@JUDGMENTTAG-ORDER
K. Sreedhar Rao, J.@mdashThe prosecution story reveals a ghastly crime of murder committed by the accused of his wife on 31.8.1995 at about 11 a.m. in land bearing survey number 242 of P. Marally village of Nanjangud Taluk.
2. The deceased was living with her parents. The accused was also living with the deceased to keep consortium. However, persuading the deceased to come with him to Kerasguru village which is the native village of the accused. The deceased was very obdurate in her stand. This attitude irked the accused on the aforesaid fateful day when the deceased was working in the mulberry field, there was a quarrel between the accused and the deceased and in a fit of a passion, the accused tookout the knife and stabbed the deceased in her stomach which resulted in the instantaneous death. PW-2, the son of the accused and the deceased was a boy aged about 8 years was present at the scene and an eye witness, immediately runs away from the scene to inform his uncle PW-4 who was at P. Marally bus stand, PW-3, the mother of the deceased was also sitting with PW-4 at the bus stand also comes to know about the incident. They go to the scene later on complaint is lodged before the Police. The accused was apprehended. At the voluntary instance of the accused, the blood stained clothes and the knife used for commission of offence came to be discovered. Spot Panchanama, inquest panchanama have been duly prepared at the relevant points of time. The statement of other material witnesses with regard to motive and other aspects of the crime recorded. The blood stained clothings were sent to Forensic Science Laboratory examination. After obtaining the reports and on completion of the investigation, the charge sheet was filed.
3. After committal, the learned Third Additional Sessions Judge conducted the trial and convicted the accused for an offence punishable u/s 302 Indian Penal Code and sentenced the accused to undergo the sentence of life imprisonment.
4. The appeal is filed by the accused directly through Central Prison, Mysore. Appeal is taken up for hearing. Smt. Manjula R. Kamadolli appointed as Amicus Curiae to assist the Court in arguing the appeal for the appellant.
5. The prosecution in all examined 16 witnesses. The doctor PW-1 conducted the post mortem examination. His evidence discloses that the stab injuries found are antimortem in nature and that the incised wound and stabbed wounds have caused death and could be caused with the knife shown to him. PW-2 is the son of the accused and the deceased and eye witness to the incident. PW-3 is the mother of the deceased, PW-4 is the brother of the deceased, PW-5 Mahadevappa is the cousin of the deceased who speaks about the marital discardence between the accused and the deceased and also supports the attitude of the deceased in not accompanying the accused to Kesarguru village. PW-6 is Kenchappa who had employed the accused and the deceased in his land on that day to cut the mulberry leaves. PW-7 Gurusidda Shetty an inquest panch witness, PW-8 is Nanjundappa a discovery panch witness, PW-9 the village accountant who speaks about the cultivation of mulberry crop in Sy. No. 242 of P. Marahalli village, for the relevant crop period. PW-10 Gurusiddaiah is a seizure panch witness under which clothing on the dead body of the deceased was seized. PW-11 is the police constable who brings the clothing on the dead body of the deceased after post mortem examination to the police station. PW-12 is Mahadevappa, the brother of the deceased who speaks about the motive. PW-13 is the police constable who carried the FIR and submitted to the Magistrate, PW-14 the head constable speak about the apprehension of the accused on 2.9.1995 at 6.00 a.m. in his residence at Kesarguru village and production of the accused before the PSI. PW-15 is the P.S.I. who conducted the remaining part of the investigation, PW-16 is the C.P.I. who has also conducted some part of the investigation and has filed the charge sheet.
6. The Trial Court on analysis of the material has accepted the evidence of PW-2 as credible. As on the date of offence, PW-2 was an young boy aged 07 years, and as on the date of evidence he was aged about 08 years. The learned Sessions Judge although does not make objective record of the preliminary examination made to ascertain the competence of the witness to testify nonetheless, the reading of the evidence of PW-2 discloses that he was fully competent to testify by the way he has answered the questions that are put to him in the examination-in-chief and in cross-examination. With all clarity, PW-2 has given the narration of events relating to the commission of crime in question. So also successfully withstood a penetrating cross-examination. The evidence of PW-2 convincingly suggests that he is a reliable witness and the limitation of being a child witness neither affected his competence nor his credibility and veracity. To corroborate the version of PW-2 and respective evidence of P Ws-3 and 4 fully supports the prosecution version. Within few minutes after the incident, PW-2 comes crying to the bus stand and locates his uncle and informs P Ws-3 and 4 about the incident. Therefore, the direct evidence whatever produced by the prosecution to prove the case in question is convincing and there is no good reason to reject the evidence produced by the prosecution. In that view, the learned Sessions Judge has also appreciated the evidence of these three witnesses in a proper perspective in convicting the accused.
