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CRL.A No. 403 of 2018

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 31

st

DAY OF JANUARY, 2026

PRESENT

THE HON'BLE MR. JUSTICE H.P.SANDESH

AND

THE HON'BLE MR. JUSTICE VENKATESH NAIK T

CRIMINAL APPEAL NO.403 OF 2018 (C)

BETWEEN:

SUBRAMANYA H.T. @ LORRY SUBBANNA

AGED ABOUT 52 YEARS

S/O. BASAVA POOJARI

OCCUPATION: DRIVER

RESIDENT OF RAMA COMPLEX, 2ND CROSS

(GURUBHAVAN ROAD)

MARIGUDDA, HOSANAGAR TOWN

SHIVAMOGGA-577 418

KARNATAKA.

…APPELLANT

(BY SRI HARISH KUMAR M.C., ADVOCATE)

AND:

THE STATE OF KARNATAKA

THROUGH HOSANAGAR POLICE

REPRESENTED BY THE STATE PUBLIC PROSECUTOR

HIGH COURT BUILDINGS

BENGALURU-560 001.

…RESPONDENT

(BY SMT. RASHMI PATEL, H.C.G.P.)

* * *

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF

THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND O RDER OF

CONVICTION AND SENTENCE DATED 19-1-2018 PASSED BY

V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGG A,

SITTING AT SAGAR, IN SESSIONS CASE NO.10017 OF 2017 ,

THEREBY, CONVICTING THE APPELLANT/ACCUSED FOR THE

OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

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CRL.A No. 403 of 2018

THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED

ON 20-1-2026, COMING ON FOR PRONOUNCEMENT, THIS DAY ,

VENKATESH NAIK T. J., PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

and

HON'BLE MR. JUSTICE VENKATESH NAIK T

CAV JUDGMENT

(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T)

The appellant has filed this appeal challenging the

judgment of conviction and order on sentence passed against

him in Sessions Case No.10017 of 2017 on the file o f the

learned V Additional District and Sessions Judge, Shivamogga,

Sitting at Sagara.

2. The appellant was the sole accused and the

respondent-State was the complainant before the tri al Court.

For the purpose of convenience, the parties are ref erred to

henceforth according to their ranks before the trial Court.

3. Accused was tried and convicted for the offence

punishable under Section 302 of the Indian Penal Co de, 1860

(for short, 'IPC') on the charge that the accused a nd

Nagarathna (hereinafter referred to as, 'deceased') were

husband and wife, respectively, and they had four c hildren,

namely, Vidhey (PW1), Arjun (PW2), Abhinandhan (PW3 ) and

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CRL.A No. 403 of 2018

Vidhyarthi (DW1). The accused, being the driver of a lorry,

often used to pick up quarrel with the deceased and children,

and used to assault his wife. In the year 2016, DW1 purchased

second-hand lorry and at that time, the deceased paid a sum of

Rs.1.00 lakh to him, which was given by the accused . In that

regard, there was scuffle between the husband and t he

deceased and on 14.4.2017 at 11:15 p.m. in their ho use, the

accused with an intention to cause the death of the deceased,

assaulted her with axe-MO1 on her left portion of the neck and

back, thereby caused severe bleeding injuries, as a result of

which, the deceased breathed her last. Hence, PW1 lodged a

complaint on 15.4.2017 at 1:00 a.m. against the acc used. A

case has been registered; the Investigating Officer conducted

investigation and filed the charge-sheet against the accused for

the offence punishable under Section 302 of IPC.

4. After initiation of the charge-sheet, the commit tal

Court took cognizance of the offence and case was c ommitted

to the Court of Sessions for trial. The trial Court on hearing

both side, framed the charge against the accused fo r the

offence punishable under Section 302 of IPC. As the accused

denied the charge, the trial was conducted. In support of the

case of the prosecution, PWs.1 to 13 were examined, Exs.P1 to

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CRL.A No. 403 of 2018

P34 and MOs.1 to 8 were marked. The trial Court examined the

accused under Section 313 of the Code of Criminal P rocedure,

1973 (for short, 'Cr.P.C.') and he did not lead any defence

evidence.

