Karnataka High Court
Somachandra @ Somashekara vs The State Of Karnataka on 29 October, 2024
Author: K.Somashekar
Bench: K.Somashekar
-1-
NC: 2024:KHC:43694-DB
CRL.A No. 1873 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1873 OF 2017 (C)
BETWEEN:
SOMACHANDRA @ SOMASHEKARA
S/O LAKSHMINARAYANAPPA,
AGED ABOUT 37 YEARS
R/O SHEEGEHALLI VILLAGE,
YELDUR HOBLI, SRINIVASAPURA TALUK
KOLAR DISTRICT-563 138.
...APPELLANT
(BY SRI. M. SHASHIDHARA, ADVOCATE)
AND:
Digitally signed by THE STATE OF KARNATAKA
MAYAGAIAH BY SRINIVASAPURA POLICE STATION,
VINUTHA
Location: HIGH (REP. BY THE LEARNED STATE
COURT OF PUBLIC PROSECUTOR)
KARNATAKA
...RESPONDENT
(BY SRI. VIJAYKUMAR MAJAGE, SPP-II)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 10.05.2017
PASSED BY PRINCIPAL SESSIONS JUDGE KOLAR IN
S.C.NO.218/2014 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 302 OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-2-
NC: 2024:KHC:43694-DB
CRL.A No. 1873 of 2017
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K)
This appeal filed by the convicted accused/appellant is
directed against the judgment of conviction dated 10.05.2017
and order of sentence dated 11.05.2017 passed in
S.C.No.218/2014 by the Principal Sessions Judge at Kolar,
wherein the learned Sessions Judge convicted the appellant for
the offence punishable under Sections 302 of IPC and
sentenced him to undergo rigours imprisonment for life and to
pay a fine of Rs.60,000/-.
2. The brief facts of the prosecution case are that, the
appellant/accused is the husband of deceased Yashoda. Their
marriage was solemnized 12 years prior to the date of incident
and out of the said wedlock, they begotten two children namely
Adharsh, aged about 6 years and Manasa, aged about 10
years. They all were residing at Seegehalli village. Since four
to five years prior to the incident, the accused addicted to bad
vices such as consuming liquor and without attending to the
work, he used to quarrel with deceased Yashoda for the reason
that the deceased questioned the accused as to why he pledged
NC: 2024:KHC:43694-DB
the motor cycle. Such being the scenario, on 18.06.2014 at
midnight 12'O clock, when the deceased Yashoda was sleeping
in her house along with her children i.e., PW.2 and PW.3, the
accused entered the house, which belonged to one
Lakshminarayana situated at Yeldur village bearing Sy.No.142,
from the roof of kitchen through chimney with an intention to
commit the murder of deceased Yashoda and started quarrel
with her, assaulted her with the wooden billet (ªÀÄgÀzÀ vÀgÁ¬Ä vÀÄAqÀÄ)
on her face & head and committed her murder. The said
incident was witnessed by PW.2 and PW.3 i.e., the children of
the deceased Yashoda, who were in the house. After
commission of the incident, the accused fled away from the
spot. Subsequently, PW.1 i.e., the father of the deceased
Yashoda lodged the complaint on 19.06.2014 at about 9.30
a.m. against the accused before the respondent-police as per
Ex.P1. Based on the same, the respondent-police registered the
case in Cr.No.167/2014 dated 19.06.2014 against the accused
for the offence punishable under Section 302 of IPC as per
Ex.P22.
3. During the course of investigation, the respondent-
police arrested the accused on 20.06.2014, recorded his
NC: 2024:KHC:43694-DB
voluntary statement, drawn the spot mahazar and also the
recovery mahazar, thereafter, produced him before the learned
JMFC and sent to judicial custody. Later, PW.17-the police
inspector, after conducting the investigation, laid the charge
sheet against the accused for the offence under Section 302 of
IPC before the committal Court.
