Karnataka High Court

Saleema vs State Of Karnataka By on 25 November, 2024

Author: K.Somashekar

Bench: K.Somashekar

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                                                       NC: 2024:KHC:48238-DB
                                                       CRL.A No. 152 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                         DATED THIS THE 25TH DAY OF NOVEMBER, 2024
                                           PRESENT
                            THE HON'BLE MR JUSTICE K.SOMASHEKAR
                                             AND
                             THE HON'BLE MR JUSTICE S RACHAIAH
                             CRIMINAL APPEAL NO. 152 OF 2017 (C)
                   BETWEEN:

                   SALEEMA W/O THOUFIK
                   AGED ABOUT 30 YEARS
                   HOLALKERE TOWN
                   CHITRADURGA DISTRICT - 577 526.
                                                                ...APPELLANT
                   (BY SRI. M SHASHIDHARA, ADVOCATE)

                   AND:

                   1.    STATE OF KARNATAKA BY
                         HOLALKERE POLICE STATION
                         REPRESENTED BY SPP, HIGH COURT OF KARNATAKA
                         AT BENGALURU - 560 001.
Digitally signed
by                 2.    SMT. JAYAMMA W/O NARASIMHAMURTHY
SREEDHARAN
BANGALORE                AGED ABOUT 50 YEARS
SUSHMA
LAKSHMI                  R/A GANAPATHI ROAD, BALEGARAHATTI,
Location: HIGH           HOLALKERE, TOWN, CHITRADURGA - 577 526.
COURT OF
KARNATAKA                                                   ...RESPONDENTS

                   (BY SRI. VIJAYAKUMAR MAJAGE, SPP-II FOR R1;
                       SMT. SUMATHI PAULIN M, ADVOCATE FOR R2)
                       (AMICUS CURIAE V/C/O DATED 31/7/24) (THROUGH VC)

                        THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
                   SET ASIDE THE ORDER OF CONVICTION AND SENTENCES
                   DATED 28/11/2016, PASSED BY SPECIAL 2ND ADDITIONAL
                   DISTRICT AND SESSIONS JUDGE, AT CHITRADURGA, IN SPL.C
                   (SC/ST) NO.21/2015 AND ETC.,
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                                            NC: 2024:KHC:48238-DB
                                            CRL.A No. 152 of 2017




     THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR
FINAL HEARING, COMING ON FOR PRONOUNCEMENT THIS
DAY, S RACHAIAH .J, DELIVERED THE FOLLOWING:


CORAM:   HON'BLE MR JUSTICE K.SOMASHEKAR
         and
         HON'BLE MR JUSTICE S RACHAIAH

                    CAV JUDGMENT

(PER: HON'BLE MR JUSTICE S RACHAIAH)

1. This appeal is filed by the appellant who has been

convicted by the Trial Court vide its order dated

28.11.2016 in Spl.C No.(SC/ST) No.21/2015 on the file of

Special II Additional District and Sessions Judge at

Chitradurga wherein the accused has been convicted for

the offences under Section 302, 323 and 504 of IPC read

with Section 3(2)(v) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) (for short,

SC/ST [POA]) Act, 1989.

2. The ranks of the parties in the Trial Court will be

considered henceforth for convenience.

Brief facts of the case:

3. The appellant herein was the tenant of the deceased.

She was living along with the family in the rented

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premises. There was a strained relationship between the

landlord and the tenant. They were not in good terms and

also there were frequent quarrels between them even for

trivial issues.

4. On 07.07.2015 around about 6.00 p.m., P.W.2-

Smt. Jayamma along with her grand-daughter, P.W.7-

Ranjitha had been to market and they returned to home

around 5.00 p.m., when Chitra who is the grand daughter

of P.W.2 was playing outside the house, the appellant

herein said to have assaulted Chitra. P.W.2 asked the

appellant as to why she had beaten Chitra, the quarrel

ensued between P.W.2 and the appellant.

5. The deceased after hearing noise in front of his house,

came out of the house and tried to pacify the quarrel,

however, he was assaulted by the appellant. It is stated

in the complaint that the appellant after made him to fall

on the ground, started hitting the deceased on his chest

and also squeezing his scrotum. Consequently, the

deceased died while shifting to the hospital. A case came

to be registered against the appellant. The jurisdictional

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police have registered a case in Cr.No.244/2015 for the

offences punishable under Sections as stated supra. After

conducting the investigation, the charge sheet was

submitted.

