Shive Gowda @ Shivanna vs State By Channarayapatna
2022 Latest Caselaw 872 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 19TH DAY OF JANUARY, 2022

                         PRESENT

            THE HON'BLE MR. JUSTICE B. VEERAPPA

                             AND

             THE HON'BLE Mrs. JUSTICE M.G. UMA

             CRIMINAL APPEAL NO.864/2015


BETWEEN:
SHIVE GOWDA @ SHIVANNA,
S/O. NANJEGOWDA,
AGED ABOUT 73 YEARS,
R/O. M. SHIVARA VILLAGE,
BAGOOR HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT - 573 201.

                                                 ... APPELLANT


(BY SRI. DEVENDRA E.H., ADVOCATE
    FOR APPELLANT AS AMICUS CURIAE)


AND:

STATE BY CHANNARAYAPATNA
RURAL POLICE, REPRESENTED BY
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001
                                            ... RESPONDENT
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(BY SRI. VIJAY KUMAR MAJAGE, ADDL. SPP)


       THIS CRIMINAL APPEAL IS FILED UNDER U/S.374(2) CR.P.C

BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS

HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT

DATED 23.08.2014 PASSED BY FTC AND ADDL. SESSIONS JUDGE,

CHANNARAYAPATNA      IN   S.C.NO.235/2012   -   CONVICTING   THE

APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC.




       THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO LIFE

IMPRISONMENT AND TO PAY FINE IN A SUM OF RS.25,000/- FOR

THE OFFENCE P/U/S 302 OF IPC.




       THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.



       THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING

THIS   DAY,   THROUGH     VIDEO CONFERENCE      B.VEERAPPA J.,

DELIVERED THE FOLLOWING:
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                             JUDGMENT

The criminal appeal is filed by the appellant-accused against

the impugned judgment of conviction dated 23.08.2014 and order

of sentence dated 25.08.2014 made in S.C.No.235/2012 on the file

of the Fast Track Court and Additional Sessions Judge,

Channarayapatna (hereinafter referred to as 'the Trial Court' for

brevity), convicting appellant-accused under the provisions of

Section 302 of Indian Penal Code (for short 'the IPC') and

sentencing him to undergo life imprisonment and to pay a fine of

Rs.25,000/-.

2. It is the case of the prosecution that the deceased-

Murali married the grand-daughter of the accused by name Pavitra.

The said Pavitra was brought up by accused in his house. After 2-3

years of their marriage, there was a dispute in between Murali and

Pavitra. She left the house of Murali and went to Bangalore, and

was working there in a Garment factory. The deceased-Murali was

residing at complainant's house and was carrying out motor

re-winding work. He used to visit the house of the accused

frequently and there was quarrel between the accused and

deceased in the matter of Pavitra. On 16.05.2012, the deceased-

Murali came to the Hotel of the complainant, parked his bicycle

there and went to the house of the accused at about 8.00 p.m.

Thereafter, he never returned. In the morning, people were rushing

towards the house of accused, then the complainant came to know

about the death of deceased-Murali. On enquiry, he came to know

that in the matter of Pavitra, quarrel held in between the deceased-

Murali and accused and the accused assaulted him and also tied

him to the coconut tree and committed the murder of the deceased.

Based on the complaint lodged by one S.B.Siddegowda alias

Thammayanna, the jurisdictional police registered the case in

Crime.No.75/2012 against the accused for the offence punishable

under Section 302 of IPC. After investigation, the Circle Inspector of

Police, Channarayapatna, filed the charge sheet against the accused

for the offence punishable under Section 302 of IPC. After

committal of the matter, the learned Sessions Judge secured the

presence of the accused and framed charge and read over and

explained to the accused to the language known to him. He pleaded

not guilty and claimed to be tried.

3. In order to establish the case of the prosecution, the

prosecution has examined in all 16 witnesses as PWs.1 to 16, got

marked the documents Exs.P1 to P12 and the material object-Rope-

M.O-1. After completion of evidence of the prosecution witnesses,

the statement of the accused as contemplated under the provisions

of Section 313 of Cr.P.C., was recorded and the accused has denied

all the incriminating materials placed by the prosecution, but has

not chosen to lead any evidence on his behalf. Based on the

aforesaid pleadings, the learned Sessions Judge framed point for

consideration.

