Partly allowed

Vasanthkumar v. State of Karnataka

Karnataka HC15 Feb 2024CRL.A/709/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the criminal appeal in part, setting aside the murder conviction under Section 302 IPC. Applying Exception 4 to Section 300 IPC due to lack of premeditation and heat of passion, the court convicted the appellant under Section 304 Part I IPC and sentenced him to ten years rigorous imprisonment.

What did the court decide?

Conviction under Section 302 IPC set aside; convicted under Section 304 Part I IPC; sentenced to 10 years rigorous imprisonment and fine of Rs.1,00,000/.

Vasanthkumar Vs State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:7133-DB CRL.A No.709/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF FEBRUARY, 2024

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.709/2017

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BETWEEN:

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VASANTHKUMAR S/O LATE CHANNABASAPPA AGED ABOUT 50 YEARS RESIDING AT RAMALINGAPURA VILLAGE BUKKAPATNA HOBLI, SIRA TALUK TUMAKURU - 572 101.

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…APPELLANT

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(BY SRI M. SHARASS CHANDRA, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY SIRA POLICE STATION TUMAKURU - 572 101 REPRESENTED BY S.P.P.

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…RESPONDENT

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Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka

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(BY SRI VIJAYA KUMAR MAJAGE, S.P.P-II)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 21-3-2017 AND SENTENCE DATED 22-3-2017 PASSED BY THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU IN S.C. NO.53/2015, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 IPC.

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THIS CRIMINAL APPEAL IS COMING ON FOR FURTHER HEARING, THIS DAY, VENKATESH NAIK T. J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is directed against the judgment of conviction dated 21-3-2017 and order of sentence dated 22-3-2017 passed by the VI Additional District and Sessions Judge, Tumakuru, in Sessions Case No.53 of 2015 convicting the accused for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, 'IPC') and sentencing him to life imprisonment and fine of Rs.10,000/-, in default of payment of fine, to undergo imprisonment for a period of one year.

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The appellant is the sole accused. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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Brief facts of the case are as follows:

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The name of the deceased is Nanjundappa. AccusedVasanthkumar and the deceased were neighbours. The deceased was the owner of the land bearing Survey No.135 of Ramalingapura Village, Bukkapattana Hobli, Sira Taluk. The land of the accused and the deceased abut each other. There was ill will between the accused and the deceased regarding a

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pathway leading to the land of the accused. One coconut tree

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grown in the land of the deceased had bent and stretched towards the land of the accused. On 5-1-2015 at about 7:30 a.m., PW2-Veerabhadraiah @ Bhadraiah (agriculture labour) was plucking coconuts from the said tree and the deceased was collecting the coconuts that had fallen in the land of the accused. At that time, the accused raised objection for the deceased collecting the coconuts. In that regard, a scuffle took place between the accused and the deceased. The accused who was holding MO10-sickle, with an intention to eliminate the deceased, assaulted him with MO10-sickle using sufficient force on left side of his neck. Hence, the deceased sustained cut deep lacerated wound over his left neck. Due to cut lacerated injury, the deceased was bleeding heavily and succumbed to the injuries on the spot. PW2, who had climbed the coconut tree, alighted from the tree and PW3, who was working in neighbouring land, came to the spot and saw the injured, who died at the spot itself. Immediately after assault on the deceased, the accused shouted from his land, went to his house along with MO10-sickle and later from there, he went to Bukkapattana Out Police Station and informed the Police personnel about he having committed the murder of the

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deceased in his land. Hence, PW12-Tarasingh, Head Constable, Bukkapattana Out Police Station, secured PW9-S. Ravindra, Revenue Inspector, CW18-K.N. Lakshminarasimiaha for conducting seizure mahazar and in their presence, he conducted seizure mahazar-Ex.P18 and seized bloodstained clothes of the accused viz., white sweater, green colour lungi and underwear as per MOs.11 to 13 and PW12 handed over the accused and seized articles to PW15- K.G. Ramakrishna, Police Inspector, Sira Circle, for further action. On the same day, after receipt of information from CW4-R.V. Shivalingappa, brother of the deceased, PW1-B.R. Jagadeesh lodged a complaint as per Ex.P1 with Sira Police. Hence, Sira Police registered the case in Crime No.6/2015 for the offence under Section 302 IPC. On investigation charge-sheet was filed against the accused.

