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2023. KHC:21314 CRL.A No.302 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE16H DAY OF JUNE, 2023 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL APPEAL No.302 OF2019BETWEEN: SHARDA URA S/O MAHADEVA URA TIRKE AGED ABOUT35YEARS R/O SONDHIL VILLAGE KAMADE POST JARKHAND STATE. …APPELLANT (BY SRI. RAKSHITH R - ADVOCATE) AND: THE STATE OF KARNATAKA BY YESHWANTHAPURA POLICE STATION BENGALURU – 560 022 REP. BY SPP HIGH COURT OF KARNATAKA BENGALURU - 560 001. …RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE – ADDL. SPP) THIS CRL.A. FILED U/S3742) OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENTDATED1411.2018 S.C.NO.1322/2014 ON THE FILE OF THE LVI-ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY CONVICTING THE APPELLANT FOR THE OFFENCE PUNISHABLE UNDER SEC. 302 OF IPC AND ACQUIT THE APPELLANT FROM THE CRIME AND THE APPELLANT MAY BE SET AT LIBERTY.-. 2 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 THIS CRIMINAL APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, K. SOMASHEKAR .J., DELIVERED THE FOLLOWING:
JUDGMENTThis appeal is directed against the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.1322/2014 dated 14.11.2018 convicting the appellant – accused for the offence punishable under Section 302 of IPC, 1860. The accused was sentenced to undergo life imprisonment and to pay fine of Rs.5,000/- and default to pay the fine, to undergo rigorous imprisonment for two years. In this appeal seeking intervention for consideration of grounds as urged in this appeal and consequently, to set-aside the judgment of conviction and order of sentence rendered by the trial Court and acquit the appellant – accused.
2. Heard learned counsel Sri Rakshith.R for the appellant – accused and learned Addl.SPP for State namely Sri Vijay Kumar Majage. Perused the judgment of - 3 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 conviction and order of sentence rendered by the trial Court.
3. The factual matrix of the appeal are as under: It is transpired in the case of prosecution that on 28.05.2014 at around 3.25 a.m. in the night hours, at the house of CW.2 i.e., first floor, No.2, 3rd Main, Raghavendra Layout, Yeshwantapura whereby accused picked up quarrel with Manoj Tirke in respect of the ancestral property standing in the name of their grandfather and more so, they are the cousins and relatives and natives of Sendhil Village, Ranchi District, Jharkhand State. The accused, Manoj Tirke, CW.6 to CW.13 came to Bengaluru, started painting work under C.W.17 and they were residing in a rented house belonging to CW.2. On the fateful day, the accused had started quarrel with the deceased in respect of the property which stands in the name of their grand father. The accused assaulted the deceased with means of wooden reaper on the head portion. As a resultant of that assault made by the - 4 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 accused, injured – Manoj Tirke succumbed to injuries on the same day as where the incident took at the scene of crime on 28.05.2014 at around 3.25 a.m. in the night hours.
4. In pursuance of the act of the accused, on filing of complaint by PW.1, criminal law was set into motion by recording FIR as per Ex.P.7 for the offence under Section 302 of IPC. Subsequent to setting criminal law into motion whereby PW.13 being the IO proceeded with the case for investigation and thoroughly investigation was done by him. During the course of investigation he drew the panchanama as per Ex.P2 in the presence of PWs.1 to 3 whereby they subscribed their signatures. Apart from that he conducted inquest over the dead body as per Ex.P3 in the presence of panch witnesses. During the course of investigation, he secured PM report as per Ex.P4 and so also, recorded statement of witnesses inclusive of securing the wound certificate as per Ex.P13 and also conducted one more panchanama as per Ex.P14. The entire investigation was thoroughly done by him and after - 5 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 completion of investigation, laid the charge sheet against the accused before the committal court. Subsequent to filing of the charge sheet against the accused, that the accused was secured to facing of trial and wherein the committal Court committed the case to the Court of Sessions for trial.
5. Subsequent to receipt of charge sheet materials the trial Court proceeded with the case for trial in S.C.No.1322/2014. Heard on charge by learned Public Prosecutor for State and the defense counsel for the accused wherein the charges were framed against the accused for the offence under Section 302 of IPC. The charge was read over to the accused in the language known to him wherein he denied the charges leveled against him and claimed to be tried. Accordingly, charges were framed and plea of the accused was recorded.
