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2017 DIGILAW 1201 (KAR)

Hanmantha S/o Sabanna Telgar v. Sate of Karnataka

2017-09-04

K.N.PHANEENDRA, N.K.SUDHINDRARAO

body2017
JUDGMENT : K.N.PHANEENDRA J., 1. The present appeal is preferred calling in question the judgment of conviction and sentence passed by the District & Sessions Judge, Yadgir in S.C. No.55/2010, wherein the accused/appellant is convicted for the offence punishable under section 302 of IPC sentencing him to undergo imprisonment for life and to pay a fine of Rs.25,000/-. 2. We have heard the learned counsel for the appellant Sri Jambayya Swamy Hiremath and Additional State Public Prosecutor for respondent-State. 3. We have carefully perused the evidence adduced by the prosecution before the Trial Court, both documentary and oral and bestowed our attention in order to reevaluate the materials on record. 4. The brief factual matrix that emanate from the record are that, the accused Hanamanth is none other than the elder brother of deceased Venkatesh. The accused and deceased and other family members together have been residing in the village called Badiyal in Yadgir Taluk and District. The complainant Tayamma is none other than the wife of Monappa - another brother of accused and deceased. The accused had four brothers i.e. (1) Bheemshappa, (2) deceased Venkatesh, (3) Anjaneya and last one is Monappa. It is the case of the prosecution that, the brothers had 3 acres of land to their credit. They all jointly sold the said property for consideration and each have got Rs.70,000/- to their share. All have taken that amount and it is alleged that the deceased Venkatesh spent some money out of Rs.70,000/- and kept the remaining amount in the bank in the name of his son. However, accused Hanamanth has kept his money safely with him. Further case of the prosecution is that the deceased Venkatesh often used to demand for money with the accused, that the accused Hanamanth was refusing to pay on the ground that, the deceased Venkatesh though was having money kept in the name of his son is unnecessarily demanding money with the accused. 5. In this background, it is alleged that on 08.08.2009 at about 08.30 p.m. accused was sitting in-front of the hut of the complainant Tayamma and the said Tayamma and her mother-in-law by name Sabawwa/PW-21 were there inside the house, they were engaged in cooking food inside the house. At that time, they heard the quarreling voice between deceased Venkatesh and the accused Hanamanth. At that time, they heard the quarreling voice between deceased Venkatesh and the accused Hanamanth. They came out and observed that, the said Venkatesh was demanding Rs.5,000/- with the accused Hanamanth for the purpose of school fee of his son. The accused Hanamanth questioned the Venkatesh as to why he unnecessarily demanding money, though he has got sufficient money in the name of his son. In spite of that it appears that, the said Venkatesh has started quarrelling with the accused Hanamanth in demand of said money. Being dissatisfied with the demand of deceased Venkatesh, it is alleged that the accused Hanamanth suddenly went inside the house of Tayamma and picked up an axe lying below the cot and came out from the said hut and mercilessly assaulted on the back portion of the neck, also on legs and caused severe injuries to Venkatesh, who died instantaneously. 6. PW-16 Tayamma who is an eye witness to the incident has lodged a complaint making allegation in the above said manner before the PSI/PW-19 and in turn he registered a case in Crime No.87/2009 under Section 302 of Indian Penal Code and dispatched the FIR to the jurisdictional Magistrate. PW-20 Ramanna has taken over the further investigation and after completion of the investigation, he laid a charge sheet against the accused for the offence punishable under Section 302 of IPC. 7. The accused was arrested on 09.08.2009, he was produced before the jurisdictional Magistrate and remanded to judicial custody. It is seen from the records that, since the date of arrest, he has been in custody and he has undergone almost 8 years in jail. 8. The learned Sessions Judge after securing the accused framed the charge under Section 302 of IPC, as the accused pleaded not guilty, he was put on the trial. The prosecution in order to prove the guilt of the accused examined as many as 21 witnesses as PWs- 1 to PW-21 and got marked Exs.P-1 to P-20 and material objects MOs-1 to MO-10. The accused was also examined under Section 313 of Cr.P.C. The accused in fact has not placed any specific defence except denying the total case of the prosecution. The accused was also examined under Section 313 of Cr.P.C. The accused in fact has not placed any specific defence except denying the total case of the prosecution. Therefore, the learned Sessions Judge after appreciating the oral and documentary evidence on record came to the conclusion that, the prosecution has proved the case beyond reasonable doubt, as such it recorded the judgment of conviction and sentenced the accused accordingly, as stated supra. 9. After hearing the learned counsel for the appellant and learned Additional State Public Prosecutor and going through the materials available on record produced by the prosecution before the Trial Court, the point that would arise for the consideration of this Court is :- 1. Whether the appellant has made out any reasonable or substantial ground to interfere with the judgment of conviction and sentence passed by the Trial Court? 