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The prosecution in all examined sixteen witnesses as PWs.1 to 16, got marked thirty-four documents as per Exs.P1 to P34 and got marked thirteen material objects as per MOs.1 to 13. For the defence, the accused got examined two witnesses as DWs.1 and 2 and relied on three documents as per Exs.D1 to D3. Assessing the entire evidence, the trial Court convicted the accused for the aforesaid offence.

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Submissions of Sri M. Sharass Chandra, learned counsel for the appellant-accused:

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The judgment and order of conviction and sentence passed by the trial Court is not in accordance with law. The trial Court has committed a serious error in relying on the prosecution case to base conviction against the accused. The prosecution has relied upon in all sixteen witnesses, amongst them, most of the witnesses are interested and inimical towards the accused and hence, he has been falsely implicated by them.

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5(a). The trial Court failed to appreciate the evidence on

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record with regard to the eyewitnesses' account-PWs.2 and 4. However, PWs.2 and 4 depose that they came to the spot after five minutes of the alleged incident and hence, the version of PW2 falsifies the evidence of PW4. Further, PW4 does not speak about the presence of PW2 at the scene of offence. Hence, the evidence of PW4 also falsifies the evidence of PW2. Further, the complaint was lodged by PW1-B.R. Jagadeesh, son-in-law of the deceased, who is not an eyewitness to the incident. He has stated that he came to know about the incident through CW19R.G. Hanumantharaju, but the said R.G. Hanumantharaju is not

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examined before the Court and PW1 visited the scene of offence and saw the dead body and informed CW9, wife of the deceased, but she is not examined before the Court.

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5(b). All the prosecution witnesses categorically stated

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that the Police visited the spot at 8:30 a.m., however, till 11:10 a.m., the Police did not receive any complaint and the complaint was registered at 11:35 a.m. The accused never surrendered before Bukkapattana Out Police Station voluntarily, confessed the commission of murder, and Bukkapattana Police never recovered any bloodstained clothes of the accused under Ex.P18. The seizure was allegedly conducted by the Head Constable and not by the Inspector of Police, that too, prior to the registration of the crime.

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5(c). Though Bukkapattana Police and Sira Police had information about the commission of the murder, they did not register the suo-moto complaint, but only after visiting the spot and after deliberation and consultation, they received the complaint from PW1 at the spot and same was registered at 11:35 a.m. which shows that Ex.P1-complaint was prepared after investigation which assumes the character of statement under Section 161 Cr.P.C. and it would hit by Section 162

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Cr.P.C. There is no substantive material in the prosecution

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evidence to connect the accused to the crime.

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5(d). There was civil dispute between the accused and the deceased in respect of land. Though PW2-eyewitness to the incident was present at the spot, but he did not attend the deceased immediately. Due to sudden quarrel between the accused and the deceased on the spur of moment, the incident occurred. In fact, the deceased was the aggressor and he attacked the accused. Further, PW3 is shown as an eyewitness to the incident. But in his evidence, he has stated that he came to know about the incident through PW2.

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5(e). Perusal of evidence of PW4 shows both PWs.2 and 3 came to the spot later. PW2 has not stated about the presence of PWs.3 and 4 at the time of the incident at the scene of offence. Similarly, PWs.3 and 4 have not stated about the presence of PW2 at the scene of offence. PW6 is hearsay witness and his testimony cannot be believed. PW7 is witness to the spot mahazar-Ex.P2, but he did not depose about other witnesses being present at the time of drawing mahazar. Hence, his evidence does not aid the prosecution case.

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5(f). CW18-K.N. Lakshminarasimhaiah is not examined before the Court. The Investigating Officer has examined PW9Revenue Inspector who is not a local pancha. The Investigating Officer not examined the local witness deliberately. The incident occurred on 5-1-2015 at 7:30 a.m., seizure mahazar-Ex.P18 was drawn on 5-1-2015 between 9:30 a.m. and 10:15 a.m. in the Police Station for seizing the bloodstained clothes of the accused, which shows that prior to registration of FIR, PW12Tarasingh had conducted the seizure mahazar and started the investigation. The Investigating Officer or the Station House Officer of both Police Stations failed to enter the receipt of information of cognizable offence in their Station House Dairy.

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5(g). Soon after receipt of Ex.P1-complaint from PW1, PW14-Police Constable took 40 to 50 minutes to reach Sira Police Station and the FIR was submitted to the Court at 5:15 p.m. on 5-1-2015. That shows that there were lot of deliberations held between the complainant party and the Investigating Officer. The Police Constable who carried FIR to the Court was not examined. It is contended that during investigation, Investigating Officer took Exs.P4 to P15photographs of the deceased, but their negatives were not

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produced before the Court and no certificate is produced as required under Section 65(b)(4) of the Indian Evidence Act, 1872. Though Exs.P4 to P15-photographs of the deceased were marked without any objection, mere marking of photographs does not amount to proof of the same. The trial Court ought to have insisted the prosecution to produce primary evidence in respect of Exs.P4 to P15-photographs of the deceased.

