Sri. Subramani vs State Of Karnataka
2022 Latest Caselaw 5143 Kant

                        1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 22ND DAY OF MARCH, 2022

                     PRESENT

       THE HON'BLE MR. JUSTICE B. VEERAPPA

                       AND

        THE HON'BLE MR.JUSTICE. S.RACHAIAH

        CRIMINAL APPEAL NO.482 OF 2019

BETWEEN:

1.     SRI. SUBRAMANI
       S/O LATE NANJUNDAPPA,
       AGED ABOUT 32 YEARS,
       R/AT 2ND MAIN ROAD,
       6TH CROSS, GANDHINAGAR,
       KOLAR - 563 101.

2.     SRI. LOKESH
       S/O LATE NANJUNDAPPA,
       AGED ABOUT 30 YEARS,
       R/AT 2ND MAIN ROAD,
       6TH CROSS, GANDHINAGAR,
       KOLAR - 563 101.
                                   ... APPELLANTS

(BY SRI. BHARATH KUMAR .V, ADVOCATE)

AND:

STATE OF KARNATAKA BY
GULPET POLICE
KOLAR - 563 101.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
B.R. AMBEDKAR VEEDHI,
                         2


BANGALORE - 560 001.
                                        ... RESPONDENT

(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)


     THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374 (2) OF THE CODE OF CRIMINAL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT
OF CONVICTION AND ORDER OF SENTENCE DATED
01.03.2019 PASSED BY THE II ADDITIONAL SESSIONS
JUDGE, KOLAR IN S.C. NO.76/2013 - CONVICTING THE
APPELLANTS/ACCUSED NOS.1 AND 2 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 READ WITH
SECTION 34 OF IPC.

     THIS APPEAL COMING ON FOR HEARING, THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:

                     JUDGMENT

The present criminal appeal is filed by the

appellants/accused Nos.1 and 2 against the

impugned judgment of conviction and order of

sentence dated 01.03.2019 passed in

S.C.No.76/2013 on the file of the II Additional

District and Sessions Judge, Kolar, sentencing to

undergo imprisonment for life for the offences

punishable under Section 302 read with Section 34

of the Indian Penal Code and to pay fine of

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

imprisonment for a period of one year.

2. It is the case of the prosecution that the

complainant-mother of the deceased Hanumappa

filed the complaint before Gulpet Police Station,

Kolar stating that Narayanappa was the husband of

complainant-Nanjamma and he had three brothers

namely, Dodda Venkataravanappa, Chikka

Venkataravanappa and Nanjundappa. About 15

years back, Narayanappa and his brothers got

separated from joint family and started residing

separately and they are cultivating in their

respective lands allotted to their shares. After the

death of Narayanappa, his brother Dodda

Venkataravanappa, Chikka Venkataravanappa and

Nanjundappa and their children i.e., accused No.1 -

Subramani and accused No.2 - Lokesha filed a suit

before the Civil Court seeking partition on the

ground that the land allotted to them in the

partition was not proper/inappropriate. It is alleged

in the complaint that on 09.02.2013 at about 8.30

p.m., deceased Hanumappa, who is none other

than son of the complainant was in his house,

received a call to his mobile phone and thereby

proceeded towards shop of Sampangi Ramaiah

Shetty-PW.9. Complainant-mother of the deceased

also went following her son and she heard shouting

of people near the shop of Sampangi Ramaiah

Shetty-PW.9. At that time, accused No.1-

Subramani and accused No.2-Lokesha threw chilly

powder in the eyes of Hanumappa, Hanumappa

escaped and went inside the shop of Sampangi

Ramaiah Shetty. Accused persons chased him and

went inside the shop. It is alleged that accused

No.2-Lokesha assaulted the deceased Hanumappa

with knife on his abdomen, chest, neck and other

parts of the body. Thereafter, both accused persons

fled away. When Hanumappa was being taken to

R.L. Jalappa Hospital, on the way he died. Based

on the aforesaid complaint, the jurisdictional police

registered a case against the accused persons in

Crime No.9/2013 for the offence punishable under

Section 302 read with Section 34 of the Indian

Penal Code.