4. Considering the oral and documentary evidence on

record, the learned Sessions Judge answered the point in the

affirmative, holding that the prosecution has proved that on

16.05.2012 at about 9.00 p.m., the accused picked up quarrel with

deceased-Murali in the matter of his grand-daughter Pavitra,

assaulted him and tied the said Murali to the coconut tree and

assaulted on his vital part with an intention to commit the murder,

in the result, the said Murali died at spot. Thereby, the prosecution

proved that the accused has committed the offence punishable

under Section 302 of IPC beyond reasonable doubt. Accordingly,

the learned Sessions Judge by the impugned judgment of conviction

and order of sentence, convicted and sentenced the accused to

undergo life imprisonment and to pay a fine of Rs.25,000/- under

the provisions of Section 302 of IPC. Hence, the present appeal is

filed by the appellant/accused.

5. We have heard the learned counsel for the parties.

6. Sri.Devendra.E.H., learned amicus-curiae for the

appellant contended that 16 witnesses were examined by the

prosecution to prove the case and out of the said witnesses PWs.5

and 9 turned hostile. PWs.1, 6 and 10, who are the close relatives

of the deceased, supported the case of the prosecution. PW.15, who

conducted the post mortem report, has not whispered about any

injuries on the deceased and according to the Doctor, there are two

views possible. Thereby, the prosecution has not proved the case

i.e., the involvement of the accused in the homicidal death of the

deceased. He further contended that there are no eye-witnesses to

the incident, but the trial Court proceeded to convict the accused

only on the basis of the circumstantial evidence, which is not

established beyond reasonable doubt. He further contended that

the prosecution has not proved the motive nor recovered any

material objects at the instance of the accused. It is further

contended that the cause of the death was due to "asphyxia as a

result of aspiration, secondary to chest compression" as spoken to

by the Doctor-PW.15 and as per the post mortem report-Ex.P11

and not due to assault as alleged in the complaint-Ex.P1 made by

PW.1. Absolutely there is no material against the accused who is

aged about 84 years. Therefore, he sought to allow the criminal

appeal.

7. Per Contra, Sri.Vijaykumar Majage, learned Additional

State Public Prosecutor for the State, while justifying the impugned

judgment of conviction and order of sentence contended that in

view of the evidences of PW.1-complainant, PW.6 is the neighboring

villager and relative of PW.1 and PW.11, who is the neighbor of the

accused, clearly depicts that on 16.05.2012, there was a quarrel

between the accused and deceased in the matter of Pavitra, who is

grand-daughter of the accused and thereby the accused tied the

deceased to the coconut tree, which resulted in his death. Thereby,

the provisions of Section 302 of IPC attracts. Learned Additional

SPP further contended that there was a motive for murder, as

Pavitra, the grand-daughter of the accused left the deceased and

was residing separately in Bengaluru as the deceased was not

taking care of her properly. In this regard, on the unfortunate day

when the deceased went to the house of the accused, the quarrel

took place between them and the accused assaulted the deceased

and tied him to the coconut tree. He would further contend that

the evidence of the prosecution witnesses and the material

documents clearly depicts that the accused is involved in the

homicidal death of the deceased. Accordingly, the trial Court

justified in convicting and sentencing the accused to undergo life

imprisonment and to pay a fine of Rs.25,000/- under the provisions

of Section 302 of IPC. Therefore, he sought to dismiss the criminal

appeal.

8. In view of the rival contentions urged by learned

counsel for the parties, the only point that would arise for our

consideration is:

"Whether the trial Court is justified in convicting the accused and sentencing him to undergo life imprisonment and to pay a fine of Rs.25,000/- for the offence punishable under Section 302 of IPC, in the facts and circumstances of the case?"

9. We have given our thoughtful consideration to the

arguments advanced by the learned counsel for the parties and

perused the entire material on record including the original records

carefully.

