from seizing of MO-1 blood-stained clothes of Chandrappa were also seized and sent for FSL.
3. PW-15 filed charge-sheet before the JMFC., Bhadravathi, later the same was committed to the Sessions Court, Shimoga. Accused pleaded not guilty and claim to be tried. In order to bring home the guilt of the accused, prosecution relied upon the evidence of PW-1 to 15, Exs.P-1 to 19, M.Os.1 to 8 and on behalf of the defence Exs.D-1 to 3 were marked during the cross- examination of the prosecution witnesses.
4. Statement under Sec.313 Cr.P.C. was recorded. Incriminating evidence against the accused were denied by them and no defence evidence was let in. Learned Sessions Judge after considering the arguments advanced by both the counsel, formulated the following points for its consideration:
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1. Whether the prosecution proves that Chandrappa met with homicidal death?
2. Whether the prosecution proves that on 30.5.2004, at 8 a.m. the accused in furtherance of their common intention to do away with the life of Chandrappa, wrongfully restrained him in Yedehalli village and thereby committed an offence p/u/s.341 r/w S.34 IPC?
3. Whether the prosecution proves that on the above said date, time and place, the accused, in furtherance of their above common intention, intentionally insulted deceased Chandrappa by abusing him in filthy language and thereby committed an offence P/U/S 504 r/w S.34 IPC?
After appreciating the entire evidence let in by the prosecution and considering the arguments advanced by both the parties, Sessions Judge held point No.1 in the affirmative and point No.2 was held partly in the affirmative and came to the conclusion that A-2 had no intention to kill the deceased Chandrappa and in regard to point No.3 both the accused were found guilty of the offence punishable under Sec.504 IPC however Sessions Judge held that A-2 had no intention to kill the deceased. In regard to Point No.4 8 Sessions Court came to the conclusion that appellant/A-1 was found to be guilty in committing the murder of Chandrappa. Accordingly, he was convicted and sentenced to life imprisonment. This judgment is called in question in this appeal by the appellant who was A-1 before Sessions Court.
5. Though several grounds are urged by the appellant's counsel in the appeal memo, during the course of arguments his contention before the court is that Sessions Court has committed an error in holding that the prosecution has proved beyond reasonable doubt in proving the guilt of the accused. According to him, prosecution has failed to prove the ingredient of Sec.302 IPC and that the Sessions Court has wrongly convicted the accused for the offence under Sec.302 IPC. According to him, it is not the case of the prosecution that the appellant and deceased Chandrappa or any other members of 9 the family of Chandrappa had enemity with the appellant and there were no past incidents. It is also his case that the appellant had no intention to kill Chandrappa and there was no preparation. According to him, since appellant's sister-in-law was being abused by deceased Chandrappa, the appellant being a young man of 24 years without having any worldly knowledge and being an illiterate and coming from a scheduled caste, out of provocation stabbed the deceased only once and he never expected that such a blow would be ended in the death of Chandrappa, therefore appellant could not have been convicted for the offence punishable under Sec.302 of IPC, at best considering the nature of blow given by the appellant to the deceased could have been convicted for the offence punishable under Sec.304 Part-I of IPC. Therefore he requests the court to re-appreciate the entire evidence and modify the judgment of 10 conviction and order of sentence for the offence punishable under Sec.304-A of IPC. To support his arguments he has relied upon the judgment of the Hon'ble Supreme Court reported in MAVILA THAMBAN NAMBIAR Vs. STATE OF KERALA(1997 Crl.L.J.-831). In the circumstances, he requests the court to allow the appeal in part and modify the order of conviction and sentence.
6. Per contra, learned Govt. Pleader Mr.Sampangiramaiah submits that the prosecution has proved beyond all reasonable doubt to bring home the guilt of the accused and that the appellant knowing fully well that the injury inflicted to the deceased would cause death has stabbed with MO-1 to the vital part of the body of the deceased, therefore he contends that learned Sessions Judge is justified in holding that the prosecution has proved beyond reasonable doubt the guilt of the accused for the offence punishable under Sec.302 of IPC and 11 that the judgment relied upon by the counsel for the appellant is not attracted to the facts and circumstances of the present case to reduce the punishment. In the circumstances, he requests the court to dismiss the appeal.