3. After investigation, the Investigating

Officer filed charge-sheet against the accused

persons holding that accused persons committed

the offence punishable under Section 302 read with

Section 34 of the Indian Penal Code. After

committal of the matter, the learned Sessions

Judge secured the presence of the accused, framed

the charge, read over it to the accused persons in

the language known to them, who denied the

charge and pleaded not guilty and claimed to be

tried.

4. In order to prove its case, the

prosecution examined in all 18 witnesses as PWs.1

to 18 and marked the documents Exs.P.1 to P.27

and Material Objects M.Os.1 to 12. After completion

of the evidence of prosecution witnesses, the

statement of the accused persons as contemplated

under Section 313 of the Code of Criminal

Procedure was recorded. The accused persons

denied all the incriminating circumstances adduced

against them.

5. Based on the aforesaid pleadings, the

learned Sessions Judge has framed the following

point for consideration:

" Whether the prosecution proves beyond all reasonable doubt that on 9.2.2013 at about 8.30 p.m., near the shop of CW.2 Sampangi Ramaiah Shetty at Gandhinagar, Kolar accused persons with their common intention, picked up quarrel with Hanumappa due to old vengeance and land dispute, threw chilly powder in the eyes of Hanumappa, stabbed on the chest, stomach and back of Hanumappa with knife and did commit murder by intentionally or knowingly causing the death of deceased Hanumappa

and thereby committed an offence punishable U/S 302 r/w Sec.34 of IPC?"

6. After considering both oral and

documentary evidence on record, the learned

Sessions Judge, answered the point in the

affirmative holding that the prosecution has proved

beyond reasonable doubt that on 09.02.2013 at

about 8.30 p.m., near the shop of PW.9 at Gulpet,

Kolar, the accused persons with the common

intention picked up quarrel with deceased

Hanumappa and threw chilly powder on the eyes of

the deceased and stabbed with knife on his

abdomen, chest, neck and other parts of the body

and committed murder intentionally and thereby,

the accused persons committed an offence

punishable under Section 302 read with Section 34

of the Indian Penal Code. Accordingly, by the

impugned judgment of conviction and order of

sentence, the learned Sessions Judge, sentenced

accused Nos.1 and 2 to undergo imprisonment for

life and to pay fine of Rs.25,000/- each, in default,

to undergo simple imprisonment for a period of one

year. Hence, the present Criminal Appeal came to

be filed.

7. We have heard the learned counsel for

the parties.

8. Sri. Bharath Kumar, learned counsel for

accused Nos.1 and 2 contended with vehemence

that the impugned judgment of conviction and

order of sentence passed by the learned Sessions

Judge sentencing the accused persons to undergo

imprisonment for life for the offence punishable

under Section 302 read with Section 34 of the

Indian Penal Code and to pay fine of Rs.25,000/- is

erroneous and is contrary to the material on record,

cannot be sustained and is liable to be set-aside.

Learned counsel contended that the learned

Sessions Judge failed to record the finding

regarding the question of reality, credibility,

correctness and legality of the witnesses and failed

to consider other attending circumstances, which

are normally expected to do so. He further

contended that an unfortunate incident took place

between cousin brothers near the shop of PW.9-

Sampangi Ramaiah Shetty in respect of land

dispute. The said aspect has not been considered

by the learned Sessions Judge. He further

contended that dispute arose between the cousin

brothers only in respect of allotment of lesser share

and due to sudden provocation, accused Nos.1 and

2 caused the death of Hanumappa. This is not a

case to impose extreme punishment for the offence

punishable under Section 302 read with Section 34

of the Indian Penal Code to the accused persons,

who are none other than family members of

deceased/cousin brothers of deceased.

9. He further contended that the evidence

of the prosecution and documents relied upon

clearly depicts that it is a case which falls under the

provisions of Section 304 Part I and not under

Section 302 of the Indian Penal Code. He further

contended that the trial Court committed an error in

relying upon the evidence of PW.6-K.V. Anjanappa,

who is said to be the eye witness and panch witness

to Ex.P4 and he has not supported the case of the

prosecution. He further contended that the evidence

of PW.7 is no way assistance to the prosecution

case since he turned hostile and he is said to be the

panch witness to Ex.P.4 i.e., recovery of M.Os.4 to

6. He further contended that during the cross-

examination of PWs.6 and 7, nothing has been

elicited by the prosecution and it is further

contended that PW.8-complainant-mother of the

deceased is said to be eye witness to the incident,

she also denied lodging the complaint and she has

not even stated the motive. Therefore, prosecution

has made an attempt to create false story against

the appellants and filed false case against innocent

persons. Merely because of civil dispute with

regard to partition between Narayanappa-husband

of PW.8 and his brothers, the trial Court convicted

the accused persons and the said aspect was not

considered. Therefore, the trial Court has

committed a grave error in convicting the accused

persons and therefore, sought to allow the Criminal

Appeal.