4. After committal of the case before the learned
Sessions Court, by securing the presence of the accused,
learned Sessions judge framed the charges against the accused
for the offence punishable under Section 302 of IPC and read
over the same to him. However, the accused denied the
charges and claimed to be tried.
5. In order to prove the charge levelled against the
accused before the trial Court, the prosecution examined in
total 17 witnesses i.e., PW.1 to PW.17 and got marked 25
documents as per Exs.P1 to P25 and also got identified 7
material objects as MO.1 to MO.7.
6. After completion of the prosecution evidence, the
learned Sessions Judge recorded statement under Section 313
of Cr.P.C., wherein the incriminating portion of the evidence
NC: 2024:KHC:43694-DB
read over to the accused and the accused denied the same. The
defence of the accused is one of total denial and that of false
implication.
7. After assessment of the oral as well as documentary
evidence available on record, the learned Sessions Judge
convicted the accused for the aforesaid offence charged against
him. The said judgment is challenged under this appeal.
8. We have heard the argument of
Sri M.Shashidhara, learned counsel for the accused and also
Sri Vijayakumar Majage, learned SPP-II for the respondent-
State and perused the records i.e., the impugned judgment and
the record secured from the trial Court.
9. Sri M.Shashidhara, learned counsel for the accused,
vehemently, contended that the judgment and order challenged
under this appeal suffers from perversity and illegality and the
learned Sessions Judge convicted the accused for the offence
as stated supra without appreciating the evidence and material
available on record. As such, the judgment and order
challenged under this appeal is liable to be set aside. He would
contend that in order to prove the guilt of the accused, the
NC: 2024:KHC:43694-DB
prosecution relied on the evidence of PW.2 and PW.3 i.e., the
children of the deceased Yashoda said to be the eye witnesses
to the incident. But on careful perusal of their evidence, there
are much contradiction and omission and in their cross-
examination, they both specifically admitted that at the time of
incident, they both were sleeping and woke up in the next day
morning. Thereafter, they came to know that their father
committed the murder of their mother. Hence, the version of
these witnesses cannot solely be relied to convict the accused.
He would further contend that though PW.4 supported the case
of prosecution, he came to the spot after the incident. Hence,
he is not an eye witness to the incident. Further, the
prosecution also failed to prove the recovery of MO.6 and MO.7
i.e., the clothes worn by the accused at the time of the incident
under Ex.P12 for the reason that the evidence of PW.9 and
PW.11 are contradictory to each other. Hence, he prays to
allow the appeal by setting aside the judgment of conviction
and order of sentence.
10. Alternatively, he would submit that, taken together
all the evidence and circumstances on the face of it, at the
highest, the accused could be convicted for the offence of
NC: 2024:KHC:43694-DB
culpable homicide not amounting to murder under Section 304
Part I of IPC since the alleged incident caused in a spur of
moment for the reason that the deceased was having illicit
affair with a person of their village namely Sadakath. Further,
on 18.06.2014, in the evening hours, the deceased was with
the company of the said Sadakath in a bush near the school
situated at their village. As such, the accused advised her not
to indulge in such activity. However, on the same night, the
deceased closed the main door of the house and made the
accused to sleep outside the house till 12'O clock night. Though
he entered the house through the kitchen chimney and
requested the deceased not to indulge in any such activity, but
she kicked him and also abused him in filthy language. Hence,
enraged by her act, all of a sudden, the accused took a wooden
billet from the kitchen and assaulted on her. Therefore, the
entire incident caused in a spur of moment without any such
premeditation and the same squarely comes within the
definition of Exception 4 to Section 300 of IPC which is
punishable under Section 304 Part I of IPC.