7. Having heard the counsel for the parties, points to be considered by us in this appeal are:
1. Whether the prosecution has proved the guilt of the accused to punish him under Sec.302 of IPC?
2. Whether the appellant has made out a case to modify the judgment of conviction and order of sentence from Sec.302 to Sec.304 Part-I of IPC?
8. Counsel appearing for the appellant fairly concedes the homicidal death of the deceased Chandrappa. He is also not disputing the evidence let in by the prosecution. He is not disputing that the appellant was apprehended by PW-3 & 4 immediately after the incident and he was brought from the garden land of Manjappa 12 to a place known as Boothanakatte of the village and he was handed over to the police by them. The only contention of the appellant before us is that there was no ill-will between the appellant and the deceased or any one of his family members and that he had no intention to commit the murder of deceased Chandrappa or any one and he inflicted the deceased only once with MO-1 without any knowledge that such injury would cause the death of Chandrappa and if he had any such intention he would have inflicted more injuries. Having seen the injury caused to the deceased he started running away from the place would show his intention was not to kill the deceased and therefore he requests the court to modify the conviction and sentence to Sec.304 Part-I of IPC. In this background we have to see the evidence of all the witnesses relied upon by the prosecution as eye witnesses to find 13 out whether the prosecution has bring home the guilt of the accused punishable under Sec.302 of 304 Part-I of IPC. PW-1 Venkatesh is the brother of the deceased who lodged the complaint as per Ex.P-1. According to Ex.P-1 incident is said to have taken place at about 8 a.m. on 30.5.2004 in front of the house of Gangamma. Deceased Chandrappa was enquiring with Gangamma in regard to the incident which had taken place on the previous day. At that point of time, A-2 came to the spot and there were verbal exchange between A-2 and deceased Chandrappa and he restrained Chandrappa from proceeding further. He grapped him. Having seen the same PW-1 and his father PW-2 went near the spot, by that time A-1 Thimmappa went inside the house and brought MO-1 and stabbed him near the floor mill of Palakshappa and a barber shop. According to him, A-1 brought MO-1 to commit murder of his 14 brother Chandrappa. Thereafter, A-2 pelted stones on him and his father PW-2 and both of them started running away from the place. This complaint is lodged at about 10-30 a.m. before Holehonnur police.
9. We have seen his evidence. According to him, when A-2 and deceased Chandrappa were quarrelling, Chandrappa was dragged up to the floor mill of Palakshappa. Later A-1 stabbed him with MO-1 and having seen the bleeding A-1 left the place. In his cross-examination he has admitted that when Chandrappa was dragged towards the floor mill of Palakshappa A-1 had no knife with him. In other words, A-1 had not come to the spot with any preparation either to assault the deceased or to kill him. From the place of quarrel between Gangamma and A-2, floor mill of Palakshappa is at a distance of 50 feet and in para-11 of his cross-examination immediately after stabbing deceased Chandrappa 15 both accused started running. From this it is clear that A-1 or A-2 had not come to the spot with any preparation either to commit murder or to assault Chandrappa. There was a quarrel between Gangamma and A-2. Gangamma is none other than the sister-in-law of A-1 & 2. On account of such quarrel and out of sudden provocation deceased was dragged towards the floor mill of Palakshappa and suddenly appellant stabbed with MO-1. Having seen the injury, A-1 & 2 started running from the place which shows that they had no intention to commit murder of the deceased.