10. Per contra, learned Additional Special

Public Prosecutor for respondent-State justified the

impugned judgment of conviction and order of

sentence passed by the trial Court and contended

that PW.9, who is the eye witness to the incident

has stated that there was quarrel between accused

persons and deceased-Hanumappa in front of his

shop and accused No.1 threw chilly powder in the

eyes of the Hanumappa and accused No.2 stabbed

the Hanumappa with M.O.1-knief on his chest,

abdomen and stomach. PW.8, who is mother of the

deceased and complainant specifically stated in the

complaint that there was a dispute between

deceased-Hanumappa and accused persons in

respect of land property and thereby, the accused

persons had vengeance/enmity against the

deceased. Thereby, unfortunate incident occurred.

Therefore, he sought to dismiss the appeal.

11. In view of the rival contentions urged by

the learned counsel for the parties, the only point

that arises for our consideration in the present

appeal is:

"Whether the appellants/accused persons have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and to lesser the punishment under the provisions of Section 304 Part I and II of the Indian Penal Code, in the facts and circumstances of the present case?

12. 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.

13. This Court being the Appellate Court, in

order to re-appreciate the entire material on record,

it is relevant to consider the evidence of

prosecution witnesses and the documents relied

upon.

(a) PW.1-Ramesh, eye witness deposed that

he never seen the accused persons and

deceased Hanumappa and he does not

know anything about the case and he

has not personally witness the accused

persons assaulting deceased with knife

and committed murder near the shop of

PW.9 - Sampangi Ramaiah Shetty.

During his cross-examination, he denied

the statement for having given as per

Ex.P1 before the Police, he turned

hostile.

(b) P.W.2-     K.   Ramanjalu,         eye      witness

   deposed      that   he       know      the   accused

persons and deceased Hanumappa. On

09.02.2013 at 8.00 p.m. when he was

standing in the upstairs of his house,

Hanumappa went inside the shop of

Sampangi Ramaiah Sheety-PW.9 and

when he came down, he saw blood

stains on the body of Hanumappa and

he was shifted to hospital in an

ambulance and then, he came to know

that somebody stabbed Hanumappa with

knife. He further stated that he does

not know whether there was vengeance

between the accused persons and

deceased Hanumappa, turned hostile.

He denied the case of the prosecution

and also denied the statement given

before the police as per Ex.P.2.

(c) PW.3 - Nagaraja, inquest mahazar

witness to Ex.P3 deposed that about 3

to 4 months back at 10.00 a.m. when he

went to Jalappa Hospital, Kolar, the

police took his signature on inquest

mahazar and he does not know the

contents of the documents. The police

have not conducted the inquest in his

presence, thereby he turned hostile.

(d) PW.4 - Narayanaswamy, inquest

mahazar witness to Ex.P.3 deposed that

on 10.02.2013 at 10 a.m., in his

presence, the police drawn inquest

mahazar on the dead body of

Hanumappa and thereby, supported the

case of the prosecution.

(e) PW.5 - Bharathi deposed that deceased

Hanumappa is none other than her

husband, PW.8 -Nanjamma is her

mother-in-law, accused persons are sons

of younger brother of her father-in-law;