10. The complaint was made by PW.1, who is the brother-

in-law of the deceased, mainly on the basis that the deceased-

Murali and Pavitra-grand-daughter of the accused were married and

about 2-3 years prior to the incident, as there was dispute between

the couples, Pavitra left the house of deceased-Murali and went to

Bengaluru, started working in a Garment Factory. The deceased-

Murali was carrying out motor re-winding work and used to visit the

house of the accused frequently and was quarrelling with the

accused in the matter of Pavitra. On the unfortunate day i.e.,

16.05.2012, the deceased-Murali came to the Hotel of the

complainant, parked his bicycle there itself and went to the house

of the accused and thereafter, he never returned. In the morning,

people were rushing towards the house of accused, then the

complainant came to know that in the matter of Pavitra, there was

quarrel between the deceased-Murali and accused and the accused

has assaulted the deceased and tied him to the coconut tree and

committed the murder. Thereby, PW.16-the Circle Inspector of

Police, Channarayapatna, after investigation, filed the charge sheet

against the accused for the offence punishable under Section 302 of

IPC.

11. This Court being the Appellate Court in order to re-

appreciate the entire oral and documentary evidence on record, it is

relevant to consider the evidence of prosecution witnesses and the

material documents relied upon.

(i) PW.1-S.B.Siddegowda alias Thammayanna, who is the complainant and witness to the Mahazar at Ex.P2 and identified photographs at Exs.P3 to P5. In the cross-examination, witness deposed that he and the accused are from same village and the deceased-Murali was carrying on motor-rewinding work for past 3-4 years, from the date of incident. Witness stated that the accused performed the

marriage between the deceased-Murali and his grand-daughter Pavitra secretly. Further, witness reiterated the complaint averments and denied that he is deposing falsely against the accused. He supported the case of the prosecution.

(ii) PW.2-Mahesha is the mahazar witness to Ex.P2.

Witness deposed that the police had drew the mahazar in his presence, which is identified as Ex.P2 and his signature as Ex.P2(b). The witness identified MO.1-Rope used in the commission of offence and the photographs at Exs.P3 and P4. Witness further deposed that the contents written by the police in Ex.P2 are true and it is written in his presence only. He supported the case of the prosecution.

(iii) PW.3-Govindegowda, another mahazar witness to Ex.P2. Witness deposed that the police had drew the mahazar in his presence, which is identified as Ex.P2 and his signature as Ex.P2(c). The Rope used in the commission of offence was identified as MO.1-Rope and photographs at Exs.P3 to P5. In the cross-examination, he has admitted that the police had not captured the photographs in his presence. Witness further admitted that he was doing coolie work and whenever CW.1 calls him for coolie work,

he would go and also deposed that at the first instance he did not visit the spot. He supported the case of the prosecution.

(iv)   PW.4-Sampath,       mahazar    witness     to        Ex.P2,
       identified   the   MO.1-Rope   and    in   the       cross-

examination admitted that PW.1 took him to the spot while police were conducting mahazar and at that time, there was no one except this witness and other two police. Witness further deposed that the accused and his wife were residing together. Both the accused and complainant have no trust on each other. Further denied that he is giving false evidence in order to support the complainant. He supported the case of the prosecution.

(v) PW.5 - Murali, circumstantial witness to Ex.P6, deposed that he had seen the body of the deceased in the Government Hospital. He does not know about the injuries on the dead body. He does not know the reason for the death of the deceased. He turned hostile and not supported the case of the prosecution.

(vi) PW.6-Shambulinge Gowda, who is the circumstantial witness, deposed that on 16.05.2012 at about 12:00 at night, the accused came to his

house and woke him up and told that the deceased-Murali had picked up quarrel with him and thus he had tied deceased-Murali to the coconut tree and asked this witness to accompany him to police station to lodge the complaint. After listening to the accused, witness scolded him and informed to release the deceased-Murali, at that time the accused told him that he himself will go to the police station to lodge the complaint. Witness stated that on the next day of the incident, he came to know about the death of the deceased and went to the spot. By that time already police and public were present at the spot and police took the dead body of the deceased to the Government Hospital. Witness identified MO.1-Rope. He supported the case of the prosecution.

