Karnataka High Court
Mr. Murthy @ Sundara Murthy vs The State Of Karnataka on 7 February, 2025
Author: V Srishananda
Bench: V Srishananda
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CRL.A No. 318 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 318 OF 2013
BETWEEN:
MR. MURTHY @ SUNDARA MURTHY,
S/O SELLAIAH,
AGED ABOUT 30 YEARS
R/AT PALAMEDU HOUSE,
GUDULOOR, NEELAGIRI DISTRICT
NOW R/AT MANDAKARE CRC COLONY
ITHURU VILLAGE, PUTTUR TALUK,
D.K - 574 201.
...APPELLANT
(BY SRI. SUYOG HERELE E, ADVOCATE
SRI. SACHIN B.S, ADVOCATE)
AND:
Digitally THE STATE OF KARNATAKA
signed by
MALATESH THROUGH PUTTUR RURAL POLICE
KC REPRESENTED BY THE STATE
Location: PUBLIC PROSECUTOR,
HIGH HIGH COURT BUILDINGS,
COURT OF
KARNATAKA BANGALORE - 560 001.
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRL.A IS FILED U/S. 374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 26.02.2013 PASSED BY THE ADDL. S.J., F.T.C., PUTTUR
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CRL.A No. 318 of 2013
IN S.C.NO.35/2012 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 304 PART II OF IPC. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 3
YEARS AND PAY FINE OF RS.50,000/-, FOR THE OFFENCE
P/U/S 304 PART II OF IPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri. Suyog Herele E., learned counsel for the
appellant and learned HCGP.
2. The appellant-accused by name Murthy @
Sundara Murthy who has been convicted in
S.C.No.35/2012 vide judgment dated 26.02.2013, and
order on sentence dated 15.03.2013, for the offence
punishable under Section 304 Part II of IPC, has
questioned the validity of the judgment of conviction and
order of sentence in this appeal. The appellant was
directed to undergo rigorous imprisonment for a period of
3 years and to pay fine of Rs.50,000/- and out of the fine
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amount recovered, the entire fine amount was ordered to
be paid as compensation to PW-6, Smt. Devaki, who is
none other than the mother of the deceased.
3. Essential factual matrix required for the
disposal of the appeal on merits are as under:
A complaint came to be lodged with Kadaba Police,
Puttur alleging that the appellant hailed from Gudalur of
Tamil Nadu State and he had married Parameshwari about
5 years earlier to the date of complaint and they had a
son. Since there was no gainful employment for the
appellant in Tamil Nadu, 8 months prior to 20.09.2011, he
returned to the house of his in-laws along with his wife
and son. To eke out their livelihood, Parameshwari had to
fetch a job of a rubber tapper at KFDC, Rubber Plantation
at Mandekara area. The appellant was not wellworsed
with the tapping of rubber as it is a skilled job and he used
to stay in the house of his in-laws and was attending
labour work in and around Mandekara.
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3.1. The appellant being addicted to liquor,
whenever found that he had no sufficient money, he used
to demand money from his wife. When his demands were
not met, the appellant used to pick up quarrel with his
wife (deceased). On one such unfortunate day, i.e.,
20.09.2011, there was a quarrel between the appellant
and his wife with regard to the demand made by the
appellant for consuming liquor and same was refused. At
that juncture, the accused picked up quarrel. The quarrel
got aggravated by exchange of words and accused picked
up a 'kathi' which was available in the place of incident
and assaulted his wife with an intention to take away her
life. There were bodily injuries on her neck, head and
shoulder. In resisting the assault, the appellant also got
injured.
3.2. Because of the injuries sustained by the wife of
the appellant, on account of profuse bleeding, wife of the
appellant died. In respect of the said incident, one
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Rajakumar PW-1, who is the relative of the deceased,
lodged a complaint.
3.3. Based on the complaint, detail investigation was
conducted and charge sheet came to be filed. Accused
was arrested and sent to judicial custody. On receipt of
charge sheet, learned Trial Judge registered a case in
C.C.No.2884/2011 and committed the case to the Principal
District Judge, Mangalore.
4. On committal, the case was made over to the
Additional Sessions Judge, Fast Track Court, Puttur.
Learned Judge, after receipt of records, secured the
presence of the accused from the judicial custody and
framed charges for the offence under Section 302 of IPC.
5. The accused pleaded not guilty. Therefore, trial
was held. In order to bring home the guilt of the
appellant, prosecution proceeded to examine 19 witnesses
as PW-1 to PW-19. Prosecution also placed on record 21
documents which were marked as Exs.P1 to P21,
comprising of complaint, spot sketch, statement of PW-2
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to PW-4, inquest mahazar, seizure mahazar, PM report,
opinion with regard to the weapon, FIR, wound certificate,
serology report, working certificate, etc.
