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2019 DIGILAW 1565 (KAR)

Devappa v. State Through Talikoti Police Station

2019-07-04

ASHOK G.NIJAGANNAVAR, K.N.PHANEENDRA

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JUDGMENT : K.N. Phaneendra, J. This appeal is preferred against the judgment of conviction and order of sentence passed by the trial Court against the appellant in convicting him for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.50,000/- and out of the said fine amount, an amount of Rs.45,000/- was ordered to be paid to PW-1 who is the wife of the deceased. 2. The brief factual matrix of the case is that PW-1 Basamma has lodged a police report as per Ex.P-1 stating that, her husband Basavaraj was doing contract work pertaining to the panchayat of Maskanal village in Muddebihal taluk, Vijayapur district. There was some difference of opinion between the accused and the deceased Basavaraj with regard to the deceased having not executed the work of digging 'water source pond for agriculture' in the land of the appellant specifically known as (Krushi Honda). In this context, he was often quarreling with the deceased. However, the deceased was not worried about the said quarrel of the appellant. In this context, it is alleged that on 31.01.2010 when the deceased came from Talikoti village in the evening, and after changing his dress he went near Sangameshwar temple in the said village and sat on a Katta (a stone built sitting arrangement). At that time, some other persons of the same village were also sitting and accused was also sitting in the said place and he had an axe with him. After deceased went there the accused in fact started quarreling with the deceased, abused him and also assaulted the deceased with an axe and gave one strong blow on the left side neck of the deceased. Due to the impact of the said injury the deceased Basavaraj died on the spot. The said incident was seen by many number of witnesses including the wife and mother of the deceased. On the above said allegations the police have investigated the matter by registering a case in Crime No.21/2010 for the offence punishable under Section 302 and 504 of IPC. The said incident was seen by many number of witnesses including the wife and mother of the deceased. On the above said allegations the police have investigated the matter by registering a case in Crime No.21/2010 for the offence punishable under Section 302 and 504 of IPC. A charge sheet came to be filed for the above said offences and accused was arrested on 08.03.2010 and it is made clear by the learned counsel for the appellant-accused and the learned Additional SPP that, he has been in the custody since the date of his arrest. 3. After committal proceedings and after securing the presence of the accused, the trial Court has framed charges against the appellant for the above said offences. As the accused pleaded not guilty, proceeded to record the evidence on the side of the prosecution. 4. In order to prove the guilt of the accused, the prosecution examined as many as 19 witnesses PW-1 to PW-19 and got marked Exs.P-1 to P-20 and also produced material objects M.Os.-1 to 8. Very peculiarly enough, some of the prosecution witnesses who are the eye witnesses to the incident and other circumstantial witnesses have not been cross-examined by the counsel for the accused. The accused was also examined under Section 313 of Cr.P.C. Except denying the case of the prosecution, no special defence was taken by the accused, nor he examined any witness on his side. Relying upon the un-controverted evidence of the prosecution witnesses, the trial Court has come to the conclusion that the prosecution has proved the case beyond reasonable doubt and recorded the judgment of conviction and passed the sentence as noted supra. 5. On careful perusal of the evidence of the prosecution, the material witnesses have not been cross-examined. In this background the learned counsel for the appellant strenuously contended before this Court at the threshold of his arguments that it is a fit case for remanding the matter to the trial Court. However, after taking us through the evidence of the prosecution witnesses, the counsel changed his version and submitted that the accused has already been in custody for more than nine years, and the evidence of the prosecution witnesses discloses that, the incident happened in a spur of moment and there was no pre-meditation on the part of the accused and he never come to the spot with an intention to kill the deceased. The incident happened after the quarrel between the deceased and the accused. Therefore, he contended that even accepting the uncontroverted testimony of the prosecution witnesses the offence may not fall under the provisions of Section 302 of IPC. At the most it may fall under Section 304 Part-I or II of IPC which are not punishable compulsorily with imprisonment for life and the discretion is vested with the Court depending upon the facts and circumstances of the case to impose lesser punishment. He contended that though he argued on the merits of the case, but he confined himself with regard to the sentence passed by the trial Court and request the Court to alter or reduce the sentence suitably commensurate with the alleged offence committed by the accused by convicting him either under Section 304 Part-I or Part-II of IPC. 6. The learned counsel also submitted before this Court that the accused is not an antisocial element and he is having a family, parents and children and he has to take care of his family members. There are no antecedent allegations against the appellant. He was throughout a law abiding citizen of the society and there was no unpleasant incident occurred in his lifetime except the present one. May be due to some enragement and due to some quarrel between the deceased and himself he might have lost his mental control which resulted in the incident. Therefore, taking the entire surrounding circumstances he may be sentenced to the period already undergone by him. Therefore, the learned counsel without insisting the Court to remand the matter and also submitted to dispose of the matter with reference to the sentence passed by the trial Court. 