Patreppa S/O Sangappa Uppin vs The State Of Karnataka
2023 Latest Caselaw 10688 Kant

Karnataka High Court

Patreppa S/O Sangappa Uppin vs The State Of Karnataka on 15 December, 2023

Author: H.P.Sandesh

Bench: H.P.Sandesh

                                1




  IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
        DATED THIS THE 15TH DAY OF DECEMBER, 2023
                          PRESENT
           THE HON'BLE MR JUSTICE H.P.SANDESH
                                AND
                                                         ®
   THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
             CRIMINAL APPEAL NO.100582 OF 2022

BETWEEN:
PATREPPA S/O. SANGAPPA UPPIN
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: KHYAD VILLAGE, TALUK: BADAMI,
DIST: BAGALKOTE-587 201.
                                                 ...APPELLANT
(BY SRI. K.L.PATIL, ADVOCATE)


AND:
THE STATE OF KARNATAKA
THROUGH BADAMI POLICE STATION,
DIST: BAGALKOTE-587201,
NOW REP. BY S.P.P., HIGH COURT
OF KARNATAKA, DHARWAD BENCH.
                                             ...RESPONDENT

(BY SRI. M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO CALL FOR RECORDS IN S.C. NO.105/2016
ON THE FILE OF II ADDITIONAL DISTIRCT AND SESSIONS JUDGE,
BAGALKOTE, ALLOW THIS APPEAL BY SETTING ASIDE THE
JUDGMENT OF CONVICTION DATED 09.11.2022 AND ORDER OF
SENTENCE DATED 10.11.2022 IN SESSIONS CASE NO.105/2016
ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE,
BAGALKOTE AND THEREBY ACQUIT THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE U/S 302 OF IPC.
                                      2




     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 06.12.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, H.P.SANDESH, J., DELIVERED THE
FOLLOWING:


                             JUDGMENT

This appeal is filed challenging the judgment of

conviction and sentence passed in S.C.No.105/2016 for the

offence punishable under Section 302 of IPC for life

imprisonment and fine of Rs.25,000/-, in default, the

appellant/accused shall undergo simple imprisonment for six

months.

2. The factual matrix of the case of the prosecution is

that accused/appellant is none other than the son of the victim

- Sangappa Baseteppa Uppin. On 05.06.2016 at 8.30 a.m.

the appellant took up the quarrel with his father asking him to

give his share in the family properties and the victim replied

that he is not earning hence, he is not going to give any share

in the property and asked him to leave the house along with

his wife and children and earn on his own. With the words of

the victim, the appellant became angry and with an intention

to take away the life of his father, he took an axe which was in

the house and assaulted with the same on the neck of the

victim i.e., his father, as a result, the victim fell down and died

at the spot. The Trial Court in order to bring home the

appellant relied upon the prosecution witnesses of PW1 to

PW13 and also relied upon the documentary evidence which

were marked as Ex.P1 to P35 and material objects at MO1 to

MO4. The Trial Court also recorded the statement of the

accused under Section 313 of Cr.P.C, thereafter, the accused

not led any defence evidence. The Trial Court considering

both oral and documentary evidence comes to the conclusion

that death is homicidal and charges levelled against the

appellant is proved mainly relying upon the evidence of PW1

who is an eye-witness and also the brother of the accused and

sentenced for life imprisonment with a fine of Rs.25,000/- with

default clause.

3. Being aggrieved by the judgment of conviction and

sentence, the present appeal is filed. The main contention of

the counsel for the appellant that the learned Sessions Judge

has committed an error in relying upon the evidence of PW1

wherein he admits in the cross-examination that at the time of

the incident he was not in the house and he had gone to bring

his sister. The counsel also would submit that the Trial Court

conclusion is erroneous since it has only relied upon the sole

evidence of PW1. The Investigating Officer has failed to

identify the real murderer when there was an allegation on the

uncle of the appellant by name Patreppa whose name was

alleged as the real murderer. The learned Judge while passing

the judgment of conviction and order of sentence, not

appreciated the legal nuances involved in their proper

perspective. Appellant is not response for the death of the

victim.