11. Refuting the above submissions made by the
learned counsel for the accused, Sri Vijayakumar Majage,
NC: 2024:KHC:43694-DB
learned Additional SPP-II would vehemently contend that the
judgment under appeal does not suffer from any perversity or
illegality and the learned Sessions Judge, after appreciating the
entire evidence and material available on record, has rightly
convicted the accused for the charges leveled against him. He
would further contend that the evidence of PW.2 and PW.3 i.e.,
the children of the deceased and the accused, proved the case
of the prosecution beyond reasonable doubt since both these
witnesses have categorically deposed the manner in which the
accused committed the crime. He would further contend that
the evidence of these witnesses also supported by the evidence
of PW.1 i.e., the father of the deceased and PW.14 i.e., the
mother of the deceased. The said PW.13 also supported the
case of the prosecution. According to the learned SPP, the
prosecution also proved the recovery of blood stained clothes of
the accused worn at the time of the incident i.e., MO.6 and
MO.7 under Ex.P12 by the evidence of PW.9 and PW.11. Hence,
all the material witnesses have supported the case of the
prosecution. He further contend that learned Sessions Judge
has rightly convicted the accused for the charges leveled
against him. Hence, he prays to dismiss the appeal.
NC: 2024:KHC:43694-DB
12. We have bestowed our anxious consideration on the
oral and documentary evidence placed before us and also
meticulously perused the material available on record including
the trial Court records.
13. Having heard the learned counsel for the accused
and the learned SPP-II for the State, the points that would
arise for our consideration are:
(i) Whether the judgment of conviction and
order of sentence challenged under this appeal
suffers from perversity and illegality?
(ii) Whether the learned Sessions Judge is
justified in convicting the appellant/accused for the
offence punishable under Sections 302 of IPC?
14. On careful re-appreciation of the entire evidence on
record, in order to prove the homicidal death of deceased
Yashoda, the prosecution relied on the post mortem report
Ex.P20, conducted by the Medical Officer, General Hospital,
Srinivasapura. The said post mortem report marked in the
evidence of Investigation Officer i.e., PW.17, with the consent
of the defence counsel. On careful perusal of Ex.P20, it depicts
that the deceased sustained five injuries on her body and two
multiple fractures. The doctor opined that the injuries sustained
- 10 -
NC: 2024:KHC:43694-DB
by the deceased are ante mortem in nature and also opined
that the death is due to shock and haemorrhage as a result of
injury to vital organ brain. Nevertheless, the prosecution also
relied on Ex.P11 i.e., inquest panchanama drawn on the dead
body of the deceased by the investigation officer in the
presence of PW.7. The said witness identified the injuries on
the dead body. Hence, on a conjoint reading of the contents of
Exs.P20 and P11 so also the evidence of PW.7 and PW.17, we
are of the considered view that the prosecution has proved the
homicidal death of the deceased beyond reasonable doubt.
15. In order to connect the accused to the homicidal
death of the deceased, the prosecution mainly relied on the
evidence of PW.1-the father of the deceased i.e., the
complainant, who reiterated the contents of Ex.P1 and stated
that the marriage of the accused and the deceased was love
marriage and out of the said wedlock, they begotten two
children and thereafter, the accused indulged in bad vices, as
such, started to quarrel with the deceased. On 19.06.2014, the
alleged incident was informed to him by the grandchildren i.e.,
PW.2 and PW.3. Accordingly, he lodged the complaint. He also
identified MO.1 to MO.6 seized under spot mahazar-Ex.P12.
