Sri Gurushant S/O Mallappa Doni vs The State Of Karnataka
2021 Latest Caselaw 2725 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

         DATED THIS THE 9TH DAY OF JULY 2021

                          PRESENT
           THE HON'BLE MR.JUSTICE S.G.PANDIT
                               AND
         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

           CRIMINAL APPEAL NO.200135/2016

Between:

Sri Gurushant
S/o Mallappa Doni
Age: 44 Years
Occ: Cloth Trade
R/o. Tajpur (H) Tq. &
Dist: Vijaypur.                         ... Appellant.

(By Sri Ishwar Raj S. Chowdapur, Advocate)

And:

The State of Karnataka
(Through Tikota PS)
Represented by Addl. State
Public Prosecutor at
Kalaburagi Bench.                     ... Respondent.

(Sri Prakash Yeli, Addl.SPP)


      This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to call for the records, peruse the same and
set aside the order of judgment of conviction and sentence
including fine, dated 20.07.2016 passed by Principal
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Sessions Judge at Vijaypur, in S.C.No.134/2014 by allowing
the appeal.

      This appeal having been heard and reserved on
25.06.2021 coming on for pronouncement of judgment this
day, S.G.Pandit, J., delivered the following:

                         JUDGMENT

The appellant/accused is in appeal questioning

the legality and correctness of the judgment of

conviction and sentence dated 20.07.2016 passed in

Sessions Case No.134/2014 on the file of Principal

Sessions Judge at Vijaypur.

2. In brief, the case of the prosecution is that the

accused was having enmity with the deceased

Girimallappa, as the accused suspected that

Girimallappa was having illicit relationship with his

wife-Gayatri and he had stated that he would finish

Girimallappa. On 10.07.2014 the deceased

Girimallappa along with one Devanand Guledgudd had

proceeded to Tajapur Village on motor cycle. At about

3.30 p.m. when the deceased and Devanand Guledgudd

stopped the motor cycle in front of the cloth shop of the

accused, the accused came out of his shop with Talawar

(Hatyar) in his hand shouting at the deceased that

though 'he is asked not to come near his house he has

come', assaulted Girimallappa and hit him on the neck

with Hatyar. Due to which the deceased collapsed and

died. The accused then went to his house and attacked

his wife Gayatri, who was standing behind the Door, on

her neck. Due to which she suffered grievous injury.

Smt. Renuka, mother of the deceased Gayatri, who

attempted to rescue her daughter also suffered injuries

as the accused twisted her left hand and pushed her

with force. Thereafter, Gayatri succumbed to injuries

on her way to the hospital. Thereby the accused has

committed murder of Girimallappa and Gayatri, which

is an offence punishable under Section 302 of IPC.

3. The learned Magistrate took cognizance and after

completing the formalities, committed the accused to

the Sessions Court. The Sessions Court secured the

presence of the accused, furnished the charge sheet and

other relevant documents to the accused, took

cognizance and after hearing, framed the charges.

Accused denied the charges and requested for trial.

4. In order to prove its case, prosecution examined in

all 17 witness i.e., PWs1 to 17 and marked documents

Exs.P1 to P33. Mos.1 to 18 were marked apart from

Ex.C1. No witness was examined on behalf of the

defence, but documents Exhibits D1 to D3 were

marked. Thereafter, the statement of the accused under

Section 313 of Cr.P.C. was recorded by putting

incriminating materials against him. Accused denied

the same. After hearing the learned counsels, the trial

Court based on the evidence of PWs.10 and 13 - eye

witnesses and the evidence of PW.19 - the Doctor, held

that the prosecution has proved its case beyond

reasonable doubt and convicted the accused for the

offence punishable under Section 302 of IPC and

imposed rigorous imprisonment for life, which shall not

be less than 14 years and ordered to pay fine of

Rs.4,25,000/- and in default to undergo simple

imprisonment for two years. Challenging the

correctness of the impugned judgment and sentence,

the appellant/accused is before this Court in this

appeal.

5. Heard Sri Ishwar Raj S. Chowdapur, learned

counsel for the appellant and Sri. Prakash Yeli, learned

Addl. SPP for the respondent-State. Perused the trial

Court records.

