Karnataka High Court
Abdul Razaq @ Razaq vs State By Rural Police Station on 9 February, 2024
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NC: 2024:KHC:5631-DB
CRL.A No. 495 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.495 OF 2017
BETWEEN:
ABDUL RAZAQ @ RAZAQ
S/O MOULA SAB
AGED ABOUT 30 YEARS
LABOURER
R/O BILLAHALLI VILLAGE
RANEBENNURU TALUK
HAVERI DISTRICT.
...APPELLANT
(BY SRI MOHAMMED UZAIR, ADVOCATE FOR
SRI SHAKEEL AHMED, ADVOCATE)
AND:
STATE BY RURAL POLICE STATION
SHIKARIPURA
REPRESENTED BY ITS
Digitally signed by STATE PUBLIC PROSECUTOR
LAKSHMINARAYANA
MURTHY RAJASHRI HIGH COURT BUILDING
Location: HIGH
COURT OF BANGALORE - 560 001.
KARNATAKA
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, S.P.P.-II)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 08.02.2017 PASSED BY THE III
ADDITIONAL SESSIONS JUDGE, SHIVAMOGGA IN S.C.NO.188/2015,
CONVICTED THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 341, 504 AND 302 OF IPC.
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NC: 2024:KHC:5631-DB
CRL.A No. 495 of 2017
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 18-11-2023, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE
VENKATESH NAIK T. J., PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed by the accused aggrieved by the judgment of conviction and order on sentence dated 08.02.2017 passed by III Addl. Sessions Judge, Shivamogga in S.C.No.188/2015, whereby the trial court convicted the accused for the offences punishable under sections 302, 341 and 504 of Indian Penal Code, 1860(for short 'IPC').
2. The case of the prosecution in brief is as under:-
The name of the deceased is Ganeshappa @ Ganesh Rao.
The complainant, U. Basavarajappa i.e., PW-1 is an eye witness to the incident. He stated that on 08.07.2015 at 7:30 a.m., when he was on morning walk with his friend PW-2 Vitobarao Pawar at Begur, on the tar road leading to Bendekatte, near SC/ST Hostel, they saw victim Ganeshappa moving on his cycle carrying a can of pesticide towards his land. The accused who was standing by the side of the road stopped and queried him, and when they were witnessing the incident, the accused assaulted victim Ganeshappa with a stone on his head two to three times, hence, PWs-1 and 2 rushed to the spot, pacified -3- NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 the quarrel and the accused on seeing them threw away the stone on the spot and fled away. The neighbours who were working in the nearby fields rushed to the spot and immediately they shifted injured Ganeshappa to Shikaripura Government Hospital and the public caught hold of the accused near Begur bus stand. The accused on seeing the crowd, by hitting his head to the wall of the bus stand caused self injury. After providing first aid to the accused at Shikaripura Government hospital, he was handed over to the police. As per the instruction of PW3-Arun (son of deceased), PW-1 lodged the complaint as per Ex.P1. This led to registration of FIR and investigation. On the same day at 4:20 p.m., victim Ganeshappa succumbed to the injuries at Sahyadri Narayana Hrudayalaya, Shivamogga, hence, PW-3 lodged as per Ex.P5.
Thus, the Investigating Officer incorporated Section 302 IPC.
3. In order to prove its case, the prosecution examined in all eleven witnesses as PW-1 to PW-11 and got marked twenty three documents as per Exs.P1 to P23 and six material objects as per M.Os.1 to 6. For the defence, the accused got examined Dr. Raghu Prasad, Medical Officer, Shivamogga, Central Prison, as DW-1.
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017
4. The accused came to be tried for the aforesaid offences and on the basis of the testimonies of eyewitnesses viz., PWs.1 and 2 and also taking into consideration the evidence adduced by PW-5 Muralidhara, who caught hold of the accused at the bus stand and who claimed to have seen the accused fleeing away from the scene of offence, the medical evidence, the FSL report and by taking into consideration the attendant circumstances, the trial court convicted the accused for the offence under section 302 IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.25,000/- with default imprisonment for a period of one year, for the offence under section 341 IPC, sentenced him to undergo simple imprisonment for a period of one month and for the offence under section 504 IPC, the accused was sentenced to undergo simple imprisonment for a period of six months. The sentences were ordered to run concurrently.
