IN THE HIGH. COURT OP KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS 9L{f 9TH Dfl o’ rovj BER 25 THE HONELE MRJUSTICE MORAN SHANTANAOOUDAR AND THE HON’BLE MRJUSTICE RAVI MALIMATH CRIMINAL APPEAL No.171/2008 BETWEEN: STATE BY RARNATAKA BY THE LTRoLE PSPIU lOP O PLTCE BAGALKOT RURAL POLICE STATION. APPELLANT [BY SHRI VM. BANAIR, ASPP] AND: SANGAPPA, S / 0 BASAPPA MADAR. ACED ABOUT 46 YEARS. DCC: AGRICULTURE R/O RAMPUR, TALUK BAGALKOT .RESPONDENT [BY SRI, SRINAND A. PACHHAPURE, AMICUS CURIAE] r.I III I APPEAL IS PILED TIT4UL7p SECTION 378(1) P ‘2- 46 46 ‘*E z*E 31ZP)TAJ AGAINST TILE JHDDMF\T: AND ORDER UI ALDUITTAL I 1/2007 PASSEI) BY 3.3. BADALiUDT. IN IOU!, THIS cRIMINAL APPEAL IS COMING ON PC R FINAL HES RING THIS DEY MOHAN SHANTANAGOUDAR U DELIVE•RED THE FOLLOWING: DGM This appeal is filed by the State against the judgment and order of acquittal of the respondent for an offence punishable under Section 302 of the Indian Penal Code. Though the accused/respondent was charged and tried for the offence under Section 302 of the Indian Penal Code, he was found guilty for the offence under section 304 Part II of the Indian Penal Code and was sentenced accordingly. Hence, the State is before this Court praying for an order, convicting the accused/respondent for an offence under Section 302 of the Indian Penal Code. 2. The case of the prosecution in brief is that due to the ill-treatment and negligence on the part of the accused to maintain his wife and children, his wife and children moved to her parental house. He attempted to bring back his wife and children to his house. In this regard, he used to move around his in-laws’ house armed with deadly weapons like axe, knife etc. On 06/02/2007, he again started moving around their house armed with axe abusing them. Thus, his wife, her brother and others decided to lodge a complaint before Rampur Police Outpost and when they were :3: proceeding near Durgadevi temple, the accused rushed towards them armed with an axe and tried to assault his wife Rudramma. In the meanwhile, her elder brother Bhimshi intervened and snatched the axe from him and threw it away. Immediately, thereafter, the accused took out the knife which he was possessing and pierced into the chest of Bhimshi. The younger brother of the wife of the accused namely Adiveppa(PW- 1) in order to prevent his brother from the further assault by the accused, snatched the knife, consequent upon which, he too sustained minor injuries. On the way to hospital, Bhimshi succumbed to the injuries. A complaint was lodged by Adiveppa(PW-1) before Bagalkot Rural Police Station which came to be registered in Crime No.35/2007. The police, after investigation, filed a charge sheet for the offences punishable under Sections 302, 324 and 504 of the Indian Penal Code. During the course of trial, the prosecution in all examined 18 witnesses and got marked 26 exhibits and 12 material objects. 3. Upon hearing, the trial Court convicted the accused for an offence punishable under Section 304 (2) and sentenced him to undergo 3 years rigorous imprisonment on :4: the ground that there was no motive on the part of the accused to murder the deceased and the incident has taken place in a spur of moment. 4. Sri. Banakar, learned Additional State Public Prosecutor for the State submits that mere fact that accused No.1 had gone to the spot with the knife itself goes to show that he had prepared himself to do away with the life of either his wife or her two brothers who had interfered. Thus, according to him, the material on record would clearly prove the case of the prosecution against the accused for an offence punishable under Section 302 of the Indian Penal Code. 5. Sri. Srinand A. Pachhapure, Amicus curiae, argued in support of the judgment and order of acquittal impugned contending that the trial Court is justified in concluding that there is no prior preparation on the part of the accused to commit murder. He further submits that the incident has occurred in a spur of moment :5: 6. PW- 1 is the complainant He is an injured eye witness. He has deposed about the incident that had occurred in the evening of 06/02/2007. He has supported the case of the prosecution as found in the complaint Ex.P- 1. His evidence reveals that the marriage between the accused and his sister