6. Subsequently, the case against the accused was put on trial by the prosecution to prove the guilt against accused. Accordingly, PWs.1 to 13 were subjected to examination and got marked documents as per Exs.P1 to - 6 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 P17 and so also, got marked M.Os.1 to 4. Subsequent to closure of evidence on the part of the prosecution the accused was subjected to examination as required under Section 313 of Cr.P.C. for enabling the incriminating evidence appeared against him whereby the accused denied the truth of the evidence of prosecution adduced so far. Accordingly, it was recorded. Subsequently, accused was called upon to enter into defense evidence, if any, but the accused did not let any defense evidence on his side. Accordingly, it was recorded.
7. Subsequent to closure of evidence on the part of the prosecution and so also, on the part of the defense side, the trial Court heard arguments advanced by the learned Public Prosecutor and so also, learned defense counsel for accused. The trial Court had appreciated the evidence of PW.1 – Muthu who filed complaint as per Ex.P1 and based upon his evidence, the criminal law was set into motion by recording FIR as per Ex.P7 whereby PW.10 had subscribed his signature. PW.12 – Dr. Varun Kumar Reddy being the Doctor who had issued intimation - 7 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 letter as per Ex.P10 relating to the case coming under medico legal case. The certificate at Ex.P11 was also secured by the investigation officer during the course of investigation whereby PW.12 Doctor who subscribed his signature. PW.4 – Dilip Tirke being the brother of deceased and PW.5 – Vishwanath Sour, PW.6 – Sunny Tirki and PW.7 – Vikky bindra are the eye witnesses to the incident as narrated in the complaint at Ex.P1 and wherein the complaint was made by PW.1 who is the author of complaint. Their evidence has been appreciated by the trial court inclusive of evidence of PW.8 being the Doctor who conducted autopsy over the dead body and issued PM report as per Ex.P4 and noticed the injuries inflicted over the person of the deceased on the temporal region and that the injury was inflicted with means of M.O.4 – wooden reaper. This accused assaulted the deceased on the vital part of temporal region, resultant of that deceased sustained severe head injury and succumbed to the injuries as indicated in Ex.P4 – P.M. Report. These are all the evidence that has been let in on the part of the - 8 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 prosecution and more so, the trial Court had thoroughly gone through the evidence and also appreciated the evidence and more so, the aforesaid witnesses PW.1 – Muthu, PW.4 – Vishwanath Sour, PW.6 – Sunny Tirki and PW.7 – Vikki Bindra they are the eye witnesses to the incident and they have stated clearly in their evidence on par with the averments made in the complaint at Ex.P1. They tied accused in the scene of crime and handed over the accused to police to proceed in further relating to the act committed by him. Their evidence has been appreciated by the trial Court inclusive of the evidence of investigating officer – PW.13 who laid the charge sheet against the accused and whereby conducted mahazar at Ex.P2 and one more mahazar at Ex.P14 inclusive of the inquest held over the dead body as per Ex.P3. Their evidence has been clearly indicating that the accused committed murder of the deceased and inflicted the injuries on the vital part of temporal region resultant of which he lost his breath on the same day. But the incident took place on 28.05.2014 at around 3.25 a.m.-. 9 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 8. PW.11 – Devakumar D.D. being the police constable who carried M.O.4 – wooden reaper and produced before the medical officer relating to subjected to examination in corresponding injuries with that wooden piece. PW.12 being the Doctor who referred the case as the medico legal case by issuance of intimation letter as per Ex.P10 and also Ex.P11 – certificate. He has stated in his evidence relating to issuance of certificate and also referring the case as Medico Legal Case due to deceased sustaining injuries and wherein he being the treated doctor. He has specifically stated in his evidence that on 28.05.2014 at around 4.50 a.m. in the wee hours the patient was admitted to Nimhans and he was in coma stage. But he succumbed to the injuries on 28.05.2014 and sent intimation to police as per Ex.P10 and also issued the certificate of the deceased as per Ex.P11. These are all the evidence that has been let in on the part of the prosecution to prove the guilt of the accused. Accordingly, the trial Court appreciated the evidence let in by the - 10 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 prosecution and rendered the conviction judgment for the offence under Section 302 of IPC.
