Karnataka High Court

Lingappa And Ors vs The State Of Karnataka on 20 February, 2024

Author: B.M.Shyam Prasad

Bench: B.M.Shyam Prasad

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                              IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                          DATED THIS THE 20TH DAY OF FEBRUARY, 2024

                                           PRESENT

                          THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
                                              AND
                        THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

                               CRIMINAL APPEAL NO.200022/2018
                   BETWEEN:

                   1.   LINGAPPA @ NINGAPPA
                        S/O NAGAPPA LOTTI,
                        AGE: 24 YEARS, OCC: LABOURER,
                        R/O JEGARKAL VILLAGE,
                        TQ & DIST: RAICHUR-584102.
                   2.   JINDAPPA S/O NAGAPPA LOTTI,
                        AGE: 30 YEARS, OCC: LABOURER,
                        R/O JEGARKAL VILLAGE,
                        TQ & DIST: RAICHUR-584102.
                   3.   NARASIMHALU @ NARASAPPA
                        S/O HONNAPPA,
                        AGE: 27 YEARS, OCC: LABOURER,
Digitally signed
by RAMESH               R/O JEGARKAL VILLAGE,
MATHAPATI
Location: HIGH
                        TQ & DIST: RAICHUR-584102.
COURT OF
KARNATAKA                                                   ...APPELLANTS
                   (BY SRI. SHIVANAND PATIL, ADVOCATE)

                   AND:

                        THE STATE OF KARNATAKA,
                        THROUGH RAICHUR RURAL P.S.,
                        REPRESENTED BY
                        ADDL. STATE PUBLIC PROSECUTOR,
                        HIGH COURT OF KARNATAKA,
                        KALABURAGI BENCH-585103.
                                                            ...RESPONDENT
                   (BY SRI. SIDDALING P.PATIL, ADDL. SPP)
                              -2-




      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C, PRAYING TO ADMIT THIS APPEAL AND
CALL FOR THE RECORDS FROM THE TRIAL Court AND SET
ASIDE THE ORDER OF CONVICTION INCLUDING FINE DATED
14.11.2017 PASSED BY PRINCIPAL SESSIONS JUDGE,
RAICHUR, IN SESSIONS CASE NO.135/2013.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 20.02.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, Dr.SUMALATHA CHILLAKUR J.
DELIVERED THE FOLLOWING:

                       JUDGMENT

Questioning the validity and the legality of the

judgment that is rendered by the Court of Principal

District and Sessions Judge, Raichur in S.C.No.135/2013

dated 14.11.2017, the accused therein are before this

Court by way of appeal.

2. Heard Sri.Shivanand Patil, the learned counsel

for the appellants as well as Sri.Siddaling P.Patil, the

learned Addl.SPP who is representing the respondent-

State.

3. The Court of Principal District and Sessions

Judge, Raichur (hereinafter referred to as the 'the Court'

for convenience of discussion) convicted the appellants for

the offences punishable under Sections 341, 504, 506,

323, 324, 353, 332, 427 and 302 r/w Section 34 IPC. The

appellants were sentenced to undergo rigorous

imprisonment for life and to pay fine of Rs.25,000/- each

for the offence punishable under Section 302 r/w 34 IPC.

They were sentenced to pay fine of Rs.500/- each for the

offence punishable under Section 341 r/w 34 IPC. They

were sentenced to pay fine of Rs.1,000/- each for the

offence punishable under Section 504 r/w 34 IPC. They

were also sentenced to undergo simple imprisonment for

one year and to pay fine of Rs.1,000/- each for the offence

punishable under Section 506 r/w 34 IPC. They were

sentenced to pay fine of Rs.500/- each for the offence

punishable under Section 323 r/w 34 IPC. They were

sentenced to undergo simple imprisonment for six months

and to pay fine of Rs.1,000/- each for the offence

punishable under Section 324 r/w 34 IPC. They were

further sentenced to undergo simple imprisonment for six

months and to pay fine of Rs.500/- each for the offence

punishable under Section 353 r/w 34 IPC. They were also

sentenced to undergo simple imprisonment for one year

and to pay fine of Rs.1,000/- each for the offence

punishable under Section 332 r/w 34 IPC. Also they were

also sentenced to pay fine of Rs.500/- each for the offence

punishable under Section 427 r/w 34 IPC. It was ordered

that the above substantive sentence shall run

concurrently.