(vii) PW.7-Basavaraj, another circumstantial witness, who deposed about the marriage between the deceased-Murali and Pavitra, grand-daughter of the accused and the work carried on by the deceased- Murali i.e., motor rewind work. Witness further stated he met the deceased-Murali one day earlier to the incident. Thereafter, he came to know about the death of deceased-Murali. He went to the incident spot and found that the dead body of

Murali was lying on the ground and the rope was beside him. Witness further stated that the public were talking about the death of the deceased saying that accused is responsible for the same. He identified the Rope as MO.1 and the photographs as Exs.P3 to P5. He supported the case of the prosecution but in the cross-examination admitted that he does not know the exact reason for the death of the deceased-Murali.

(viii) PW.8-K.C.Channaveeregowda, the Engineer who has drawn the spot sketch as per Ex.P7 on the request of the police officer and submitted the same to the Investigating Officer. The letter sent through Assistant Engineer is identified as Ex.P8. In the cross-examination, he deposed that he prepared the sketch only on the basis of information given by police constable. Except that he did not receive any information from anyone. He supported the case of the prosecution.

(ix) PW.9-Hindlegowda, another circumstantial witness to the Inquest Mahazar-Ex.P6. Witness turned hostile and not supported the case of the prosecution.

(x) PW.10-Umesh, another witness to Inquest Mahazar-Ex.P6. Witness in the cross-examination, admitted that he came to know about the death of the deceased-Murali only when his uncle-CW.8 called and informed him. He did not give any statement before the police and he does not know the reason for the death of the deceased. He supported the case of the prosecution.

(xi) PW.11-Shivalingappa, another circumstantial witness, who deposed about the relationship between the accused and the deceased-Murali and marriage of grand-daughter of accused with deceased-Murali and motive which led to the death of the deceased and has stated that there was frequent quarrel between the accused and deceased-Murali in the matter of Pavitra. Witness further stated that on the unfortunate day there was quarrel between the accused and the deceased at the house of the accused and he thought that quarrel between accused and deceased was as usual and went to his house. On the next day of the incident, he came to know that accused committed the murder of deceased-Murali. Then he went to the spot and saw the dead body of the deceased-Murali, which was lying on the ground

and there was a contusion mark on his back.

Witness further deposed that the accused had tied the deceased-Murali to the coconut tree and after the death of deceased-Murali, he has removed the rope. Thereby, the accused has committed the murder of the deceased-Murali. He identified the rope as MO.1 used in the commission of offence and photographs as Exs.P3 to P5.

The witness in the cross-examination deposed that the complainant is his brother and there was no cordial relationship between him and the accused. The accused was not talking with him. Witness further stated that he does not know the place of marriage of the deceased and there was no reconciliation/panchayath held between the accused and the deceased. He does not know who all were screaming near the house of the accused.

There was no good relationship between the accused and his children. He came to know about the deceased-Murali's death by a girl of his village, who informed him that accused killed deceased- Murali. Witness stated that by the time he reached the spot, the police and almost 20 people were gathered there. Witness in the cross-examination, admitted that he does not know the reason for deceased-Murali's death and he came know about

the same only through a girl of his village as well as by villagers and not on his own. Witness further admitted that by the time he reached to the spot, the accused had already gone to the police station. Thereafter, the police brought the accused to the spot. Witness further identified the rope as MO.1 and supported the case of the prosecution.

(xii)    PW.12-Sathish.V.K.,           Police        Constable,        who
         apprehended        the   accused       on    18.05.2012       and

produced him before the Investigating Officer, submitted the report at Ex.P9. He supported the case of the prosecution.

(xiii) PW.13-K.V.Subramanya, another Police Constable, who took the dead body of the deceased to Government Hospital for postmortem and he was there till the postmortem was over. In the cross- examination, he admitted that he had not produced any report regarding his appointment to take the dead body of the deceased to postmortem. Further, witness denied that there is nothing to show in mahazar that he was appointed to take dead body of the deceased to postmortem.

