Sri Sunil Naik Vs the State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 27.03.2018 AND SENTENCE DATED 28.03.2018

¶23

2 -

¶24

NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶25

HC-KAR

¶26

PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, DAVANAGERE IN S.C.NO.35/2016 - CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 504 AND 323 R/W 34 OF IPC AND SECTION 302 OF IPC ETC.

¶27

IN CRL.A NO. 1141/2018

¶28

BETWEEN:

¶29

SRI. PARAMESHNAIK S/O HALANAIK, AGE 50 YEARS, R/AT KUGENAHALLI TANDA, HONNALI TALUK, DAVANAGERE DISTRICT - 577 217.

¶30

...APPELLANT

¶31

(BY SRI. CHAKRAVARTHY T S., ADVOCATE FOR SRI. SHREERAJ S., ADVOCATE)

¶32

AND:

¶33

THE STATE OF KARNATAKA BY NYAMATHI POLICE, HONNALI TALUK, DAVANAGERE DISTRICT - 577 217 REPRESENTED BY ITS S.P.P, KARNATAKA HIGH COURT BUILDINGS, HIGH COURT, BENGALURU-560001.

¶34

...RESPONDENT

¶35

(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II)

¶36

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 27.03.2018 AND SENTENCE DATED 28.03.2018 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, DAVANAGERE IN S.C.NO.35/2016 CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 504 AND 323 R/W 34 OF IPC ETC. THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶37

3 - NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶38

HC-KAR

¶39

CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL AND HON'BLE MR. JUSTICE M.G.S. KAMAL

¶40

ORAL JUDGMENT

¶41

(PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL)

¶42

These two appeals arise out of the judgment and order of conviction and sentence passed in SC No.35/2016 by the II Additional District and Sessions Judge and Special Judge, Davangere.

¶43

The appellants in Crl.A.No.1115/2018 and Crl.A.No.1141/2018 were accused Nos.1 and 2 respectively in SC No.35/2016 before the Trial Court. For the purpose of convenience they are referred to henceforth according to their ranks before the Trial Court.

¶44

Accused No.1 is the father of accused No.2. They were tried in S C No.35/2016 for the charges for the offences punishable under Sections 504, 323 and 302 read with Section 34 IPC.

¶45

The case of the prosecution in brief is as follows:

¶46

(i) That the accused and deceased Surendranaik were the residents of same locality. The family members of the

¶47

4 - NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶48

HC-KAR

¶49

accused and deceased used to collect water from a common public water tap situated near their houses. Their used to be quarrels between members of family of the accused and deceased regarding the said tap water.

¶50

(ii) On 28.11.2015 at 9 a.m. there was a quarrel between PWs.4 and 10 the mother and wife of the deceased on one side and wife and daughter of accused No.1 on the other side. PW.4 and PW.10 had bet the wife and daughter of accused No.1. Due to that ill will, on the same day between 7.30 p.m. and 8 p.m. the accused came to the front yard of the house of Surendranaik and started abusing PW.4, PW.10 and Surendranaik in foul language. Accused No.1 bet PW.4 by his hands and caused her simple injury and started assaulting PW.10. When Surendranaik intervened, accused No.2 pulled out the pipe of the tap uttering that the said tap is the source of dispute, hit on the head of Surendranaik. In the scuffle Surendranaik fell on the ground and bleed through his head and ears. Accused No.2 also fell in the nearby drain and suffered injuries on the back of his head. Accused No.2 escaped with the pipe. Initially Surendranaik was shifted to Mc.Gann Hospital, Shivamogga and from there they shifted him

¶51

5 - NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶52

HC-KAR

¶53

to Nanjappa Hospital. He succumbed to the injuries at 3.00 a.m. on 29.11.2015.

¶54

(iii) Regarding the incident, PW.1/Maternal Uncle of the victim Surendranaik filed complaint as per Ex.P1. Based on that FIR at Ex.P17 was registered. On conducting the investigation, the charge sheet was filed against the accused for the offences punishable under Sections 504 and 323 read with Section 34 IPC and 302 IPC.

¶55

The trial Court on hearing the parties framed the charges for the offences under sections 323, 504 and 302 read with 34 IPC. As accused denied the charges, trial was conducted. In support of its case, prosecution examined PWs 1 to 28, got marked Exs. P1 to P27 and Mos.1 to 8. The accused after their examination under Section 313 Cr.P.C. filed defence statement. Though they did not lead any oral evidence, on their behalf Exs.D1 to D7 were marked by way of confrontation to the prosecution witnesses.

