Pandurang Narayan Harikantra vs The State Of Karnataka
2023 Latest Caselaw 1571 Kant

   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
           DATED THIS THE 24th DAY OF FEBRUARY, 2023
                           PRESENT
       THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
                             AND
             THE HON'BLE MR. JUSTICE C.M. JOSHI
                CRIMINAL APPEAL NO.100188/2020

BETWEEN:
PANDURANG NARAYAN HARIKANTRA,
AGE: 45 YEARS, OCC: FISHING,
R/O: SEABIRD COLONY, HARWADA,
ANKOLA.                                           ...APPELLANT

(BY SRI. NAMADEV S.BADIGER, ADVOCATE)

AND:

THE STATE OF KARNATAKA,
ANKOLA POLICE STATION,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT, DHARWAD                         ...RESPONDENT

(BY SRI. M.H.PATIL, AGA)


     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 OF
CR.P.C. PRAYING TO SET ASIDE THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, UTTARKANNADA, KARWAR, IN S.C.NO.30/2017
DATED 06/06/2019 AND ACQUIT THE APPELLANT FROM THE
CHARGES LEVELED AGAINST HIM, BY ALLOWING THIS APPEAL.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING AND RESERVED ON
21.02.2023, COMING ON FOR PRONOUNCEMENT THIS DAY,
Dr.H.B.PRABHAKARA SASTRY J., DELIVERED THE FOLLOWING:
                                   2              Crl.A. No.100188/2020




                              JUDGMENT

The present appellant, who is accused in Sessions Case

No.30/2017, in the Court of the Principal District and Sessions

Judge, Uttara Kannada, Karwar, (hereinafter for brevity,

referred to as the 'Sessions Judge's Court'), has challenged the

impugned judgment of conviction dated 06.06.2019 and order

on sentence dated 07.06.2019, convicting him for the offences

punishable under Sections 504, 506 and 302 of the Indian Penal

Code, 1860 (hereinafter for brevity, referred to as `the IPC')

and sentencing him accordingly. It is against the said judgment

of conviction and order on sentence, the appellant/accused has

preferred this appeal.

2. The summary of the case of the prosecution in the

Sessions Judge's Court was that on 25.06.2017, at about 9.30

p.m., in his house at Seabird Colony, Harwada, Ankola Taluk,

within the limits of complainant-police station, the accused,

after picking up a quarrel with his elder son Vinod for non-

payment of money to him, abused him in filthy language,

threatened him to his life and also throwing a grinding stone on

the head of his sleeping son Vinod and inflicting multiple injuries

upon him committed his murder and thereby committed the

offences punishable under Section 504, 506 and 302 of IPC.

3. Since the accused pleaded not guilty, in order to

prove the allegations made against the accused, the prosecution

got examined in all ten witnesses from PW-1 to PW-10 and got

marked twentyeight documents from Exhibits P-1 to P-28 and

Material Objects from MO-1 to MO-7. From the accused side, no

witness was examined, however, portions of statement of PW-2

was got marked as Ex.D.1 and Ex.D.2.

4. After recording the evidence led before it and hearing

both side, the learned Sessions Judge's Court by its impugned

judgment dated 06.06.2019 convicted the accused for the alleged

offences. By its order on sentence dated 07.06.2019, for the

offence punishable under Section 504 of IPC it imposed rigorous

imprisonment for a period of six months and to pay a fine of

`500/- and in default of payment of fine to undergo rigorous

imprisonment for a period of one month. The accused was

sentenced to undergo rigorous imprisonment for a period of six

months with a fine of `500/- and in default of payment of fine to

undergo rigorous imprisonment for a period of one month for

the offence punishable under Section 506 of IPC. The accused

was also sentenced to undergo imprisonment for life and to pay

fine of `1,000/- and in default of payment of fine to undergo

rigorous imprisonment for a period of three months for the

offence punishable under Section 302 of IPC. Aggrieved by the

judgment of conviction and order on sentence passed against

him, the accused in the learned Sessions Judge's Court has filed

the present appeal.

5. The respondent-State is being represented by the

learned Additional Government Advocate.

6. The records from the learned Sessions Judge's Court

were called for and the same are placed before this Court.

7. Perused the materials placed before this Court,

including the memorandum of appeal, impugned judgment and

the records from the Sessions Judge's Court.

8. For the sake of convenience, the parties would be

referred to as per their rank before the Sessions Judge's Court.

9. After hearing the learned counsels from both side,

the points that arise for our consideration in this appeal are:

(i) Whether the prosecution has proved beyond reasonable doubt that on the date 25.06.2017, at about 9.30 p.m., in his (accused) house at Seabird Colony, Harwada, within the limits of complainant police station, the accused intentionally abused his elder son Vinod in filthy language, insulted him and provoked him to cause breach of public peace and thereby committed an offence punishable under Section 504 of IPC?

