Partly allowed

Somachandra @ Somashekara v. the State of Karnataka

Karnataka HC29 Oct 2024CRL.A/1873/2017

Case brief

AI extract

What is this about?

Husband convicted for murdering his wife was found to have acted without premeditation in a sudden quarrel; benefit of Exception 4 to Section 300 IPC applied, converting conviction to culpable homicide under Section 304 Part I with sentence already undergone and fine.

What did the court decide?

Conviction modified from S.302 to S.304 Part I IPC; sentenced to period already undergone (10 yrs 3 mths) plus Rs.1,20,000/- fine payable to PW.2 and PW.3 as compensation.

Somachandra @ Somashekara Vs the State of… — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:43694-DB CRL.A No. 1873 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF OCTOBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE RAJESH RAI K

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CRIMINAL APPEAL NO. 1873 OF 2017 (C)

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BETWEEN:

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SOMACHANDRA @ SOMASHEKARA S/O LAKSHMINARAYANAPPA, AGED ABOUT 37 YEARS R/O SHEEGEHALLI VILLAGE, YELDUR HOBLI, SRINIVASAPURA TALUK KOLAR DISTRICT-563 138.

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…APPELLANT

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(BY SRI. M. SHASHIDHARA, ADVOCATE)

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AND:

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Digitally signed by MAYAGAIAH VINUTHA Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA BY SRINIVASAPURA POLICE STATION, (REP. BY THE LEARNED STATE PUBLIC PROSECUTOR)

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…RESPONDENT

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(BY SRI. VIJAYKUMAR MAJAGE, SPP-II)

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THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 10.05.2017 PASSED BY PRINCIPAL SESSIONS JUDGE KOLAR IN S.C.NO.218/2014 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC.

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

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CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE RAJESH RAI K)

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This appeal filed by the convicted accused/appellant is directed against the judgment of conviction dated 10.05.2017 and order of sentence dated 11.05.2017 passed in S.C.No.218/2014 by the Principal Sessions Judge at Kolar, wherein the learned Sessions Judge convicted the appellant for the offence punishable under Sections 302 of IPC and sentenced him to undergo rigours imprisonment for life and to pay a fine of Rs.60,000/-.

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The brief facts of the prosecution case are that, the appellant/accused is the husband of deceased Yashoda. Their marriage was solemnized 12 years prior to the date of incident and out of the said wedlock, they begotten two children namely Adharsh, aged about 6 years and Manasa, aged about 10 years. They all were residing at Seegehalli village. Since four to five years prior to the incident, the accused addicted to bad vices such as consuming liquor and without attending to the work, he used to quarrel with deceased Yashoda for the reason that the deceased questioned the accused as to why he pledged

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the motor cycle. Such being the scenario, on 18.06.2014 at midnight 12’O clock, when the deceased Yashoda was sleeping in her house along with her children i.e., PW.2 and PW.3, the accused entered the house, which belonged to one Lakshminarayana situated at Yeldur village bearing Sy.No.142, from the roof of kitchen through chimney with an intention to commit the murder of deceased Yashoda and started quarrel with her, assaulted her with the wooden billet (ªÀÄgÀzÀ vÀgÁ¬Ä vÀÄAqÀÄ)

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on her face & head and committed her murder. The said incident was witnessed by PW.2 and PW.3 i.e., the children of the deceased Yashoda, who were in the house. After commission of the incident, the accused fled away from the spot. Subsequently, PW.1 i.e., the father of the deceased Yashoda lodged the complaint on 19.06.2014 at about 9.30 a.m. against the accused before the respondent-police as per Ex.P1. Based on the same, the respondent-police registered the case in Cr.No.167/2014 dated 19.06.2014 against the accused for the offence punishable under Section 302 of IPC as per Ex.P22.

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During the course of investigation, the respondent-

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police arrested the accused on 20.06.2014, recorded his

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voluntary statement, drawn the spot mahazar and also the recovery mahazar, thereafter, produced him before the learned JMFC and sent to judicial custody. Later, PW.17-the police inspector, after conducting the investigation, laid the charge sheet against the accused for the offence under Section 302 of IPC before the committal Court.

