Partly allowed

Murudegowda @ Murudappa @Gowda v. State of Karnataka

Karnataka HC25 Nov 2022CRL.A/1955/2018

Case brief

AI extract

What is this about?

In an appeal against conviction for murder, the High Court held the case fell under culpable homicide not amounting to murder based on grave and sudden provocation regarding wage disputes, modifying the sentence.

What did the court decide?

Conviction for Section 302 IPC set aside; accused convicted under Section 304 Part-I IPC and sentenced to 10 years rigorous imprisonment.

Murudegowda @ Murudappa @Gowda Vs State of… — Murder and Culpable Homicide | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF NOVEMBER, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE MRS. JUSTICE K. S. HEMALEKHA

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CRIMINAL APPEAL NO.1955 OF 2018

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BETWEEN :

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MURUDEGOWDA @ MURUDAPPA @ GOWDA, S/O. BASAVARAJU, AGED ABOUT 26 YEARS, RESIDING AT HODEKALLU VILLAGE, BYATHA POST, MURUDAGERE HOBLI, TUMAKURU TALUK & DISTRICT.

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... APPELLANT

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(BY SMT. BUDRUNNISA, ADV.)

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AND:

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STATE OF KARNATAKA BY KENGERI POLICE STATION BENGALURU REPRESENTED BY S.P.P. HIGH COURT OF KARNATAKA BENGALURU-560 001.

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… RESPONDENT

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(BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION 25-7-2018 AND ORDER OF SENTENCE DATED 267-2018 PASSED BY THE LXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-69) IN SESSIONS CASE NO.1564 OF 2012 CONVICTING THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF THE IPC.

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THIS CRIMINAL APPEAL IS COMING ON FOR FINAL HEARING THIS DAY, B. VEERAPPA J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the appellant-accused against the judgment of conviction dated 25-7-2018 and order on sentence dated 26-7-2018 passed in Sessions Case No.1564 of 2012 on the file of the LXVIII Additional City Civil and Sessions Judge, Bengaluru, convicting and sentencing him to undergo imprisonment for life with a fine of Rs.5,000/- for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, 'IPC').

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For the sake of convenience, the parties herein shall be referred to in terms of their status before the trial Court.

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It is the case of the prosecution that, the accused was doing plumbing work along with Shiva Kumar @ Shivanna

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(hereinafter referred to as 'deceased') in a newly constructed building of one Sri Harish C. in Site bearing No.1806, 3rd Cross, 7th Main, Kengeri Satellite Town, Bengaluru, and used to stay with the deceased in the second floor of the same building. The accused used to demand with the deceased seeking enhanced wages/salary. On 9-8-2012 at about 10:00 p.m., the accused quarreled with the deceased, while they were in the room in the second floor of the said building and while the deceased was asleep, at about 11:30 p.m., the accused with an intention to takeaway the life of the deceased, took a size stone and hit the deceased on his head, as a result, the deceased died at the spot. Based on the complaint filed by the brother of the deceased, the jurisdictional Police registered a case.

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After taking the cognizance of the offence, the learned magistrate, committed the case to Sessions Court as per Section 209 of Code of Criminal Procedure. After receipt of the committal records, the Sessions Judge assigned Sessions No.1564 of 2012 and secured the presence of the accused and

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framed charges for the offence punishable under Section 302 of the IPC. When the charges were read over and explained to the accused in the language known to him, he pleaded not guilty and claimed to be tried.

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In order to prove the guilt of the accused, the prosecution examined twenty-three witnesses as per P.W.1 to P.W.23, got marked twenty-three documents as per Ex.P.1 to Ex.P.23 and marked thirteen material objects as per M.O.1 to M.O.13. After conclusion of the evidence of the prosecution witness, the statement of accused as contemplated under Section 313 of the Code of Criminal Procedure, 1973, was recorded. The accused denied all the incriminating evidence adduced against him, but not led any defence evidence.

