Basappa vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for appellant and learned Additional State Public Prosecutor.

The appellant was the accused before the trial Court in the following circumstances-

The accused and one Mallappa were said to be residents of M. Mallapur village, Gokak taluk, Belgaum district. It was alleged that the accused was in the habit of throwing goat droppings on the property of the deceased Mallappa bearing No. 97/1 in the village. The deceased Mallappa was repeatedly warning the accused not to throw goat droppings on his property and this continued over a long period of time. Therefore, there was constant friction between the accused and deceased Mallappa. On 02.07.2010 at about 9.00 a.m. it is alleged that accused had again thrown goat droppings on the property of Mallappa and a quarrel had ensued between them. On the same evening at about 8.00 p.m. when the deceased was sitting on the stoop of the front door of his house, the accused had come by and it is stated that he started abusing the deceased and again an altercation having broken out, the accused is suddenly said to have gone into his house and come out with a weapon, which was a half axe and half pickaxe.

It transpires that he attacked deceased with the weapon and had struck him four times on the left side of his neck, thereby causing serious injuries. The deceased is said to have collapsed on the spot. It transpires that the neighbourers, namely, P.Ws. 2, 3 and 4 apart from the complainant P.W.1 had come upon the scene and had noticed that the deceased was bleeding profusely and had fallen to the ground and that the accused was running away with the weapon.

It is on that basis that a complaint was lodged on the next day by P.W.1, the widow of the deceased with Ankalagi police Station of Gokak taluk, and a case was registered in Crime No. 41/2010.

It transpires that Police Sub-Inspector had visited the spot along with his staff members on 03.07.2010 in the morning and had conducted an inquest panchanama and after further investigation had seized material objects such as the blood stained mud, as well as other material objects such as a blood stained T-shirt and a checked lungi worn by the deceased, apart from the goat droppings.

After having drawn up the panchanama, he is said to have recorded supplementary statements of several witnesses and the accused was searched for. He was apprehended and produced before the Investigation Officer. A voluntary statement was said to have been recorded and at his instance it is claimed that, the murder weapon, material object M.O. No. 1 was seized, which was found to be blood stained and all the said articles were seized and sent to the Forensic Science Laboratory of Belgaum. A panchanama having been drawn up, a charge sheet was ultimately filed against the accused alleging commission of offences punishable under Sections 302 and 504 of the Indian Penal Code, 1860 (hereinafter referred to as ''I.P.C.'', for brevity) before the Court of Principal Judicial Magistrate First Class, Gokak. The Magistrate, in turn, having taken cognizance of the offences had registered a case against the accused. The accused was produced before the Magistrate and charge sheet having been furnished to him, the case was committed to the Court of Sessions. The Sessions Court, in turn, had made over the case to the Fast Track Court and thereafter the Court having framed charges against the accused, the accused had pleaded not guilty and claimed to be tried.

The prosecution had then examined P.Ws.1 to 16 and had got marked several documents apart from material objects. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to ''Cr.P.C.'', for brevity). On the basis of which the Court having heard arguments had framed the following points for consideration-

Whether the prosecution proves that on 02.07.2010 at about 20:00 hours at M. Mallapur village in front of the house of deceased Mallappa when deceased was abusing to accused in respect of throwing goat Hikki, the accused with an intention to cause murder of deceased Mallappa took axe and pikasi in a single handle and assaulted with axe side to the neck and head of deceased Mallappa and caused murder of deceased Mallappa and thereby committed an offence punishable under section 302 of I.P.C.?

Whether the prosecution proves that on 02.07.2010 at about 20:00 hours at M. Mallapur village in front of the house of deceased Mallappa when deceased was abusing to accused in respect of throwing Goat Hikki, the accused with an intention to cause murder of deceased Mallappa took axe and pikasi in a single handle and abused to deceased Mallappa in filthy languages so as to provoke breach of the peace and thereby committed an offence punishable under Section 504 of I.P.C.?

What order?

The point No. 1 was answered in the affirmative and point No. 2 in the negative. The accused was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 50,000/- and in default to undergo rigorous imprisonment for a period of three years for the offence punishable under Section 302 of I.P.C. He was held entitled for a set off of the period for he was in judicial custody. Out of the fine amount, a sum of Rs. 40,000/- was granted as compensation to the complainant. It is this which is under challenge in the present appeal.

