[Cites 8, Cited by 0]
Karnataka High Court
Shrishail S/O Nagappa Avarasang vs The State Of Karnataka on 6 March, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 100292 of 2023
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IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 6TH DAY OF MARCH, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
CRIMINAL APPEAL NO. 100292 OF 2023 (C)
BETWEEN:
SHRISHAIL S/O NAGAPPA AVARASANG
AGE 61 YEARS, OCC. FARMER,
R/O. HONNIHAL VILLAGE,
BILAGI TALUK, DIST. BAGALKOT 587116.
...APPELLANT
(BY SRI. K.S. PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY PSI BILAGI POLICE STATION,
DIST BAGALKOT REPRESENTED BY PUBLIC PROSECUTOR,
OFFICE OF ADVOCATE GENERAL,
HIGH COURT COMPLEX, DHARWAD 580011.
Digitally signed by
YASHAVANT
NARAYANKAR ...RESPONDENT
Location: HIGH
COURT OF
KARNATAKA (BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
DHARWAD BENCH
Date: 2026.03.10
14:51:45 +0530
THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF CR.P.C.
SEEKING TO CALL FOR RECORDS IN SC NO.01/2017 AND SET ASIDE
THE JUDGMENT DATED 23.03.2023 AND SENTENCE DATED
27.03.2023 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE,
BAGALKOT FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF
IPC, IN THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
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CRL.A No. 100292 of 2023
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ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Heard learned counsel appearing for the appellant and
learned counsel appearing for the respondent / State.
2. This appeal is filed challenging the judgment of
conviction and sentence dated 23.03.2023 passed by Principal
District and Sessions Judge, Bagalkote (for short, 'Trial Court') in
S.C. No. 1/2017 for the offence punishable under Section 302 of
Indian Penal Code (for short, 'IPC') and prayed this Court to set
aside the judgment of conviction and sentence and acquit the
accused for the offence punishable under Section 302 of IPC.
3. The factual matrix of the case of prosecution is that
the accused and deceased Mahantesh are the close relatives. The
deceased Mahantesh had taken the land of brother of the
accused by name Basavaraj for cultivation of crop share basis.
The accused was not happy for the same. One day, the accused
tried to kill Mahantesh by dropping a stone on him while he was
sleeping in the farmhouse. Thereafter, the accused had left the
village for about six months. Thereafter, he returned to the
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village. The accused and deceased were consuming alcohol
together and particularly on 19.08.2016 at 10.30 p.m., the
accused and the deceased Mahantesh went to the house of
Mahantesh and Mahantesh had requested his sister to serve food
to both of them. While she was serving the food, the
grandmother of the Mahantesh, Smt. Gouravva, asked the
accused to leave the house at the earliest after having the
dinner. The accused felt insulted for the same and went to his
house without taking the meal and closed the door of his house.
Having noticed the same, the Mahantesh followed him and
knocked the door and repeatedly, requested him to come and
have the food. After sometime, the accused suddenly opened the
door of his house and slit the neck of the Mahantesh with knife.
The deceased consequently fell down and blood started oozing
profusely from the neck. Thereafter, the deceased Mahantesh
was shifted to Government Hospital, Bilagi. On examining the
Mahantesh, the doctor declared him as brought dead. The uncle
of the deceased by name Girimallappa Avarasang has filed the
complaint in this regard. On the basis of the same, the Police
registered the case in Crime No.166/2016 and FIR was also
registered. Thereafter, conducted the inquest panchanama over
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the dead body in presence of mahazar witnesses. He also visited
the place of incident and conducted the spot panchanama and
seized old newspaper containing blood stains and also collected
the blood clots fallen on the floor and also taken the
photographs. He prepared rough sketch of the place of incident.
Thereafter, recorded the statements of eyewitnesses and also
other witnesses. The accused was arrested at about 02.15 p.m.
and he was produced before the investigation officer as directed.
