Karnataka High Court

Santhosh @ Prathap vs State By Krs Police Station on 27 May, 2021

Author: B Veerappa Hosmani

                              1


       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))
                                  2


      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

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. 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?

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

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-

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

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?"

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

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.

(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

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

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.

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

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.

(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.

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.

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.

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

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.

(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.

(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.

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

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

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.



         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

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.

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.

(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

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

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

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

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

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.

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

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

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

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.

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,

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:

"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

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.

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:

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