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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
CRL.A.NO. 512 OF 2017
BETWEEN:
SANTHOSH @ PRATHAP
S/O. DEVENDRA
AGED ABOUT 27 YEARS
R/O. 3RD CROSS, MANDI MOHALLA
NEAR POLICE STATION
MYSURU (AT PRESENT LODGED IN
PARAPPANA AGRAHARA CENTRAL PRISON
CTP NO 8933)
PARAPPANA AGARAHARA
BENGALURU - 560 100. ...APPELLANT
(BY SRI. KRISHNAPPA N.R., ADVOCATE)
AND:
STATE BY KRS POLICE STATION
MANDYA DISTRICT
REPRESENTED BY SPP
HIGH COURT BUILDING
HIGH COURT
BENGALURU - 560 001. ...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP (PHYSICAL HEARING))
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)OF
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 18.10.2016 AND SENTENCE DATED 19.10.2016 PASSED BY
THE III ADDL. DISTRICT AND SESSIONS JUDGE, MANDYA, SITTING
AT SRIRANGAPATNA) IN SPECIAL CASE. NO. 5015/2014
CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 22.03.2021, THIS DAY, RAVI V.
HOSMANI, J., PRONOUNCED THE FOLLOWING:
JUDGMENT
Challenging the impugned judgment of conviction dated 18.10.2016 and order of sentence dated 19.10.2016, made in S.C.No.5015/2014 on the file of III Additional District and Sessions Judge, Mandya (sitting at Srirangapattana) convicting the accused for the offence punishable under Section 302 of IPC, the accused filed this appeal.
2. Brief facts leading to this appeal are that one Sudhakar filed a complaint with K.R. Sagar Police Station stating that on 17.10.2013, he along with Kempa and Manju - Pump operator, were sitting and chatting near the pump house in front of Cauvery Samudaya Bhavana after having lunch. Everyday tourists visit Balamuri to swim in Cauvery River. At about 3.30 p.m., two boys were quarrelling and hitting each other, in front of main entrance of 3 Cauvery Samudaya Bhavan, he heard one of them abusing the other for having illicit relationship with his wife and cheating him. The boy wearing red shirt was shouting that he was indeed enjoying his wife and had brought him there to finish him, saying so, he hit him, made him to fall down and picked up a stone from nearby and dropped it on the head of the boy, blood splashed out. They saw that head was crushed and blood was flowing. On seeing them, the boy threw the stone aside. When he tried to escape, they caught hold of him. Upon asking, he told his name was Santosh and was a resident of Mandi Mohalla, Mysore and the other was Karthik, also a resident of Mandi Mohalla, Mysore. As it appeared to complainant that with an intention to continue illicit relationship with Kartik's wife, Santosh had brought Kartik to Balamuri and murdered him, hence, action was sought against him.
3. On receipt of complaint at 4.30 p.m., it was registered as Crime No.243/2013 for offence under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for short) and made over to jurisdictional Magistrate. After investigation, charge sheet was filed against accused-Santosh for aforesaid offence. 4
4. On committal to Sessions Court, charges were framed and read over to accused. He pleaded not guilty and claimed to be tried.
5. In order to prove its case, prosecution examined 27 witnesses as PWs-1 to PW.27 and Exs.P.1 to P.38 and M.Os.1 to 11 were marked. After completion of the evidence of the prosecution witnesses, the statement of the accused under Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.' for short) was recorded. Accused denied all the incriminating evidence against him. No defence evidence was led in except marking contradictory portions of statement of witnesses as Ex.D1 to D3.
6. After considering the pleadings on both sides, trial Court framed following points for consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 17.10.2013 at 3.30 p.m., in front of Sri. Cauvery Convention Hall, Belagola, Bulmuri, the accused intentionally committed murder of deceased Karthik by dropping size stone on his head and thereby committed the offence punishable under Section 302 of IPC?
2. What order?
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7. On examination of material on record trial Court answered point No.1 in affirmative and point No.2 by convicting accused for offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.50,000/- compensation under Section 357 of Cr.P.C., in default of payment of fine, to undergo rigorous imprisonment for a period of one year. Aggrieved by the said judgment of conviction and order of sentence, accused is in appeal.
8. We have heard the learned counsel for the parties.
9. Sri. N.R. Krishnappa, learned counsel for accused- appellant submitted that impugned judgment and order of conviction are liable to be set aside, as trial Court failed to take notice that all three eye witnesses viz., PWs.1 to P.W.3 turned hostile. Trial Court misunderstood deposition of PW.7 - grandmother of deceased, who stated that she was not aware of motive for murder. However, prosecution did not treat her as hostile and cross-examined her. Even PW.6, wife of deceased not supported prosecution case. But, trial court instead of extending 6 benefit of doubt, proceeded to illegally convict accused. Apart from eye witnesses, even mahazar witnesses also not supported prosecution case. Trial Court by considering only inculpatory material without considering exculpatory material, convicted accused. Admittedly, murder occurred in a tourist place, during day time, when tourists had flocked the place. But, there is no explanation by Investigating Officer for not examining any other eye-witnesses. Failure of Investigating Officer to investigate from other witnesses available at the spot is a material omission. Without considering this factor, trial Court convicted the accused. Prosecution also failed to secure report about blood group of blood found on clothes of accused as well as on M.Os. In the absence of same, chain of events leading to an indisputable conclusion that murder of deceased Kartik was committed by accused alone cannot be said to have been established beyond reasonable doubt. Hence, he sought to allow the appeal.