The investigation officer has recorded the voluntary statement of
the accused. Thereafter, the accused taken him to his house and
produced the knife in the presence of panchas and mahazar was
drawn by seizing the same. Thereafter, the accused was
subjected to medical examination and collected the samples of
blood. He seized the clothes of the accused by drawing a
mahazar in the presence of mahazar witnesses and thereafter,
the accused was produced before the Court and he was
remanded to judicial custody. The investigation officer sent a
requisition to PWD authorities for preparing the sketch of the
place of incident. Thereafter, collected the post mortem report
and also having completed the investigation, filed the charge
sheet for the offence punishable under Section 302 of IPC.
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4. On filing of the charge sheet, the accused was
produced before the Court and the trial judge framed the charge.
The accused did not admit the guilt and claims trial and hence,
prosecution relies upon the evidence of PW.1 to PW.11 and got
marked documents as Exs.P1 to P28, seized the properties i.e.,
articles as M.O.1 to M.O.10. The accused was also subjected to
statement u/S 313 Cr.P.C. after the completion of the evidence
of the prosecution. The accused has denied the incriminating
evidence against him but did not choose to lead any defence
evidence. The trial judge having considered both oral and
documentary evidence available on record comes to the
conclusion that the accused had committed the murder of the
deceased and convicted the accused for the offence punishable
under Section 302 of IPC. Believing the evidence of PW.1, PW.5,
PW.6 and PW.8, who are all the eye witnesses to the incident,
the trial Court taken note of recovery and also the recovery
witness PW.3 and the evidence of the investigating officer so also
taken note of FSL report. Wherein, a positive report was
submitted that the knife as well as clothes of the accused was
stained with human blood, i.e. the blood of the deceased, i.e., 'A'
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group. The appellant being aggrieved by the conviction and
sentence filed the present appeal before this Court.
5. The main contention of the counsel appearing for the
appellant before this Court is that the trial judge has not properly
appreciated the evidence available on record. The trial judge fails
to take note of the fact that incident was taken place at 10.30
p.m., and complaint came to be filed on the very next day at
06.45 a.m. and delay is by the complainant side to concoct the
story and involve the innocent person in the crime. The delay
caused is fatal to the case of prosecution. The counsel also
vehemently contend that even if the entire evidence on record is
taken together, there is no motive to commit the crime and
motive assigned to the accused for commission of murder of
Mahantesh, except the oral testimony that on the earlier
occasion, the accused tried to murder Mahantesh, but no other
material is available on record and no such motive is proved.
6. The counsel also submits that the fact that both the
deceased Mahantesh and accused were found moving together,
partying together, having lunch and dinner together, there was
no any ill-will between both of them. If such ill-will was in
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existence, question of taking the food and consuming the alcohol
together does not arise. Further, the counsel would submit that
the evidence of complainant PW.1 and evidence of eyewitness
PW.6 and PW.8 and panch witnesses PW.2 and PW.4 are
inconsistent with each other to the extent of falsifying the story
of the prosecution. This clearly indicates concocting the story and
falsely implicated the accused in the alleged incident. The
Sessions Judge utterly failed to appreciate both oral and
documentary evidence available on record, particularly,
contradictory statement made by each of the eyewitnesses.
7. The counsel also vehemently contend that when the
argument was canvassed before the trial Court that it is a case
for invoking of offence under Section 304 Part II and not under
Section 302 of IPC as none of the ingredients of the Section 302
of IPC are attracted in the case on hand. The counsel would
vehemently contend that Exception. 1 of Section 300 IPC comes
to the aid of the accused and the same has not been considered
in a proper perspective by the trial judge. In support of his
arguments, the counsel also relies upon the judgment of the
Hon'ble Apex Court in the case of KAILASH V/S. STATE OF
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M.P.1 and counsel brought to notice of this Court, invoking of
302 Part II, applicability of relevance of intention of accused
inflicting a single blow by the blunt side of an axe on the head of
the victim on a sudden provocation and without any
premeditation injury within a short period resulting in death of
the victim and injury received by co-accused not explained by
prosecution. In such circumstances, the Apex Court comes to the
conclusion that right of private defence although not established
Section 304 Part II and not Section 302 and attracted. Hence,
sentence of seven years rigorous imprisonment was awarded.