9. The trial Court held that the prosecution has established that accused took up quarrel with deceased – Manoj Tirke in respect of the property issues and with that motive committed murder of deceased by assaulting with means of MO.4 – wooden reaper. It is an admitted fact that the deceased succumbed to the injuries and he being the relative of accused were relating together at the place where incident took place on 28.04.2014 at around 3.25 AM in the night hours. They came to Bengaluru in search of a job and they were working as painter under PW.2 – Murugan. It is not in dispute that PW.2 had taken the deceased to nearest hospital to provide treatment and the complaint was lodged by PW.1 as per Ex.P1. However, the trial Court had rendered the conviction judgment based upon the evidence let in by the prosecution. The impugned judgment of conviction has been challenged under this appeal by urging various grounds.-. 11 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 10. It is in this background of the theory of the prosecution that learned counsel Sri Rakshit.R for appellant – accused has taken us through the evidence of PW.1 and so also, PWs.5 to 7 who are the eye witnesses. PW.4 who is none other than the brother of deceased. But he did not speak relating to the incident which narrated in the complaint at Ex.P1. No such incident has taken place at all as narrated in the complaint and the appellant – accused has no role to play in entire crime which came to be registered against him. The aforesaid witnesses have been subjected to examination on the part of the prosecution. But the case was intentionally set up by the prosecution relating to lug the accused in the alleged crime. Insofar as accused alone has caused the injuries upon the temporal part of the deceased and as a resultant succumbed to the injuries. The theory of the prosecution is absolutely set up and it cannot be believed and also cannot be accepted as a gospel truth as narrated in the - 12 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 complaint as well as the materials which collected by the investigating officer during the course of investigation.
11. The trial Court has not appreciated the evidence of the prosecution adduced in a proper perspective manner relating to establish the case of the accused. But on prima-facie and also intentionally the accused is alleged to have assaulted with means of MO.4 – wooden reaper. The entire theory set up by the prosecution is at the behest of the complainant and the trial Court convicted the accused without there being any evidence and also believable evidence that the accused is deserving for conviction for the offence under Section 302 of IPC as the incident took place on 28.05.2014 at around 3.25 A.M. in the night hours.
12. PW.13 being the IO conducted the entire investigation and conducted the mahazar in the presence of panch witnesses as per Ex.P2 and whereby securing the signatures of PWs.1 and 2 and so also conducted the mahazar as per Ex.P14 wherein PW.13 being the IO who - 13 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 had subscribed his signature. The complainant was examined as PW.1 and other eye witnesses examined were vested and interested witnesses who were in enemical terms towards the accused. But the complaint allegations it is only to set up the criminal prosecution against the accused by recording the FIR. Subsequent to setting the criminal law into motion, the IO took up the case for investigation and recorded the statement of witnesses and so also, drew the mahazar in the presence of panch witnesses in order to laying of the charge sheet against the accused by compliance of the requirement as under the relevant provisions of Code of Criminal Procedure.
13. The second limb of the arguments advanced by counsel for the appellant is that on account of initiation of the investigation which is based upon the complaint set up by PW.1, the accused was facing of trial even though there was no direct overt act against him. The accused is no way concerned to the death of the deceased by infliction of injuries on the vital part of temporal region. The entire - 14 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 story of the prosecution is fabricated and created for the purpose of the case by twisting the facts to suit their convenience though there is no truth in prosecution theory.
14. It is further contended that the criminal prosecution has been launched against the accused wherein the accused was facing of trial and the trial Court had arrived at a conclusion that the prosecution has proved the guilt of the accused even though there was no cogent, corroborative and consistent evidence to render the conviction judgment against the accused that too under Section 302 of IPC. If the impugned judgment is not intervened, certainly there shall be miscarriage of justice to the accused. On all these premises learned counsel for the appellant seeks intervention, if not, the accused who is the gravamen of the incident would be the sufferer.