(ii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and

place mentioned above, the accused put life threat to his son Vinod and thereby committed the offence punishable under Section 506 of IPC?

(iii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused knowing the consequence of his act and intentionally by throwing a grinding stone on the head of his son Vinod, caused his murder and thereby has committed the offence punishable under Section 302 of IPC?

(iv) Whether the impugned judgment of conviction and order of sentence warrants any interference at the hands of this Court?

10. The relationship between the accused, PW-1 (CW-1)

Vikram Pandurang Harikantra, PW-2 (CW-6) Madevi Pandurang

Harikantra, PW-3 (CW-8) Yogesh Pandurang Harikantra, that

the accused is the father of PW-1 and PW-3 and husband of PW-

2 is not in dispute. The evidence about the said relationship,

which has come out in the examination-in-chief of PW-1, PW-2

and PW-3, has not been denied or disputed from the accused

side. It is also not in dispute that the accused, along with PW-1,

PW-2 and PW-3, was residing in their house at Seabird Colony,

Harwada, within the limits of complainant police station. The

evidence of PW-1, PW-2 and PW-3 in that regard has not been

denied from the accused side. The evidence of PW-1, PW-2, PW-

3 and PW-8 (CW-9) Anil Chendekar that the deceased Vinod

was the elder son of the accused, that he was working for a

boat at a place called Malpe, and that he was coming to his

parents' house at Harwada whenever there will be holiday for

boat work as such, on the date of the incident, the deceased

had been in the house of his parents, is also not denied or

disputed from the accused side. Further, the evidence of PW-8

that he was the neighbour of the house of the accused at

Harwada and that his house was situated after about two-to-

three houses from the house of the accused and that he knows

the family of the accused is also not denied from the accused

side. Further, the evidence of PW-1, PW-2, PW-3 and PW-8 that

Vinod, the elder son of the accused and PW-2 and who is also

the elder brother of PW-1 and PW-3, died an unnatural death on

25.06.2017 at about 9.30 p.m. in his house at Harwada, also

has remained undenied and undisputed. It is in the light of

these undisputed facts, the evidence led by the prosecution is

required to be analysed.

11. The prosecution's case is that on the date

25.06.2017, the deceased Vinod was in his parent's house at

Harwada. The accused, who was addicted to liquor, was

frequently demanding and collecting money from his son Vinod

and was regularly quarrelling with him. The accused was also

assaulting his wife and children whenever he had consumed

liquor. That being the case, on 25.06.2017, in the night at about

9.30 p.m., the accused demanded money from his son Vinod,

who had come to his parent's house (house of the accused).

However, the said Vinod did not give him any money but went

to a room in the house to sleep. The accused picking up a

grinding stone assaulted his son by throwing the said stone on

the head of his son Vinod at which Vinod sustained fatal injury

and succumbed to it.

12. The learned counsel for the accused (appellant), in

his argument, submitted that though he would not dispute the

fact of unnatural death of Vinod in his parents' house on

25.06.2017 at about 9.30 p.m., he strongly denied that it was a

murder and that the same was committed by the accused. He

further submitted that the registration of FIR is without the

complaint and as such, the entire investigation stands vitiated.

He also submitted that since the alleged insult is not made in a

public place, Section 504 of IPC is not attracted. Learned

counsel also submitted that there is a discrepancy in the case of

the prosecution since the complainant, in his complaint, has

stated that the grinding stone was outside the house whereas in

his evidence, as PW-1, he has stated that the accused went into

the kitchen and brought the grinding stone. The said

discrepancy creates a serious doubt in the case of the

prosecution, the benefit of which is required to be given to the

accused. Finally, stating that non-examination of ambulance

driver is fatal to the case of the prosecution, the learned counsel

prayed to allow the appeal.

13. The learned Additional Government Advocate for the

respondent, in his brief arguments, submitted that PW-1, PW-2,

and PW-3, who are none else than the family members of the

accused, are also eyewitnesses to the incident. All these

witnesses have fully supported the case of the prosecution.

Furthermore, the evidence of PW-8 also supports the case of the

prosecution. Thus, the prosecution has proved its case beyond

reasonable doubt. Therefore, the impugned judgment does not

warrant any interference at the hands of this Court.

14. The very first argument of the learned counsel for

the appellant is that the registration of FIR is without a

complaint and as such, the entire investigation itself stands

vitiated.

Since the said argument of the learned counsel for the

accused (appellant) goes to the root of the validity of the

investigation, the said point of argument is taken up in the

beginning itself for its consideration.