5. Assailing the findings of the trial court, Sri Mohammed Uzair for Sri Shakeel Ahmed, learned counsel for the accused argued that the prosecution is guilty of suppression of material evidence and has not come forward with the true version of the incident; the trial court committed -5- NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 an error by wrongly relying upon the evidence of PWs-1, 2 and PW-5 who are interested witnesses in this case. There is no corroborative, clear and consistent evidence in the prosecution case. The trial court erred in appreciating Ex-P18 the sketch, wherein there is mention of only the blood stained stone used for commission of alleged offence. The pesticide and the cycle which were at the spot were not seized, which leads to doubt the prosecution version. It is contended that PWs-1 and 2 have categorically admitted that at the time of the incident, they were at a distance of 30 feet from the scene of offence, as such, it leads to doubt as to who was the aggressor and who provoked for the incident to take place. This fact has not been looked into by the trial court while convicting the accused. There was no motive or animosity between the accused and the deceased, and this is the first incident, which in fact has not been looked into by the trial court. It is contended that the deceased was having a robust body and stronger than the accused. If the accused had actually attacked the deceased, the accused also should have sustained injury in the incident, but no such injuries were found on the accused. -6-
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6. It is contended that the accused got examined Dr. Raghuprasad as DW-1 who is none other than the Medical Officer, District Prison, Shivamogga. As per the evidence of DW-1, the accused is of unsound mind and suffering from mental disorder and hallucinations, therefore, DW-1 referred the accused to a Psychiatrist. In turn, the Psychiatrist referred the accused to NIMHANS Hospital, Bengaluru for treatment, where the doctors opined that the accused was suffering from "Psychosis-NOS", but the trial court failed to consider this aspect. The counsel further contends that in the event this court arrives at a conclusion to affirm the findings, the accused may be convicted and sentenced for the offence under section 304 Part II IPC, inasmuch as, the accused had no knowledge that his act would likely to cause death and as such, it would amount to culpable homicide not amounting to murder.
7. Per-contra, Sri Vijayakumar Majage, learned SPP-II appearing for the respondent State justified the impugned judgment. He contended that the evidence tendered by the prosecution has not been infringed and the prosecution witnesses have stood the test of cross examination and as such, the impugned judgment deserves to be affirmed. He -7- NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 further contended that the accused intentionally provoked the deceased to quarrel with him, abused him in a public place and assaulted him with a stone on his head. Further, the eye witnesses to the incident viz., PWs-1, 2 and 5 have categorically stated about the role of accused and the manner of assault on deceased in their presence. It is further contended that the conviction and sentence passed by the trial court against the accused warrants no interference of this Court. Hence, he prayed for rejection of the appeal.
8. At the outset, it requires to be noticed that the counsel for the accused vehemently submitted that this is not a case of murder and it is a case of culpable homicide not amounting to murder. Hence, learned counsel restricted his submission to scale down the offence under Section 302 IPC imposed against the accused to one under Section 304 II IPC. Hence, within this sphere, the appeal is to be examined as to "Whether the judgment of conviction and order on sentence passed by the trial court requires to be affirmed or the sentence is to be converted to 304 IPC and if so, which part of section 304 IPC ?"
9. In the aforesaid background, it would be necessary to analyse the evidence available on record. -8-
NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 9(a). PW-1 Basavarajappa is an eyewitness to the incident and he is a resident of Begur village. He has stated that on the day of the incident at 7:30 a.m. on Begur- Bendekatte road, he was walking with PW-2 Vitobarao Pawar. When they were moving in front of SC/ST Government Pre-University Boys Hostel, victim Ganeshappa, was coming towards the hostel in his cycle carrying pesticide can and at that time, the accused waylaid him and assaulted him with a stone. Immediately, he and PW-2 snatched the stone from the hands of accused and threw it away. They saw Ganeshappa with bleeding injuries in his ear and back of his head. Immediately, the accused fled away from the spot towards Begur. At the time, PW-5 Muralidhar, came on the motor cycle and PW-1 informed him about the incident and told him to catch hold of the accused, whose clothes were blood stained. PW-1 further stated that PW-3 Aruna G., son and wife Manjula Bai(CW-17) of Ganeshappa shifted injured to the hospital in an ambulance. Later PW-5 Muralidhara L. N., caught hold of the accused at the bus stand near Veerabhadra temple, Begur. When he and PW-2 came to the bus stand, the accused had sustained self inflicted injury by hitting his head to the wall of -9- NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 the bus stand. Therefore, himself, Chandrappa and Vitobarao Pawar took the accused to Shikaripura Govt. Hospital for treatment. PW-1 further stated that injured Ganeshappa was taken to District Government McGann Hospital, Shivamogga, and since his condition was very critical, PW-3 the son of Ganeshappa informed PW-1 to lodge the complaint, accordingly, PW-1 being an eye witness lodged the complaint as per Ex.P1. Later, the police came to the scene of offence, drew panchanama, seized the sample mud and the stone used for the commission of offence from the spot and conducted mahazar as per Ex-P2 and took photographs as per Ex-P3 and Ex-P4 and seized M.Os.1 to 4. In the cross-examination, PW-1 has stated that he has seen the incident from a distance of 30 feet. He and PW-2 heard hue and cry of deceased Ganeshappa and rest of the suggestions were denied by him.