about 10 years back her father-in-law

Narayanappa was dead; after the death

of her father-in-law, there was land

dispute between her husband and

cousins of her husband and same was

decided in the Civil Court, her husband

told her that again accused persons are

making galata for the purpose of

property. She further deposed that on

09.02.2013 at 9.00 p.m., after finishing

dinner, when they were watching TV, at

that time, her husband deceased

Hanumappa received call to his mobile

phone and he proceeded towards the

shop of Sampangi Ramaiah Shetty-PW.9

in his motor cycle. After sometime, her

mother-in-law/complainant also gone

near the shop of Adeppa. She further

deposed that when she came outside the

house, she saw crowd near the shop of

Sampangi Ramaiah Shetty-PW.9. On

enquiry, she came to know that one

person was stabbed by knife and then,

she saw her husband was murdered and

she asked her mother-in-law that who

murdered her husband, CW.1 told that

Sampangi Ramaiah Shetty-PW.9 know

about the same. She further deposed

that she had been to R.L. Jalappa

Hospital, Kolar along with dead body of

her husband in an ambulance and from

there to police station and police

enquired Sampangi Ramaiah Shetty-

PW.9 and he gave statement that one of

the accused threw chilly powder on her

husband and another stabbed her

husband with knife and police recorded

the statement, thereby she supported

the case of the prosecution.

(f) PW.6 - Anjinappa, eye witness and

seizure mahazar witness to Ex.P.4 has

deposed that on 09.02.2013 between

8-30 to 9-00 p.m. after dinner, he came

near the shop of Sampangi Ramaiah

Shetty-PW.9 and people gathered there

and saw Hanumappa lying with blood

stains. He himself along with

Shankarappa and Lakshminarayana took

Hanumappa in an Ambulance to

Hospital. He further stated that he has

not personally witnessed accused No.1

and accused No.2 assaulting the

deceased with knife and murdered him.

He never gave any statement before the

police saying that he had seen the

quarrel and thereby, turned hostile.

(g) PW.7 - Narayanaswamy, seizure

mahazar witness has deposed that about

6 to 7 months back on the say of police,

he put his signature on Ex.P.4 mahazar

and police have not seized any articles in

his presence and he does not know the

contents of Ex.P.4 and turned hostile.

(h) PW.8 - Nanjamma, who is complainant

as per Ex.P.6 supported the case of the

prosecution.

(i) PW.9 - Sampangi Ramaiah Shetty, eye

witness deposed that his shop is located

in 2nd Cross of Gandhinagar, Kolar. He

know deceased Hanumappa and accused

persons. On 09.02.2013 at about

5.00 p.m., deceased Hanumappa came

to his shop, at that time, Teacher

Venkataramanappa was sitting near his

shop, deceased Hanumappa told some

words to said Venkataramappa and then

he left the place. He further deposed

that on the same day, at about

8.00 p.m. deceased Hanumappa and

accused persons quarreled near his

shop, accused No.1 - Subramani threw

chilly powder in the eyes of deceased,

Hanumappa rushed inside his shop, at

that time, accused persons chased

Hanumappa and went inside his shop,

again accused No.1 - Subramani threw

chilly powder on deceased and accused

No.2 - Lokesha stabbed with M.O.1 -

knife on the chest, upper stomach, right

side chest of Hanumappa. He fell down.

He further deposed that they called

ambulance and shifted the deceased to

R.L. Jalappa Hospital, Kolar, then police

recorded his statement and prepared

Ex.P.7 Mahazar near his shop and

through Ex.P.7 mahazar, seized blood

stained clothes, blood stained mud in his

presence as per M.O. 7 and 8. Thereby,

supported the case of the prosecution.

(j) PW.10 - Munivenkataramanappa, eye

witness deposed that he knows accused

persons, deceased Hanumappa and

PW.8 Nanjamma and accused are

cousins of deceased Hanumappa. On

09.02.2013 at 5.00 p.m. when he was

sitting near the shop of Sampangi

Ramaiah Shetty-PW.9 at that time,

deceased Hanumappa told him that

accused persons are making black magic

on him, for that he advised him that

there is nothing like black magic and

then he went away. He further stated

that he does not know what happened

then; he has not personally witnessed

accused persons stabbing deceased

Hanumappa with knife and murdered

him. He never gave any statement

before the police alleging that accused

persons assaulted deceased Hanumappa

and thereby turned hostile.

(k) PW.11 - Srinivas, eye witness deposed

that he know PW.8 - Nanjamma, her

son deceased Hanumappa and accused

persons. But he does not know anything

about the case. He has not personally

seen accused persons stabbing the

Hanumappa with knife and committed

his murder and denied for having given

statement before the police as per

Ex.P.9 and turned hostile.

(l) PW.12 - Hemavathi, eye witness has

stated that she knows PW.8-Nanjamma,

her son deceased Hanumappa and

accused persons. PW.9 is her husband.