- 11 -
NC: 2024:KHC:43694-DB
Further, the prosecution mainly relied on the evidence of PW.2
and PW.3, who are the star witnesses in this case, none other
than the children of the deceased and the accused. They being
the eye witnesses to the incident, categorically deposed in their
evidence that on the date of incident, they both slept in the
house along with their mother i.e., deceased Yashoda and in
the late night, the accused assaulted the deceased with the
wooden billet on her forehead, face and leg and he fled away
from the spot. Thereafter, they informed the same to PW.4-the
neighbour so also grandfather i.e., PW.1. On careful perusal of
the evidence of these two witnesses, though some
contradictions are forthcoming in their cross-examination in
respect of the incident, however, the same does not go to the
root of the prosecution case. As such, there is no reason to
discard/disbelieve the evidence of PW.2 and PW.3. Learned
counsel for the appellant submitted that since there are
material contradictions in their evidence, their testimony cannot
be relied to convict the accused. The Hon'ble Apex court in the
case of in the case of Raj Kumar Singh v. State of
Rajasthan reported in (2013) 5 SCC 722 held in Paragraph
43 as under:-
- 12 -
NC: 2024:KHC:43694-DB
"43. While appreciating the evidence of a
witness, minor discrepancies on trivial matters,
which do not affect the core of the case of the
prosecution, must not prompt the court to reject the
evidence thus provided, in its entirety. The irrelevant
details which do not in any way corrode the
credibility of a witness, cannot be labelled as
omissions or contradictions. Therefore, the courts
must be cautious and very particular in their exercise
of appreciating evidence. The approach to be
adopted is, if the evidence of a witness is read in its
entirety, and the same appears to have in it, a ring
of truth, then it may become necessary for the court
to scrutinise the evidence more particularly, keeping
in mind the deficiencies, drawbacks and infirmities
pointed out in the said evidence as a whole, and
evaluate them separately, to determine whether the
same are completely against the nature of the
evidence provided by the witnesses, and whether the
validity of such evidence is shaken by virtue of such
evaluation, rendering it unworthy of belief.
"9. Exaggerations per se do not render
the evidence brittle. But it can be one of
the factors to test the credibility of the
prosecution version, when the entire
evidence is put in a crucible for being
tested on the touchstone of credibility."
It is in fact, the entirety of the situation
which must be taken into consideration. While
appreciating the evidence, the court must not attach
undue importance to minor discrepancies, rather
must consider broad spectrum of the prosecution
version. The discrepancies may be due to normal
errors of perception or observation or due to lapse of
memory or due to faulty or stereotype investigation.
After exercising such care and caution, and sifting
through the evidence to separate truth from untruth,
embellishments and improvements, the court must
determine whether the residuary evidence is
sufficient to convict the accused."
- 13 -
NC: 2024:KHC:43694-DB
16. Moreover, the evidence of PW.2 and PW.3 cannot
be discarded for the reason that they are the children of the
deceased. There is no reason whatsoever for them to depose
against their own father i.e., the accused. Nevertheless, their
evidence corroborates with the evidence of PW.4-the
neighbour, who visited the spot soon after the incident.
17. Though this case is based on the evidence of direct
eyewitnesses and the motive for the incident does not play
much vital role, nevertheless, the prosecution also proved the
motive for the alleged incident. The evidence of PW.1 and
PW.14 i.e., the parents of deceased Yashoda clearly establishes
that the accused used to quarrel with the deceased before the
incident for the reason that he had pledged the motorcycle with
PW.13. To that effect, PW.13 also supported the case of
prosecution. Hence, it is clear that the accused committed the
incident for the above motive. The prosecution also proved the
recovery of M.O.1 i.e., wooden billet, which said to have been
used by the accused for the commission of the crime. The said
M.O.1 seized under Ex.P12-spot mahazar and PW.8 deposed to
that effect. The prosecution also relied on the evidence of PW.9
and PW.11 to prove the recovery of MO.6 and MO.7 i.e., the
- 14 -
NC: 2024:KHC:43694-DB
blood stained shirt and pant worn by the accused at the time of
incident. PW.9 and PW.11 have categorically stated that the
accused led them and the Police to his house situated at
Seegehalli and handed over MO.6 and MO.7 to the Police.
Hence, the prosecution also proved the recovery of MO.1, MO.6
and MO.7 at the instance of accused. On overall re-appreciation
of the entire evidence on record, we are of the considered view
that the prosecution has proved that the accused is the
perpetrator of the crime and responsible for the homicidal
death of the deceased Yashoda.