5. On hearing the parties, the trial Court by the

impugned judgment and order convicted the accused f or the

offence punishable under Section 302 of IPC and sentenced him

for life imprisonment with fine of Rs.10,000/-.

6. The trial Court held that the charge against the

accused was proved by the evidence of eyewitnesses, medical

evidence and recovery of axe at the instance of the accused.

Accused has preferred the above appeal questioning the said

order of conviction and sentence.

Submissions of Sri Harish Kumar M.C., learned counse l

for the appellant/accused:

7. The trial Court committed an error in convicting the

accused without appreciating the entire evidence on record.

The oral testimonies of PWs.1 to 3 are not corrobor ated with

other witnesses. The accused is falsely implicated in the case.

The entire case is based on evidence of interested witnesses

and there is no material to connect the accused to the crime.

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CRL.A No. 403 of 2018

The trial Court has not properly considered and appreciated the

inconsistencies, contradictions, and improvements i n the

evidence of the alleged eyewitnesses. The alleged mahazar

drawn is created only for the purpose of this case and the trial

Court convicted the accused on the basis of unreliable evidence

of the witnesses. He further contended that injuries sustained

by the deceased cannot be inflicted by the weapon l ike axe-

MO1 and the time of death is not proved by the pros ecution.

The evidence adduced by the Doctor is in inconsistent with the

prosecution version. There is delay in registering an F.I.R. and

the delay is not explained. The F.I.R. was registe red after

completion of investigation, which is not permissible in law.

The impugned judgment passed by the trial Court is on the

basis of conjecture and surmises and is not sustainable in law.

Therefore, the alleged offence does not come within the

purview of Section 302 of IPC and it may fall under Section 304

II of IPC. Hence, he prayed to allow the appeal.

In support of his arguments, the learned counsel for the

accused relied on the following decisions:-

1. Sukhbir Singh v. State of Haryana, reported in

(2002) 3 SCC 327.

2. Virender v. State (NCT) of Delhi, reported in

(2002) 3 SCC 341.

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CRL.A No. 403 of 2018

Submissions of Smt. Rashmi Patel, learned High Court

Government Pleader for the respondent-State:

8. The evidence of PWs.1 to 3 shows that the accuse d

had ill-will with the deceased in respect of amount paid to DW1.

Thus, on the day of the alleged incident, the accused scuffled

with the deceased, assaulted her with axe-MO1 on he r left

portion of the neck and back, and caused four injuries, i.e., left

posterior aspect of ear, lacerated wound on right backside of

head, and incised wound on thoracic region (two inj uries).

Further, the children of the accused and the deceas ed, i.e.

PWs.1 to 3, who are eyewitnesses to the incident, have clearly

and consistently stated about the manner of assault made by

the accused on the deceased. They have also stated that soon

after the incident, they took their father, i.e. the accused, to

the Police Station and handed over him to the Police and they

have also stated about drawing of mahazar in their presence.

She further contended that the oral evidence of PWs .1 to 3 is

corroborated by the medical evidence and PW8-Dr. Li ngaraju

has clearly stated that he conducted autopsy on the dead body

of the deceased and found four injuries and opined that the

death of the deceased was due to hypovolumic and ne urogenic

shock as a result of injuries by axe. Further, the Investigating

Officer seized bloodstained shirt-MO6 of the accuse d,

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CRL.A No. 403 of 2018

bloodstained nighty-MO7 of the deceased, bloodstain ed axe-

MO1 and bloodstained gunnybag-MO2, which were sent to the

FSL. As per the FSL report, these articles were stained with

human blood with 'O' group. Hence, the oral testim onies of

PWs.1 to 3 are supported by the medical and the sci entific

evidence. Therefore, the impugned judgment and orde r does

not warrant interference of this Court. Thus, she prayed to

dismiss the appeal.

