Karnataka High Court
Chandrashekar vs The State Of Karnataka on 16 February, 2024
-1-
NC: 2024:KHC-D:3822
CRL.A No. 1576 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1576 OF 2015 (374)
BETWEEN:
CHANDRASHEKAR S/O. SEVYANAYAK
AGED 31 YEARS, OCC: HOTEL WORK
R/O: MUDDALAPURA TANDA, HUVINAHADAGALI,
TQ AND DISTRICT: BELLARI.
...APPELLANT
(BY SRI. K.L. PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA, BANGALURU,
THROUGH COWL BAZAE PS, BALLRI.
...RESPONDENT
Digitally
signed by
SHIVAKUMAR (BY SRI. M.B.GUNDWADE, ADDL. SPP.)
HIREMATH
Date:
2024.02.23
11:56:30 THIS CRIMINAL APPEAL FILED U/S.374(2) CR.P.C
+0530
PRAYING TO ALLOW THIS CRIMINAL BY SETTING ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED 15.12.2015
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
BALLARI, AND IN S.C.NO.72/2012 FOR THE OFFENCES
PUNISHABLE UNDER SECTION 304 PART II OF IPC AND
ACQUIT THE APPELLANT OF THE OFFENCE PUNISHABLE UNDER
SECTION 304 PART II OF IPC IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-2-
NC: 2024:KHC-D:3822
CRL.A No. 1576 of 2015
JUDGMENT
This appeal by the convicted accused, directed
against the Judgment And Order of Sentence passed in SC
No.72/2012 by the learned Principal District and Sessions
Judge at Ballari, wherein, the learned Sessions Judge
convicted the accused/appellant for the offences
punishable under Sections 323, 504 and 304 Part II of
Indian Penal Code (for short 'IPC') and sentenced him to
undergo rigorous imprisonment for a period of 4 years and
to pay a fine of Rs.15,000/- in default of payment of fine,
he shall further undergo simple imprisonment for a period
of 3 months.
2. The factual matrix of the prosecution case in
brief are that;
PW.3-complainant in this case, has rented out the
first floor of his house property to the accused/appellant
herein and about 2 months prior to the date of incident on
a monthly rent of Rs.1,200/-. The accused/appellant had
NC: 2024:KHC-D:3822
defaulted to pay the rent. As such, on 26.05.2010, at
11:00 am, when, PW.6-the wife of PW.3-complainant went
to first floor to ask the rent from the accused, accused
quarreled with her. PW.3 on hearing the same rushed to
the spot, at that time the accused was threatening PW.6
that he is not going to pay the rent. Though, PW.6
requested the accused, he abused them in a filthy
language. To the same, PW.3 asked the accused to behave
decently. To which, the accused by holding the hands of
PW.3, assaulted on his chest and when PW.3 cried for
help, on hearing the same, his daughter-PW.7 and his
younger brother i.e., Rajendra Prasad (now deceased in
this case) came to the spot and questioned the accused
about his indecent behavior with PW.3. However, the
accused once again abused them in filthy language and in
the midst of quarrel, pushed PW.7 and deceased with his
both hands, as a result, the deceased i.e., younger brother
of PW.3, rolled down the stairs and fell on the stone
situated on the ground floor of the house. Resultantly, the
deceased sustained bleeding head injuries. Hence, the
NC: 2024:KHC-D:3822
family members of the accused and PW.8 shifted the
injured in an auto rickshaw of PW.8 to VIMS Hospital,
Bellari and admitted him in the said Hospital. However,
during the course of treatment, at about 6:30 pm, the
deceased succumbed to the injuries sustained. Hence,
PW.3 lodged the complaint against the accused before the
Cowl Bazar Police Station, Ballari, on the same day i.e., on
26.05.2010 at about 10:00 pm as per Ex.P.3. The same
was registered in Crime No.96/2010 against the accused
for the offence punishable under Sections 323, 504 and
302 IPC. Subsequently, PW.12-Investigation Officer in this
case, conducted the further investigation and drawn the
Inquest Panchnama on the dead body of the deceased as
per Ex.P.7 and also drawn the Spot Mahazar as per Ex.P.4
and thereafter, sent the body of the deceased to the
Hospital to conduct the Post-Mortem examination and
subsequently, arrested the accused and recorded his
voluntary statement and after obtaining necessary
documents from the concerned authorities, laid the
chargesheet against the accused for the offences
NC: 2024:KHC-D:3822
punishable under Sections 323,504 and 304 of IPC, before
the committal Court.