4. The counsel also would vehemently contend that

the incident was taken place on 05.06.2016 but the appellant

was arrested on 07.06.2016. The counsel also would submit

that axe was there in the corner of the house. PW1 also has

given go by to the prosecution when he was recalled and

further cross-examined. The counsel also would vehemently

contend that the Trial Court fails to take note of the

circumstances under which the alleged incident was taken

place. The counsel further submits that having perused the

material available on record utmost it attract Section 304 Part-

II of IPC, not the ingredients of the offence under Section 302

of IPC.

5. The counsel for the appellant in support of his

arguments relied upon the judgment of the Apex Court dated

06.09.2023 and relying upon this judgment would vehemently

contend that the Apex Court while considering the material on

record in a similar set of facts opined that there was no

premeditation to cause death and there was no any intention

to adjudge that with an intention to commit the murder, he

inflicted the injury. The offence can be brought within the

ambit of Section 304 Part-II of IPC.

6. The counsel also would vehemently contend that

the factual scenario would suggest that heated exchange of

words was taken place between the father and the appellant

and he enraged by wordings of the father and inflicted injury.

The Trial Court fails to take note of the said fact into

consideration. The counsel would vehemently contend that

the judgment of the Apex Court passed in Crl.A.No.2006/2023

is aptly applicable to the facts of the case on hand. The

counsel also would vehemently contend that from the date of

arrest, this appellant is in custody hence, the same may be

given set of by bringing the case within the purview of Section

304 Part-II of IPC.

7. Per contra, the counsel appearing for the State

would submit that this Court has to take note of the nature of

the injuries. The nature of injuries are very clear that there

are three chopped wounds on the vital part i.e., on the neck

and it is not the case of single blow as narrated in the

judgment of the Apex Court which has been relied upon by the

counsel for the appellant. Hence, it does not attract Section

304 Part-II of IPC as contended by the appellant counsel. The

word used 'leave house' is not a provocative word. When the

appellant demanded share in the property, the victim just

asked to leave the house with his wife and children and make

his own earning. The incident is not in the heat of passion or

sudden provocation. The counsel also would submit that the

wife and the brother of the appellant tried to rescue the father

but this appellant overturned their act and inflicted several

injuries aiming on his neck. The counsel would also submit

that when PW1 was cross-examined twice he had supported

the case of the prosecution and only after 2½ years, when he

was recalled, he has given go by evidence but the said

evidence is nothing but won over the earlier evidence of PW1.

The counsel also submits that the incident was taken place

inside the house but he fell down outside the house after

sustaining injury. The Court has to take note of the conduct

of the appellant wherein he had chosen deadly weapon like

axe to inflict the injury. The counsel referring the evidence

would contend that it is a case of instantaneous death. The

facts of the case relied upon by the counsel for the appellant is

different from the case on hand and the same is not applicable

to the present case.

8. Having heard the learned counsel appearing for the

respective parties and also on perusal of the material on

record, the question would arise for our consideration is:

(1) Whether the Trial Court committed an error in

convicting the appellant for the offence

punishable under Section 302 of IPC and

passing the sentence and whether it requires

interference?

(2) What order?

Point No.1:

9. Having heard the learned counsel appearing for the

respective parties and also on perusal of both oral and

documentary evidence available on record it discloses that the

prosecution has relied upon the evidence of PW1 to PW13 and

documentary evidence at Ex.P1 to P35 and also marked MO1

to MO4. It is important to note that the prosecution has

mainly relies upon the evidence of PW1 who is the son of the

deceased and brother of the appellant. The prosecution also

mainly relies upon the evidence of PW12 who is the doctor.

No doubt, the other prosecution witnesses were not supported

the case of the prosecution. But the evidence available before

the Court is only a quality evidence. The Trial Court while

appreciating the evidence on record taken note of the

judgment of the Apex Court reported in (2008) 15 SCC 115

in the case of RAVI vs STATE wherein the Apex Court held

that there is no impediment to base conviction on testimony of

solitary witness. It is also settled law that not the quantity of

evidence and it is the quality of evidence.

