Partly allowed

Raju J.K v. the State by

Karnataka HC17 Oct 2022CRL.A/728/2019

Case brief

AI extract

What is this about?

A criminal appeal filed against a life imprisonment sentence for murder. The High Court accepted that the accused killed the deceased due to grave and sudden provocation arising from an altercation while under the influence of alcohol. The Court modified the conviction from murder to culpable homicide not amounting to murder.

What did the court decide?

The conviction for murder was modified to culpable homicide not amounting to murder. The sentence was reduced from life imprisonment to ten years' rigorous imprisonment with a fine of Rs. 50,000.

Raju J.K Vs the State by — Murder and Culpable Homicide | Karnataka HC (2022)

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CRL.A No. 728 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF OCTOBER, 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. 728 OF 2019

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BETWEEN:

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RAJU J. K., AGED ABOUT 51 YEARS, LABOURER R/AT HUNDI BADAGA, BANANGALA VILLAGE, VIRAJPET TALUK, KODAGU DISTRICT PIN - 571218.

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…APPELLANT

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(BY SRI SURESH H. S., ADVOCATE)

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AND:

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: High Court of Karnataka

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THE STATE BY CPI MADIKERI TOWN CIRCLE, MADIKERI, REPT. BY SPP HIGH COURT OF KARNATAKA, BENGALURU - 560001.

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…RESPONDENT

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(BY SRI VIJAYKUMAR MAJAGE, ADDL. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 27.02.2019 AND ORDER OF SENTENCE

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DATED 7.3.2019 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU-MADIKERI SITTING AT VIRAJPET IN S.C.NO.5013/2018 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

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THIS CRIMINAL APPEAL COMING ON FOR 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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The present criminal appeal is filed by the appellant/accused against the judgment of conviction dated 27^th February 2019 and order of sentence dated 7^th March 2019 made in S.C. No.5013/2018 on the file of the II Addl. District and Sessions Judge, Kodagu-Madikeri, Sitting at Virajpet, convicting the accused for the offence punishable under section 302 of IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs.30,000/- with default clause.

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I. Brief facts of the case

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It is the case of the prosecution that the accused married deceased Padma about 28 years prior to the incident and the deceased was living separately from the accused since

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9 years. However about a month prior to her death accused by assuring deceased that he would look after well has brought the

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deceased to his house at Badaga Bannangala village. However accused was quarrelling with the deceased often suspecting that as they were residing separately since 9 nears deceased has illicit relationship with some one else. The deceased used to disclose this information to the CWs.4,5 and 11 whenever they call her. When things stood thus, on 27.3.2018 between 9 p.m. and 10 p.m. accused picked up quarrel with the deceased stating that she has illicit relationship with some one during the period of 9 years when they were residing separately and questioned the deceased as to with whom she had illicit relationship and when the deceased did not answer, accused assaulted the deceased and attempted to kill the deceased, which came to the knowledge of CWs.4,5 and 11 when they called the deceased as she was shouting at that time. It is also alleged that PWs.10 and 6 have witnessed the accused assaulting the deceased on the day of the incident. It is also alleged that accused has killed the deceased by assaulting on her head with billhook and has caused injuries by assaulting her with club and the deceased has died at about 10 p.m. due to injuries sustained.

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On the basis of the complaint lodged by PW.2, who is none other than daughter of the accused and the deceased, the jurisdictional Police registered the case in Crime No.89/2018. After completion of investigation, the Police filed the charge sheet against the accused for the offence punishable under Section 302 of IPC. After committal of the matter, the learned Sessions Judge framed the charge for the offence punishable under Section 302 of IPC and the substance of the charge was read over to the accused in the language known to him, who pleaded not guilty and claimed to be tried.

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In order to prove the guilt of the accused, the prosecution examined in all, 17 witnesses as PWs.1 to 17 and got marked the material documents – Ex.P1 to Ex.P24 and the material objects – Mos.1 to 9.

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After completion of evidence of the prosecution witnesses, the statement of the accused was recorded as contemplated under the provisions of Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating circumstances that were found against him in the evidence of the prosecution witnesses. The accused has not chosen to lead

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any defence evidence nor got marked any documents on his behalf.

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II. Findings of the learned Sessions Judge

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Based on the material on record, the learned

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Sessions Judge formulated following two points for

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consideration:

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1) Whether the prosecution has proved that death of the deceased is a homicidal one?

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2) Whether the prosecution has proved that accused has killed the deceased by assaulting on her head with billhook and by assaulting on her person with a club causing grievous injuries on 27.03.2012 between 9 p.m., and 10 p.m. in his house situated at Badaga Bannangala Village and thereby committed offence p/u/s 302 of IPC?