¶56

The trial Court on hearing the parties by the impugned judgment and order has convicted accused No.2 for the offence punishable under Section 302 IPC and accused

¶57

6 - NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶58

HC-KAR

¶59

Nos.1 and 2 for the offences punishable under Sections 504 and 323 read with Section 34 IPC and sentenced them as

¶60

follows:

¶61

Sl. No.	Offences under Sections	Sentence	Fine Amount in Rs.	Defau Senten	lt ce
1	504 R/w Section 34 of IPC for A1 & 2	RI for two years	3,000/- each	SI for months	six
2	323 R/w Section 34 of IPCfor A1&2	RI for one year	1000/- each	SI for months	three
3	302 of IPC for A2	Life imprisonment	30,000/-	SI for years	two

¶62

Challenging the said Judgment and order of

¶63

conviction and sentence accused Nos.1 and 2 have preferred these two appeals.

¶64

Submissions of Sri Chakravarthy, learned counsel for Sri.Shreeraj S., learned counsel for appellants:

¶65

(i) The evidence on record shows that woman folk of the deceased quarrelled with the women folk of accused in the morning and had assaulted them. When they had initiated quarrel in the morning, accused were not at the scene. The evidence on record shows that accused No.2 had also suffered injuries and he was taken to the hospital with history of assault by the deceased.

¶66

7 - NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶67

HC-KAR

¶68

(ii) The genesis of the case is suppressed by the prosecution. All the alleged eyewitnesses are interested witnesses and their evidence was not consistent with regard to accused No.2 assaulting the victim with a motive to kill him. Further the medical evidence shows that the victim got discharged from the hospital against medical advise. Therefore, the death cannot be attributed to the injury allegedly inflicted

¶69

by the accused No.2. Even otherwise, according to the prosecution itself, a single blow was dealt with by accused No.2, that too in the heat of passion and sudden quarrel. Therefore, at the most, the offence falls under Second Part of Section 304 IPC. Accused No.2 has already undergone sentence close to ten years. Therefore sentence of conviction be reduced to Second Part of Section 304 of IPC and minimum sentence be awarded taking into consideration the period of sentence already undergone. In support of his submissions, he relies on the following judgment: Ajmal Vs State of Kerala¹ .

¶70

1 (2022) 9 SCC 766

¶71

8 - NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶72

HC-KAR

¶73

Submissions of Sri. Vijayakumar Majage, learned SPP-II:

¶74

All the eyewitnesses have categorically deposed that accused No.2 has assaulted Surendranaik with an iron pipe. Medical records including post mortem report show that there were multiple injuries on the deceased. Therefore, it cannot be said that there was no intention to commit murder. So far as accused No.1, PW.4 and PW.10/the injured witnesses and other eyewitnesses have clearly stated that he assaulted PW.4 and PW.10 and caused them simple injuries and both accused abused PW.4, PW.10 and Surendranaik in foul language. Therefore order of conviction and sentence against the accused warrant no interference.

¶75

On hearing both side and on examining the materials on record, the questions that arise for consideration are:

¶76

(1) Whether the impugned Judgment and order of conviction and sentence against Accused Nos.1 & 2 for the charges/offences punishable under Sections 504 and 323 read with Section 34 IPC is sustainable?

¶77

(2) Whether the impugned judgment and order of conviction and sentence against accused No.2 for the offence punishable under Section 302 IPC is sustainable?

¶78

9 - NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶79

HC-KAR

¶80

Analysis

¶81

Reg. charges under Sections 504 and 323 read with Section 34 IPC:

¶82

The prosecution case is that the incident took place near the house of the accused near public tap, close to the house of accused and deceased situated in Kuganahalli Village. None of the parties dispute that the house of the accused and deceased situate close to each other and near their houses, a public water tap is situated. Ex.P2/spot mahazar shows that the house of the accused is situated at a distance of 25' and the house of the deceased situated at a distance of 12' from the said tap.

¶83

According to the prosecution, in the morning

¶84

between 8.30 a.m. and 9.00 a.m., there was a quarrel between PW.4 and PW.10 on one side and the wife and daughter of accused No.1 on the other side regarding public tap water. PWs.4 and 10 had assaulted the wife and daughter of accused No.1. Further case of the prosecution is that on learning about

¶85

the same, in the same evening at 8.00 p.m., accused Nos. 1 and 2 went to the front yard of the house of Surendranaik and abused PW.4, PW.10 and Surendranaik in foul language, further accused No.1 assaulted PW.4 by his hands, by that time

¶86

10 - NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶87

HC-KAR

¶88

Surendranaik tried to intervene and accused No.2 pulled the pipe from the tap and hit him on his head and caused his death.

¶89

As per the complaint and charge sheet, the allegations of assaulting PW.4 were only against accused No.1 and not against accused No.2. Even PW.4/injured eye witness states that accused came and picked up quarrel with her daughter-in-law. PW.10 says that it was accused No.1 who assaulted PW.4 and when she went there she tried to intervene accused pushed her also. Contrary to that PW.10 says that accused picked up quarrel and abused them and were beating her mother-in-law and she tried to intervene and accused fell her to the ground and then kicked her and bit her hand. Injury certificate relating to PW.10 is not produced. Under the circumstances the allegations of assault on PW.10 by accused No.1 does not sustain.