6. The prosecution in order to prove its case, examined 17

witnesses as P.Ws.1 to 17 and got marked 31 documents

as Exs.P.1 to P31 and identified four material objects as

M.O.1 to 4. The Trial Court after appreciating the oral and

documentary evidence, recorded the conviction for the

above said offences. Hence, this appeal.

7. Heard Sri.M. Shashidhara, learned counsel for the

appellant and Sri. Vijaykumar Majage, learned SPP-II for

respondent No.1 and Smt. Sumathi Paulin M, learned

Amicus Curiae for respondent No.2.

8. It is the submission of the learned counsel for the

appellant that the judgment of conviction and order on

sentence passed by the Trial Court is contrary to the

evidence and also materials on record. Therefore, the

same is liable to be set aside.

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9. It is further submitted that the Trial Court failed to

appreciate that the appellant had no intention to commit

murder of the deceased. The incident occurred due to

sudden provocation and in a spur of moment. When such

being the fact, the Trial Court ought to have convicted the

accused for the lesser offence than the life imprisonment.

10. It is further submitted that the appellant being a woman,

she fought against the deceased when he was trying to

over power her. The accused in order to protect herself,

took defense in such a manner. It is further submitted

that the appellant has not used any weapons to commit

murder of the deceased. Therefore, the conviction for the

offence punishable under Section 302 of IPC may be

reduced to sections 304 Part-I or II of IPC and

punishment may be set off which she had already

undergone. Making such submissions the learned counsel

for the appellant prays to allow the appeal.

11. Per contra, the learned SPP-II vehemently justified the

judgment of conviction passed by the Trial Court and he

further submitted that the Trial Court after appreciating

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the oral and documentary evidence on record opined that

the appellant has committed the offence of murder of the

deceased.

12. It is further submitted that the appellant intentionally

squeezing the scrotum of the deceased and committed

the murder of the deceased. The evidence of P.Ws.2, 7,

8, 9 and 10 are relevant and proper and they are all

consistent in their evidence that the accused committed

murder of the deceased. The ocular evidence has been

corroborated by the medical evidence and the prosecution

has proved the case beyond reasonable doubt. Therefore,

the findings of the Trial Court in recording the conviction

is proper and appropriate and interference with the said

findings may not be necessary. Hence, the conviction

may be upheld and the appeal may be dismissed.

13. Learned Amicus Curiae for respondent No.2 has adopted

the arguments of the learned High Court Government

Pleader and prays to upheld the judgment of conviction

and order on sentence passed by the Trial Court.

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14. After having heard the learned counsel for the respective

parties and also perused the findings of the Trial Court,

the facts of the case are summarized in such a manner

that, the appellant was the tenant of P.W.2. There was a

strained relationship between the landlord and tenant for

the past one year. There were frequent quarrels between

them even on trivial issues.

15. It is stated in the complaint that on 07.06.2015 around

6.00 p.m., the quarrel had taken place between P.W.2

and the appellant on trivial issues. The deceased

interfered to pacify the matter. However, he was

assaulted by the appellant, consequently, he died in the

said incident.

16. As per the evidence of P.Ws. 2, 8, 9 and 10 who are the

eyewitnesses to the incident, the accused made the

deceased to fell on the ground and assaulted him on the

chest as well as squeezing his scrotum. P.W.2 in her

complaint has also mentioned that the accused has

assaulted the deceased on the chest. The medical

evidence which would indicate that the death was due to

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"acute cardiac failure". Even though, the evidence of

eyewitnesses appears to be true that the accused had

assaulted the deceased on the chest, the intention to

commit murder appears to be unnatural. Therefore, it

cannot be inferred that she had an intention to commit

murder of the deceased, therefore, she assaulted on the

vital part of the body.

17. It is needless to say that the eyewitnesses and also

independent witnesses have supported the case of the

prosecution in respect of quarrel and assault. However,

the intention to commit murder has to be gathered from

the attending circumstances. On perusal of the entire

documents and also on re-appreciation of the evidence, it

can be inferred that the facts and circumstances of the

case would indicate that this would come under the

exception-IV to Section 300 of IPC and therefore, it can

be said that the culpable homicide not amounting to

murder.