3. Post committal of the case before the Sessions
Court, the learned Sessions Judge framed the charges
against the accused for the offence punishable under
Sections 323, 504 and 304 of IPC and read over the same
to the accused. However, the accused has not pleaded
guilty and claimed to be tried.
4. In order to prove the charges leveled against
the accused, before the trial Court, the prosecution
examined 12 witnesses as PW.1 to PW.12, so also, got
marked 14 documents as Ex.P.1 to Ex.P.14.
5. After completion of the prosecution evidence,
the learned Sessions Judge read over the incriminating
evidence of material witnesses to the accused as
contemplated under Section 313 of Cr.P.C. The accused
denied the same. However, the accused did not choose to
examine any witness on his behalf but has got marked 2
NC: 2024:KHC-D:3822
documents as Ex.D.1 and Ex.D.2 i.e., the portion of the
evidence of PWs.6 and 7 respectively.
6. After assessment of the oral and documentary
evidence placed before the learned Sessions Judge, the
learned Sessions Judge convicted the accused for the
offence punishable under Section 304 Part II of IPC and
sentenced him as stated supra. The legality and validity of
the judgment is challenged under this appeal by the
accused.
7. Heard the learned counsel Sri. K.L.Patil for the
appellant/accused, so also the learned Additional State
Public Prosecutor for respondent/ State.
8. Learned counsel for the appellant would
vehemently contend that the judgment under this appeal
suffers from perversity and illegality and the learned
Sessions Judge convicted the accused without properly
appreciating the evidence available on record. As such, the
impugned judgment is liable to be set aside. He would
NC: 2024:KHC-D:3822
further contend that, on careful perusal of the evidence of
PW.3-complainant so also the evidences of PWs.6 and 7
i.e., the wife and daughter of the complainant, there are
much contradictions in their evidence in respect of the
manner in which, the alleged incident said to have been
caused. He would further contend that, the accused being
the tenant of PW.3, he had no intention or motive to take
away the life of the deceased.
9. He would also contend that, PWs.3, 7 and 8 in
collision with each other, has falsely implicated the
accused in this case though, the deceased accidently fell
from the steps of the house. The learned counsel would
also contend that, the learned Sessions Judge has totally
erred while convicting the accused for the offence
punishable under Section 304 Part II of IPC. On perusal of
the entire evidence on record, the prosecution has failed
to prove the intention or knowledge on the part of the
accused is forthcoming to commit such offence. In order to
convict the accused under Section 304 Part II of IPC, the
NC: 2024:KHC-D:3822
prosecution has to prove the essential ingredient of
knowledge or the culpability on the part of the accused to
commit such act. In the case on hand, on perusal of the
evidence, more particularly, the statement which is
marked under Exs.D.1 and 2 i.e., the portion of the
statements marked during the course of the evidence of
PW.6 and PW.7, wherein, they have categorically deposed
that 'they have stated before the Police that, there was no
such intention or knowledge on the part of the accused to
take away the life of the deceased. On the other hand, the
entire incident was caused in the spur of movement
without any such premeditation'. In such circumstances,
even if the entire case of the prosecution is admitted for
the sake of argument, even then, the act of the accused
does not fall under Section 299 of IPC, which is punishable
under Section 304 Part II of IPC.
10. The learned counsel also contend that, the
evidence of PW.1/Doctor who conducted the autopsy over
the dead body of the deceased categorically admitted in
NC: 2024:KHC-D:3822
his evidence that, on examination, the injuries sustained
by the deceased could have been caused in a accidental
fall. As such, according to the learned counsel, the defence
of the accused seems to be much probable one. Hence, it
is for this reason, he contends that, the learned Sessions
Judge erred in convicting the accused for the offence
punishable under Section 304 Part II of IPC. Accordingly,
he prays to allow the appeal by setting aside the
impugned judgment.