¶90

The evidence of PW.24/doctor who examined PW.4 and issued wound certificate Ex.P22 show that she was taken to Mc Gann Hospital with history of assault and she was found with simple injury, i.e., soft tissue injury. Thus evidence of PW.4 and PW.10 was corroborated by the evidence of other

¶91

11 -

¶92

NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶93

HC-KAR

¶94

witnesses regarding assault on PW.4. Therefore, the charge under Section 323 IPC sustains only in respect of assault by accused No.1 on PW.4.

¶95

So far as accused insulting PW.4, PW.10 and Surendranaik in foul language, PW.4 injured witness and PW.6 eyewitness have deposed in tune with the prosecution case. Further, other eyewitnesses PWs. 1, 3, and 9 have consistently spoken about accused abusing PW.4, PW.10 and Surendranaik in foul language. Their evidence shows that such abuse led to Surendranaika assaulting accused No.2 and accused No.2 in turn assaulting Surendranaika with iron-pipe leading to his death. Further the wound certificate at Ex.P21 shows that on the same day accused No.2 was taken to Shivamogga Institute of Medical Sciences with the history of assault by Surendranaik and he had also suffered three injuries. Thus it becomes clear that there was breach of peace due to accused Nos.1 and 2 abusing PW.4, PW.10 and Surendranaik in foul language. Therefore charge for offence under Section 504 read with Section 34 IPC sustains against both accused Nos.1 and 2 and charge for offence under Section 323 sustains only against accused No.1.

¶96

12 -

¶97

NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶98

HC-KAR

¶99

Reg. Charge under Section 302 IPC:

¶100

Though accused Nos.1 and 2 were tried for the charge for the offence punishable under Section 302 IPC, the trial Court by the impugned judgment and order acquitted accused No.1 and convicted only accused No.2 for the said charge. The State has not preferred any appeal against the said Judgment. Therefore, the judgment with regard to charge under Section 302 IPC against accused No.1 has attained finality.

¶101

So far as accused No.2, all the eyewitnesses state that he dealt with blow on the victim with pipe/M.O.1 only once. They do not speak about accused No.2 hitting him multiple times with the said weapon. Even the charge sheet states that on sustaining such blow, Surendranaik fell on the ground, then the relatives and local people assembled there. Charge sheet does not say that accused No.2 further assaulted Surendranaik. Charge sheet states that when people gathered, there was scuffle, accused fell in a drain and suffered injury on the back of his head. Therefore contention of learned SPP-II that other injuries found on victim are attributable to accused No.2 himself is unacceptable.

¶102

13 - NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶103

HC-KAR

¶104

Further as per the evidence of PW13 and Post mortem report/Ex.P11, death was due to coma secondary to head injury sustained. Head injury was not the immediate cause of death. The evidence on record shows that the victim got discharged against the medical advise. This circumstance coupled with Ex.P.21/the wound certificate of accused No.2 and the evidence of PW.24/Medical Officer, Mc.Gann Hospital, shows that on the same day at 11.19 p.m. accused No.2 was taken to the same hospital with the history of assault by Surendranaik. Accused No.2 had also suffered following injuries:

¶105

CLW 1x1/2 inch over occipital region.

¶106

Abrasion 2x1 cm over right side of abdomen. C/o pain abdomen. O/E: Tenderness present.

¶107

Abrasion 3x1 cm over right hand and forearm right.

¶108

Ex.P21/wound certificate belies the theory of prosecution that

¶109

accused No.2 suffered injury by falling in the drain.

¶110

The above evidence clearly shows that there was a scuffle between both accused No.2 and deceased and accused No.2 pulled the iron pipe from the water tap and hit on the head of the deceased once. The cumulative effect of the facts and circumstances show that there was no premeditation on

¶111

14 - NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶112

HC-KAR

¶113

the part of accused No.2 to commit the murder of the victim. He had not gone to the spot with any weapon. The evidence on record shows that there was some overt act by the victim against accused No. 2. On that morning PW.4 and PW.6 had assaulted his mother and sister. Thus, it becomes clear that the accused No.2 resorted to hit the deceased without any premeditation, but in spur of the moment and in the heat of passion. Though in the charge sheet accused No.2 was shown as aged 22 years, wound certificate at Ex.P21 issued by prosecution's own witnesses i.e. PW 24, he was aged just 20 years.

¶114

In similar circumstances in para 17 of the judgment in Ajmal's case referred to supra, the Hon'ble Supreme Court while considering which overt act fall under first and second Part of Section 304 of IPC, relying on its earlier judgment in

¶115

Pulicherla Nagaraju Vs State of A.P. has held as follows:

¶116

"17……..