9. On considering the submissions of both side and on

examination of the material on record, the point that arises for

consideration of this Court is:

“Whether the impugned judgment and order of

conviction and sentence is sustainable?"

ANALYSIS

10. The case of the prosecution was based on:

i.

Motive;

ii.

The evidence of eyewitnesses/PWs.1 to 3;

iii.

Medical evidence; and

iv.

Forensic evidence and the evidence of the Police officials.

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CRL.A No. 403 of 2018

Reg: Motive:

11. In a murder case, motive is the underlying rea son

that drives the act. While motive is not a legal requirement for

conviction, especially when direct evidence is strong, it plays a

significant, often psychological role in strengthening the case of

the prosecution. Proof of motive provides additional support to

findings of guilt, helping to connect the accused to the crime. If

the eyewitness account is clear, reliable, and insp ires

confidence, the absence of motive is often consider ed

irrelevant.

12. In the light of the above proposition, we have

examined the evidence of the prosecution witnesses. As per the

case of the prosecution, the accused was a lorry dr iver by

profession. He handed over a sum of Rs.1.00 lakh to his wife,

i.e. the deceased. In turn, the deceased handed over the said

amount to her son, DW1- Vidhyarthi, for purchase of second-

hand lorry. Hence, the accused was harassing the de ceased

mentally and physically. On the ill-fated day, the accused

scuffled with the deceased, assaulted her with axe on her neck

and back and thereby, caused her death.

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CRL.A No. 403 of 2018

13. In this regard, the prosecution examined PWs.1 to 3,

who are eyewitnesses and children of the accused an d the

deceased. They have clearly stated that they are no ne other

than the children of the accused and the deceased. DW1 is also

one of their brothers. Prior to the incident, the accused was

working as a lorry driver and he owned a lorry. The re were

frequent quarrels between the accused and the decea sed.

During such time, the accused used to stay outside the house.

They further stated that on 14.4.2017 at 4:00 p.m., the

accused picked up quarrel with the deceased and thr eatened

her that he would eliminate her, if she fails to re pay

Rs.1.00 lakh to him, which was given to her son, DW1. On the

same night between 10:30 p.m. and 11:15 p.m., the a ccused

again came to the house, insisted the deceased to p ay the

money and as she tried to console him, he picked up axe-MO1,

which was kept under the Godrej Almirah and assaulted on her

neck and back. Nothing has been elicited to disbelieve the oral

testimonies of PWs.1 to 3. Hence, the aspect of mo tive is

proved and the evidence of the aforesaid witnesses regarding

motive was rightly found credible by the trial Court.

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CRL.A No. 403 of 2018

Reg: The evidence of eyewitnesses/PWs.1 to 3 :

14. In this case, the prosecution mainly rely on

eyewitnesses account. Eyewitness testimony holds s ignificant

evidentiary value, providing direct evidence. The evidence of

eyewitness requires the Courts to scrutinise factor s like

consistency, threats, and delays, though minor disc repancies

do not automatically invalidate the entire account. However,

the Courts often seek corroborating evidence to the evidence of

eyewitness account. In essence, eyewitness testimon y is

powerful, but it requires careful judicial appreciation, balancing

its direct insight with the known limitations of hu man

perception and memory. The admissibility of eyewitn ess

statement is based on the presumption that the witn ess

speaking under oath is truthful, unless it is proved beyond

reasonable doubt that the testimonies are untruthfu l and

unreliable.

15. In this background, let us examine the evidence of

the eyewitnesses. As per the prosecution, the accused (father

of PWs.1 to 3) was harassing the deceased (mother) on silly

reasons. The deceased paid Rs.1.00 lakh to her son, DW1, for

purchase of second-hand lorry by collecting the amo unt from

the accused, but DW1 failed to repay the said amoun t and

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CRL.A No. 403 of 2018

hence, the accused further ill-treated the deceased . On the

date of the incident, PW1 and the deceased were in the house,

PWs.2 and 3 were sleeping in the house of their grand-mother,

which is adjacent to their house and DW1 was in Bengaluru.