On 09.02.2013 at 8.30 p.m., when she

was cooking in her house, she heard

sound near the shop, she came near

shop and saw accused persons are

coming out from their shop but she has

not personally seen the accused persons

stabbing deceased Hanumappa with

knife and committed his murder and she

denied for having given statement

before the police as per Ex.P.10 and

thereby turned hostile.

(m) PW.13 - Venkatesha, retired soldier

deposed that on 10.02.2013 at the

mortuary of R.L. Jalappa Hospital, Kolar

he put his signature on Ex.P.3 - inquest

mahazar; about six to seven months

back police prepared Ex.P.7 mahazar

near the shop of P.W.9 and through

Ex.P.7 seized MO.7 and MO.8 and

through Ex.P.4 mahazar, police seized

MO.3 to 6 blood stained clothes of

deceased in his presence; then police

drawn Ex.P.11 and thereby supported

the case of the prosecution.

(n) PW.14 - Dr. A Bangarappa, Medical

Officer deposed that on 10.02.2013

between 10.35 a.m. and 12.30 p.m., he

conducted postmortem of deceased

Hanumappa and found grievous injuries

on the dead body and opined that the

death is due to stab injury sustained

over the chest and issued EX.P.15

Postmortem report and Ex.P.16 report

and opined that injuries mentioned in

Ex.P.15 may be caused when assaulted

with MO.1 and 2 knife, supported the

case of the prosecution.

(o) PW.15 - Mustaq Ahmed, Junior Engineer,

PWD, Kolar deposed that on the request

made by police, he visited the spot and

prepared the sketch as per Ex.P.27,

supported the case of the prosecution.

(p) PW.16 - A. Krishnamurthy, ASI, deposed

that on 09.02.2013 at 11.30 p.m., when

he was Station House Officer of Police

Station, PW.8 - Nanjamma appeared

and filed written complaint - Ex.P.6. On

the basis of the same, he registered Cr.

No.9/2013 under Section 302 read with

Section 34 of the Indian Penal Code and

sent Ex.P.14 - FIR to the Court and to

his official superiors and then handed

over for further investigation to CW.27 -

Circle Inspector, supported the case of

the prosecution.

(q) PW.17 - R. Jagadish, CPI deposed that

on 09.02.2013 he took further

investigation from PW.16 and verified

the spot and deputed his staff to

apprehend the accused; then he

instructed his staff CW.21 to take

photographs of dead body of

Hanumappa and further deposed that he

conducted inquest mahazar as per

Ex.P.3 in the presence of panchas and

prepared Ex.P.7 - mahazar and seized

MO.8 sample blood from the spot and

also seized MO.7 blood stained

newspaper. Further deposed that CW.21

police constable produced MO.3 to 6

blood stained clothes of deceased and he

seized the same through Ex.P.4 mahazar

on 10.02.2013, he recorded the

statements of eye witnesses and after

investigation he filed charge-sheet

against the accused persons. Thereby,

supported the case of the prosecution.

(r) PW.18 - Dr. Gundamma Patil, FSL Officer

examined the articles, which are

produced in sealed cover and opined

that there is no poison in the body of the

deceased.

Based on the oral and documentary evidence,

the learned Sessions Judge proceeded to convict

the accused under Section 302 read with Section 34

of the Indian Penal Code.

14. The gist of the Ex.P.6-Complaint by

PW.8, who is none other than mother of the

deceased is that her husband-Narayanappa had

three brothers by name Dodda Venkataravanappa,

Chikka Venkataravanappa and Nanjundappa. About

15 years back, Narayanappa and his brothers got

partitioned the joint family properties and residing

separately with their respective shares. After the

death of her husband - Narayanappa, his brothers

i.e., brother-in-law of PW.8 Dodda

Venkataravanappa, Chikka Venkataravanappa and

Nanjundappa and their children i.e., accused No.1 -

Subramani and accused No.2 - Lokesh filed a suit

before the Civil Court on the ground that the land

allotted to them in the partition was

disproportionate. That on 09.02.2013 at about

8.30 p.m., deceased Hanumappa, who is son of the

complainant was in his house, received a call and

proceeded towards shop of one Sampangi Ramaiah

Shetty. At that time, complainant heard shouting of

people near the shop of Sampangi Ramaiah Shetty.

