THIPPANNA v. STATE — 1971 DIGILAW 9 (KAR)

SADANANDASWAMI, J. ( 1 ) THIS is an appeal against the conviction and sentence passed on the appellant by the Sessions Judge, Raichur, in SC No. 9/8 of 1968. The appellant has been found guilty of the offence under Ss. 324 and 302 IPC. and has been sentenced to one year's rigorous imprisonment under S. 324 ipc. and for imprisonment for life under S. 302 IPC. both the sentences to run concurrently. ( 2 ) THE accused Thippanna, deceased Gundappa and the injured marappa are the residents of the locality of Beeron Quilla, Raichur. The house of the accused is near the top of the hillock and the houses of the injured Marappa and the deceased Gundappa and other persons are near the hillock on a lower leve. There is also a Hanuman temple on tha top of the hillock and there is a street light in front of the said Hanuman temple. Marappa has an unmarried sister by name Nagamma. Marappa and his younger brother Gaddeppa and their parents all reside in the same house along with their sister. The incident took place on 15-12-1967 at about 7-30 P. M. in front of the house of the appellant. The appellant is alleged to have caused the death of Gundappa by stabbing him with a knife on his chest and back and also inflicted injuries on Marappa by means of a knife. According to the prosecution, the accused and some of his relatives had gone to the house of Marappa and ask for the hand of Nagamma in marriage to the sister's son of the appellant and the parents of Marappa told the appellant and his relatives that he would consider the matter after consulting their other relatives. Thereafter, about 7 or 8 days later, the appellant and some of his relatives again went to the house of Marappa to enquire about the decision from the parents of Marappa in regard to their request. At that time also, the parents of morappa told the accused and his relatives to wait for some time since they had to consider the proposal in consultation with their children. Then, the appellant and his relatives returned from the house of Marappa. At that time also, the parents of morappa told the accused and his relatives to wait for some time since they had to consider the proposal in consultation with their children. Then, the appellant and his relatives returned from the house of Marappa. ( 3 ) ON the morning of the date of the incident which was a Friday, according to the prosecution, the appellant and his sister and one Narasappa again went to the house of Marappa and questioned the parents of marappa as to why they had not given their consent to the marriage of naeamma to the sister's son of the appellant and quarrelled with them. At that time, the appellant and Marappa quarrelled with each other and beat each other. But the persons who had assembled there, intervened and pacified them. The appellant and his sister and other relatives of his returned to their houses. In the evening at about 6 or 6-30 P. M Marappa returned from his work to his house and at that time he saw his younger brother Gaddeppa and his mother and sister talking with the deceased gundappa. Marappa took a 'lota' and went outside his house for answering calls of nature and proceeded towards the house of the appellant where the people of the locality usually go for answering calls of nature, i. e. , behind the house of the appellant near the boulders. When Marappa was returning from that place, and when he was passing in front of the house of the appellant, he saw the appellant on the katta of his house and told the appellant that there was no use of quarrelling regarding his sister's marriage and if there was anything to be discussed, the appellant can come to his house and talk with him. Thereupon, it was stated that the appellant went inside his house and brought a knife with him and asked Marappa what he had to say and that at that time, the appellant as well as Marappa exchanged hot words and thereafter the appellant gave a knife blow on the chest of Marappa, and that Marappa after receiving that blow with the knife, was about to fall down crying and it that time the appellant gave another blow with the knife on the abdomen of Marappa and Marappa fell down on the ground crying. It is also the case of the prosecution that this happened at about 7 or 7-30 P. M. and that at that time, the light was burning near the Hanuman temple and it was a full moon night, and that the appellant and Marappa were exchanging hot words, and after hearing the galata, Gaddeppa, Marappa and deceased Gundappa came out-from the house and ran towards the katta of appellant's house and other persons ran towards that side. When marappa fell down after receiving the