8. The counsel also relying upon the judgment in the
case of MADANLAL V/S. STATE OF PUNJAB2 and by referring
this judgment, counsel would vehemently contend that in the
case on hand also when the insult was made on the accused and
he left the place, but subsequently when the deceased tried to
pester the accused and at that time, he inflicted the injury, but
not with any intention to take away his life, only to avoid the
said situation and counsel would submits that subsequent
(2006) 11 SCC 420
1992 Supp (2) SCC 233
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conduct shows that he did not intend to cause death of the
deceased only to disappear the evidence he had stored the knife
but it was a case of accidental injury and also when such
material is available before this Court, it comes within the
purview of sudden and severe provocation with the knowledge
that such injuries were likely to cause death. The counsel
referring the factual aspects of the case, referring this judgment,
would contend that it is a fit case which comes within the
purview of Exception. 1 of Section 300 IPC.
9. The counsel in support of his argument also relies
upon judgment in the case of RAMESH KUMAR ALIAS TONI
VS. STATE OF HARYANA3 and brought to notice of this Court,
discussion made by the Hon'ble Apex Court, with regard to
Section 302 or Section 304 Part I, Exception to Section 300 of
IPC, wherein it is held that the prosecution evidence itself spells
out that all conditions of Exception No.4 to Section 300 IPC are
satisfied then the conviction should be under Section 304 Part I.
The counsel in support of his argument would also submit that
the very framing of charge itself suggests that it is not a case for
(2009) 13 SCC 401
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302 IPC but it is a case of invoking of 304 Part I of IPC. Hence,
he prays this Court to acquit the accused and in case, if this
Court finds that it is not a case for acquittal, then, bring the case
within the purview of 300 of IPC i.e., exception-1.
10. Per contra, learned counsel appearing for the State
would submit that the defence has not disputed the incident.
Even during the course of cross examination of eyewitnesses
PW1, 5, 6 and 8 suggestions are made and got elicited answer in
respect of the incident is concerned but only defence was taken
that it was accidental incident and not inflicting the injury by the
accused. The same was considered by the trial Court and held
that it is not an accidental injury. The eyewitnesses have
categorically deposed that the accused has inflicted injury with
knife on the vital part of the body. The trial Judge considering
the material on record rightly comes to the conclusion that it is a
case which falls u/S 302 of IPC.
11. The counsel would further submit that the very fact
that both the accused and the deceased were consuming alcohol
together and taking food together is not denied. When the
grandmother came and made statement does not amount to
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provocation by the accused and the same is only a word that is
uttered by the grandmother. The counsel also would submit that
there was no quarrel at the spot. The grandmother of the
deceased uttered the word against the deceased to finish the
food early and leave the house. The counsel vehemently
contends that the accused opened the door and came with a
knife and inflicted injury that too on the vital part, i.e. neck, and
there was no sudden provocation. Even though it is a single
blow it was enough to take the life of the person when the injury
was on the vital part. These materials clearly disclose that
before reaching the hospital the victim died. The Doctor also
opined that the victim was brought dead. The Doctor also
opined that death is homicidal. Taking note of all these factors
the trial Court rightly convicted the accused u/S 302 of IPC.
12. In reply to this, learned counsel for the appellant
would submit that there was no preparation and premeditation.
It was a single blow given by the accused. When the
grandmother came and uttered word against him, the accused
was insulted and also the accused was also not in a position to
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understand the situation and loss of self control, the incident was
taken place.
13. Having heard the counsel for the appellant, the
counsel for the respondent and the grounds which have been
urged in the appeal memo, the following points would arise for
our consideration:
(i) Whether the trial Court committed an error in
convicting the accused for the offence u/S 302 of
IPC and sentencing him to life imprisonment and
whether it requires interference by this Court?
(ii) Whether the trial Court committed an error in not
bringing the case within the purview of Sec. 304
(I) or (II) of IPC and whether it requires
interference by this Court?