15. In support of his contention counsel for the appellant has placed reliance of Hon’ble Supreme Court in the case of Joseph vs. State of Kerala (1995 SCC - 15 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 (Crl.) 165 wherein the Hon’ble Supreme Court has addressed the issues in respect of Sections 299 and 300 of IPC, 1860. Section 302 or 304 part II – occurrence taking place on a trivial matter resulting in a quarrel – accusing inflicting two lathi blows on the head of the deceased which proved fatal – lathi not a deadly weapon – held, it cannot be said that accused intended to cause such bodily injury which was sufficient in the ordinary course of nature to cause death – accused can be attributed with knowledge that by inflicting such injury he was likely to cause death – offence falls under Section 304 Part II and not Section 302 of IPC.
16. In the instant case, the criminal law was set into motion alleging that this accused assaulted the deceased with means of MO.4 – wooden reaper and caused injuries on the temporal region as per the PM report as a resultant he last his breath. There was some quarrel took place in between accused and deceased for the simple reasons of property that was standing in the name of grand father. The same could be seen in the material evidence of the - 16 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 prosecution that too be the evidence of PW.4 being the brother of deceased and also the contents of Ex.P1 – complaint. On these premises, learned counsel for the appellant seeking for intervention in this appeal by consideration of the grounds urged therein, if not, the accused would be the sufferer and there shall be miscarriage of justice to him. The whole occurrence took place on a trivial matter resulting in a quarrel and the accused alleged to have assaulted on the temporal region with means of MO.4 – wooden reaper. Therefore, it cannot be said that he intended to cause injury which sufficient (sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. Therefore, the conviction held against the accused for the offence under Section 302 of IPC even though no ingredients has been constituted in a severe punishment in a serious offence lugged against the accused. But it falls under Section 304 Part II IPC.-. 17 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 17. Counsel for the appellant has further placed reliance of Jugut Ram vs. State of Chattisgarh (2020) 9 SCC520wherein the Hon’ble Supreme Court has addressed the scope of Section 302 or Section 304 Part II (Section 300 Exception
4) – assault by accused on head of deceased with lathi, leading to his death in hospital the next day – circumstances, manner of assault, nature and number of injuries, all have to be considered cumulatively, to decipher intention or knowledge, as the case may be – assault not pre-medidated but took place in heat of passion due to land dispute – act done with knowledge that it was likely to cause death, but without any intention to cause death – hence, the conviction altered from Section 302 to Section 304 Part II of IPC. The accused has already undergone maximum period of sentence prescribed therein, therefore, directed to be set at liberty forthwith. In this judgment the Hon’ble Supreme Court has referred to the judgment of Virsa Singh vs. State of Punjab (1958 SCR1495, Joseph vs. State of Kerala - 18 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 (1995 SCC (Cri) 165), Gurmukh Singh v. State of Haryana (2009 15 SCC635. Counsel for the appellant by referring to the aforesaid reliances submits that these reliances are squarely applicable to the present case and seeks for intervention in this appeal by consideration of the grounds urged therein and consequently, set-aside the judgment of conviction and order of sentence rendered by the trial Court for the offence under Section 302 of IPC.
18. On contrary, learned Addl.SPP for State has taken us through the evidence of PW.1 – Muthu who is the author of the complaint and so also, eye witness to the incident. Ex.P2 is the panchanama held by the PW.13 being the IO in the presence of PW.1 – Muthu, PW.2 – Murugan and PW.3 – Mohammed shoyab. They are the eye witnesses who have stated in their evidence about the incident and their evidence is on par with the narration of facts in Ex.P1 relating to the murder of deceased by the accused who assaulted with means of M.O.4 – wooden reaper on the vital part of temporal region and the incident took place on 28.05.2014 at around 3.25 a.m. in the night - 19 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 hours. The accused took up quarrel with the deceased in respect of the ancestral property which stands in the name of grand father and then assaulted with means of M.O.4 wooden reaper resultant of which the injured succumbed to the injuries. The same can be seen in the evidence of PW.4 – Dilip Tirke, PW.5 – Vishwanath Sour, PW.6 – Sunny Tirki and PW.7 – Vikky Bindra. They are the eye witnesses on the part of the and they have stated in their evidence supporting the case of the prosecution. The same could be seen in their evidence itself.