10. Per contra, Sri. Vijaya Kumar Majage, learned Additional State Public Prosecutor (ASPP) submitted that prosecution established the case against accused by examining eye- 7 witnesses. Accused was in fact, apprehended on spot by complainant and others, immediately after incident, while he was trying to escape. Prosecution further established by producing photographs taken by accused and deceased at the spot prior to incident that both accused as well as deceased-Kartik went to Balamuri together. Presence of accused and deceased together at the spot and shops visited by them near the spot was established by prosecution by examining shop owners and producing photographs taken by accused and deceased together on the date of incident. PWs-1 to PW.3 deposed about seeing accused and deceased sitting in front of entrance of Cauvery Samudaya Bhavana, where both of them quarrelling and fighting each other. They saw accused hitting deceased, made him to fall and accused dropping a huge stone on head of deceased and killed him. When accused tried to escape from the scene, he was caught by PWs-1 to P.W3 and handed over to police. In the absence of any ill-motive on the part of PWs-1 to PW.3 to depose falsely against accused, their evidence duly established prosecution case. In fact, failure to establish motive for murder would not be ground for acquittal, as 8 accused failed to explain incriminating evidence against him in his statement recorded under Section 313 of Cr.P.C.
11. It was further submitted that prosecution case was supported by three eye witnesses i.e. PWs -1 to PW.3, who are material witnesses. Learned ASPP submitted that material witnesses for prosecution are PWs -1 to 3; PW.8, PWs-18 to PW.21, PWs-23 to PW.27, who have deposed about the manner of commission of the offence by accused. Taking note of the same, trial court rightly convicted the accused and no case for interference was called for in appeal.
12. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present appeal is:
"Whether the judgment of conviction and order of sentence passed by trial court against accused for offence under Section 302 of IPC and imposing sentence for imprisonment for life with fine of Rs.50,000/- etc., is justified?"
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13. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
14. In this case, conviction of accused is based on evidence of eye witnesses i.e., PWs 1 to PW.3, corroborated by mahazar witnesses, investigation witnesses and medical evidence. In order to adjudge the point for consideration, a brief reference to evidence of witnesses on record is necessary:
(i) PW-1: Sri Sudhakar, is the complainant. In his examination-in-chief, he stated that he had never seen accused earlier. He denied knowing Kartik and occurrence of incident. In fact, he stated that he does not know anything about the case, except that when he was near his field, police took his signature. He admitted his signature on complaint (Ex.P.1), but denied knowing its contents. He stated that his land is situated near Balamuri Choultry and police Jeep was parked near it. He also denied knowing reason for their presence. He admitted his signature on Panchanama-Ex.P.2, but denied knowledge of its contents. He further denied that when he and Kempa were sitting in 10 front of pump house, they saw accused and Kartik were quarrelling. He denied conducting of spot panchanama in his presence. On being treated hostile and cross-examined, he stated that Samudaya Bhavan is on the bank of Cauvery river, at Balamuri; on 17.10.2013, he had gone to his fields; and after having lunch, he and Kempa were sitting near pump house in front of Cauvery Samudaya Bhavan. He denied the suggestion that at 3.30 p.m., he saw two boys fighting with each other in front of Samudaya Bhavan. He denied all other suggestions made in terms of contents of complaint.
During his cross-examination on behalf of accused, it is elicited that during Dussehra festival in October, tourists visiting Balamuri and that on both sides of Samudaya Bhavan, there are fishermen huts and that P.W.15 - Anand used to collect toll from morning till evening etc. He admits that if any untoward incident occurs in Balmuri, immediately everyone will know.
Thus, it is clear PW1 is not an eye-witness of the incident. His deposition does not support the prosecution case.
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(ii) PW-2: Kempegouda, is also examined as an eye-witness. He is the waterman working at pump house in front of Samudaya Bhavan. He deposed that on date of incident between 3.00 and 3.30 p.m., he saw accused and deceased sitting at the entrance of Samudaya Bhavan, when accused picked up a stone lying nearby, dropped it on head of deceased killing him and tried to run away, he was caught by PW-2 and others. At that time, PW1 was in his field about 100 ft. away from the spot. He informed the police over telephone. Accused was handed to them. He identified accused as the person who dropped stone on head of deceased. He also stated, accused told him deceased was his sister's husband. He was harassing his sister, therefore, he consumed alcohol and killed him. Photographs taken by accused and deceased prior to incident were identified as Ex.P.3 and P.4. Photographs taken after arrival of police were identified as Exs.P.5 to P.14. After he denied giving any statement to police about reason for ill-will between deceased and accused, he was treated as hostile and cross-examined. During his cross-examination by prosecutor, PW-2 admitted accused told him that he had brought Kartik to Balamuri with an intention to murder 12 him, after Kartik came to know about his illicit relationship with Kartik's wife.
