Karnataka High Court

State Of Karnataka vs Chandravathi on 5 January, 2022

Bench: K.Somashekar, P.N.Desai

                           1                   R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 5TH DAY OF JANUARY, 2022

                       PRESENT

     THE HON'BLE MR.JUSTICE K.SOMASHEKAR
                         AND
        THE HON'BLE MR. JUSTICE P.N.DESAI

        CRIMINAL APPEAL NO. 253 OF 2016
                 CONNECTED WITH
        CRIMINAL APPEAL NO. 252 OF 2016

CRL.A.No.253 OF 2016:
BETWEEN:
State of Karnataka
By Station House Officer
Byndoor Police Station-576214
Rep. by SPP
High Court Building
Bengaluru - 560 001.                        ...Appellant

(By Smt. K.P. Yashodha - HCGP)

AND:
Chandravathi
Aged about 61 years
W/o. Late Nagappa Acharya
R/o Muguli, Shiroor Village
Kundapura Taluk
Udupi District - 576201.                  ...Respondent

(By Sri. B. Anand - Advocate appointed as amicus
curiae for respondent vide court order dated 9.11.2021)
                            2


       This Criminal Appeal filed under Sec.378(1) and
(3) of Criminal Procedure Code, by the Advocate for the
appellant praying to grant leave to appeal against the
judgment and order of acquittal dated 27.08.2015
passed by the Addl. District and Sessions Judge, Udupi
(sitting at Kundapura) Kundapura, in S.C.No.16/2014,
thereby acquitting the respondent / accused for the
offences punishable under Section 302 of IPC and set
aside the judgment and order of acquittal in
S.C. No.16/2014 dated 27.08.2015.

CRL.A.No.252 OF 2016:
BETWEEN:
State of Karnataka
By Station House Officer
Byndoor Police Station
Rep. by SPP
High Court Building
Bengaluru - 560 001.                        ...Appellant

(By Smt. K.P. Yashodha - HCGP)

AND:
Chandravathi
Aged about 61 years
W/o. Late Nagappa Acharya
R/o Muguli, Shiroor Village
Kundapura Taluk
Udupi District - 576201.                  ...Respondent

(By Sri. B. Anand - Advocate appointed as amicus
curiae for respondent vide court order dated 9.11.2021)

     This Criminal Appeal filed under Sec.377 of
Criminal Procedure Code, by the Advocate for the
                             3


appellant praying to allow this appeal and modify the
order of sentence imposed by the learned Addl. District
and Sessions Judge, Udupi (sitting at Kundapura)
Kundapura dated 27.08.2015 in S.C.No.16/2014 and
impose appropriate and adequate sentence against the
respondent / accused for the offences punishable under
Sec. 304(2) of IPC.

      These criminal appeals coming on for hearing this
day, P.N.Desai.J delivered the following:

                   JUDGMENT

These two appeals arise out of the judgment

passed by the learned Additional District & Sessions

Judge, Udupi (Sitting at Kundapura), Kundapura, in

S.C.No.16/2014 dated 27.08.2015. By the said

judgment, the accused is convicted for offence under

Exception 4 of 300 of Indian Penal Code, 1860

(hereinafter shortly called as IPC) punishable under

Section 304 Part-II of IPC and sentenced that the

accused be released by extending the benefit of Section

4 of the Probation of Offenders Act, 1958 (hereinafter in

short P.O.Act) and directed to execute a personal bond

without surety for maintaining good behaviour and

peace for a period of 3 years in the locality, where she

resides. However, the accused has been acquitted for

the offence punishable under Section 302 of IPC.

2. Crl.A.No.252/2016 is preferred by the State

seeking enhancement of sentence and

Crl.A.No.253/2016 is also filed by the State challenging

acquittal of the accused for offence punishable under

Section 302 of the IPC and thereby seeking to set aside

the said judgment of acquittal.

3. The brief case of the prosecution before the

Trial Court is that the accused by name Chandravathi is

mother-in-law of deceased - Nagarathna. PW.6 -

Manjunatha is son of the said Chandravathi and also

husband of the deceased - Nagarathna. It is further

case of the prosecution that the said Manjunatha is

working as a carpenter at Sirsi for last 15 years. In the

year 2006 he married Nagarathna. He has got two sons

and one daughter. The deceased - Nagarathna and

accused were residing at Shiroor village along with

children of PW.6-Manjunath.

4. It is further case of the prosecution that there

was some misunderstanding between mother-in-law

and daughter-in-law in respect of domestic relations.

The accused used to pick up quarrel with daughter-in-

law. It is alleged by the prosecution that on 19.05.2014

at about 9.15 a.m. both deceased and accused were in

their house at Shirur village and PW.5 -

Sumanth/grand son of the accused was playing in the

open yard of the house with his sister and other

children. At that time quarrel started between the

deceased and accused in respect of wearing saree on a

particular occasion. Immediately in the heat of passion

upon a sudden quarrel the accused assaulted the

deceased Nagarathna with scissors on the left portion of

neck, due to which deceased sustained injury to her

neck. Immediately she fell down. There was bleeding

injury to her neck. Somehow she crawled towards the

main door of the house and she was lying in the pool of

blood in the open yard of the house. At that time

neighbourers by name Smt.Mohini - PW.1 and Revathi

Acharthi - PW.2, hearing the cry from deceased house

came there and found that the deceased had sustained

bleeding injury to her neck and was lying in the pool of

blood. Immediately injured was shifted to hospital with

the help of Sridhar Acharya - PW.8 in an ambulance to

Government Hospital, Byndoor. Doctor in the hospital

declared that she was brought dead. Later on her dead

body was shifted to Manipal Hospital for postmortem

examination.