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After committal of the case before the learned Sessions Court, by securing the presence of the accused, learned Sessions judge framed the charges against the accused for the offence punishable under Section 302 of IPC and read over the same to him. However, the accused denied the charges and claimed to be tried.

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In order to prove the charge levelled against the accused before the trial Court, the prosecution examined in total 17 witnesses i.e., PW.1 to PW.17 and got marked 25 documents as per Exs.P1 to P25 and also got identified 7 material objects as MO.1 to MO.7.

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After completion of the prosecution evidence, the

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learned Sessions Judge recorded statement under Section 313 of Cr.P.C., wherein the incriminating portion of the evidence

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read over to the accused and the accused denied the same. The defence of the accused is one of total denial and that of false implication.

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After assessment of the oral as well as documentary evidence available on record, the learned Sessions Judge convicted the accused for the aforesaid offence charged against him. The said judgment is challenged under this appeal.

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We have heard the argument of

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Sri M.Shashidhara, learned counsel for the accused and also Sri Vijayakumar Majage, learned SPP-II for the respondentState and perused the records i.e., the impugned judgment and the record secured from the trial Court.

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Sri M.Shashidhara, learned counsel for the accused, vehemently, contended that the judgment and order challenged under this appeal suffers from perversity and illegality and the learned Sessions Judge convicted the accused for the offence as stated supra without appreciating the evidence and material available on record. As such, the judgment and order challenged under this appeal is liable to be set aside. He would contend that in order to prove the guilt of the accused, the

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prosecution relied on the evidence of PW.2 and PW.3 i.e., the children of the deceased Yashoda said to be the eye witnesses to the incident. But on careful perusal of their evidence, there are much contradiction and omission and in their crossexamination, they both specifically admitted that at the time of incident, they both were sleeping and woke up in the next day morning. Thereafter, they came to know that their father committed the murder of their mother. Hence, the version of these witnesses cannot solely be relied to convict the accused. He would further contend that though PW.4 supported the case of prosecution, he came to the spot after the incident. Hence, he is not an eye witness to the incident. Further, the prosecution also failed to prove the recovery of MO.6 and MO.7 i.e., the clothes worn by the accused at the time of the incident under Ex.P12 for the reason that the evidence of PW.9 and PW.11 are contradictory to each other. Hence, he prays to allow the appeal by setting aside the judgment of conviction and order of sentence.

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Alternatively, he would submit that, taken together

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all the evidence and circumstances on the face of it, at the highest, the accused could be convicted for the offence of

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culpable homicide not amounting to murder under Section 304 Part I of IPC since the alleged incident caused in a spur of moment for the reason that the deceased was having illicit affair with a person of their village namely Sadakath. Further, on 18.06.2014, in the evening hours, the deceased was with the company of the said Sadakath in a bush near the school situated at their village. As such, the accused advised her not to indulge in such activity. However, on the same night, the deceased closed the main door of the house and made the accused to sleep outside the house till 12’O clock night. Though he entered the house through the kitchen chimney and requested the deceased not to indulge in any such activity, but she kicked him and also abused him in filthy language. Hence, enraged by her act, all of a sudden, the accused took a wooden billet from the kitchen and assaulted on her. Therefore, the entire incident caused in a spur of moment without any such premeditation and the same squarely comes within the definition of Exception 4 to Section 300 of IPC which is punishable under Section 304 Part I of IPC.

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Refuting the above submissions made by the learned counsel for the accused, Sri Vijayakumar Majage,

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learned Additional SPP-II would vehemently contend that the judgment under appeal does not suffer from any perversity or illegality and the learned Sessions Judge, after appreciating the entire evidence and material available on record, has rightly convicted the accused for the charges leveled against him. He would further contend that the evidence of PW.2 and PW.3 i.e., the children of the deceased and the accused, proved the case of the prosecution beyond reasonable doubt since both these witnesses have categorically deposed the manner in which the accused committed the crime. He would further contend that the evidence of these witnesses also supported by the evidence of PW.1 i.e., the father of the deceased and PW.14 i.e., the mother of the deceased. The said PW.13 also supported the case of the prosecution. According to the learned SPP, the prosecution also proved the recovery of blood stained clothes of the accused worn at the time of the incident i.e., MO.6 and MO.7 under Ex.P12 by the evidence of PW.9 and PW.11. Hence, all the material witnesses have supported the case of the prosecution. He further contend that learned Sessions Judge has rightly convicted the accused for the charges leveled against him. Hence, he prays to dismiss the appeal.

