(Prayer: This Criminal Appeal is filed under Section 374(2) of the Criminal Procedure Code, 1973 (Section 415(2) of Bharatiya Nagarik Suraksha Sanhita, 2023) praying to set aside the judgment of conviction and order of sentence passed by the Principal District and Sessions Judge, Bagalkote, in Session Case No.83/2019 dated 06/03/2023 and sentence dated 07.03.2023, convicting the appellant for the offences punishable under Sections 302 and 326 of the Indian Penal Code, 1860 and acquit the appellant herein for the allegations made against him and he may be set at liberty.)

CAV Judgment

Rajeshwari N. Hegde, J.

1. This appeal is directed against the judgment of conviction dated 06.03.2023 and order of sentence dated 07.03.2023, passed by the Principal District and Sessions Judge, Bagalkote, in Sessions Case No.83/2019, whereby the appellant/accused was convicted for the offences punishable under Sections 302 and 326 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for short) and the accused sentenced to undergo imprisonment for life for the offence punishable under Section 302 of IPC and imprisonment for five years for the offence punishable under Section 326 of IPC and fine along with default sentence.

2. The case of the prosecution, in brief, is as follows:

          The deceased Parvatevva who was the wife of accused, had gone to uterous surgery, despite, accused insisting her to cohabit with him; she was refusing the same. In that matter, the accused was frequently quarrelling with her and accordingly on 05.02.2019 at 10.00 a.m., the accused and the deceased went to their land for agricultural work; the sister of deceased namely Jayamma also went to the land; while she was working, at about 12.00 p.m., she heard the noise of quarrelling between the accused and the deceased; she immediately went there and noticed that accused was abusing the deceased in filthy language and assaulting her with axe on her head; the said blow hit near the neck; Jayamma tried to rescue the deceased from further assault; however, the blow hit on her index finger of right hand and she sustained grievous injury; the accused again assaulted the deceased with axe and the deceased sustained multiple grievous injuries and died on the spot; Jayamma getting afraid that, accused may also cause her death, she shouted loudly and called neighbouring land owners and one Sharanappa; came there and on seeing him, the accused ran away from the place of incident by holding axe; the deceased was admitted to the hospital for treatment, however, she died.

3. On the basis of the complaint of Jayamma, a crime was registered in Ilakal Rural Police Station in Crime No.11/2019. Thereafter investigation took place and after completion of the investigation, charge sheet was filed against the accused for the offences punishable under Sections 302, 326 and 504 of IPC.

4. After hearing the learned counsel for accused and the prosecution, the learned Sessions Judge framed the charges for the alleged offences. As the accused pleaded not guilty, the case was posted for prosecution evidence. The prosecution, in order to bring home the guilt of the accused, examined in all 12 witnesses as PW.1 to PW.12 and got marked documents Exs.P.1 to P.34 and material objects MO.1 to MO.10.

5. After completion of the prosecution evidence, the accused was examined under Section 313 of the Criminal Procedure Code ('Cr.P.C.' for short). The accused denied all incriminating evidence against him. However, he did not choose to lead any defence evidence. Learned Sessions Judge, after hearing both sides, proceeded to pass the impugned judgment, whereby the accused has been convicted for the offences punishable under Sections 302, 326 of IPC and sentenced as under:

          ORDER

          "Acting under Section 235(2) of Cr.P.C., the accused is sentenced to undergo imprisonment for life and to pay fine of Rs.20,000/-, in default to undergo simple imprisonment for a period of one year for the offence punishable under Section 302 of IPC.

          The accused is further sentenced to undergo imprisonment for a period of five years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of one year for the offence punishable under Section 326 of IPC.

          Both sentences shall run concurrently. The period of detention undergone by the accused during the enquiry and trial is given set off under Section 428 of Cr.P.C.

          The seized properties M.O.1 to 10 are worthless. They are ordered to be destroyed after completion of appeal period.