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5(h). PW9, seizure mahazar witness, stated that on 5-1-2015, he visited Bukkapattana Police Station, scene of offence and to the house of the accused and only one mahazar was conducted. The perusal of Ex.P18 shows that the mahazar was drawn between 9:30 a.m. and 10:15 a.m. prior to registration of FIR. The Investigating Officer appears to have seized the material objects and they were sent to FSL, after five days of the incident. In fact, as per Ex.D1, the contents of Sanjevani Newspaper dated 8-1-2015, MO10-sickle was opened though it was seized on 5-1-2015. Hence, the Investigating Officer has violated the procedure by opening the seized article.

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5(j). The Investigating Officer though visited the scene of offence on 5-1-2015, he did not examine the alleged eyewitness-PW2 at the spot itself. As per the evidence of PW2,

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the presence of PWs.3 and 4 have not been disclosed by PW2 and in the remand application also, the names of eyewitnesses to the incident viz., PWs.2 and 3 were not shown.

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5(k). As per the evidence of PW2, when himself and PW3 were at the scene of offence, PW4 came there and after ten minutes, the Police visited the spot. As per the evidence of PW3, at 7:45 a.m., Sira Police visited the scene of offence. Further, PW6 has stated that Bukkapattana Police visited the spot at 7:45 a.m. PW9 states that Bukkapattana Police visited the spot at 9:30 a.m. It shows there are inconsistencies and contradictions in the testimonies of PWs.2, 3, 6 and 7 with regard to Bukkapattana/Sira Police visiting the scene of offence. As per the evidence of PW12, there is difference in mentioning the time of visit of the Investigating Officer to the spot.

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5(l). PW2 has admitted in his cross-examination that the Police reduced his statement to writing and took signature on it at the spot. But the Investigating Officer clearly admitted that he did not record the statement of PW2 at the spot either in writing or through laptop. The recovery of MO10-sickle is doubtful and it was tampered. PW15 has admitted that PWs.2

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and 3 do not speak about the presence of PW4 at the spot.

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Therefore, the presence of PW4 at the scene of offence was doubtful.

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5(m). The accused is physically handicapped person as he had sustained fracture to his left hand due to an accident. In support of his contention, the accused got examined DW2Doctor, who issued Exs.D2 and D3. Further, the accused also got examined his friend as DW1. He has stated about the incident and the arrest of the accused by the Police.

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None of the prosecution witnesses has seen the incident. The accused has been falsely implicated in the case. The eyewitnesses projected by the prosecution create suspicion and doubt in the prosecution case. Even if prosecution evidence regarding assault is accepted, such assault was on the spur of moment, the accused dealt with single blow with a sickle. Such act constitutes offence under Section 304 part I IPC and not Section 302 IPC. On all these grounds, he prayed to allow the appeal.

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Submissions of Sri Vijaya Kumar Majage, learned State Public Prosecutor-II:

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The evidence tendered by the prosecution has not been impeached, the prosecution witnesses have stood the test

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of cross-examination and as such, the impugned judgment deserves to be affirmed. The accused took quarrel with the deceased in respect of lifting the coconuts that had fallen in his land and assaulted him with MO10-sickle on his neck. The eyewitnesses to the incident viz., PWs.2, 3 and 4 have categorically stated about the role of the accused and the manner of assault on the deceased in their presence.

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7(a). Though PW1, son-in-law of the deceased, is not an eyewitness to the incident, but he lodged the complaint on the information of eyewitness. PW2-an eyewitness to the incident had been to the land of the deceased on that day and he was plucking coconuts by climbing the tree of the deceased which is bent and stretched towards the land of the accused. PW2 has specifically stated that the accused objected the deceased from collecting the coconuts that had fallen in his land and in that regard, there was scuffle between the accused and the deceased and the accused assaulted the deceased on his neck with sickle. Further, PW3-Ramlingappa @ Ramanna though a chance witness, is an eyewitness to the incident. PW5Geethanjali, daughter of the deceased, saw the accused in front of her house and the clothes of the accused and sickle were