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We have bestowed our anxious consideration on the oral and documentary evidence placed before us and also meticulously perused the material available on record including the trial Court records.

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Having heard the learned counsel for the accused and the learned SPP-II for the State, the points that would arise for our consideration are:

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(i) Whether the judgment of conviction and order of sentence challenged under this appeal suffers from perversity and illegality?

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(ii) Whether the learned Sessions Judge is justified in convicting the appellant/accused for the offence punishable under Sections 302 of IPC?

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On careful re-appreciation of the entire evidence on record, in order to prove the homicidal death of deceased Yashoda, the prosecution relied on the post mortem report Ex.P20, conducted by the Medical Officer, General Hospital, Srinivasapura. The said post mortem report marked in the evidence of Investigation Officer i.e., PW.17, with the consent of the defence counsel. On careful perusal of Ex.P20, it depicts that the deceased sustained five injuries on her body and two multiple fractures. The doctor opined that the injuries sustained

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by the deceased are ante mortem in nature and also opined that the death is due to shock and haemorrhage as a result of injury to vital organ brain. Nevertheless, the prosecution also relied on Ex.P11 i.e., inquest panchanama drawn on the dead body of the deceased by the investigation officer in the presence of PW.7. The said witness identified the injuries on the dead body. Hence, on a conjoint reading of the contents of Exs.P20 and P11 so also the evidence of PW.7 and PW.17, we are of the considered view that the prosecution has proved the homicidal death of the deceased beyond reasonable doubt.

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In order to connect the accused to the homicidal death of the deceased, the prosecution mainly relied on the evidence of PW.1-the father of the deceased i.e., the complainant, who reiterated the contents of Ex.P1 and stated that the marriage of the accused and the deceased was love marriage and out of the said wedlock, they begotten two children and thereafter, the accused indulged in bad vices, as such, started to quarrel with the deceased. On 19.06.2014, the alleged incident was informed to him by the grandchildren i.e., PW.2 and PW.3. Accordingly, he lodged the complaint. He also identified MO.1 to MO.6 seized under spot mahazar-Ex.P12.

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Further, the prosecution mainly relied on the evidence of PW.2 and PW.3, who are the star witnesses in this case, none other than the children of the deceased and the accused. They being the eye witnesses to the incident, categorically deposed in their evidence that on the date of incident, they both slept in the house along with their mother i.e., deceased Yashoda and in the late night, the accused assaulted the deceased with the wooden billet on her forehead, face and leg and he fled away from the spot. Thereafter, they informed the same to PW.4-the neighbour so also grandfather i.e., PW.1. On careful perusal of the evidence of these two witnesses, though some contradictions are forthcoming in their cross-examination in respect of the incident, however, the same does not go to the root of the prosecution case. As such, there is no reason to discard/disbelieve the evidence of PW.2 and PW.3. Learned counsel for the appellant submitted that since there are material contradictions in their evidence, their testimony cannot be relied to convict the accused. The Hon’ble Apex court in the case of in the case of Raj Kumar Singh v. State of Rajasthan reported in (2013) 5 SCC 722 held in Paragraph 43 as under:-

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“ 43 . While appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labelled as omissions or contradictions. Therefore, the courts must be cautious and very particular in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinise the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief.

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“9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.”

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It is in fact, the entirety of the situation which must be taken into consideration. While appreciating the evidence, the court must not attach undue importance to minor discrepancies, rather must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation. After exercising such care and caution, and sifting through the evidence to separate truth from untruth, embellishments and improvements, the court must determine whether the residuary evidence is sufficient to convict the accused.”

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Moreover, the evidence of PW.2 and PW.3 cannot be discarded for the reason that they are the children of the deceased. There is no reason whatsoever for them to depose against their own father i.e., the accused. Nevertheless, their evidence corroborates with the evidence of PW.4-the neighbour, who visited the spot soon after the incident.