At that time, accused No.1-Subramani and accused

No.2-Lokesha threw chilly powder on the eyes of

Hanumappa, Hanumappa escaped and went inside

the shop of Sampangi Ramaiah Shetty. Accused

persons chased the deceased and went inside the

shop. It is stated that accused No.2-Lokesha

assaulted the Hanumappa with knife on his

abdomen, chest, neck and other parts of the body.

Based on the same, the complaint was lodged.

Accordingly, the jurisdictional police filed a charge-

sheet against the accused persons. The fact

remains that deceased Hanumappa, accused Nos.1

and 2 are cousin brothers. The dispute is only in

respect of landed property. PW.1 Ramesha,

PW.2-K.Ramanjalu, PW.3 Nagaraja, PW.6

Anjinappa, PW.7 Narayanaswamy, PW.10

Munivenkataramanappa, PW.11 Srinivas and PW.12

Hemavathi were turned hostile and not supported

the case of the prosecution. PW.5 wife of the

deceased deposed that there was quarrel between

her husband and cousin brothers of her husband

with regard to the land dispute. PW.8 mother of

the deceased also deposed that there was dispute

in respect of landed property and there was scruple.

PW.9 Sampangi Ramaiah Sheety, who is the eye

witness to the incident also deposed that there was

a quarrel between the accused and deceased near

his shop with regard to the landed property and in

the scruple, due to sudden provocation, accused

No.1 threw chilly powder on the deceased

Hanumappa and accused No.2 stabbed the

deceased on his abdomen, chest and other part of

the body. Thereby, the Hanumanthappa died.

15. The entire case of the prosecution is only

about the motive behind the murder, that is only

regarding allotment of share. The quarrel between

the parties is spoken by the PW.5-wife, PW.8-

mother of the deceased and PW.9-eye witness. The

said aspect has not been considered by the learned

Sessions Judge. With regard to the allotment of

shares, there was scruple between the parties,

thereby the deceased uttered filthy language in

front of PW.10-Munivenkataramanappa, who

deposed that he does not know about the incident

that is who stabbed the Hanumappa. PW.12 also

deposed that she does not know who stabbed the

deceased. The evidence of prosecution witness in

particular, PW.5-wife of the deceased, PW.8-mother

of the deceased and PW.9-shop owner specifically

stated on oath that there was a scruple between

the parties in respect of allotment of shares of the

property held by Narayanappa, father of the

deceased Hanumappa and thereby, incident took

place between the parties only in respect of

property and nothing else. Due to quarrel and in

view of provocation made by the deceased

Hanumappa uttering a filthy language towards

accused persons, they lost self control and accused

No.1 threw chilly powder and accused No.2 stabbed

the deceased with knife. Therefore, it is a clear case

falls under Exception I to Section 300 of the Indian

Penal Code and attracts punishment under Part I of

Section 304 and not under Part II of Section 304 of

the Indian Penal Code. Without considering the said

aspect, the learned Sessions Judge proceeded to

convict the accused under Section 302 of the Indian

Penal Code.

16. A careful perusal of the entire evidence

on record clearly depicts that the present case falls

under Exception I of Section 300 of the Indian Penal

Code, which reads as under:

"Section 300.xxx xxx xxx Exception I: When culpable homicide is not murder - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation or causes the death of any other the person by mistake or accident."

A careful perusal of the said provision makes

it clear that Culpable homicide is not murder if the

offender whilst deprived of self-control by 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.

In the present case, accused Nos.1 and 2 suddenly

attacked the deceased and accused No.2 stabbed

with MO.1 - knife is nothing but culpable homicide

not amounting to murder. Therefore, the offence

clearly falls under provision of Section 304 Part I of

the Indian Penal Code and not under Section 302 of

the Indian penal Code as already stated by us.

17. Taking into consideration the mitigating

circumstances, the relationship between the

deceased and the accused are cousin brothers and

dispute is only with regard to the landed property

an opportunity has to be given to the accused

persons to reform themselves since they have

already undergone sentence for a period of more

than nine years. The core notion of the reformative

theory is that, "the sanctions of the criminal law

should be used to effect a transformation in the

offender, with the two-fold aim of protecting society

and of enhancing the offender's well-being". Thus,

the reformative theory aims at socialization of the

offender so that the factors which motivated them

to commit crime are eliminated and gets a chance

of leading a normal life in the society. It is well

known that the reformative theory has been defined

as "an effort to restore a man to society as a better

and wiser man and a good citizen".