10. In order to answer the above said point, it is just and necessary for us to have the brief cursory look at the evidence of the witnesses adduced by the prosecution before the Trial Court. PWs-1 and 5 are the witnesses to inquest panchanama marked at Ex.P-1 and seizure panchanama Ex.P-2 under which MO-10 blood stained lungi of the accused has been seized, Ex.P-3 seizure mahazar under which the cloths of the deceased were seized as MOs-2 to 9. These two witnesses though turned hostile nevertheless they have stated about the inquest proceedings conducted by the police. PWs.2 to 4 are the witnesses who have received the information from PW-16 with regard to the commission of the offence by the accused. PW-6 is a Doctor by name Naganna who has conducted the post mortem examination on the dead body of the deceased and he issued post mortem examination report as per Ex.P-7. PW-7 is the Assistant Engineer, who prepared the sketch as per Ex.P-8. PW-8 is the Engineer who has stated in his evidence that there was electricity supply at the time of incident, his report is marked at Ex.P-9. PW-9 is the police constable who carried the FIR (Ex.P- 17) to the jurisdictional Magistrate. PW-10 is the head constable carried the dead body for post mortem examination from the spot, after post mortem examination, he brought the cloths of the deceased and produced the same before the investigating officer for seizure under Ex.P-3. PW-11 is the police official who carried some articles to FSL. PW-10 is the head constable carried the dead body for post mortem examination from the spot, after post mortem examination, he brought the cloths of the deceased and produced the same before the investigating officer for seizure under Ex.P-3. PW-11 is the police official who carried some articles to FSL. PW-12 is the wife of the deceased, who also turned hostile to the prosecution, she pleaded her ignorance with regard to the actual death of her husband. PW-13 is the brother of PW-12 he also turned hostile. PWs-14 and 15 are the police constable carried some articles to FSL and also watched the dead body. PW-16 is the star witness to the prosecution i.e. complainant-Tayamma who actually witnessed the incident. PW.17 is the Secretary Gram Panchayat of Badiyal village who issued Ex.P-14, which establishes the existence of the hut in the name of the husband of the complainant. PW-18 is another brother of the deceased, who also turned hostile. PW-19 who registered a case in crime No.87/2009 and dispatched the FIR to the jurisdictional Magistrate. PW-20 is the investigation officer. PW-21 is the mother of the deceased, who also turned hostile to the prosecution. 11. The case of the prosecution is that on the date of the incident, PWs-16 and 21 were there in the house and PW-16 has actually witnessed the incident and thereafter she disclosed the same before the PWs-2 to 4. Except the evidence of PW-16, we have no other evidence because PW-21 mother of the deceased also turned hostile to the prosecution, she has categorically stated that, on that day she was not in the house. When she came back, she saw the dead body of her son in front of the house of PW-16/Tayamma. PWs-2 to 4 have also turned hostile, they never supported the case of the prosecution even to the effect that they have heard the news about the death of the deceased and that the PW-16 is an eye witness to the incident. Therefore, we are left with the evidence of PW-16. The other witnesses who are examined by the prosecution are insignificant except PWs-16 and 21. Further added, the circumstance of recovery of blood stained article, lungi at the instance of the accused is also not supported by the witnesses. Therefore, we are left with the evidence of PW-16. The other witnesses who are examined by the prosecution are insignificant except PWs-16 and 21. Further added, the circumstance of recovery of blood stained article, lungi at the instance of the accused is also not supported by the witnesses. However, the investigation officer PW-20 has categorically stated that after arrest of the accused, he recorded the voluntary statement of the accused as per Ex.P-18 and recovered the blood stained lungi at the instance of the accused. He also stated that he seized MOs-2 to 9 which are the blood stained cloths of the deceased under Ex.P-3. Even accepting that these cloths contains the blood stains of the deceased as per FSL report which is marked at Ex.P-19 and there is no connection of the accused to these articles, nowhere the accused has given any explanation so far as the said lungi recovered from the accused. In this background, the Court has to see whether the prosecution has proved the case beyond reasonable doubt on the basis of these two important aspects i.e., evidence of an eye witness and the recovery of incriminating articles at the instance of the accused. 