5. It is further case of the prosecution that

neighbourer of the house of the deceased informed

sister of the deceased by name Savitha that the accused

Chandravathi assaulted the deceased Nagarathna with

scissors on her neck due to which Nagarathna has

sustained injury and lying in the open yard of her home.

Immediately, Raghavendra - PW.7 who is the brother of

deceased along with sister Savitha went to Shiroor

village and found blood stains in the open yard of the

house of deceased. They also found that the accused

was sitting in the room holding scissors in her hands.

PW.7 enquired in this regard and came to know about

the incident. He also came to know that injured was

taken to the Government Hospital at Byndoor.

Accordingly, he went to Government Hospital, Byndoor,

PW.7 found that his sister was already dead and there

was injury on her neck. In this regard, he lodged a

complaint to Byndoor Police Station as per Ex.P4 on

19.05.2014 at 10.40 a.m.

6. The Sub-Inspector of Police, PW.16 - Naseer

Hussain who was the Station House Officer on that day

received the said complaint and registered the case in

Crime No.122/2014 for the offence punishable under

Section 302 of IPC and sent the FIR at Ex.P.15 to the

Court. Then PW.16 visited the hospital. As the offence

was heinous he informed higher officers. Then he

collected information about the accused also.

Accordingly, he got credible information that accused

was near the railway bridge at Shiroor Kelapate and

arrested accused - Chandravathi with the help of

CW.27 - Pushpa, ASI and brought her back to police

Station and produced her before PW.19 - Radhika G,

Asst. Superintendent of Police, Kundapura and gave the

report as per Ex.P16.

7. PW.19 - Radhika G, Asst.Superintendent of

Police took further investigation, she visited the

hospital, secured panchas and conducted inquest

panchanama as per Ex.P8. When the accused was

produced before her, she recorded her voluntary

statement as per Ex.P24. As per the information given

by the accused she secured panchas and at the

instance of the accused seized the scissors used for

commission of offence and also the clothes by

conducting seizure panchanama as per Ex.P6. Scissors

is marked as MO.1 and photographs were taken at that

time of panchanama as per Exs.P25 to P28. Then the

accused also produced the clothes worn by her at the

time of incident from her house. The same were seized

under panchanama as per Ex.P7 in the presence of

panchas which were marked as M.Os.8, 9 and 10. Then

accused took the investigating officer to scene of offence

and shown the place of offence. In this regard a

panchanama was drawn as per Ex.P1. Then PW.19 -

Investigating Officer collected the blood stained mud

and unstained other mud from the place of offence. She

got prepared plan at Ex.P2 in respect of place of offence.

Then the investigating officer recorded statement of

eyewitnesses and produced the accused before Court.

She also sent the clothes, other articles and the blood

collected for chemical examination to Forensic Science

Laboratory. She secured the records in respect of the

accused house. Recorded the statements of other

witnesses. After securing the report from the Forensic

Science Laboratory and after completing investigation,

PW - 19 filed the charge sheet against the accused for

the offence stated above.

8. The learned committal judge after complying

with the provisions of Sections 207 and 209 of Code of

Criminal Procedure, 1973 (herein after in short called as

Cr.P.C.) committed the case to Court of Sessions. The

learned Sessions Judge after hearing both sides framed

the charge against the accused for offence punishable

under Section 302 of IPC.

9. Thereafterwards, the prosecution examined 19

witnesses as PWs.1 to 19 and got marked 28 documents

as Exs.P1 to 28 and got identified 13 material objects as

MOs.1 to 13. The statement of the accused as required

under Section 313(1)(b) Cr.P.C was recorded. The

accused denied the incriminating circumstances

appearing against them in the evidence of the

prosecution. However, accused has stated that when

she was cutting clothes, the deceased started quarreling

with her in respect of saree and the deceased also

assaulted her, at that time the scissors in her hand

touched the deceased. But she has not done anything

and she has no ill-will or enmity against deceased -

Nagarathna. The accused has not chosen to adduce

any defence evidence.

10. After hearing arguments, learned Sessions

Judge passed the impugned judgment of conviction and

order of sentence which is challenged by the State by

filing these two appeals.

11. We have heard Smt. K.P.Yashoda, the learned

HCGP for the State and learned counsel Sri. B.Anand

Amicus Curiae. Perused the appeal memo and records.

12. Learned HCGP for the State argued that the

judgment of acquittal rendered by the Sessions Judge is

contrary to law, facts and evidence on record.