9(b). PW-2 Vitobarao Pawar, another eye witness to the incident has stated that on the day of the incident, in the morning, he and PW-1 Basavarajappa were returning from morning walk near Raghavendra school, at that time, the accused was assaulting Ganeshappa with a stone; they went there; pacified them. Accused ran away from the place towards
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 Begur. Ganeshappa had sustained injuries on the back side of his head and also to his ear. At that time, the home guard, PW-5 Muralidhara came on his motor bike, PWs-1 and 2 asked PW-5 to catch hold of the accused, hence, he caught hold of the accused near Veerabhadra temple at Begur; PWs-1 and 2 also went to see the accused and they saw the accused having inflicted injuries to himself by hitting his head to the wall of bus stand and thereafter PW-1 and Chandrappa took him to Shikaripura hospital, where he underwent treatment.
9(c) PW-3 Aruna G. is the son of deceased Ganeshappa. He has stated that on 08.07.2015, his father had been to the land on his bicycle to spray pesticides to ginger crop. On the same day, CW-11 Bharath had informed him about the incident, hence, he and his mother went to the spot. His father was taken to Shikaripura Government hospital for treatment and then he was shifted to Narayana Hrudayalaya, Shivamogga, but on the same day at 4:00 p.m., his father died on account of the injuries sustained. After the death of his father, he lodged the complaint before the police as per Ex-P5. He has further stated that on 13.07.2015, he handed over the blood stained clothes worn by his father at the time of the
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 incident to the police and the police seized the same under seizure panchanama Ex-P6.
9(d) PW-4 Dr. Veeresh, M. R., Associate Professor, Department of Forensic Medicine and Toxicology, SIMS Shivamogga, who conducted autopsy on dead body of Ganeshappa on 09.07.2015 in between 12:00 p.m. to 01:00 p.m., found the following external injuries:-
1. 6 x 4cm x Bone deep lacerated over vertex at the centre with a surrounding abrasion measuring 7 x 5cm with a skin tag directed left and back the application of force being R - L, Front - Back.
2. 1.3 x 1cm x Bone deep lacerated wound present on right side back of vertex, 2cm from centre.
3. 4.5 x 0.5cm x Bone deep lacerated wound present on right head, lower limb 5.5.cm from root of right ear.
4. 6 x 0.5cm x Bone deep laceration present on back of head semi circular, 3cm above occipital protrubrance.
5. 5 x 0.5cm x Bone deep vertical laceration present on left head, lower end 3.5 cm above root of left ear.
6. 1 x 0.2cm x Subcutaneous tissue deep laceration over lateral aspect of left upper eye lid with left black eye.
7. 0.4 x 0.5cm Abrasion over root of nose.
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 As per the opinion of the Doctor, the death of Ganeshappa was due to complications of head injury sustained. He issued post-mortem report as per Ex-P11 and his final opinion as per Ex-P12. As per the evidence of the Doctor PW-4, the injuries mentioned in the post mortem report could be caused by a stone.
9(e) PW-5 Muralidhara is a chance witness who came immediately after the incident to the spot. As soon as he reached the place, PW-1 and PW-2 who were present there asked him to catch hold of the accused who had ran away after assaulting Ganeshappa. The public caught hold of the accused near Begur bus stand. He further stated that he enquired about the whereabouts of the accused. As the condition of injured Ganeshappa was critical and possibility of his survival being bleak, they decided to hand over the accused to the police. At that time, the accused by hitting his head to the wall sustained self inflicted injuries to his head. Immediately PW-1 and others took the accused to the hospital and on the same day, injured Ganeshappa died in Sahyadri Narayana Multispeciality Hrudayalaya Hospital at Shivamogga.