6. Learned counsel for the appellant/accused

confined his argument to modify the punishment from

Section 302 of IPC to that of offence punishable under

Part I of Section 304 of IPC. Learned counsel would

submit that the accused has committed homicide not

amounting to murder. The offence committed is

without any preparation and premeditation. It is

submitted that the alleged offence has taken place due

to sudden provocation on seeing the deceased

Girimallappa near his house, as he was suspecting that

Girimallappa was having illicit relationship with his wife

Gayatri. Further he submits that there was no

preparation or it was preplanned. Appellant/accused

was sitting in his cloth shop, when he saw Girimallappa

coming towards his shop, he got provoked and enraged,

which resulted in attacking the deceased Girimallappa

with hatyar and in the same anger, with the same

provocation assaulted his wife Gayatri. He further

submits that there was no intention to commit murder,

while the accused attacked the deceased. Therefore, he

submits that the offence would be punishable under

Part I of Section 304 of IPC and the accused would be

liable for imprisonment for a maximum period of 10

years. Further he submits that fine imposed is too

harsh, that too when life imprisonment is imposed. As

the appellant/accused committed homicide not

amounting to murder, he prays for modification of the

punishment.

7. Per contra, learned Additional SPP submits that

prosecution has proved its case beyond reasonable

doubt. Appellant/accused has not made out any

ground to modify the punishment to that of Part I of

Section 304 of IPC. He submits that prosecution in

order to prove its case examined PWs.1 to 19 and

marked 24 documents apart from 10 MOs. Learned

SPP submits that PWs.1, 2, 10 and 13 are eye

witnesses. Even though PW.1 and 2 have turned hostile

they have partly supported the prosecution case.

Referring to evidence of PWs.10 and 13, who are

brother-in-law and mother-in-law of the deceased

Girimallappa and Gayatri respectively submits that both

of them are eye witnesses to the incident. PW.10 had

accompanied the deceased in his motor cycle and had

deposed that accused assaulted the deceased with

hatyar on the neck of the deceased. PW.13 - eye

witness was in the house of the accused along with

deceased Gayatri, when accused assaulted Gayatri with

hatyar on her neck. Learned Additional SPP also refers

to the evidence of PW.17 - the Doctor, who deposed

with regard to autopsy and spoke about Exs.P24 and

P25 - the post mortem reports. Learned Additional SPP

invites attention of this Court to Exs.P24 and 25 and

points out that death was due to assault by sharp

weapon and cause of death was due to hemorrhage

shock as a result of chop wounds sustained over neck.

8. With regard to the contention of the learned

counsel for the appellant that the offence would fall

under Part I of Section 304 of IPC and not under

Section 302 of IPC, learned Additional SPP for the

respondent submits that case would not fall under Part

I of Section 304 of IPC. It is not a case of sudden

provocation and the case would not fall under any of the

exception under Section 300 of IPC. With a motive and

intention to cause death, the accused attacked deceased

persons with hatyar on their neck. The nature of injury

and blow on the neck of the deceased persons indicates

the intention and motive of the accused. It has come on

evidence that on the suspicion that his wife was having

illicit relationship with Girimallappa, the accused had

warned Girimallappa 'not to come near his house and if

he comes, he would finish him'. Further he submits that

if there was no intention, premeditation and

preparedness, the accused would not have kept hatyar

in his cloth shop. He submits that accused was waiting

for an opportunity to attack Girimallappa and to kill

him. On seeing Girimallappa the accused attacked him

with hatyar on his neck and in the same anger he

attacked his wife with hatyar on her neck. Therefore, he

submits that it is a case of double murder and rightly

trial Court convicted the accused and sentenced him for

life imprisonment under Section 302 of IPC.

9. On hearing learned counsels for the appellant as

well as learned Additional SPP for the State, the only

point that arises for consideration is as to "Whether

appellant has made out a case for modification of

punishment to that of Part I of Section 304 of IPC culpable

homicide not amounting to murder ?" The answer to the

above point would be in the negative for the following

reasons :-

Case of the prosecution is that accused was

having animosity towards deceased Girimallappa as he

had suspicion that said Girimallappa was having illicit

relationship with his wife Gayatri and he had warned

deceased Girimallappa not to come near his shop or

house. Accused is stated to have said that he would

finish off Girimallappa. On 10.07.2014 when

Girimallappa along with PW.10 Devanand Guledgud his

brother-in-law, came in his motor cycle and stopped in

front of the accused cloth shop, the accused came out

with hatyar shouting at Girimallappa stating that even

though he was warned not to come near his house, he

has come, assaulted on the neck of Girimallappa. Due

to which Girimallappa suffered grievous injury and

collapsed and died on the spot. After assaulting

Girimallappa, accused went to his house, which was

about 45 feet from his shop and attacked his wife with

hatyar on her neck due to which she collapsed and

succumbed to injuries on the way to the hospital.