12. There is no doubt that the Tayamma has no specific grievance against the accused or the deceased, she is none other than the close relative of the accused and deceased i.e., the brother’s wife. There is no suggestion in the cross-examination that as to why she has to depose falsehood before the Court. In the examination-in-chief she has stated categorically that on that particular date of incident, she saw the accused assaulting the deceased with an axe on the backside of the neck of the deceased and legs. She categorically stated that on that date, the accused and the deceased were just out side her house and the accused was demanding money with the deceased, while talking with each other, suddenly the accused went inside her house stating that, deceased has been demanding money often and often, therefore he wants to teach him lesson and kill him, by saying so, he picked up an axe which was lying under a cot inside hut and came out side and assaulted on the neck of the deceased Venkatesh and also assaulted on the hands and legs of the deceased and caused severe injuries. She categorically stated that herself and PW-21/Sabawwa were there in the house but as we narrated above PW-21 totally turned hostile to the prosecution, not supported the case in any manner. PW-16 further stated that the accused has assaulted the deceased in an angry manner, as the deceased has demanded money from him. Thereafter, she went out side the house and informed the same to PWs-2 to 4 but they also turned hostile to the prosecution. Looking to the above evidence of PW-16 there is no reason to disbelieve her evidence. Therefore, in this background, the Court has to ascertain the cross-examination of this lady as to how the incident actually happened on that day. 13. It is admitted by her that the accused Hanmanth has taken religious voe, he has been residing separately as a sanyasi. Sabawwa PW-21 is the lady actually taking care of the family of PW-16. It is admitted that, after selling the land by all brothers, they have apportioned the consideration amount equally and accused has kept his money in the name of his son. It is also stated by her that deceased was a drunkard and addicted to alcohol and he had spent some money out of the consideration amount. It is also suggested and admitted that, the deceased often used to come to the house in a drunken state and used to abuse the members of the family. It is also admitted that, the deceased was not living with his wife and there was quarrel between the husband and wife. It is also specifically admitted that the accused has taken religious voe and the deceased was lavishly spending the money. Speaking specifically about the incident, date, it is stated that, it was dark in the night and the accused and deceased quarreled each other and thereafter, accused went inside the house and brought an axe and assaulted the deceased. It is suggested to this lady that she was not present at that time. It is suggested that she did not see any incident at all but she denied the said suggestions. On perusal of the cross-examination what it reveals is that, the presence of this witness is not denied because it is suggested that she was very much present and she saw the deceased lying on the ground and it is only suggested that she did not see who assaulted the deceased. On perusal of the cross-examination what it reveals is that, the presence of this witness is not denied because it is suggested that she was very much present and she saw the deceased lying on the ground and it is only suggested that she did not see who assaulted the deceased. Therefore, it goes without saying the presence of this witness and relationship between the parties are categorically admitted. No suggestion has been made as to why this witness has to give falsehood evidence against the accused. However, a casual suggestion has been made that, the said accused was not giving any money to these persons, she has deposing falsehood against him. The said suggestion has also been denied. 14. Looking to the above said facts and circumstances, it clearly discloses that, the accused had no previous bad antecedent to his credit, taking religious voe by him also fortifies that he has no grievance against anybody. Perhaps may be the reasons that this man-accused has already taken religious voe and he is keeping all the money with him without spending on of the relatives, that may be the reason, the deceased must have demanding the money from the accused, for which the accused was not willing to part with any portion of his money. 15. In this context the over all reading of the cross-examination reveals that often the accused and the deceased were quarreling with each other, deceased was often demanding the money. On that day also it appears that, he came to the house of Tayamma in a drunken state and started talking with the accused and demanded money of Rs.5,000/-. The evidence of Tayamma also discloses that when deceased came to the house of Tayamma and started talking with the accused Hanumant, there was no weapon with the accused and he never intended to assault the Venkatesh at the initial stage. Perhaps after the exchange of words and perhaps after the accused could not tolerate the wordings of the deceased he must have taken a decision to teach him a lesson. Therefore, he went inside the house and brought an axe and assaulted the deceased. In this context, the blow must have fell on the neck of the deceased who lost his life. 16. By over all looking to the above said materials, the homicidal death of the deceased cannot