Therefore, the same is liable to be set aside. It is further

argued that learned Sessions Judge has not properly

appreciated the evidence of witnesses and also the

mahazars. The learned Sessions Judge has not properly

appreciated the evidence of Dr. Harama Sultana.N who

conducted postmortem over the body of the deceased

and has given the report and opinion as per Ex.P12 and

P13. It is further argued that the learned Sessions

Judge has not followed the dictum of the Supreme

Court regarding appreciation of evidence and ought to

have convicted the accused for the offence punishable

under Section 302 of IPC. It is further argued that the

learned Sessions Judge has not raised proper points for

consideration. Though the prosecution has established

the guilt of the accused beyond all reasonable doubt,

the trial court is not justified in acquitting accused for

offence under Section 302 IPC. The trial Court though

convicted the accused for offence under Section 304 II

IPC, but took very lenient view and imposed sentence

which is nominal sentence and it has to be enhanced.

With these main argument the learned HCGP prayed to

allow both the appeals.

13. Against this, learned Amicus Curiae

Sri. B.Anand argued that, the eyewitnesses cited by

prosecution are not actual eyewitnesses. As per their

evidence, they came only after the incident. The

evidence of child witness - Sumanth cannot be believed

as he was playing outside the house and he is a planted

witness. The said Sumanth has stated that he has not

seen the incident. Amicus Curiae further argued that

the other witnesses are all hearsay witnesses. There are

no eyewitness to show that the accused actually

assaulted the deceased and caused the said injury. On

the other hand, the evidence on record indicates that

the accused was cutting clothes and somehow deceased

- Nagarathna herself came in contact with scissors and

sustained injury. Therefore, Amicus Curiae argued

that, the accused is infact entitled for acquittal. But

however, learned Sessions Judge has rightly taken into

consideration the facts of the case, situation,

occurrence of the incident, and imposed the

punishment by considering the age of accused and

released her under Section 4 of P.O Act which needs no

interference of this Court. Absolutely there is no

perversity in the findings recorded by the learned

Sessions Judge. With these main arguments the

learned Amicus Curiae prayed to dismiss both the

appeals.

14. We have given our anxious consideration to

the arguments advanced by both sides and perused the

evidence meticulously.

15. PW.1-Mohini is stated to be the neighbourer

of the house of the accused and deceased. In her

evidence she has stated that she heard some galata on

19th at about 9.30 a.m. and immediately, ran to the

house of accused and saw from window that accused

was assaulting deceased - Nagarathna with Scissors. In

this regard, she informed her brother - Sridhar over

phone. He brought an Ambulance and injured

Nagarathna was taken to Government Hospital at

Byndoor and PW.1 lost her conscious. Thereafter she

came to know that deceased succumbed to injuries. She

has identified M.O.1 - Scissors.

16. In her cross-examination she has admitted

that there was no enmity or ill-will between accused and

deceased. She has also admitted that when she went to

the place of offence she found deceased Nagarathna

lying in open yard of her house and nobody was there.

Subsequently, people gathered there. On the same day

police came and she has given statement to police. Her

evidence shows that she has not witnessed the accused

assaulting deceased and she came to spot after hearing

the galata sound. Her evidence again supporting the

accused in subsequent deposition indicates that she

has not actually witnessed the incident. It is evident

from her evidence that she found deceased lying in pool

of blood with neck injury and the accused was holding

Scissors in her hand.

17. Similar is the evidence of PW.2 - Smt.Revati

Acharti who is also a neighbourer. She has also

deposed in the same line as that of PW.1 and the

evidence of PW.2 also indicates that Nagarathna had

already sustained injury by the time PW.2 saw her.

Injured Nagarathna was not in a position to speak and

was lying near Tulasikatta. PW.2 deposed that in

respect of saree there was some galata between accused

and deceased. For that silly reason the said incident

had taken place. She has clearly stated that she has

not seen the actual incident i.e., the accused assaulting

the deceased with Scissors. Though the prosecution

treated this witness as hostile witness nothing helpful to

the prosecution was elicited in her cross examination

but her statement was marked as Ex.P3. So her

evidence will not help the case of prosecution much.

18. PW.3 - Sandeep Acharya is the younger

brother of deceased - Nagarathna. He is working as

goldsmith at Uppund village, Kundapura. He came to

know about the incident through his brother and

thereafter he came to the spot. He is a hearsay witness.

He has also stated that there is no ill-will or enmity in

between accused and deceased.

19. PW.4 - Savitha is the sister of deceased. She

has also not seen the incident but she came to know

that there was some quarrel between deceased and

accused in respect of wearing a saree. The accused

caused injuries to deceased - Nagarathna. The PW.4 is

a hearsay witness and she came to know about the

incident through phone call received from her

neighbourer.

20. PW.5 - Sumanth is the grand son of accused

and son of deceased. In his examination-in-chief he has

stated that he was playing near his house, at that time,

accused and his mother who is deceased were making

galata. Accused assaulted with Scissors on the neck of

deceased. His mother sustained bleeding injury. The

neighbourers also came there. His sister was also

present and both of them started weeping. Then his

mother was taken to hospital. He also identified M.O.1

- Scissors which was in the hands of accused. He has

also stated that he came to know his mother

succumbed to the injury subsequently. Though he was

cross-examined by accused side at length, but the fact

that the accused was holding the Scissors and his

mother sustained injury on her neck and deceased was

assaulted by the accused, is not denied specifically by

the accused in the cross-examination. So his evidence,

of course, to some extent, supports the case of the

prosecution, but as there is nothing in the cross-

examination so as to make his presence doubtful on the

date and at the time of incident. His evidence supports

the prosecution case. The argument on behalf of

respondent side that PW.5 is child and planted witness

so his evidence will not help prosecution, cannot be

accepted.