In the cross-examination on behalf of accused, it is elicited that Balamuri is a tourist place visited by thousands of people and at the time of incident, there were thousands of tourists in parking space, about 200-300 ft. away and some fishermen reside nearby. He also admitted that he saw accused and deceased had changed their cloths after taking bath in the river and deceased was lying down. It is specifically elicited that they did not appear to be drunk. During further cross-examination, it is elicited that at the time of incident, along with Suresh, fisherwomen Bhagyamma and Rathnamma were also present and Manjunath came thereafter. It is elicited that he informed police at 3.45 p.m. After eliciting that PW-2 did not go to police station and gave statement on 18.10.2013, the contradictory portion of his statement recorded by police is got marked as Ex.D.1. Suggestions that he did not witness the incident; that Kartik had consumed alcohol and died after falling down on stone; that he is deposing falsely at the instance of police; and based on photographs, he assumed that accused murdered deceased are denied. But, he admits 13 suggestion that Kartik died due to bleeding when his head got fractured after being hit by stone. To the suggestion that if M.O.1 stone was dropped, head would be completely crushed, the answer given was that the stone fell on both head and shoulder.
On careful examination of deposition of PW-2, it is clear that PW-2 witnessed the incident. He saw accused and deceased sitting at entrance of Samudaya Bhavan. He also saw accused picking up stone and dropping it on deceased's head, leading to his death. His deposition about presence of accused at the spot, at the time of incident is corroborated by Exs.P.3 and P.4 - photographs. Though during cross-examination by prosecution, he admits knowing about reason for murder, it is contradictory to admission elicited in cross-examination. There is an attempt by defence to substantiate a case for adverse inference against prosecution by eliciting admissions about presence of or possibility of other eye- witnesses to the incident. However, it is settled law that mere possibility of other eyewitness does not vitiate investigation. And though PW.2 was treated as hostile by prosecution, it was partial and only insofar as his deposition about reason behind the murder. 14
One important fact to be noted here is the suggestion made to PW.2 that death of Kartik was due to his falling down in drunken state and his head hitting the stone. This suggestion, in consonance with opinion of PW.23 as per Ex.P.29 - Post- mortem report, wherein cause of death mentioned as due to injury sustained to head and coma. As opinion of PW.23, injuries mentioned in Ex.P.29 are possible if M.O.1 is dropped on head.
(iii) PW-3: Manjunath is also examined as an eyewitness. He was a pump operator at Balamuri and PW.2 was also a pump operator. He stated that on date of incident, when he was proceeding to work at 2:00 p.m., PW.2 was near the pump-house. At that time, he saw accused near Samudaya Bhavan and another person was sitting there. After 45 minutes, when he came out for coffee, PW.2 pointed out direction and asked him to see. But, by then, incident had already occurred. Thereafter PW.2 told him that accused was caught for committing murder. PW.3 identified the persons in Ex. P.4-photograph as those he had seen while going to work and one of them was accused and other was the deceased. He identified M.O.1 as the stone which was dropped on the head of 15 deceased and Ex.P.5 to P.14 as photographs taken at the spot by police. He also stated that Police collected sample of blood from the spot. He admitted his signature on inquest panchanama-Ex.P.15.
In his cross-examination by public prosecutor, treating him as hostile, he admits that he had seen accused in front of Samudaya Bhavan; two boys were fighting with each other and one of them was abusing the other about illicit relationship with his wife. However, except admitting suggestion that body was taken to K.R. hospital, Mysore, remaining suggestions in terms of contents of complaint are denied.
In the course of cross-examination by accused, it is elicited that by the time, he looked in the direction pointed by PW-2, incident had already occurred and he does not know how it occurred. He further admits that after drawing panchanama, police did not read over its contents, but took his signature and he denied signing inquest panchanama.
From the above deposition, it is clear that PW.3 is not an ocular witness of the incident. His deposition corroborates that of PW.2 and establishes presence of accused at the spot of incident and PW.2 witnessing the incident.
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(iv) PW-4:Thimmegowda, is examined as mahazar witness. He stated that he was working as in-charge of Balamuri Temple; that Samudaya Bhavan was constructed by Temple authorities and on date of incident, he went to Samudaya Bhavan after he was informed about the incident and saw body of deceased lying at the entrance with head injuries. He stated that police took photographs while inspecting the spot. He identified himself in Ex.P.5 - photograph. He admitted his signature on Ex.P.2 - panchanama and Ex.P.15 - mahazar.
During his cross-examination on behalf of accused, he admits that he does not know contents of panchanama, but signed it on request of police and further admitted that he did not visit Mysore Hospital, but signed Ex.P.15 at the spot of incident. In view of the above admissions, evidence of PW-4 is not helpful to the prosecution case.
(v) PW-5: Ashokrao, is the father of deceased. He deposed that accused was son of his mother's brother. He stated that accused and deceased used to sell utensils in villages by taking them from his shop. He stated that he had invited accused, deceased and his daughter-in-law to Mysore, for Dussehra festival. 17
During cross-examination, it is elicited that relationship between accused and Kartik was cordial and neither of them told him about any differences between them. Suggestions that he gave statement before police about Kartik and accused coming home drunk every day quarrelling, are denied.
Though PW-5 is not material witness insofar as incident, his deposition about relationship between accused and deceased is material and to that extent relevant.
(vi) PW-6: Jyothi, is wife of deceased. She deposed that when accused had come to Channarayapatna, deceased had asked him not to stay in his house. She further deposed that her father-in-law had invited them to Mysore for Dussehra and 8 days after their arrival, her husband was murdered. She identified M.O.2 as her husband's slippers.