18. The statement of Victor Hugo that, 'to

open a school is to close a prison' contains a great

truth. If persons of doubtful character are given

training or education in such a manner as to enable

them to earn their livelihood by honest means then

they would not need to adopt criminal methods for

their subsistence. Turner puts forward the logic of

Carrit who said "reformative theories forget that if

punishment is to be punishment it must be

unpleasant while the cause of reformative education

is only accidentally unpleasant. We cannot put

remorse ready-made into a criminals mind, but we

can stimulate it by giving him a pain akin to that of

remorse, making him feel the indignation of

impartial observers. In rarest of rare case, extreme

punishment of imprisonment for life can be

imposed. Therefore, we are of the considered

opinion that sentence has to be reduced.

19. Considering the relationship between the

deceased Hanumappa and accused persons

sentence has to be reduced. Considering the

statements of the complainant, who is the mother

of deceased and PW.5, who is the wife of deceased

and PW.9, who is an eye witness that quarrel took

place between the parties and when the deceased

uttered filthy language towards accused persons,

the sudden unfortunate incident took place. Taking

into consideration the surrounding circumstances

and that the accused persons are family holders,

who have already incarcerated for more than NINE

years, an opportunity should be given to reform

themselves and for rehabilitation.

20. Our view is fortified by the dictum of the

Hon'ble Supreme Court in the case of Lochan

Shrivas vs. State of Chhattisgarh reported in

2021 SCC Online SC 1249, wherein, at

paragraphs 53, 55 and 56, it is held as under:

"53. This Bench, recently, in the case of Mofil Khan v. The State of Jharkhand, has observed thus:

"8. One of the mitigating circumstances is the probability of the accused being reformed and rehabilitated. The State is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused. Death sentence ought not to be imposed, save in the rarest of the rare cases when the alternative option of a lesser punishment is unquestionably foreclosed (See : Bachan Singh v. State of Punjab (1980) 2 SCC 684). To satisfy that the sentencing aim of reformation is unachievable, rendering life imprisonment

completely futile, the Court will have to highlight clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigour when the Court focuses on the circumstances relating to the criminal, along with other circumstances (See : Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498). In Rajendra Pralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC 460, this Court dealt with the review of a judgment of this Court confirming death sentence and observed as under:

"45. The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability (not possibility or improbability or impossibility) that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence. This is one of the mandates of the "special reasons" requirement of Section 354(3) CrPC and ought not to be taken lightly

since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the court, through evidence, that the probability is that the convict cannot be reformed rehabilitated. This can be achieved by bringing on record, inter alia, material about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Similarly, the convict can produce evidence on these issues as well."

55. In view of the settled legal position, it is our bounden duty to take into consideration the probability of the accused being reformed and rehabilitated. It is also our duty to take into consideration not only the crime but also the criminal, his state of mind and his socio- economic conditions.

56. The appellant is a young person, who was 23 years old at the time of commission of the offence. He comes from a rural background. The State has not placed any evidence to show that

there is no possibility with respect to reformation and the rehabilitation of the accused. The High Court as well as the trial court also has not taken into consideration this aspect of the matter. The appellant has placed on record the affidavits of Leeladhar Shrivas, younger brother of the appellant as well as Ghasanin Shrivas, elder sister of the appellant. A perusal of the affidavits would reveal that the appellant comes from a small village called Pusalda in Raigarh district of Chhattisgarh. His father was earning his livelihood as a barber. The appellant was studious and hardworking. He did really well at school and made consistent efforts to bring the family out of poverty. The conduct of the appellant in the prison has been found to be satisfactory. There are no criminal antecedents. It is the first offence committed by the appellant. No doubt, a heinous one. The appellant is not a hardened criminal. It therefore cannot be said that there is no possibility of the appellant being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative."