7. The learned Addl. S.P.P. strenuously contended that it is an intentional murder done by the accused and he had been to the spot with fully prepared with an axe and he gave a strong blow on the neck of the deceased which virtually cut all the arteries which resulted in the death of the deceased. He further contended that, it is not a fit case where the sentence is to be modified. The offence squarely falls under the provisions of Section 302 of IPC. Therefore, at the most the Court may remit the matter to the trial Court, if it feels that liberty has to be given to the accused to contest the proceedings. 8. He further contended that, it is not a fit case where the sentence is to be modified. The offence squarely falls under the provisions of Section 302 of IPC. Therefore, at the most the Court may remit the matter to the trial Court, if it feels that liberty has to be given to the accused to contest the proceedings. 8. In the wake of the above said submissions of both the counsels, we feel it just and necessary to look into the evidence on record to find out whether the evidence lead by the prosecution is sufficient to hold that the offence falls under Section 302 of IPC or whether it falls under Section 304 Part-I or II of IPC so as to reduce the sentence. If not, whether it is a fit case to remit the matter to the trial Court for providing opportunity to the appellant to contest the proceedings. 9. The prosecution witnesses in brief have stated, particularly, PW-1 and 3 to 7 are the eyewitnesses to the incident. They have categorically supported the case of the prosecution. On careful perusal of the evidence of these witnesses coupled with the other witnesses there is no much dispute to arrive at conclusion that the deceased died a homicidal death. The doctor examined by the prosecution PW-11 Dr. Shivayogi has categorically stated that, there was one injury on the neck of the deceased which caused the death of the deceased. He has given the opinion as per Ex.P-8 the postmortem report stating that, the death was due to hemorrhagic shock as a result of chopped wound sustained over the jaw. The evidence of the doctor is also not controverted. He has also stated that, the said injury could be caused by assaulting a person with the help of M.O.-1 axe, as per his opinion Ex.P-9. The inquest witnesses and also the eyewitnesses have also deposed before the Court that they saw the accused assaulting the deceased with the axe and the deceased sustained severe injury to his neck and died on the spot. Therefore, there is no much dispute with regard to the homicidal death of the deceased. 10. Now the question arises whether the evidence of the prosecution even taken as it is, on the face value, whether it is sufficient to hold that, it falls under Section 302 of IPC. Therefore, there is no much dispute with regard to the homicidal death of the deceased. 10. Now the question arises whether the evidence of the prosecution even taken as it is, on the face value, whether it is sufficient to hold that, it falls under Section 302 of IPC. PW-1 Basamma has stated about the incident as to how it has happened. On that day the deceased came to the house in the evening, this witness (PW-1) and Neelamma both were sitting near the scene of offence, that is, the Katta in front of their house and Ningamma another sister of PW-1 was washing utensils. Accused was also sitting in front of the Katta of the temple having axe in his hand. These witnesses also witnessed deceased Basavaraj going there and the accused started abusing the deceased that he will see him and gone near Basavaraj and asked him why he has not dug Krushi Honda in the land of the accused. The deceased replied that it will be late to do the Krushi Honda to the land of the accused. By hearing that, the accused assaulted the deceased with an axe on the left side of the neck and deceased sustained bleeding injury on the left side of the neck and succumbed to the injury on the spot itself. This particular aspect of the incident has been reiterated by all the other eyewitnesses. Therefore, it goes to show that the accused did not came to the spot afterward. 11. The arrival of the deceased, with the axe with an intention to kill the deceased. But the evidence goes to show that the accused was already present near the temple. However, he was having an axe with him. Some other villagers were also on the said spot and these PWs.1, 3 and 4 were also doing their household work in front of their house. So in that particular scenario it discloses that the accused did not come there fully prepared with an axe, he was already sitting on the spot. It cannot be imagined that he would expect the deceased to come to that particular place at that particular time. It appears it was a coincidence that the deceased also came to the spot at that time a small quarrel taken place between the accused and the deceased. It cannot be imagined that he would expect the deceased to come to that particular place at that particular time. It appears it was a coincidence that the deceased also came to the spot at that time a small quarrel taken place between the accused and the deceased. Though these witnesses have not stated about the details of the quarrel taken place between the accused and the deceased, but they have categorically stated that the accused questioned the deceased first about Krushi Honda, which ought to have been dug by the deceased in the land of the accused and thereafter, the deceased very reluctantly gave answer that the time was over to dig the Krushi Honda in the land of the accused. Perhaps due to enragement, the accused must have assaulted the deceased with the axe on the neck. The so called eyewitnesses also perhaps did not expect the said situation, and the incident might had happened in a spur of moment. That may be the reason that, though eye witnesses present they never went to rescue the deceased. 