21. Section 118 of the Evidence Act, 1872 states

about competency of witness. Generally it is in favour of

admission of evidence, though weight to be attached to

it will naturally be matter for consideration by the court.

It reads as under:-

118. Who may testify. --All persons shall be competent to testify unless the Court

considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation-- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

22. From the reading of the above section, it is

evident that with reference to the children, no precise

age is fixed by law within which they are absolutely

excluded from giving the evidence on the presumption

that they have no sufficient understanding. The

competency of the child witness can be ascertained by

questioning him or her to find out the intelligence to

understand the occurrence witnessed and to speak

truth before the court and thereby his or her statement

inspire confidence and can be relied upon even without

corroboration. The Hon'ble Supreme Court in several

judgments has relied upon the testimony of the child

witness. Even the evidence of a child of tender age below

08 years which was found truthful was believed. The

evidence of the child witness and its credibility would

depend upon the circumstances of each case. Only

precaution which the court has to bear in mind while

assessing the evidence of a child witness is that the

witness must be reliable one. If on close scrutiny,

evidence of child witness is found to be truthful, there is

no obstacle in the way of accepting the evidence

whether corroborated or not. There is no rule or practice

that in every case, the evidence of such witness be

corroborated by other evidence before a conviction can

be allowed to stand. But as a rule of prudence, the court

always finds it desirable to seek corroboration to such

evidence from other reliable evidence placed on record.

When the version of the incident is found truthful, the

court would be justified in believing the evidence of the

child witness. The only precaution is, the evidence of

such witness is to be taken with great care. It all

depends upon particular facts of that case. The age of

the child witness by itself is no criteria to reject the

testimony.

23. So in the background of these settled

principles, if the evidence of the child witness PW-5-

Sumanth is considered with reference to the evidence of

other witnesses who are neighbours, it is evident that

all have consistently stated that deceased Nagarathna

had suffered bleeding injury on her neck and accused

Chandravathi was holding scissors in her hand. Except

those two persons, there was no other person in the

house. Apart from that, accused herself has admitted

that injury was caused to deceased by coming in

contact with scissors which was in her hand, though

she states she has not done anything.

24. In the light of this evidence and the principles

stated above, the evidence of the child witness who has

no ill-will or enmity against his grandmother can be

believed. He may not have actually seen accused

piercing the scissors to the neck of the deceased, but he

was present near the scene of occurrence and

immediately after hearing cry, he saw the deceased and

the accused. His evidence cannot be termed as either

tutored or on account of tender age, it cannot be

accepted. On account of the child's innocence and

incapacity of partison motivation, the child is often a

witness of truth. The learned trial Judge has rightly

appreciated the evidence of the child witness with

reference to the other evidence and the facts and

circumstances of the case. Therefore, the evidence of

PW.5, the child witness further corroborates the charge

against the accused.

25. PW.6 - Manjunatha is the husband of

deceased - Nagarathna and also son of accused Smt.

Chandravathi. His evidence shows that he was doing

carpentry work at Sirsi for the last 15 years. His

mother, wife and children are residing together at

Shiroor village. He has stated that he received a

telephone call from his neighbourer and came to know

that on 19.05.2014 there was quarrel between his wife

and his mother and in that scuffle his wife sustained

injury on her neck through Scissors and she was

admitted to Government Hospital at Byndoor.

Accordingly, he went to hospital and found that his wife

- Nagarathna is dead. He identified her body at the

mortuary. He also found bleeding injury on her neck.

When he enquired, he came to know that there was

quarrel between his mother who is the accused and his

wife deceased - Nagarathna in respect of saree and the

accused assaulted her. He has not seen the incident.

He has admitted in the cross-examination that from the

date of marriage both his wife and mother were residing

together and there was no enmity or ill-will between

them. His evidence indicates that the relationship

between deceased and accused was cordial and there

relationship was good. Both accused and deceased were

residing together since the date of marriage of PW.6

with deceased - Nagarathna.

26. PW.7 - Raghavendra is the brother of deceased

Nagarathna who set the criminal law into motion by

lodging FIR. Of course, he has not seen the incident. He

is a hearsay witness. He received information about

incident through the neighbourers over phone and

lodged the complaint. He has clearly deposed that only

on the basis of information given by the villagers, he has

lodged the complaint as per Ex.P4. So his evidence is

not much helpful to the case of prosecution.

27. PW.8 - Sridhar Acharya is resident of Shiroor

Village and is the brother of PW.1 - Mohini who is the

neighbourer of deceased house. In fact he received a

call from Mohini about the assault on deceased -

Nagarathna by accused - Chandravathi. Then he came

to the house of deceased and found that Nagarathna

had fallen in an open yard in front of her house with

bleeding injury on her neck. Immediately, he called

PW-9/Sarfaraz and got the ambulance. They took

Nagarathna to Government Hospital, Byndoor. Their

Doctor informed that injured Nagarathna was brought

dead. He has given statement before the police. He

came to know about the incident only from PW.1 and he

has no personal information regarding the incident as

evident from his cross-examination.