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bloodstained. Therefore, the evidence of PWs.2 and 3 corroborates each other. PWs.2 and 3 have consistently stated that on 5-1-2015 in the evening, the Investigating Officer recorded their statements. Investigating Officer not mentioning the names of PWs.2 and 3 in remand application at the first instance, does not falsify their evidence. Further, as per the evidence of PW12-Tarasingh, Head Constable of Bukkapattana Out Police Station, soon after the incident, the accused went to the Police Station voluntarily. Though DW1 states that the accused was secured from Village, the accused himself has not offered any explanation as to whether he voluntarily went to the Police Station or he was taken from the Village. The omissions, contradictions in the testimonies of the prosecution witnesses and irregularities in the investigation does not belie the eyewitnesses account. At the most, dereliction of duty on the part of PW15-Investigating Officer may entail structures against him.

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The accused has not disputed the homicidal death of the deceased. PWs.2 and 3-eyewitnesses to the incident have categorically stated about the incident. Though there are several lapses on the part of the Investigating Officer on that

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count alone, the prosecution case cannot be doubted and the evidence of PWs.2 and 3 inspires confidence. PW3 seen the accused with the bloodstained clothes. PW9-recovery witness has supported the case of the prosecution. FSL report discloses that blood group of deceased was 'A+'. Looking into all circumstances, the prosecution successfully established that the accused is responsible for the death of deceased. Hence, the conviction and sentence passed by the trial Court against the accused warrants no interference of this Court. On all these grounds, he prayed for rejection of the appeal.

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On hearing submissions of both sides and on examining the materials, the point that arises for consideration is :

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“Whether the impugned judgment and order of conviction and sentence is sustainable in law ?”

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PW2-Veerabhadariah is an eyewitness to the incident. He has stated that the deceased was the owner of the land bearing Survey No.135 of Ramalingapura Village, Bukkapattana Hobli, Sira Taluk and the said land is adjacent to the land of the accused. One coconut tree grown in the land of the deceased was bent and stretched towards the land of the

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accused. His further evidence is that on 5-1-2015 at 7:30 a.m.,

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he had been to the land of the deceased for plucking coconuts

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as per the instructions of the deceased. At that time, the accused was sitting in his land. While plucking, the coconuts had fallen in the land of the accused, therefore, the deceased was collecting them from the said land. At that time, the accused raised objections that those coconuts belong to him and obstructed him from collecting those coconuts. Hence, there was scuffle between the accused and the deceased and on the spur of moment, the accused assaulted the deceased with MO10-sickle on the left side of the neck of the deceased. Thus, injured fell on the ground immediately. The accused shouted and went towards the Village holding sickle in his hand. PW2 alighted from the coconut tree, saw the injured and informed PW3-Ramalingappa, who is the owner of the neighbouring land. By that time, the deceased had succumbed to the injuries on the spot. Hence, PWs.2 and 3 came to the Village and informed about the incident to CW9-Ambuja, wife of the deceased. His further evidence is that soon after the incident, PW1-B.R. Jagadeesh lodged the complaint on 5-1-2015. As per the evidence of PW1, there were frequent quarrels between the accused and the deceased in respect of

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water and pathway. PW2 identified the bloodstained slippers,

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areca nut plant leaf, bloodstained soil, sample mud and a coconut before the trial Court.

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PW3-Ramalingappa @ Ramanna, another

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eyewitness to the incident, has stated that the land of the deceased and the accused are abutting each other, his land comes in the upper portion and the land of the deceased lies in the lower portion. His further evidence is that both the deceased and the accused grown coconut and areca nut trees in their lands. Before few minutes to the incident, he was watering trees in his land, interacted with the deceased and had seen the accused going towards his land by holding sickle. After ten minutes, PW2 came to his land and informed regarding the incident. Hence, he went to the land of the deceased and saw the deceased. Nanjundappa succumbed to

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the injuries on the spot. He saw injury on the left side of the neck of the deceased. The body of the deceased was lying in the pool of blood. He had also seen the accused going towards the Village by holding bloodstained sickle and the accused's sweater was bloodstained. Hence, he enquired PW2 as to how the incident occurred and in turn, PW2 narrated the entire

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incident. His further evidence is that immediately, he and PW2 informed the incident to CW9-wife of the deceased and he gave statement to the Police. He identified MO10-sickle, bloodstained clothes of the deceased-MOs.7 to 9 and bloodstained clothes of the accused-MOs.11 to 13.