injuries, the deceased Gundappa bent down to see Marappa and at that time the appellant gave a blow on the neck of the deceased Gundappa and after receiving the blow, Gundappa tried to get up, but the appellant again gave a blow on the chest of the deceased and thereafter the deceased Gundappa fell down on the ground. The presecution witnesses who were assembled there seeing this incident tried to apprehend the accused, but the accused at that time inflicted some injuries on his own leg and tried to jump from the katta of his house, and while jumping he fell down into a ditch in iront of his house and at that time the knife which he was holding slipped away from his hand and thereafter, the witnesses apprehended the accused and gaddeppa the younger brother of Marappa took out the knife and all the persons took the accused to the police station at Sadar Bazaar. Raichur and produced the accused before the Sub-Inspector- of Police. Gaddeppa the younger brother of Marappa produced the Knife and the sub-Inspector of Police along with the Circle Inspector of Police seized the blood-stained knife and blood-stained clothes of the accused under a panchaaama and sent the accused to the Civil Hospital, Eaichur, for treatment. The witnesses and the persons who had assembled at the place of the incident, seeing Marappa and Gundappa with bleeding injuries, took these two persons in a riksha to the Civil Hospital, Raichur and admitted them, but Gundappa who had received grievous injuries on his person died, and Marappa was treated as an inpatient. The witnesses and the persons who had assembled at the place of the incident, seeing Marappa and Gundappa with bleeding injuries, took these two persons in a riksha to the Civil Hospital, Raichur and admitted them, but Gundappa who had received grievous injuries on his person died, and Marappa was treated as an inpatient. The police after receiving the report of the death of Gundappa, the next day reached the civil Hospital, Raichur, and conducted the inquest proceedings and seized the blood-stained clothes of the deceased and sent the dead body for post-mortem examination and thereafter the police conducted the spot mahazar and seized the blood-stained earth from the scene of offence, and thereafter sent the blood-stained knife, blood-stated earth and other articles to the Chemical Examiner, Bangalore, and recorded the statements of the witnesses and after completing the investigation, placed the charge sheet before the First Class Magistrate, Raichur. ( 4 ) THE learned Magistrate, after recording the statements of the three witnesses to the actual commission of the offence, committed the accused to take his trial before the Court of Sessions, by his order dated 1-2-68, under Ss. 302 and 326 IPC. ( 5 ) THE learned Sessions Judge framed fresh charges under Ss. 302 and 326 IPC. The accused pleaded not guilty to the charges and claimed to be tried. The prosecution has examined six witnesses and no witness has been examined on behalf of the defence. ( 6 ) THE eye witnesses who speak to the commission of the offence are PW-11 Marappa who was injured, PW-12 Gaddeppa the younger brother of Marappa, PW-13 Lachman and PW-14 Mahaboob. The motive for the crime is alleged to be the strained relations that existed between the appellant on the one hand and Marappa and his relatives on the other. PW-7 Ramanna and PW-9 Hanumakka and other witnesses speak to this. It is in evidence that before the date of the incident, on two occasions, the appellant and his relatives had gone to the house of Marappa and demanded the hand of Nagamma the sister of Marappa to be given in marriage to the sister's son of the appellant. But on these occasions, the request of the appellant was turned down. It is in evidence that before the date of the incident, on two occasions, the appellant and his relatives had gone to the house of Marappa and demanded the hand of Nagamma the sister of Marappa to be given in marriage to the sister's son of the appellant. But on these occasions, the request of the appellant was turned down. Thereafter, the appellant the morning of the day of the incident, went to the house of Marappa along with hid sister and quarrelled with Marappa and his parents as to why they are not consenting to the marriage of Nagamma with the sister's son of the appellant, and at that time, the appellant and Marappa quarrelled with each other and beat each other, thereafter the appellant went away to his house. Thus, the appellant had a grudge against Marappa and his relatives and therefore, stabbed Marappa and his dose relative Gundappa. The appellant admits his first visit to the house of Marappa to demand the hand of Nagamma in marriage to his sister's son, but denies that he went to the house of Marappa for the second and third time. ( 7 ) THE points for determination are: 1. Whether there was ill-will between accused and PW-12 and his relatives? 