16. To substantiate the same, the prosecution relied on

the evidence of PW1. He has stated that he is the s on of the

accused and the deceased. His father, i.e. the accused, since

beginning was harassing his mother, i.e. the deceased, for silly

reasons. His mother made the accused to provide fin ancial

assistance to DW1 and accordingly, the accused paid a sum of

Rs.1.00 lakh to DW1 for purchase of second-hand lor ry,

however, DW1 failed to repay the said amount to the accused.

On account of this, the accused was ill-treating the deceased.

He further stated that they have constructed the house in the

site of their maternal grand-mother, Sharadamma (CW 5) and

their house is adjacent to the house of Sharadamma. He used

to sleep in his house along with the accused and the deceased.

His brothers, i.e. PWs.2 and 3, used to sleep in the house of

Sharadamma. He further stated that on the date of incident, his

brother, DW1, was in Bengaluru. On 14.4.2017, at a bout

4:00 p.m., the accused quarrelled with the deceased for

repayment of Rs.1.00 lakh, which was given to DW1. Thus, the

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accused made criminal intimidation to eliminate the deceased,

if the amount of Rs.1.00 lakh is not paid and he proceeded to

the market. Later, the accused came back to his hou se and

between 10:30 and 11:00 p.m., he started quarrellin g again

with the deceased for repayment of money and stated that,

since she is the root cause for all problem and if she is finished,

all problems would be resolved and by saying so, he picked up

axe-MO1, kept under the Godrej Almirah, and assaulted on left

portion of her neck. Thus, PW1 held the hands of the accused,

but the accused pushed him. Hence, PW1 screamed an d at

that time, PWs.2 and 3 came there and neighbour Sha ilesh-

PW7, his grand-mother (CW5) and Shashikala (CW6) al so

followed them. When PWs.2 and 3 caught hold of the accused,

even then, the accused again assaulted the deceased with axe

on her back. Hence, the deceased suffered bleeding injuries.

His further evidence is that, immediately, PW7 brou ght Omni

Maruti van and CWs.5 and 6 also accompanied him to shift the

deceased to the Government Hospital and PWs.1 to 3 took the

accused to the Police Station and later, he came to know that

his mother was dead, when she was taken to the Hosp ital. He

further stated that on the same night, the Police came to the

house, tied tape around the house, locked the house , took

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photographs vide Ex.P2, drew spot mahazar vide Ex.P 3 and

seized MOs.1 to 5, i.e. axe, gunnybag, box containing dry blood

oozing from the dead body, bloodstained pieces of cement, and

without bloodstained pieces of cement, respectively. He further

stated that on the same night, between 2:00 and 2:3 0 p.m.,

the Police called him to the Police Station and seized the shirt

of the accused under seizure mahazar vide Ex.P19. According

to PW1, the accused assaulted his mother with axe a nd

committed her murder.

17. PW1 was cross-examined by the learned counsel f or

the accused. In his cross-examination, he has stated that the

accused owned a lorry and was working as a driver of the lorry

and often, he used to quarrel with the deceased. Whenever he

used to quarrel with the deceased, he used to sleep outside the

house and sometimes, inside the house. He categoric ally

denied the suggestion that the deceased was suspect ing the

accused whenever the accused slept outside the hous e and in

this regard, the deceased had filed application bef ore the

Santhvaana Kendra against the accused, wherein, the deceased

was advised. He specifically stated that the accuse d was

advised by Santhvaana Kendra. He further denied the

suggestion that the deceased made the accused to give money

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to DW1 for purchase of second-hand lorry and failed to repay

the same, and the deceased had mortgaged her gold w hen

finance people came to seize the lorry of DW1, as the deceased

stood as a guarantor. However, he admitted that their house is

at a distance of 30 feet from the house of their grand-mother

(CW5).

