Partly allowed

Shri. Yallappa Alias Maruti Dhamanekar v. the State of Karnataka

Karnataka HC27 Aug 2024CRL.A/100049/2021

Case brief

AI extract

What is this about?

A criminal appeal against conviction for murder under Section 302 IPC for a fatal single iron-rod blow during an altercation over loud music. The High Court found only knowledge, not intention, was proved and modified the conviction to culpable homicide under Section 304 Part II with eight years' simple imprisonment.

What did the court decide?

Conviction modified from Section 302 to Section 304 Part II IPC; sentence reduced to eight years' simple imprisonment; Sections 504/506 convictions and fine retained.

Shri. Yallappa Alias Maruti Dhamanekar Vs the… — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC-D:12228-DB CRL.A No. 100049 of 2021

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 27^TH DAY OF AUGUST, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI CRIMINAL APPEAL NO. 100049 OF 2021 (C)

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BETWEEN:

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SHRI. YALLAPPA @ MARUTI DHAMANEKAR AGE. 24 YEARS, OCC. DRIVER PAINTING, R/O. SHIVAJI GALLI, MASAGAVANAHATTI, BELAGAVI, TQ. AND DIST. BELAGAVI-590016.

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…APPELLANT

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(BY SMT. NAGARATNA S. PATTAR, ADVOCATE FOR SRI. S.B. DEYANNAVAR, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA THROUGH RURAL POLICE STATION, BELAGAVI, R/BY STATE PUBLIC PROSECUTOR, HIGH COURT BENCH DHARWAD-580011.

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…RESPONDENT

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA

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(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)

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THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C., SEEKING TO CALL FOR THE RECORDS PENDING ON THE FILE OF II ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI IN S.C.NO.162/2019 AND SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 23/01/2021 AND 27/01/2021 FOR THE OFFENCES PUNISHABLE UNDER SECTION 302, 504 AND 506 IPC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)

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The appellant, who has faced charges of murder and other offences in S.C No.162/2019 on the file of Additional District and Sessions Judge, Belagavi [for short, ‘t he Sessions Court ’], is convicted for the offences punishable under Sections 302, 504 and 506 of Indian Penal Code [for short, ‘the IPC ’]. The appellant is sentenced to life imprisonment for the offence punishable under Section 302 of the IPC and simple imprisonment for six months for each of the offences punishable under Sections 504 and 506 of the IPC. The appellant is also directed to pay fine of Rs.10,000/- for the offence punishable under Section 302 of the IPC and Rs.5,000/- for offences punishable under Sections 504 and 506 of the IPC with default simple imprisonment of one month for each of the offences.

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The prosecution’s case in brief is stated thus:

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The appellant and the deceased [Sri Mahadev Meenaji

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Melage] were residents of premises across a road [ Shivaji Galli, Masagavanahatti, Belgavi ], and the deceased was running a small convenience store within the premises in his occupation. The appellant nursed grudge against the deceased because he was refusing credit to him. The appellant, on 11.11.2018 at about 5.30 p.m., was playing loud music on his tape recorder and dancing in front of his house, which the deceased found to be obstructing his business. Therefore, the deceased went up to the appellant to raise his objections and told him that he should stop dancing because it disturbs his business especially with the ladies frequenting his shop.

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The prosecution’s further case is that there was some altercation between the appellant and the deceased with the appellant going inside his house to bring an iron rod [M.O.5] and assaulting the deceased on his forehead. The deceased fell to the ground bloodied, and he was first shifted to KLE Hospital, Belagavi, and he was in that hospital receiving treatment until 13.11.2018 when he was shifted to the Government Hospital at Belagavi where he

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died within two hours. The appellant, who had gone absconding, was arrested on 14.11.2018 when the concerned police officer learnt from informants that he was in a place called Kurubanahatti , which is at a distance of 10 to 15 Kms from the Police Station. The prosecution’s case is also that upon the accused’s voluntary statement, the material objects such as iron rod and bloodstained clothes are recovered under the respective mahazars in the presence of certain panchas.

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The trial is held with the Investigating Officer filing the charge sheet and the appellant pleading not guilty to the charges framed for murder and other offences as aforesaid. The prosecution has examined 16 witnesses as PW.1 to PW.16. The complaint, which is in ‘Marathi’, and its translation in ‘Kannada’ are marked as Exs.P1 and P2. Smt. Ganga. S. Melage, Sri. Sanjay. V. Melage and Sri. Vinayak. N. Melage are examined as eyewitnesses, and they have been examined as PW.2, PW.3 and PW.4. The deceased’s wife Smt. Vanita. M. Melage is examined as PW.5. The panch witnesses to the recovery and inquest are

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examined as PW.6 to PW.8 [Sri. Ashok. R. Patil, Sri. Tanaji. B. Shahapurkar and Sri. Pakira. B. Sawant].