(xiv)    PW.14 - B.Giridhara, ASI, who registered the case
         on   the   basis    of    the   complaint       filed    by   the




       complainant,    which      is    marked     at    Ex.P1     and

registered FIR-Ex.P10. Witness conducted Inquest Mahazar-Ex.P6 and recorded statements of PWs.6, 7 and 10. Thereafter, sent the dead body of the deceased to the Doctor for postmortem through PW.13 and entrusted the matter to CW.19. On 18.05.2012, witness along with PW.12 arrested the accused from his daughter's house and produced him before the CPI-Investigating Officer and submitted report in that regard. He supported the case of the prosecution.

(xv)   PW.15-V.B.Prakash,         the    Medical        Officer    who
       conducted      postmortem         examination         of    the

deceased and submitted report as per Ex.P11. He has opined that the cause of the death was "due to asphyxia as a result of aspiration, secondly to chest compression". He further deposed that while opening the skull, it was intact but brain was in red colour. In the chest water mixed blood was collected, rest of the parts were intact. Witness also verified MO.1 before the Court and opined that, if a person tied with MO.1 to the coconut tree, the contusion mark which are bluish in colour could be caused and due to such compression, there is a chances of collecting water mixed blood in the

chest which is sufficient to cause the death of a person. The same was not mentioned in the postmortem report, which was admitted in the cross-examination. He further admitted that he had not examined whether alcohol content was there or not in the body of the deceased. He further deposed that if the person falls down and puts pressure on his chest, there is a risk of constipation and runny nose. He further deposed that the eyes and nose are most likely to become red when a person has been drinking and vomiting. He admitted that there were no adrenal and bladder pressure or injuries. He further deposed that this type of death might occur if any person consumes excessive alcohol and falls down and put too much pressure on the chest.

(xvi) PW.16-Marappa.A, the Investigating Officer has deposed that he visited the spot and conducted the mahazar as per Ex.P2, recovered MO.1 on the spot and deputed PWs.12 and 14 to arrest the accused and thereafter investigated the accused and recorded his voluntary statement as per Ex.P12. Thereafter, the accused was taken to the incident spot and the photographs captured at that time are identified as Exs.P3 to P5 and inquest mahazar was

drawn as per Ex.P6. Further, recorded the statement of PW.12 and received the sketch and letter issued by the Assistant Engineer which is identified as Exs.P7 and P8. On 25.07.2012, recorded the statements of PW.11 and CW.11. On 02.08.2012, received the postmortem report, which is identified as Ex.P11. After completion of investigation, filed the charge sheet against the accused person.

Based on the aforesaid oral and documentary evidence on

record, the learned Sessions Judge proceeded to convict and

sentence the appellant/accused for the offence punishable under

Section 302 of IPC.

12. The material on record clearly depicts that the

deceased-Murali married the grand-daughter of the accused by

name Pavitra and there was a family dispute in between them.

Thereby, Pavitra left the house of deceased-Murali and started to

work in a Garment Factory in Bengaluru and in the matter of

Pavitra, there was frequent quarrel between the accused and

deceased. On the unfortunate day i.e., on 16.05.2012, the

deceased-Murali came to the Hotel of the complainant, parked his

bicycle and went to the house of the accused at about 8.00 p.m.

According to PW.1, the deceased never returned and he came to

know about the death of the deceased on the next day of the

incident from villagers. The evidence of PWs.6 and 11 depicts that

there was frequent quarrel between the accused and deceased

about the relationship of Pavitra and deceased-Murali. The accused

age was about 70 years as on the date of the incident. In order to

avoid quarrel with the deceased who was said to be under the

influence of alcohol, the accused might have tied him to the coconut

tree. But there is no material to establish that the accused has

assaulted the deceased except the evidence of PW.1, who is the

brother-in-law of the deceased and evidence of PWs.6, 10 and 11

who are relatives of the deceased, supported the case of the

prosecution. There is no material to prove that the accused has

assaulted and tied the deceased to the coconut tree.