15. According to the learned counsel for the accused

(appellant), the alleged complaint (information) marked at

Ex.P.1 since shown to be a statement of the informant, it is not

a complaint. Thus, the First Information Report at Ex.P.15

becomes a FIR without a complaint as such, the entire

investigation stands vitiated.

16. A perusal of Ex.P.1 would go to show that, it is

shown to be the statement of PW-1 (CW-1) - the son of the

accused. It is shown in the complaint that after narrating about

the alleged incident, the informant had concluded his statement

requesting the complainant-police to take appropriate legal

action upon his complaint against his father. The registering

authority of the said information, who is PW-7 (CW-22)

H.Omkarappa, the Assistant Sub-Inspector of Police of

complainant police station had noted his endorsement at the

bottom of the said document stating that the said statement

was presented by the complainant by appearing in the police

station on 26.06.2017 between 0030 hours to 0115 hours, the

same was computerised, a printout was taken and after reading

it over to the complainant, the contents of which the

complainant admitted as true, the same was received and

registered in their station Crime No.216/2017 for the offences

punishable under Sections 504, 506 and 302 of IPC.

A careful reading of the said document at Ex.P.1 clearly goes

to show that the presenter of the said information had given the

information as per Ex.P.1 before the registering Police Officer

calling his statement as a 'complaint' and requesting them to take

legal action against his father accusing him of committing the

murder of his (PW-1's) elder brother. The Assistant Sub-Inspector

of Police, who received the said information, has clearly stated that

the informant appearing before him in-person has given those

details orally, which he (ASI) got computerised, took a printout

and after reading the contents to the informant and acceptance

by the informant about the correctness of the contents, he has

received the said information, registered it as a crime in Crime

No.216/2017 and prepared a FIR as per Ex.P.15 and sent it to

the Court. The same is the evidence of the registering officer,

who was examined by the prosecution as PW-7. Thus, even

though his endorsement at the bottom of the said document

shows that it was a statement given by the informant, by the

said nomenclature as a 'statement', it cannot be understood as

a statement before the Investigating Officer under Section 161

of the Code of Criminal Procedure, 1973 (herein after for

brevity, referred to as 'Cr.P.C.'). Since the word 'Statement'

being a general word, it cannot be confined to Section 161 of

Cr.P.C. The very endorsement of the information receiving &

registering Officer (PW-7) at Ex.P.1, it was got computerised by

him and read over to the informant and it is only thereafter it

was received and registered in the station, would go to show

that it is the 'information' given by PW-1 (CW-1) which

commonly would be called as complaint to the police. Therefore,

the argument of the learned counsel for the accused (appellant)

that there is no complaint to the police for preparing a FIR is not

acceptable.

17. The next question that arises is, whether the death

of the deceased Vinod was homicidal.

18. PW-1 and PW-3, the sons of the accused, and PW-2,

the wife of the accused, in their evidence uniformly have stated

regarding the nature of the death of the deceased as death due

to the injuries sustained by him due to assault made with

throwing of the grinding stone on his head. PW-1 has stated

that at the said assault, the head of the deceased got broken

and the brain came outside. At their cry, the neighbours (CW-10

& CW-11) came there and having seen the scene, called an

ambulance to the place in which the deceased was shifted to

Government Hospital at Ankola where the doctor, after

examining, declared the injured as dead. According to this

witness, the said assaulting of his brother with a grinding stone

was by his father. Thus, this witness has called the death of his

brother as homicidal.

In the cross-examination of PW-1, general denial

suggestions were made to this witness with respect to the

statement about the occurrence of the incident that he had

narrated. However, the witness has not admitted those

suggestions as true. A defence was taken from the accused in

his cross-examination suggesting to the witness that PW-1 and

the deceased had an altercation and, in the said process, the

deceased died falling on a stone and got his head broken.

However, the witness did not admit the said suggestion as true.

19. PW-2, the wife of the accused also has stated that

the death of the deceased was due to throwing of a grinding

stone on his head by the accused. She too has stated that,

when she saw the deceased on the night of the incident, she

noticed that his brain had come out and blood was oozing from

his head. Thus, she too has called the death of her son as

homicidal.

Even in her cross-examination also from the accused side,

it was suggested to her that, at the time of the incident, PW-1

and the deceased were fighting with each other and in the said

process the deceased fell on a stone and got injured his head.

The witness has not admitted the said suggestion as true.

20. PW-3, the another son of the accused, also has

stated that his brother died due to the assault by his father who

threw a grinding stone on his head, and thus sustaining injuries

to his head his brother died. Thus, he too has shown that the

death of the deceased was by the act of another human being.

Thus, he implied that it is a homicidal death.