During cross-examination, she admits that relationship between deceased and accused was cordial and accused never misbehaved with her. She denies giving statement before police that accused and deceased used to come home every day after consuming alcohol. In view of said admission, contradictory portion in her statement given to police is got marked as Ex.D2. 18
Like PW-5, PW-6 are also not a material witness insofar as the incident, but her deposition about relationship between accused and deceased is material and relevant to that extent.
(vii) PW-7: Lalithabai, is grandmother of deceased. She deposed that accused is son of her younger brother and was raised by her. She stated that his relationship with deceased was cordial. Though he was staying with Kartik, he killed him and she does not know the reason. She was treated as partially hostile and cross- examined. To a suggestion that Kartik was cheating accused- Santosh, for that she answered 'maybe'. She however admitted stating before police that she came to know accused had taken deceased with an intention to kill him.
In her cross-examination on behalf of accused, it is elicited that accused and Kartik used to stay with her and go together for selling utensils and they never quarrelled. She admits that deceased did not complain to her about accused misbehaving with PW.6. She admits that she does not know how incident occurred, and she has not seen who did it. Admittedly, PW.7 is not a witness to the incident. Her deposition about relationship between accused and deceased being cordial is relevant.
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From deposition of PWs.5 and PW.6, deposition of PW.7 is relevant only insofar as relationship between accused and deceased being cordial and prosecution failed to establish illicit relationship between accused and wife of deceased.
(viii) PW-8: Prasanna, is the pancha witness for seizure of cloths of accused as per Ex.P.17 - panchanama. He denies seeing accused earlier at any time. He deposed that about two years ago, when he visited K.R. Police Station, police took his signature on a document. He admits his signature on Ex.P.17, but denies knowledge of contents or seizure of Ex.P.3 and P.4-photographs from accused in his presence. All suggestions made by Public Prosecutor are denied. Said witness did not support prosecution case.
(ix) PW-9:Sunil Kumar is a photographer. He is examined to establish that Ex.P.3 and P.4 - photographs taken by him prior to incident. He admits Ex.P.3 and P.4 were taken by him, but denies knowing anything about incident. During cross-examination by Public Prosecutor, he admits visiting the spot of incident and seeing the scene as depicted in Ex.P.5-photograph i.e., body of deceased 20 with head crushed. All other suggestions are denied and nothing material is elicited from his cross-examination.
From the above, except to an extent that Ex.P.3 and P.4 - photographs were taken by him, deposition of P.W.9 does not support prosecution case.
(x) PW-10: Madhurababu, is the owner of a cold-drink parlor at Balamuri. He is examined by prosecution to establish that accused had come to Balamuri along with deceased and visited his shop to buy drinks. But he denies giving statement to police as per Ex.P.19. Even after cross-examination by prosecution, said witness did not support prosecution case.
(xi) PW-11-Shivu, is a seller of cold drinks at Balamuri. He also denied giving statement before police as per Ex.P.20. Like PW10, he did not support prosecution case.
(xii) PW-12-Sunil is owner of Chicken stall at Belagola Bus stop. He admits his signature on Ex.P.15-inquest panchanama, but denies his presence while conducting panchanama. Despite cross- examination by Public prosecutor, he did not support prosecution case.
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(xiii) PW-13-Ashokkumar is a pancha witness for Ex.P.17- seizure mahazar of clothes of accused. He disputes signature on Ex.P.17. Despite cross-examination by Public Prosecutor, he did not support prosecution case.
(xiv) PW-14-Krishna, is also a cool-drink seller at Balamuri. Even he did not support prosecution case, despite cross- examination by public prosecutor.
(xv) P.W.15-Anand, is the tourist vehicle fee collector at Balamuri. Even he did not support prosecution case.
(xvi) P.W.16-Shivu was a worker in Vishwashresta Cool drink parlor, Balamuri. He denies knowledge of incident and did not support prosecution case, despite cross-examination by public prosecutor.
(xvii) P.W.17-Krishna is a fisherman at Balamuri. He admits seeing accused when he was caught hold by public after the incident. He admits to have witnessed scenes depicted in Exs.P.5 to P.12 - photographs. But, deposed that he does not know how incident occurred. Despite cross-examination by Public prosecutor, he did not support prosecution case. 22
(xviii) P.W.18-Udaya Kumar, is a Junior Engineer, PWD. He deposed that he prepared sketch of scene of occurrence marked as Ex.P.25. During his cross-examination, he denies suggestion that he did not prepare sketch as existing at scene of occurrence, but prepared it in police station.
Nothing worthwhile is elicited during cross- examination. Thus to the extent of preparing Ex.P.25-spot sketch, said witness supported prosecution case.
(xix) P.W.19-Dr. Chaya Kumari, is a Scientific Officer, RFSL, Mysuru. She deposed that on receipt of eight sealed articles, she conducted chemical analysis and found items no.1 to 8 to be stained with group 'A' human blood. She admitted issuing report marked as Ex.P.26 and specimen seal as Ex.P.27. She identifies M.Os. were the items tested by her. In her cross- examination, it is elicited that she cannot say for how many days, blood stains on stone and mud would survive. A suggestion that M.O.1 was not sent to her for analysis is denied. She admits that in her report, she only answered questions posed to her by the Investigating Officer.
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From reading the deposition, nothing worthwhile is elicited from cross-examination of this witness. Thus, to the extent of receiving M.O.s 1 to eight, testing them and issuing report as per Ex.P.26, said witness supported prosecution case.