6. Being aggrieved by the impugned judgment, the accused/appellant has preferred the present appeal on the following grounds:

          a) The impugned judgment and order of sentence passed by the learned Sessions Judge is not in accordance with law. The same is liable to be set aside.

          b) The prosecution has failed to establish the guilt of the accused beyond all reasonable doubt.

          c) Learned Session Judge has not considered the cross-examination of each witnesses and has not properly appreciated oral and documentary evidence.

          d) PWs.3 to 5 and PW.7 are hostile witnesses, despite that, learned Session Judge has relied upon their evidence, which has resulted in miscarriage of justice.

          e) The oral evidence of PW.4 and PW.5, who are neighboring landowners, their evidence cannot be accepted. The learned Sessions Judge has not properly appreciated the defence taken by the accused.

          f) There was dispute between the accused and the husband of said Jayamma i.e. PW.1 and thereby he has been falsely implicated in the present case.

7. On these grounds, the appellant prayed for allowing of the present appeal by setting aside the impugned judgment and to acquit him of the offences.

8. Heard the arguments of learned counsel Sri V.M.Banakar, for the accused/appellant and Sri T.Hanumareddy, the learned Additional SPP for the respondent i.e. State and perused the entire records and the appeal papers.

9. Having heard the arguments of learned counsels appearing for the accused and the learned Additional Special Public Prosecutor for the respondent State and after perusal of the entire evidence on record and the appeal papers, the points that would arise for our consideration are:

          1. Whether the impugned judgment of conviction and order of sentence passed by the trial Court suffers from illegality, perversity and warranting interference by this Court or not?

          2. Whether the learned session judge is justified in convicting the accused for the offence punishable under section 302 of IPC?

10. For convenient reference, the particulars of the witnesses examined by the prosecution and the substance of their evidence are set out as under:

          a) PW.1-Jayamma, the complainant herein deposed that the deceased Parvatevva, who is her sister, underwent uterus operation; the accused herein always used to quarrel with her as she was not co-operating with him; in that regard, she advised the accused not to quarrel. Despite, on the date of incident, the accused and the deceased both went to the land and complainant also went to her land, where she heard the quarrel and by the time she went to the spot, the accused had assaulted the deceased with axe; she tried to pacify the quarrel; she also sustained the injury on her right hand finger; the neighbouring land owner Sharanappa came there, then accused ran away from the place holding the said axe along with him. She further deposed that, when she was taking treatment in the hospital, the police came there and recorded her statement, which is reduced as complaint in Ex.P1.

          b) PW.2-Ayyappa Ilkal, is a hearsay and interested witness. He deposed that after he heard the news that the accused killed Parvatevva in the land, he went there and saw the dead body. Police made the inquest mahazar as per Ex.P.2. He further deposed that the police called him to the police station, wherein they did seizure of clothes as per seizure panchanama Ex.P.5. Further, he is also the witness to place of incident wherein police have conducted mahazar as per Ex.P6. He is also the witness to seizure of axe through seizure mahazar Ex.P.9. The axe is marked as MO.1. On the basis of the voluntary statement given by the accused, MO.1 axe is seized by the police. He is also a witness to seizure mahazar Ex.P.12 through which the clothes of accused were seized.

          c) PW.3-Sangappa Angadi, is the relative of the accused. He deposes about the quarrel held between the accused and the deceased. He went to the land after he heard that the accused has killed his wife Parvatavva. PW.4-Sharanappa Police, is a material witness, who heard that there was quarrel between the accused and the deceased in the land and he immediately went there and when he saw, the deceased was dead. He has not supported the prosecution version that the accused killed the deceased, thereby he turned hostile.

          d) PW.5-Basavaraj Walikar, is also said to be the witness to the incident. But he has also not supported the prosecution version. PW.6-Dr.Ravikumar Biradar, is the doctor, who conducted the post mortem on the dead body of the deceased. PW.7-Mahantappa Begar, who is said to be the witness to seizure of MO.1 axe. But, he has not supported the prosecution's version.

          e) PW.8-Kariyappa Tubachi, is the Police Constable who has handed over the FIR to the Court. PW.9- Sharanabasappa Hajur, is the PSI, who deposed about arrest of the accused as per the report Ex.P.20. PW.10- Dr.Ninganagouda Patil, is the doctor who examined Jayamma, produce the wound certificate as per Ex.P.21.

          f) PW.11-Basanagouda Basanagoudar, is the Police Officer, who deposed that on 05.02.2019 at about 04.15 p.m. when he was in the police station, he received a memo from J.B.Hospital, Ilkal, regarding admission of Jayamma, who took treatment and lodged the complaint as per Ex.P.1. PW.12-Sanjeev Balegar, is the Police Officer, who deposed about the investigation conducted and filed the charge sheet.