10. It is also important to note that the appellant

counsel is not seriously argued the matter with regard to the

conviction is concerned. But his argument is with regard to

that the Trial Court has committed an error in not brining the

case within the purview of Section 304 Part-II of IPC.

11. We have given our anxious consideration to the

material available on record. Having perused the evidence of

PW1 it is clear that on the date of the incident, appellant

demanded for share in the property from the victim and the

victim had replied that still the properties are not transferred

to his name, after transferring the same, he can consider his

demand and he told that he can leave the house and earn his

livelihood on his own. He also deposed that his father's

brothers have not partitioned the property till the date of the

incident. It is also his evidence that the appellant took up the

quarrel with the father stating that he intend to go out from

the house and the father had replied that he can leave the

house and earn for his livelihood. Thereafter, the appellant

immediately took out the axe which was in the corner of the

house and inflicted injury on the neck of the victim. It is also

his evidence that he himself and the wife of the appellant were

tried to rescue the father but the appellant overturned both of

them and again inflicted injury on the neck as a result, his

father died at the spot. The axe is identified as MO1.

12. The prosecution also relies upon the medical

evidence of doctor who has been examined as PW12 and also

the PM report. The doctor in his evidence deposed that on

examination, he found total five injuries which are mentioned

as follows:

1. Chopped wound over posterior aspect of neck measuring

8 x 4 cms with sharp spindle shaped margin, transacting

the spinal cord.

2. Chopped wound over left side of neck extending oblique

below the angle of mandible to lower side of neck

measuring 12 x 6 cms with 8 cms depth.

3. Chopped wound over right side of neck measuring 5 x 3

cms with 6 cms depth.

4. Abrasion over right knee measuring 3 x 2 cms.

5. Abrasion over right supra capular area measuring 1 x 2

cms.

13. In the cross-examination of PW12 he deposed that

injury No.1 can be caused if a tall person assaults on a short

person and further he admits that he cannot say which injury

occurred first on the deceased. Injury No.1 and 2 are vital

injuries and a person can die with those injuries. It is

suggested that injury No.2 and 3 cannot be caused if a person

is standing behind the injured and the said suggestion was

denied.

14. Having perused the oral evidence of PW1 and PW12

which coupled with the nature of injuries sustained by the

victim, it is clear that first three injuries are chopped wound

injuries on the neck measuring 8 x 4 cms with sharp spindle

shaped margin, transacting the spinal cord; 12 x 6 cms with 8

cms depth and 5 x 3 cms with 6 cms depth respectively and

other two injuries are abrasions thus, it is clear case of

homicidal death and the same has been considered by the

Trial Court.

15. Now coming to the aspect of sentencing on the

appellant for the charges levelled against him, the prosecution

mainly relies upon the evidence of PW1 and PW12. The sole

evidence is PW1 who deposed with regard to the incident of

assault. PW1 was very much present at the time of the

incident. No doubt, PW1 was recalled subsequently after 2½

years and answer elicited in the third occasion of cross-

examination is nothing but go by evidence to the prosecution.

But the fact that he was examined in chief and cross-

examined earlier twice that is on 11.06.2019 and 01.10.2019

and during his cross-examination, PW1 withstood the

questions of counsel for the appellant and an attempt was

made subsequently by filing an application under Section 311

of Cr.P.C to controvert the earlier evidence of PW1. No doubt,

the Trial Court also taken note of the fact that in the

subsequent cross-examination, PW1 says that he was not

present in the house on the date of the incident. At that point,

the Court has to take note of the circumstances under which

the said answer was elicited that means after 2½ years he

was cross-examined and material discloses that witness was

won over subsequent to the cross-examination of PW1.