(xx) P.W.20-Shivaprakash, was working as Head constable during 2009 to 2014 at K.R. Police Station. He deposed that on 17.10.2013, he was the Station-in-charge. At 5:00 p.m., Police Constable Pramod Kumar submitted a report in which PSI had directed registration of case as per complaint of Sudhakar and after registration, he forwarded FIR to jurisdictional Court and higher Officers. He identified Ex.P.1 as complaint received and Ex.P.28 as the FIR registered by him.
Nothing worthwhile is elicited from cross-examination of this witness. Thus, to an extent of receiving complaint and registering FIR said witness supported prosecution case.
(xxi) P.W.21-H. Prakash, was working as a Police Constable at K.R. Sagar Police Station between 2009 and 2014. He deposed that on 17.10.2013, he received telephonic intimation from PSI regarding incident. Thereafter he along with two other Constables 24 accompanied PSI to spot. When they reached spot, accused was caught by Kempegowda, Manju and Sudhakar. On enquiry, they said that the person caught by them had committed murder. After being taken into custody, accused told them that due to altercation, he killed Kartik with stone. He also deposed that after receiving complaint from Sudhakar, PSI sent a report through police constable for registration of complaint and appointed him to guard the accused and thereafter on 29.10.2013, he showed the spot of incident to PW.18 for preparation of sketch. Suggestions that he did not know anything about incident, but was deposing falsely as per instructions of his higher Officers are denied.
From reading the deposition, nothing worthwhile is elicited from cross-examination of this witness. The said witness supported prosecution case.
(xxii) P.W.22-Trilokchand, is a businessman, who knew deceased and his father PW.5. In his examination-in-chief, he deposed that PW.5-Ashok Rao had two children, Kartik and Manoj; accused was also living along with them. They used to take utensils from shop of PW.5 and used to sell them in villages. During his 25 cross-examination, it is elicited that relationship between accused and deceased was good.
From reading deposition of said witness, it is clear that his evidence about incident is hearsay. And further his deposition about relationship between accused and deceased would only be relevant.
(xxiii) P.W.23-Dr. Kumar, conducted post-mortem examination on the body of deceased. He deposed that on 18.10.2013 as per request of Police Inspector, K.R. Sagar Circle, he examined body of deceased between 10.20 a.m.-11.00 a.m. and issued Ex.P.29 - report, in which he noted following external injuries:
External Injuries:
• Lacerated wound measuring 5 cm x 0.5 cm, bone deep situated over left parietal region.
• Lacerated wound measuring 4 cm x 0.5 cm, bone deep situated over right parietal region.
• Lacerated wound measuring 3 cm x 0.5 cm, bone deep situated over right frontal region.
• Maxilla fractured along midline.
• All injuries are antemortem in nature.
• Abrasions red in colour.
• Blood extravasated at fracture sites.
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The cause of death mentioned was due to injury
sustained on the head and coma. As per his opinion, injuries mentioned in Ex.P.29 are possible if M.O.1- stone is dropped on the head of a person. He identified M.Os. 4 to 7 as clothes found on body of deceased at the time of his inspection and M.O.8- shirt, M.O.9-ear-rings, M.O.10-neckthread, had already been removed from the body.
In his cross-examination on behalf of accused, it is elicited that estimated time of death prior to examination is not mentioned in the report; and that Investigating Officer did not send M.O.1 for his examination and opinion. Suggestion that he was deposing falsely at the instance of police is denied. However, suggestion that if a person falls on M.O.1-stone in drunken state, there is possibility of sustaining injuries as mentioned in Ex.P.29, is emphatically answered as not possible.
From the above, though, it is elicited that approximate time of death prior to Post-mortem examination is not mentioned in Ex.P.29, said omission would not be fatal. However, emphatic denial of suggestion that death of accused was due to falling down in drunken state and his head hitting the stone would 27 be a material circumstance to be considered, as it is one of defences of accused.
(xxiv) P.W.24-Annegowda, was also working as a Police Constable in K.R. Sagar Police Station. He stated that on 17.10.2013, he accompanied PW.20, PW.21 and PSI to the spot. He stated that from 6.00-6.45 p.m. spot Panchanama was conducted and M.Os.1 and 2 were seized; blood sample of deceased, fallen on ground was collected in a bottle. They were packed in white cloth and sealed. As per instructions of Investigating Officer, Ex.P.2-spot mahazar was written by him. Thereafter body was sent to mortuary at Mysore. After returning to police station, blood-stained cloths of accused, Ex.P3 and P4 - photographs were seized after drawing panchanama - Ex.P.17. Witness identified M.O.1-stone, M.O.3- slippers and M.O.8-shirt as the seized items. He further deposed that 18.10.2013, he accompanied the I.O. to Government Hospital, Mysore, where inquest panchanama was conducted and after post- mortem examination, body was handed over to P.W.5. He deposed that on 23.10.2013, he collected M.O.s 4 to 10 - clothes found on body of deceased from P.W.-23 and on 26.10.2013 he dispatched blood and viscera to RFSL for analysis.
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Nothing worthwhile is elicited from his cross-examination. Attempts to discredit his evidence by suggesting that a false complaint was prepared, that P.W.1 to P.W.3 did not witness the incident etc., are denied. The said witness supported prosecution case.