The learned counsel for appellant while taking this Court through the record, would draw attention to the evidence of the several alleged eye-witnesses and would point out that none of the witnesses have spoken about the actual overt acts committed by the accused in allegedly causing the murder of deceased and that even in respect of the alleged altercation, the witnesses coming upon the scene simultaneously is not stated with any consistency. There is no uniformity in the manner in which the alleged witnesses are stated to have noticed as to the manner in which the accused had attacked the deceased. There is total variance in this regard. There is no indication that any of them had gone to the rescue of the deceased from being assaulted. This itself is quite unnatural for the widow of the deceased and other neighbourers, who were not far away not to have intervened and prevented the attack.

It is pointed out that the statement of P.W.2 Balappa Appayya Gasti was recorded on 03.07.2010. The statements of P.W.3 Nagappa Ramappa Harijan and P.W.4 Sattevva W/o. Doddabalappa Naik were recorded on 04.07.2010. The witnesses being in the same neighbourhood, the delay was unreasonable and it is evident that the Investigation Agency has got up these witnesses merely to bolster the charges made against the accused. The inconsistency in the narration of the incident by these witnesses is fatal to the case of prosecution. The number of injuries, which were apparent to the naked eye and which were said to have been caused by the blows delivered with the weapon that the accused was said to be wielding are incorrectly stated as 3 to 4, whereas there were five cut lacerated wounds. None of the eye witnesses have mentioned the correct number of wounds, which were visible to the naked eye which would clearly point to the witnesses being got up witnesses, and therefore, it was highly doubtful of their very presence at the time of the incident, if at all. It is pointed out that even the medical evidence is vague and there is no indication as to the particular injury having been the reason for the death. It is not even stated that it was the cumulative effect of all the injuries, which had caused death in the ordinary course of things. The seizure of the alleged murder weapon is not proved in the eye of law. The reliance placed on the voluntary statement of the accused as to the place from which the weapon was recovered is not reliable evidence on which the charges could have been brought home. On this aspect of the matter all the witnesses having consistently stated about the recovery of the weapon from the possession of the accused. Incidentally the recovery of axe or pickaxe and the blood stained clothes at M.Os. No. 8 and 9 are alleged to have been seized from the house No. 97.

But, it is also in the evidence of P.W.16, the Circle Police Inspector that House No. 97 did not belong to the appellant. It was not in the actual possession of the appellant alone. Therefore, even if the recovery of the alleged murder weapon was proved to have been recovered from House No. 97, it could not be directly connected with the appellant nor it could be the proof of the fact that it was the accused, who had committed the alleged murder. The appellant is again a man of poor means, his parents are aged and suffering from ailments. The financial condition of the appellant is said to be precarious and the imposition of fine of Rs. 50,000/- is hardly capable of being met by the accused.

P.W.3, who is said to be a witness to the incident is silent about the verbal altercation that preceded the alleged attack. P.W.4, who is again an another eye-witness has stated that prior to the actual assault, there was verbal altercation for about 15 minutes between the appellant and the deceased. Therefore, even if there was an assault, it had happened at the spur of the moment without any premeditation and on account of a quarrel having broken out, and therefore, it could not be said that the offence would fall strictly within the meaning of culpable homicide amounting to murder, and hence, the learned counsel would submit that, even assuming that the appellant is found guilty of the offence, it could only be under Part - II of Section 304 of I.P.C. and conviction of the appellant under Section 302 of I.P.C. was hence illegal and not maintainable.

The learned counsel would submit that as seen from a reading of the evidence of several witnesses and the other infirmities that are glaring, the court below having proceeded to hold that the prosecution had established its case beyond all reasonable doubt, cannot be countenanced. That the conviction and sentence by the court below be set aside and the accused be acquitted.

While the learned Additional State Public Prosecutor would vehemently oppose the appeal and would seek to justify the judgment and sentence of the trial Court. He would dispute the contention of the appellant that the evidence of P.Ws.1 to 4 is not consistent.