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Considering both the oral and documentary

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evidence on record, the learned Sessions answered both the

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points in the affirmative and recorded a finding that the prosecution proved beyond reasonable doubt that the death of the deceased is a homicidal one and that the accused has killed

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the deceased by assaulting on her head with billhook and by assaulting on her person with a club causing grievous injuries on 27.3.2012 between 9 p.m. and 10 p.m. in his house situated at Badaga Bannangala village and thereby committed an offence punishable under Section 302 of IPC. Accordingly, the trial Court convicted the accused for the said offence and sentenced him to undergo imprisonment for life with fine and default clause. Hence, the present criminal appeal is filed by the appellant/accused.

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We have heard the learned counsel for the parties.

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III. Arguments advanced by learned counsel for the appellant/accused

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Sri H.S. Suresh, learned counsel for the

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appellant/accused contended with vehemence that the impugned judgment of conviction and order of sentence passed by the trial Court convicting the accused for the offence punishable under Section 302 of IPC is erroneous and contrary to the material on record and liable to be set aside. The trial Court has not appreciated the material on record in the proper perspective. In order to bring home the guilt of the accused

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though the prosecution examined PWs.1 to 17, there are inconsistencies in their evidence and does not depict the involvement of the accused in the homicidal death of the deceased. He further contended that there is no believable direct evidence against the accused and the prosecution has not proved the case beyond reasonable doubt. The prosecution has failed to establish the recovery of the incriminating articles at the instance of the accused. The learned Sessions Judge convicted the accused based on the assumptions and presumptions and based on the inconsistent statements made by PWs.2 and 11, who are interested witnesses and PWs.6 and 7, who are not eye witnesses and their evidence cannot be relied upon. Therefore, he sought to set aside the impugned judgment of conviction and order of sentence.

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Alternatively, learned counsel contended that even

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if this Court comes to the conclusion that the accused is involved in the homicidal death of the deceased, the oral and documentary evidence on record clearly depict that on the date of the incident, there was sudden quarrel between the accused

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and the deceased (husband and wife) and both were under the influence of alcohol at the time of altercation and the unfortunate incident occurred without premeditation and therefore, at the most, the case would fall under Section 304 Part I of IPC and not under Section 302 of IPC and therefore, the learned counsel sought for modifying the impugned judgment of conviction and order of sentence.

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IV. Arguments advanced by learned Addl. SPP for the respondent/State

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Per contra, Sri Vijaykumar Majage, learned Addl. SPP while justifying the impugned judgment of conviction and order of sentence passed by the trial Court contended that PW.2, who is none other than daughter of the accused and the deceased has specifically stated about the incident in the complaint/Ex.P8 and the material records clearly depict the involvement of the accused in the homicidal death of the deceased. He further contended that the evidence of PWs.6 and 10 depicts that the accused and the deceased were together in the house of the accused on the date of the incident. The same is not denied by the accused while

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recording his statement under the provisions of Section 313 of the Code of Criminal Procedure. Thereby, the accused himself would have special knowledge of the incident. But, the accused has not discharged the burden under Section 106 of the Evidence Act. In the statement recorded under the provisions of Section 313 of the Code of Criminal Procedure, the accused ought to have disclosed as to how the incident happened and total denial cannot be accepted. He would further contend that the material on record, in particular Ex.P19/call details certificate issued under Section 65B of the Evidence Act, Post-mortem report and the FSL report clearly depict the involvement of the accused in the homicidal death of the deceased, who is none other that his wife. The material on record clearly depicts that the accused suspected the fidelity of his wife and killed her intentionally on the date of the incident. In the circumstances, the learned Sessions Judge based on the oral and documentary evidence on record, has rightly convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life with fine and default clause and the accused has not made out any

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case to interfere with the impugned judgment of conviction and

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order of sentence and therefore sought to dismiss the appeal.

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V. Point for Determination

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In view of the aforesaid rival contentions urged by

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the learned counsel for the parties, the only point that would arise for our consideration in the present criminal appeal is:

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" Whether the appellant/accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court convicting him for the offence punishable under Section 302 of IPC and sentencing to undergo imprisonment for life with fine and default clause, in the facts and circumstances of the case ?"

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VI. Consideration

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We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully.