28. PW.9 - Sarfaraz @ Mugudi Sab is the

ambulance driver who has stated about taking deceased

- Nagarathna injured, in a ambulance to Government

Hospital at Byndoor.

29. PW.10 - Manju Venkappa Shetty and PW.11 -

Mahadeva Acharya are the panch witnesses in respect

of seizure panchanamas as per Exs.P5, P6 and P7 and

seizure of M.Os.1 to 7. In their evidence both have

stated that on 19.05.2014 at about 2.45 p.m. the police

had arrested accused in this case and in this regard

they prepared mahazar as per Ex.P5 and they have

signed on panchanama as per Ex.P5(a) and P5(b)

respectively. Further, they have stated that the accused

gave statement that if she was taken she will produce

the Scissors. Accordingly, they were taken near the

coconut tree and the Scissors was recovered and seizure

panchanama was drawn as per Ex.P6. Both panchas

have identified the Scissors as per M.O.1 and signed on

the said mahazar as per Ex.P6(a) and P6(b) respectively.

Further, they have stated that accused took them to her

house and shown the place of offence. A panchanama

was prepared as per Ex.P1 and they have signed on the

said panchanama as per Ex.P1(b) and P1(c) respectively.

They have also stated, at that time the police have

collected the cloths, blood stained mud, unstained mud

and seized them which are marked as M.Os.2 to 7 and

prepared a sketch of place of offence as per Ex.P2. They

have signed the said sketch as per Ex.P2(b) and P2(c)

respectively. The accused produced the cloths worn by

her at the time of incident and the same has been seized

under seizure mahazar at Ex.P7 and they have signed

on the said mahazar at Ex.P7(a) and P7(b) and identified

the said cloths as per M.Os.8, 9 and 10. They have also

stated that police took the photographs at that time

which are at Ex.P25 to 28. Police recorded their

statement. Though they were cross-examined at length,

nothing is elicited in their cross-examination so as to

disbelieve their evidence. Their evidence has stood the

test of cross-examination regarding seizure of scissors,

material objects and drawing up of panchanamas.

30. PW.12 - Jayalakshmi is the witness to the

inquest mahazar at Ex.P8. She has also stated that

there was injury on the neck of deceased. Other

witnesses have signed Ex.P8.

31. PW.13 - Ramachandra Acharya is the father of

the deceased. Of course, he has not seen the incident

but he has stated about what was heard by him from

others and his evidence is also of not much

consequence.

32. PW.14 - Dr.Harama Sulthana is the Lady

Medical Officer who conducted post mortem of the dead

body of deceased - Nagarathna and issued P.M.report

as per Ex.P11. She conducted the post mortem on

19.05.2014 between 3.00 p.m. to 6.45 p.m. She has

mentioned the details of wounds which are as under:

- Stab wound on the left side of the neck, located 5 cm above the left mid-clavicular point, 6 cm below left angle of mandible, 5 cm from the midline of neck anteriorly.

         - Spindle shaped       wound with clear cut
    margins.
         - No abrasion, no bruising in surround

tissue, measures 2 cm in length, 0.5 cm in width and 10 cm deep. Direction of wound is oblique, downward and medial.

- Track: - Entered the neck by piercing the skin at left side of neck, advanced cutting through the platysma and sternocleido mastoid muscle obliquely medially, downwards. Further entered the thorax by piercing the supra pleural membrane behind the clavicle at mid-clavicular point. Progressing medially downwards cutting the common carotid artery and piercing the esophagus at second thoracic vertebra level.

33. PW.14 - Doctor has opined that "the cause of

death" is "hemorrhagic shock due to the above sustained

injury and the time since death is less than 12 hours".

PW.14 has stated that she has given the said report as

per Ex.P11. Doctor has opined that the said injury

could be caused on the person who was assaulted with

M.O.1 - scissors. She has given the opinion after

examining M.O.1 - scissors. Both Ex.P12 and P13 are

her opinion. Though the doctor was cross-examined at

length but nothing was elicited in her cross-examination

which could help accused. The death of the deceased

due to said injury is also not disputed by the accused.

34. PW.15 - Manjunath Shepur is the Junior

Engineer who has prepared the sketch copy of the place

of offence as per Ex.P14.

35. PW.16 - Naseer Hussain is the PSI of

Kundapur Police Station who received the complaint

and registered the case and arrested the accused.

36. PW.17 - Dr.Geeta Lakshmi is the Scientific

Officer of Regional Forensic Science Laboratory,

Mangaluru. PW.17 has stated in her evidence regarding

chemical examination of the material objects sent by the

investigating officer and giving certificate of examination

as per Ex.P17 and serology report as per Ex.P19. The

said Scientific Officer has opined that the items as per

A, B, C, D, E, F, G, H, I, L and M are stained with

human blood. Blood in item-K was disintegrated so its

origin could not be determined and she has also stated

that the blood group of the said items is 'O' group. The

blood group of the stains in the item No.1 could not be

determined because the results of the tests were

inconclusive. There is nothing in the cross-examination

to disbelieve the said evidence of Scientific Officer.

