Gangadar S/O. Suresh Terdal Vs State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C 1973., PRAYING TO SET ASIDE THE JUDGMENT AND CONVICTION AND ORDER OF SENTENCED DATED 13.12.2022 PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE AND SPL. JUDGE, HAVERI IN SC NO.04/2017 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 143, 147, 148, 307, 324, 326 AND 302 307 R/W. SECTION 34 OF IPC AND ACQUIT THE APPELLANT/ACCUSED NO.2.

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THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT THIS DAY, JUSTICE RAJESH RAI K. , DELIVERED THE FOLLOWING:

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CORAM:

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THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K

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CAV JUDGMENT

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

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This appeal by the convicted accused No.2, is directed against the judgment of conviction and order of sentence dated 13.12.2022 in S.C.No.4/2017 by the I Additional District and Sessions Judge and Special Judge at Haveri (hereinafter referred to as ‘the learned Sessions Judge’) whereby the learned Sessions Judge convicted accused Nos.1 to 4 for the offences punishable under Sections 143, 147, 148, 324, 326, 307 and 302 r/w 34 of IPC and sentenced this appellant/accused No.2 to undergo simple imprisonment for a period of six months and to pay to fine of Rs.2,000/-, in default of payment of fine, directed to undergo simple imprisonment for a period of one month for the offence punishable under Section 143 r/w Section 34 of IPC. Further, sentenced him to undergo simple imprisonment for a period of two years and to pay a fine of Rs.2,000/-, in default of payment of fine, directed to undergo simple imprisonment for a period of one month for the offence punishable under Section 147 r/w Section 34 of IPC. He further sentenced to undergo simple imprisonment for

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a period of three years and to pay fine of Rs.3,000/-, in default of payment of fine, directed to undergo simple imprisonment for a period of one month for the offence punishable under Section 148 r/w Section 34 of IPC. The accused No.2 also sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.15,000/-, in default of payment of fine, directed to undergo simple imprisonment for a period of three months for the offence punishable under Section 307 r/w Section 34 IPC. Further, the accused sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/-, in default of payment of fine, directed to undergo simple imprisonment for a period of six months for the offence punishable under Section 302 r/w Section 34 of IPC. All the sentences were ordered to run concurrently.

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Briefly stated, the case of the prosecution was as follows:

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The complainant PW1-Ningappa Basavaneppa Hanegal is the father of PW.4-Vijayakumar and relative of PWs.5, 6 and the deceased-Devaraj Kaler. Before 26.06.2016, there was a quarrel between PWs.4 to 6, the deceased and the accused persons in a local festival over consumption of gutka. On 26.06.2016 at about 08:30 p.m., one Malathesh

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Karabannanavar i.e., PW.7 informed PW.1-complainant that PWs.4 to 6, deceased and accused were quarreling with each other in front of the house of one Bhasha Sab Badagi and that the accused had inflicted severe injuries on his son-PW.4, PWs.5, 6 and deceased-Devaraj Kaler. Immediately, the complainant rushed to the spot and saw his son and others had sustained severe injuries. Thereafter, the villagers came to the spot and shifted all the injured to KIMS Hospital, Hubbali. The complainant-PW.1 therefore informed the respondent-Police in writing about the incident on 27.06.2016 at about 02:30 a.m. as per Ex.P1. Based on the infirmation, FIR was registered against this appellant and others for the offences punishable under Sections 143, 147, 148, 323, 324, 307, 504 and 506 r/w 149 of IPC in Crime No.188/2016. This appellant was arraigned as accused No.2 as per Ex.P2. Later, during the course of treatment, the injured-Devaraj Kaler succumbed to the injuries in the Hospital at about 01:45 a.m. on 28.06.2016. Hence, the Investigation Officer-PW.17 incorporated an offence punishable under Section 302 of IPC in Crime No.188/2016.

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Subsequent thereto, PWs.17, 23 and 24 conducted the investigation by drawing relevant mahazars, recording the statement of witnesses and after obtaining necessary

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documents from the concerned authorities, laid charge sheet against 10 accused persons by arraying this appellant as accused No.2 for the offences punishable under Sections 143, 147, 148, 323, 324, 326, 307, 302, 504 and 506 r/w 149 of IPC before the committal Court.

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Post committal of case before the Sessions Court, the learned Sessions Judge framed charges against accused for the aforementioned offences and read over the same to the accused. The accused denied the charges and claimed to be tried.

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In order to prove the charges leveled against the accused, the prosecution examined 24 witnesses as PW.1 to PW.24 and marked 33 documents as Ex.P1 to Ex.P33 and identified 9 material objects as M.O.1 to M.O.9.

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On completion of the prosecution evidence, the learned Sessions Judge read over the incriminating evidence of material witnesses to the accused as stipulated in Section 313 of Cr.P.C. However, they refuted the same and claimed that they were falsely implicated.