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The gist of the complaint lodged by PW.2 (daughter

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of the accused and the deceased), which is the basis for registration of the case is that that she is residing at Eshwara Estate, Nakur village of Shantikoppa and that the accused and the deceased Padma are husband and wife. However, the deceased was living separately from the accused and was with them since nine years prior to the incident. When things stood thus, about a month prior to the incident, accused came to their house and assuring that he would look after well, has taken the deceased to his house at Badaga Bannangala village. Her father used to give trouble to her mother and accordingly, her mother used to inform the same to her over phone. On 27.03.2018 at about 9 to 10 p.m. when her husband (PW.11) called the accused over phone, at that time they heard the deceased shouting that the accused assaulting her and on the next day, they found the deceased dead in the house of the accused. Accordingly on 28.3.2008 at about 7.30 a.m., PW.2 and her husband went to the house of the accused and found that the deceased died as she was assaulted with MO.1 and there were injuries all over her body.

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This Court being the Appellate Court, in order to

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re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon.

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i) PW.1/Jemsa is the witness to the inquest mahazar /Ex.P1. She supported the case of the prosecutions.

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ii) PW.2/Ramya is the complainant and daughter of the accused and the deceased. She deposed that the deceased was living separately from the accused since 9 years prior to the incident and in fact deceased was residing with them. However, about nine months prior to her evidence, the accused came to their house and assuring the deceased that he would look after well has taken the deceased to his house. On the relevant day at about 9 p.m. when she called the accused over phone, at that time she heard the deceased shouting that accused assaulting her. When she called the accused again, nobody received the call and on the next day

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morning, brother of the accused informed her that the deceased has died. She is also witness to the inquest mahazar/Ex.P1. She supported the case of the prosecution.

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iii) PW.3/Shiva is the witness to the inquest mahazar/Ex.P1. He is the first son-in-law of the deceased. He got the news of death of the deceased through PW.6. He supported the case of the prosecution.

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iv) PW.4/Lingaraj is the Engineer who prepared the sketch of scene of the incident. He supported the case of the prosecution.

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v) PW.5/B.K. Rajesh is the PDO of the Gram Panchayath, who issued the Ex.P10/certificate in proof of the residential address of the accused.

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vi) PW.6/Puttaraju, who is brother of the accused and uncle of PW.2 is also neighbour of the accused. He deposed that on the day of the incident there was quarrel between the accused and the deceased after

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they returned from work at about 9 p.m. and at that time he advised them not to quarrel and at about 10 p.m., sound of quarrel stopped and he thought that the accused and the deceased might have slept by taking meals. However, on the next day morning door of the house was opened and when he went inside the house, he saw the deceased lying in a pool of blood and found dead sustaining injuries and accused was not in the house. In the cross-examination, he has admitted that both the accused and the deceased were in the habit of consuming alcohol. He also admitted that the accused and the deceased used to quarrel whenever they consume drinks. He has deposed that the accused has killed the deceased in view of the incident occurred on the night of the incident. He supported the case of the prosecution.

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vii) PW.7/Babu is the witness to recovery of Mo.1/billhook, Mo.2/banian, Mo.3/club, MO.4/bed sheet, Mo.5/mobile, Mo.6/petty coat and

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Mo.7/Nighty at the instance of the accused under seizure mahazars/Ex.P11 and Ex.P12. He supported the case of the prosecution.

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viii) PW.8/Vasanth Kumar is the Police Constable, who has taken the complaint of PW.2 from the place of incident to the Police Station and handed over the same to the Station House Officer. He supported the case of the prosecution.

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ix) PW.9/P.K. Ganapathi is the Station House Officer. He deposed that PW.8/Police Constable brought the complaint of PW.2 from the incident spot and on the basis of which, he registered the FIR. He supported the case of the prosecution.

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x) PW.10/Chandrashekhar is father of PW.3 and neighbor of the accused. He has seen the quarrel from his house and on the next day morning, he heard the death of the deceased. He admitted that both the accused and the deceased were in the habit of consuming alcohol and whenever they

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consume alcohol, generally they used to quarrel. He supported the case of the prosecution.

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xi) PW.11/Raju, son-in-law of the deceased has deposed that on the date of the incident he called deceased at about 10 p.m. and deceased, who was talking to him told him that her husband has assaulted her and has caused hurt. When he was talking, he heard accused assaulting the deceased and the deceased shouting and then phone connection was disconnected and later it was switched off. On the next day morning, he came to know the death of the deceased through PW.6. He supported the case of the prosecution.

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xii) PW.12/Dr. Raghavendra K.N. is the doctor who conducted post-mortem examination on the dead body of the deceased. He has opined that death of the deceased occurred between 16 to 22 hours prior to her post mortem examination and given the report as per Ex.P17. He has deposed that the death of the deceased is due to shock and as a

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result of multiple injuries sustained. He supported the case of the prosecution.