37. PW.18 - Hanume Gowda is the Tahsildar who

issued the records in respect of ownership of the house

of accused as per Ex.P20 and Record of Rights as per

Ex.P21.

38. PW.19 - Smt.Radhika, Assistant

Superintendent of Police is the Investigating Officer who

has conducted the investigation and filed charge sheet.

In her evidence she has stated about conducting the

inquest panchanama, arresting the accused, recording

voluntary statement of accused and recovery of scissors

used for commission of offence at the instance of

accused in the presence of panchas and also recovery of

cloths and other material objects. PW.19 has also

stated about conducting the panchanama at the scene

of offence and taking photographs, sending the blood

stained cloths and other materials and blood stained

mud and unstained other mud for chemical

examination to the Forensic Science Laboratory. She

has further stated about recording statement of

witnesses. She has admitted in the cross-examination

that she could not find any reason or intention for

which the accused caused murder of the deceased.

PW.19 has stated that she came to know from others

that there was some domestic quarrel between them

earlier. But there are no records or no incidents in

which they came to police station or there was any

panchayath held between accused and deceased

regarding any such quarrel. PW.19 evidence shows that

there was no motive or intention on the part of the

accused to commit any offence as alleged. Of course,

some suggestions were made which were denied by her.

It is suggested that it was not a homicide. Except this

there is nothing in her cross-examination which would

help accused.

39. On consideration of the entire evidence

adduced by the prosecution, learned Sessions Judge

found that the evidence placed before the Court

indicates that though there is evidence that it is a

culpable homicide committed by the accused by causing

death of deceased Nagarathna, but it is a culpable

homicide not amounting to murder falling under

Exception 4 of Section 300, IPC which is punishable

under Section 304(II) of IPC. Accordingly, the learned

Sessions Judge after discussing the entire evidence and

considering the age and the relationship, the

circumstances under which the incident took place,

though convicted the accused for the offence under

Section 304 Part II of IPC but acquitted the accused

under Section 302 of IPC and imposed the impugned

sentence which is under challenge.

40. It is borne out from the evidence of

prosecution that from the date of marriage, deceased -

Nagarathna was residing with accused nearly for more

than 08 years at Shirur Village. The relationship

between them is daughter-in-law and mother-in-law.

There may be some quarrel between them which can be

called as natural wear and tear in family which usually

take place. But it is evident that accused had no

intention or ill-will to commit murder of the deceased.

The only eye witness to the incident is the grand son of

accused and he is none other than the son of deceased -

Nagarathna. Of course, others though have not seen the

incident, but it is evident from their evidence that they

found deceased - Nagarathna lying in pool of blood in

front of her house and there was injury on her neck.

They also found the accused was holding scissors in her

hand. This evidence of other witnesses is not shaken

and it is a credible evidence which can be accepted to

corroborate the charge against the accused. The

accused has also stated in her 313 Cr.P.C statement

that when the deceased tried to assault her, the scissors

came in contact with deceased and she has not done

any thing. But the accused has not led defence evidence

in this regard. However, looking into the nature of the

injury and the evidence of all witnesses it is evident that

some sudden fight took place between the accused and

deceased. May be there were verbal exchange of words

and abuse by them in a heat of passion. As evident from

the evidence, the accused who was stitching the cloths

on a sewing machine along with a scissors cutting the

cloths might have tried to push the accused and in that

scuffle the scissors might have touched the vital part of

neck thereby deceased sustained grievous injury which

is found to be a fatal one. It is evident that the accused

had neither intention to commit any serious injury nor

she had intention to cause death of deceased. There

was no pre-planning. The accused has not taken any

undue advantage or acted in a cruel and she has not

acted in a unusual manner. Because there was only one

injury. If at all the accused had any intention to cause

death or brutal injury, she could have assaulted with

scissors number of times, but it is not so. As per the

medical evidence there was only one injury.

41. It is evident that accused has not tried to call

for help. She might be in a state of shock because of the

unexpected incident. But she was present at the place

of offence when other witness came there. Therefore,

when only accused and deceased were present in the

house and deceased was found with bleeding injury to

her neck, at the same time accused was found holding

scissors in her hand, then in the absence of any

satisfactory explanation by the accused, about the

injury to deceased, the presumption is, it is the accused

who caused injury to deceased through scissors, though

it may not be intentional one. This unfortunate incident

has taken place because of silly reason i.e. with respect

to wearing saree.

42. We have perused the impugned judgment. The

learned Sessions Judge has rightly come to a conclusion

that the alleged offence does not fall under Section 302

of IPC as there is no evidence to show that the accused

has committed the culpable homicide amounting to

murder. Therefore, the accused has been acquitted for

the offence punishable under Section 302 of IPC and

was convicted for Section 304 Part II of IPC.

43. Whereas keeping in view Section 299 of IPC,

1860 relating to culpable homicide and the distinction

between culpable homicide and murder, the culpable

homicide is the genus and murder is its species and all

murders are culpable homicides but all culpable

homicides are not murders as stated in a decision of

Hon'ble Supreme Court reported in Rampal Singh v.

State of Uttar Pradesh (2012) 8 SCC 289.