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After assessing the oral and documentary evidence, the learned Sessions Judge convicted this appellant for the

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charges leveled against him and sentenced him as stated supra . The learned Sessions Judge also convicted accused Nos.1 to 4 for the offences punishable under Sections 143, 147, 148 and 307 of IPC. Further, learned Sessions Judge convicted accused Nos.1 and 4 for the offence punishable under Section 324 r/w Section 34 of IPC and convicted accused No.3 for the offence punishable under Section 326 r/w Section 34 of IPC. Further, learned Sessions Judge convicted accused No.2 for the offence punishable under Section 302 of IPC. Though the other accused approached this Court by filing appeals, they withdrew the said appeals subsequently.

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We have heard the learned counsel

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Sri. Vidyashankar G. Dalwai for the appellant so also the learned Addl. SPP Sri. A.M.Gundawade for the respondentState.

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The learned counsel for the appellant primarily contended that the judgment under this appeal suffers from perversity and illegality since the learned Sessions Judge failed to appreciate the evidence on record in a right perspective. He contended that, PW1-complainant is a hearsay witness and he was informed by PW.7-Malthesh who was an eyewitness to the incident. Whereas, PW.7-Malthesh turned hostile to the

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prosecution case. As far as the evidence of injured eyewitnesses i.e., PWs.4 to 6 and PW.9-eyewitness to the incident, there were serious contradictions and omissions forthcoming in their evidence. Their statement was recorded on 28.06.2016 i.e., two days after the incident. Moreover, these witnesses have not identified the weapon used by this appellant for committing the crime i.e., M.O.7-sewing awl. According to the learned counsel, the crime was committed in the night hours i.e., 08:00 to 08:30 p.m. near the house of one Bhasha Sab. However, the said Bhasha Sab is neither cited as a witness in the charge-sheet nor examined before the Court. There is no evidence forthcoming on record as to how PWs.4 to 6 identified the accused and their specific overt acts in the night hours i.e., 08:00 to 08:30 p.m. He contended that, as such, no credence can be given to the evidence of injured witnesses-PWs.4 to 6 and the eyewitness PW.9. He also contended that the prosecution failed to prove the motive for the alleged incident and the recovery of weapons used for commission of crime. Hence, he prays to allow the appeal by setting aside the impugned judgment passed by the trial Court.

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10. Alternatively, the learned counsel contended that

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the death of the deceased-Devaraj Kaler was caused in a free

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fight between two groups i.e., accused and PWs.4 to 6. According to the evidence of PW.4, the deceased-Devaraj Kaler was in no way connected to the incident but was injured when he intervened to pacify the two groups, which resulted in his death. Hence, he contended that there was no premeditative motive on the part of the appellant to commit the murder of deceased-Devaraj Kaler. Hence, he contended that the alleged act of the accused squarely falls under Exception 4 to Section 300 of IPC which is punishable under Section 304 Part I or II of IPC. Accordingly, he prays to modify the sentence.

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Refuting the above submission, the learned Addl. SPP vehemently contended that the judgment under this appeal does not suffer from any perversity or illegality, since the learned Sessions Judge after meticulously examining the evidence on record, passed a well reasoned judgment which does not call for any interference at the hands of this Court. He contended that the evidence of PWs.4 to 6-the injured eyewitnesses and PW.9-the eyewitness to the incident have categorically stated in their evidence that on the fateful day, the accused due to previous ill-will, quarreled with them and assaulted them with deadly weapons i.e., M.Os.1 to 9. According to PWs.4 to 6, the appellant/accused No.2 assaulted

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the deceased with M.O.7-sewing awl and caused grievous injuries, which resulted in his death. The learned Addl. SPP also contended that the recovery of M.Os.1 to 9 under Ex.P3 have been proved in the evidence of PWs.1 and 2. Further, the prosecution also proved the motive for the alleged incident. PWs.4 to 6 the injured eyewitnesses have stated that the accused was grinding ill-will against them in connection with a previous tiff 2-3 years before the incident regarding consumption of gutka. Hence, he submitted that the prosecution successfully proved the guilt of appellant/accused No.2 beyond all reasonable doubt. Accordingly, he prays to dismiss the appeal.

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Having heard the learned counsel for the respective parties and on perusal of the entire evidence and documents on record, the points that arise for our consideration are:

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(i) Whether the judgment under this appeal suffers from perversity or illegality?

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(ii) Whether the learned Sessions Judge is justified in convicting the appellant/accused No.2 for the offences punishable under Sections 143, 147, 148, 307 and 302 of IPC?