11. Argument of learned counsel for the accused is that, in this case though the prosecution examined the eye witnesses PWs.1, 4 and 5, they have not supported the prosecution version and PW.4, who is a material witness, as per the prosecution, he was doing work in his land and he heard the quarrel between the accused and the deceased and soon after he came to the land and saw that the accused killed the deceased with axe and immediately the accused ran away from the spot after seeing PW.4. However he has not supported the prosecution version and therefore his evidence is of no help to the prosecution.

12. PW.5 is also said to be the eye witness to the incident. However, he has also not supported the prosecution version. Therefore, learned counsel for the accused argued that in this case there are no eyewitnesses. Further, he has argued that the only evidence available is the evidence of PW.1, who is the complainant and who is none other than the sister of the deceased. She deposed that, the accused killed the deceased with axe. In her cross- examination, the learned counsel for the accused tried to elicit the fact that there was enmity between the accused and PW.1 with regard to the land; and the deceased, who was the sister of PW.1, on that day quarreled with PW.1 and the deceased tried to assault PW.1 and she assaulted on her with MO.1 axe and she sustained the injury in the said incident. That suggestion is denied by PW.1. Further, it is also suggested to her that PW.1 being the sister of the deceased, because of the land dispute, she herself assaulted the deceased and the deceased succumbed to injuries, which is denied by her.

13. So, on perusal of the tenor of cross-examination made by the accused to PW.1, it is the defence of the accused that he has not at all assaulted the deceased, but on the other hand, PW.1 herself assaulted the deceased and deceased sustained injuries and succumbed to injuries. However, except the said suggestion, the defence has not produced any evidence with regard to that there was dispute between PW.1 the complainant and the deceased with regard to land.

14. In this case, the accused has not denied that the death of the deceased is a homicidal death. As per the evidence of doctor PW.6, who deposed that the deceased died on account of the assault with sharp-edged weapon. In the cross-examination of PW.6, on behalf of the accused, nothing is elicited to show that the deceased has not died by being assaulted with sharp-edged weapon. It is only suggested that the doctor PW.6 has not examined the material object MO.1 and given false report. So, on perusal of the evidence of PW.6, along with the post mortem report Ex.P.17, it is clear that the death of the deceased is homicidal death. Though when the prosecution has proved that it is a homicidal death, now the question arises is, who has caused the death of the deceased.

15. As per the prosecution, the accused has caused death of the deceased by assaulting her with axe. The prosecution examined PW.1 the complainant, and she has deposed that the accused assaulted the deceased. Though it is true that the eye witnesses who are cited as PW.4 and PW.5, they have not supported the prosecution's version. However, as PW.1 being the sister of the deceased, spoken about the incident and though she was cross-examined by the counsel for the accused, nothing worth elicited from her so as to discredit her evidence. Further, in this case PW.1, who is said to have gone to pacify the quarrel, and to rescue the deceased from the blow of accused she sustained the injury. For that sustained injury she took treatment in the hospital and the doctor who treated PW.1 was examined by the prosecution as PW.10. He deposed that, on 05.02.2019 at 04.11 p.m. PW.1 Jayamma came to hospital for treatment with history of assault and he further deposed that the injuries sustained by the complainant would be caused by assaulting with MO.1. In the cross examination of PW.10, learned counsel for accused suggested that the injured PW.1 did not come to the hospital and PW.10 has not treated her and he has given a false report, which is denied by PW.10. So, on a perusal of the evidence of PW.10, we are of the opinion that nothing worth is elicited from PW.10 so as to discredit his evidence.

16. On a perusal of the evidence of PW.1 and the evidence of mahazar witnesses, they have spoken about the recovery of the weapon, which was used for commission of the offence. Though they were cross examined, nothing was elicited from them so as to raise any doubt about the seizure of weapon. On the basis of the voluntary statement made by the accused, we are of the opinion that it is the accused who has committed the said offence/crime killed the deceased.

17. Now it has been established that accused caused the homicidal death of the deceased, the next question that arises for consideration is whether such homicide amounts to "culpable homicide" within the meaning of Section 299 of the IPC. If it is found to constitute culpable homicide, the further question would be whether it amounts to "murder" punishable under Section 302 of the IPC, or "culpable homicide not amounting to murder" punishable under Section 304 of IPC.