13. The evidence of Doctor-PW.15 clearly depicts that there

are no external injuries on the body of the deceased. He further

opined that if the person falls down and puts pressure on his chest,

there is a risk of constipation and running nose. He further admitted

that there were no adrenal and bladder pressure or injuries and this

type of death might occur if any person consumes excessive alcohol

and fall down and put too much pressure on the chest. He further

admitted in his cross-examination that he has not examined

whether alcohol content was there or not in the body of the

deceased. He specifically stated that there are no injuries on the

body of the deceased. The postmortem report-Ex.P11 also does not

disclose any injuries except crease which is clear because of over

drunk and congestion of the nose, eyes and waist and death was

due to asphyxia as a result of aspiration, secondly to chest

compression. There are no eye-witnesses to establish the

involvement of the accused in the homicidal death of the deceased.

Learned Sessions Judge proceeded to convict the accused only on

the basis of the circumstantial evidences. In fact, even assuming,

the circumstantial evidences have not linked with each other. Even

though it is stated that there is motive for the alleged homicidal

death of the deceased as he was the husband of the grand-

daughter of the accused. But no recovery was made at the instance

of the accused.

14. A careful reading of the evidence of PW.6-

Shambulingegowda, who has stated that on 16.05.2012 at about

12:00 midnight, the accused came to his house and woke him up

and informed that there was quarrel between him and deceased-

Murali in the matter of Pavitra and he had tied the deceased-Murali

to the coconut tree and asked this witness to accompany him to the

police station to lodge the complaint. But PW.6 scolded the accused

and told him to release the deceased and did not accompany the

accused to the police station. Thereby, the accused himself went to

the police station to lodge the complaint. The evidence of PW.6

does not depict that he is an eye-witness to the incident. PW.11,

one of the circumstantial witness, who has stated that about 5-6

years earlier to the incident, the wife of the deceased left him, for

which, there was frequent quarrel between the accused and

deceased. On the next day morning of the incident, he came to

know that accused has assaulted and caused the death of the

deceased-Murali. Then he went to the spot and saw the dead body

of the deceased-Murali, which was lying on the ground and there

was contusion mark on his back. He came to know that the accused

assaulted the deceased and tied him to the coconut tree, which

resulted in his death and accused himself went to the police station

to lodge the complaint. In the cross-examination, PW.11 admitted

that there was no cordial relationship between him and accused and

the accused was not in talking terms with him. He does not know

the place, where the marriage of the deceased and grand-daughter

of the accused was performed and there was no panchayath

conducted between the accused and the deceased with regard to

the family dispute in between the deceased and grand-daughter of

the accused. He further stated that there was no good relationship

between the accused and his children. He came to know about the

deceased-Murali's death by one girl of his village, who informed him

that accused has killed the deceased-Murali and by the time he

reached the spot, the police and almost 20 persons were gathered

at the spot. Further, PW.11 has stated that he has not given any

statement before the police. He has admitted that he is not aware

as to how the deceased died and he is not sure whether the

accused caused the death of the deceased but came know about

the same by the villagers. By the time, this witness reached the

scene of occurrence, the accused went to the police station and

there was no panchayath held when the police brought the accused

to the spot and the witness has admitted that there was enmity

between him and the accused. Admittedly, this witness is not an

eye-witness to the incident. He has admitted enmity between him

and accused and stated that he came to know about the death of

the deceased from a girl of his village. Admittedly, the said girl has

not been examined.

15. According to the learned amicus-curiae for the

appellant, the appellant/accused has only lodged the complaint on

the same day of alleged incident, but no material is produced to

establish the same. The evidences of PWs.6 and 11 clearly depicts

that the accused said to have gone to the police station stating that

he himself will lodge the complaint. Merely because the deceased

married the grand-daughter of the accused and there was quarrel

with regard to the relationship between husband and wife, there is

no material to prove that the accused is guilty of the offence

punishable under Section 302 of IPC. Even though the grand-

daughter of the deceased left the deceased about 5-6 years back to

the incident, there is no material to show whether there was any

previous quarrel between them and the deceased or his family

lodged any complaint against the accused. In view of the love and

affection towards the grand-daughter and to avoid the quarrel with

the deceased, who was under the influence of alcohol, the accused

might have tied the deceased to the coconut tree without any

intention or without any premeditation. The said aspect of the

matter has not been considered by the learned Sessions Judge and

proceeded to convict accused only on the basis of the assumption

and presumption without there being any material, which cannot be

sustained.