16. The Trial court also while appreciating the evidence

on record taken note of the principles laid down in the

judgment of the Apex Court reported in (2020) 13 SCC 382

in the case of DAYARAM AND ANOTHER vs STATE OF

MADHYA PRADESH and extracted paragraph 10.4 of the

judgment and comes to the conclusion that it is the evidence

of quality and not the quantity. Hence, we do not find any

error committed by the Trial Court in relying upon the

evidence of PW1 and PW12 and discarding the subsequent

cross-examination of PW1. The said admission is only at the

instance of accused after recalling the witness and hence, no

credibility can be given to the said evidence since PW1 earlier

gave evidence on oath on three occasions that is when he was

examined in chief on 13.03.2019 and subsequently he was

cross-examined on 11.06.2019 and 01.10.2019 and he

reiterated the same in the earlier cross-examination with

regard to the case of the prosecution. Having reanalysed both

oral and documentary evidence available on record, we are of

the opinion that the Trial Court has not committed any error in

convicting the appellant for the offence punishable under

Section 302 of IPC and the sole evidence of PW1 is not

discredited in his cross-examination.

17. In the cross-examination of PW1, the defence itself

suggested that one Patreppa Nagappa Uppin is his distant

relative and also the said person committed suicide, for that

PW1 says that when police intend to implicate him, he

committed suicide. It is also suggested to PW1 that accused

was not earning and PW1 categorically says that his father

used to advise him and the appellant to earn on their own. It

is also suggested to the witness that elders of the village also

advised the appellant but he used to give reply in a rude

manner to them. Hence, these materials clearly disclose that

the appellant was not hearing the words of his father or the

elders of the village and the same shows the conduct of the

appellant and these answers are elicited at the instance of the

suggestion made by the defence counsel itself.

18. The answers elicited from the mouth of PW1 goes

against the appellant and when there is a direct evidence

against the appellant, the question of extending benefit in

favour of the appellant does not arise. Having given anxious

consideration to both oral and documentary evidence, we do

not find any error committed by the Trial Court in convicting

the appellant for the offence punishable under Section 302 of

ICP.

19. Now, the main contention of the counsel for the

appellant that the Trial Court committed an error in not

bringing the case within the purview of Section 304 Part- II of

IPC. Having perused the material available on record, no

doubt, the appellant took up the axe which was there in the

corner of the house and inflicted the injuries. Having perused

the principles laid down in the judgment of the Apex Court

relied upon by the counsel for the appellant, the Court has to

take note of the factual scenario of the case whether there is

any heated exchange of words which enraged the appellant to

take such extreme step of murder. It is important to note that

the evidence of PW1 is clear that appellant used to demand

the share in the property. On the date of the incident, when

he demanded the share, his father had replied that till date,

there was no partition among his brothers and after the

partition only he can consider his request and also advised

him to leave the house and make his earning on own. The

said reply is a normal conduct of a father with his son. An

ordinary prudent man would react when his son is not earning.

It is suggested to the PW1 that the appellant was not heeding

to the advice of the father as well as elders of the village and

the same is not disputed by PW1. It is also important to note

that appellant only took up the quarrel with the father on that

day and there was no any heated exchange of words but when

demand was made, father had replied that he can leave the

house and make his own earning since still there was no

partition between him and his brothers. No doubt, the

principles laid down in the judgment of the Apex Court is clear

that when there was no premeditation to cause death and also

taken note of the genesis of the occurrence and single assault

by the accused and duration of entire episode, were factors to

adjudge the intention and hence, comes to the conclusion that

it can be brought clearly within the ambit of Section 304 Part-

II of IPC. But in the facts of the case on hand no doubt, the

appellant took up the axe which was in the corner of the

house and inflicted the injury which resulted in death of the

victim and the evidence of PW12 is clear that there were three

chopped wound on the neck. It is also important to note that

the word exchanged between the father and son will not make

any such circumstances to loose the temper when he had only

advised to leave the house and earn his livelihood on his own.