44. The Hon'ble Supreme Court in a decision

reported in State of Maharashtra v. Krishna Murti

Lazmipatti Naidu (AIR 1981 SC 617) has extensively

addressed when the provocation caused by act that the

assault for murder cannot be said to be sudden and

without meditation as the deceased was not armed.

45. It is also relevant to refer Section 300 of IPC,

1860 in Exception - 1 - when culpable homicide is not a

murder - Culpable homicide is not murder if the

offender, whilst deprived of the power of self-control by

a grave and sudden provocation, causes the death of the

person who gave the provocation or causes the death of

any other person by mistake or accident.

46. Whereas in Exception No.4 - Culpable

homicide is not murder if it is committed without pre-

meditation in a sudden fight in the heat of passion upon

a sudden quarrel and without the offender having taken

undue advantage or acted in a cruel or unusual

manner.

47. Insofar as Exception-5 - Culpable homicide is

not murder when the person whose death is caused,

being above the age of eighteen years, suffers death or

takes the risk of death with his own consent.

48. Whereas in the instant case, the incident took

place in between the accused who is the mother-in-law

and the deceased who is the daughter-in-law. But there

was no enmity in between them. On the fateful day for

some quarrel in between them perhaps when the

accused was holding the iron scissors in her hand the

said scissors would have come into contact with the

vital part of the neck of deceased and resultantly

causing the injuries and lost her breath. The accused

in question No.107 in the incriminating statement

recorded by the trial Court as contemplated under

Section 313 of Cr.P.C. has specifically answered that

she did not had any enmity or ill-will against her

daughter-in-law. But lost her breath by sustaining

injury on the vital part of her neck with means of M.O.1

- scissors said to have been used by the accused. But

M.O.1 - scissors there shall be some two folds, inner

fold which has sharp edge and the outer fold which has

blunt edge. The tip of the scissors perhaps may be

sharp. It is difficult to infer whether M.O.1 -scissors

has been opened by the accused intentionally to cause

some injury to the vital part of the neck of deceased -

Nagarathna as at the particular time of the incident

narrated in a complaint at Ex.P4.

49. But the trial Court had arrived at a

conclusion that the prosecution has proved the guilt of

the accused under Section 304 Part II of IPC. Section

304 Part II of IPC indicates no intention or no

knowledge. If the accused had intention to commit the

murder of her daughter-in-law namely Nagarathna,

certainly would not have inflicted only one more injury

as indicated at Ex.P11 - P.M.Report, as a prudent man

can infer. Whereby the incident took place in between

mother-in-law who is accused arraigned in the sessions

trial and the deceased who is no other than the

daughter-in-law. But there might be some incident

ensuing in between them, though her husband -

Manjunatha by avocation as a carpenter and was

staying at Sirsi for the last 15 years and he was

maintaining his wife Nagarathna and also his mother

who is accused and their family consisting two sons and

a daughter. But they have been residing in Shiroor

village in Kundapura Taluk. However, at a cursory

glance of the entire evidence and in totality of the

circumstances of the case, we are of the opinion that

the prosecution did not facilitate worthwhile evidence to

prove the guilt of the accused in terms of corroborative,

cogent and positive evidence to probabalise that the

accused has committed the offence punishable under

Section 302 of IPC by infliction of injury on the

vital part of the neck of the deceased. It is

specifically stated in Exception - 4 to Section 300

IPC that culpable homicide is not murder if it is

committed without pre-meditation in a sudden fight in

the heat of passion upon a sudden

quarrel and without the offender having taken undue

advantage or acted in a cruel or unusual manner.

Further, Section 3 of Indian Evidence Act, 1872, it is

specifically stated that the domain is vested with the

trial Court for appreciation of entire evidence on the

part of the prosecution and also on the part of defence.

But in the instant case, the prosecution did not

facilitate worthwhile evidence to prove the guilt of the

accused for the offence under Section 302 of IPC.

Therefore, we find no grounds to interfere with the

finding of learned Sessions Judge in convicting the

accused for the offence under Section 300 Exception 4

and punishable under Section 304 Part II of IPC.

50. It is argued by learned HCGP that the

sentence imposed for the offence under Section 304-II

IPC by the Sessions Court i.e. releasing the accused by

extending benefit of Section 4 of Probation of Offenders

Act, 1958 needs to be set-aside and proper sentence as

per law to be imposed.

51. We are not inclined to accept such contention

of the State in view of the facts and circumstances of

this case and the factors to be taken into consideration

for awarding sentence.

52. Section 53 of IPC enumerates the

punishments to which offenders are liable under the

provisions of this Code. They are -

(i) Death;

(ii) Imprisonment for life;

(iii) Imprisonment -

(a) Rigorous, i.e. with hard labour

(b) Simple;

(iv) Forfeiture of property; and

(v) Fine.

53. It is evident that Section 304 Part II of IPC

prescribes punishment of imprisonment for ten years,

or fine, or both. It is settled principles of law that the

punishment must be appropriate and proportional to

the gravity of the offence committed. Imposition of

appropriate punishment is a discretion left to the Court.

It is the duty of the Court to consider all relevant

circumstances which may be broadly classified as

'aggravating' or 'mitigating' / 'extenuating'. If there are

aggravating circumstances, they call for

deterrent/severe punishment. Whereas mitigating

circumstances favour lenient approach in sentencing.