19. It is further contended that PW.10 who was subjected to examination has stated in his evidence that on 28.05.2014 at around 10.15 a.m. the complainant lodged the written complaint before him based upon which he registered the case and recorded FIR and issued request letter to Nimhans hospital to shift the dead body of Manoj Tirke to M.S.Ramaiah Hospital. He has stated while the injured was under treatment in the aforesaid hospital, succumbed to the injuries. PW.9 stated in his evidence that he was entrusted to visit the native place of - 20 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 deceased to record the statement of relatives and also to collect documents in respect of the properties. He stated that on 05.08.2014, he went to Sendhil village along with CW.26 and 28 and recorded the statement of CW.4 and 5 with the help of CW.26. He further stated that two acres of land is standing in the name of grand father of the deceased and out of the said land, Manoj Tirke was cultivating some portion, with regard to the said property accused was always quarreling with Manoj Tirke. These are all the evidence which finds place on the part of the prosecution and even the injuries inflicted over the person of deceased indicates in the PM report at Ex.P4 issued by PW.8 being the Doctor who conducted autopsy over the dead body. During the post portem he noticed the following injuries:
1. Surgically suture wound incites present over the right temporal region 1 cm above the outer aspect of right eyebrow. On removal of sutures, the wound is vertically placed measuring 3 x 0.7 cm under lying bone deep. Margins of the wound are irregular and contused.-. 21 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 2. Spilt laceration horizontally placed over outer aspect of right eyebrow measuring 1 x 0.5 cm x underlying skull bone deep, margins contused.
3. Spilt laceration horizontally placed over the outer aspect of right eyebrow measuring 2 x 0.5 cm x underlying skull bone deep, margins contused.
4. Spilt laceration obliquely placed over middle of nose measuring 0.8 x 0.1 cm x subcutaneous tissue deep, margins contused, under lying nasal bone fractured, blood effused around.
5. Spilt laceration obliquely placed over the left side of upper lip 0.5 cm to the left of philtrum measuring 2 x 0.5 cm x underlying tissue deep 6. Laceration measuring 3 x 0.7 cm x tissue deep vertically placed over the right angle of mouth involving upper and lower lips.
20. In all six injuries are inflicted apart from external injuries, the Doctor has also mentioned the internal examination and found various fracture over frontal bone with tissue fracture, comminuted fracture involving anterior cranial fossa, right and left to middle cranial - 22 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 fossa. The Doctor has also observed that all the above injuries are ante mortem in nature and fresh. The aforesaid injuries were observed by the Doctor during the course of post mortem held over the dead body and more so appreciated by the trial Court relating to the evidence of PW.8 and so also, injuries inflicted over the person of deceased. The evidence of material witnesses has been corroborating and supporting with each other and it is suffice to hold that the prosecution has proved the guilt of the accused and rightly arrived at a conclusion by rendering conviction judgment against the accused under Section 302 of IPC. Therefore, learned Addl.SPP emphatically submits that in this appeal it does not arise for call for interference of the impugned judgment of conviction rendered by the trial Court and seeks for dismissal of the appeal.