16. By careful perusal of the averments made in the

complaint lodged by PW.1 at Ex.P1 and the evidences of PWs.1, 6,

10 and 11 who supported the prosecution case, it clearly falls under

Exception 4 to Section 300 of the Indian Penal Code, which reads as

under:

"300. Murder: xxxxx Exception 1: xxxxxx Exception 2: xxxxxx Exception 3: xxxxxx Exception 4: Culpable homicide is not murder if it is committed without premeditation 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. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault"

17. On careful perusal of the said provision makes it clear

that culpable homicide is not murder if it is committed without

premeditation 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. It clearly

indicates that offence attracts the provisions of Section 304 of IPC,

for which the punishment is imprisonment for life or imprisonment

of either description for a term which may extend to ten years and

shall also be liable to fine. If the act by which the death is caused is

done with the intention of causing death, or of causing such bodily

injury as is likely to cause death or with imprisonment of either

description for a term which may extend to ten years, or with fine,

or with both, if the act is done with the knowledge that it is likely to

cause death, but without any intention to cause death or to cause

such bodily injury as is likely to cause death.

18. To invoke the provisions of Exception 4 to Section 300

of IPC, four requirements must be satisfied:

     (i)       There must be a sudden fight;

     (ii)      There should be no premeditation;

     (iii)     The act must be done in a heat of passion; and

     (iv)      The assailant should not have taken any undue
               advantage or acted in a cruel manner.

19. Admittedly, in the present case, with regard to family

dispute between the deceased and grand-daughter of the accused,

the deceased used to frequently quarrel with the accused and in

order to avoid quarrel with the deceased, who was said to be under

the influence of alcohol and due to the love and affection on his

grand-daughter and also to avoid any untoward incident in the

village, the accused might have tied the deceased to the coconut

tree and it was only in the heat of passion, without premeditation

and he has not taken any undue advantage or acted in a cruel or

unusual manner in causing the death of the deceased. Thereby, the

act of the accused is punishable under the provisions of Section 304

Part II of IPC and not under the provisions of Section 302 of IPC as

has been held by the learned Sessions Judge.

20. It is well settled that one of the fundamental principles

of criminal jurisprudence is undeniably that the burden of proof

squarely rests on the prosecution and that the general burden

never shifts. There can be no conviction on the basis of surmises

and conjectures or suspicion, howsoever, grave it may be. Strong

suspicion, strong coincidences and grave doubt cannot take the

place of legal proof. The onus of the prosecution cannot be

discharged by referring to very strong suspicion and existence of

highly suspicious factors to inculpate the accused nor falsity of

defence could take the place of proof which the prosecution has to

establish in order to succeed, though a false plea by the defence at

best, be considered as an additional circumstances, if other

circumstances unfailingly point to the guilt.

21. Admittedly, in the present case, as already stated

supra, there are no eye-witnesses to the incident and motive to

cause the death of the deceased is not established and no recovery

is made at the instance of the accused. But the unfortunate incident

occurred was due to the fact that Pavitra, grand-daughter of the

accused left the deceased and went to Bengaluru started to work in

Garment Factory. With regard to the same, there was frequent

quarrel between the accused and deceased. Absolutely there is no

material to prove that the accused intentionally caused the death of

the deceased. This is a case, where the real facts indicate that

probably every grand-father in order to protect his grand-daughter

and to teach the accused a lesson, might have tied him to the

coconut tree. It cannot be assumed that with an intention to kill,

the accused has tied the deceased to the coconut tree and in the

absence of any external injuries on the dead body of the deceased,

though PWs.6 and 11 stated that the accused has assaulted the

deceased, the Doctor-PW.15 has not identified any injuries

sustained by the deceased and the death of the deceased as per

postmortem report-Ex.P11 was only due to "asphyxia as a result of

aspiration, secondary to chest compression".