It is pointed out that P.W.1 is the widow of the deceased. She has categorically stated that there was long standing enmity between the appellant and the deceased and even prior to the assault by the accused, on the deceased, there was an altercation and by the time she came out of the house, on hearing the cries for help by her husband, she saw that her husband was profusely bleeding and had fallen to the ground and that appellant was running away from the scene, so also is the evidence of said witnesses P.Ws. 2 to 4. The minor discrepancies are quite but natural and would even be an indication that the witnesses have given their own perspective of the scene. It is, therefore, not open for the accused to place emphasis on the minor variations and to claim that such evidence would be fatal to the case of the prosecution.

On the other hand, it would be an indication that the witnesses have spoken naturally in the manner that they have perceived the sequence of events and it should, in fact, be held even more against the accused and cannot be dismissed as being inconsistent and being fatal to the case of the prosecution.

Insofar as the recovery of the blood stained clothes and murder weapon from the home of the appellant, is also not denied. It is only claimed by the defence that House No. 97 did not belong to the appellant alone, but it is not denied that he was residing and there was none else as occupants of House No. 97, who had any enmity with the deceased, it was only the appellant and is was well known that there was growing between appellant and the deceased. There was provocation by constant throwing of goat droppings by the accused on the property of the deceased.

The contention that there was no premeditation and that the attack had taken place, if at all, under extreme provocation and in a sudden fit of passion, is also not tenable, as there is evidence on record to show that the accused and the deceased were suddenly quarrelling and even preceding the assault there was a verbal altercation, which went on for 15 minutes, before accused brought the murder weapon from inside his house and contacted the deceased not once or twice, but four times on his neck with the axe, thereby causing grievous injuries, which have ultimately resulted in the death of the deceased. The several contentions raised as grounds in this appeal were, in fact, the defence set up before the trial Court and the trial Court has categorically addressed each one of these contentions including a contention that the blood stained clothes and the murder weapon, which also contained blood stains, were sent for forensic examination to the Forensic Science Laboratory, Belgaum, and there was report submitted, though it was claimed that the blood stains found on the clothes and on the murder weapon were of the AB blood group and that there was no co-relation between the blood found on the blood stained clothes and the weapon and the blood group of Mallappa, as there was no indication of blood group of Mallappa anywhere in the record including the post mortem report is concerned, is not a relevant factor. The case turns on the circumstantial evidence and the direct eye-witnesses on account of P.Ws.1 to 4.

The prosecution does not rest its case on the Forensic Science Laboratory Report alone. Even if the same is eschewed, the prosecution is in a position to demonstrate the commission of the offence by the accused, as rightly held by the trial Court, and therefore, he would submit that there is no substance in the several grounds urged in the appeal. The minor infirmities and inconsistencies are sought to be highlighted for the sake of it, in order to demonstrate that the same are fatal to the case of the prosecution, which is not so. If on a dispassionate reading of the evidence it is seen that the witnesses had no relationship with the accused or the deceased and they were independent witnesses, who have spoken to the sequence of events, in a natural way, and the very inconsistencies would have to be accepted as being a natural manner in which witnesses view the same scene in a different perspective. This is neither unnatural nor it could be dismissed as being the evidence of got up witnesses, and hence, he would submit that there is no warrant for interference in the punishment imposed, as the accused has committed a dastardly act with premeditation and has caused the death by a brutal attack with an axe and repeatedly assaulting the deceased, and hence, there should be no mercy and the plea of the accused that he is a poor man and has aged parents and that he is not in a position to pay the fine are no grounds for reducing the punishment or acquitting the accused and seeks dismissal of the appeal.

In the light of these contentions and on a perusal of the record, it is evident that the accused was suddenly provoking the deceased by throwing goat droppings on his house, which were deliberate acts intended to irritate and agitate the deceased and quite naturally the deceased was constantly quarreling with the accused. On 02.07.2010 when the incident had occurred, it is on record that there was an altercation at 9.00 a.m. followed by an altercation, immediately preceding the assault by the accused to the hearing of P.Ws.1 to 4 and it is on hearing the final cries of the deceased, after he was assaulted with the murder weapon by the accused, that the witnesses almost, simultaneously, have come on the scene. Since an attack with an axe would hardly take a few seconds, the witnesses have not actually witnessed the overt act of the accused, striking the deceased with an axe does not take on much significance for otherwise they have seen the deceased fall to the ground with the bleeding injuries and the accused running away with the murder weapon. This coupled with the fact that they had heard the voices of both the deceased and accused, immediately preceding the assault, is sufficient circumstantial evidence. Even if their evidence could not be treated as that of direct eye-witnesses to the overt acts of the accused actually committing the assault and delivering the blows on the left side of the neck of the deceased, it would be sufficient proof of the commission of the offence. The other aspects as to the inconsistencies in the evidence of the said witnesses is also not tenable as the inconsistencies are not of a such degree, as would require this Court or the trial Court, to brush aside the evidence of these witnesses.