(iii) What order?
Points No.1 and 2:
14. Having heard the respective counsel and also the
grounds which are urged in the appeal memo we have taken
note of both oral and documentary evidence available on record
and consciously applied our judicious mind whether it is a case of
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Sec. 302 of IPC or a case for bringing 304 (I) or (II) of IPC or for
acquittal.
15. Having considered both oral and documentary
evidence, the case rests upon direct evidence as well as
circumstantial evidence. There is no dispute with regard to
nature of injuries sustained by the deceased Mahantesh. The
prosecution mainly relies upon the evidence of the Doctor PW7.
He categorically deposed that he conducted postmortem between
09.30 to 11.30 p.m. He noticed the injury on the left side lower
part of the neck, 1 cm above the medial end of clavicular bone,
which is directed backward medially and downwards measuring
2½x1 inch size which is major vessel depth. There is tear in left
carotid arteries and jugular vessel. It is also his evidence that
cause of death is due to trauma by sharp knife and causing
injuries to major vessels leading to severe hemorrhage, shock
and death. The Doctor gave postmortem report in terms of
Ex.P.13. He opined that having received FSL report from the
investigating officer he came to the conclusion that cause of
death is as mentioned in the postmortem report. Final opinion is
given in terms of Ex.P.15.
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16. In the cross examination of PW7 it is elicited that the
above injury could not be caused if a person suddenly came in
contact with sharp edged knife; lacerated wound, incised wound
and stab wound are different in nature. He deposed that stab
wound would be caused by assaulting with pointed substance like
knife and dagger-MO2. When the suggestion was made that the
said injury could not be caused by assault with MO2, the same
was denied.
17. Taking note of the answer elicited from the mouth of
PW7 both in the chief and cross examination when the specific
defence was taken that if a person falls on the sharp edged
weapon like MO2 the above said injury would be caused, but the
said question is denied by the Doctor. The Doctor taking note of
the injury particularly pointed out that the width of the middle of
the blade of knife is approximately ½ cm, the width decreases
towards the pointed side of the knife and particularly the cause
of death is deposed that it is due to trauma by sharp knife and
causing injuries to major vessels leading to severe hemorrhage,
shock and death. Admittedly when the deceased was taken to
the hospital, he was declared 'brought dead'.
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18. When such being the case we do not find any error
on the part of the Doctor opining that the death is homicidal.
When suggestion was made that if any person came in contact
with an object like MO2 the death will not be taken, the same is
denied and PW7 categorically deposed that sharp edged weapon
can cause injury. Such a suggestion was also made to PW2 and
got elicited the answer. When such being the case, we are of the
opinion that the trial Court has not committed any error in
concluding that the death is homicidal.
19. Now coming to the case of the prosecution that the
prosecution mainly relies on the direct evidence, PW1 is the
uncle of the deceased who deposed before the Court with regard
to the earlier attempt made by the accused to take away the life
of the deceased. He also speaks about both the accused and
deceased were consuming alcohol. Accused was addicted to bad
vices of consuming alcohol. On the particular date both of them
consumed alcohol. PW5 was serving the food to both of them.
At that time the grandmother of the deceased came and
instructed the deceased to send the accused after taking food.
Being insulted with the said words the accused went to his house
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and closed the door. Immediately the deceased went and
knocked the door. At that time the accused came out with a
knife and inflicted injury. Immediately injured was taken to the
hospital but he succumbed to the injuries.
20. PW1 also deposed about lodging of complaint Ex.P.1
and also conducted spot mahazar, Photos were taken as per
Ex.P.2, Ex.P.3 and P.4 during the seizure of the articles at the
spot. The other witness PW5 is the daughter of PW1. She also
says about the ill will between the accused and the deceased.
When the earlier attempt was made, the accused left the village
for 5-6 months. Thereafter he came back. PW5 also reiterates
the incident at 10.30 p.m. on 19.08.2016 in the house of the
deceased when she was providing food to both the accused and
the deceased. With regard to the grandmother of deceased
came and uttered the word was also reiterated by her and also
the other circumstances of inflicting injury.