4. The case of the prosecution if narrated in a

narrower compass is that the deceased Sharanappa

(hereinafter referred to as the 'deceased' for brevity) is the

father-in-law of appellant No.1. Appellant No.2 is the elder

brother of appellant No.1. Appellant No.3 is the son of the

maternal uncle of appellant Nos.1 and 2. All the appellants

would be herein after referred to as the 'accused'. Accused

No.1 married the third daughter of deceased by name

Umadevi and the said marriage was against the wishes of

deceased. On 30.05.2013, the deceased performed the

marriage of his fourth daughter by name Bharati and all

the relatives were invited for the said marriage including

the family of his third daughter Umadevi who is wife of

accused No.1. However, accused No.1 did not attend the

said marriage. He sent his wife. After completion of

marriage ceremony, on 05.06.2013 in the morning, the

defacto complainant who is younger brother of deceased

and others were sitting infront of the house of deceased. At

about 12.45 p.m., all the accused approached the said

place. They were armed with one pestle and sticks. They

abused the deceased stating that he did not invite them

properly for the marriage. They broke open the door and

assaulted the deceased. Accused No.1 hit the deceased

with the pestle and accused Nos.2 and 3 assaulted the

deceased with sticks. The deceased sustained grievous

injuries and fell unconscious. All the accused abused the

inmates of the house and assaulted them, when they went

to rescue of the deceased. For shifting the deceased to

hospital, 108 Ambulance was secured. However, the

accused obstructed and prevented the relatives from

shifting the deceased to hospital. They pelted stones on

the ambulance and assaulted the driver of the ambulance

and the nurse. After hearing that police are approaching,

they fled away. The defacto complaint and others lifted the

deceased to ambulance and while he was being shifted to

hospital, he succumbed to injuries.

5. Basing on the complaint given, a case was

registered in Crime No.175/2013 of Raichur Rural Police

Station. Investigation was taken up. The dead body was

subjected to post mortem examination after the inquest.

Spot mahazar was drawn. The accused were arrested and

remanded to judicial custody. Basing on the voluntary

statement of the accused, the weapons used for the

commission of the offence were recovered. Also the blood

stained clothes of accused No.1 were recovered. The

incriminating material was sent to Forensic Science

Laboratory for examination. The injured were sent to

hospital for treatment.

6. Trial commenced on framing of charges for the

offences punishable under Sections 341, 504, 506, 323,

324, 353, 332, 427 and 302 r/w Section 34 IPC. The

prosecution in order to establish the guilt of the accused

examined 27 witnesses on its side and got marked 32

material documents and 9 material objects. Though no

evidence was led by the accused, Exs.D1 and D2 were got

marked through PW.7. The trial Court on subjecting the

said evidence to scrutiny, came to a conclusion that the

prosecution established the guilt of the accused beyond all

reasonable doubt and accordingly convicted them for

those charges.

7. The accused preferred the present appeal on

the following grounds:

(a) That the witnesses examined by the

prosecution are interested and close relatives of

the deceased Sharanappa and therefore their

evidence cannot be relied upon.

(b) Accused No.3 sustained injury during the

course of incident and the said fact was

suppressed by the prosecuting agency and even

the Investigating Officer did not investigate on

that point.

(c) The case does not fall within the ambit of

Section 302 IPC.

(d) The motive for committing the offence is not

established.

(e) There is no animosity between the deceased

and accused.

(f) There are number of discrepancies in the case

of the prosecution and those discrepancies goes

to the root of the case but the trial Court

ignored the said fact.

(g) The trial Court did not appreciate the fact that

PWs.18 and 19 i.e., the driver of the ambulance

and nurse failed to support the case of the

prosecution.

(h) The reasons assigned for convicting are

incorrect and illegal and the same resulted in

miscarriage of justice.