21. PW-8 (CW-9)-Anil Chendekar, who undisputedly is

the neighbour of the accused with about two-to-three houses in

between their houses, has also stated that on the night of the

incident, after hearing the quarrelling noise from the house of

the accused, when he entered the house of the accused, he

noticed the dead body of the deceased Vinod with his brain

having come out from the head, and nearby he also noticed a

grinding stone. Thus, this witness also called the incident as a

homicidal death. He has accused the accused for the alleged act

of death of the deceased.

Even in his cross-examination also, a suggestion was

made to the effect that the deceased and PW-1 were fighting

with each other and in the said process, the deceased fell down

and sustained injuries to his head. However, the witness has not

admitted the said suggestion as true.

Thus, according to the material witnesses examined by the

prosecution, the death of the deceased Vinod was homicidal.

22. The other witness, who speak about the death of the

deceased is PW-4 (CW-2) Manjunath Shivu Harikantra, who has

stated that the inquest panchanama on the dead body of the

deceased was drawn in his presence as per Ex.P.8. He has also

identified the photograph at Ex.P.7 stating that the said

photograph was taken at the time of drawing up of inquest

panchanama. He too has stated that when he saw the dead

body, he noticed that the deceased had sustained injuries to his

head and scalp was open. The inquest panchanama at Ex.P.8,

which was referred to by this witness, shows that the panchas

have noticed the features of the dead body and also the injuries

sustained by the deceased. They too have observed that the

deceased had sustained injuries to his head in the form of

opening of the scalp and coming out of brain from the scalp.

After examination of the dead body and gathering some

information in the spot, the panchas have opined that the death

of the deceased was a murder. The said opinion of the panchas

that it was a murder has not been specifically denied in the

cross-examination of PW-4.

23. PW-10 (CW-19) Dr. Ramesh C., a Specialist Doctor in

the Taluka Hospital at Ankola, has stated that on 25.06.2017,

while he was on Casual Duty in the hospital, at about 11.00

p.m., the deceased was brought to their casualty and, on

examination of the patient, he noticed that he was brought

dead. On the next day, i.e., 26.06.2017 at the request of the

Investigating Officer as per Ex.P.16 and a report sent by the

Investigating Officer as per Ex.P.17, he conducted post-mortem

examination on the dead body of the deceased - Vinod

Pandurang Harikantra. The witness has stated that, as an

external injury, he noticed the presence of one cut lacerated

injury measuring 8 x 2 x 2 cms. over the scalp extending from

left to right parietal region with outpouring of brain matter. On

dissection of the scalp, he noticed clotted blood within the

fractured site with fractures of both parietal bones. The injuries

were ante-mortem in nature aged around twelve hours. In that

regard, he has issued post-mortem report as per Ex.P.22. The

witness opined that the death of the deceased was due to head

injury secondary to trauma. The witness has further stated that

on 07.07.2017, he received a material object sent to him by the

Investigating Officer for his opinion, after unpacking the object,

he noticed a domestic grinding stone (M.O.3) and after

examining the same, he gave his opinion that, by means of said

domestic grinding stone, if assault is caused on the head, the

injury found on the deceased is possible to occur. In that

regard, he has given an opinion as per Ex.P.24. He also stated

that he weighed the said grinding stone at M.O.3 which was

weighing 8.700 kilograms and it had blood stains on its outer

surface. He has identified his finding about the said grinding

stone with its diagram and measurement at Ex.P.29. He has

stated that, in the ordinary course of business, if the object like

M.O.3 is thrown on the head of a sleeping person, an injury as

noticed in the post-mortem report is possible to be caused and

the same is sufficient to cause the death.

In his cross-examination, the witness has stated that the

brain matter had completely come out of the head. The cause of

death opined by this witness could not be shaken in his cross-

examination. Though the witness, in his cross-examination,

stated that if a person is pushed forward and if he comes in

contact with a hard surface, there is all possibilities of he

sustaining fracture of his head, but the witness also stated that,

then the chances of brain matter coming out is very remote.

Thus, the witness has ruled out the possibility of the death of

the deceased being caused accidentally in a scuffle or fight

between two persons.

Thus, the evidence of PW-1, PW-2, PW-3 and PW-8, the

material witnesses and the evidence of PW-4 the pancha to the

inquest panchanama and PW-10, the doctor who conducted the

autopsy not only corroborates the evidence of PW-9 (CW-23)

Basappa Durgappa Burli, the Investigating Officer, about he

drawing the inquest panchanama in the presence of panchas

and getting the post-mortem examination of the dead body

done through PW-10, but also proves that the death of the

deceased was not only an unnatural death but it was homicidal.

Thus, it stands established that the deceased Vinod died a

homicidal death.