P.W.1, who is the widow of the deceased was allegedly not living with him and had deserted him and had moved to another village. Though it was sought to be suggested by the counsel before this Court, there is no material evidence in this regard and the witness having been tested in cross-examination on these aspects has stood the test of cross-examination. Similarly the other witnesses are all unrelated and it is neighbourers, who have spoken about the assault by the accused. Hence, their evidence cannot be disbelieved as being that of got up witnesses as sought to be canvassed. The recovery of the murder weapon and the blood stained clothes on the basis of an extra judicial confession, which, of course, could be doubted in a particular case, cannot be brushed aside in the present case on hand.

It is not the case of the appellant that the said material was not recovered from House No. 97. The particular defence set up is that the House No. 97 does not belong to appellant alone and that he is not only the person living in it. There is actually no denial of recovery of these objects from the house of accused. The fact that there are other occupants is not material when it is not denied that House No. 97 is where the accused was living and as rightly pointed out by the Additional State Public Prosecutor, there is no material to show that there was any other person living in House No. 97, who had animosity against the deceased and it is the appellant alone, who was constantly quarrelling with the deceased. Therefore, there are sufficient direct eye witnesses and other circumstantial evidence which the prosecution had placed before the trial Court in order to establish the charges against the accused, which have been proved beyond all reasonable doubt. Therefore, the conviction of the accused is in order and does not warrant interference.

However, insofar as the contention that there is no premeditation and that the assault, if any, could be attributed to extreme provocation and the attack has taken place in a fit of passion, cannot be dismissed as not applicable to the present case on hand, on the footing that there were constant quarrels and on the fateful day there had been a quarrel at about 9.00 a.m. and it was repeated in the evening just prior to the assault, and therefore, there was premeditation on the part of the accused as an ambiguous circumstance. In the instances where there is extreme provocation, in a particular instance, and without premeditation an assault taking place is one situation, but there can also be situations where there is constant provocation as between two individuals and at a particular point of time when there is a break down of controlled action, it is possible for the accused to take the extreme step of committing an attack resulting in bodily harm or death of the victim. This is one such instance where the intention of the accused was clear that he intended to provoke and irritate and cause much nuisance to the deceased and this had been going on for quite some time and when the deceased had retaliated by abusing him and provoking, in return, the accused having armed himself with an axe and having attacked him causing injuries and causing his death, it cannot be said that it was not akin to an act committed on account of extreme provocation and in a fit of passion. This is also a possibility in such circumstances. Therefore, in our opinion, the action of the accused would fall within the Exception No. 4 to Section 300 of I.P.C. Where, it is laid down that culpable homicide would not be 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 actions of the accused in the present instance would perfectly fit into the situation contemplated in Exception No. 4 to Section 300 of I.P.C. Therefore, the act of the accused would fall within the Exception in Part-I of Section 304 of I.P.C.

However, having regard to the circumstances of the case and the fact that the appellant comes from the lower strata of the society and has aged parents and so on and so forth, it would be expected that he would turn a new leaf if he is shown some mercy and that he would have learnt his lesson well and the accused appellant having remained in custody for the past five years and two months, therefore, the accused is found guilty of having committed culpable homicide amounting to murder, but falling under Part - I of Section 304 of I.P.C. and consequently, we reduce the sentence from life imprisonment to rigorous imprisonment for seven years and while confirming the sentence of fine of Rs. 50,000/-, in the event of default of payment of fine, the appellant shall undergo rigorous imprisonment for one year. In other respects, the sentence and conviction are left undisturbed. The accused shall be entitled to set off for the period that he has spent in custody in terms of Section 428 of the Code of Criminal Procedure, 1973. The appeal is disposed of, in terms as above.