18. The alternative contention of the learned counsel for
the accused is that the alleged incident does not fall under the
category of Section 302 of IPC and at the most, it will attract
Exception 4 to Section 300 of IPC, which is punishable under
Section 304 Part I of IPC. Hence, it is appropriate to reiterate
Exception 4 to Section 300 of IPC, which reads as under:
"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.
19. Hence, on plain reading of the above provision,
there are 4 ingredients are required to attract Exception 4 to
- 15 -
NC: 2024:KHC:43694-DB
300 of IPC i.e., (1) There must be a sudden fight, (2). There
was no premeditation, (3) The act was committed in a heat of
passion and (4) The offender had not taken any undue
advantage or acted in a cruel or unusual manner. The
explanation to Exception 4 states that in such cases, it is
immaterial which party gives the provocation or commits the
first assault.
20. By applying the above principles to the facts and
circumstances of the case, admittedly, the accused and the
deceased are none other than the husband and wife. They were
in love and got married each other. Out of their wedlock, they
begotten two children and after their marriage, for about 4
years, they were living cordially. It is the case of prosecution
that before the incident, the accused got the information that
the deceased was with extramarital relationship with one
Sadakath, who was a tempo driver of Yeldur village. On the
date of incident, in the evening hours, the deceased went
outside the house and later the accused noticed that the
deceased was in a compromising position with Sadakath in a
bush near the school at their village. As such, he advised her
not to indulge in such activity. But the deceased abused the
- 16 -
NC: 2024:KHC:43694-DB
accused and closed the main door of the house by making
accused to sleep outside the house. Later, in the midnight, the
accused entered the house through kitchen chimney and once
again advised her not to indulge in illegal activity. At that time,
she kicked him with her leg. Hence, on a sudden provocation,
he assaulted her with a wooden billet which found in the
kitchen. This contention of the learned counsel for the appellant
also narrated in the voluntary statement of the accused so also
in the recovery mahazar.
21. Even by perusal of the evidence of PW.2 and PW.3,
they also categorically deposed that all of a sudden, the
accused assaulted the deceased. There was no such preparation
or intention on the part of the accused to take away her life.
Even PW.1 and PW.14 i.e., the parents of the deceased also
deposed that all of a sudden, the incident was caused. The
weapon used by the accused for the commission of the crime is
a wooden billet which allegedly lying in the kitchen. Hence, by
the above evidence, it could be gathered that there was no
intention or motive on the part of the accused to take away the
life of the deceased. Nevertheless, there was no preparation by
the accused to commit the murder of the deceased. Hence, in
- 17 -
NC: 2024:KHC:43694-DB
such circumstances, the Hon'ble Apex Court in the case of
Rambir vs. State (NCT of Delhi) reported in 2019 (6) SCC
122 held that, 'in a sudden fight, in absence of premeditation,
act committed in a heat of passion if the offender not taken
undue advantage or acted in a cruel or unusual manner, the
conviction can be converted from Section 302 to 304 Part I or II
of IPC. In paragraph 18 of the above judgment, the Hon'ble
Apex Court held as under:
"18. Having regard to the evidence on record,
we are of the view that the case of the appellant falls
within Exception 4 to Section 300 IPC. Further, the
judgment in Surinder Kumar v. State (UT of
Chandigarh) also supports the case of the appellant.