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In order to prove the homicidal death of deceased-

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Devaraj Kaler, the prosecution predominantly relied on the evidence of PW14-Doctor who conducted autopsy on the body of the deceased and issued post-mortem report as per Ex.P12. On careful reading of Ex.P12, it discloses that the cause of death was due to “hemorrhage and shock as a result of injury sustained”. The Doctor who was examined as PW.14 stated that injuries sustained by the deceased were ante-mortem in nature. This evidence of PW.14 corroborates the contents of Ex.P7-Inquest Panchanama drawn by PW.23-Investigation Officer. PW.3 and CW.4 are the panch witnesses for Ex.P7. PW.3 has deposed that, he identified the injuries on the body of the deceased. Hence, on a collective reading of Exs.P7 and P12 along with evidence of PWs.3 and 14, in our considered view, the prosecution has proved the homicidal death of deceased beyond reasonable doubt.

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In order to connect the accused with the homicidal death of deceased, the prosecution predominantly relied on the evidence of PWs.4 to 6-injured witnesses and PW.9-eyewitness to the incident. On a careful scrutiny of the evidence of PWs.4 to 6, they have stated that due to the previous animosity, the appellant and other accused formed an unlawful assembly on

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26.06.2016 at about 08:30 p.m., near the house of one Bhasha Sab and assaulted them with deadly weapons-M.Os.1 to 9 and caused injuries to them and the deceased-Devaraj Kaler. Thereafter, all the injured were shifted to KIMS Hospital, Hubballi and during the course of treatment, the deceasedDevaraj Kaler succumbed to the injuries. They further deposed that, accused No.2 i.e., the appellant assaulted the deceasedDevaraj Kaler with M.O.7. The credibility of these witnesses is not shaken by the defence in the cross-examination, except suggesting to the witnesses that they did not commit the crime. Further, Exs.P13 to 15-the wound certificates, X-ray reports-Exs.P19 to P24 coupled with other case summary sheets pertaining to PWs.4 to 6 establishes that the injured were treated for the injuries they sustained in the crime committed on 26.06.2016. Admittedly, the deceased-Devaraj Kaler also sustained injuries in the said incident and succumbed to the same. PW9-eyewitness to the incident also supported the case of prosecution and stated that, the appellant and other accused assaulted the deceased and PWs.4 to 6 at the time of incident. He also identified MO.7-sewing awl i.e., the weapon used by the appellant for commission of crime. Further, the evidence of PWs.4 to 6 and 7, corroborates the testimony of

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PW14-Doctor who conducted the autopsy and the DoctorPW.15 who initially examined the injured i.e., PW4 to 6 and issued MLC report as per Ex.P23. Additionally, PW1-the father of PW.4 who set the criminal law into motion by lodging Ex.P1complaint, reiterated the assertion made in the complaint, in his evidence before the Court. It was vehemently contended by the learned counsel for the accused that PW.1 is a hearsay witness and the person who informed him about the incident i.e., PW.7 turned hostile to the prosecution case. As such, the evidence of PW.1 cannot be relied for any purpose; and non lodging of complaint by PWs.4 to 6 creates doubt about the genesis of the incident. However, on perusal of the evidence of PWs.4 to 6 and Doctor-PW.15, clearly established that PWs.4 to 6 were severely injured and were under treatment. Therefore, PW.1 had lodged the complaint. This itself cannot be a ground to discard the case of prosecution. As rightly contended by the learned Addl. SPP, the recovery of M.O.7 at the instance of the appellant under Ex.P3 is proved in the evidence of PWs.1 and 2. Both these witnesses have stated that the accused showed the place of incident and weapon-M.O.7 was recovered at his instance along with other accused. Further, PW.22-the Doctor who examined the deceased-Devaraj Kaler gave an opinion that

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the injuries suffered by the deceased-Devaraj Kaler could be caused by M.Os.7 to 9. In such circumstance, the recovery of M.O.7 at the instance of this appellant and the assault by him on the deceased with the said object was also proved by the prosecution. Hence, on an overall analysis of the evidence of material witness, we are of the considered view that the prosecution has proved the involvement of appellant in the crime and he is solely responsible for the homicidal death of deceased.

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As far as the alternative contention of the learned counsel for the appellant that the appellant had no premeditative motive to commit the murder of deceased and as such, the act of accused may be excepted under Exception 4 to Section 300 of IPC which is punishable under Section 304 Part I and II of IPC is concerned, we have carefully analyzed the facts and circumstances of the case coupled with the evidence of injured and other eyewitnesses. We can see from their evidence that, on the fateful day, an unfortunate incident happened in a sudden fight between two groups i.e., accused and deceased without any formidable reasons/motive. Though the prosecution claimed that the motive for the incident was previous animosity in connection with the consumption of