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xiii) PW.13/G.K. Subramanya is the PSI, who went to the place of incident and seized Mos.8 and 9 and recovered the same. He deposed that Ex.P18 is the voluntary statement of the accused. He supported the case of the prosecution.

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xiv) PW.14/Umesh Uppalike is the Inspector, who after investigation filed the charge sheet. He supported the case of the prosecution.

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xv) PW.15/Stanly is the Airtel Officer and at the request of the Investigation Officer, he has given the call details of the accused mobile. He has supported the case of the prosecution.

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xvi) PW.16/Dr. Chandrasheakar issued the FSL report as per Ex.P22. He supported the case of the prosecution.

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xvii) PW.17/Anup Madappa is the CPI, who filed the additional charge sheet. He supported the case of the prosecution.

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Based on the oral and documentary evidence on record, the learned Sessions Judge proceeded to convict the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life with fine.

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On careful perusal of the material on record, it clearly depicts that there is no dispute that the accused has married the deceased Padma about 28 years back. However the deceased was living separately from the accused since nine years prior to the incident. About a month prior to the incident, accused by assuring the deceased that he would look after well has brought the deceased to his house at Badaga Bannangala village. It is the specific case of PW.2 (daughter of the deceased and the accused) that on 27.3.2018 between 9 p.m. and 10 p.m. accused picked up quarrel with the deceased stating that she has illicit relationship with some one during the period of nine years when they were residing separately and assaulted the deceased. The evidence of PW.6 and PW.10

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clearly depict that both the accused and the deceased were in the habit of consuming drinks and they used to quarrel whenever they consume drinks. PWs.2,6 and 10 in categorical terms stated that there was quarrel between the accused and the deceased before the incident happened. The fact remains that at the time of the unfortunate incident occurred only the deceased and the accused were in the house of the accused. The oral and documentary evidence on record clearly depicts that there was quarrel between the accused and the deceased and during the course of altercation, they were under the influence of alcohol and the accused assaulted the deceased suspecting her fidelity and thereby, she sustained grievous injuries and died. Dr.Raghavendra/PW.12, who examined the dead body of the deceased has stated on oath that the deceased has sustained certain injuries and that there was a deep lacerated wound over scalp, over vertex measuring 5 cm in length and skull deep and apart from it, there was an abrasion over zygoma, abrasion below chin, bruise below left jaw, abrasion below left eye, another abrasion over left side of neck, closed fracture of right humerus, contusion over right fore arm. The post-mortem report/Ex.P17 clearly depicts that

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stomach contains 50 ml of watery substance with smell similar to that of alcohol. The doctor has opined that the death of the deceased was due to shock and as a result of multiple injuries sustained and all the injuries are antemortem in nature and time since death was 16 to 22 hours at the time of postmortem examination. Nothing is elicited to disbelieve the testimony of the doctor regarding death of the deceased having occurred due to the injuries sustained by her and shock caused on account of those injuries. Therefore, the prosecution established that death of the deceased is homicidal one and the accused involved in the homicidal death of the deceased.

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PW.16/Assistant Director, RFSL, Mysore, after examination of the articles sent for examination, has given the opinion as per Ex.P22, which clearly depicts that blood stain was detected in Article nos.1,3,4,5,6,7 and 8 (blood stained soil, one iron sickle/machu, one cane stick, one bed sheet, one inner skirt, one nighty, one banian). Article Nos.1,4,5,6,7 and 8 were stained with ‘A’ group blood. The blood stain in Article No.3 was insufficient for serological analysis.

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The material witnesses, especially PWs.6 and 10 clearly depose that the accused and the deceased were together in the house of the accused on the date of the incident. The same is not denied by the accused while recording his statement under the provisions of Section 313 of the Code of Criminal Procedure. Thereby, the prosecution has proved the exact happening of the incident and the accused himself would have special knowledge of the incident and he has to discharge the burden of proof as per Section 106 of the Evidence Act. Last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident like relationship between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused and non-explanation of death of the deceased etc., lead to presumption of guilt against the accused.