18. He further stated that the accused was quarrell ing

with the deceased as DW1 did not pay the money and the

deceased was not having any other source of income, except

the income derived from her salary as she was worki ng in

Cashew Nuts Factory. He further stated that on the date of

incident, between 3:30 and 4:30 p.m., there was qua rrel

between the accused and the deceased in respect of money.

He further stated that the accused used to quarrel with the

deceased frequently and he used to always show mach ete and

axe during quarrel. He further admitted that after hearing the

hue and cry of the deceased, neighbours did not com e to his

house as it was routine. However, when the accused was

assaulting the deceased with axe, he did not try to snatch the

axe, but he tried to hold his father's hand.

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CRL.A No. 403 of 2018

19. In order to corroborate the oral testimony of PW1,

the prosecution examined PW2-Arjun, another eyewitn ess, who

is also the son of the accused and the deceased. He has stated

that the accused killed the deceased. Since beginn ing, the

accused was harassing the deceased for silly reason s. He

further stated that the deceased made the accused to part with

Rs.1.00 lakh to DW1 for purchase of second-hand lor ry,

however, he could not repay it and hence, the accus ed ill-

treated her. He further stated that on 14.4.2017, b etween

11:30 and 11:45 p.m., when PW3 and himself were abo ut to

sleep in the house of CW5, they heard hue and cry f rom their

house. Thus, PW3 and himself went there and saw the

deceased with bleeding injuries and the accused was holding

axe-MO1. When they went to hold the accused, again the

accused assaulted the deceased on her back. As a r esult, the

deceased fell down in the pool of blood. Thus, PWs .1, 3 and

himself caught hold of the accused and immediately, CWs.5, 6

and PW7 came there. PW7 brought his Maruti Omni va n and

CWs.5 and 6 took the deceased to the Government Hos pital,

Hosanagara. PWs.1, 3 and himself took the accused to the

Police Station and later, he came to know about the death of

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his mother. Thus, it is clear evidence of PW2 that the accused

assaulted his mother with axe.

20. PW2 was cross-examined by the learned counsel f or

the accused and in the cross-examination, nothing was brought

on record to discredit his testimony, his presence at the time of

the incident and he trying to hold the accused while assaulting

the deceased and later, his brothers and himself ta king the

accused to the Police Station. All other suggestions made by

the learned counsel for the accused were denied by PW2.

21. In order to corroborate the oral testimonies of PWs.1

and 2, the prosecution examined PW3- Abhinandhan, who is

also an eyewitness to the incident and the son of the accused

and the deceased. In his evidence, he has reiterate d the

testimonies of PWs.1 and 2 and corroborated their evidence.

22. By looking into the evidence of PWs.1 to 3, it appears

that on 14.4.2017 at about 4:00 p.m., the accused s tarted

quarrelling with the deceased in respect of non-pay ment of

amount of Rs.1.00 lakh given to her and the accused also made

criminal intimidation to eliminate her, if she does not repay the

amount and he left the house. Again on the same day, between

10:00 p.m. and 12 midnight, the accused started scuffling with

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the deceased stating that she is the cause for the problem and

if she is eliminated, all problems will be solved and by saying

so, he took axe, kept under the Godrej Almirah, and assaulted

on her neck. Hence, PW1 tried to stop the accused a nd

screamed, at that time, PWs.2 and 3 came there and

neighbours Shailesh (PW7) and Hiriyanna (CW8), and grand-

mother, Sharadamma (CW5) also followed them. When PWs.1

to 3 tried to stop the accused, even at that time, the accused

assaulted the deceased on her back. Then, they all caught hold

of the accused and the deceased was retching from b leeding

injuries. Hence, PW7 along with CWs.5 and 6 shifted the

deceased to the Government Hospital and they took t he

accused to the Police Station. Later, they came to know that

their mother was dead.