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gutka, but, PWs.5 and 6 have failed to state the year and date when the two groups quarreled. According to PW.4, the two groups quarreled in the year 2015 but PW.6 deposed that it was three years prior to the date of the fateful incident. Hence, it is clear that, the incident in question was caused in the heat of moment in a sudden quarrel. Moreover, according to PW.4, the deceased intervened to pacify the accused and PWs.4 to 6. During the said course, the appellant assaulted him. Additionally, in the complaint-Ex.P1 it is stated by PW.1 that the appellant assaulted the deceased with broken beer bottle, but according to PWs.4 to 6, the appellant assaulted deceased with M.O.7-sewing awl. The Investigating Officer failed to place any materials on record to establish that the accused had plotted or hatched a conspiracy either on the date of incident or prior to that, to eliminate the deceased or PWs.4 to 6. As per the prosecution case, the accused used a cobbler’s tool and assaulted the deceased during a sudden fight between two groups. In such circumstance, no intention or motive can be attributed to the appellant to commit the murder of deceased. In such circumstance, the appellant is entitled to the benefit of Exception 4 to Section 300 of IPC. It is pertinent to mention at this juncture, that when the deceased was assaulted, the

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appellant did not chose a vital part of the body of the deceased and the deceased did not die instantaneously. Per contra , he was shifted to Hospital and on the second day of the incident he succumbed to the injuries in the Hospital. Hence, we are of the opinion that the appellant did not have any premeditative motive to murder the deceased.

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In similar circumstances, the Hon'ble Apex Court in the case of Rambir Singh vs. State (NCT of Delhi) reported in 2019 (6) SCC 122 , held that, in a sudden fight, in absence of premeditative motive, when an act is committed in a heat of passion, if the offender has not taken undue advantage or acted in a cruel/unusual manner, the conviction can be converted from Section 302 to Section 304 Part I or Part II of IPC. In Paragraph No.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,

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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 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 appellantaccused 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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Though the learned Addl. SPP vehemently contended that the accused has inflicted multiple blows on the deceased and thereby acted in a cruel manner and his act may not fall under Exception 4 of Section 300 of IPC, in the case of

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Surinder Kumar vs. Union Territory of Chandigarh

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reported in 1989 (2) SCC 217 the Hon’ble Apex Court held that, even three injuries inflicted on the deceased by the accused is insufficient to establish that the accused acted in a cruel manner. When, in a sudden quarrel, a person in the heat of moment, picks up a handy weapon thereby causing injuries,

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one of which proves fatal, he would be entitled to the benefit as stipulated in Exception 4 to Section 300 of IPC. The number of wounds inflicted during the altercation is not a decisive factor.

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Applying the principles enumerated in the above judgments of the Hon’ble Apex Court to the facts and circumstances of this case, we are of the opinion that the act committed by the accused was without any premeditative motive but was in a sudden fight. In such circumstance, the act of the accused is excepted under Exception 4 to Section 300 of IPC. In that view of the matter, we are of the considered view that the accused is liable to be punished under Section 304 Part I of IPC instead Section 302 of IPC. However, insofar as the remaining offences punishable under Sections 143, 147, 148 and 307 r/w Section 34 of IPC the prosecution has proved the guilt of accused and the same do not call for any interference.

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The learned counsel for the accused submits that

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the accused is incarcerated for a period of 9 years. Though punishment prescribed for the offence punishable under Section 304 Part I of IPC is imprisonment for life or imprisonment for 10 years and fine, by considering the fact and circumstance of the case we are of the view that, imposing 10 years sentence would be sufficient for the offence punishable under Section

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304 Part I of IPC with fine. Accordingly, we answer Point No.1

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in the negative and Point No.2 in partly affirmative and proceed to pass the following:

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ORDER

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i. Crl.A.No.100054/2024 is allowed in part .

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ii. The conviction and sentence imposed by the learned Sessions Judge in S.C.No.4/2017 dated 13.12.2022 by the I Additional District and Sessions Judge at Haveri is modified in respect of offence punishable under Section 302 of IPC.

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iii. The appellant-accused No.2 is sentenced for the offence punishable under Section 304 Part I of IPC instead Section 302 of IPC. He is sentenced to undergo imprisonment for a period of 10 years and shall pay a fine of Rs.10,000/- and in default of payment of fine, he shall under go simple imprisonment for a period of two months for the offence punishable under Section 304 Part I of IPC.

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iv. The conviction and sentence imposed by the learned Sessions Judge for the offences punishable under Sections 143, 147, 148 and 307 r/w 34 of IPC against appellantaccused No.2 are kept intact.

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v. All the substantive sentences shall run concurrently and the accused is entitled for the set off for the period he has undergone in judicial custody under Section 428 of Cr.P.C.

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vi. Registry is directed to send back the trial Court records along with copy of this judgment to the trial Court, forthwith.

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SD/(R.NATARAJ) JUDGE

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SD/(RAJESH RAI K) JUDGE

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HKV CT:PA

Gangadar S/O. Suresh Terdal v. State of Karnataka

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Gangadar S/O. Suresh Terdal v. State of Karnataka

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