2. Whether the appellant inflicted the injuries upon Gundappa, the deceased, and PW-11 Marappa? 3. Whether Gundappa died due to the injuries intlicted on hiru by the appellant? 4. Whether the conviction and sentence are sustainable? ( 8 ) FROM the evidence of these witnesses, it is clear that the relations between the parties had become strained due to the demand by the appellant for the hand of Nagamma to be given in marriage to his sister's son and the evasive replies given by Marappa, the brother of Nagamma, ana the appellant and the appellant therefore should have nursed a grudge against Marappa and the members oi his family. The first point is answered, accordingly. ( 9 ) EXHIBIT P-8 is the sketch of the locality showing the situation of the houses of the appellant and the other persons as well as the Hanuman temple. The first point is answered, accordingly. ( 9 ) EXHIBIT P-8 is the sketch of the locality showing the situation of the houses of the appellant and the other persons as well as the Hanuman temple. That has been prepared by PW-10 Channaveerayya, the supervisor of the P. W. D. He has stated that the house of the appellant and tke Hanuman temple are situated in a hillock in the said locality on the top ol the hillock, that there is a katta in front of the house of the appellant, that beyond this katta, there is a sudden fall and it is like a verticle form and to get down from the house of the appellant, one has to pass by the side of the boulders. It is also stated by him that the house of Marappa PW-11 is on a lower level towards the western side and the distance from the house of Marappa PW-11 and the place of occurrence may be 130 ft. It is also stated by him that from the edge of the Hanuman temple the place of the occurrence is about 56 ft. and persons standing in front of Hanuman temple can see the house of the appellant. It is further stated by him that in front of the Hanuman temple there is a tower belt and towards the west of the tower bell, there is a mercury light. From the evidence of this witness it is clear that PWs-13 and 14 who were standing near the Hanuman temple could see what was happening in front of the house of the appellant. Hence, PWs. 13 and 14 when they were standing in front of the Hanuman temple could see the appellant and PW.-11 who were standing in front of the house of the appellant. They both saw the appellant jumping to the ditch after he had struck the deceased and pw-11 and they both rushed and caught hold of the appellant. PW-12 gaddeppa also speaks to the same facts and that after stabbing, the appellant jumped into the ditch and that the knife in his hand slipped away from his hand, that at that time himself, PW-13, PW-14 and another Iranna caught hold of the appellant. PW-12 gaddeppa also speaks to the same facts and that after stabbing, the appellant jumped into the ditch and that the knife in his hand slipped away from his hand, that at that time himself, PW-13, PW-14 and another Iranna caught hold of the appellant. He also states that while he was proceeding towards the house of the appellant, he saw the appellant and Marappa who were exchanging hot words, and when he was 8 or 10 steps from the spot the appellant gave knife blows to Marappa and also to deceased Gundappa. There is no reason why their evidence should not be believed. ( 10 ) IT is next contended on behalf of the appellant that though according to the prosecution, one Tranna was also present at the time of the incident and he also joined the other PWs. in catching hold of the appellant and bringing him to the police station, he has not been examined though he is an eye witness to the commission of the crime and that if he had been produced before court, the real facts would have been established as to the innocence of the appellant. But the Public prosecutor filed an application in the trial court stating that this Iranna has been won over by the appellant and that he is not likely to support the case of the prosecution and speak to the real facts and that the prosecution does not propose to examine him. This, in our opinion, is sufficient explanation for the non-examination of the said Iranna and his non-examination cannot be said to weaken the prosecution case. ( 11 ) IT has therefore been proved that the appellant inflicted the injuries on the deceased Gundappa and PW-11 Marappa. ( 12 ) AFTER Gundappa died due to the stab injuries, the Medical Officer sent