23. To corroborate the oral testimonies of PWs.1 to 3, the

prosecution examined independent witness, Shailesh-PW7, who

has stated that he is the neighbour of the accused and the

deceased. There were frequent quarrels between the accused

and the deceased. On 14.4.2017 between 11:15 p.m. a nd

11:45 p.m., when he was watching T.V. in his house, he heard

sound from the house of the accused and the decease d.

Hence, he rushed to their house, the deceased was lying in the

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pool of blood, and the accused was holding axe-MO1, and

PWs.1 to 3 were holding the accused. Hence, he imm ediately

shifted the deceased in his Omni Maruti van to the Government

Hospital, Hosanagara, along with Sharadamma (CW5) a nd

Shashikala (CW6), where the Doctor declared the dec eased

brought dead. He further stated that the alleged in cident

occurred in respect of non-payment of amount by the

deceased. In the cross-examination, nothing has been brought

on record to disbelieve the testimonies of PWs.1 to 3 and 7 and

there were no infirmities in their evidence, so als o their

presence at the scene of occurrence. Therefore, the prosecution

can claim conviction based on their testimonies alo ne. The

evidence of PWs.1 to 3 and 7, being eyewitnesses to the

incident, remains unimpeachable and has been believed by the

trial Court. Their evidence cannot be discarded only for the

reason that they are the children of the accused an d the

deceased. Further, the location of the dead body, as mentioned

by PW6-Chandrashekara B.E., Assistant Engineer, PWD , is

undoubtedly corroborated by the sketch-Ex.P23 and i nquest

report-Ex.P28.

24. Perusal of evidence of PWs.1 to 3 and 7 goes to show

that their testimonies are of paramount importance. Their

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testimonies are deemed wholly reliable, credible, c onsistent

with each other and unimpeachable. There was no de lay in

reporting the case to the Police. PWs.1 to 3 themselves handed

over their father to the Police. PWs.1 to 3 are not interested

witnesses, as they are the children of the accused and the

deceased. There was no animosity between PWs.1 to 3 and the

accused. Their testimonies are corroborated with independent

witness, PW7. If we weigh the oral testimonies of PWs.1 to 3

and 7 alongside forensic and other circumstantial evidence, it

satisfies the standard of proof beyond reasonable doubt.

Reg: Medical evidence:

25. Further, the prosecution relied on the medical

evidence. PW8-Dr. Lingaraju conducted Post-Mortem

examination on the dead body of the deceased and is sued the

report as per Ex.P25. As per the evidence of PW8 and Ex.P25,

the deceased had suffered the following external injuries:-

1.

Left posterior aspect of ear measuring

12 c.m. x 3 c.m.

2.

Lacerated wound on right backside of

head measuring 7 x 3 c.m.

3.

Incised wound on thoracic region (two

injuries)

a. 13 X 3 c.m. and 9 c.m. big

b. 10 X 3 X 9 c.m. deep.

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Apart from external injuries, the Doctor also found

internal injuries, viz., depressed fracture on left occipital

region 5 x 3 c.m., injury to thoracic spinal bones T2 10-

12 bones and fragment fractures.

The Doctor opined that the death was due to hypovolumic

and neurogenic shock as a result of sustained injuries by

axe-MO1.

26. The Doctor underwent intensive cross-examination by

the learned counsel for the accused to explore as to under what

circumstances oozing of blood would occur. However , nothing

could be elicited during the course of cross-examin ation of

Doctor so as to falsify his version. Learned counsel also tried to

demonstrate that there is discrepancy in examining the weapon

of offence, i.e. axe-MO1, but the defence could not elicit that

there was no nexus between the injuries and axe-MO1 . Even in

the evidence of other witnesses, no other probable theory of

death was elicited. Therefore, the trial Court was justified in

holding that the death was homicidal.