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The prosecution has examined Dr. K.S. Gurudata as PW.9, and this doctor has conducted the postmortem [Ex. P11], and Dr. Ajit. G. Wandee, who has administrated the first treatment to the deceased and issued Wound Certificate [Ex. P14], is examined as PW.10. An engineer with the PWD, who has drawn hand sketch of the place of occurrence [Ex. P17], is examined as PW.4. The other witnesses are police witnesses who are examined to establish the registration of FIR, filing a copy of the same with the learned Magistrate, carrying material objects recovery for forensic examination, translation of the complaint filed in Marathi to Kannada and the details of the investigation.

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The Sessions Court after a detailed reference to

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the oral testimony, has opined [and this Court must observe that without otherwise examining and analyzing the evidence in any detail] that the prosecution has established

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its case of the appellant assaulting the deceased with an iron rod with the intention to cause death beyond all reasonable doubt, and the Sessions Court, because of this opinion, has convicted the appellant for the offences punishable under Sections 302, 504 and 506 of the IPC.

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Smt. Nagaratna. S. Pattar, the learned counsel for the appellant, submits that the appellant cannot deny either the homicidal death or that the appellant’s presence at the place of occurrence is shown but the Sessions Court has failed to consider the evidence on record to examine whether the prosecution has established that the appellant intended to commit the murder of the deceased or whether the assault [a single blow] was in the heat of the moment. The learned counsel emphasizes that if the evidence indicates that only knowledge of the consequence of the act [resulting in death] could be imputed to the appellant, as against the intention to cause death by inflicting injury, he cannot be convicted for the offence punishable under Section 302 and the conviction can only be under Section

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304 Part II of the IPC. The learned counsel thus canvasses that this Court must interfere with the Sessions Court’s judgment to modify the appellant’s conviction to conviction under Section 304 Part II of the IPC with just sentence therefor.

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Sri. M. B. Gundawade, the learned Additional State Public Prosecutor as against these submissions, canvasses that the evidence of eyewitnesses, more specifically the accounts by PW.2 and PW.3, demonstrates that the appellant did not assault the deceased with an iron rod which was available at the spot, but he went inside the house to get a rod threatening the deceased and assaulted the deceased on his forehead resulting into death. Sri. M. B. Gundawade argues that these circumstances when read in conjunction with the consistent evidence that the appellant nursed a grudge against the deceased because the deceased was denying him credit, the intention to commit murder is established. In fact, Sri. M. B. Gundawade, relying upon the decision of the Hon’ble Apex Court in the case of State of

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NC: 2024:KHC-D:12228-DB CRL.A No. 100049 of 2021

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Uttarakhand Vs. Sachendra Singh Rawat¹ , submits that

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there is no reason for interference

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In the light of these submissions, the question arises for consideration is:

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Whether this Court must interfere with the impugned judgment and order of sentence and convict the appellant for the offence punishable under Section 304 Part I or Part II of IPC, and if the answer to this question is in the affirmative, what will be the just sentence for such offence .

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Smt. Ganga. S. Melage and Sri. Sanjay. V. Melage

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[PW.2 and PW.3 respectively] are the crucial eyewitnesses. Smt. Ganga. S. Malage is categorical that she was sitting in front of her house in the immediate vicinity of the place of occurrence and she has witnessed the entire incident. Sri. Sanjay. V. Melage also states that he was in front of his house, which is at the distance of about 25 feet from the place of occurrence, and he has seen the incident. Both these witnesses state in clear terms that on the evening of

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1 (2022) 4 SCC 227

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the fateful day, the appellant started playing music loudly on his tape recorder and dancing which upset the deceased prompting him to approach the appellant and tell him to stop him from playing music loudly and dancing. Sri. Sanjay. V. Melage is categorical in his evidence that there was exchange of words between the appellant and the deceased indicating that there was some altercation. These witnesses are also categorical in stating that the appellant was upset with the deceased because he was refusing groceries on credit. The next set of material circumstances about which these witnesses are consistent is in stating that the appellant in the midst of this altercation went inside his house to come out with an iron rod and assault the deceased on his forehead.