11. Refuting the above submission made by the
learned counsel, the learned Additional State Public
Prosecutor would vehemently contend that, the judgment
under this appeal does not suffer from any perversity or
illegality. The learned Sessions Judge has convicted the
accused after properly appreciating the entire evidence on
record. As such, according to learned Addl.SPP, the well
reasoned judgment passed by the learned Sessions Judge
does not call for any interference by this Court. He would
further contend that, the evidence of PWs.3, 5, 6 and 7
- 10 -
NC: 2024:KHC-D:3822
corroborates to each other and all these witnesses have
categorically deposed that, there was a quarrel that had
taken place in the house of PW.3 on the date of incident
when PW.3 questioned the accused on payment of rent
due. Thereafter, the accused forcibly pushed the deceased
and thereby, the deceased fell on the staircase and
sustained bleeding injuries on his head, resultantly, he
succumbed to the injuries in the Hospital on the same day
in the evening. Thereafter, the complaint came to be
lodged by PW.3. As such, there are no reasons to discard
the evidence of all these above witnesses. He would
further contend that, on perusal of Ex.P.1-the Post-
Mortem report, there are 4 external injuries and 5 internal
injuries to the deceased. Those injuries were caused due
to the forcible push made by the accused to the deceased.
The learned Additional State Public Prosecutor would also
submit that, the learned Sessions Judge rightly convicted
the accused for the offence punishable under Section 304
Part II of IPC for the reason that, the accused had such
knowledge that the act committed by him would result into
- 11 -
NC: 2024:KHC-D:3822
the death of the accused. In such circumstances, as per
the exception 4 to Section 300 of IPC, the said act of the
accused comes under the ambit of Section 299 of IPC i.e.,
culpable homicide is not amount to murder, which is
punishable under Section 304 Part II of IPC. Accordingly,
the learned Sessions Judge convicted the accused for the
said offence. Based on these submissions, he prays to
dismiss the appeal and to confirm the judgment passed by
the learned Sessions Judge.
12. Having heard the learned counsel for the
appellant, also the Additional State Public Prosecutor. The
Points that would arise for my consideration are that:
"1. Whether the judgment under this appeal
suffers from any perversity or illegality?
2. Whether the learned Sessions Judge is
justified in convicting the accused for the
offence punishable under Section 304(2) of
IPC?"
13. This Court being the appellate Court, it is
mandated to re-appreciate the entire evidence available on
- 12 -
NC: 2024:KHC-D:3822
record. Accordingly, on a cursory glance of the evidences
placed by the prosecution before the trial Court, I find-
PW.1-Dr.Chaithanya.R., Medical Officer, conducted
the autopsy on the dead body of the deceased and issued
the Post-Mortem report as per Ex.P.1. According to him,
the cause of the death is due to 'shock and hemorrhage as
a result of head injury sustained'.
PW.2-Md. Akbar, independent eye-witness, turned
hostile to the prosecution case.
PW.3-Y.Hanumanthappa, eye-witness, lodged
complaint as per Ex.P.3 before the Police. He reiterated
the contents of Ex.P.3 and deposed that, on 26.05.2010,
himself and his wife went and demanded the accused to
pay the rent due and at that time, the accused abused
them and thereafter, his daughter came to the spot and
the accused also abused her in filthy language by
questioning the same, the brother i.e., deceased-Rajendra
Prasad came there, at that time, the accused pushed the
- 13 -
NC: 2024:KHC-D:3822
deceased forcibly with his both hands, resultantly, the
deceased fell down the staircase and sustained bleeding
head injuries. Thereafter, himself and his family members
shifted the injured to the VIMS Hospital, Ballari, in the
auto rickshaw belonging to PW.8 and the deceased was
treated in the said Hospital. Further, on the same day
evening at about 7:30 pm, the deceased succumbed to the
injuries. As such, he lodged the complaint against the
accused before the Police as per Ex.P.3.