The evidence of PW1 is clear that the appellant has not

inflicted injury in single blow and he had inflicted other two

injuries with the axe. PW12 also deposed that there were

three chopped wound on the neck hence, it is not a case of

single blow. Even the evidence of PW1 is clear that he himself

and the wife of the appellant were tried to rescue the father

but the appellant overturned their act and again inflicted the

injury. Hence, the Court has to take note of the nature of the

injury which resulted in death of the victim. Apart from that it

is a common sense of an ordinary prudent man that if any

injury is caused with the axe it would result in taking away the

life of a person. We have already pointed out that there were

three chopped wound on the neck and depth of injuries also in

deep that is 8 cms in respect of second injury and in respect

of third injury 6 cms depth and hence, it is clear that it would

likely to cause a death to the person. PM report also

substantiate the nature of injuries sustained by the deceased

and evidence of the PW.12-doctor is also clear regarding

nature of injuries.

20. Here is not a case of any heated exchange of words

between the father and son. When demand was made, the

father replied and advised hence, there was no need of loosing

the temper when the reply was given by the father. It is also

important to note that incident was taken place inside the

house. Thus, the Court has to take note of the conduct of the

appellant wherein he not only inflicted one injury but he had

inflicted three injuries with the deadly weapon like axe on the

vital part of the body i.e., Neck with an intention to take away

the life and not caused any injuries to other parts of the body.

It is also important to note that it is a case of instantaneous

death. The facts of the case which had been relied upon by the

counsel for the appellant relying upon the Judgment and Apex

Court and the facts of the case on hand are different and no

circumstances is made out to bring the case within the

purview of Section 304 Part-II of IPC.

21. No doubt, the Court can take note of the factual

aspect of dispute between the parties. No doubt, in the case

on hand, both the appellant and victim are not strangers and

they are the father and son. It is emerged in the evidence

that the mother passed away earlier and father only had taken

care of this appellant and PW1 but it is unfortunate that the

son who was grown under the care and caution of the victim

father had taken extreme step to commit the murder of his

own father.

22. The Court while invoking Section 304 Part-II of IPC

has to take note of the factual aspects of the case i.e.,

whether circumstances warrants to bring the case within the

purview of Part-II of Section 304 of IPC. The Court has to

take note of the fact that whether the appellant had an intent

and also the knowledge and separate punishments are

provided for an act committed with an intent to cause bodily

injury which is likely to cause death and for an act committed

with a knowledge that his act is likely to cause death without

intent to cause such bodily injury as is likely to cause death, it

would be unsafe to treat intent and knowledge. The Court has

to look into the intent and knowledge whether the same brings

the case within the ingredients of Section 300 or not. It is

also settled law while invoking Part-II of Section 304 that

whether intention and knowledge is missing which likely to

cause death.

23. In the case on hand, the evidence emerges that

even though no premeditation, the Court has to look into the

intention and inflicting of injuries. The appellant had inflicted

three injuries on the vital part of the neck and not a single

blow and even an attempt was made to pacify him, he did not

heed the advise of PW1 as well as the wife of the appellant

and overturned their attempt to rescue the victim and again

inflicted the injury when there was no heated exchange of

words to take the extreme step and getting infuriated in that

spur of movement and except the advise made him to leave

the house and earn on his own and the said circumstances not

warrants to take such step to eliminate the father. Even the

alleged incident was taken place inside the house when the

family persons were there and it is also an instantaneous

death and there was no need to loose the temper and inflict

the injury when the victim asked the appellant to leave the

house and earn on his own till partition takes place between

the victim and his brothers. It is not the case of the appellant

that already there was a partition and the said fact of no

partition in the family of the father and his brothers also not

elicited from the mouth of the witnesses and invariably when

there was no any partition among the father and his brothers,

the question of giving any share does not arise. Having given

anxious consideration to the material on record, we do not

find any material to bring the offence within the purview of

Section 304 Part-II of IPC as contended by the appellant's

counsel and the judgment relied upon by the counsel not

comes to the aid of the appellant and hence, the Trial Court

has not committed any error in bringing the case within the

purview of Section 302 of IPC. Hence, we answer the point as

negative.

Point No.2:

24. In view of the discussions made above, this Court

passes the following:

ORDER

The appeal is dismissed.

The judgment and sentence imposed by the Trial Court is

confirmed.

The Registry is directed to send the Trial Court records

along with a copy of this judgment to the Trial Court forthwith.

Sd/-

JUDGE

Sd/-

JUDGE SN