18. For determining when culpable homicide amounts to murder and when it does not, it is necessary to refer to Section 300 of the IPC, defined and a reading of Section 300 of IPC shows that it consists of two parts. The first part defines the circumstances in which culpable homicide amounts to murder, while the second part enumerates the exceptions under which culpable homicide does not amount to murder. For the purpose of the present case, Clause (4) of Section 300 and Exception (4) to Section 300 of the IPC are relevant.

19. Under Clause (4) of Section 300 of the IPC, culpable homicide amounts to murder if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such bodily injury.

20. However, Exception (4) to Section 300 of the IPC provides that 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. The Exception further makes it clear that, in such cases, it is immaterial as to which party gave the provocation or committed the first assault.

21. In the present case, the appellant/accused has not disputed that the deceased met with a homicidal death. Accordingly, it stands established that the deceased died a homicidal death.

22. Having considered the provisions relating to culpable homicide and murder, as discussed above, we now turn to the facts of the present case. As already observed that the accused and deceased were husband and wife. There were frequent quarrels between them. On the date of incident both of them went to the land wherein they again quarreled between themselves. There are no eye witnesses to the incident except the evidence of PW.1. The prosecution has not brought out any clinching evidence to show that on that day the accused went to the land along with deceased with all preparations/pre-meditation to kill the deceased.

23. On a careful and critical appreciation of the evidence, it revealed that the prosecution has failed to place any material on record to establish that the accused had pre-meditated the commission of offence. Having regard to the circumstances coupled with the evidence on record, we are of the considered opinion that the case falls within the ambit of Exception (4) to Section 300 of IPC.

24. Exception (4) to Section 300 of the IPC specifically provides that, in such cases, it is immaterial as to who gave provocation or committed the first assault. Therefore, we are of the view that the Trial Court erred in holding accused guilty of the offence punishable under Section 302 of the IPC. In our considered opinion, the acts attributed to accused would, at the most, constitute the offence punishable under Section 304 Part II of IPC.

25. With regard to offence punishable under Section 326 of IPC is concerned, in this case, the accused has been charge sheeted for the offence punishable under Section 326 IPC on the ground that he caused injury to PW.1. PW.1 is examined and she has deposed about the injury sustained by her and in support of her evidence the prosecution examined the doctor who treated her, as PW.10. The doctor PW.10 has deposed that PW.1 sustained the injury as under:

          "One wound measuring 10 centimeters present over the dorsum of right hand;

          Fracture of second metacarpal base on the right side."

26. The doctor has given wound certificate as per Ex.P.21, wherein he has stated that the injury number 02 i.e. fracture of second metacarpal base on the right side is grievous in nature. Thereby, the evidence shows that PW.1 sustained grievous injuries and thereby the finding of the Session Court that the accused has committed the offence punishable under Section 326 IPC and convicted him under Section 326 of IPC. It needs no interference.

27. In the result, the points raised for consideration are answered accordingly and we proceed to pass the following:

ORDER

          The Criminal Appeal is allowed in part.

          The impugned judgment of conviction dated 06.03.2023 and order of sentence imposed on the accused under Section 302 of IPC, dated 07.03.2023, passed by the Principal District and Sessions Judge, Bagalkote, in Sessions Case No.83/2019, is modified.

          Accused is convicted for the offence punishable under Section 304 Part-II of IPC and sentenced to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs.50,000/- (Fifty Thousand Rupees only). In default to pay the fine amount, he shall undergo simple imprisonment for a period of one year.

          The sentence awarded by the Sessions Court with regard to the offence punishable under Section 326 of IPC i.e., to undergo imprisonment for a period of five years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of one year, is retained unaltered.

          The substantial sentence imposed shall run concurrently, whereas the default sentence imposed for non payment of fine amount shall run consecutively.

          The period of sentence already undergone by the accused shall be set off as provided under Section 428 of Cr.P.C.

          Out of the total fine amount of Rs.55,000/- deposited by the accused, Rs.40,000/- (Forty Thousand Rupees only) shall be paid to the daughter of the deceased namely Sharanamma and Rs.10,000/- (Ten Thousand Rupees only) shall be paid to the PW.1 complainant-Jayamma, as she sustained grievous injuries in the incident and remaining Rs.5,000/- (Five Thousand Rupees only) shall be remitted to the State.