18. In this context, it is relevant to refer the judgment of the

Hon'ble Supreme Court in the case of N. Ramkumar Vs.

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The State represented by Inspector in

Crl.A.No.2006/2023 dated 06.09.2023 held in the

paragraph-16 which reads thus:

"16. It requires to be borne in mind that the test suggested in the aforesaid decision and the fact that the legislature has used two different terminologies, 'intent' and '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' in equal terms. They are not different things. Knowledge would be one of the circumstances to be taken into consideration while determining or inferring the requisite intent. Where the evidence would not disclose that there was any intention to cause death of the deceased but it was clear that the accused had knowledge that his acts were likely to cause death, the accused can be held guilty under second part of Section 304 IPC. It is in this background that the expression used in Indian Penal Code namely "intention" and "knowledge" has to be seen as there being a thin line of distinction between these two expressions. The act to constitute murder, if in

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given facts and circumstances, would disclose that the ingredients of Section 300 are not satisfied and such act is one of extreme recklessness, it would not attract the said Section. In order to bring a case within Part 3 of Section 300 IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be inflicted. This Court in the case of Pulicherla Nagaraju @ Nagaraja Reddy vs State of Andhra Pradesh, AIR 2006 SC 3010 has observed:

"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters -- plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention.

There may be no premeditation. In fact, there may not even be

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criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section

302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:

(i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation;

(vii) whether there was any prior enmity or whether the deceased was a

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stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion;

(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."

19. On careful reading of the dictum of the Hon'ble Supreme

Court as stated supra, it emerges that to invoke

exception IV to Section 300 of IPC, four requirements

must be satisfied namely., 1. it was a sudden fight, 2.

there was no premeditation, 3. the act was done in a heat

of passion and 4. the assailant had not taken any undue

advantage and acted in a cruel manner.

20. Taking into consideration the essential requirements of

the above said provisions, in the present case, the

accused was quarrelling with P.W.2 on a trivial issue and

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the deceased interfered in supporting P.W.2 and started

quarrelling with accused. The accused though said to

have assaulted the deceased on the chest, it was

committed in a heat of passion and in a sudden fight.

Therefore, we are of the considered opinion that this is a

fit case to invoke exception IV to section 300 of IPC.

21. Moreover, none of the witnesses have spoken that the

accused had assaulted the deceased as he belongs to

scheduled caste. In the absence of such evidence,

invoking section 3(2)(V) of SC/ST (POA) Act would not

arise. Consequently, the conviction in respect of aforesaid

provisions loses its significance. The Trial Court ought to

have appreciated the case on the basis of evidence on

record. As the Trial Court failed to appreciate the

evidence properly, interference with the findings of the

Trial Court is justified and the conviction passed by the

Trial Court is liable to be set aside.

22. As regards, the offences under Sections 323 and 504 of

IPC are concerned, PWs. 2 and 7 namely Smt. Jayamma

and Ranjitha stated to have been assaulted and they

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have sustained injuries and wound certificates have been

produced and marked as Exs.P.22 and 23. As per the

wound certificates, P.Ws. 2 and 7 have sustained injuries

which are simple in nature. Therefore, the findings in

respect of provisions under sections 323 and 504 of IPC

appear to be just and proper. Interference with the

conviction in respect of the aforesaid offences need not

be required.

23. Hence, we proceed to pass the following order:

ORDER

(i) Criminal Appeal is allowed in-part.

(ii) The impugned judgment of conviction and order

on sentence dated 28.11.2016 in Spl.C.(SC/ST)

No.21/2015 on the file of the Special II

Additional District and Sessions Judge at

Chitradurga in respect of offence under Section

302 of IPC is modified and the accused is

convicted for the offence under Section 304

Part-II of IPC.

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(iii) The appellant is sentenced to undergo simple

imprisonment for a period of five years and to

pay fine of Rs.1,00,000/- (Rupees One Lakh

only) and in default of payment, she shall

undergo further simple imprisonment for one

year.

(iv) The conviction in respect of the offences under

Sections 323 and 504 of IPC is maintained as per

the aforesaid judgment of the Trial Court.

(v) All the sentences run concurrently and the