PW.4-Nagaraj, witness for Spot Mahazar drawn as
per Ex.P.4.
PW.5-Smt. Sunitha, wife of deceased in this case,
reiterated the evidence deposed by PW.3 and stated that,
on the date of incident, there was a quarrel between the
accused and PWs.3, 6 and 7. As such, her husband-the
deceased intervened in the said quarrel, at that time, the
accused pushed her husband and the deceased fell on the
staircase and sustained injuries on his head and
thereafter, they all shifted him to the Hospital and he
- 14 -
NC: 2024:KHC-D:3822
succumbed to the head injuries in the Hospital on the
same day.
PW.6-Smt.Vanajakshi, wife of PW.3/complainant,
reiterated the version of PW.3 and deposed that, on the
date of incident, herself and her husband approached the
accused by demanding the rent and the accused quarreled
with them and abused them in filthy language, which was
questioned by the deceased. Thereby, the accused pushed
him and resultantly, he fell on the staircase and sustained
bleeding injuries on his head and subsequently, they
shifted him to the Hospital. However, the deceased
succumbed to the injuries.
PW.7-Kumari Preethi, daughter of PWs.3 and 6 and
also an eye-witness to the incident, reiterated the version
of PWs.3 and 6 and deposed that, on the date of incident,
her father and mother approached the accused in
connection with the payment of rent due and at that time,
accused abused them. Hence, she went to the first floor
and at that time, the accused also abused and pushed her.
- 15 -
NC: 2024:KHC-D:3822
Hence, when the deceased questioned the accused, at that
time, the accused pushed him. As a result, he fell on the
staircase and sustained head injuries. Though, they shifted
the deceased to the Hospital, he succumbed to the injuries
on the same day evening at about 6:30 pm.
PW.8-Shiva, circumstantial witness, in whose auto
rickshaw the injured was shifted to the VIMS Hospital,
Ballari, soon after the incident and also he is a witness for
Inquest Panchnama as per Ex.P.7. However, this witness
has turned hostile in respect of Inquest Panchnama-
Ex.P.7.
PW.9-Lokappa, witness for Ex.P.7-Inquest
Panchnama drawn on the dead body of the deceased.
PW.10-C.Venkataramana, the then Head Constable
of Cowl Bazar Police Station, Ballari, carried the FIR from
the Police Station to the learned JMFC, Ballari.
PW.11-Shaik Shafiullah, Assistant Executive
Engineer, drawn the Spot Sketch as per Ex.P.10.
- 16 -
NC: 2024:KHC-D:3822
PW.12-Girish, the then Police Inspector of Cowl
Bazar Police Station, conducted the investigation in this
case and laid the chargesheet against the accused.
14. On careful perusal of the above evidence
adduced by the prosecution, in order to prove the
unnatural death of the deceased in this case, the
prosecution mainly relied on the evidence of PW.1-Doctor
and the Post-Mortem report as per Ex.P.1. On careful
perusal of Ex.P.1, the same depicts that the Doctor has
opined the cause of death, is due to shock and
hemorrhage as a result of head injury sustained. The
Doctor has also stated that, the injuries are ante-mortem
in nature. The said evidence of Doctor corroborates with
the Inquest Panchnama drawn by the PW.12-Investigation
Officer as per Ex.P.7. Further, PWs.8 and 9 who are the
witness for Inquest Panchnama-Ex.P.7 also identified 4
injuries found on the dead body of the deceased. Hence,
on a conjoint reading of the evidence of Doctor i.e., P.W.1
and the Post-Mortem report at Ex.P.1 and so also, the
- 17 -
NC: 2024:KHC-D:3822
contents of Ex.P.7- inquest panchanama along with the
evidence of P.W.7 and P.W.8, I am of the considered view
that, the prosecution has proved the unnatural death of
the deceased in this case.