the report to the police and thereafter the police of Raichur conducted the inquest proceedings of the dead body and seized the bloodstained clothes and sent the dead body to the post-mortem examination. ( 13 ) THE evidence of PWs. 11, 12, 13 and 14 are fully corroborated by the evidence of these two witnesses. It is therefore held that the prosecution has proved that Gundappa died due to the injuries inflicted on him by the appellant. ( 13 ) THE evidence of PWs. 11, 12, 13 and 14 are fully corroborated by the evidence of these two witnesses. It is therefore held that the prosecution has proved that Gundappa died due to the injuries inflicted on him by the appellant. ( 14 ) IT is also the case of the prosecution that the appellant stabbed PW-11 and the deceased Gundappa and inflicted injuries on his own person, thereafter tried to jump down from the katta in front of his house and fell down in the ditch. When the appellant was produced by the prosecution witnesses, before the Sub-Inspector of Police, the police authorities sent the appellant to the hospital for treatment. The Medical officer PW-1, has stated that on the same night the appellant Thipanna was also brought to the hospital for treatment and he found the following three injuries on his person: ( 15 ) HE also states that all these injuries were simple in nature, and that injury No. 1 which was found on the right knee of the appellant could be caused by the knife M. O. 1. He states that injuries 2 and 3 could be caused by a blunt substance or even by a fall. He has issued the certificate ext. P-2. PWs. 12, 13 and 14 have stated that the appellant, after stabbing PW-11 and the deceased Gundappa inflicted injuries on his own person and thereafter tried to jump from the katta of his house but that the appellant while jumping fell down in the ditch which is in front of his house. There is no reason to disbelieve these statements. The prosecution has therefore explained the reason for the injuries sustained by the appellant on his own person. ( 16 ) CONSIDERING the nature of the injuries sustained by the deceased, the parts of the body where injuries have been inflicted and the weapon m. O. 1 which is a big and sharp weapon with a blade of six inches with which the injuries were inflicted, the learned Sessions Judge has convicted the appellant for an offence under S. 302 I. P. C. 29. It is elicited in the cross-examination of PW-11 that he has stated before the Magistrate as follows :-"at that time Gunaappa came there and asked the accused that why the accused had beat me so much and then Gundappa caught hold of the accused and then the accused beat the deceased Gundappa with a knife on his back. " ( 17 ) ON the basis of this statement, it is contended by Sri Bhujanga Rao, the learned counsel for the appellant, that there must have been a sudden fight which developed between the appellant on the one side and deceased gundappa on the other, and that though according to the prosecution, gundappa was related to PW-11, the prosecution has not made out the ill will entertained by the appellant against the deceased Gundappa. He relied upon the decision in Mohamad Ghouse v. State of Mysore, (1964) 1 Mys. L. J. 543, and contended that the offence committed by the appellant would fall under exception 4 to S. 300 and it amounted to an offence of culpable homicide not amounting to murder. In that case, the deceased Abdul Sattar who was witnessing the 'thamasha' in connection with the last day of muharram on the night in question, and the appellant came along with a number of persons shouting 'din Din' and pushed aside the people that had gathered there including the deceased Abdul Sattar and his friends. The appellant and his followers had no 'punja' with them at the time. The deceased objected to the act of shouting 'din din' without carrying 'punja'. Thereupon there was some exchange of hot words between abdul Sattar and the appellant. Thereafter, the appellant pulled out a knife and inflicted injuries on Abdul Sattar. Abdul Sattar cried out, walked a few peaces and fell down and thereafter, the appellant threw away the knife M. O. 1 and ran towards the taxi stand. The appellant hart also sustained a number of bleeding injuries on his person. Thereafter, the appellant pulled out a knife and inflicted injuries on Abdul Sattar. Abdul Sattar cried out, walked a few peaces and fell down and thereafter, the appellant threw away the knife M. O. 1 and ran towards the taxi stand. The appellant hart also sustained a number of bleeding injuries on his person. PW-14 found that the appellant fell down and stated that the appellant fell down almost exhausted near his car which