24. The next question that arises for consideration is,

whether the homicidal death of the deceased Vinod Pandurang

Harikantra was a murder and it was committed by the accused

and the accused alone.

25. PW-1, PW-2 and PW-3, the wife and the sons of the

accused have uniformly stated in their evidence that on the day

of the incident, at about 9.30 p.m., all of them including CW-7

were sitting on a staddle (a platform or bench like permanent

structure made in or outside the house attached to the house,

which is called as 'jagali' in Kannada language) in their house,

and just before that the accused had demanded money from the

deceased Vinod (his elder son) and when he did not give him

money, the accused had asked him to quit the house. According

to PW-1, however, the deceased (his elder brother) stating that

from the next day onwards he would not come to the house and

he would go to his grandmother's house at Marba, had gone

inside a room in the house and had lied down. According to

these witnesses, while they were still sitting on the staddle, the

accused took a grinding stone and proceeded towards the room

where the deceased was sleeping. Noticing the same and

anticipating some untoward incident, though these three

witnesses got up and rushed to the room where the deceased

was sleeping, however by that time, the accused had already

thrown the grinding stone which was held by him on the head of

his sleeping son Vinod at which the scalp had fractured and

opened, and the blood and brain matter had come out. The

injured was shifted to a hospital in an ambulance, however, the

doctor declared him as 'brought dead'. Stating so, all these three

witnesses have identified the grinding stone at M.O.3 as the one

with which the accused caused the death of his own son.

In addition to the above, PW-1 and PW-3 have stated that

when they started yelling, the neighbours including CW-9 (PW-8)

Anil Chendekar came there and the accused left the place. These

witnesses have also stated that the deceased was lying in the

room by spreading a towel, and he was wearing a T-shirt & a

black colour pant. These witnesses have identified those articles

including the grinding stone at M.O.1 to M.O.6. P.W.1 also

identified an underwear at M.O.7 stating that the said

underwear was worn by the deceased. All these three witnesses

have uniformly stated that it was the accused and accused

alone who threw the grinding stone on the head of his own son

Vinod and caused his death.

P.W.1 also stated that it was he who lodged a complaint

before the police as per Ex.P.1. He also stated that the police

visited his house to whom he shown the spot and they drew a

scene of offence panchanama as per Ex.P.2 and took

photographs of the spot and also collected the blood-stained

soil, sample soil, the grinding stone used in the commission of

the crime, the blood-stained towel and a T-shirt under the

panchanama.

26. The learned counsel for the appellant/accused, in his

argument, submitted that PW-1, who is also a complainant, in

his complaint has stated that the grinding stone said to have

been used in the commission of the crime was lying outside the

house and the same was picked by his father before throwing it

on the head of Vinod, whereas, in his evidence, he has stated

that the accused picked the said grinding stone from the kitchen

and as such, it is a major discrepancy creating a serious doubt

in the case of the prosecution.

27. PW-1 in his complaint to the police, which is at

Ex.P.1, has stated that the grinding stone picked up by his

father was from outside the house whereas in his examination-

in-chief, he has stated that he went to the kitchen and picked

up a grinding stone. However, the said discrepancy was not put

to PW-1 in his cross-examination from the accused side eliciting

his response. On the other hand, both PW-2 and PW-3, the

mother and the younger brother of the deceased, have

uniformly stated that the accused picked the grinding stone

from the kitchen and then went to the room where the deceased

was sleeping and threw it on the head of the deceased. Both the

witnesses adhered to their original version even in their cross-

examination. In the cross-examination of PW-1, PW-2 and PW-

3, it was not even suggested to the witnesses that the said

grinding stone was not belonging to the house of these

witnesses and that it did not have any blood stains on it.

Therefore, the alleged discrepancy in the complaint of PW-1,

which discrepancy was also not confronted to PW-1 in his cross-

examination, remains as a very minor discrepancy without

affecting the case of the prosecution. Thus, the evidence of PW-

1 and PW-3, who are the sons of none else than the accused

and also the evidence of PW-2, who is none else than the wife of

the accused, clearly go to prove that it was the accused and

accused alone who threw the grinding stone at M.O.3 on the

head of his own son Vinod and caused his death.

28. The evidence of PW.8 (CW-9) Anil Chendekar who,

undisputedly, is the neighbour of the accused with an

intervention of two-to-three houses, has also stated that on the

night of the incident, at about 9.30 p.m., while he was standing

near his house talking with CW-10 to CW-12, he heard

quarrelling noise from the house of the accused; thinking that it

is a usual quarrel, these people did not go near the said house;

however, within ten minutes thereafter, he heard the voice as

"don't assault, leave him"; hearing that, all these four persons

went near the house of the accused and at that time, the

accused came out of the house, and on asking as to what had

happened, the accused stated that he has killed his son by

throwing a grinding stone on his head and left the place. These

people went inside the house and saw the dead body of the

deceased Vinod with injuries on his head, the brain matter

coming out from his head, and near his dead body a grinding

stone was also found fallen. Immediately, these people called an

ambulance to make an attempt to save the life of the deceased.