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Considering the oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution proved beyond all reasonable doubt that on 9-8-2012 at about 11:30 p.m. in the night, the accused with an intention to takeaway the life of the deceased, hit the deceased

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on his head with a size stone while he was in a room in the second floor in the newly constructed building at Site bearing No.1806, 3rd Cross, 7th Main, Kengeri Satellite Town, committed murder of the deceased and thereby, he committed the offence punishable under Section 302 of the IPC. Accordingly, the learned Sessions Judge passed the impugned judgment by convicting the accused for the offence punishable under section 302 with life imprisonment and fine. Hence, the present appeal has been filed.

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We have heard Smt. Budraunisa, learned counsel appearing for the appellant-accused and Sri Vijayakumar Majage, learned Additional State Public Prosecutor for the respondent-State.

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Learned counsel appearing for the accused has contended that the learned Sessions Judge erred in convicting the accused for the offence punishable under Section 302 of the IPC without there being any material on record and the same is liable to be set aside. She further contended that there are no

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eyewitness to the incident and the entire case is based upon circumstantial evidence. She further contended that though some of the witnesses heard the quarrel between the deceased and the accused in the same building of the first floor, where incident had taken place, kept quite under the impression that both the deceased and accused were influenced with alcohol, which cannot be acceptable.

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She further contended that even though homicidal death is proved, but the fact remains that there was quarrel between the deceased and the accused while seeking enhancement of wages and assuming the incident would have occurred in fit of anger on sudden provocation, then the case falls under Exception I to Section 300 of the IPC and thereby, she prays to set aside the impugned Judgment of conviction and order of sentence by allowing the appeal.

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Per contra , the learned Additional State Public Prosecutor, while justifying the impugned judgment of conviction and order on sentence passed by the learned Sessions Judge,

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has contended that perusal of Ex.P.1-complaint and evidence of prosecution witnesses, in particular, P.W.13, who has deposed that the deceased used to call him and inform him that the accused used to extract work day and night and was paying only Rs.400/- per day and hence, he has asked to enhance the daily wages/salary and thereafter, after two or three days, the accused again called him and informed that since the accused is not obliging to enhance the wages/salary, he will teach a lesson to the deceased. Therefore, there was a clear intention to eliminate the deceased and thereby, the Sessions Judge is justified in convicting the accused for homicidal death of the deceased. He further contended that P.W.15-Dr. Anand Rayamane has clearly opined that the crush injury mentioned in the Post-Mortem report could be possible with size stone - M.O.7 examined and could cause death, if thrown it over head and thereby, homicidal death is proved. Hence, he sought to dismiss the appeal.

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In view of the aforesaid rival contentions urged by the learned counsel for the appellant and the learned Additional

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State Public Prosecutor, the point that would arises for our consideration is:

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"Whether the accused has made out a case to interfere with the impugned judgment of conviction dated 25-7-2018 and order on sentence dated 26-7-2018 made in Sessions Case No.1564 of 2012 on the file of the LXVIII Additional City Civil and Sessions Judge, Bengaluru?"

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We have given our anxious consideration to the arguments advanced by the learned counsel for the appellant as well as the learned Additional State Public Prosecutor and perused the entire material including the original record carefully.

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This Court, being the appellate Court in order to reappreciate the entire evidence on record it is appropriate to have a cursory look at the evidence of the prosecution witnesses and the documents relied upon.

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"a) P.W.1-Krishnamurthy is the complainant and brother of the deceased. He lodged Ex.P.1-complaint on 10-82012 stating that the deceased was in need of a helper for

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his plumbing work and as such, he brought the accused from his native place i.e. Kothamaranahalli Village, Tumakuru. He has further deposed that the accused was working along with the deceased in the construction building belonging to one Harish at Kengeri Satellite Town. He has further deposed that, on the next day of the alleged incident, he received a phone call from the engineer of the said building that his brother had died. Accordingly, he went there at about 10:00 a.m. and found his brother lying in the room in the second floor of the building with his head smashed. Thereafter, he gave a complaint to the Police. He has identified M.Os.1 to 8. He partly turned hostile.