12. The above said circumstances also should be taken into consideration with reference to the conduct of the accused. As we have said that, the accused was already there on the spot with the axe with him. Whether he had taken the axe at that particular spot only with a sole intention to assault the deceased or in a very usual manner he had been to that spot and casually there with the axe, is not made known to the Court in the evidence of any one of the witnesses. On the other hand, there was only one injury, though the injury was very serious but the accused did not assault the deceased repeatedly though he had opportunity to do that. 13. Under the above said circumstances, the Court has to examine as to what offence that the accused has actually committed. In this background, one has to examine under what circumstances the offence would fall under Section 302 or under Section 304(I)(II) of IPC. Section 299 of IPC refers culpable homicide and Section 300 refers to the murder. 13. Under the above said circumstances, the Court has to examine as to what offence that the accused has actually committed. In this background, one has to examine under what circumstances the offence would fall under Section 302 or under Section 304(I)(II) of IPC. Section 299 of IPC refers culpable homicide and Section 300 refers to the murder. Section 300 says except in the cases where excepted, under Section 300 only other cases fall under Section 299 i.e. to say if a person causes the death by doing an act with an intention of causing death or with the intention of causing such bodily injury as is likely to cause the death, or with the knowledge that he is likely by such act to cause death then it amounts to culpable homicide. However, Section 300 has several exceptions to this provision. If the act of the accused falls under any of the category as excepted under Section 300 then the offence would not fall under Section 300 punishable under Section 302 of IPC. Therefore, the Court has to examine whether the act of the accused in the above said circumstances falls under any of the exception under Section 300 and in turn it falls under Section 304(I) & (II) IPC. 14. It is also worth to refer here the provision of Section 304 of IPC, which reads thus: 304. Punishment for culpable homicide not amounting to murder.- 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 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. (emphasis supplied) 15. (emphasis supplied) 15. In order to attract Section 304(I) if a person commits culpable homicide not amounting to murder that means to say if the act of the accused falls under any of the exceptions enumerated under Section 300 of IPC in such an eventuality it attracts Section 304(I) of IPC i.e. to say if the accused committed culpable homicide not amounting to murder which falls under Section 300 then punishment shall be imprisonment for life or imprisonment or description of a term which may extend to 10 years and also shall be liable to fine, depending upon the facts and circumstances of each case. Suppose if act was done with an intention to causing death or likely to cause death in such an eventuality the offence falls under Section 304(I) of IPC is attracted. 16. In order to attract Section 304(II) of IPC, if the accused causes death of a person but it was only the act was done with a knowledge that it is likely to cause the death but without any intention to cause the death. Therefore, in the absence of intention, but only in the presence of knowledge that the death occurred by his act but he never really intended to cause the death of a person. In such an eventuality it falls under Section 304(II) of IPC. 17. We have adumbrate the facts of this particular case in the light of the above said provisions of IPC, to ascertain whether the act of accused falls under Section 304(I) or (II) of IPC. 18. We referred to Section 300 earlier, now we have to examine whether the act of the accused falls any exception of Section 300 or it is only the knowledge of the accused with that only he has caused the death of the deceased. Here the accused was having an axe with him. He has selected the vital part of the body of the deceased i.e. neck and he inflicted such severe injury the death was instantaneous on the spot itself. The weapon used by the accused is heavy cutting weapon and the part selected by the accused is also vital part of the body of the deceased. He has selected the vital part of the body of the deceased i.e. neck and he inflicted such severe injury the death was instantaneous on the spot itself. The weapon used by the accused is heavy cutting weapon and the part selected by the accused is also vital part of the body of the deceased. Therefore, if a person selects such a vital part of the body using heavy weapon if it was only a knowledge of the accused it can be said that, the accused has caused the said death only with the said knowledge that his act would be sufficient to cause the death of a person. The intention of the parties have to be gathered from surrounding circumstances. of course the accused has used the weapon in presence of the other eyewitnesses on the spot. He dares to assault the deceased in such a manner, which virtually cut the