(Prayer: This criminal appeal is filed under Section 374(2) of the Cr.p.c., praying to set aside the judgment of conviction dated 8-3-2021 and order of sentence dated 9-3-2021, passed by the lxiv additional city civil and sessions judge (cch-65) at bengaluru in sessions case no.493 of 2014, convicting the appellant/accused for the offence punishable under section 302 of IPC.)

Oral Judgment:

H.P. Sandesh, J.

1. Heard Sri I.S. Pramod Chandra, learned counsel appearing for the appellant and Smt. Rashmi Jadhav, learned Addl. SPP appearing for the respondent-State.

2. The appellant-accused has filed this appeal praying to set aside the judgment of conviction dated 08-03-2021 and order on sentence dated 09-03-2021, passed by the LXIV Addl. City Civil and Sessions Judge (CCH-65) at Bengaluru, in Sessions Case No.493 of 2014, wherein, he has been convicted and sentenced to undergo rigorous imprisonment for life, along with fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months, for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC').

3. The factual matrix of the prosecution case is as follows:

                  The accused is the father-in-law of the deceased, Suresh Kumar, but his relationship with the deceased was not cordial due to domestic disputes. On 19.04.2013, when the accused attempted to speak with his daughter, the deceased allegedly pushed him and did not permit him to speak with her. Being annoyed by the same, the accused, on that very day at about 10.30 p.m., again went to the house where his daughter PW-1 Geethanjali was residing with her husband, the deceased Suresh Kumar, and picked up a quarrel with his son-in-law. With the intention of causing his death, or with the knowledge that an assault with knife was likely to cause injuries which in all probability would result in death, the accused assaulted Suresh Kumar with knife on his stomach. Due to the said injury, he succumbed on 20.04.2013 at about 02.30 a.m. while undergoing treatment at St. John’s Hospital, Bengaluru. Thereafter, case was registered based on the complaint Ex.P1 lodged by the wife of the deceased, who is also the daughter of the accused. The said complaint narrates the incident and was given at about 05.00 a.m. Based on the same, case was registered in Crime No.126 of 2013 for the offence punishable under Section 302 of the IPC.

4. Based on the complaint, FIR was registered and forwarded to the Court. Thereafter, the accused was arrested on the next day. During the course of investigation, recovery was made at the instance of the accused, namely the knife and blood-stained clothes. The Investigating Officer also recorded the statements of witnesses. The dead body was subjected to inquest and post-mortem examination. After completion of all the investigation, the charge sheet was filed.

5. On receipt of the charge sheet, cognizance was taken and charges were framed against the accused for the offence punishable under Section 302 of IPC. The accused did not plead guilty and claimed to be tried.  Hence, in order to prove its case, the prosecution examined PWs.1 to 18, marked Exs.P1 to P17, and also produced MOs.1 to 9.

6. On completion of the prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure, wherein the incriminating circumstances appearing against him in the evidence were put to him. The accused denied the same and did not choose to lead any defence evidence.

7. The trial Court, having considered the evidence of the doctor-PW10 and the nature of injuries, noted the suggestion made on behalf of the accused that the injury was accidental, however, the said suggestion was not accepted by PW10, who conducted the post-mortem examination. Though the weapon was not sent to the doctor for obtaining further opinion, the trial Court, considering the nature of injuries, came to the conclusion that the death was homicidal in nature.

8. The trial Court, relying upon the evidence of PW1, who is the complainant as well as the daughter of the accused, and the evidence of other witnesses, namely PW2 and PW9, who are also the daughters of the accused, PW3, the wife of the accused, and PW13, the mother of the deceased, considered the eyewitness account and the other material available on record. The seized articles were also sent to the FSL, and Ex.P16, the FSL report, indicates positive results.

9. Having considered all these materials, particularly taking note of MO4 and MO5 containing bloodstains and also MO1 to MO3, namely the pant, shirt and knife, along with the MO6-clothes, MO7-pant, MO8-shirt and MO9-knife, the Court came to the conclusion that the accused alone committed the murder of his son-in-law and convicted the accused for the offence punishable under Section 302, sentencing him to imprisonment for life with fine. Being aggrieved by the judgment of conviction and sentence, the present appeal is filed.

10. Learned counsel appearing for the appellant would vehemently contend that there is an improvement in the evidence of PW9 to the effect that the accused brought a machete. However, it is not the case of the prosecution that the accused inflicted the injury with a machete; rather, the prosecution case is that the injury was inflicted with a knife. None of the witnesses have stated that the accused brought a knife and inflicted the injury.