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These circumstances, in this Court’s considered

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view, are clearly established, and it is from these circumstances that this Court will have to discern whether the prosecution proves that the appellant had any intention to cause death or such bodily injury as was sufficient in the ordinary course resulting in death or the knowledge that

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such assault would result in death. The Hon’ble Apex Court

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in Pulicherla Nagaraju Alias Nagaraja Reddy Vs. State

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of A.P² has highlighted the circumstances from which the Courts will have to discern whether there was an intention to commit murder, and the Hon’ble Apex Court has also entered a caveat in declaring that the Courts in examining the circumstances typical to a case must ensure that the offences punishable as murder is not converted into offence punishable under Section 304 Part I or Part II and vice versa. The proposition exposited by the Apex Court in this decision is reiterated in the case of State of Uttarakhand

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Vs. Sachendra Singh Rawat (supra).

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The Apex Court in these decisions has listed certain circumstances which have to be considered in discerning the intention as against knowledge to decide whether there must be conviction for offence under Section 300 of the IPC with punishment under 302 or conviction for offence under 304 punishable either under part I or part II thereof. The Apex Court has clarified that the illustrated 2 (2006) 11 SCC 444

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circumstances are not exhaustive. This Court, in terms of these decisions, must consider circumstances such as the nature of weapon used, whether this weapon was carried to the place of occurrence or was picked at the place of occurrence, whether the blow is aimed at a vital part of the body, the amount of force employed in causing the injury, whether the act was in the course of a sudden quarrel or a sudden fight or a free for all fight, whether the incident is perchance or because of premeditation, whether there was any enmity between the accused and the dead and whether the assault is by a single blow or multiple blows.

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This Court, while considering the circumstances as aforesaid, must examine whether the incident was in the heat of passion and whether the person assaulting was taking undue advantage or was acting in a cruel or unusual manner. This Court must observe at once in this regard that though the prosecution contends that the appellant nursed a grudge against the deceased because he was refusing to lend groceries on credit, the same cannot be

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treated as a motive. Firstly, because the prosecution has not placed on record any fact from which the same can be deduced as the sole reason for the incident and secondly, even according to the eyewitnesses, it is the deceased who approached the appellant when he started playing music and dancing. There is no doubt that there must have been some squabble/altercation between the appellant and deceased, and it could be that the appellant in that moment of heated exchange could have gone in and come out with a rod and assaulted the deceased.

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These circumstances shown by the prosecution

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do not speak about premeditation in the commission of the offence. In the circumstances proved by the prosecution, especially with PW.2 stating that the entire incident [ including the commencement of the squabble, the assault and the deceased falling to ground bleeding ] was over within a period of five minutes, this Court cannot impute intention to cause murder, and this Court can only impute to the appellant the knowledge of the consequences that would be

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of assaulting with a rod. The prosecution to succeed in its case of the appellant being guilty of murder should have proved beyond all reasonable doubt that the appellant had the intention of causing death. The Sessions Court should have considered these circumstances instead of

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perfunctorily opining that the witnesses have supported the prosecution’s case and therefore the prosecution has established its case. This Court answers the points for consideration opining that the prosecution is able to establish beyond all reasonable doubt only the appellant’s knowledge of consequence of the assault and in that event the appellant can only be punished for offence punishable under Section 304 Part II of IPC.

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This Court, on the question of sentence, has considered different circumstances such as that the appellant has been in custody from the date of being arrested, which is for almost a period of six years and the appellant has used an iron rod to assault the deceased once on his forehead [a vital part], but without multiple blows. This Court is of the considered view that the appellant must

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be sentenced to simple imprisonment of eight years and that the conviction and sentence otherwise for the offences punishable under Sections 504 and 506 of the IPC must remain unaltered. Further, the fine of Rs.10,000/- and the default simple imprisonment must continue. Hence, the following:

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ORDER

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a) The appeal is allowed in part.

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b) The Sessions Court’s impugned judgment of

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conviction dated 23.01.2021 and order on sentence dated 27.01.2021 is modified to the limited extent of convicting the appellant for culpable homicide under Section 304 Part II of the IPC and sentencing into simple imprisonment for a period of eight years.

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Sd/(B.M.SHYAM PRASAD) JUDGE

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Sd/(C M JOSHI) JUDGE

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PMP, LIST NO.: 1 SL NO.: 25

Shri. Yallappa Alias Maruti Dhamanekar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Shri. Yallappa Alias Maruti Dhamanekar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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