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PW4-Mallikarjuna is another eyewitness to the incident. He has stated that on 5-1-2015 at 7:00 a.m., when he was standing near milk dairy, the deceased called him to assist in plucking coconuts in his land. Hence, he agreed to visit his land. At that time, PW2 also accompanied the deceased to the land of the deceased. After 15 minutes, he went to the land of the deceased. He saw the accused going towards his land by holding sickle. He saw the accused assaulting the deceased on his neck. Hence, he enquired the accused as to why he assaulted the deceased, the accused replied that he assaulted him in respect of lifting the coconuts in his land. Thereafter, the accused shouted and went towards the Village by holding sickle. The sickle and clothes of the accused were bloodstained. His further evidence is that the relationship of the accused and the deceased were not cordial.

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In order to prove the homicidal death of the deceased, the prosecution relied on the evidence of PW10-Dr. Jagadeesh, who conducted autopsy on the dead body of the deceased on 5-1-2015 between 4:15 p.m. and 5:30 p.m. He found the following external injuries on the dead body:

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i. A cut wound obliquely placed at left submandibular region measuring 6 cm (length) x 2 cm (breadth) x 4 cm (depth) with blood clots over the neck, chest and lower abdomen.

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ii. Liver is ruptured at upper right and left lobe under 10^th and 11^th rib area.

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iii. There was 4 cm x 2 cm x 0.5 cm swelling at right chest between 10^th and 11^th ribs area over the liver.

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iv. Sternocleido mastoid muscles lacerated at left sub mandibular area.

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As per the opinion of the Doctor, the death was due to hypovolemia shock and asphyxia caused by severe haemorrhage into respiratory system and decrease of blood flow to brain and loss of blood. He issued Post-Mortem report as per Ex.P21 and his final opinion as per Ex.P24. As per the

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evidence of the Doctor, the injuries mentioned in the PostMortem report could be caused by MO10-sickle.

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Reg. Nature of death:

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The prosecution examined PW12-Tarasingh. He has stated that on 5-1-2015 at 9:10 a.m., the accused voluntarily surrendered before him, his clothes were bloodstained. Hence, he enquired the accused as to his bloodstained clothes, in turn, the accused disclosed that on the same day in the morning, when the deceased was lifting the coconuts in his land that had fallen, he objected him from collecting it and in that regard, there was scuffle between the two, thus, he assaulted him with MO10-sickle on his neck. PW12 says he informed PW15 about the information disclosed by the accused. Hence, PW15 instructed him to seize the bloodstained clothes of the accused. Therefore, he called PW9-S. Ravindra and CW18K.N. Lakshminarasimiaha and in their presence, he seized bloodstained clothes of the accused under seizure mahazarEx.P18. Later, he confined the accused in Bukkapattana Police Station for further action and he visited the scene of offence along with PW15 and assisted the Investigating Officer.

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PW15-K.G. Ramakrishna, Inspector of Police, Sira

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Police, is the Investigating Officer. He has stated that 5-1-2015 at 9:13 a.m., he received information from PW12-Tarasingh, Head Constable, Bukkapattana Out Police Station, that the accused committed the murder of the deceased in his land, voluntarily surrendered before him and his clothes were bloodstained. Hence, he instructed PW12 to seize the bloodstained clothes of the accused. Hence, he deputed Investigating Assistant-Mallikarjuna to assist PW12. On the same day, he visited the spot at 11:00 a.m., where PW1 lodged complaint as per Ex.P1, he sent Ex.P1-complaint through PW14-M.R. Shankara for registration of the same, accordingly PW13 registered the case at 11:35 a.m. and sent FIR and the complaint to the Court and higher authorities. It is his further evidence that, PW1 shown the spot. Accordingly, he drew spot mahazar as per Ex.P2 and collected bloodstained slippers, soil, sample soil, bloodstained areca nut leaf and a coconut. It is his further evidence that, he saw the dead body of the deceased,

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the body was lying in the pool of blood and his clothes were bloodstained. Hence, he conducted inquest mahazar in the presence of witnesses as per Ex.P17 and shifted the dead body to the Government Hospital, Bukkapattana for Post-Mortem

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examination. Thereafter, he arrested the accused, recorded his

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voluntary statement as per Ex.P33 secured K.N. Lakshminarasimiaha and PW9-S. Ravindra and in their presence, he seized bloodstained sickle kept under the sofa at the house of the accused. Thus, he drew seizure mahazar as per Ex.P19 and seized MO10-sickle under the mahazar. His further evidence is that, he recorded the statements of the eyewitnesses to the incident viz. PWs.2 and 3. On the same day, he seized bloodstained clothes of the deceased under Ex.P20-seizure mahazar. He secured Post-Mortem examination report and sketch from the concerned authorities. He sent the seized articles to Forensic Science Laboratory for chemical examination and after completion of investigation, he filed the charge-sheet.