PW.13 - Mother of Gayatri, who tried to intervene, the

accused twisted her hand and injured her. As stated

above to prove their case the prosecution has examined

PWs.1 to 17. Summary of testimony of the witnesses

are as follows :-

a. PW.1 is one Sahadev Shirol, eye witness. He is

treated as hostile witness and in his cross-

examination he has stated that Renuka PW.13

mother of deceased Gayatri was inside the

house. Further he deposes that when he went

inside the house of the accused, Gayatri was

lying on the floor and she was still breathing.

b. PW.2 is one Channamallappa Yernal, who is

one of the eye witness, but he is also treated as

hostile and was cross-examined. In his cross-

examination he states that when he went to the

house of the accused, he saw accused attacking

his wife Gayatri with hatyar, he identifies MO.1

- hatyar and he also states that hatyar is called

as Jambe. Further he deposes that when

mother of Gayatri tried to intervene, accused

pushed her.

c. PW.3 is one Chandrakanth Vali, who is the

scribe of Ex.P3 - the complaint, deposes that

when he saw Girimallappa, his body was lying

in front of accused shop and Girimallappa was

attacked with Talawar on his neck. PW.3 along

with PW.9 Srishaila Nidoni went to Tikota Police

Station to submit the complaint. As PW.9

Srishaila Nidoni said that he does not know to

write Kannada, PW.3 was requested to write the

complaint. As dictated by PW.9 - Srishaila

Nidoni, PW.3 has written complaint in his hand.

PW.9 Srishaila Nidoni is the brother of the

deceased Girimallappa.

d. PW.4 is one Sri Ilias Ahmed Hippargi, Police

constable, who submitted report along with

cloths of deceased Girimallappa.

e. PW.5 is one Ramgonda Solapur, who is Panch

witness to Exs.P5 to P7 - Cloth seizure

panchanamas of deceased Girimallappa,

deceased Gayatri and accused - Gurushant.

PW.6 is also panch witness. PW.7 is panch

witness to inquest Exs.P10 and 12 and spot

mahazar Ex.P14. PW.8 is Assistant Engineer-2

of PWD Sub Division, Vijayapur, who had

prepared the sketch Ex.P15.

f. PW.9 Srishail Nidoni is brother of deceased

Girimallappa, who filed complaint - Ex.P3 with

the Tikota Police, deposes that he had seen

Girimallappa and Devanand Guledgud

proceeding in motor cycle. At about 3.45 p.m.

he received phone call from Devanand wherein

he informed that accused had attacked

Girimallappa. When he came to Tajpur,

Girimallappa's body was lying in front of the

accused shop and Devanand Guledgud was

there at the spot. Further he deposes that in

front of the accused house there is one coconut

tree and hatyar (MO.1) was lying at the coconut

tree. Further he deposes that police seized

motor cycle, hatyar and chappals of deceased

Girimallappa.

g. PW.10 is one Devanand Guledgud, who is

brother-in-law of deceased Girimallappa. His

sister Nirmala PW.14 was married to the

deceased Girimallappa. PW.10 who had

accompanied the deceased Girimallappa is the

eye-witness to the incident. He deposes that on

the day of incident at about 3.00 p.m., he

proceeded along with Girimallappa on his

motorcycle and when they reached accused

shop, he asked Girimallappa to stop the motor

cycle to buy Gutka. Accused who was in his

shop shouted at Girimallappa stating that 'I

have told you not to come here, but you have

come again', came out of the shop assaulted

Girimallappa with hatyar on his neck and hand

and also states that accused had hit two - three

blows with hatyar on Girimallappa. Due to

which he sustained grievous injuries, collapsed

and died on the spot. Further, he deposes that

after attacking Girimallappa, the accused went

towards his house and attacked his wife Gayatri

with hatyar on her neck and hand, due to which

Gayatri became unconscious. Accused twisted

the hand of Renuka - mother of Gayatri, who

tried to avoid the attack. Thereafter accused

threw the hatyar at Coconut tree and proceeded

on his motor cycle. This witness was cross

examined at length but nothing is elicited to

disbelieve his version.