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 9(f). PW-9 Dr. Shivanna, Radiologist, Shikaripura Government Hospital, who treated the accused has stated that on the day of the incident, the accused was brought by PW-1 with the history of self injury and on examination he found lacerated wound over occipital region of head measuring 2cm x 0.1 cm x 0.5 cm, hence he gave treatment and issued wound certificate as per Ex-P16. It shows that soon after the incident, the accused caused self injury to his head, realizing his mistake. The oral evidence of PWs-1 and 5 corroborates the medical evidence of PW-9.
9(g) PW-11-the Investigating Officer has stated that on 09.07.2015, he took up further investigation of the case. He visited Sahyadri Narayana Hurdayalaya Hospital at Shivamogga, saw the dead body of deceased Ganeshappa and conducted inquest mahazar in the presence of the witnesses vide Ex-P9. Thereafter, he sent the body of deceased to McGann Government Hospital, Shivamogga for post mortem examination. His further evidence is that on 13.07.2015, PW-3 the son of deceased produced blood stained clothes worn by the deceased at the time of the incident, he seized the same under Ex-P6 and after completion of the investigation, he filed
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 the charge sheet against the accused for the offences under sections 341, 504 and 302 IPC.
10. From the perusal of the evidence of the eye witnesses' viz., PWs-1 and 2, it appears that they are residents of Begur village and they are friends. They use to go to morning walk everyday at 6.30 a.m. and return at 7.30/8.00 a.m. On the day of the incident, they came to the scene of offence at around 7.30 a.m. to 8.00 a.m. and they were walking on the road in front of boys' hostel. As it was morning hours, the movement of people was remote at the scene of offence. It is their consistent evidence that in front of the SC/ST hostel, the incident took place. Victim Ganeshappa was coming towards the hostel in his cycle carrying pesticide can. The accused who came from the opposite direction of injured Ganeshappa suddenly waylaid him and a verbal fight took place between them and in a spur of moment, the accused took a stone lying on the spot and assaulted Ganeshappa on his head and ear etc., thus, injured raised hue and cry. Hence, PW-1 and PW-2, who were at a distance of 20ft to 30ft came to the spot, pacified the quarrel, snatched the stone from the hands of
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 accused and threw it away. The clothes of deceased and the stone used for commission of the offence were blood stained.
11. It is their further evidence that soon after assault made by the accused, PWs-1 and 2 enquired injured Ganeshappa as to why accused assaulted him. Thus, injured replied that, he was coming towards the hostel in his cycle and the accused questioned him as to "gÀ¸ÉÛAiÀÄ ªÀÄzsÀå gÁd §AzÀ ºÁUÉ §wÃðAiÀiÁ¯Áè? gÀ¸ÉÛ K£ÀÄ ¤ªÀÄä¥Àà£ÀzÀ JAzÀÄ' for which he(injured) replied to accused saying that "£À£Àß ¥ÁrUÉ £Á£ÀÄ ¸ÉÊPÀ°è£À°è ºÉÆÃUÀÄwÛzÀÝgÉ ¤£ÀUÉãÀÄ PÀµÀÖ ¥ÀPÀÌzÀ°è CµÉÆÖAzÀÄ eÁUÀ EzÉAiÀįÁè"? thus, being enraged by his reply, the accused in a spur of moment took a stone(M.O.4) assaulted victim on his head two to three times without giving any room to escape and thus, the victim fell down.
12. PW-1 and PW-2 have categorically denied the suggestion that injured fell down on the tar road and thus sustained bleeding injuries. From the perusal of evidence of PWs-1 and 2, we find that, they being the eyewitnesses clearly stated about the incident. Their testimonies are clear and corroborative in nature. Merely because they are residents of Begur village and the injured is also resident of Begur village,
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 in the absence of any material to hold that they are interested witnesses, their testimonies cannot be rejected.
13. PW-5 a chance witness corroborated the oral testimonies of PWs-1 and 2 with regard to victim sustaining bleeding injuries in front of a hostel. PWs-1, 2 and 5 appears to be independent witnesses. There was not even a suggestion to the witnesses that they had any animosity towards the accused. Therefore, their presence at the scene is not doubtful. In this case, a murder was committed on a road, PWs-1 and 2 passersby are the eyewitnesses and they are independent witnesses and PW-5 a chance witness, their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere chance witnesses.