21. It is in this background of the contentions as made by counsel for the appellant and so also, counter made by learned Addl.SPP for State, it is relevant to refer - 23 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 the evidence of PW.2 – Murugan wherein he has stated that on 28.05.2014 about 3.30 a.m. in the night hours, PW.1 – Muthu called him through phone and informed that accused and deceased were quarreling. He stated that he had been to the scene of crime and observed Manoj Tirke sustained injuries on his head and he came to know that accused assaulted Manoj with wooden reaper. Immediately, he took Manoj to People Tree Hospital in his car and Doctor provided first – aid. Then on the advise of the Doctor he took Manoj to Nimhans and returned back to his house. As at a cursory glance of the evidence of PW.2 – Manoj that in between 2 to 2.30 pm. He visited the scene of crime and at that time, the investigating agency conducted mahazar and seized the wooden piece, blood stained tiles and bed sheet. He identified his signature on Ex.P2. He has specifically stated in his evidence that he has been working as a painter and on 27.05.2014 deceased Manoj was present at the place of work. But he does not know the name of the father of the accused and also his address. He had not received any documents - 24 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 from the accused before joining work. He also stated that place of incident was three floor and one Sendhil was the owner of said building. He further stated he let out first floor rooms and garment factory at ground floor. One Imran brought the accused to work and accused and deceased were working as painters. These are all evidence coming forth on the part of the prosecution. But at a cursory glance of evidence of PWs.1 and 2 and on close scrutiny of their evidence even though it is corroborative and supporting to each other relating to version of facts at Ex.P1 – complaint, but the evidence of PW.13 being the IO has not produced any material documents to indicate that the accused and deceased were working as painters. But they were tenants in the building belonging to one Sendil. PW.2 has stated in his evidence he did not collect any documents from the accused and deceased. The accused and deceased came to Bengaluru from the State of Jharkand in search of job and they were working under PW.2 as painters.-. 25 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 22. PW.4 – Dilip Tirke, brother of deceased, PW.5 – Vishwanath Sour, PW.6 – Sunny Tirki and PW.7 – Vikky Bindra are the eye witnesses to the incident and they are the abode of Jharkand. These witnesses had come to Bangalore in search of job. But deceased – Manoj Tirke, PW.4 – Dilip Tirke and accused are cousins. There was some property dispute in respect of ancestral property of grand father of accused and deceased – Manoj Tirke. But they came to Bangalore in search of a job and were working under PW.2 as painters.
23. PW.8 – Dr.Y.P.Girish Chandra who conducted autopsy over the dead body of deceased and issued P.M. report noticed injuries in all six injuries and also cause of death as indicated therein. PW.12 – Dr.Varun Kumar Reddy is the treated doctor and also given intimation letter as per Ex.P10 that the case is medico legal case and issued certificate as per Ex.P11. But PW.13 being the IO drew the panchanama as per Ex.P2 in the presence of PWs.1, 2 and 3. Similarly drew the panchanama as per - 26 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 Ex.P14. These are all the evidence let in by the prosecution to prove the guilt against the accused person. But it is relevant to refer the judgment of the Hon’ble Supreme Court Padam Singh vs. State of UP (AIR2000SC361 wherein it is held that it is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution is said to have proved its case beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate Court in drawing inference from proved and admitted facts. This issue has been extensively addressed by the Hon’ble Supreme Court in the aforesaid reliance and more so based upon the evidence and also on facts.
24. Further, in the case of Mahendra Singh vs. State of Rajasthan (1997) 3 Crimes 102, the Hon’ble Supreme Court has observed that law clearly expects the - 27 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 Appellate Court to dispose of the appeal on merits not merely by perusing the reasoning of the trial Court in the judgment, but by cross – checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record. It means to say that the material evidence which is secured by the IO during the course of investigation and laying the charge sheet against the accused whether the material evidence let in on the part of the prosecution are established with beyond all reasonable doubt and it is the domain vested with the trial Court to appreciate the evidence keeping in view Section 3 of the Indian Evidence Act, 1872 in respect of proved, disproved and not proved relating to the facts even on the averments made in the complaint made by complainant who is the gravamen of the incident and similarly, the accused who is the gravamen of the accusation. It is the settled position of law that reliance can be based on the solitary statement of a witness if the Court comes to the conclusion that the said statement is - 28 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 the true and correct version of the case of the prosecution. This issue has been addressed by the Hon’ble Supreme Court in the case of Raja v. State (1997) 2 Crimes 175 (Del). Insofar as reliance of the Hon’ble Supreme Court in Lallu Manjhi v. State of Jharkhand (AIR2003SC854 it is held that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court as to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness.-. 29 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 25. Further it is relevant to refer the judgment of Hon’ble Supreme Court in Lalit Kumar Sharma v. Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, (1989) Cr.L.J.
2297 wherein the Hon’ble Supreme Court has addressed the issues relating to the powers of the Appellate Court to review evidence in appeal against acquittal is as extensive as its powers in appeal against convictions but Appellate Court should be slow in interfering with the order of acquittal. But in the conviction that the appellate Court is required to even revisit the impugned judgment of conviction rendered by the trial Court and so also, re- appreciation of the evidence and come to independent conclusion as to whether the evidence facilitated by the prosecution can be relied upon or not.