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b) P.W.2-Shashikala is the wife of the deceased and she

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has stated on par with P.W.1. She has deposed that 9-8-2012 at about 8:00 a.m., her husband went to his work place and at about 7.30 p.m., on the same day, he had telephoned and intimated her that he would not be returning home as he had work. Later on the next day,

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P.W.1 called her and intimated the death of her husband

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and she went to the spot and identified the body of her husband. Further, she has spoken about the fact that her husband was with the deceased on the incident date and thereby, she has supported the case of the prosecution.

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c) P.W.3-Damodhara is the witness to Ex.P.3-inquest mahazar and Ex.P.4-spot mahazar and he has identified M.Os.1 to 8. He has turned hostile.

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d) P.W.4-Ranjith Kumar Singh has deposed that, he is

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doing granite and marble fitting work since five years at Bengaluru. He has further deposed that, in the year 2012 he along with C.Ws.8 to 12 was doing granite and marble fitting work in the building belonging to one Harish, situated at 7th Main, Kengeri Satellite Town, at the same time, the deceased was doing plumbing work in the said building along with the accused. He has deposed that on 9- 8-2012, he along with CWs.8 to 12 saw the deceased and the accused at about 9:30 p.m. going to their room

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situated in the second floor of the said building. He has further deposed that, on the same day at about 11:00 p.m., while he and P.W.10-Keshav Paswan came down for nature's call, at that time, they saw the deceased and the accused quarrelling with each other and when they questioned the accused about the quarrel, he told them that the deceased extracting heavy work from him but had not raised the salary. Thereafter, on the same day, at out 11:00 p.m., they saw the accused taking a size stone and proceeding towards the second floor and when he asked as to why he is taking the stone, the accused told him that he wants to use the said stone as a pillow. Thereafter, while himself and P.W.10 were sleeping in their room, they heard a " thud " sound twice from the second floor and thereby, he has supported the case of the prosecution.

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e) P.W.5-Munna Kumar Patel is also one of the tiles fitting workers in the building, where the incident had taken place. He has partially turned hostile.

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f) P.W.6-Shivanna is the witness to Ex.P.3-inquest mahazar and Ex.P.4-spot mahazar and he has identified M.Os.1 to 8 and thereby, he has supported the case of the prosecution.

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g) P.W.7-Vikram Kumar, P.W.8-Rakesh Kumar Singh, and P.W.9-Rajesh Kumar are all workers engaged in tiles fitting work in the building, where the incident had taken place and they were residing at the first floor of the same building. They have partially turned hostile.

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h) P.W.10-Keshav Paswan is also one of the workers engaged in tiles fitting work in the building. He has deposed that on 9-8-2012, he saw the accused taking a size stone and going towards the second floor of the building and when he questioned the accused about the same, the accused told him that, he is taking the size stone to his room to use it as a pillow and thereby, he has supported the case of the prosecution.

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j) P.W.11-Adimoolam is the Watchman of the building. He has deposed that the accused was working along with the deceased in the second floor of the building, by doing plumbing work. He has further deposed that on 9-8-2012, the deceased and the accused after having their meal went to the second floor of the building and after some time, the accused came down and took a size stone stating that he wants to use it as a pillow and at about 12:00 p.m., he heard 'thud' sound twice and thereby, he has supported the case of the prosecution.

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k) P.W.12-Nithin R., Assistant Engineer, P.W.D, has deposed that on the request made by the concerned Police Inspector, he has prepared Ex.P.10-spot sketch and thereby, he has supported the case of the prosecution.

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l) P.W.13-Siddaraju is the uncle of the deceased. He has deposed that he introduced the accused to the deceased to do plumbing work. He has supported the case of the prosecution.