14. As per the opinion of PW-4 Doctor, the injuries mentioned in post mortem report(Ex-P11) can be caused by the stone (M.O.4). Further, the Doctor specifically denied the suggestion that injury Nos.1 to 6 can be caused if one person falls on a hard surface. Hence, the Doctor was of the firm view that the injuries sustained by deceased Ganeshappa were caused by repeated forceful impact. In the cross examination, a question was suggested to the Doctor that, Ganeshappa
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 succumbed to death due to some other illness and not due to head injuries he sustained, but, the Doctor has denied it. It shows that the accused has taken an inconsistent plea as to the cause of death of the deceased. His earlier suggestion was that the deceased fell on a hard surface and sustained injuries as shown in Ex-P11 and in a later suggestion, he suggested that, due to some other illness, deceased died. But, the accused has not placed any material to substantiate his contention as to the cause of death of deceased Ganeshappa.
15. PW-3 Aruna G., son of deceased who is a chance witness, came to the spot soon after the incident and he came to know about the assault through his friend. In the evidence, PW-3 has also stated about the incident and reiterated the oral testimonies of PWs-1 and 2 with regard to the manner of incident that took place in front of the hostel and he came to know about the incident through PWs-1 and 2 and death of his father on the same day at 4.20 p.m., hence, he lodged the complaint as per Ex-P5.
16. From the perusal of oral evidence of eyewitnesses' viz., PW-1 and PW-2 and chance witnesses PW-3 and PW-5, it clearly establishes that Ganeshappa was assaulted by accused
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 with a stone and sustained bleeding injuries on his head. The ocular testimonies of PWs.1 to 3 and 5 is corroborated by the medical evidence of PW-4-Doctor.
17. The FSL report -Ex-P23 was placed on record. The FSL report discloses that the shirt of accused M.O.3, clothes of deceased MOs.5 and 6 and M.O.4 stone are stained with blood and it is human blood. As per the FSL report, item Nos.1, 2 and 4 to 7 were stained with 'B' group human blood i.e., except sample mud, remaining articles sent were stained with blood. It shows that clothes of deceased and shirt and stone were stained with 'B' group blood, but, accused has not offered any explanation as to how his shirt was stained with 'B' group blood. The trial court has considered and relied upon Ex-P23 FSL report. The entire circumstances under which the material was collected including the stone, along with the recoveries made which were sent to the expert, have been explained by the Investigating Officer.
18. It is contended that the authorised officer who conducted chemical examination have not been examined and all articles were marked through PW-11 Investigating Officer. As per section 293(4) Cr.P.C., the authorized officers who
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 conduct chemical examination of the articles sent to them are exempted under the aforesaid provision. We do not find anything unnatural in the testimony of Investigating Officer(PW-11). On perusal of the evidence available, we do not find any delay in either sending the recovered articles to the expert or receiving the FSL report. The circumstances under which they were sent and received were spoken to by PW-11. The accused has neither shown any prejudice being caused by the alleged delay nor has disputed the findings of the FSL report. The trial court considered the evidence of the eyewitnesses in coming to the right conclusion.
19. From the perusal of oral testimonies of PWs-1, 2 and PW-5 and seizure mahazar, post mortem report and oral evidence of PWs-17 and 21, it clearly establishes that victim Ganeshappa died on account of head injuries caused by the accused. Therefore, the prosecution proved that the death of Ganeshappa is homicidal.
20. So far as seizure of blood stained clothes of the accused and deceased are concerned, PW-7 M.T. Kuberappa has stated that on 08.07.2015, the police seized blood stained shirt(M.O.3) of accused under Ex-P14 seizure panchanama. He
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 has identified M.O.3 before the court. PW-3 Aruna G., has stated that on 13.07.2015, he furnished blood stained clothes of his father(deceased) to the police, thus, police seized M.O.5 shirt and M.O.6 lungi under Ex-P6 seizure mahazar. Further, PW-8 witness to Ex-P6 seizure panchanama has stated that on 13.07.2015, PW-3 produced M.O.5 blood stained shirt and M.O.6 lungi of his father to the police station, hence, police seized the same under Ex-P6 seizure panchanama. PW-11 N. Manjunath the Investigating Officer has stated that on 08.07.2015, the accused produced his blood stained shirt, hence, he seized the same under Ex-P6. His further evidence is that he sent those seized articles along with M.O.4 blood stained stone to FSL for chemical examination. It shows that PWs-3 and 8 have categorically stated about the manner of conducting seizure panchanama as per Ex-P6 and Ex-P14 and seizure of M.Os.1 to 6. The accused has not taken up the contention that there was irregularity in seizure of M.Os.1 to 6 which would prejudice his right. The accused has not suggested that M.Os.1 to 6 were concocted for the purpose of this case. Hence, the seizure of M.Os.1 to 6 under Ex-P2, Ex-P6 and Ex-P14 are in accordance with law.