15. In order to prove the charges leveled against
the accused, the prosecution has mainly relied on the
evidences of P.W.3-complainant, P.W.5-wife of the
deceased, P.W.6 -wife of the complainant and P.W.7 -
daughter of the complainant. On careful perusal of the
evidence of all these witnesses, they have categorically
deposed that, the accused being the tenant of P.W.3, had
failed to pay rent due for a period of two months. As such,
on the date of incident, the P.W.6 demanded the rent from
the accused and at that point of time, he started to quarrel
with P.W.6. On hearing the same, P.W.3 went upstairs i.e.
in front of the house of the accused and accused has also
abused her. Subsequently, on hearing the hue and cry of
accused and P.W.3, P.W.6 and P.W.7 went to the said
spot. At that time, the accused once again abused them in
- 18 -
NC: 2024:KHC-D:3822
filthy language and pushed P.W.7 i.e. the daughter of the
P.W.3. Hence, the deceased being the brother of P.W.3
questioned the act of the accused and enraged by the
same, the accused pushed him and resultantly he fell on
the staircase and sustained head injuries. Thereafter, they
shifted the injured to the hospital, but he succumbed to
the injuries on the same day in the evening at about 6.30
pm.
16. Before analyzing the above evidence deposed
by the witnesses, it is relevant to extract the provisions
under Sections 299 and 300 of IPC.
"299. Culpable homicide - Whoever causes
death by doing an act with the intention of causing
death, or with the intention of causing such bodily
injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause
death, commits the offence of culpable homicide."
Explanation 1 - A person who causes bodily
injury to another who is laboring under a disorder,
disease or bodily infirmity, and thereby accelerates
the death of that other, shall be deemed to have
caused his death.
Explanation 2 - Where death is caused by
bodily injury, the person who causes such bodily
- 19 -
NC: 2024:KHC-D:3822
injury shall be deemed to have caused the death,
although by resorting to proper remedies and skilful
treatment the death might have been prevented.
Explanation 3 - The causing of the death of
child in the mother's womb is not homicide. But it
may amount to culpable homicide to cause the death
of a living child, if any part of that child has been
brought forth, though the child may not have
breathed or been completely born.
300. Murder - Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention
of causing death, or -
Secondly - If it is done with the intention of
causing such bodily injury as the offender knows to
be likely to cause the death of the person to whom
the harm is caused, or -
Thirdly - If it is done with the intention of
causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or -
Fourthly - If the person committing the act
knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily
injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of
causing death or such injury as aforesaid.
When culpable homicide is not murder -
- 20 -
NC: 2024:KHC-D:3822
Exception 1-***
Exception 2-***
Exception 3-***
Exception 4.--Culpable homicide is not murder if
it is committed without premeditation in a
sudden fight in the heat of passion upon a
sudden quarrel and without the offender's having
taken undue advantage or acted in a cruel or
unusual manner.
Explanation.--It is immaterial in such cases
which party offers the provocation or commits
the first assault.
17. Hence, on perusal of the above provisions, in
order to attract the offence under Section 304 Part II of
IPC, the act of the accused has to come within the ambit
of exception 4 of Section 300 of IPC. Which clarifies that,
the accused must have knowledge that, the act committed
by him could result the death of the deceased and also the
culpability on the mind of the accused before commission
of the said act.
- 21 -
NC: 2024:KHC-D:3822
18. On careful perusal of the evidence of the above
witnesses, they categorically deposed that, the incident
has caused when P.W.6 approached the deceased while
demanding rent and the same was caused in a spur of
moment without any premeditation on the part of the
accused. Nevertheless, it is the specific case of the
prosecution that, the accused pushed the deceased by
hand. Moreover, the Doctor who conducted the post-
mortem, in his examination has admitted that, 'if a person
pushes from a floor and if he rolls on the steps, there are
possibilities of injuries stated above'.