6. Prosecution also placed on record 7 material
objects which were marked as MO-1 to MO-7 comprising
of chaku, kokke kathi, chudidara top, chudidara pant, bed
sheet, t-shirt and lungi. Contradictions elicited in the oral
testimony of PWs.1, 2 and 6 were marked as Exs.D1 to
D6.
7. On conclusion of recording of prosecution
evidence, learned Sessions Judge proceeded to record the
accused statement as is contemplated under Section 313
of the Cr.P.C., wherein accused has denied all the
incriminatory circumstances put to him which were found
in the case of the prosecution. The appellant did not
choose to place any defence evidence. He has stated that
he used to visit Tamil Nadu frequently and he was not
doing job of rubber tapping. He did submit to the Court
that he wanted to examine a witness, but failed to do so.
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8. Subsequent thereto, learned Trial Judge heard
the arguments of the parties in detail and on cumulative
consideration of the oral and documentary evidence placed
on record by the prosecution in a cumulative manner,
convicted the appellant for the offence under Section 304
Part II of IPC and sentenced as referred to supra, as
against the charge under Section 302 of IPC.
9. Being aggrieved by the same, the appellant is
before this Court in this appeal.
10. Sri. Suyog Herele, learned counsel representing
the appellant, vehemently contended that the acquittal of
the appellant for the offence under Section 302 of IPIC
having not been challenged by the prosecution, the
material on record is to be considered in right perspective
in modifying the sentence ordered by the learned Trial
Judge.
11. He also pointed out that there was no intention
to take away the life of Parameshwari by the appellant as
the appellant has also got injured in the incident. A trivial
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incident has been drawn out of proportion by the
prosecution and whereby, at the most, accused should be
convicted for the offence under Section 324 of IPC having
caused the bodily injury voluntarily by use of weapon and
therefore sought for allowing the appeal to that extent.
12. Per contra, learned HCGP supports the
impugned judgment by contending that the postmortem
report marked at Ex.P9 would disclose that the cause of
death is on account of hemorrhagic shock and sudden
cardio-respiratory arrest as a result of grievous injury to
the brain and spinal cord.
13. He further argued that those injuries were vital
injuries and were sufficient enough to take away the life of
a person in the ordinary course and therefore, conviction
of appellant for the offence under Section 304 of IPC which
is meant for homicidal death having established, the
learned Trial Judge has rightly convicted the appellant for
the offence under Section 304 Part II of the IPC.
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14. He further submits that even in the absence of
any appeal being filed by the prosecution, the prosecution
can very well argue for maintaining the conviction of the
appellant for the offence under Section 304 Part II of IPC
and thus sought for dismissal of the appeal.
15. Having heard the arguments of learned counsel
for the parties in detail, this Court perused the material on
record meticulously. On such perusal, the following points
arise for consideration in this appeal:
(i) Whether the material evidence placed on record would
be sufficient enough to maintain the conviction of the
appellant for the offence punishable under Section
304 Part II of the IPC?
(ii) Whether the appellant makes out a case of legal
infirmity and perversity in the findings recorded by
the learned Trial Judge in convicting the appellant for
the aforesaid offence?
(iii) Whether the sentence needs modification?
(iv) What Order?
16. REG. POINT NOS.1, 2 & 3: In the case on hand,
the relationship between the deceased and the appellant is
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not in dispute. Appellant is the husband of the deceased
having married her about 5 years earlier to the incident.
Admittedly, the appellant did not have any permanent job
at Tamil Nadu. To eke out their livelihood, since the
deceased was having skill in tapping rubber, she had got a
temporary job of rubber tapper in KFDC Rubber Plantation
at Mandekara area. She had come along with her parents
and stayed in the quarters given to the rubber tappers in
the said plantation. Appellant also used to stay in the
same place and he was attending small labour work in and
around Mandekara.
17. Further, it is found from the records that the
appellant was addicted to liquor and whenever he did not
get any job, he used to nag the deceased for financial help
to consume liquor. There were frequent quarrels in this
regard.
18. On an unfortunate day, i.e., 20.09.2011, again
quarrel started on account of refusal of demand made by
the appellant for money to consume liquor. At that
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juncture, the appellant all of a sudden started assaulting
his wife with MO-2 'Kokke Kathi' on the body parts of the
deceased. As a result, she sustained several injuries.
19. PW-1 Rajakumar who had also visited his
quarters which was situated opposite to the quarters of
the deceased, having heard hue and cry in the house of
the deceased, came rushing to the said place along with
PW-2 Bhagyanathan and PW-3 Vijaya Kumar. The door
was locked from inside and there was lot of hue and cry.
Therefore all the three peeped through the window of the
house of the deceased and noted that there was assault
made and the deceased had fallen down.
20. Thereafter, they intimated PW-5 Angamuthu
and he secured the ambulance and the injured was then
taken to General Hospital, Kadaba. However, on account
of the injuries sustained by the wife of the appellant
Parameshwari, she had died and therefore complaint came
to be lodged. After receipt of the complaint, police
investigated the matter thoroughly inter alia arrested the
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appellant and filed charge sheet for the offence under
Section 302 of IPC.