21. PW6 is also an eyewitness. In his evidence PW6
deposed that deceased was cultivating the land belonging to the
brother of the accused. He further deposed about the attempt
made by accused to take away the life of the deceased by
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dumping a stone, the accused leaving the village for 5-6 months
and thereafter the accused came back. PW6 reiterated the
evidence of PW1 and PW5 with regard to the incident.
22. The other witness PW8 who is also an eyewitness in
his evidence also deposed that accused was residing alone, his
wife and children left the accused. PW8 deposed that he came to
know about the earlier attempt made by the accused to take
away the life of the deceased. In his evidence PW8 says that
when he heard galata sound he went and witnessed the incident,
i.e. the second incident of inflicting injury with knife, as a result,
blood was oozing. He reiterated the evidence of PW1, 5 and 6.
In the cross examination PW8 says that next day accused was
arrested, he was not aware as to whether the accused was there
immediately after the accident and he even not seen the
accused. When suggestion was made that he did not witness the
incident the same was denied. Total denial was made in the
cross examination.
23. Now this Court has to consider the evidence of PW1,
5, 6 and 8. No doubt the counsel for the appellant brought to
the notice of this Court that PW6 in the cross examination
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admitted that he came to the spot after inflicting of injury but
having considered the evidence given by PW1, 5 and 8 is very
clear that all of them have spoken about the inflicting of injury.
But during the course of cross examination of these witnesses
suggestion was made that the incident was taken place in the
house of the deceased, that the grandmother of the deceased
also came and uttered word to leave the place immediately
taking the food and he is such a character of person and the
accused left the place before taking the food is also not in
dispute. It is also not in dispute that immediately the deceased
went to the house of the accused and requested the accused to
come and have food and he knocked the door 3-4 times, then
the accused opened the door and caused the incident. The
evidence of these eyewitnesses is consistent with regard to
inflicting injury on the neck and as a result blood was oozing.
24. It is the contention of the counsel for the appellant
that it was an accidental injury, that the accused opened the
door when the deceased knocking the door, the deceased
suddenly fell down and the knife-M.O.2 came in contact with the
deceased and thereby he sustained injury. The said suggestion
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was denied by these eyewitnesses. Hence the same cannot be
accepted. The trial Court rightly considered the evidence of
PW1, 5, 6 and 8 and though there is an admission on the part of
PW6 that he came to know about the incident that deceased
sustained injury and died, but the evidence of PW1, 5 and 8 is
very clear. No doubt PW1 and PW5 both are related witnesses of
the deceased but the same cannot be a ground to come to other
conclusion that they are the interested witnesses.
25. It is trite law that the related and interested
witnesses cannot be discarded if their evidence is consistent and
reliable. When such being the material available before the
Court, we do not find any ground to come to a conclusion that
accused only not committed the murder of the deceased. The
evidence on record, particularly the direct evidence of
eyewitnesses, PW1, 5, 6 and 8, point out the role of the accused.
26. Now coming to the aspect of the recovery at the
instance of the accused, i.e. knife, which is marked as MO2 and
mahazar was also drawn in terms of Ex.P.7. The I.O. PW10
speaks about the recovery at the instance of the accused. PW3
also categorically deposed before the Court that when the
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accused led panch witnesses and also the Police, he was very
much present at the time of seizing of knife and the same also
stained with blood, and cloth of the accused were also seized.
27. In the cross examination of PW3 except the
suggestion with regard to the seizure is concerned, nothing is
elicited. He categorically contends that all of them went in jeep
to Honnihal village and the accused was also very much present.
The same is got elicited from the mouth of PW3. During the
course of cross examination even he categorically deposed that
accused himself opened the door of his house when all of them
went to the house. PW3 deposed that he also accompanied
Police along with the accused. When the suggestion was made
that he was in the jeep when the Police went inside the house of
the accused, the same was denied. His evidence is very clear
that accused took out knife from a bag and produced. When the
suggestion was made that there was no knife, it was denied.