However, the sentences are determined on other

relevant consideration as sometimes it needs to consider

the circumstances under which the offence is

committed. The degree of deliberation shown by the

offender in committing a crime is a material one. The

other relevant consideration are prior criminal record of

the offender, age of the offender, background of the

offender with reference to education, homelife, the

emotional and mental condition, prospects of

reformation and rehabilitation. The aim of punishment

is designed to protect society by deterring potential

offenders as also by preventing the guilty party from

repeating the offence. In modern civilized society

reformatory aspect is being given somewhat greater

importance. Choice of appropriate sentence is a serious

matter and they should not be dealt with casual or

mechanical manner. The Court is expected to consider

all relevant facts and circumstances before determining

the quantum of sentence as stated above.

54. It is to be noted here that the provisions of

Probation of Offenders Act, 1958 are in force in the

State of Karnataka. The object of the Act is to reform

and rehabilitate the offender as a useful and self-reliant

member of the society without subjecting him or her to

the deleterious effects of daily life.

55. Admittedly, the accused at the time of incident

was aged about 60 years. Now she must be nearly 68

years old and she has lost her daughter-in-law. There is

no history of earlier quarrel or any untoward incident

between accused and deceased. There is no record or

past history to show that accused is having criminal

background or involved in any criminal cases. It is also

evident that trial Court judgment was rendered in the

year 2015, thereafterwards there are no reports of any

misbehaviour or violating any conditions of good

behavior or disturbing peace in the family or in the

village. The husband of the deceased or the other

witnesses have not stated anything about any

misbehavior or misconduct of the accused with

deceased. It appears the accused is a rustic woman. As

discussed above the unfortunate incident took place

without pre-meditation in a sudden fight in the heat of

passion upon a sudden quarrel. There was only one

injury which itself shows that the accused had no

intention to kill. It is also evident that the accused has

not acted in a cruel or unusual manner. The accused

has not taken any undue advantage. The said only one

injury proved to be fatal one. It is also evident that the

accused was in judicial custody for one year three

months eight days during trial. Therefore, we are of the

opinion that it can be termed as service of sentence and

the same would meet the ends of justice.

56. Therefore, looking into the circumstances

under which the said incident occurred, the nature of

injury, weapon used, the relationship of deceased and

accused, age of the accused, the period of imprisonment

already undergone by the accused during trial, at this

stage, we find no ground to interfere with the sentence

imposed by the learned Sessions Judge for convicting

the accused for offence punishable under Section 304

Part II IPC and sentencing to release her under Section

4 of Probation of Offenders Act, 1958. Already she might

have repented for her act which was unintentional.

Therefore, the ends of justice will suffice, if the sentence

imposed by the learned Sessions Judge is confirmed in

view of peculiar facts and circumstances of this case.

57. The Hon'ble Supreme Court in a decision

reported in State of Karnataka v. Muddappa (1999)

5 SCC 732 considered the applicability of Section 4 of

Probation of Offenders Act and factors to be taken into

consideration when the accused was convicted for

offence under Section 304 Part II IPC. In that case it

was a appeal from a judgment of this Court, the

conviction was under Section 302 of IPC and the High

Court set-aside the conviction under Section 302 of IPC

and convicted the accused under Section 304 Part II of

IPC and the accused was ordered to be enlarged under

Section 4 of Probation of Offenders Act, 1958. The said

finding of imposition of sentence and conviction was

challenged before the Hon'ble Supreme Court. It was

held by the Hon'ble Supreme Court that the High Court

has rightly considered the relevant material and came to

the conclusion that the accused be released on

probation by applying Section 4 of the Probation of

Offenders Act and accordingly, dismissed the appeal.

The Hon'ble Supreme Court at para No.2 observed as

under:

"The learned Counsel for the appellant is not in a position to assail the acquittal of the accused under Section 302 I.P.C., but he vehemently contends that the Court did not bear in mind germane considerations for releasing the accused on probation after

convicting him under Section 304 Part II I.P.C.

   Whether      the    benefit    of   the   Probation    of
   Offenders Act could be extended in any
   particular         case   depends          upon       the

circumstances of that case. Admittedly, there is no statutory bar for application of the Act to an offence under Section 304 Part II where the maximum punishment is neither death nor imprisonment for life. In that view of the matter and on examining the impugned judgment of the High Court, we find that the Court did consider the relevant material and then came to the conclusion that the accused should be released on probation by applying the provisions of Section 4 of the Probation of Offenders Act. We see no infirmity with that order to be interfered with by this Court after this length of time, more so when nothing has been pointed out as to whether the accused has, in any way, violated the terms and conditions of allowing him on probation".

58. Therefore, in view of the discussion made

above, evidence on record and the principle stated in

Muddappa's case supra by the Hon'ble Supreme Court,

we find no illegality or perversity in the sentence

imposed by the learned Sessions Judge. There are no

grounds to interfere with the impugned judgment of

conviction and order of sentence. Hence, both the

appeals being devoid of merits are liable to be

dismissed. Accordingly, we proceed to pass the

following:

ORDER

(i) Crl.A.No.253/2016 and Crl.A.No.252/2016