(xxv) P.W.25-Puttaswamy, was working as PSI in K.R. Sagar Police Station on the date of incident. He deposed that on 17.10.2013 he received a call from public at 3.45 p.m. that two boys were quarrelling in front of Cauvery Samudaya Bhavana and one of them had thrown a stone on head of other and killed him. On receiving information, he rushed to spot accompanied by PW.20 and PW.21. On reaching, he found that accused was caught by PWs-1, 2 and 3. After taking custody of accused, they enquired about the incident. Accused told them that due to altercation with deceased, he had thrown a stone on his head and killed him.
On reading deposition, nothing worthwhile is elicited from cross-examination and to extent of taking custody of accused from spot of incident, P.W.25 supported prosecution case. 29
(xxvi) P.W.26-C.T. Jayakumar, was Circle Police Inspector, Srirangapattana between October 2013 and June 2014. He deposed that he took over investigation on 17.10.2013. On the same day, he visited the spot and photographs of spot of incident were taken; spot panchanama was conducted in presence of PWs-2 and 3 between 6.00 and 6.45 p.m.; rough sketch of spot of incident was prepared, blood-stained slippers, one blood-stained size stone and blood-soaked soil were collected in a box and sealed. He deposed that Ex.P.2 was spot panchanama and Ex.P.5 to Ex.P14 were photographs taken. Thereafter, body was sent to Mysuru Government Hospital for post mortem examination. He deposed that accused, caught by P.W.1 to 3 was taken into custody and his statement was recorded. Blood-stained clothes worn by accused and photographs taken by him along with deceased were seized. The witness identified pant worn by deceased as M.O.11 and Shirt as M.O.3. Exs.P.3 and P.4 are photographs recovered from accused after recording statement of accused after his arrest as per Ex.P.31. He deposed that accused showed the photographs, which were in his possession stating that they were taken prior to incident. Thereafter on 18.10.2013, he visited mortuary at Mysuru 30 Government Medical College and Hospital and conducted inquest panchanama - Ex.P.15, between 8.00 a.m. and 10.00 a.m. in presence of PW.3, PW.12 etc., Thereafter, he recorded statement of PW.5, PW.6 and PW.22 and body was sent for post-mortem examination. Subsequently, he recorded statements of PWs.7, 9, 11, 14, 15, 16 and PW.17. Thereafter, accused was produced before Magistrate. On 19.10.2013, he recorded statement of PW.10 and on the same day, he wrote a letter to PW.18 for preparation of sketch of spot. On 23.10.2013, he received cloths and other items found on the body of deceased at the time of post-mortem examination. They were entered in PF No.128/2013 and sent to RFSL for analysis. The viscera received was also sent to RFSL for analysis. He requested PDO for documents of Samudaya Bhavana. On 26.10.2013, he received one white coloured bloodstained towel and ear-rings worn by deceased, from Government Medical College. They were entered in PF Form No.121/2013 and sent to RFSL. He also collected blood fallen on ground at the spot and also blood- stained clothes of accused for DNA analysis. The remaining M.O.s were sent to RFSL. On same day, he recorded statements of PWs- 21, 24, 25 and others. He received Ex.P.33 - spot sketch from PWD 31 department on 08.11.2013 and Ex. P.36 - report from FSL lab on 11.12.2013. As per Ex.P.29 - PM report dated 17.12.2013, cause of death was due to Coma, as a result of head injury sustained. After investigation and finding sufficient material against accused for offence alleged, charge sheet was filed on 18.12.2013. Subsequently, on 24.03.2016, Ex. P.38 - DNA report was received.
The Investigating Officer is subjected to cross-examination. It is elicited that he received intimation about incident on morning of 17.10.2013 at 5.15 - 5.30 a.m. and within five minutes, he reached the spot. Suggestions made that though complainant is a literate and no complaint was given by him, a false case is registered against accused, that he did not visit the spot, not conducted spot mahazar and not seized M.O.s etc. are denied. Suggestions that even though PW.2 was not an eyewitness and he was a regular pancha witnesses for police and though he did not give any statement, Ex.D.1 is falsely recorded as his statement, are also denied. Further suggestions about not conducting investigation as narrated by him are denied.
Nothing worthwhile is elicited from his cross-examination. PW.26 in fact, clarifies that pant mentioned in Ex.P.38-DNA report 32 is wrongly mentioned as worn by deceased Kartik. It was worn by accused. A material circumstance to be noted is that no suggestion is made to the I.O. about presence of other eyewitnesses and his failure to conduct investigation from them. Therefore, admission by PW.2 about presence of other witnesses at the time of incident and omission of prosecution to examine those witnesses looses significance.
(xxvii) P.W.27-Smt. Sujatha, is the Scientific Officer, RFSL, Mysore. She deposed that on 05.11.2013, she received four sealed items for analysis. They were viscera and other vital organs of deceased. On chemical analysis, alcohol content was found in articles 1, 2 and 3 and concentration was 47.35 mg. per 100 ml. of blood. She identified her signature on Ex.P.36 - report. She was cross-examined. She denies suggestion that in case of alcohol concentration of more than 60%, nervous system would be dysfunctional. Suggestion that without conducting any test, she submitted report as per request of the police is denied.
On a careful examination, though witness deposed about finding alcohol content in the blood/body parts of deceased, concentration noted is 47.35%, which is far less than suggested 33 concentration higher than 60%, where nervous system would be dysfunctional, therefore, possibility of deceased himself falling down on the stone, suffering head injuries leading to his death, was denied by PW.23 - Doctor, who conducted Post-mortem examination is corroborated.