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From perusal of the evidence of the eyewitnesses viz. PWs.2 and 3, it appears that they are residents of Ramalingapura Village and they are relatives of the deceased. PW2 had been to the land of the deceased for plucking coconuts and his evidence is natural one. As per the instructions of the deceased, he was plucking coconuts at the time of incident. As per his evidence, it requires ten minutes to climb the tree and ten minutes for alighting from the tree. PW3

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is neighbouring land owner, he came to the spot after receipt of information from PW2. Both of them saw the injured lying in the pool of blood. Soon after the incident, the accused went to the Village by holding bloodstained sickle and his clothes were also bloodstained. It is the evidence of PWs.2, 3 and 4 that the accused on the spur of moment assaulted the victim on his left side of the neck with MO10-sickle without giving any room to escape and thus, the victim fell down. PWs.2 and 3 have categorically denied the suggestions made by the defence counsel about the incident and their presence.

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From perusal of evidence of PWs.2 and 3, we find that, they being the eyewitnesses clearly stated about the incident. Their testimonies are clear and corroborative in nature. Merely because they are relatives of the deceased, their testimonies cannot be doubted. The prosecution witnesses in categorical terms admitted that the accused and the deceased are relatives. In the absence of any material to hold that they are interested witnesses, their testimonies cannot be rejected.

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PW4 though a chance witness corroborated the oral testimonies of PWs.2 and 3 with regard to the victim sustaining

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bleeding injuries in his land by the accused. There was not even a suggestion to these witnesses that they had any animosity towards the accused. Therefore, their presence at the scene cannot be doubted. Their evidence cannot be brushed aside or viewed with suspicion only on the ground that the Investigating Officer did not mention their names in the remand application.

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As per the opinion of PW10-Doctor, the injuries mentioned in Post-Mortem report-Ex-P21 can be caused by the MO10-sickle. In the cross-examination of the Doctor, nothing has been elicited to discredit his testimony and the case of the accused was of total denial. The Doctor was of the firm view that the injury sustained by the deceased was caused by MO10-sickle.

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PW5-Geetanjali, daughter of the deceased, who is a chance witness, came to the spot soon after the incident and through PWs.2 and 3, she came to know about the assault by the accused on the deceased. In her evidence, she has stated on the day of the incident, in the morning, she saw the accused coming from the land to his house holding bloodstained sickle and his clothes were also bloodstained.

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The evidence of eyewitnesses-PWs.2 and 3 and res-gestae witness-PW4, clearly establishes that the deceased was assaulted by the accused with MO10-sickle and he sustained bleeding injury on left side of his neck and he succumbed to the injuries on the spot. In that regard, the ocular testimonies of PWs.2 to 4 are corroborated by the medical evidence of PW10-Doctor.

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Further, the prosecution examined PW16Dr. Chandrashekar, Scientific Officer, Forensic Science Laboratory, who examined twelve articles and issued report as per Ex.P27. The FSL Report-Ex.P27 discloses that the slippersMO1, areca nut leaf-MO2, MO3-bloodstained soil, MO5-coconut, MO6-T-shirt, MO7-banian, MO8-lungi, MO9-underwear, MO10sickle, MO11-sweater, MO12-lungi and MO13-underwear were stained with blood and it is 'A' group. Further, the clothes of the deceased-MOs.6 to 9 and the bloodstained articles recovered at the spot, MOs.1 to 3 were stained with 'A' group blood. As per the FSL report, item Nos.1 to 3 and 5 to 13 were stained with 'A' group human blood i.e., except MO4-sample mud, remaining articles sent were stained with 'A' group blood. It shows that the clothes of the deceased, clothes of the accused

¶140

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and MO10-sickle were stained with A' group blood, but the accused has not offered any explanation as to how his clothes was stained with 'A' group blood. The trial Court has considered and relied on Ex.P27-FSL report. The entire circumstance under which the material was collected including the sickle along with the recoveries were sent to the expert have been explained by the Investigating Officer.

¶142

On perusal of the evidence available, we do not find any delay either in sending the recovered articles to the expert or receiving the FSL report. The circumstance under which they were sent and received was spoken by PWs.15 and 16. The accused has neither shown any prejudice being caused by the alleged delay nor has disputed the findings of the FSL report. The trial Court considering the evidence of the eyewitnesses has come to the right conclusion.