8. The appellate Court in the ordinary course is

required to deal with each and every point raised by the

accused and answer accordingly. However, the learned

counsel for the accused stressed upon and requested the

Court to consider only the fact that the case does fall

within the ambit of either part I or part II of Section 304

IPC but under no circumstances under Section 302 IPC.

Thus, the points that emerges for consideration are:

(i) Whether the prosecution established beyond all reasonable doubt that the accused committed the offence of culpable homicide amounting to murder as defined under Section 300 IPC, which is punishable under Section 302 IPC?

(j) Whether there exists any infirmity in the judgment of the trial Court either in appreciating the facts of the case or in applying the established principles of law as required to be applied.

Point Nos.1 and 2:

9. The case of the prosecution as earlier indicated

is that the accused No.1 who is the son-in-law of the

deceased, being aggrieved that his family members were

not properly invited for the marriage of fourth daughter of

the deceased, approached the deceased on the date of the

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incident along with his relatives i.e., accused Nos.2 and 3

armed with deadly weapons and inflicted grievous injuries,

assaulted the inmates of the house who went to the rescue

of the deceased, caused injuries to them too and prevented

them from shifting the deceased to hospital and during

that course caused damage to the ambulance and further

assaulted the driver and the nurse. Though it is contended

in the ground of appeal that the evidence of the relatives

and the interested cannot be relied upon to pass the

judgment of conviction, the said point was not seriously

stressed by the learned counsel for the accused before this

Court. Also the established principles of law is that the

evidence of an injured witness carries more weight and it

cannot be discarded on the ground that the said injured

witness is related to the deceased. The whole case of the

prosecution is that while the deceased and his relatives

were sitting and chit-chatting, the accused approached

them armed with deadly weapons and attacked the

deceased at the first instance and thereafter the other

relatives.

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10. In the case on hand, the material witnesses

except the alleged driver of the ambulance and nurse who

were examined as PWs.18 and 19 respectively supported

the case of the prosecution and gave consistent

statements with regard to the happening of the incident

and the manner in which the incident occurred. The fact

that the deceased succumbed to the injuries is not in

dispute. By examining the doctor who conducted post

mortem examination and by producing Ex.P9 post mortem

report, the prosecution emerged successful in establishing

that the deceased died due to intracranial hemorrhage as

a result of blunt injury to head leading to cardio

respiratory failure. The injuries were recorded in the post

mortem report. The evidence produced, made abundantly

clear that due to the injuries sustained the deceased lost

his life. Also by all the evidence produced, the prosecution

has made it clear that those injuries were caused by the

accused. Now the point that has to be discussed is

whether the accused carried required motive or intention

to kill the deceased and thereby attacked him. It should

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also be seen whether the accused at that particular point

of time had knowledge that by their acts they are likely to

cause the death of the deceased. Section 299 of IPC which

defines 'culpable homicide' reads as under:

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.

11. In case the case false within the four categories

as enunciated under Section 300 IPC, culpable homicide

becomes murder and if it falls under any of the five

exceptions given there under, it would be culpable

homicide which does not amount to murder. Learned

counsel for the appellants stressed upon and argued at

length that the case falls within the ambit of Exception 4

to Section 300 IPC. Exception 4 to Section 300 IPC reads

as under:

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Exception 4.- Culpable homicide is not murder if it

is committed without premeditation in a sudden

fight in the heat of passion upon a sudden quarrel

and without the offender having taken undue

advantage or acted in a cruel or unusual manner.

12. Undisputedly, the house of the accused is

located three houses away from the house of the deceased.

Also it is not in dispute that the accused No.1 married the

third daughter of the deceased by name Umadevi against

the wishes of the deceased. Further, it is not in dispute

that the whole incident went on as the accused No.1 was

aggrieved that he was not invited property by the deceased

for the marriage of his fourth daughter. One point that

lost sight by the trial Court is that the third accused

sustained injury during the course of incident. PW.3-

Smt.Pantemma, who is none other than the wife of

deceased during the course of cross-examination stated

that when she assaulted accused No.3 with a stone, he

sustained injury. The accused are three in number. The

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persons present at the house of deceased at the time of

incident including the deceased are more than three. By

all the evidence that is brought on record, it is clear that

the incident started with abusation against each other,

turned violent, ultimately the accused attacked the

deceased causing injuries and also caused injuries who

went to the rescue of the deceased during the course of

incident. By the evidence of PW.3, it is clear that the

accused were also attacked PWs.18 and 19 i.e. driver of

the ambulance and nurse who came along with

ambulance failed to support the case of the prosecution.