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m) P.W.14-Nanjappa is the father-in-law of the

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deceased. He has supported the case of the prosecution.

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n) P.W.15-Dr. Anand Rayamane, Assistant Professor, K.R. Hospital, Mysuru, who conducted Post-Mortem

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examination on the dead body of the deceased and has submitted Ex.P.11-Post-Mortem report and he has also submitted Ex.P.13-weapon examination report and also opined that the death of the deceased has occurred due to hemorrhage and shock due to crushed head injury sustained. He has supported the case of the prosecution.

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o) P.W.16-Dr. Chandrashekar, Scientific Officer, F.S.L., Bengaluru, has deposed that he has examined thirteen sealed articles and submitted Ex.P.14-F.S.L report. He has supported the case of the prosecution.

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p) P.W.17-Kiran Kumar, Police Constable, who submitted the First Information Report to the Court on the

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instructions of Sub-Inspector of Police supported the case of the prosecution.

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q) P.W.18-Mallikarjun L.C., Sub-Inspector of Police, has deposed that on 10-8-2012, he received a complaint from P.W.1, went to the spot of the incident and conducted Ex.P.3-inquest mahazar and Ex.P.4-spot mahazar and seized M.Os.1 to 8 in the presence of panch witnesses and he conducted part of investigation. He has supported the case of the prosecution.

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r) P.W-19-Seeraiah, Head Constable, collected the

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clothes of the deceased from the Hospital and received the inquest mahazar and submitted the same before SubInspector of Police. He has supported the case of the prosecution.

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s) P.W.20-Tulasidas G., Police Constable, who apprehended the accused and produced him before his Higher Officer. He has supported the case of the prosecution.

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t) P.W.21-Harish is the owner of the building, where

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the offence took place. He has turned hostile.

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u) P.W.22-H. Hanumanthappa, Police Inspector, who conducted further investigation and recorded Ex.P.20voluntary statement of the accused. He has supported the case of the prosecution.

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v) P.W.23-Sathyanarayana, Circle Inspector of Police, received Ex.P.10-spot sketch, Ex.P.11-Post-Mortem report and Ex.P.13-weapon examination report from the Doctor as to the injuries and submitted charge-sheet against the accused. He has supported the case of the prosecution.

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Based on the aforesaid material evidence on record, the Sessions Judge proceeded to convict the accused for the offence

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made out in the Charge Memo holding that prosecution has proved all the charges against the accused beyond reasonable doubt.

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On re-appreciation of the material placed on record both oral and documentary, it is not in dispute that the deceased was working as a Plumber along with his brother, P.W.1 and others. Fifteen days prior to the incident, the deceased informed P.W.1 to get some boys for plumbing work, and in turn P.W.1 contacted P.W.13 and asked him to send some boys. P.W.13 sent the accused to work under the deceased for daily wage of Rs.400/- per day. It is the case of the prosecution that on 9- 8-2012, after the work, P.W.1 asked the deceased to return home, but the deceased said that, he has some work and will return later. Thereafter, on 10-8-2012, P.W.1 received a phone call from the incident spot that the accused has killed the deceased with M.O.7. It is also nwot in dispute that as per the statement of P.W.13, who sent the accused to the deceased, has deposed that eight days prior to the incident, the accused had called him and requested him to speak with the accused to enhance the wages as the deceased was extracting work both day and night. Again, three days prior to the incident, the deceased had called P.W.13 and informed that he will teach a

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lesson to the deceased. P.W.15, who conducted Post-Mortem examination on the deceased, has deposed that on examination of the deceased, he found following external injuries:

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"Crushed head injury, compressed bilaterally with stretch lacerations protruding brain matter out and crushed comminuted depressed fracture of vault and base of skull fracturing mandible between left incisors following stretch lacerations noted.

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a. Stretch laceration of size 4 x 1 cm x cavity deep, brain matter protruding out, at attachment of pinna at upper side, temporal head, irregular margins, red color, transversely placed.