11. Learned counsel would further contend that the evidence of PW1, PW2, PW3 and PW9 is not consistent with the case of the prosecution. Though the doctor was examined as PW10 and conducted the post-mortem examination, his evidence also cannot be relied upon. During cross- examination, a suggestion was made that the injury might have been caused due to an accidental fall and contacted with sharp- edged object, and the same was not specifically denied. It is also pointed out that although the knife and clothes of the accused were said to have been recovered, PW8, the witness to the recovery, turned hostile and did not support the case of the prosecution.

12. Learned counsel for the appellant would further contend that the trial Court, despite considering the evidence available on record, erred in convicting the accused for the offence under Section 302 of the IPC. It is mainly contended that though no specific defence was taken, suggestions were made in the cross-examination of the witnesses that there was a sudden fight and that the deceased allegedly pounced first on the appellant. The injury might have been caused in the course of scuffle or due to fall on a sharp object, and there was no intention to kill. However, the trial Court erroneously came to the conclusion that the ingredients of Section 302 of the IPC were attracted.

13. It is further pointed out that the trial continued for about 8½ years and, even subsequent to the conviction, the appellant has already been in custody for about 12 years and 10 months. The learned trial Judge misapplied Section 302 of the IPC and failed to consider Exception 4 to Section 300 of the IPC, particularly when the prosecution evidence itself indicates a sudden fight and mutual provocation.

14. Learned counsel would further contend that the incident was the result of sudden fight in the backdrop of family discord. There was no premeditation and only a single blow was inflicted. The fact that only a single blow was inflicted clearly indicates that there was no intention to take away the life of the deceased. These aspects have not been considered by the trial Court while deciding the case.

15. Learned counsel, in support of his arguments, relies upon the judgment of the Apex Court in ANBAZHAGAN V. STATE REPRESENTED BY THE INSPECTOR OF POLICE,

reported in 2023 LiveLaw (SC) 550. He draws the attention of this Court to the discussion made in paragraph No.25, wherein the Apex Court has elaborately discussed that “intent” and “knowledge” cannot be equated with each other.

16. Learned counsel also refers to paragraph No.37 of the judgment, wherein the Apex Court has discussed in detail the scope of Sections 299 and 300 of the IPC with regard to “intent” and “knowledge”. Further reliance is placed on the summarisation made by the Apex Court in paragraph No.60 of the judgment, wherein various important principles of law are discernible from the discussion. The Court has also referred to clauses (1) to (4) of Section 300 of the IPC and explained that an act may amount to murder even if only a single injury is caused.  Illustrations have also been discussed in sub-clauses (1) to (9).

17. The Apex Court has observed that the intention to kill is not the only intention that makes culpable homicide a murder. The intention to cause such bodily injury as is sufficient in the ordinary course of nature to cause death would also make the offence murder. If death has actually been caused, the intention to cause such injury or injuries may be inferred from the act resulting in such injury.

18. Learned counsel has also drawn the attention of this Court to point No.10 of paragraph 60, wherein it is observed that "when a single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused had no intention to cause death or to cause the particular injury which resulted in the death". The Court has further held that it must be examined whether the prosecution has proved that the accused had the intention to cause death or to cause such bodily injury.

19. Further, in point No.12 of paragraph No.60, the Apex Court has observed that while determining "whether the accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC". Referring to the said judgment, learned counsel would vehemently contend that in the present case also only a single blow was inflicted and the trial Court lost sight of this important aspect while appreciating the evidence on record.

20. The counsel also relies upon the judgment of the Apex Court in STALIN V/S. STATE REPRESENTED BY THE INSPECTOR OF POLICE reported in 2020 (9) SCC 524, wherein it is observed that "not found attracted as the single fatal knife-blow was occasioned by scuffle which had ensued between the parties due to exchange of hard words. Occurrence took place out of sudden and grave provocation. But considering, that accused inflicted blow with weapon like knife, and he inflicted injury on deceased on vital part of body, it is to be presumed, that causing such bodily injury was likely to cause death. Therefore, case would fall under S. 304 Pt. I and not under S. 304 Pt. II. Therefore, conviction of accused, stands modified from that under S. 302 to S. 304 Pt. I".

21. Referring to the said judgment, learned counsel would further contend that the trial Court has misapplied Section 302 of the IPC. It is therefore urged that this Court has to consider the alternative argument that, firstly, the prosecution has failed to prove the case against the accused. Even otherwise, if this Court comes to the conclusion that the accused is responsible for the act, the case ought to fall within the Exception to Section 300 of the IPC rather than under Section 302.

22. Per contra, learned Addl. SPP appearing for the State would contend that the accused was arrested on the very next day of the incident. The complaint, Ex.P1, clearly discloses that when a person came and knocked on the door, the inmates of the house were not aware of who was knocking. However, when the door was opened, the accused suddenly started quarrelling with the deceased. This itself indicates premeditation, as he had come with a weapon.