h. PW.11 is one Smt. Gowrawwa who is panch

witness to Ex.P12 - inquest panchnama of

deceased Gayatri.

i. PW.12 is one Sri Gurubasappa, who is brother

of Renuka, mother of deceased Gayatri.

j. PW.13 is Smt Renuka mother of deceased

Gayatri. She is eye witness to the attack on

deceased Gayatri by her husband accused

Gurushanth with hatyar. She deposes that on

the date of incident she was in her son-in-law's

house and she had come there 8 to 10 days

prior to the date of incident, to look-after her

daughter Gayatri, as she had undergone

operation. Further she deposes that at about

3.00 or 3.30 p.m. on the date of incident,

Girimallappa and his son-in-law Devanand had

come on motorcycle and stopped in front of her

son-in-law's (accused) shop. At that time,

accused came out from his shop with hatyar

and attacked her daughter Gayatri on the back

side of the neck and right hand shoulder. When

she went to intervene, the accused twisted her

left hand. This witness is also cross examined

at length, but defence has failed to elicit

anything in his favour.

k. PW.14 is one Smt Nirmala, wife of deceased

Girimallappa. She states that earlier accused

and her husband were friends. Prior to the

death of her husband, the accused had

threatened that he would attack her husband

and she had warned her husband not to go to

accused house.

l. PW.15 is one Smt. Shakuntala, ASI Tikota Police

Station, who received the complaint from PW.9

Srishail Nidoni at about 5.00 p.m. on

10.07.2014. PW.16 is the CPI of Vijaypur Rural

Police Station, who was the IO in the case.

m. PW.17 is one Doctor Chandrashekar working as

Assistant Professor in Forensic medicine at

BLDE College, Vijaypura, who deposes about

the conduct of post mortem report - Exs.P24

and P25 and also about Ex.P30 - report of

weapon examination.

10. The trial Court based on the oral and

documentary evidence on record held that the

prosecution has proved the guilt of the accused beyond

reasonable doubt for the offences punishable under

Sections 302 and 323 of IPC and convicted for the said

offences. There is no reason nor ground is made out to

interfere with the impugned judgment and sentence.

11. The prosecution in order to bring home the guilt of

the accused examined as many as 17 witnesses, PWs.10

and 13 are eye witnesses to have witnessed the assault

by the accused with hatyar on the neck of both the

deceased persons. PW.17 Doctor is examined to prove

the post mortem examination report and cause of the

death. Formal witnesses to prove the various

panchanamas were also examined by the prosecution.

The trial Court has recorded several unimpeachable

reasons and succinctly demonstrated the reason for

conviction of the accused. We are in complete

agreement with the judgment of the trial Court.

12. As stated above there are as many as four eye

witnesses i.e., PWs.1, 2, 10 and 13. PWs.1 and 2 even

though are treated as hostile, have partly supported the

prosecution case. PWs.10 and 13 eye witnesses have

consistently deposed how the assault on Girimallappa

and Gayatri took place. PW.10 Devanand Guledgud

accompanied the deceased Girimallappa in his

motorcycle, who had witnessed the entire incident, has

given credible version as to how the assault took place

on both the deceased persons. PW.10's testimony

reveals that when Girimallappa stopped motor cycle in

front of the accused cloth shop, the accused shouting at

Girimallappa came out with hatyar and assaulted two to

three blows on the neck and one blow on the hand, due

to which Girimallappa collapsed and died on the spot.

Then accused went with Talawar to his house and

attacked his wife Gayatri on her neck and hand. PW.13

Renuka, mother of deceased Gayatri, who is an eye

witness to the incident was inside the house, while

accused assaulted on Gayatri. PW.13 further deposed

narrated that accused came from his shop with Talawar

in his hand and assaulted her daughter Gayatri on the

back side of the neck and right hand. When she went

to intervene, the accused twisted her left hand. PWs.1

and 2 even though turned hostile, in their cross-

examination stated that PW.13 mother of deceased

Gayatri was inside the house, when Girimallappa

attacked deceased Gayatri and Gayatri was lying on the

floor. PW.2 has categorically deposed in his cross-

examination that he saw accused assaulting his wife

Gayatri with hatyar and identified MO.No.1 hatyar.