19. Further, on perusal of Ex.D.1 and Ex.D.2 i.e.,
statements given by P.W.6 and P.W.7, before the
Investigating Officer would clearly indicate that, the
accused had no such intention or knowledge to commit
the murder of the deceased and the entire incident has
caused in a spur of moment without any such
premeditation on the part of the accused. Hence, in order
to convict the accused for the offences under Section 304
- 22 -
NC: 2024:KHC-D:3822
Part II of IPC, as discussed supra, the prosecution has
failed to place sufficient evidence to prove the knowledge
or culpability on the part of the accused to take away the
life of the deceased. The Hon'ble Apex Court in the case of
Jani Gulab Shaikh Vs. State of Maharashtra, reported
in AIR Online 1969 SC 76, has held in paragraph Nos.6
and 7 as under:
"6. The question that arises is whether the accused is
guilty under Section 304, part II, Section 325 or Section
323, I. P. C, In our opinion the High Court erred in
holding that Section 304, part II, applied, The High Court
observed :
"We are of the opinion that the accused must be
deemed to know that as a result of such forcible
push death could have been the likely result.
The accused must be deemed to know that the
deceased was likely to fall on the cement
concrete road and that the force which he was
actually using was likely to result in fatal
injuries to the deceased. Therefore, though the
accused did not intend to cause the death of the
deceased and did not intend to cause him
injuries sufficient in the ordinary course of
nature to cause his death and did not intend to
cause him injuries which were likely to cause
- 23 -
NC: 2024:KHC-D:3822
death, at any rate, he must be posted with the
knowledge that death was likely to result in the
circumstances in which the injuries were caused
by him to the deceased."
We are unable to agree with High Court that the
accused must be posted with the knowledge that death
was likely to result in the circumstances the injuries were
caused by him to the deceased. It is very rarely that if a
man is pushed and he falls on the road the occipital bone
gets fractured. Here it is perhaps due to the drunken
condition of the deceased that while falling he could not
avoid his skull falling on the road At any rate, in our
opinion it is difficult to impute knowledge to the accused
that death was likely to result by the push he is alleged to
have given.
7. If he is not guilty under Section 304, part II, he cannot
be convicted under Section 325, because no grievous
injury has been inflicted by the accused. There is no
evidence to show that injury no. (iii) in column 19 was
grievous."
20. On perusal of the dictum laid down by the
Hon'ble Apex Court in the Judgment cited supra, the facts
and circumstances discussed in the above cited decision
would squarely apply to the case on hand. Hence, in my
examined view the learned Sessions Judge has erred in
- 24 -
NC: 2024:KHC-D:3822
convicting the accused for the offence punishable under
Section 304 Part II of IP.
21. On over all examination of the evidence
discussed supra, since, the incident of alleged quarrel took
place in the house of PW.3, which is also proved by the
evidence of PWs.3,5,6 and 7 and act of the accused
pushing the deceased is also proved by the prosecution by
leading cogent evidence. However, by applying above
dictum laid down by the Hon'ble Apex Court, the
prosecution has failed put forth the knowledge or intention
on the part of the accused to connect him to the
culpability of the death of the deceased. It cannot be at
any stretch of imagination be presumed that, accused had
knew, the act committed by him is likely to cause death of
the deceased. In such circumstance, in my opinion,
learned trial Judge has erred in holding that the accused
has committed an offence punishable under Section 304
Part II of IPC. However, as stated supra, the act of the
accused in pushing the deceased during the quarrel, has
- 25 -
NC: 2024:KHC-D:3822
been proved by the prosecution and the same when
viewed with the decision of the Hon'ble Apex Court in Jani
Gulab Shaikh's case supra, would attract the provisions
of section 323 of IPC. In the result, by proceeding to
answer the above raised question in the affirmative and
negative, I pass the following-
ORDER
i. The appeal is allowed-in-part;
ii. The impugned Judgment of Conviction and
Order of Sentence passed in S.C.No.72/2012
dated 15.12.2015 by the Principal District and
Sessions Judge, Ballari, is modified.
Consequently, the conviction against the
accused for the offence punishable under
Section 304 part II of IPC is altered to offence
punishable under Section 323 of IPC;
- 26 -
NC: 2024:KHC-D:3822
iii. The accused is convicted for the offence
punishable under Section 323 of IPC instead of
304 Part II of IPC.
iv. The Accused is sentenced for the period he has
already undergone incarceration i.e., 41 days
for the offence punishable under Section 323 of
IPC.
v. Bail bonds executed by the accused stands
cancelled.
Sd/-
JUDGE
PJ
Svh