22. It is also not in dispute that the unfortunate incident

occurred on 16.05.2012 and the accused was arrested by the

jurisdictional police only on 18.05.2012. According to the evidence

of PW.6 and admission of PW.11 in his cross-examination, after

tying the deceased to the coconut tree, the accused himself went to

the police station to lodge the complaint but unfortunately, the

police not registered the complaint alleged to have been lodged by

the accused. Unfortunately, the accused has not stated anything in

the statement made by him under Section 313 of Cr.P.C., before

the learned Sessions Judge, may be at the instance of the counsel

for the accused. It is our experience in almost all criminal cases

that the answer in Section 313 of Cr.P.C., statement by the accused

will be either total denial as false or not known. This practice will

have to be changed by the young members of the Bar and it is

high time that at the instance of the counsels, if the accused denies

all the incriminating materials, without taking any probable defence,

the same would attract punishment. In the present case, the

accused stated in Section 313 of Cr.P.C., statement that to avoid

the quarrel, he tied the deceased to the coconut tree. This aspect

has not been considered by the learned Sessions Judge and

proceeded to convict the accused for imprisonment of life for the

offence punishable under Section 302 of IPC. In fact, the entire

material does not attract the provisions of Section 302 of IPC.

23. It is also not in dispute that during the pendency of the

trial, the accused has suffered the judicial custody of more than

seven months and taking into consideration the age of the accused

is 84 years as seen from the order passed on 03.12.2021 and his

wife is blind and he is also suffering from eye-sight problems and

he could not appoint/engage advocate to conduct his case, this

Court appointed amicus-curiae. We are of the considered opinion

that taking into consideration the punishment under the provisions

of Section 304 Part II of IPC, we are of the considered opinion that

in the interest of justice, sentence already undergone by the

accused for a period of eight years has to be modified as

punishment imposing a fine of Rs.5,000/- to meet the ends of

justice.

24. For the reasons stated above, the point raised for

consideration in the present Criminal Appeal has to be answered

partly in the negative, holding that the learned Sessions Judge is

not justified in convicting the accused and sentencing him to

undergo imprisonment for life with fine of Rs.25,000/- for the

offence punishable under Section 302 of IPC. The same warrants

interference by this Court in exercise of powers under the

provisions of 374(2) of Cr.P.C. and to modify the impugned

judgment of conviction and order of sentence, under the provisions

of Section 304 Part II of IPC. Thereby, imprisonment of eight years,

which is already undergone and by imposing fine of Rs.5,000/-.

25. For the reasons stated above, we pass the following:

ORDER

(i) The Criminal Appeal is allowed in part.

(ii) The impugned judgment of conviction and order of sentence passed by the trial Court sentencing the appellant-accused to undergo imprisonment for life and to pay fine of Rs.25,000/- for the offence punishable under Section 302 of the Indian Penal Code is hereby set aside.

(iii) The accused is convicted for the offence punishable under Section 304 Part II of the Indian Penal Code. He is sentenced to undergo imprisonment for a period of eight years with fine of Rs.5,000/- (Rupees Five Thousand only).

               In    default   to    pay    fine,    he   shall   undergo
               imprisonment for one month.




      (iv)     As the accused is entitled for set-off under

Section 428 of Cr.P.C., the bail bond executed by the accused stands cancelled after payment of fine amount of Rs.5,000/-.

(v) If the accused has already paid the fine amount of Rs.25,000/-, after deducting Rs.5,000/-, the excess amount shall be refunded to the accused.

26. The assistance rendered by the learned counsel

Sri.Devendra.E.H. as amicus-curiae is appreciated and High Court

Legal Services Committee is directed to pay a sum of Rs.10,000/-

to him as honorarium.

Sd/-

JUDGE

Sd/-

JUDGE

SMJ