¶143

Perusal of oral testimonies of PWs.2, 3 and 4 and seizure mahazar, Post-Mortem report and oral evidence of PWs10 and 15 clearly establishes that the injured died on account of injury sustained on the left side of his neck caused by MO10sickle. Therefore, the prosecution proved that the death of the victim was homicidal one.

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So far as seizure of bloodstained clothes of the accused and the deceased are concerned, PW9-S. Ravindra, Revenue Inspector has stated that on 5-1-2015, the Police seized bloodstained clothes of the accused-MOs.11 to 13 under Ex-P18-seizure mahazar and a sickle under Ex.P19.

¶147

26. The learned counsel for the accused contended that the accused and the deceased are relatives, their houses and lands are adjacent to each other. The present incident occurred on the spur of moment and the accused had no intention or motive to eliminate the deceased and hence, the alleged offence would attract Section 304 Part I IPC and not Section 302 IPC. In this regard, he relied on the judgment of the Hon'ble Supreme Court in the case of Basdev v. State of Pepsu¹ . Paragraph No.6 of the said judgment reads as under:

¶148

''6. Of course , we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act . In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from

¶149

1 1956 SCC ONLINE SC 13

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knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things.”

¶153

(Emphasis supplied)

¶154

The test applied by the Hon’ble Apex Court in the aforesaid decision is that there are two different terminologies viz., ‘intent’ and ‘knowledge’ and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with the knowledge that his act is likely to cause death. It would be unsafe to treat the intent and knowledge in equal terms. They are not different things. ‘Knowledge’ would be one of the circumstances to be taken into consideration while determining or inferring the requisite intent. Where the evidence would not disclose that there was any intention to cause death of the deceased, but it was clear that the accused had knowledge that his acts were likely to cause death, the accused can be held guilty under Part I of Section 304 IPC. It is in this background that the expressions used in IPC viz., intention and knowledge have to be seen as there being a thin line distinction between these two expressions. The act to

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constitute murder, in the given facts and circumstances, would disclose that the ingredients of Section 300 IPC are not satisfied and such act is one of extreme recklessness, it would not attract the said Section. In order to bring a case within Part III of Section 300 IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, the injury found to be present was the injury that was intended to be inflicted.

¶158

The Hon’ble Apex Court in the case of Deepak v. State of Uttar Pradesh² held that the incident had taken place in the heat of the moment and the assault by a single sword blow in the rib cage was without any premeditation and the incident occurred on the spur of the moment and thus, inferred that there was no intention to kill and as such, the offence was reduced from Section 302 IPC to Section 304 Part I IPC and the appellant was ordered to be released forthwith by sentencing him to the period of detention already undergone.

¶159

On careful perusal of the said provisions makes it clear that culpable homicide is not murder if it is committed

¶160

2 (2018) 8 SCC 228

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without premeditation in a sudden fight, in a heat of passion, upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. It clearly indicates that offence comes under Section 304 IPC, for which the punishment is imprisonment for life or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

¶164

The Hon’ble Apex Court in the case of Anbazhagan v. State represented by the Inspector of Police³ defined the context of true test to be adopted to find out the intention or knowledge of the accused in doing the act and in that regard, at paragraph No.66, it is held as under:

¶165

“66.(1) When the court is confronted with the question, what offence the accused could be said to

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3 2023 SCC OnLine SC 857

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have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused.

¶170

To illustrate: ‘A’ is bound hand and foot. ‘B’ comes and placing his revolver against the head of ‘A’, shoots ‘A’ in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of ‘B’ in shooting ‘A’ was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, ‘B’ sneaks into the bed room of his enemy ‘A’ while the latter is asleep on his bed. Taking aim at the left chest of ‘A’, ‘B’ forcibly plunges a sword in the left chest of ‘A’ and runs away. ‘A’ dies shortly thereafter. The injury to ‘A’ was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that ‘B’ intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of ‘B’ within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.

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(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused’s case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.

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(3) To put in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the

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IPC, it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’.

¶178

(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.

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(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is generally spoken of as an injury ‘likely to cause death’ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.

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To put it more succinctly, the difference between two parts of section 304 IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.

¶183

(6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. When chances of happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.

¶184

(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both,

¶185

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the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.

¶188

(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.

¶189

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(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.

¶192

(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.

¶193

(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.

¶194

(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a

¶195

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case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.”