10. We have also seen the evidence of PW-2 Nagendrappa, father of the deceased. According to him, there was a quarrel between Gangamma and Chandrappa in regard to share of water from a public tap situated in front of their house. Having seen such a quarrel A-2 came there and 16 there were verbal exchange between him and deceased Chandrappa. Having heard such a voice A-1 also came out of his house and both A-1 & 2 started pushing the deceased Chandrappa towards the floor mill of Palakshappa, then A-1 returned to his house and brought knife and stabbed him with the same. Then suddenly both the accused started running away from the place. From the evidence of PW-2 it is clear that there was no ill-will between the deceased and the appellant and they are residents of same street, all of them belong to the same community, the dispute arose on that day only on account of sharing of water of public tap. A-1 was not at all there when the incident took place, he came to the spot after hearing the voice of his brother and the deceased. Therefore, it is clear that there was no preparation to commit murder of the deceased and there was no intention to commit 17 murder of the deceased. But the fact remains that he has stabbed the deceased with MO-1 on his neck. Similarly, we have also seen the evidence of PWs-3 & 4. They are the eye witnesses who apprehended A-1 from the lands of Manjappa. Their evidence is similar to that of PW-1 & 2. All the eye witnesses PW-1 to 4 have only stated in regard to stab injury caused by A-1 through MO-1. But nothing on record to show that A-1 came to the spot with an intention to commit murder with any preparation and it is also not their evidence that the injury caused by A-1 was known to him that such injury would cause death of Chandrappa. Learned Sessions Judge without considering the case of the appellant properly has come to the conclusion that the prosecution has successfully proved the guilt of the accused beyond all reasonable doubt considering the evidence of PW-1 to 4. While 18 coming to such a conclusion Sessions Judge has not considered the motive or preparation or knowledge of the appellant in causing such an injury would result in the death of the deceased. At least, if the prosecution has let in evidence to show that the appellant was aware that the injury caused would result in the death of deceased Chandrappa we would have confirmed the judgment of the Sessions Court without any interference. Having appreciated the evidence of PW-1 to 4 and considering the nature of injuries caused by the appellant, judgment relied upon by the appellant in MAVILA THAMBAN NAMBIAR Vs. STATEOF KERALA (1997 Crl.L.J.-831) is squarely applicable. Hon'ble Supreme Court in para-10 has stated as hereunder:
"10. Mr.Lali Then, seriously challenged the conviction of the appellant under Sec.302 of IPC. He urged that the appellant had neither intention nor knowledge that such an injury would result into the death of Madhavan. He, therefore, urged that the appellant at themost could be convicted for any other minor offence. Mr.George, 19 appearing for the State of Kerala urged that the appellant was rightly convicted under Sec.3-2 IPC and no interference was called for. After giving our careful thought to the nature of offence, we are of the considered view that the offence of the appellant would more appropriately fall under Sec.302 Part-II of IPC. The appellant had given one blow with a pair of scissors on the vital part of the body of Madhavan and, therefore, it would be reasonable to infer that he (appellant) had knowledge that any injury with the pair of scissors on the vital part would cause death though he may not have intended to commit the murder. We accordingly after the conviction of the appellant from S.302 of IPC to one under Sec.304 Part-II of IPC."
In view of the aforesaid paragraph and considering the facts and circumstances and evidence in the present case, said judgment is squarely applicable to the case. Accordingly, we modify the judgment of conviction and order of sentence and convert the same into Sec.304 Part-I of IPC. According to us, case of the prosecution falls under Sec.304 Part-I of IPC and not under Sec.302 IPC. Accordingly, we answer the points formulated by us. 20
11. In the result, the appeal is allowed in part. Judgment of conviction and order of sentence passed by the Sessions Court, Shimoga in SC No.132/2004 dated 14.3.2006 is hereby modified holding that the prosecution has successfully proved beyond reasonable doubt against the appellant for the offence punishable under Sec.304 Part-I of IPC. Accordingly, we convict the appellant for the aforesaid offence.
12. Having held that the prosecution is successful in bringing home the guilt of the accused for the offence punishable under Sec.304 Part-I of IPC we reduce the sentence from life to 10 years. Accordingly, he is sentenced to undergo imprisonment for 10 years and to pay a fine of Rs.1000/- and in default to undergo further imprisonment of three months. Appellant is in custody from 31.5.2004 and the sentence 21 served by him during the pendency of the case before the Sessions Court and sentence served by him from the date of judgment shall be given set-off.
Sd/-
JUDGE.
Sd/-
JUDGE.
R/160113