he had parked near the taxi stand and the appellant was being chased by a large number of persons and he put into the car and brought him to the police station and the Sub-Inspector of Police recorded the bleeding injures on the person of the appellant and sent the appellant to the Victoria Hospital for treatment. The appellant was an inpatierit in the hospital for 14 days. The Doctor who treated him found the appellant in a critical condition and he was not able to make any statement. The duty doctor gave blood transfusion at the time he was admitted to the hospital. It was observed at page 550 as follows:"the only other question for consideration is whether the appellant is guilty of the offence of murder or of a lesser offence. Though the eye witnesses for the incident namely PW-15 Mohammed Ziauddin pw-16 Abdul Sameed. PW-17 Mohammed Hussain and PW-18 ameer do not admit that either Abdul Sattar or any one of his friends intlicted the injuries found on the person of the appellant, we have no doubt in our minds that the injuries were received by the appellant during the quarrel and at the place of the incident in which abdul Sattar died. Admittedly the appellant and the deceased were utter strangers' to each other. There was no motive for the appellant to commit the offence. There was no previous ill-will between the appellant and the deceased. It is during a sudden quarrel that ensued on account of the rude behaviour of the appellant to which deceased abdul Sattar took exception, a fight between them took place. There was absolutely no premeditation. In these circumstances, we are of opinion that the offence committed by the appellant falls under exception (4) of Sec. 300 of the IPC. and can only be of culpable homicide not amounting to murder. There was absolutely no premeditation. In these circumstances, we are of opinion that the offence committed by the appellant falls under exception (4) of Sec. 300 of the IPC. and can only be of culpable homicide not amounting to murder. " ( 18 ) THE decisions of the Supreme Court in A. I. R. 1957 S. C. 321 and A. I. R. 1957 S. C. 469 were followed. In A. I. R. 1957 S. C. 469, there was a fight between two parties. In para-4 of the judgment, it has been observed that "the prosecution had to admit that the deceased Lakha Singh had a small 'lota' about 4 feet long and Tara Singh had a 'dattar' which they used against the accused's party, with the result that Darshu and Jumman received injuries from Lakha Singh and Tara Singh and had wiped off the blood. " In para 16 of the same judgment, it has been observed as follows:"we may also consider that each one of the parties would have anticipated meeting the rival faction on the road and if such an eventuality took place, each one of them might have apprehended some trouble. For this purpose, it is but natural that they would have armed themselves in order to protect themselves. "in para-25, it is stated as follows:"the matter has to be viewed in this way, It is clear that there was no pre-meditation and therefore when the contending factions must accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passion, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence, exception 4 to S. 300 i. P. C. applies with the result that the offence is under S. 304 (Part I) I. P. C. " ( 19 ) IT is clear from the above observations that there was a fight between the two parties and that both parties were armed and further there was no undue advantage taken by the accused. In the case in A. I. R. 1957 s. C 24 also, there was a sudden free fight between the party of the accused and the party of the deceased. In the case in A. I. R. 1957 s. C 24 also, there was a sudden free fight between the party of the accused and the party of the deceased. The evidence established that the deceased party was also armed with danhgerous weapons and though the appellant had received only minor injuries the other accused had received incised wounds, which could have been caused only by a sharp edged weapon It was observed in para 7 of the judgment as follows:"in these circumstances, there can be no doubt, as is clear from the testimony of witnesses, that the deceased's party was also armed with dangerous weapons, and when two such contending parties, each armed with sharp edged weapons, clashed and in the course oi a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner. It would be otherwise if the deceased and his party were unarmed or armed with weapons which were not lethal or dangerous and the accused's party used sharp weapons. In that case, the accused must be deemed to have acted in a cruel or unusual manner. The elements of such action are absent in