26. Even the culpable homicide as indicated in Section 299 of IPC – in determining the nature of the offence, regard must, then, be had to the essential elements which are common to all such offence: (i) - 30 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 mentality of the accused, (ii) the nature of his act, and (iii) its effect upon the human victim. The first may present itself in its most dismal form, as where a person commits murder for the sake of rape or robbery. It may assume its least culpable aspect where death is consequence of his negligence. The aforesaid section also deals with the necessary to constitute culpable homicide, which are (i) the causing of death, (ii) the doing of an act, and (iii) the presence of the intention to kill or knowledge that the act was likely to cause death. One of the essential ingredients of the offence of culpable homicide requires to be proved by the prosecution is that the accused caused the death of the person alleged to have been killed. In the instant case, it was contended that since the aim taken by the accused was against his cousin – Manoj Tirke on the property issues in respect of ancestral property which stands in the name of their grand father. There was some quarrel in between them on the fateful day which took place in between 10 pm and 11 pm firstly. But on the intervening night of 27.05.2014 and 28.05.2014 at around - 31 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 3.25 AM that the accused alleged to have assaulted the deceased with means of M.O.4 by chosing vital part of temporal region which indicates in Ex.P4 - P.M. report issued by the doctor who conducted autopsy over the dead body.
27. The mental element in culpable homicide – the mental element in culpable homicide i.e., the mental attitude of the agent towards the consequences of his conduct is one of intention or knowledge. Every act is followed by consequences. The consequence necessary to constitute the offence of culpable homicide is death. By “intention” is meant the expectation of the consequences in questions and intention does not therefore necessarily involve premeditation, or thinking out the killing before hand. Death must be likely result of the intended bodily injury in the second case, and also a likely result of the act or omission in the third case. But motive factor even though it plays vital role but it is the domain vested with the prosecution to prove the guilt against the accused by facilitating worthwhile evidence. Even at a cursory glance - 32 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 of the evidence, in the instant case, the prosecution itself was not sure enough in respect of motive of murder. The infliction of injuries on the vital parts of the temporal region and mere because of that it cannot be said that the ingredients of Section 302 of IPC has been constituted. The motive and knowledge of course, knowledge of the likelihood in such case is widely apart from motive. The motive in the cases mentioned above was to cure and not kill the deceased. The accused could not then have actually known that their act was likely to have fatal termination. It is settled view that mere absence of a strong enough motive for committing an unnatural crime like murder as a patricide or the mode of its commission could be of no assistance to the appellant. Unless there shall be strong evidence, it cannot be fit into offence under Section 302 of IPC. In the instant case, for appreciation of evidence even though the evidence has been let in by the prosecution by subjected to examine PWs.1 to 6 and they are the eye witnesses to the incident, but causing death without knowledge, a person may, sometimes, intend to - 33 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 cause death, but may fail to cause it in fact. Again, the act which result in death may not be in prosecution of the object of causing death. In such cases the Courts are inclined to the view that the accused cannot be deemed to have caused death with the knowledge pre-requisite for the offence of murder or culpable homicide. In the instant case, the accused assaulted the deceased with means of M.O.4 – wooden reaper as a resultant the deceased sustained injuries and succumbed to the injuries. But the intention, knowledge, motive, whenever there is knowledge, proof of intention is unnecessary. If such proof is available, it may be useful for explaining an act which may be otherwise inexplicable. But it is not necessary to establish the crime, though its existence would naturally aggravate it. Indeed, the presence of intention would not only justify the enhanced penalty provided in Section 304 for culpable homicide with intention, but it may take the offence wholly out of the category of that offence and aggravate it into the capital crime of murder.-. 34 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 28. In homicidal intention, which is spoken of in this section is of two kinds. In the first place, it may be an intention of causing death, and in the second place, it may be an intention of causing such bodily injury as is likely to cause death. Intentional injury likely to cause death, adverting now to this clause as enacted here, it will be seen that it requires the presence of intention, but the intention is to cause a dangerous hurt, and not death. Death may ensue and if it does, it is because it was likely. If it is averted it is because it was not certain. Such may be the case of a person who is willing to kill but whose act is not decisive of his intention. Between him and another who intends to cause death there is no difference in the offence or the punishment, though there is evidently a difference of degree in criminality.