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21. Learned counsel for the accused contended that accused was suffering from illness of hallucination and he was in dis inhabitant behaviour, hence, the counsel relied upon the oral testimony of DW-1 -Dr. Raghuprasad, Medical Officer, District Prison at Shivamogga. In his evidence, he has stated that the accused at the time of admission to the prison, he examined him, his behaviour was irritable and muttering to his own self. He observed that accused had some illness of hallucination and was in dis inhabitant behaviour, therefore, he referred the accused for further examination to the Psychiatrist and on the recommendation of the Psychiatrist, the accused was referred to NIMHANS hospital, Bengaluru for further treatment. The evidence of DW-1 was subjected to cross examination. He admits that he has not placed any medical examination report of accused either before the Magistrate or before the trial court, he has not made enquiry about the habits of accused and he further admits that he is not a qualified Psychiatrist to evaluate the mental condition of the accused. Apart from the evidence of DW-1, the accused has not produced any material to prove the fact of mental illness of the accused. From the trial court records, it reveals that at no point
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 of time, the accused or his counsel contended that the accused was suffering from any mental illness and he was incapable of knowing the nature of the trial. As the accused or his counsel failed to invoke the ground of mental illness before trial, now the accused cannot take up such contention. Even, the trial court at para 41 of its judgment has clearly observed that at the time of trial, the accused has not pleaded his insanity or unsoundness of mind till conclusion of trial. It is only after completion of the trial, the accused got examined DW-1 to substantiate his defence. The Hon'ble Apex Court in the case of SUDHAKARAN v. STATE OF KERALA, reported in (2010) 10 SCC 582 held that psychosis is not a mental health disorder perse. People experience psychosis in the course of psychotic based disorder such as schizophrenia, there is a chance of getting confused psychosis with the diagnosis psychotic disorder not otherwise specified. DW-1 has stated that the accused was suffering from psychosis -NOS. The trial court has held that even if this disease is taken as it is, the problem found in the accused was psychosis, curable if consistent medication is provided. Therefore, the accused was not
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 suffering from any mental illness to claim protection under section 84 of IPC.
22. The learned counsel for the accused contended that the incident occurred in a spur of moment and the accused had no intention or motive to eliminate the deceased and hence, the alleged offence would attract section 304 Part II IPC and not attract section 302 IPC.
23. In this regard, the learned counsel relied upon the decision of the Hon'ble Supreme Court in the case of BASDEV v. STATE OF PEPSU reported in 1956 SCC ONLINE SC 13, wherein at para 6, it is observed as under:-
''6. Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases, intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things."
Hence, the test applied by the Hon'ble Apex Court in the aforesaid decision is that there are two different terminologies viz., 'intent' and 'knowledge' and separate punishments are
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be unsafe to treat the intent and knowledge in equal terms. They are not different things. 'Knowledge' would be one of the circumstances to be taken into consideration while determining or inferring the requisite intent. Where the evidence would not disclose that there was any intention to cause death of the deceased, but it was clear that the accused had knowledge that his acts were likely to cause death, the accused can be held guilty under part II of Section 304 IPC. It is in this background that the expressions used in IPC viz., intention and knowledge have to be seen as there being a thin line distinction between these two expressions. The act to constitute murder, in the given facts and circumstances, would disclose that the ingredients of Section 300 IPC are not satisfied and such act is one of extreme recklessness, it would not attract the said Section. In order to bring a case within Part III of Section 300 IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 ordinary course of nature was sufficient to cause death. In other words, the injury found to be present was the injury that was intended to be inflicted.
24. The Hon'ble Apex Court in the case of Deepak v. State of Uttar Pradesh reported in (2018) 8 SCC 228 held that the incident had taken place in the heat of the moment and the assault by a single sword blow in the rib cage was without any premeditation and the incident occurred at the spur of the moment and thus inferred that there was no intention to kill and as such the offence was converted from section 302 IPC to section 304 II IPC and the appellant was ordered to be released forthwith by sentencing him to the period of conviction already undergone.
25. On careful perusal of the said provisions makes it clear that 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 having taken undue advantage or acted in a cruel or unusual manner. It clearly indicates that offence comes under Section 304 of IPC, for which the punishment is imprisonment for life or
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 imprisonment of either description for a term which may extend to ten years and shall also be liable to 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 fine, 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.