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b. Stretch laceration of size 3.5 cm x 1 cm x cavity deep over temporal head 3 cm above right pinna, irregular margins, red color.

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c. Stretch laceration of size 0.5 x 0.5 cm x cavity deep 2 cam above injury No.b, over right povietal head, irregular margins, red color.

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d. Stretch laceration of size 2 x 1 cm x cavity deep over left forehead, 2 cm above left eye brow, irregular margins, red color, brain protruded.

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e. Laceration of size 3 cm x 1 cm x cavity deep, brain protruded over left parietal area, 6 cm above the left pinna, irregular margins, red color.

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2. Abrasion of size 5 x 1 cm over right forehead, red color.

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3. Abrasion of size 5 x 3 cm over Right temple area, red.

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4. Abrasion over Right side of face, in front of right ear, 7 x 5 cm, red color."

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Further, P.W.15 has opined that the crushed head injury

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mentioned in the Post-Mortem report could be possible with weapon - M.O.7 examined and could cause death, if thrown it over head and thereby, homicidal death of the deceased is proved.

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Careful perusal of Ex.P.1-complaint, evidence of P.Ws.1, 4 and 10 clearly depict that the accused was working as Plumber under the deceased and on the date of incident, they have spoken to other witnesses, i.e. P.Ws.5, 7, 8 and 9, who were doing tiles fitting work in the same building. They have deposed that there was quarrel between the deceased and the accused, but they were under the impression that both were in drunken state. P.Ws.5, 7, 8 and 9 have turned hostile and have not supported the case of the prosecution. Material on record clearly depicts that Ex.P.1-complaint and from the evidence of P.Ws.4 and 10 that, there was quarrel between the deceased and the accused for enhancement of daily wages, thereby the accused killed the deceased. On the previous date at 11:00 p.m., as spoken by other witnesses that in view of sudden provocation, the accused might have hit the deceased on head and therefore, the case clearly falls under the provisions of Exception I to Section 300 of the IPC. The same reads as under:

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Exception 1: When culpable homicide is not murder.—

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Culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

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The above exception is subject to the following provisos:—

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First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

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Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

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Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence.

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As could be seen from the material documents,

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Ex.P.1-complaint and evidence of P.Ws.1, 4, 10 and 13 that for

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want of plumbing work, the deceased was called from the Village of P.W.13. P.W.4 and P.W.10 have specifically deposed that there was quarrel between the deceased and the accused for enhancement of daily wages/salary and thereby, the incident has occurred. The Material aspect has not been considered by the learned Judge but, the learned Sessions Judge has proceeded to convict the accused for imprisonment for life for the offence punishable under Section 302 of the IPC. It is also not in dispute that while recording the statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure, 1973, the accused has denied the alleged offence in to-to and he has not led any defence evidence. The fact remains that the deceased and the accused were staying in the second floor of the same building, where the incident has taken place. The accused has not explained as to how the deceased died during the night hours of the incident date. In the absence of explanation offered, an adverse inference has to be drawn against the accused. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of PRAHLAD v. STATE OF

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RAJASTHAN reported in (2019) 14 SCC 438 , wherein it paragraph No.11, it has held as under:

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"11. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."

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The fact remains that when the accused has spoken to P.W.13 and expressed his disability that the deceased used to extract work day and night and whenever, he is requesting for enhancement of wages/salary, he used to abuse and thereby, he is frustrated. Further, in-mates, i.e. P.Ws.5, 7, 8 and 9, who were working as tiles fitters in the same building, have turned hostile and have not supported the case of the prosecution. Since there was a quarrel between the deceased and the accused for enhancement of wages as the deceased was

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extracting work day and night and used to pay lesser wages/salary, thereby, the accused lost self control and on sudden provocation hit the deceased, with M.O.7 but the accused had no intention to kill the deceased as he was working under the deceased on daily wages and there are no antecedents or the accused or stated by any of the witnesses, including P.W.13, who sent the accused to the deceased for plumbing work, or P.W.1, brother of the deceased, has not taken any specific contention that the accused tried to kill the deceased and thereby, the case clearly falls under Exception 1 to Section 300 of the IPC and not under Section 302 of the IPC as held by the learned Sessions Judge.