Reg: Forensic evidence and the evidence of the Polic e

officials:

27. In so far as recovery of incriminating article is

concerned, the prosecution relied on the evidence o f PW9-

Manjunath, who has stated that on 15.4.2017, he had been to

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Hosanagara Police Station in the morning, at that t ime, the

accused was in the custody of the Police and Abhinandhan

(PW3-son of the accused and the deceased) was also present,

at that time, the Police seized bloodstained shirt of the

accused-MO6 under seizure panchanama-Ex.P19 and the Police

took photographs vide Ex.P18.

28. PW10-Surendra has stated that on 15.4.2017, th e

Police conducted spot panchanama vide Ex.P3 in his presence

and seized MOs.1 to 5, i.e. axe, gunnybag, box containing dry

blood oozing from the dead body, bloodstained piece s of

cement, and without bloodstained pieces of cement,

respectively, and the Police took photographs vide Exs.P5 to

P14.

29. PW13-Manjunath M., Investigating Officer, has stated

that he conducted investigation and during the cour se of

investigation, he arrested the accused, seized bloo dstained

shirt of the accused under mahazar-Ex.P19 and condu cted

spot-cum-seizure mahazar-Ex.P3 and seized MOs.1 to 5 and

sent the seized articles to the Forensic Science Laboratory for

examination.

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30. PW13-Investigating Officer, soon after the seizure of

articles under Exs.P3 and P19, sent the same to the FSL for

chemical examination and report. PW4-Dr. Chayakumar i,

Assistant Director, Forensic Science Laboratory, Davanagere,

deposed that on 19.4.2017, she received seven seale d articles

from the Investigating Officer for chemical examina tion and

report. Thus, she opened the sealed cover, which contained the

shirt, axe, gunnybag, box containing dry blood oozing from the

dead body, box containing dry bloodstain pieces of cement, box

containing without bloodstain pieces of cement, shi rt of the

accused and the nighty of the deceased. She examine d those

materials i.e., scrapings, mud samples, cuttings fr om the

suspected areas were tested for blood by presumptiv e tests

namely benzedine, phenolphthalein, leuko malachite- green

tests. The presence of bloodstains was further conf irmed by

conducting Microscopic Test. The extent of the stains, their size

and location were also noted. After conducting deta iled

examination, she was of the opinion that the articles sent to

her viz., shirt, axe, gunnybag, dry blood scrapings ,

bloodstained cement pieces and the nighty were stai ned with

'O' group blood. She also conducted serology and as per her

report, Item Nos.1, 2, 3, 4, 5 and 7 (MOs.6, 1, 2, 3, 4 and 7,

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respectively), were stained with human blood and it is 'O' group

blood.

31. Thus, MO6-shirt of the accused was stained with 'O'

group blood. Therefore, the accused ought to have e xplained

how his shirt was stained with 'O' group blood. It is not the

case of the accused that his blood is also of 'O' group. The

accused has not offered any explanation as to how his shirt was

stained with 'O' group blood.

32. The evidence of eyewitnesses which is consistent and

credible cannot be discarded on the ground of insig nificant

contradictions in their testimonies and in view of the fact that

PWs.1 to 3 are sons of the accused and the deceased. PWs.1 to

3 are the eyewitnesses, who were present at the tim e of the

incident, and throughout their lengthy cross-examination, they

have not shaken their credibility. The accused has not raised

any doubt as to the presence of PWs.1 to 3 at the s cene of

occurrence and at the time of incident. Thus, the trial Court

based on the oral and documentary evidence on recor d,

recovery, medical evidence and the FSL report rightly convicted

the accused for the offence punishable under Sectio n 302 of

IPC.

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CRL.A No. 403 of 2018

33. In so far as the sentence is concerned, the learned

counsel for the accused argued that as the occurren ce had

taken place without any premeditation, in a sudden fight, in the

heat of passion and upon a sudden quarrel, the accu sed

committed the offence and thus, he is entitled to the benefit of

Exception 4 to Section 300 of IPC. Learned counsel further

contended that the accused did not have any intention to cause

death of his wife, as there were only three blows on the body of

the deceased, which are neither cruel nor unusual to disprove

him the benefit of the aforesaid Exception.