29. In respect of proof of homicidal intention, it makes it all the more necessary that the real import of this word should be accurately gauged. In determining both - 35 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 the criminality and the measure of criminality of an act, the Indian Penal Code has regard to the actual, as distinct from a presumed or constructive intention. So it was pointed out by Norman and Campbell JJ., that “under the Indian Penal Code, no constructive but an actual intention is required.” Intention and knowledge are the internal and invisible acts of the mind, and their actual existence cannot be demonstrated except by their external and visible manifestations. Observation and experience enabled to judge the connection between men’s conduct and their intention. The fact that such knowledge is accompanied by indifference, whether death or serious injury is caused or not, or even by a wish that it may not be caused, makes no difference.
30. Whereas in 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. This section defines - 36 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 the murder with reference to the definition of culpable homicide given in and discussed under the last section. This definition materially differs to certain extent. It is based upon facts which is narrated in the complaint and also material evidence which is secured by the IO during the course of investigation. But the distinction between murder and culpable homicide, the difference between an act of causing such injury as is likely to cause death and that with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death. It is true that the difference between an act of causing such bodily injury as is likely to cause death and the act with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death is one of degree, but the difference is there. Therefore, on close reading of provision of Section 299 of IPC relating to culpable homicide not amounting to murder, it requires to be established by the prosecution by facilitating the worthwhile evidence to secure the conviction. The difference between clause (b) of Section 299 and clause - 37 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 (3) of Section 300 is one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the grave, medium or the lowest degree. These are all the things that has to be looked into the evidence which is facilitated by the prosecution and it is the domain vested with the trial Court under Section 3 of the Indian Evidence Act, 1872 indicating proved, not proved and disproved by looking into the entire evidence both examination in chief and also the cross-examination on the defence side.
31. In the instant case, it cannot be said that the offence charged against accused come under the purview of Section 302 of IPC, unless there is strong, cogent, corroborative and consistent evidence to secure conviction. The trial Court has arrived at a conclusion based upon the evidence of PWs.1 to 6 and also evidence of PW.13, the investigating officer who laid the charge sheet against the accused by conducting mahazar in the - 38 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 presence of panch witnesses that too be PWs.1 to 3 and also inquest over the dead body. Therefore, it requires interference by re-appreciating the evidence and revisiting of the impugned judgment of conviction and order of sentence, if not, certainly the accused would be the sufferer and also there shall be miscarriage of justice would be extended to him. Therefore, considering the factual scenario, in the background of legal principles set out above, the inevitable conclusion is that the case is not covered under Section 302 of IPC. The ingredients necessary to bring in application of Exception 4 to Section 300 are present. Therefore, the conviction deserves to be altered to Section 304 Part I of IPC. The appellant- accused is said to be in incarceration for a period of 9 years 17 days and the same shall be termed as service of sentence and it would meet the ends of justice. In view of the aforesaid reasons and findings, we proceed to pass the following: - 39 - NC:
2023. KHC:21314 CRL.A No.302 of 2019
ORDERThe appeal filed by the appellant – accused under Section 374(2) of Cr.P.C. is allowed in part. Consequently, the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.1322/2014 dated 14.11.2018 convicting the appellant – accused for the offence punishable under Section 302 of IPC is hereby modified considering the factual scenario, in the background of legal principles set out above which is facilitated by the counsel for the appellant, the inevitable conclusion is that the case is not covered under Section 302 of IPC. The ingredients necessary to bring in application of Exception 4 to Section 300 of IPC are present. Therefore, the conviction is altered to Section 304 Part I of IPC and moreso, the appellant – accused is in incarceration since 9 years 17 days and the same would meet the ends of justice.-. 40 - NC:
2023. KHC:21314 CRL.A No.302 of 2019 Registry of this Court is directed to forward a copy of the operative portion of the judgment to the Superintendent of jail authority, Central Prison, Parappana Agrahara, Bengaluru City where the accused is housed with a direction to set him at liberty, forthwith, if he is not required in any other case. Ordered accordingly. Sd/- JUDGE Sd/- JUDGE DKB