When such consistent evidence is given by PW3 it is clear that it
was made at the instance of the accused and the same is spoken
by I.O. PW.10.
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28. RFSL report is marked as Ex.P.19. Having perused
the RFSL report, except items No. 1 and 8 news paper piece as
well as nails, the examination is inconclusive since blood
grouping and blood stains in 1 and 8 could not be determined as
the results of the test were inconclusive, all the other articles,
i.e., 2, 3, 4, 5, 6, 7, 9 and 10 are stained with human blood with
'A' group. All the articles, i.e., 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 are
noted presence of mud. When such report is also positive, i.e.,
PW19 report is very clear that all the articles are stained with
blood.
29. Having regard to both oral and documentary
evidence available on record, point out the very role of the
accused in committing murder, the trial Court considering both
oral and documentary evidence as well as RFSL report rightly
come to the conclusion that the accused only has committed
murder.
30. Now coming to the aspect of the very argument of
the counsel for the appellant that it will not attract Sec. 302 IPC
and would attract Sec. 304 IPC particularly it comes within the
exception (I).
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31. This Court has taken note of the very exception (I) of
Sec. 300 IPC. It is very clear that when culpable homicide is not
murder if the offender, whilst deprived of the power of self
control by grave and sudden provocation, causes the death of
the person who gave the grave and sudden provocation or
causes the death of any other person by mistake or accident.
32. Having perused the same it is clear that if any act is
done with regard to grave and sudden provocation who lost self
control and that too caused the death of a person who gave
provocation but in the case on hand no such provocation was
given by the accused at the first instance and at that time only
the grandmother came and uttered word against him to take
food and leave the house immediately. But the counsel for the
appellant would vehemently contend that even though the
deceased has not given any provocation at the spot when the
first incident was taken but he went and continuously knocked
the door of the accused asking him to come out from the house
and take food. Hence the accused came with a knife but not
having any intention and it was an accidental death. The same
cannot be accepted. It is very clear that there was no
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provocation at the instance of the deceased. Even the deceased
also not abused against the accused but only he requested to
come and have food. It does not amount to grave or sudden
provocation leading him to take knife and inflict injury on the
vital part.
33. The evidence of the Doctor PW7 is very clear that
main blood vessel was cut as a result blood was oozing and he
died even before taking to the hospital. When such being the
case, the contention of the counsel that there was a sudden
provocation and there was no preparation cannot be accepted. If
there was no preparation, why the accused came with the knife
is not explained in the statement of the accused recorded u/S
313 Cr.P.C. Though it is stated that it was an accidental incident
but the material discloses that there was no such accidental
incident even though there was a single blow. The same will not
come to the aid of the accused that there was no intention or
pre-meditation but he came with the knife and inflicted injury on
the vital part of the body, i.e. neck. The evidence of the Doctor
PW7 is very clear that same is enough to cause death. As such,
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we do not find force in the contentions of the counsel for the
appellant.
34. No doubt, the principles laid down in Kailash Vs.
State of M.P., Madanlal Vs. State of Punjab and Ramesh
Kumar alias Toni Vs. State of Haryana referred supra, all
these facts and circumstances will not come to the aid of the
prosecution. In the case on hand there was no sudden
provocation at the first instance and also the deceased has not
uttered any words against the accused and only grandmother
came and instructed the accused to take food and leave the
house early. Thus it is clear that even at the time of assault
there was no such provocation. Mere requesting the accused to
come and have food does not mean that it is a sudden
provocation. Hence, these judgments will not come to the aid of
the counsel to come to a conclusion that it was a case within
purview of exception (I) of Sec. 300 IPC.
35. We are of the considered opinion that it is not a case
to bring the case within the exception of Sec. 300 IPC as
contended. Hence we answered both the points in the negative.
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36. In view of the discussion made above, we pass the
following:
ORDER
Appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(B. MURALIDHARA PAI)
JUDGE
RKM & BVV
CT-CMU
LIST NO.: 1 SL NO.: 8