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The evidence of Pws.2,11,6 and 10 clearly depict that at the time of the incident there was quarrel between the accused and the deceased. It is categorically admitted by PWs.6 and 10 in the cross-examination that both the accused and the deceased were in the habit of consuming alcohol. They

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also admitted that the accused and the deceased used to quarrel whenever they consume drinks. The evidence of the prosecution witnesses clearly depict that there was altercation between the accused and the deceased. The post-mortem report also depicts that stomach contains 50 ml of watery substance similar to that of alcohol. Thereby, the evidence of the prosecution witnesses coupled with the medical evidence clearly depict that both the accused and the deceased were in intoxication at the time of quarrel. The deceased was living separately from the accused since nine years and about a month prior to the incident, the accused assuring that he would look after well has brought the deceased to his house. However, when the accused doubt the fidelity of the wife on the ground that they were residing separately for nine years, naturally the wife would have reacted and thereby there was sudden altercation between the accused and the deceased under the influence of alcohol. In the circumstances, the accused lost self control by grave and sudden provocation at the instance of the deceased and assaulted the deceased without intention or knowledge to kill her, thereby the unfortunate incident occurred. The said overt act of the accused

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without there being any premeditation, cannot be traced to the offence punishable under Section 302 of IPC. However since the overt act of the accused was sufficient to take away the life of the deceased, the case clearly falls under Exception I of Section 300 of IPC . Therefore, the conviction of the accused for the offence punishable under Section 302 of IPC has to be modified and the appellant/accused is liable to be convicted for the offence punishable under Section 304 Part I of IPC.

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At this stage, it is relevant to state that homicidal death of the deceased would not amount to murder especially when there was sufficient provocation for the accused to commit an act whereby homicidal death takes place. Our view is fortified by the judgment of the Hon’ble Supreme Court in the case of B.D.Khunte vs. Union of India & others reported in (2015) 1 SCC 286, wherein at paragraphs 12, 15 and 16 it is held as under:

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"12. What is critical for a case to fall under Exception 1 to Section 300 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

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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 self-control.

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15. It was contended by Mr. Shishodia that although between the incident that happened at noon and the shooting of the deceased at 2130 hrs were separated by nearly seven hours' interval, the nature of the provocation continued to be grave within the meaning of Exception 1 to Section 300 IPC. We find it difficult to accept that submission. Grave provocation within the meaning of Exception 1 is a provocation where judgment and reason take leave of the offender and violent passion takes over. “Provocation” has been defined by Oxford

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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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16. In Holmes v. Director of Public Prosecutions [1946 AC 588 : (1946) 2 All ER 124 (HL)] provocation has been explained as under:

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“The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill, or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies.”

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Taking into consideration the age of the accused and the totality of the facts and circumstances of the case, we are of the considered opinion that imposing Rigorous Imprisonment for ten years with fine for the offence punishable under Section 304 Part I of IPC would meet the ends of justice.

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VII. Conclusion

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On re-appreciation of the entire oral and

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documentary evidence on record and in the light of the principles enunciated in the judgment of the Hon’ble Supreme Court stated supra, we answer the point raised in the present criminal appeal partly in the affirmative holding that the impugned judgment of conviction and order of sentence passed by the trial court calls for modification and the impugned judgment convicting the appellant/accused for the offence punishable under Section 302 of IPC has to be modified and altered into one under Section 304 Part I of IPC and the appellant/accused shall be sentenced to undergo Rigorous Imprisonment for TEN YEARS with a fine of Rs.50,000/- and in default of payment of fine to undergo Simple Imprisonment for a period of two years, in the peculiar facts and circumstances of the case.

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VIII. Result

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In view of the above, we pass the following order:

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i) The criminal appeal filed by the appellant/ accused is allowed in part .

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ii) The impugned judgment of conviction dated 27^th February 2019 and order of sentence dated 7^th march 2019 made in S.C. No.5013/2018 on the file of the II Addl. District & Sessions judge, KodaguMadikeri, Sitting at Virajpet, convicting the appellant/accused for the offence punishable under Section 302 of IPC and sentencing him to undergo Rigorous Imprisonment for life with fine and default clause, is hereby modified and the appellant/accused is convicted for the offence punishable under Section 304 Part I of IPC and sentenced to undergo Rigorous Imprisonment for a period of TEN YEARS and to pay a fine of Rs.50,000/- (Rupees fifty thousand only) and in default of payment of fine, he shall undergo Simple Imprisonment for a period of two years.

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iii) After completion of the term of imprisonment, the fine amount deposited, if any shall be disbursed in equal proportion to all the daughters of the deceased and accused, in accordance with law.

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iv) The appellant/accused is entitled to the benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure.

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v) Registry is directed to return the Trial Court Records forthwith.

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Sd/JUDGE

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Sd/JUDGE

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Gss*

Raju J.K v. the State by

Case brief

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Raju J.K v. the State by

Case brief

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