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Grave provocation within the meaning of Exception 1 of Section 300 is a provocation where judgment and reason take leave of the offender and violent passion takes over. Provocation has been defined by Oxford Dictionary, as an action, insult, etc. that is likely to provoke physical retaliation. The term grave only adds an element of virulent intensity to what is otherwise likely to provoke retaliation.

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What is critical for a case to fall under Exception 1 to Section 300 of the IPC is that the provocation must not only be grave, but sudden as well. It is only where the following ingredients of Exception 1 are satisfied that an accused can claim mitigation of the offence committed by him from murder to culpable homicide not amounting to murder:

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(1) The deceased must have given provocation to the accused;

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(2) The provocation so given must have been grave;

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(3) The provocation given by the deceased must have been sudden;

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(4) The offender by reason of such grave and sudden provocation must have been deprived of his power of self-control; and

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(5) The offender must have killed the deceased or any other person by mistake or accident during the continuance of the deprivation of the power of selfcontrol.

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Admittedly, in the present case, as could be seen from

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the complaint averments and the prosecution witnesses, in

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particular, P.W.1, brother of the deceased and the complainant, has turned hostile. There are no eyewitnesses and other inmates of the same building, i.e. P.Ws.5, 7, 8 and 9 have turned hostile. P.Ws.1, 4, 10 and 13 have deposed about the quarrel between the deceased and the accused and material on record clearly depicts that the accused was demanding enhancement of daily wages/salary as the deceased was extracting work day and night. On the unfortunate day, when the accused demanded for enhancement of wages, the deceased might have refused to pay and abused the accused, thereby the provocation given by the deceased to accused was sudden and thereby, the accused must have been deprived of self-control and during the continuance of the deprivation of the power of self-control, the accused might have killed the deceased. Thereby, the present case falls under the provisions of Section 304 Part-I of the IPC and the conviction made by the learned Sessions Judge under Section 302 of the IPC requires modification.

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In view of the above, point No.1 is answered partly in the affirmative holding that the accused has made out a case to

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interfere with the impugned judgment. Therefore, the impugned judgment of conviction in convicting the accused for the offence punishable under Section 302 of the IPC and sentencing him to undergo imprisonment for life is modified and converted into one under Section 304 Part-I of the IPC.

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For the reasons stated above, we pass the following:

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O R D E R

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i) The appeal is allowed-in-part ;

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ii) The judgment of conviction dated 25-7-2018 and order on sentence dated 26-7-2018 passed in Sessions Case No.1564 of 2012 on the file of the LXVIII Additional City Civil and Sessions Judge, Bengaluru, convicting and sentencing the accused for the offence punishable under Section 302 of the IPC is hereby modified;

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iii) The accused is convicted for the offence punishable under Section 304 Part-I of the IPC and sentenced to undergo rigorous imprisonment for a period of Ten

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years with a fine of Rs.50,000/- (Rupees fifty thousand only) and in default of payment of fine, he shall undergo simple imprisonment for two years;

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iv) The accused is entitled to the benefit of set off as contemplated under Section 428 of the Code of Criminal Procedure, 1973; and

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v) Exercising the power under Section 357(3) of the Code of Criminal Procedure, 1973, the fine amount of Rs.50,000/- shall be deposited in the name of minor children of P.W.2-wife of the deceased i.e., Rs.25,000/-(Rupees Twenty Five Thousand only) each, till they attain the age of majority.

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Sd/JUDGE

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Sd/JUDGE

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kvk

Murudegowda @ Murudappa @Gowda v. State of Karnataka

Case brief

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Murudegowda @ Murudappa @Gowda v. State of Karnataka

Case brief

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