PW.17 Doctor corroborates the evidence of eye

witnesses. Exs.P24 and P25 are post mortem reports of

deceased persons, which are proved by evidence of

PW.17. Post mortem reports were by one Dr.

Dharmaraya Ingale, who was working as Head of the

Department of Forensic Science at BLDE Hospital as on

the date of incident. Subsequently, he had left the

BLDE Hospital to work at Etheyopia. PW.17

Dr. Chandrashekar stated that he studied Post

Graduation under the guidance of Dr. Dharmaraya

Ingale and after completition of his Post Graduation, he

joined the same hospital as Assistant Professor. PW.17

has identified the signature of Dr. Dharmaraya Ingale

on Exs.P24, 25 and 30. According to PW.17 - Doctor,

injuries noted in the P.M. report were anti mortem and

death was due to hemorrhage shock as a result of chop

wound sustained over the neck by Girimallappa and

Gayatri. Ex.P24 reveals 7 chop wounds on deceased

Girimallappa and Ex.P25 reveals 9 wounds on deceased

Gayatri. Both Girimallappa and Gayatri died due to

chop injuries caused on their neck by the accused with

MO.No.1 hatyar. There is no hesitation to say that the

accused caused injuries on the vital part of the body of

both Girimallappa and Gayatri with hatyar, which

resulted in death of both the persons.

13. The contention of the accused that he had caused

death of Girimallappa and Gayatri, but committed

homicide not amounting to murder, as the same is

without any intention and without any preparation, at

the spur of the moment, is untenable and on the other

hand, the chain of events would lead to a definite

conclusion that the accused committed offence with

intention, motive and preparation. Culpabale homicide

will not amount to murder if it is committed without

premeditation in a sudden fight and provocation. In the

instant case, there is no sudden fight and provocation

as contended. On the other hand, the evidence on

record makes it clear that it was premeditated with an

intention to cause death. The accused was waiting for

an opportunity to assault deceased Girimallappa with

an intention and premeditation to cause death, with

hatyar. If there was no intention and preparation, the

accused would not have kept hatyar in his cloth shop.

Why hatyar was kept in a cloth shop is not explained. In

his Section 313 Cr.P.C statement, the accused has not

explained anything about the provocation or why hatyar

was in his possession. Having regard to the number of

injuries inflicted on the deceased persons the contention

that there was no premeditation and intention or motive

cannot be accepted.

14. To fall within Part I or Part II of Section 304 of IPC,

one should satisfy that the death was under any of the

exceptions and circumstances mentioned under Section

300 of IPC. If death is caused and the case is covered

by any one of the exceptions of Section 300 IPC, then

such culpable homicide shall not amount to murder.

The injuries on the deceased persons would reveal that

accused caused the death of Girimallappa and Gayatri

with premeditated intention and the accused was

waiting for an opportunity to kill Girimallappa. It has

come on record that accused was having suspicion that

deceased Girimallappa was having illicit relationship

with his wife Gayatri, and the accused had warned

deceased Girimallappa not to come near his house.

When the deceased Girimallappa stopped his motorcycle

in front of his shop the accused came out shouting at

deceased Girimallappa with hatyar in his hand

assaulted Girimallappa on his neck till he collapsed and

died with bleeding. Thereafter, he went to his house

which is 45 feet away from his shop, assaulted his wife

with the same hatyar MO No.1 on her neck. Attacking

and assaulting with hatyar on the neck discloses a

person's intention knowing fully well that it would cause

death of a person. Motive to assault Girimallappa was

his suscipion that Girimallappa was having illicit

relationship with his wife Gayatri. Sequence of events

spoken by eyewitnesses and corroborated by evidence of

PW.17, the Doctor and evidence of PW.14 wife of

deceased Girimallappa would lead us to the conclusion

that the accused has committed culpable homicide

amounting to murder with motive, intention and

preparation. Looking from any angle, the contention of

learned counsel for the accused cannot be accepted, to

modify the punishment to that of Part I of Section 304

of IPC.

15. For the reasons recorded above, impugned

judgment of conviction and sentence is confirmed. The

appeal being devoid of merit is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

NG*