major portion of the neck of the deceased. Therefore, if really he had no intention to cause the death of the deceased, he would not have assaulted the deceased with such force, which was sufficient to cut the major portion of the neck of the deceased. Otherwise, he would have assaulted on some other portion of the body if he had really not intended to kill the deceased. Therefore, we are of the opinion that there was an intention to commit such acts by the accused on the deceased. Though the intention is established by the prosecution but the Court also has to examine under what circumstances such an act has been done by the accused with an intention. In our opinion the exception to Section 300 i.e. 4th exception would come to the help in this case where under Section 300 Exception 4 says: 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 is immaterial in such cases which already commit the first assault. 19. It is immaterial in such cases which already commit the first assault. 19. If the facts and circumstances are appreciated in proper perspective with reference the above said exception evidence placed before the Court enumerates that, the accused did not go to the deceased to his house or started quarrel and assaulted that man, if really he had any such premeditation to kill the deceased, but here the accused was already there near the temple to which place the deceased himself had gone to the particular place. Therefore, it cannot be said that there was a premeditation on that particular day or time to commit the murder of the deceased. The evidence further discloses that, after the deceased came to that particular place near the temple in presence of eyewitnesses some quarrel took place. The accused asked the deceased about digging of a Krishi Honda in the land of the accused and in this context, some quarrel had taken place and thereafter only the accused took axe and assaulted the deceased. Therefore, it must be any sudden quarrel between the deceased and the accused and in a heat of passion the accused must have assaulted the deceased. In our opinion when so many eyewitnesses were present the relatives of the deceased were also present it cannot be said that the accused has taken undue advantage of the situation and acted in a cruel manner because he has inflicted only one blow causing of course a serious injury. 20. Therefore, under the above said facts and circumstances of the case, in our opinion the above said act of the accused falls under Exception 4 to Section 300 IPC which in turn is sufficient to hold that act of the accused with all certainty falls under Section 304(I) but not under Section 304(II) as argued by the learned counsel. 21. Having held that the offence falls under Section 304(I) which offence is punishable with imprisonment for life, or imprisonment for 10 years with fine, we have to examine what would be the appropriate punishment commensurate with the offence committed by the accused. In this background the conduct of the accused and his life background has to be taken into consideration by the Court. There is no dispute whatsoever raised by the learned Addl. SPP with regard to the background of the accused. In this background the conduct of the accused and his life background has to be taken into consideration by the Court. There is no dispute whatsoever raised by the learned Addl. SPP with regard to the background of the accused. No material is placed before trial Court or before this Court to show that the accused appellant is an antisocial element and he has got any criminal background and any bad antecedent reported against him. It is also evident that, the accused is an agriculturist he has agricultural lands and he sought for digging Krishi Honda that also shows that he is an agriculturist to maintain his family. There is no dispute also by the prosecution that the accused has to maintain his family. Therefore, looking to the above said facts and circumstances the imposition of maximum punishment of life imprisonment is not warranted. Considering the facts and evidence discussed above in this particular case we are of the opinion imposition of punishment of 10 yeas and a fine of Rs.1,00,000/- would be appropriate to the act committed by the appellant. 22. In the above said circumstances, we do not want remit the matter to the trial Court as requested by the learned counsel for the purpose of trial as it would be added humiliation to the accused if the trial and further appeal would take the whole life time of the accused and for that period the appellant has to be in jail. In order to avoid all these delays in this case, we prefer to dispose of the matter here itself as agreed by the learned counsel with all responsibility and instructions by the accused. Hence we proceed to pass the following: ORDER The appeal is partly allowed. The judgment of conviction and order of sentence passed by the trial for offence punishable under Section 302 of IPC is hereby set aside. However, we convict the accused-appellant for the offences punishable under Section 304(I) of IPC the accused/appellant is sentenced to undergo imprisonment for 10 years and to pay a fine of Rs.1,00,000/- with default sentence of 3 years, if he fails to pay or deposit the money before the trial Court. If any fine amount deposited out of the fine amount a sum of Rs.95,000/- is ordered to be paid to the wife of the deceased PW.1. If any fine amount deposited out of the fine amount a sum of Rs.95,000/- is ordered to be paid to the wife of the deceased PW.1. Appellant is entitled for set off under Section 428 of Cr.P.C. for the period of imprisonment undergone. Registry is directed to send a copy of this judgment to the concerned jail authorities and return the records to the trial Court with a copy of this judgment.