23. Learned counsel would further contend that there had been an incident earlier on the same day in the evening when the accused tried to speak with his daughter, at which time the deceased pushed him. Hence, the accused was having enmity. Not only there was an enmity against the son-in-law, but also against the family members, as he was residing separately and not along with them. With the intention of taking away the life of the deceased, he came with a weapon and inflicted the injury.

24. Learned counsel for the State would further contend that upon the arrest of the accused, the blood-stained knife as well as the blood-stained clothes of the accused were recovered, and the FSL report is also positive. It is further contended that if the accused had not taken the knife and if, as suggested, the deceased himself had taken the knife during the scuffle, the accused would have sustained some injuries. However, no injuries were found on the accused. It is also pointed out that all the witnesses have specifically stated that the accused inflicted the injury with a knife, and this aspect has not been specifically denied during the cross-examination of the witnesses.

25. Learned counsel for the State further submits that the accused was leading a life with bad vice, as he was addicted to alcohol. When the family members attempted to reform him and advised him to reform himself, instead of reforming himself, he developed an intention to eliminate his son-in-law. With that intention, he came with a weapon and inflicted an injury on a vital part of the body. Therefore, the question of invoking Section 304 Part I or Part II of the IPC does not arise.

26. It is further contended that the accused came with a weapon and inflicted the injury on a vital part, resulting in death of the deceased on the same night. This clearly shows that he had the intention to take away the life of the deceased. Hence, it is not a case for altering the conviction to Section 304 Part I or Part II.

27. Having heard learned counsel for the parties, and upon considering the principles laid down in the judgments referred supra by the counsel for the appellant, as well as the factual aspects of the case, the following points arise for the consideration of this Court:

                  1. Whether the trial Court committed an error in convicting the accused for the offence punishable under Section 302 of the IPC and imposing the sentence?

                  2. Whether the incident was the result of sudden provocation and a sudden fight and therefore falls under Section 304 Part II of IPC?

                  3. Whether the same calls for interference by this Court?

28. Having considered both oral and documentary evidence available on record, it is seen that the law was set in motion based on the complaint, Ex.P1, given by PW1. In the complaint, PW1 has narrated how the incident took place. It is the case of the prosecution that on the date of the incident the son-in-law had gone to festival, namely Srirama Navami. After seeing his daughter and other family members along with the son-in-law, the accused attempted to speak with his daughter, Shamili. At that time, the deceased pushed him, as a result of which he fell down.

29. It is further case of the prosecution that at about 10.30 p.m. the accused came to the house and knocked the door. At that time, the inmates of the house were not aware of who had come and knocked the door. However, when the door was opened, the accused suddenly picked up a quarrel with the deceased and both of them started fighting with each other. At that time, they noticed an injury on the abdomen of the deceased. When the deceased started screaming, the accused ran away from the spot with the knife. Immediately, the injured was shifted to the hospital, where he ultimately succumbed to the injuries.

30. Having considered the contents of the complaint, Ex.P1, the same has been reiterated by PW1, who is none other than the wife of the deceased and the daughter of the accused. The prosecution mainly relies upon the evidence of PW1, PW2, PW3 and PW9. PW2 and PW9 are the daughters, and PW3 is the wife of the accused. No doubt, the prosecution has also relied upon the evidence of PW13, who is the mother of the deceased.  However, her evidence is not of much significance, as she is only hearsay witness and was not present at the time of the incident.

31. Having considered the evidence of PW1, PW2, PW3 and PW9, who are the eyewitnesses, the main contention of the learned counsel appearing for the appellant is that PW1, PW2 and PW3 have not stated that the accused had brought the knife. They have only deposed before the Court that the accused inflicted the injury with a knife. Even with regard to the said assertion, there is no specific denial that the accused inflicted the injury with a knife. However, the main contention of the counsel before this Court is that none of these witnesses have stated that the accused himself brought the knife. According to the learned counsel, this aspect has been overlooked by the trial Court while holding the accused guilty of the offence punishable under Section 302 of the IPC.

32. The learned counsel for the appellant also vehemently contended that there is an improvement in the evidence of PW9, wherein she has stated that the accused brought a machete. However, PW9 has categorically stated that  she  did  not  witness  with  which  knife  the  injury  was inflicted. Though there is no cross-examination on that aspect, her statement that the accused brought a machete creates a discrepancy, particularly when there is a difference between a machete and a knife, and she herself did not witness the actual weapon used. When such evidence lacks accuracy and consistency, the evidence of PW1, PW2 and PW3 assumes importance, as they have clearly stated that the accused inflicted the injury with a knife.