In the aforesaid case, the knife-blows were inflicted
in the heat of the moment, one of which caused
death of the deceased, this Court has held that the
accused is entitled to the benefit of Exception 4. In
the aforesaid judgment, this Court further held that
in a sudden quarrel, if a person, in the heat of the
moment, picks up a weapon which is handy and
causes injuries one of which proves fatal, the
accused would be entitled to the benefit of
Exception 4. We are of the view that the said
judgment supports the case of the appellant and
further having regard to the evidence on record we
are of the view that all the four ingredients which are
- 18 -
NC: 2024:KHC:43694-DB
required to extend the benefit of Exception 4 to
Section 300 IPC, apply to the facts of the case on
hand. Since the occurrence was in sudden quarrel
and there was no premeditation, the act of the
appellant-accused would fall under Exception 4 to
Section 300 IPC. As such, the conviction recorded
against the appellant under Section 302 IPC is liable
to be set aside and is accordingly set aside and the
conviction of the appellant-accused under Section
302 IPC is modified, as the one under Section 304
Part II IPC and we impose a sentence of 10 years'
simple imprisonment on the accused."
22. Further, the Hon'ble Apex Court in the case of
Surinder Kumar vs. Union Territory Chandigarh reported
1989 (2) SCC 217 held that merely because three injuries
caused to the deceased by the accused cannot be said that he
acted in a cruel manner. Where, on a sudden quarrel, a person
in the heat of moment, picks up a weapon which is handy and
causes injuries, one of which proves fatal, he would be entitled
to the benefit of Exception 4 to Section 300 of IPC. The number
of wounds caused during the occurrence is not a decisive factor.
23. In the case on hand, the accused committed the
death of deceased fully knowing that the assault made by him
in a wooden billet on the forehead and face of the deceased
- 19 -
NC: 2024:KHC:43694-DB
likely to cause her death. The said aspect could be gathered by
the part chosen by the accused i.e., the forehead & face and
the blow given by him. In such circumstance, though his act
comes under the ambit of Exception 4 to Section 300 of IPC,
the same is punishable under Section 304 Part I of IPC.
24. Hence, considering the overall evidence and fact
and circumstance of the case, the incident was caused without
any premeditation, in a sudden fight between the accused and
the deceased in the heat of passion. The accused also did not
take undue advantage or acted in a cruel or unusual manner.
In that view of the matter, the appeal partial succeeds. The
appellant is convicted for the offence punishable under Section
Exception 4 to Section 300 of IPC and sentenced for the offence
punishable under Section 304 Part I of IPC.
25. On the question of sentence for the offence
punishable under Section 304 Part I of IPC is concerned, it is
submitted by the learned counsel for the appellant that the
accused has already undergone 10 years 3 months
incarceration. Hence, in our considered view, the said sentence
suffice for the offence punishable under Section 304 Part I of
IPC by imposing reasonable fine.
- 20 -
NC: 2024:KHC:43694-DB
26. We answer point Nos.1 and 2 raised above
accordingly and proceed to pass the following:
ORDER
i) The criminal appeal is allowed in part.
ii) The judgment of conviction dated 10.05.2017
and order of sentence dated 11.05.2017
passed in S.C.No.218/2014 by the Principal
Sessions Judge at Kolar is modified to the
extent that the accused is convicted for the
offence punishable under Exception 4 to
Section 300 of IPC instead of Section 302 of
IPC. Accordingly, he is sentenced for the
offence punishable under Section 304 Part I of
IPC.
iii. The accused is sentenced for a period he has
already undergone incarceration i.e., 10 years
03 months, however, he shall pay a fine of
Rs.1,20,000/- (inclusive of the fine amount, if
any already paid/deposited before the trial
Court) for the offence punishable under
Section 304 Part I of IPC and in default of
payment of fine, he shall undergo simple
imprisonment for a period of two years.
iv. On payment of fine or by undergoing the
default imprisonment, the accused is ordered
- 21 -
NC: 2024:KHC:43694-DB
to be released, if he is not required in any
other cases.
v. If the fine amount is deposited by the
accused, the learned Sessions Judge is
requested to intimate the same to PW.2 and
PW.3 and the same shall be paid to
PW.2-Adharsh and PW.3-Manasa equally as
compensation under Section 357(1) of IPC on
due identification.
Sd/-
(K.SOMASHEKAR)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
HKV/VM