They pleaded ignorance with regard to the persons who

caused damage to the ambulance. As per the post mortem

report, the intracranial hemorrhage which resulted due to

head injury lead to cardio respiratory failure. Also by the

evidence that is brought on record, it is clear that the said

injury was caused by the first accused. No convincing

material is found on record to hold that the accused Nos.1

to 3 carried common intention to cause the death of the

deceased. Though, it is clearly brought on record that they

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carried deadly weapons i.e., pestle so far as accused No.1

is concerned and sticks so far as accused Nos.2 and 3 are

concerned, having regard to the manner in which the

incident occurred, we are of the considered view that

infliction of grievous injury which resulted in the death of

deceased could be in a heat of passion without any

premeditation to cause death.

13. With a submission that the case clearly falls

within the ambit of Section 304 (2) IPC, learned counsel

for the accused relied upon the decision of the Hon'ble

Apex Court in the case between Anbazhagan Vs. The

State represented by the Inspector of Police, which is

reported in AIR 2023 SC 3660. The learned counsel

submits that the facts of the case on hand are identical to

the facts of the case in the said judgment. The

observations made by their lordships in the judgment

referred supra more particularly at paragraph Nos.61 to

63 are as under:

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"61. We once again recapitulate the facts of this case. On the fateful day of the incident, the father and son were working in their agricultural field early in the morning. They wanted to transport the crop, they had harvested and for that purpose they had called for a lorry. The lorry arrived, however, the deceased did not allow the driver of the lorry to use the disputed pathway. This led to a verbal altercation between the appellant and the deceased. After quite some time of the verbal altercation, the appellant hit a blow on the head of the deceased with the weapon of offence (weed axe) resulting in his death in the hospital.

62. Looking at the overall evidence on record, we find it difficult to come to the conclusion that when the appellant struck the deceased with the weapon of offence, he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. The weapon of offence in the present case is a common agriculture tool. If a man is hit with a weed axe on the head with sufficient force, it is bound to cause, as here, death. It is true that the injuries shown in the post mortem report are fracture of the parietal bone as well as the temporal bone. The deceased

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died on account of the cerebral compression i.e. internal head injuries. However, the moot question is - whether that by itself is sufficient to draw an inference that the appellant intended to cause such bodily injury as was sufficient to cause death. We are of the view that the appellant could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause the death. It is in such circumstances that we are inclined to take the view that the case on hand does not fall within clause thirdly of Section 300 of the Indian Penal Code.

63. In the aforesaid view of the matter and more particularly bearing the principles of law explained aforesaid, the present appeal is partly allowed. The conviction of the appellant under Section 304 Part I of the Indian Penal Code is altered to one under Section 304 Part II of the Indian Penal Code."

14. When 'culpable homicide' is 'genus', 'murder' is

'species'. All murder is culpable homicide but not vice-

versa. In the famous case of State of Andhra Pradesh Vs.

Rayavarapu Punnayya which is reported in (1976) 4

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SCC 382, the Hon'ble Apex Court discussing the

distinction between the offence 'culpable homicide

amounting to murder' and 'culpable homicide which does

not amount to murder' held as under:

"Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304."

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15. In the case on hand, the evidence brought on

record does not disclose that the accused carried intention

to cause death. So far as accused No.1 is concerned, it is

he who hit the deceased on his parietal as well as

zygomatic regions which ultimately became fatal causing

the death of the deceased. Thus, it has to be held that he

had knowledge that the force with which he hit the

deceased that too on the vital parts of the body was likely

to cause his death. Therefore, the case certainly falls

within the ambit of Section 304 Part II IPC so far as

accused No.1 is concerned. The prosecution failed to