21. It is well settled and whilst it is

undoubtedly true that society has a right to lead a

peaceful and clearance life, without pre-roaming

criminals creating rope in the life of ordinary peace-

loving symbol but it is equally strong in the

foundation of reformative theory, which propounds

that a single society cannot be achieved only

through creative attitudes and inductiveness and

that public harmony, brotherhood and mutual

acceptability ought to be fastened. Doubt Thus, first

time offenders (present accused persons) have to

be liberally accorded a chance to repent their fault

and look forward to a bright future and to reform

themselves to lead a happy life through model in

the village not only themselves and to the deceased

Hanumappa's family members PW.8 - mother and

P.W.5 - wife and should not show their anguish and

ensure that there should not be any further abuse

or invoke the law on their own hands and should

not disturb the public peace and harmony.

22. Whist, the Hon'ble Supreme Court has

declared that the principles for sentencing and

proportionality/balancing of aggravating and

mitigating circumstances have to be taken into

consideration while imposing imprisonment for life.

Our view is fortified by the dictum of the Hon'ble

Supreme Court in the case of State of Madhya

Pradesh vs. Suresh reported in (2019) 14 SCC

151, wherein, at paragraphs 13 and 14, it is held

as under:

"13. Therefore, awarding of just and adequate punishment to the wrongdoer in case of proven crime remains a part of duty of the court. The punishment to be awarded in a case has to be commensurate with the gravity of crime as also with the relevant facts and attending circumstances. Of course, the task is of striking a delicate balance between the mitigating and aggravating circumstances. At the same time, the avowed objects of law, of protection of society and responding to the society's call for justice, need to be kept in mind while taking up the question of sentencing in any given case. In the ultimate

analysis, the proportion between the crime and punishment has to be maintained while further balancing the rights of the wrongdoer as also of the victim of the crime and the society at large. No straitjacket formula for sentencing is available but the requirement of taking a holistic view of the matter cannot be forgotten.

14. In the process of sentencing, any one factor, whether of extenuating circumstance or aggravating, cannot, by itself, be decisive of the matter. In the same sequence, we may observe that mere passage of time, by itself, cannot be a clinching factor though, in an appropriate case, it may be of some bearing, along with other relevant factors. Moreover, when certain extenuating or mitigating circumstances are suggested on behalf of the convict, the other factors relating to the nature of crime and its impact on the social order and public interest cannot be lost sight of."

23. During the course of arguments, when

the Court proposes the reformative theory to the

accused, learned counsel, Sri. Bharath Kumar for

accused persons on instructions submits that

proportionate fine may be imposed and the accused

persons will reform themselves and will not indulge

in any criminal activities and will not harm the

deceased family members PW.5, 8 or any other

persons in the village and they will ensure that they

will become model to the entire village. The said

submission is placed on record.

24. Taking into consideration all the facts

and circumstances of the present case, we are of

the considered opinion that the accused have made

out a case to interfere with the impugned order of

sentence for the offence punishable under Section

302 of the Indian Penal Code.

25. For the reasons stated above, the point

raised in the present appeal is answered partly

affirmative holding that the accused persons made

out a case to interfere with the impugned judgment

of conviction and order of sentence and modify the

same.

26. In view of the above, we pass the

following:

ORDER

(i) The Criminal Appeal is allowed in part.

(ii) The impugned judgment of conviction dated 01.03.2019 made in S.C.No.76/2013 on the file of the II Additional Sessions Judge, Kolar is hereby modified.

(iii) Accused Nos.1 and 2 are hereby convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.2,00,000/- each (Total Rs.4,00,000/-), in default, to undergo further imprisonment for a period of 2½ years for the offence punishable under Section 302 of the Indian Penal Code.

(iv) The appellants/accused are entitled to the benefit of set off under Section 428 of the Code of Criminal Procedure.

(v) Exercising powers under Section 357(3) of the Code of Criminal Procedure, out of the fine amount of Rs.4,00,000, Rs.3,00,000/-

is ordered to be paid to PW.5 - wife of deceased and Rs.1,00,000/- is ordered to be paid to PW.8 - mother of the deceased through demand draft within a period of one month from the date of receipt of certified copy of this order.

(vi) The jail authorities after completion of sentence (ten years rigorous imprisonment) imposed by us and after payment of fine through demand draft shall proceed to release the accused persons in accordance with law.

Sd/-

JUDGE

Sd/-

JUDGE

MBM