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Though this case is based on the evidence of direct eyewitnesses and the motive for the incident does not play much vital role, nevertheless, the prosecution also proved the motive for the alleged incident. The evidence of PW.1 and PW.14 i.e., the parents of deceased Yashoda clearly establishes that the accused used to quarrel with the deceased before the incident for the reason that he had pledged the motorcycle with PW.13. To that effect, PW.13 also supported the case of prosecution. Hence, it is clear that the accused committed the incident for the above motive. The prosecution also proved the recovery of M.O.1 i.e., wooden billet, which said to have been used by the accused for the commission of the crime. The said M.O.1 seized under Ex.P12-spot mahazar and PW.8 deposed to that effect. The prosecution also relied on the evidence of PW.9 and PW.11 to prove the recovery of MO.6 and MO.7 i.e., the

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blood stained shirt and pant worn by the accused at the time of incident. PW.9 and PW.11 have categorically stated that the

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accused led them and the Police to his house situated at Seegehalli and handed over MO.6 and MO.7 to the Police. Hence, the prosecution also proved the recovery of MO.1, MO.6 and MO.7 at the instance of accused. On overall re-appreciation of the entire evidence on record, we are of the considered view

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that the prosecution has proved that the accused is the perpetrator of the crime and responsible for the homicidal death of the deceased Yashoda.

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The alternative contention of the learned counsel for

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the accused is that the alleged incident does not fall under the category of Section 302 of IPC and at the most, it will attract Exception 4 to Section 300 of IPC, which is punishable under Section 304 Part I of IPC. Hence, it is appropriate to reiterate Exception 4 to Section 300 of IPC, which reads as under:

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"Exception 4. - 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's having taken undue advantage or acted in a cruel or unusual manner .

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Hence, on plain reading of the above provision,

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there are 4 ingredients are required to attract Exception 4 to

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300 of IPC i.e., (1) There must be a sudden fight, (2). There was no premeditation, (3) The act was committed in a heat of passion and (4) The offender had not taken any undue advantage or acted in a cruel or unusual manner. The explanation to Exception 4 states that in such cases, it is immaterial which party gives the provocation or commits the first assault.

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By applying the above principles to the facts and circumstances of the case, admittedly, the accused and the deceased are none other than the husband and wife. They were in love and got married each other. Out of their wedlock, they begotten two children and after their marriage, for about 4 years, they were living cordially. It is the case of prosecution that before the incident, the accused got the information that the deceased was with extramarital relationship with one Sadakath, who was a tempo driver of Yeldur village. On the date of incident, in the evening hours, the deceased went outside the house and later the accused noticed that the deceased was in a compromising position with Sadakath in a bush near the school at their village. As such, he advised her not to indulge in such activity. But the deceased abused the

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accused and closed the main door of the house by making accused to sleep outside the house. Later, in the midnight, the accused entered the house through kitchen chimney and once again advised her not to indulge in illegal activity. At that time, she kicked him with her leg. Hence, on a sudden provocation, he assaulted her with a wooden billet which found in the kitchen. This contention of the learned counsel for the appellant also narrated in the voluntary statement of the accused so also in the recovery mahazar.

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Even by perusal of the evidence of PW.2 and PW.3,

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they also categorically deposed that all of a sudden, the accused assaulted the deceased. There was no such preparation or intention on the part of the accused to take away her life. Even PW.1 and PW.14 i.e., the parents of the deceased also deposed that all of a sudden, the incident was caused. The weapon used by the accused for the commission of the crime is a wooden billet which allegedly lying in the kitchen. Hence, by the above evidence, it could be gathered that there was no intention or motive on the part of the accused to take away the life of the deceased. Nevertheless, there was no preparation by the accused to commit the murder of the deceased. Hence, in

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such circumstances, the Hon’ble Apex Court in the case of Rambir vs. State (NCT of Delhi) reported in 2019 (6) SCC 122 held that, ‘in a sudden fight, in absence of premeditation, act committed in a heat of passion if the offender not taken undue advantage or acted in a cruel or unusual manner, the conviction can be converted from Section 302 to 304 Part I or II of IPC. In paragraph 18 of the above judgment, the Hon’ble Apex Court held as under:

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“18. Having regard to the evidence on record, we are of the view that the case of the appellant falls within Exception 4 to Section 300 IPC. Further, the judgment in Surinder Kumar v. State (UT of Chandigarh) also supports the case of the appellant. In the aforesaid case, the knife-blows were inflicted in the heat of the moment, one of which caused death of the deceased, this Court has held that the accused is entitled to the benefit of Exception 4. In the aforesaid judgment, this Court further held that in a sudden quarrel, if a person, in the heat of the moment, picks up a weapon which is handy and causes injuries one of which proves fatal, the accused would be entitled to the benefit of Exception 4. We are of the view that the said judgment supports the case of the appellant and further having regard to the evidence on record we are of the view that all the four ingredients which are

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required to extend the benefit of Exception 4 to Section 300 IPC, apply to the facts of the case on hand. Since the occurrence was in sudden quarrel and there was no premeditation, the act of the appellant-accused would fall under Exception 4 to Section 300 IPC. As such, the conviction recorded against the appellant under Section 302 IPC is liable to be set aside and is accordingly set aside and the conviction of the appellant-accused under Section 302 IPC is modified, as the one under Section 304 Part II IPC and we impose a sentence of 10 years' simple imprisonment on the accused.”

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Further, the Hon’ble Apex Court in the case of Surinder Kumar vs. Union Territory Chandigarh reported 1989 (2) SCC 217 held that merely because three injuries caused to the deceased by the accused cannot be said that he acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of moment, picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of Exception 4 to Section 300 of IPC. The number of wounds caused during the occurrence is not a decisive factor.

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In the case on hand, the accused committed the death of deceased fully knowing that the assault made by him in a wooden billet on the forehead and face of the deceased

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likely to cause her death. The said aspect could be gathered by the part chosen by the accused i.e., the forehead & face and the blow given by him. In such circumstance, though his act comes under the ambit of Exception 4 to Section 300 of IPC, the same is punishable under Section 304 Part I of IPC.

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Hence, considering the overall evidence and fact and circumstance of the case, the incident was caused without any premeditation, in a sudden fight between the accused and the deceased in the heat of passion. The accused also did not take undue advantage or acted in a cruel or unusual manner. In that view of the matter, the appeal partial succeeds. The appellant is convicted for the offence punishable under Section Exception 4 to Section 300 of IPC and sentenced for the offence punishable under Section 304 Part I of IPC.

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On the question of sentence for the offence punishable under Section 304 Part I of IPC is concerned, it is submitted by the learned counsel for the appellant that the accused has already undergone 10 years 3 months incarceration. Hence, in our considered view, the said sentence suffice for the offence punishable under Section 304 Part I of IPC by imposing reasonable fine.

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We answer point Nos.1 and 2 raised above

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accordingly and proceed to pass the following:

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ORDER

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i) The criminal appeal is allowed in part .

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ii) The judgment of conviction dated 10.05.2017 and order of sentence dated 11.05.2017 passed in S.C.No.218/2014 by the Principal Sessions Judge at Kolar is modified to the extent that the accused is convicted for the offence punishable under Exception 4 to Section 300 of IPC instead of Section 302 of IPC. Accordingly, he is sentenced for the offence punishable under Section 304 Part I of IPC.

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iii. The accused is sentenced for a period he has already undergone incarceration i.e., 10 years 03 months, however, he shall pay a fine of Rs.1,20,000/- (inclusive of the fine amount, if any already paid/deposited before the trial Court) for the offence punishable under Section 304 Part I of IPC and in default of payment of fine, he shall undergo simple imprisonment for a period of two years.

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iv. On payment of fine or by undergoing the default imprisonment, the accused is ordered

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to be released, if he is not required in any other cases.

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v. If the fine amount is deposited by the accused, the learned Sessions Judge is requested to intimate the same to PW.2 and PW.3 and the same shall be paid to PW.2-Adharsh and PW.3-Manasa equally as compensation under Section 357(1) of IPC on due identification.

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Sd/(K.SOMASHEKAR) JUDGE

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Sd/(RAJESH RAI K) JUDGE

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HKV/VM List No.: 1 Sl No.: 20

Somachandra @ Somashekara v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Somachandra @ Somashekara 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

Statutes considered

Parties & counsel

Coram

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