Smt. Rudramma(PW-3) was performed about twelve years prior to the date of the incident and since the accused used to drink and harass his wife and children, they came to her parental house. The accused came to his house and quarreled with them for getting his wife and children back. On the date of the incident, i.e., on 06/02/2007, he started wandering neat the house of PW-1. In this view of the matter, when PW- 1 along with his sister and PW-3 mother, deceased and others were going to the police station for intimating the police. At that point of time, the accused tried to assault Rudramma with an axe and Bhimshi, brother of PW- 1 intervened and snatched the axe. At that point of time, accused took out the knife which he was possessing and pierced into the chest of the deceased. He succumbed to the injuries on the way to the hospital. Nothing is elicited in the cross-examination of PW-1 so as to discard his evidence. PW-1 has also suffered certain simple vs * :6: injuries, therefore, his presence, at the time of the incident, cannot be disputed. The evidence of PW- 1 is corroborated and supported by the evidence of PWs.2 to 7 who are also the eye-witnesses to the incident who have also consistently and cogently stated about the incident in question. After re appreciating the evidence on record, we find no ground to disbelieve the consistent and cogent version of the eye witnesses. Therefore, the trial Court is justified, in relying upon the version of the eye-witnesses, to come to the conclusion that the accused assaulted the deceased with knife. 7. It is not in dispute that the death was as a result of the injuries sustained by Bhimshi in the incident in question. The death has taken place on the way to the hospital. The Doctor has opined in his postmortem report as well as in the evidence that the death is due to haemorrhage and consequent injury to thoracic vessels. Therefore it cannot be disputed that the incident in question is a direct result of assault by the accused. Consequently the death is homicidal in nature. :7: 8. As could be seen from the medical evidence the injured/deceased has sustained only one injury, that is, a single clean cut incised wound measuring 1” in length and 1/2” in width and 3” in depth directing postirio medially into thorax. 9. It is also clearly mentioned in the medical records that there is no other evidence of external injuries. P.W. 1 as well as the accused have sustained certain injuries though minor in nature. The defence of the accused is that the scuffle took place between the accused and the deceased in which P.W. 1 and the wife of the accused intervened consequent upon which the unfortunate incident has occurred. 10. Be that as it may, the fact remains that the accused suddenly took out the knife and stabbed P.W. 1. The intention of the accused appears to be to threaten his wife and others. The intention of the accused does not appear to take away the life of any of the persons. The trial Court on proper appreciation of the material on record has rightly concluded that the incident has occurred suddenly and at the spur of the moment. Because of the continuous living of the wife of the accused at. ht r parents place alona uith the chldttn. tht a’ c used cten’ I hcae been anncn ccl iewc.f the case ith this background, tht tr ii (carl ; •ustf’cd n cor ‘ludnp ha the ofituce ‘cUll fall under ‘3cc uon 304 Pan II of the Indian Penal t’nde Ever “ri rr•appree¼itng th material on ret urd ‘e find that 11w rrasoris asigned b the Court belou in coming to the said conclusion cannot be said to be crrontous 1 1 It is now ie1l settled rh€ cven ‘ hen ‘ c views are possible from the material on record the High Court ‘c’ ot 4 ld normalli not interfer’ with thc. t.i cler nf ricqulttct if thr tnt C. unPas iPn n pssih1c wit” ‘ t eric it 4- .11 o is’dercd irj 0 ç nc 1 tc i d r ‘a 1 r”asn’. —ss’gnect En tI 1 r !iclc’y r .•.., i tir’ • u Qsrfl fc’r lit ‘ tr’ .“.ltT .—c’t i 0 ; rr.r’ iT .,t i ic I. ‘iin c. ni tc i• .i’. •,. 1 ’y.g s s’ _t’.r ‘ a’n • rp ‘ta ‘. t TI ) I (C Fc’fi I r rl’s .. x :9: We appreciate the assistance of learned amicus curiae while deciding the matter. in view of the same, the honorarium of Rs.7000/- (Rupees Seven Thousand only) is fixed to be paid to the learned amicus curiae. a Sd/a 3UDGE Sd/a JUDGE Kmv&Rsk/