26. The Hon'ble Apex Court in the case of Anbazhagan v. State represented by the Inspector of Police reported in 2023 SCC Online SC 857 wherein the Hon'ble Apex Court defined the context of true test to be adopted to find out the intention or knowledge of the accused in doing the act and the Hon'ble Apex Court held at para 66 as under:
"66.(1) When the court is confronted with the question what offence the accused could be said to have been committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such that as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused.
To illustrate: 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A',
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of IPC. It would be an offence under Part I of that section, if the case fall
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC, it is punishable under the first part of Section
304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between two parts of section 304 IPC is that under the first part, the crime of murder is first established and the accused is then
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."
27. In order to consider the aspects of 'intention' or 'knowledge' in the instant case, a perusal of appeal papers would indicate that on the day of the incident, when victim Ganeshappa @ Ganesh Rao was proceeding from Begur to Bendekatte in his cycle to go to his land, the accused wrongly restrained him from going further, and took quarrel with victim Ganeshappa and the accused being enraged assaulted victim Ganeshappa with a stone on his head. Further, PW-1 and PW-2 noticing the assault, pacified the quarrel, later PW-5 came on his motor cycle and caught hold of the accused. The eye witnesses, chance witness PW-3 and his mother(CW-17) came to the spot and took injured Ganeshappa to Shikaripura Government hospital and later they shifted the injured to Sahyadri Narayana Hrudayalaya Hospital at Shivamogga for better treatment. On the same day, at about 4.00 p.m., Ganeshappa succumbed to the injuries. Insofar as the incident
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 having occurred and the veracity of the evidence tendered by the prosecution witnesses, there is detailed consideration made by the trial court believing the versions stated by the prosecution witnesses, more particularly, PW-1, PW-2 and PW-5. Therefore, the only aspect which arises for our consideration is as to "whether even if the incident is accepted in the manner it occurred, was it at the spur of the moment or not', requires further consideration in the matter.
28. To invoke the provisions of Exception 4 to Section 300 IPC, four requirements must be satisfied:
i) It must be a sudden fight;
ii) There should be no premeditation;
iii) The act must be done in a heat of passion; and
iv) The assailant should not have taken any undue advantage or acted in a cruel manner.
29. Admittedly in the present case, a verbal fight took place between the accused and victim Ganeshappa in relation to leaving path to the accused. The material on record clearly depicts that there was no premeditation on the part of the accused and the act committed by the accused was in a heat of
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 passion and use of M.O.4-stone on the head of deceased Ganeshappa is without any premeditation. As stated supra, the accused has not taken any advantage or acted in a cruel manner in causing the death of deceased Ganeshappa.
30. In view of the above, the present case does not fall under the provision of Section 302 of IPC, but it falls under Exception-4 to Section 300 of IPC., as the accused has inflicted injuries on the head of deceased Ganeshappa without an intention to cause death and the act of the accused is punishable under the provision of Section 304 Part II IPC.
31. The trial court framed charge for section 302 IPC against the accused in spite of there being no intention on the part of the accused while committing the offence. Hence, the trial court could not have been framed charge under section 302 IPC, but it ought to have framed charge under section 304- II IPC.
32. Whereas in the instant case, PWs-1 and 2 have clearly stated that the incident took place in the heat of the moment and the assault by a stone on the head of deceased Ganeshappa was without any premeditation and the incident
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 had occurred at the spur of the moment and thus there was no intention on the part of the accused to kill the deceased.
33. In that regard, a perusal of the evidence of PW-1 and PW-2 in their examination-in-chief as well as cross examination, would go to show that altercation took place between the accused and deceased and in the spur of the moment, the accused started assaulting Ganeshappa. PWs-1 and 2 also stated that they tried to pacify the quarrel and by that time, deceased has already received injuries with a stone. The injured Ganeshappa was shifted to the hospital and later he succumbed to the injuries. These aspects of the matter would indicate that there was no premeditation by the accused to cause the death of Ganeshappa and the incident had occurred at the spur of the moment and the accused having realised his mistake also sustained self inflicted injury by hitting his head against the wall of the bus stand and thereafter he was taken to hospital for treatment by PW-1 and PW-2.