¶117

13 . The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju v. State of A.P. [(2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500] This Court observed that : (SCC pp. 457-58, para 29)]

¶118

‘ 29 . Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302

¶119

15 -

¶120

NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶121

HC-KAR

¶122

or 304 Part I or 304 Part II. Many petty or insignificant matters — plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : ( i ) nature of the weapon used; ( ii ) whether the weapon was carried by the accused or was picked up from the spot ; ( iii ) whether the blow is aimed at a vital part of the body; ( iv ) the amount of force employed in causing injury; ( v ) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; ( vii ) whether there was any prior enmity or whether the deceased was a stranger; ( viii ) whether there was any grave and sudden provocation, and if so, the cause for such provocation; ( ix ) whether it was in the heat of passion; ( x ) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; ( xi ) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention .’ ”

¶123

(Emphasis Supplied)

¶124

Considering all the aforesaid circumstances, there is

¶125

substance in the contention of learned counsel for appellants that the offence falls under Second Part of Section 304 of IPC.

¶126

16 - NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶127

HC-KAR

¶128

The trial Court has failed to evaluate the evidence and the circumstances judiciously in arriving at the conclusion that acts of accused attract Section 302 of IPC. Therefore, the order of conviction and sentence needs to be reduced to Second Part of Section 304 of IPC.

¶129

Reg. sentence:

¶130

The above discussion shows that the order of conviction and sentence against accused No.1 under Section 323 IPC and Section 504 read with 34 IPC, require to be confirmed. Accused No.1 as on this date is aged 58 years. It is submitted that he has already undergone detention for a period of 169 days. He has faced these proceedings since 2016. He has no other criminal antecedents. Therefore, it would be just and appropriate to restrict the sentence of imprisonment for the period of detention already undergone by him and enhance the fine amount.

¶131

So far as accused No.2, appeal deserves to be allowed in part. The order of conviction and sentence passed against him with regard to the offence under Section 323 of IPC has to be set aside. Further order of conviction for the offence punishable under Section 302 of IPC has to be set aside and he

¶132

17 - NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶133

HC-KAR

¶134

has to be convicted and sentenced for the offence punishable under Second Part of Section 304 of IPC and under Section 504

¶135

read with Section 34 of IPC.

¶136

At the time of offence, accused No.2 was aged 20 years. He is in Judicial Custody since 01.12.2015 i.e., close to 10 years. Therefore it would be just to sentence him for the offence under Section 304 second part IPC for the period of detention already undergone by him and to fine. Hence the following:

¶137

ORDER

¶138

Appeals are partly allowed.

¶139

The impugned judgment and order of conviction and sentence passed against accused Nos.1 and 2 is modified as follows:

¶140

i) The impugned order of conviction passed against accused Nos.1 and 2 for the offence punishable under Section 504 read with Section 34 of IPC is confirmed.

¶141

ii) Impugned order of conviction of accused No.1 for the offence under Section 323 IPC is confirmed.

¶142

iii) The impugned order of conviction and sentence against accused No.2 for the offence under Sections 323 IPC read with Section 34 IPC and Section 302 IPC is hereby set aside.

¶143

18 -

¶144

NC: 2025:KHC:32989-DB CRL.A No. 1115 of 2018 C/W CRL.A No. 1141 of 2018

¶145

HC-KAR

¶146

iv) Accused No.2 is hereby convicted for the offence punishable under Second Part of Section 304 of IPC.

¶147

v) For the offence under Section 323 of IPC, accused No.1 is sentenced to the period of detention already undergone by him and to pay fine of Rs.5,000/-. In default, to pay fine amount he shall undergo simple imprisonment for two months.

¶148

vi) For the offence punishable under Section 504 read with Section 34 IPC accused No.1 is sentenced to the period of detention already undergone by him and fine of Rs.5,000/-. In default, to pay fine amount he shall undergo simple imprisonment for two months.

¶149

vii) The impugned order of sentence against accused No.2 for the offence under Section 504 read with Section 34 is confirmed.

¶150

viii) For the offence under Section 304 Part II IPC, accused No.2 is sentenced to imprisonment for the period of detention already undergone by him and fine of Rs.30,000/-. In default to pay the fine amount, he shall undergo simple imprisonment for one year.

¶151

ix) The aforesaid orders of sentence against accused Nos.1 and 2 shall run concurrently. There shall be a set off in terms of Section 428 Cr.P.C., for the period of detention already undergone by the accused.

¶152

x) The order of trial Court with regard to disposal of the properties is maintained.

¶153

Matter is referred to District Legal Services Authority, Davanagere, for determination/payment of compensation to the victims/PWs.4 and 10.

¶154