They shifted Vinod to Government Hospital at Ankola, where the

doctor, after examining him, declared him as 'brought dead'.

This witness has also identified the grinding stone at M.O.3,

which he found near the dead body. His evidence could not be

weakened in his cross-examination from the accused side. Thus,

an independent neighbour witness, whose presence near the

house of the accused and he seeing the place of the incident

immediately after its occurrence cannot be doubted, has also

stated that it is not only they saw the accused coming out of the

house but also heard from the accused himself that he killed his

own son with the grinding stone. Therefore, the evidence of PW-

1, PW-2 and PW-3 further stands corroborated from the

evidence of PW-8 and established that it was the accused and

accused alone, who has caused the death of his son by throwing

the grinding stone on his head.

29. Even though PW-2, the wife of the accused in her

evidence has stated that at the time of the incident, there was

no light in their house and she has seen the same with the help

of a battery torch, the witness also stated that, however, on the

said day there was electric supply in their village and at the

time when the accused threw the grinding stone on the head of

their son, there was electricity light in their house. Further, it is

also not the defence of the accused that there was no electricity

supply in the house and as such, the culprit cannot be identified

by anyone. Moreover, when the accused is none else than the

father of PW-1 and PW-3 and the husband of PW-2, as such,

being a family member living in the same house, his

identification by PW-1, PW-2 and PW-3 cannot be suspected.

30. The evidence of PW-2, who is none else than the wife

of the accused, would go to show that the house in which the

incident had taken place has got three rooms. The kitchen of

the house was situated on the western side of verandah

whereas the room was on the eastern side of the verandah as

such, whosoever goes from kitchen to room has to pass through

the verandah. The witness has stated, while the accused was

going from kitchen to room, since they were sitting on the

staddle, they could see the accused moving from one end of

verandah to another. The said evidence of PW-2, which was

elicited in her cross-examination from the accused side having

remained undenied, is further corroborated by the rough sketch

prepared by the Investigating Officer (PW-9) which is at Ex.P.3.

Further, the evidence of PW-5 (CW-21) - Rama Argekar, the

Assistant Engineer of Public Works Department (PWD) shows

that he too, at the request of the Investigating Officer, has

visited the spot of the offence and has drawn the sketch which

this witness has identified at Ex.P.12. The said sketch also

corroborates the evidence of PW-2 regarding the situation of

kitchen, verandah and room in the house of the accused. This

also corroborates the say of PW-1, PW-2 and PW-3 that since

they were in the house and sitting on the staddle, after having

dinner, they could see the accused entering the room where the

deceased was sleeping. Therefore, it can be strongly believed

that PW-1, PW-2 and PW-3 were the eyewitnesses to the

incident.

31. PW-1, PW-2 and PW-3 have all identified the grinding

stone at M.O.3 as the one with which the accused caused the

death of the deceased Vinod by throwing the said stone on his

head. Even PW-8, the neighbour, also has stated that

immediately after the incident, when he rushed into the house

of the accused, apart from seeing the accused leaving the house

by stating that he has killed his son, has also stated that he saw

the grinding stone near the dead body of Vinod in the room. The

doctor, who was examined as PW-10, as observed above, apart

from seeing the stone at M.O.3, has also stated about the stone

with its measurement and weight as per Ex.P.29. His statement

that the said stone was weighing 8.700 kilograms has not been

denied. He has also opined that the injury found on the

deceased can be caused by throwing the said stone on the head

of the deceased. Thus, the medical opinion establishes a link

between the weapon at M.O.3 with the death of the deceased.

These facts further corroborates with the Report of the Regional

Forensic Science Laboratory, Mangaluru, which is at Ex.P.27,

and shows that the T-shirt worn by the deceased, the towel

upon which the deceased was lying at the time of the incident,

the grinding stone with which the deceased was assaulted and

killed, the blood-stained mud collected from the spot and the

track pant worn by the deceased at the time of the incident were

all stained with human blood of 'O' Group. Thus, the weapon

and the blood stain on the said weapon (M.O.3-grinding stone)

and the dress worn by the deceased and the towel upon which

the deceased was lying all had stains of human blood of same

group which, from the evidence of PW-1, PW-2 and PW-3, would

go to show that it was of the deceased's blood, since it is

immediately after the incident, the family members, PW-1, PW-

2 and PW-3 have rushed to the room and saw the deceased

sustained bleeding injuries. Therefore, the evidence led by the

prosecution also establishes the nexus between the grinding

stone at M.O.3 and the death of the deceased.