15. In order to verify, whether the above evidence would establish the charge framed against accused, a reference to the contents of the charge would be necessary. They are as follows:
"You accused and deceased Karthik were doing business of utensils whenever Karthik was under the influence of Alcohol used to ask you why you are accompanying him to Channarayapattana to their house and talking with his wife affectionately. Thereby you have got intention to kill him and on 17.10.2013 you asked deceased to accompany you to Balmuri and made him to drink alcohol in excess with an intention to kill him easily and you acted as drinking heavily, at 3-30 p.m., in front of Sri. Cauvery Convention Hall of Belagola, when deceased questioned you as a friend you have developed illegally intimacy with his wife you told him that, you and his wife have enjoyed 34 and I bring you to here to kill you and with an intention to kill him thrown big stone on the head of Karthik such act caused his death and committed murder for an offence punishable U/Sec.302 of I.P.C. within cognizance of Court of Session."
16. From the evidence of PWs-5, 6, 7 and PW.22, it can safely be held that prosecution established that accused and deceased were doing business of selling utensils together. However, the only witness who deposed about deceased taking exception about accused talking to her affectionately is P.W.6-Jyothi, herself. But, PW.6 merely deposed about one instance, where deceased had asked accused not to stay in his house, when accused came to their house at Channarayapatna. No reason for the same is mentioned. As per deposition of PWs-5, 6, 7 and PW.22, relationship between accused and deceased was cordial. In fact, PW.6-Jyothi (wife of deceased) and PW.7-Lalithabai (grandmother of deceased) have deposed that accused never misbehaved with PW.6. Therefore, attempt of prosecution to establish deceased questioning accused about his affectionate behavior with his wife as motive for murder cannot be held to be established beyond reasonable doubt. 35 Therefore, charge on accused that, with intention to kill, he took deceased to Balamuri on 17.10.2013, has to be held as not established beyond reasonable doubt.
17. Insofar as, incident that occurred on 17.10.2013 at Balamuri, prosecution relies upon evidence of three eyewitnesses viz., PWs.1 to 3 and other circumstantial witnesses i.e. PW.9- photographer, PWs-10, 11 and PW.14 - cold drink house owners, PW.16 - employee of cold drink house, PW.12-Chicken stall owner, PW.15 - Toll collector and PW.17 - fisherman. But, as noted above PWs.1, 9, 10, 11, 12, 14, 15, 16 and PW.17 did not support prosecution case. But, PWs-2 & 3, deposed about seeing accused with deceased, sitting at entrance of Samudaya Bhavana prior to the incident. In fact, PW.2 deposed about witnessing act of accused picking up M.O.1-stone and dropping it on head of deceased, causing his death. PW.9 - photographer admitted taking Exs.P.3 and P.4 - photographs. PW.26 - I.O. deposed recovering these photographs immediately after apprehending accused and recording his statement. The said photographs taken prior to the incident when accused and deceased went to take bath in Cauvery River 36 corroborate and establish presence of accused at the spot of incident. From an overall consideration of cross-examination of witnesses, in the absence of securing any worthwhile admissions leading to doubt, presence of accused at the spot at the time of incident has to be held established beyond reasonable doubt.
18. Consumption of alcohol by deceased is established through deposition of Scientific Officer - Dr.Sujatha - PW.27 and production of her test report - Ex.P.26. From cross-examination of witnesses, this fact is not disputed. In fact, it is suggested to PW.23, that there was possibility of deceased falling down on M.O.1
- stone in drunken state and he suffering injuries on the head mentioned in Ex.P.29 leading to his death, also supports above finding.
19. It has already been observed above, that relationship between accused and deceased was cordial and accused had not misbehaved with PW.6 - wife of deceased. However, as per prosecution case, on the date of incident, deceased was heard abusing the accused about having illicit relation with his wife. On a careful reading of deposition of PWs.1 to 3, it is seen that they are 37 not witnesses with regard to deceased making allegation against accused having illicit relationship with his wife. PW.2 admitted in his cross-examination that accused told him that as deceased was making allegations against him for having illicit relationship with his wife, he had brought deceased to Balamuri to kill him. But, there is no corroboration of this fact in the deposition of any other witnesses.
20. But at the same time, it is not in dispute that deceased was killed at Balamuri on 17.10.2013. The dispute is whether accused caused such death and whether it was a pre-planned murder.
21. On a careful consideration of depositions, it is held above that prosecution failed to establish that with an intention to murder deceased, accused took him to Balamuri.
22. The evidence of PW.2-eyewitness, PW.3-circumstantial witness, medical evidence of PW.23 - Dr.Kumar, who conducted Post-mortem examination and expert witnesses - PWs- 19 and 27 who submitted FSL reports, it is established that death of Kartik 38 on 17.10.2013 at Balamuri around 3.30 p.m. was a homicidal death. In view of the evidence of PW.2 - eyewitness, cause of death was act of accused picking up M.O.1 stone and dropping it on head of deceased, which is also established beyond reasonable doubt.
23. However, a specific submission is made that incident occurred in spur of moment, when deceased alleged accused having illicit relationship with his wife at a time, when both accused as well as deceased had consumed alcohol and were in a diminished state of consciousness and was not a premeditated murder. Therefore, at most, it was a case for conviction under Part-II of Section 304 of IPC is sought to be made.