the present case. " ( 20 ) IT was therefore held that the case against the accused fell within the exception 4 of S. 300 I. P C. In this case also, the party of the deceased was armed with dangerous weapons. It is clear from the observation referred to above, that the accused must be deemed to have acted in cruel or unusual manner if the deceased and his party were unarmed or armed with weapons which were not lethal or dangerous and the party of the accused used sharp weapons. It is on the ratio of these two decisions of the supreme Court that their Lordships of this court held that Exception to S. 300 I. P. C applied to the facts of the case in Mohammad Ghouse v. State of Mysore. Since the accused in that case had also been inflicted with severe injuries, it was assumed that the members of the party of the deceased Abdul Sattar had also been armed with dangerous weapons, since otherwise, severe injuries found on the body of the accused could not be explained. Since the accused in that case had also been inflicted with severe injuries, it was assumed that the members of the party of the deceased Abdul Sattar had also been armed with dangerous weapons, since otherwise, severe injuries found on the body of the accused could not be explained. ( 21 ) IN this case, it is not the case of the defence that on that day the pws. 11, 12, 13 and 14 or the deceased Gundappa were armed with any weapons, least of all with any lethal or dangerous weapons. No such suggestion has been made in the cross-examination of the prosecution witnesses the accused has not also stated so in his statement made under S. 342 cr. P. C. It is not the case of the defence that the injured PW-11 or the deceased Gundappa or PWs. 12, 13 and 14 were armed with knives or clubs. In the two decisions of the Supreme Court referred to above, the party of the deceased were armed with dangerous weapons. In the decision of this Court, which followed the two decisions of the Supreme court, the court assumed that the party of the deceased were armed with dangerous weapons having regard to the serious injuries sustained by the accused himself. Hence, the principle of the three decisions is of no help to the appellant. He inflicted injuries on PW-11 and the deceased Gundappa with a knife which had a sharp edged blade of six inches length. According to the ease of the prosecution, Gundappa, a close relative of pw-11, only rushed to help PW-11 who had already been injured by the stab wounds inflicted by the appellant. In view of the observation of the supreme Court in A. I. R. 1957 S. C 324, it must be held that the accused must be deemed Do have acted in a cruel or unusual manner since the deceased and the PWs were unarmed and the accused used a sharp weapon m. O. 1. ( 22 ) THE learned Public Prosecutor has relied on Velayudhan Nair v. Emperor, 1937 MWN 1236 wherein it has been held that where the victim was not armed and the accused has taken undue advantage of the situation, Exception 4 to S. 300 I. P. C. will not apply even if there is provocation and there was a sudden fight during which the offence was committed. In that case, angry words passed between the accused and the deceased and the appellant did not go to the scene of occurrence with any intention of assaulting the deceased. There was obviously no pre-meditation about the crime. The deceased was stabbed as a result of a sudden quarrel. It was held that in order to bring the act within the exception, it must be shown that the accused did not take undue advantage or act in a cruel or unusual manner. It was' observed that when a person takes out a knife and stabs another person who is unarmed, he undoubtedly takes undue advantage and acts in a cruel manner, and that the acts of the accused cannot be treated as one falling within the Exception 4 to S. 300 IPC. ( 23 ) THE evidence of the eye witnesses is to the effect that it is the accused himself who inflicted the injury on his own right knee with M. O. 1, after he had stabbed PW. 11 and the deceased It was suggesed on behalf of the appellant that the injury must have been caused by a sharp weapon by one of the party of the deceased. It is not likely that if the accused had been attacked by the party of the deceased with a sharp weapon, such a minor injury as the one found on the right knee of the accused would have been caused. On the other hand, only serious injuries would certainly have been caused on the accused. Hence, it must be held that the case of the appellant does not come within the Exception 4 to S. 300 IPC. ( 24 ) HENCE, the conviction and sentence passed by the learned Sessions Judge are confirmed and the appeal is dismissed. --- *** --- .