32. The spot of the incident is not in dispute. PW-1,

PW-2, PW-3 and PW-8 have all stated that the incident has

taken place in a room in the house of the accused. The said fact

is further corroborated by the evidence of PW-6 (CW-5)

Manjunath Jatti Harikantra, who has stated that the scene of

offence panchanama, as per Ex.P.2, was drawn in his presence

and the articles at M.O.1 to 3 were also seized in his presence.

The evidence of these witnesses corroborates the evidence of

PW-9, the Investigating Officer that he visited the spot and

drew scene of offence panchanama as per Ex.P.2 and seized

articles connected to the crime including the grinding stone at

M.O.3. Therefore, the spot of the incident also stands proved.

33. The motive behind the crime, according to the

prosecution, is that the accused was demanding money from his

deceased son frequently including on the date of incident and

since the deceased did not accede to his demand, the accused

committed the act of killing him by throwing the grinding stone

on his head.

34. It is once again, PW-1, PW-2 and PW-3, the family

members of the accused himself, who have sated about the

motive behind the crime. All the three of them have stated that

the accused, who was addicted to consuming liquor, was

regularly quarrelling with his deceased son and demanding

money from him. Even on the date of the incident also, just

prior to the incident, the accused was objecting to his son Vinod

(the deceased) about the deceased not giving him money.

According to PW-1 and PW-3, the sons of the accused, since

their elder brother (the deceased) did not accede to the demand

of the accused, their father (the accused) asked the deceased to

go away from the home. It is within few minutes of the said

incident, the accused has carried the grinding stone and threw it

on the head of his son Vinod causing his death. The said

evidence of PW-1, PW-2 and PW-3, which could not be shaken

in their cross-examination from the accused side, shows that

the accused was not hesitant to take a drastic step of putting an

end to the life of his son for a silly reason of his son not meeting

his demand for money.

Even PW-8, the neighbour of the accused has also stated

that the accused, who was in the habit of consuming the liquor,

was pestering his deceased son, whenever he used to visit his

parents' house, for money and the deceased used to give him

money. This witness has also stated that the deceased has

stated before him about his father irritating him demanding

money from him. This had made him (this witness) to advice

the accused not to irritate his son by demanding money. This

statement of an independent witness, who is none other than

the neighbour of the family of the accused also go to show that

the accused was also in the habit of demand money from his

son (the deceased).

The evidence of PW-1, PW-2 and PW-3 further shows that

the even just prior to the incident also, the accused demanded

money from the deceased, and since the deceased did not pay

him the money, the accused committed the act of killing his

son. This act of the accused is an act committed by him knowing

the consequences of his act and with a determination to put an

end to the life of his son. Otherwise, the accused would not

have taken such a step of picking up a grinding stone and then

going to the room where his son was sleeping and throwing the

stone on his son who was sleeping. According to PW-2, the

mother of the deceased who is also the wife of the accused, it

was after one hour of her deceased son going to sleep, the

accused has committed the act of killing him. Therefore, the act

of the accused cannot be called as an act committed under a

grave and sudden provocation or in a fit of anger. The accused

had a cooling time of not less than one hour to calm down

himself even in case he had got angry at the refusal of his son

to pay him the money. Therefore, the act of the accused killing

his son would not fall under any exceptions to Section 300 of

I.P.C. As such, the prosecution has proved the act of the

accused not only as a culpable homicide but also a murder that

too committed by none else than the accused and accused

alone.

35. The accused though in the form of suggestions made

to PW-1, PW-2 and PW-8 has taken a defence that the deceased

had sustained injuries by falling upon a stone in an alleged

altercation between himself and PW-1, but none of these

witnesses have admitted those suggestions as true. As such, the

defence of the accused also would not, in any manner, introduce

any doubt in the case of the prosecution. Thus, the prosecution

has established beyond reasonable doubt that it was the

accused and accused alone, who has caused the murder of his

son Vinod.

36. The accused is also charged with the offences

punishable under Section 504 and 506 of IPC for which

offences, the Sessions Judge's Court has held him guilty. A

careful study of the evidence led by the prosecution witnesses,

more particularly of PW-1 and PW-3, the other sons of the

accused, would go to show that just prior to the incident, the

accused, apart from initiating the quarrel with the deceased,

had also abused him and asked him to leave the house then and

there itself. According to PW-1, the deceased is said to have

told the accused that he would not return to the house from the

next day and that he would go to his grandmother's house at

Marba. PW-3 has stated that the accused, apart from asking the

deceased to go away from the home, had also abused him as a

son of a bitch. Thus, the evidence of none else than the other

sons of the accused go to show that before committing the act

of murder of his son, the accused also had abused him in filthy

language. According to P.W.8, while he standing outside his

house talking with CW-10 to CW-12, he heard this quarrel but

though that it was a quarrel which was a routine. Thus, the act

of the accused in abusing his son in filthy language has

provoked and resulted in breach of public peace. Otherwise,

P.W.8 would not have noticed the quarrel and later entered the

house of the accused.