¶198

In order to consider the aspects of 'intention' or 'knowledge' in the instant case, a perusal of appeal papers would indicate that on the day of the incident, when PW2 was plucking coconuts from the land of the deceased, some coconuts had fallen in the land of the accused, hence, the deceased was lifting the coconuts in the land of the accused, the accused raised objections and there was scuffle between them and in that process, the accused assaulted the deceased with MO10-sickle on his left portion of the neck and the deceased succumbed to the injuries on the spot. Insofar as the incident having occurred and the veracity of the evidence tendered by the prosecution witnesses, there is detailed consideration made by the trial Court believing the versions stated by the prosecution witnesses, more particularly, PWs.2

¶199

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to 4. Therefore, the only aspect which arises for our consideration is as to "whether even if the incident is accepted in the manner it occurred, was it on the spur of the moment and without premeditation?".

¶202

To invoke the provisions of Exception 4 to Section

¶203

300 IPC, four requirements must be satisfied:

¶204

i. It must be a sudden fight;

¶205

ii. There should be no premeditation;

¶206

iii. The act must be done in a heat of

¶207

passion; and

¶208

iv. The assailant should not have taken any

¶209

undue advantage or acted in a cruel or

¶210

unusual manner.

¶211

Admittedly in the present case, the accused was claiming right of pathway to his land and that was denied by the deceased and there was ill will between the parties on that context. Having done so, the deceased himself had entered the land of the accused, a verbal fight took place between the accused and the deceased in relation to lifting the coconuts fallen in the land of the accused. The material on record clearly depicts that there was no premeditation on the part of the

¶212

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accused and the act committed by the accused was in a heat of passion and use of MO10-sickle on the neck of the deceased is without any premeditation. As stated supra, the accused has not taken any advantage and soon after the incident, the accused surrendered before the Police.

¶214

In view of the above, the present case does not fall under the provisions of Section 302 IPC, but it falls under Exception-4 to Section 300 IPC, as the accused has inflicted injury on the neck of the deceased without an intention to cause death and the act of the accused is punishable under the provisions of Section 304 Part I IPC .

¶215

Whereas in the instant case, PWs.2 and 3 have clearly stated that the incident took place in the heat of passion and spur of a moment. The assault by a sickle on the neck of the deceased was without any premeditation and the incident occurred on the spur of moment and thus, there was no intention on the part of the accused to kill the deceased.

¶216

Perusal of the evidence of PWs.2 and 3 in their examination-in-chief as well as in cross-examination, would go to show that altercation took place between the accused and

¶217

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the deceased and on the spur of moment, the accused assaulted the deceased with MO10-sickle. PW2 stated that at the time of the accused assaulting the deceased, he was on the coconut tree and therefore, he could not pacify the quarrel and save the life of the deceased. So also, PW3 neighouring land owner who was working in his land, stated that at the time of incident, he could not pacify the quarrel and by that time, the deceased had already received injury with sickle and the deceased succumbed to the injuries on the spot. These aspects of the matter would indicate that there was no premeditation by the accused to cause the death of the deceased and the incident had occurred on the spur of moment and the accused having realised his mistake, he voluntarily surrendered before Bukkapattana Police and furnished his bloodstained clothes to the Police.

¶220

Having considered the rival contentions of the learned counsel for the parties and on perusal of the entire material on record, it clearly depicts that the alleged unfortunate incident, undoubtedly, has taken place on the spur of moment without premeditation and it cannot be said that the accused had an intention to kill the deceased or knowledge that

¶221

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the injury was likely to cause his death. The accused only

¶223

intended to vent his ire against the deceased and there was no intention for him to kill the victim. Taking into consideration the mitigating circumstances that while there was a verbal fight between the accused and the victim, the accused assaulted the deceased with sickle and caused injury to his neck and he succumbed to the injuries on the spot. Under the aforesaid facts and circumstances, the judgment of conviction passed against the accused under Section 302 IPC has to be scaled down to one under Section 304 Part I IPC. The appeal deserves to be allowed-in-part. Hence, we pass the following:-

¶224

O R D E R

¶225

The appeal is allowed in part.

¶226

The impugned judgment and order of conviction and sentence passed by the trial Court against the appellant/accused for the offence punishable under Section 302 of IPC is hereby set aside.

¶227

The accused is hereby convicted for the offence punishable under First Part of Section 304 of IPC. For the said offence the accused is sentenced to undergo rigorous imprisonment of 10 years and fine of Rs.1,00,000/-. In default

¶228