21. The prosecution evidence comprised of
Rajakumar, Bhagyanathan, Vijaya Kumar, Perappa,
Angamuthu, Devaki (mother of deceased), Raja Krishna
and Govinda Swamy (father of the deceased), and medical
evidence in the form of Dr. Suchitra Rao who conducted
autopsy on the body of the deceased, and other
circumstantial witnesses.
22. It is pertinent to note that, none of these
prosecution witnesses did nurture any previous enmity or
animosity insofar as the appellant is concerned. The
witnesses examined on behalf of the prosecution have
supported the case of the prosecution. No doubt, defence
is successful in eliciting few contradictions in the oral
testimony of PW-1, which was marked as Ex.D1 to D4 and
portion of the statement in PW-2, which was marked as
Ex.D5, and so also in the testimony of mother of the
deceased PW-6, which is marked as Ex.D6.
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23. On careful consideration of the totality of the
material evidence on record, it is crystal clear that the
incident stands established by the oral testimony of PWs.
1, 2, 3, 6 and 8.
24. Admittedly, there were blood stains on the
'T-shirt' and 'lungi' worn by the appellant and there is no
explanation offered in that regard. Blood stains found on
the T-shirt and lungi marked at MO-6 and MO-7 tallied
with the blood group of the deceased.
25. So also, the blood stains found on the chudidar
top and pant marked at MO-3 and MO-4 and blood stains
found on the 'kokke kathi' marked at MO-2 would
sufficiently establish that the injuries caused on the body
of the deceased was by use of MO-2. The opinion as to
the weapon MO-1 and MO-2 corroborates the testimony of
prosecution witnesses.
26. The postmortem report would indicate the
cause of death as referred to supra. Therefore, from the
totality of the material evidence placed on record, this
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Court has no hesitation whatsoever in upholding the
finding of the guilt recorded by the learned Trial Judge
insofar as the appellant is concerned for causing homicidal
death of his wife Smt. Parameshwari.
27. Learned Trial Judge has bestowed his best
attention to the totality of the circumstances and noted
that the incident has occurred at the spur of the moment
traceable under Section 304 Part II of the IPC having
regard to the homicidal death of Parameshwari.
28. Therefore, learned Trial Judge convicted the
accused for the offence under Section 304 Part II of the
IPC.
29. No doubt Sri. Channappa Erappa, learned High
Court Government Pleader contended that use of MO-1
and MO-2 in the incident and injuries that has been found
on the body of Parameshwari as per the postmortem
report marked at Ex.P9, the accused should have been
convicted for the offence under Section 304 Part I, instead
of 304 Part II of the IPC.
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30. It is settled principles of law and requires no
emphasis that in appeal filed by the accused, there cannot
be enhancement of punishment nor accused can be
convicted for a higher offence than he has been convicted.
31. Thus, in the absence of any appeal filed by the
prosecution challenging the acquittal of the accused for
the offence under Section 302 of IPC, this Court is of the
considered opinion that the guilt of the accused recorded
for the offence under Section 304 Part II of the IPC needs
to be maintained and requires no interference in this
appeal. Minor contradictions elicited in the form of Ex.D1
to D6 did not cause any serious dent to the case of the
prosecution nor sufficient enough to hold that the opinion
recorded by the learned Trial Judge for convicting the
accused for the offence under Section 304 Part II of the
IPC.
32. The argument put forth on behalf of the
appellant that at the most, the accused must be convicted
for the offence under Section 324 of the IPC instead of 304
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Part II of the IPC, cannot also be countenanced on record
inasmuch as, from the time of incident and time of death
of deceased, is not so large, and death is as a result of
injuries sustained by deceased in the incident as per
postmortem report.
33. In view of the foregoing discussion, point No.1
and point No.2 are answered in the affirmative and
negative, respectively.
34. REG. POINT NO.3: Since the learned Trial Judge
has granted has granted rigorous imprisonment for a
period of 3 years and ordered to pay fine of Rs.50,000/-,
in the absence of any other mitigating circumstances
placed on record, this Court does not find any reasons,
whatsoever, much less good reasons to reduce the
punishment or the fine amount. Accordingly, point No.3 is
answered in the negative.
35. REG. POINT NO.4: In view of the findings of
this Court on point Nos.1 to 3 as above, following:
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ORDER
i) The appeal grounds are meritless and
accordingly, the criminal appeal is dismissed;
ii) The accused who had the benefit of
suspension of sentence is directed to surrender
before the Trial Judge on or before 10.03.2025,
for serving the remaining part of the sentence,
failing which the Trial Judge shall take necessary
steps to secure his presence and send him to
prison.
Office is directed to return the Trial Court records
with a copy of this judgment, forthwith.
Ordered accordingly.
Sd/-
(V SRISHANANDA)
JUDGE
RD