34. To avail the benefit of Exception 4, the defence is

required to probabilise that the offence was committed without

premeditation in a sudden fight, in the heat of passion, upon a

sudden quarrel and the offender had not taken any u ndue

advantage and the offender had not acted in cruel o r unusual

manner. Exception is based on the principle that in the absence

of premeditation and on account of total deprivation of safe

control, but on account of heat of passion, the offence was

committed, which the normal man of sober urges woul d not

resort to. Sudden fight, though not defined under t he Act,

implies mutual provocation. It has been held by the Courts that

a fight is not per se palliating circumstance and only

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CRL.A No. 403 of 2018

unpremeditated fight is such. The time gap between the quarrel

and the fight is an important consideration to deci de the

applicability of the incident. If there intervenes sufficient time

for passion to subside, giving the accused time to come to

normalcy and the fight takes place thereafter, the killing would

be murder, but if the time gap is not sufficient, the accused

may be held entitled to the benefit of this Exception.

35. In the instant case, concededly, there was enmi ty

between the accused and the deceased in respect of non-

payment of cash of Rs.1.00 lakh which was given to their son,

DW1-Vidhyarthi, and there is allegation by the prosecution that

before the occurrence, the accused had premeditated at

4.00 p.m. and on the same day, during night hours, the

accused murdered his wife. As noted earlier, occurrence took

place when the deceased, who conceded that in a cou ple of

days, she would repay the amount. Thus, the accused

immediately took axe-MO1 and assaulted her on the n eck and

back in the presence of their sons. Thus, the accused had clear

intention to eliminate the deceased for non-payment of cash of

Rs.1.00 lakh. Therefore, the time gap between the quarrel and

the fight is stated to be long gap. So, Exception 4 to Section

300 of IPC is not amenable to the accused.

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36. Harping back to the case of the prosecution for

analysing the circumstances that gave rise to the occurrence of

the incident, as per the evidence of PW1, the deceased never

provoked the accused. But PWs.1 to 3 have clearly stated that

the accused threatened his wife to eliminate her. T hese

circumstances make it amply clear that there was no

provocation by the deceased so as to say that the accused lost

control over himself.

37. The case can be examined with reference to the

nature of the injuries suffered by the deceased. Ex.P25 is the

Post-Mortem report given by PW8-Doctor and the dece ased

sustained the injuries, i.e. 1. Left posterior aspect of ear

measuring 12 cms x 3 cms, 2. Lacerated wound on rig ht vertex

7 x 3 cms, and 3. Incised wound on thoracic region two in nos.

(1. 13 x 3 cm and 9 cm deep and 10 x 3 x 9 cms deep ). The

Doctor has stated that the cause of death is due to

hypovolumic and neurogenic shock as a result of sus tained

injuries by axe. As per his evidence, death might be possible

soon after sustaining injuries as mentioned in the Post-Mortem

report. Analysing of medical evidence of the whole case helps

to draw inference that intention of the accused was to eliminate

the deceased. Accordingly, the accused hit the deceased with

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axe on her neck i.e. vital part and on her back on four

occasions and allowed her to die at the spot. The intention of

the accused is clear to takeaway the life. Thus, the trial Court

has rightly convicted the accused considering the o ral

testimonies of the prosecution witnesses, especially PWs.1 to 3

and 7, the evidence of PW8-Doctor, Ex.P25-Post-Mortem report

and Ex.P20-FSL report. Hence, we do not find any perversity in

the order of conviction passed by the trial Court and the same

is upheld. The sentence imposed by the trial Court

commensurate with the gravity of the offence and th e same

also does not require any interference. Accordingly, we pass

the following

O R D E R

Criminal appeal is dismissed.

Sd/-

(H.P.SANDESH)

JUDGE

Sd/-

(VENKATESH NAIK T)

JUDGE

KVK / MN