33. It is also important to note that the doctor has been examined as PW10. His evidence clearly speaks about the nature of the injury, including its width and length. Though the learned counsel submits that the depth of the injury has not been mentioned, during the course of cross-examination PW10 has categorically stated that the injury had penetrated the abdominal cavity, indicating that it was a severe injury. However, nothing worthwhile has been elicited in the cross- examination of PW10.

34. Having considered the evidence of the eyewitnesses as well as the evidence of the doctor, PW10, it is clear that the case is one of homicidal death.  The evidence of PW1, PW2 and PW3 also point out to the guilt of the accused. In such circumstances, we do not find any error on the part of the trial Court in appreciating the evidence and coming to the conclusion that it was the accused who inflicted the injury, as a result of which the deceased succumbed to the injuries.

35. The second limb of the argument of the learned counsel appearing for the appellant before this Court is that the trial Court lost sight of certain aspects while appreciating the evidence in applying Section 302, and that the said penal provision has been misapplied as the case does not fall under Section 302. No doubt, in the complaint, Ex.P1, the complainant has not stated that the accused had brought the knife, and the complaint also does not specifically disclose the actual infliction of the injury. However, the complaint clearly reveals that there was a scuffle between the deceased and the accused. It is also stated that the deceased raised a hue and cry, and at that time they noticed an injury on the abdomen with blood oozing out. When they attempted to pacify the situation, the accused ran away from the spot with the knife.

36. It is also not in dispute that the knife and the clothes of the accused, which were blood-stained, were seized at the instance of the accused. Though PW8, the witness to the recovery, has turned hostile, in a case where there is eyewitness account and the evidence of the Investigating Officer is available before the Court, the turning hostile of the recovery witness would not make much difference. Further, the FSL report also connects the accused with the crime, as the material objects were found stained with blood and blood was detected on the clothes of the deceased as well as on the clothes of the accused.

37. The next question for consideration is whether the case falls within the ambit of a sudden fight and provocation, as contended by the learned counsel for the appellant, who argues that the incident was the result of sudden provocation and a sudden fight and therefore the case ought to fall under Section 304 Part II of the IPC.

38. The said contention cannot be accepted for the reason that, on the very same day in the evening, there was an incident when the accused tries to speak to his daughter and at that time, the deceased pushed him, as a result of which he fell down. This fact has not been denied in the cross-examination of PW1, PW2 and PW3. There is also no effective cross- examination disputing that the accused had visited the house of PW1 and the deceased and scuffle was taken place.

39. The only contention urged is that the incident occurred due to sudden provocation. However, the material on record indicates that the accused inflicted injury with a weapon and, after inflicting the injury, ran away from the spot with the knife. The said knife was later seized at the instance of the accused. These circumstances can be taken into consideration by the Court. Therefore, the reliance placed by the learned counsel on the judgment of Anbazhagan supra does not come to the aid of the appellant. With regard to the aspect of “intent” and “knowledge”, in the said case the incident had taken place during a scuffle between neighbours while transporting the harvested crop, which arose out of sudden provocation and sudden fight. However, in the case on hand, the accused went to the house of the deceased at about 10.30 p.m. in the night and started quarrelling with his son-in-law with a motive and pre-existing ill-will. He had also gone there and inflicted injury with weapon, which indicates premeditation and he ran away from the place with knife. When such being the circumstances, the said judgment does not come to the aid of the appellant.

40. The other citation relied upon by the learned counsel for the appellant is Stalin supra. In the said case, the incident involved a single blow. No doubt, in the case on hand also there is a single blow. However, in the said decision the Apex Court has taken note of the fact that the occurrence had taken place due to sudden and grave provocation. Such circumstances are absent in the present case.

41. This Court has already distinguished the judgment in Anbazhagan supra by taking note of the factual aspects of the case. Having considered the facts and the evidence of the eyewitnesses, it is clear that there was no sudden fight or sudden provocation. On the other hand, the accused went to the house of the deceased and inflicted an injury on the abdomen, which was likely to cause death that too on the vital part.   Since  there  was  no  explanation  on  the  part  of the accused in his statement under Section 313 Cr.P.C. that he had not gone to the house of the deceased with a weapon, and no such defence was taken during the trial, the contention of the learned counsel that the accused did not go with a knife cannot be accepted but not the case that he inflicted injury with knife which is available at the spot and he picked and inflicted.

42. When the accused went there and inflicted injury with the weapon and inflicted the injury with the intention of eliminating the deceased, the question of bringing the case within the purview of Section 304 Part I or Part II of the IPC does not arise. Therefore, we do not find any merit in the contention of the learned counsel for the appellant that the case would not fall under Section 302 and that it comes within the exception to Section 300. The said contention cannot be accepted.

43. Accordingly, we answer the points as follows:

                  ORDER

                  i) Appeal is dismissed.

                  ii) The appellant-accused is entitled for the benefit under Section 428 of Code of Criminal Procedure.