24. We have already held that prosecution failed to establish motive for murder as father of deceased - Ashokrao - PW.5, wife of deceased Jyothi-PW.6 and grandmother of deceased Lalithabai - PW.7 have deposed in unision that relationship between accused and deceased was cordial and accused did not misbehave with PW.6. This is also corroborated in the evidence of PW.22. 39
25. However, as rightly contended by learned ASPP, mere absence of motive does not yield acquittal. It is held that prosecution established beyond reasonable doubt that accused caused death of deceased. His explanation for the same is grave and sudden provocation offered by deceased. In his voluntary statement-Ex.P.31, accused has stated that when accused and deceased went to Balamuri, took drinks, had bath in the River and went in front of the Choultry to change dress. At that time, deceased who had consumed excessive alcohol, picked-up quarrel with accused alleging that accused had illicit relationship with wife of deceased, which enraged the accused. When accused replied admitting the allegation saying that he had come to Balamuri to finish him, deceased hit accused. Even accused hit back. The same led to a fight and as the deceased had consumed excessive alcohol, he fell down but, continued to threaten accused. In that moment fearing dishonour to threat to life, the accused picked up a stone lying nearby and dropped on the head of deceased. This appears to have occurred in spur of moment and is not a premeditated murder. The accused causing death of deceased appears to be whilst, accused was deprived of power of self-control, 40 due to grave and sudden provocation by deceased making allegation of illicit relationship and also hitting the accused. This is the explanation offered by accused in his statement recorded by police as per Ex.P.31.
26. However, lack of intention to murder is not to be understood as lack of knowledge that the act of aggression would not result in death. From the evidence it has been concluded above that prosecution failed to prove the incident to be the result of any prior planning and preparation. While the evidence of PWs-1 to 3 is insufficient, the evidence of PWs - 5 to 7 is to the contrary. Therefore, conviction of accused for offence under Section 302 of IPC would not be justified and accused would be liable for conviction under Part-II of Section 304 of IPC., as the case falls within Exception-4 of Section 300 of IPC.
27. Our view is supported by decision of Hon'ble Apex Court in the case of Surain Singh Vs. State of Punjab reported in 2017 (5) SCC 796 wherein in paragraph Nos.22 to 24 it is held as under:
41"22. The weapon used in the fight between the parties is kirpan which is used by "Amritdhari Sikhs" as a spiritual tool. In the present case, the kirpan used by the appellant-accused was a small kirpan. In order to find out whether the instrument or manner of retaliation was cruel and dangerous in its nature, it is clear from the deposition of the doctor who conducted autopsy on the body of the deceased that stab wounds were present on the right side of the chest and of the back of abdomen which implies that in the spur of the moment, the appellant-accused inflicted injuries using kirpan though not on the vital organs of the body of the deceased but he stabbed the deceased which proved fatal. The injury intended by the accused and actually inflicted by him is sufficient in the ordinary course of nature to cause death or not, must be determined in each case on the basis of the facts and circumstances. In the instant case, the injuries caused were the result of blow with a small kirpan and it cannot be presumed that the accused had intended to cause the inflicted injuries. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender 42 must not have taken any undue advantage or acted in a cruel manner. It is clear from the materials on record that the incident was in a sudden fight and we are of the opinion that the appellant-accused had not taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly.
23. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the appellant- accused had any intention of causing the death of the deceased when he committed the act in question. The incident took place out of grave and sudden provocation and hence the accused is entitled to the benefit of Section 300 Exception 4 IPC.
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24. Thus, in entirety, considering the factual scenario of the case on hand, the legal evidence on record and in the background of legal principles laid down by this Court in the cases referred to supra, the inevitable conclusion is that the act of the appellant- accused was not a cruel act and the accused did not take undue advantage of the deceased. The scuffle took place in the heat of passion and all the requirements under Section 300 Exception 4 IPC have been satisfied. Therefore, the benefit of Exception-4 under Section 300 IPC is attracted to the fact situations and the appellant-accused is entitled to this benefit."
28. In the result, point for consideration is answered by holding that appellant/accused has made out case for modification of the impugned judgment of conviction for the offence under Section 302 of IPC into the offence under Section 304 Part-II of IPC.
29. In view of the above, we pass the following: 44
ORDER
(a) The criminal appeal is allowed in part.
(b) The impugned judgment of conviction and order of sentence dated 18.10.2016 made in SC.No.5015/2014 on the file of III Additional District and Sessions Judge, Mandya (sitting at Srirangapattana) convicting the appellant/accused for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life with fine of Rs.10,000/- is hereby modified and appellant/ accused is convicted for the offence punishable under Section 304 Part-II of IPC and sentenced to undergo Rigorous Imprisonment for a period of TEN years with fine of Rs.50,000/- (Rupees Fifty Thousand Only), in default of payment of fine, appellant/accused shall undergo Simple Imprisonment for a period of two years.
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(c) The appellant is entitled for benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure.
(d) In exercise of powers conferred under Section 357(3) of Cr.P.C., out of the fine amount if deposited, a sum of Rs.45,000/- shall be paid to PW.6-Jyothi, wife of deceased Kartik and balance amount of Rs.5,000/- (Rupees Five thousand only) shall vest with Government.
(e) Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE psg*/BVK