34. Learned counsel for the accused contended that the investigating officer filed the charge sheet for the offence under section 504 IPC and the trial court also framed charge for the
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 said offence. As per the charge, the accused intentionally insulted deceased by abusing him " gÀ¸ÉÛAiÀÄ ªÀÄzsÀå gÁd §AzÀ ºÁUÉ §wÃðAiÀiÁ¯Áè gÀ¸ÉÛ K£ÀÄ ¤ªÀÄä¥Àà£ÀzÀ JAzÀÄ'? for which deceased replied saying that "£À£Àß ¥ÁrUÉ £Á£ÀÄ ¸ÉÊPÀ°è£À°è ºÉÆÃUÀÄwÛzÀÝgÉ ¤£ÀUÉãÀÄ PÀµÀÖ ¥ÀPÀÌzÀ°è CµÉÆÖAzÀÄ eÁUÀ EzÉAiÀįÁè"? thus being enraged by the reply of injured, the accused in a spur of moment took a stone(M.O.4) assaulted victim on his head two to three times without giving any room for the deceased to escape. In the above context, we would refer to the provision contained in section 504 IPC which reads as under:-
Section 504. Intentional insult with intent to provoke breach of the peace:-
"Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
35. From a perusal of the aforesaid provision, it is clear that in order to satisfy the ingredient of section 504 IPC, the prosecution has to show that the accused had intentionally insulted deceased Ganeshappa so as to give him provocation, intending or knowing it to be likely that such provocation will
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 cause him to break the public peace, or to commit any other offence. Thus, mere uttering the words, that, " gÀ¸ÉÛAiÀÄ ªÀÄzsÀå gÁd §AzÀ ºÁUÉ §wÃðAiÀiÁ¯Áè gÀ¸ÉÛ K£ÀÄ ¤ªÀÄä¥Àà£ÀzÀ JAzÀÄ' would not satisfy the ingredient of section 504 IPC. In fact, the act of insulting should be of such a nature that it would give provocation to the person insulted, to break the public peace or to commit any other offence. In this case, the evidence of PWs-1 to 3 and PW-5 contains general allegations against the accused and infact, the words uttered by the accused would not attract the ingredient of section 504 IPC.
36. Having considered the rival contentions of the learned counsel for the parties and on perusal of the entire material on record, it clearly depicts that the alleged unfortunate incident undoubtedly has taken place in a spur of moment without premeditation and it cannot be said that the accused had an intention to kill the deceased or knowledge that the injury was likely to cause death. The accused only intended to vent his ire against deceased Ganeshappa and there was no occasion for him to kill the victim. Taking into consideration the mitigating circumstances that while there was a verbal fight between the
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 accused and victim, the accused assaulted victim-Ganeshappa with stone and caused head injury on 08.07.2015 at 8.00 A.M. and the injured was shifted to Shikaripura Government Hospital for treatment and Sahyadri Narayana Hrudayalaya Hospital at Shivamogga, where Ganeshappa died on account of injuries at 4.20 p.m. on the same day, in the absence of any intention on the part of the accused, which makes him individually answerable, the judgment of conviction passed against the accused under section 302 IPC has to be scaled down to one under Section 304 Part-II IPC.
37. Therefore, if these aspects are kept in view as mitigating circumstances, we are of the opinion that the conviction of the appellant under Section 302 IPC is not justified. Hence, we modify the judgment to hold the appellant guilty of the offence under Section 304 II IPC. Insofar as the order on sentence, the records reveal that the accused has already undergone more than eight years sentence from the date of his arrest i.e., on 08.07.2015 and as such, we hold that the period already undergone by the accused would be sufficient punishment. Hence, to that extent, the judgment of
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 conviction and sentence passed by the trial court deserves to be modified.
Hence, we pass the following:-
ORDER
1. The appeal is allowed-in-part.
2. The judgment of conviction and order of sentence dated 08.02.2017 passed by III Additional Sessions Judge, Shivamogga in S.C.No.188/2015 stands modified.
3. The accused is acquitted of the offences punishable under section 504 of IPC.
4. The accused is held guilty of the offence punishable under Section 304 Part II of IPC instead of section 302 IPC.
5. For the offence punishable under section 304 Part-II of IPC, the accused is sentenced to rigorous imprisonment for the period he has already spent in jail and fine of Rs.5,000/-. In default of payment of
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NC: 2024:KHC:5631-DB CRL.A No. 495 of 2017 fine, he shall undergo simple imprisonment for a period of six months.
6. The sentence of imprisonment and fine with default imprisonment for the offence under section 341 of IPC is retained.
7. The period already spent in jail is given set-off.
8. The accused shall be set at liberty forthwith, if his presence is not required in any other case/s.
9. Registry is directed to send back the trial court records with a copy of this judgment.
Sd/-
JUDGE Sd/-
JUDGE MN List No.: 1 Sl No.: 1