be disputed by anybody. Therefore, he went inside the house and brought an axe and assaulted the deceased. In this context, the blow must have fell on the neck of the deceased who lost his life. 16. By over all looking to the above said materials, the homicidal death of the deceased cannot be disputed by anybody. The death was due to injuries sustained and the blows given by accused alone. The question arises whether the accused has really intended to do away with the life of the deceased. We cannot find fault with the judgment of the Trial Court in convicting the accused but we doubt that whether offence actually falls under Section 302 of IPC. In this background, the evidence of PW-16 if it is carefully analyzed there is some material to show that prior to the accused assaulting the deceased, there was a quarrel between the brothers and it is also evident that deceased was drunk at that particular point of time. Therefore, accepting the above said circumstance, when there is no previous bad antecedent alleged against the accused and even after the alleged incident, he did not try to abscond, immediately on the same day he was arrested and during the course of the trial, he never made any attempts to escape. All these factors clearly discloses that the incident must have happened in a spur of moment due to exchange of words between the accused and deceased. In such circumstances, we are of the opinion that, though the accused has committed such an act but it may not be proper to convict the accused for the offence punishable under Section 302 of IPC. In this background, we have to look into Section 304 Part- II of IPC. Whether the act of the accused falls under the said provision. In this background, we have to look into Section 304 Part- II of IPC. Whether the act of the accused falls under the said provision. The said provision under Section 304 Part-II reads as under :- “Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or 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 extent 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.” Para I: Punishment—Imprisonment for life, or imprisonment for 10 years and fine—Cognizable—Nonbailable— Triable by Court of Session-Noncompoundable. Para II: Punishment—Imprisonment for 10 years, or fine, or both—Cognizable—Non-bailable—Triable by Court of Session-Non-compoundable. 17. The first part of the provision concentrates with regard to what amounts is culpable homicide amounts to murder. It is clearly stated that if the act by which the death is caused with an intention of causing death or causing such bodily injuries, as is likely to cause the death. Therefore, in order to attract Section 304 Part-I, the intention of the accused play a dominant role, the intention must be to cause the death or intention must be to cause such bodily injuries as is likely to cause the death. If we read, the second part of the Section, it clarified that, the accused has committed such an offence without there being any intention to cause death or cause such bodily injuries though he had knowledge that his acts are likely to cause the death. Therefore, here from the evidence of PW-16 it is clear that at the time of quarreling with each other, there is no whisper that the accused had any intention to cause the death of deceased as he has not armed. But after quarrel being started and demand made by the deceased, suddenly accused went inside the house and brought an axe and assaulted the deceased. But after quarrel being started and demand made by the deceased, suddenly accused went inside the house and brought an axe and assaulted the deceased. Therefore, we are of the opinion that though some materials are placed by the prosecution, but it may not be so sufficient to draw a certain inference that the accused had really intended to cause the death of his brother. Under the above facts and circumstances, we are of the opinion that considering the previous antecedents of the accused and his saintly behavior and relationship between the parties and there was no earlier quarrel between other brothers etc., we are of the opinion that, the offence falls under Section 304 Part-II of IPC and not under Section 302 or 304 Part-I of IPC. Therefore, the point for consideration is answered partly in the affirmative. In view of the above said discussion, we proceed to pass the following : ORDER Criminal Appeal is partly allowed. The judgment of conviction and sentence passed by the Trial Court for the offence punishable under Section 302 of IPC is hereby set aside. However, the accused/appellant is convicted for the offence punishable under Section 304 Part-II of IPC and sentenced to undergo imprisonment of 08 years and the period already undergone by the accused (08 years 26 days) to be treated as sentence imposed upon him. By exercising the powers under Section 357 (3) of Cr.P.C., we direct the accused to pay compensation of Rs.25,000/- to the wife of the deceased, PW- 12/Narsamma. If that amount is deposited, the same shall be paid to PW-12/Narsamma. If not, the said amount has to be recovered in accordance with law by the concerned Court. Registry is hereby directed to send the operative portion of the judgment to the concerned jail Superintendent, for release of the accused forthwith if he is not required in any other case.