Though the learned counsel for the accused, in his

argument, submitted that since the alleged insult to the

deceased has taken place inside the house and not in a public

place, the offence punishable under Section 504 is not

applicable, we are not inclined to accept the said interpretation

of Section 504 of IPC since the said Section does not require

that the act 'intentional insult' which gives provocation to any

person to cause breaking the public peace or to commit any

other offence should have necessarily taken place in a public

place. Suffice, if the act of insult leads to provocation of

breaking the public peace. In the instant case, since PW-8 was

standing outside talking to CWs.10 to 12 and noticed quarrel

and stopping conversation with each other, all of them including

PW-8 entered the house of the accused, it has a clear effect that

the act of the accused of his intentional insult of the deceased

provoking him to break the public peace. Therefore, the

prosecution has also proved the offence punishable under

Section 504 of IPC against the accused.

37. The accused is also convicted for the offence

punishable under Section 506 of IPC. Even though PW-1 and

PW-3 have stated that the accused had a quarrel with the

deceased just prior to the incident of the murder of the

deceased and had asked the deceased to go out of the house,

but none of these witnesses have anywhere stated of any threat

by the accused upon the deceased in case if the deceased refused

to go out of the house. Thus, in the absence of any threat to the

deceased with any injury to his person, reputation or property

or to the personal reputation of anyone in whom the deceased

might be interested and also in the absence of any intention on

the part of the accused of causing any alarm to the deceased,

the mere abusing of the deceased and thereby provoking him to

cause breach of public peace would not also constitute an act of

'criminal intimidation'. However, the Sessions Judge's Court

though, by giving reasons, has held the accused guilty for the

offences punishable under Sections 302 and 504 of IPC, in

which finding we do not find any reason to interfere, but without

noticing that there was no sufficient evidence to prove the guilt

against the accused for the offence punishable under Section

506 of IPC, has also held him guilty of the offence punishable

under Section 506 of IPC. As such, it is only to the extent of

setting aside the conviction for the offence punishable under

Section 506 of IPC, the impugned judgment warrants

interference at the hands of this Court.

38. The Sessions Judge's Court has sentenced the

accused to undergo life imprisonment and to pay fine of

`1,000/- and in default of payment of fine, to undergo rigorous

imprisonment for a period of six months, for the offence

punishable under Section 302 of IPC; and also to undergo

rigorous imprisonment for a period of six months and to pay

fine of `500/- and in default of payment of fine, to undergo

rigorous imprisonment for a period of one month, for the

offence punishable under Section 504 of IPC.

It is the sentencing policy that the sentence ordered must

be proportionate to the gravity of the proven guilt. It shall be

neither exorbitant nor for the name-sake. Since the sentence

ordered by the Sessions Judge's Court in the impugned order on

sentence being proportionate to the gravity of the proven guilt,

we do not find any reason even to interfere with the order on

sentence for the proven guilt for the offences punishable under

Sections 504 and 302 of IPC. Accordingly, we proceed to pass

the following:

ORDER

[i] The present Criminal Appeal stands allowed in part.

[ii] The judgment of conviction dated 06.06.2019 holding the accused guilty of the offence punishable under Section 506 of IPC and the order on sentence dated 07.06.2019 sentencing the accused for the said offence, passed by the Principal District & Sessions Judge, Uttara Kannada, Karwar, in S.C.No.30/2017, stands set aside.

[iii] The accused (appellant) Pandurang Narayan Harikantra, R/o Seabird Colony, Harwada, Ankola, is acquitted for the offence punishable under Section 506 of IPC.

     [iv]    However,    the     impugned      judgment     of
conviction    dated   06.06.2019    holding     the   accused

Pandurang Narayan Harikantra, R/o Seabird Colony, Harwada, Ankola, guilty of the offences punishable under Sections 504 and 302 of IPC and the order on sentence dated 07.06.2019 for those two offences remain unaltered and unmodified.

[v] The accused is entitled for the benefit of set off under Section 428 of Cr.P.C. for the period having undergone by him in judicial custody, if any, in the matter.

Accused is entitled for a free copy of this judgment

immediately.

Registry to transmit a copy of this judgment along with

Sessions Judge's Court records to the concerned Sessions

Judge's Court immediately for their needful in the matter.

Sd/-

JUDGE

Sd/-

JUDGE

KMS