7. The conviction of the accused for committing the offence of culpable homicide amounting to murder punishable u/s 302 Indian Penal Code is the only question that requires thoughtful consideration. Although the learned Sessions Judge was right in holding that the prosecution has proved the alleged incident from the facts and material it is to be considered whether the accused has committed an offence of murder or any lesser offence.
8. The provisions of Section 300 Indian Penal Code deals with four categories of acts constituting an offence of culpable homicide amounting to murder, the five exceptional circumstances makes the act of culpable homicide not amounting to murder. No doubt, in the present set of facts, it may categorically indicate that by act of stabbing with a knife intention or knowledge of causing of an injury which is likely to cause death to the victim in the ordinary course could be attributed. But nonetheless, one important circumstance which has missed the notice of the trial judge is the preceding quarrel between the deceased and the accused. The evidence of PW-2 also categorically states that the quarrel preceded the act of stabbing and the quarrel lasted for some time between his father and mother before the act of stabbing. That perhaps would bring the case within the purview of Exception I of Section 300 of Indian Penal Code. In that view of the matter convicting the accused for an offence u/s 302 Indian Penal Code appears to be untenable and the accused would be liable for punishment under I part of Section 304 Indian Penal Code where, the dual slab of punishment is prescribed. The least of the punishment indicated may extend to 10 years and the maximum with life imprisonment. In the instant case, taking into consideration, the over all facts and circumstances, the imposition of severe punishment of life imprisonment may not be appropriate. The accused since the time of his arrest as an undertrial prisoner and subsequent to his conviction is in confinement totally for a period of 5 years and 5 months. As a father he has to take care of PW-2 his son and the accused is a middle aged man. Apart from these routine considerations, which may enure to the benefit of the accused the motive becomes one of the primary and vital consideration that should weigh with the Court in imposing a lenient punishment.
9. The Indian Penal Code which came into operation in the year 1860 was postulated to be a comprehensive, substantive criminal law to deal with various types of perceivable and conceivable crimes in the social and political context that existed then. The Indian Penal Code not merely indicates the whole variety of offences by substantive definition but also prescribes the punishment to be imposed in respect of each of the offences. The nature of punishments that could be imposed is dealt in Chapter III of the Indian Penal Code. However with the passage of time, the punishments like transportation of life, forfeiture of property and differential and discriminative punishment to the Europeans and American nationals came to be deleted. In the present scheme a sentence of imprisonment of the simple and rigorous nature extending upto life imprisonment and death penalty and sentence of fine are the modes of sentences available for imposition. The severe punishment of death penalty and imprisonment of life are imposed only in respect of select offences, which are more grave and heinous in nature. Amongst them, the murder is one category where only the punishment of death penalty or life imprisonment could be imposed. The life imprisonment is also prescribed for offences like dacoity, robbery etc. The scientific analysis of the nature of sentence prescribed for a different offences varying in different degrees appears to be irrational and out of date. A straight jacket policy of imposing uniform sentence to the accused for a given offence would be irrational and unreasonable.
10. The logic behind the sentences prescribed hinges mostly upon the intention or knowledge of the wrong doer. The motive has not been given the deserved consideration in formulating sentencing policy in the Indian Penal Code. This could be better understood with the following illustrations to consider the facts of the present case as one example. In the second example we assume a person committing an offence of dacoity or a person committing a highway robbery, for the said offence also, imprisonment of life is prescribed.
11. In the case on hand for a very trivial and innocuous motive, the accused kills his wife. His criminal intention and the target of his criminal acts are directed only to a particular individual. Otherwise the accused is a very good social being to the society at large. In contrast, in the other two examples, the intention and acts of such accused persons are highly dangerous to the society at large and their area of operation can be indiscriminately anywhere and against anybody. Therefore, to place the accused in all three situations on a same pedestal would be highly inequitable and unjust.
12. The concept of offence of homicide is segmented into three types. A culpable homicide amounting to murder punishable u/s 302 defined under Sections 299 and 300 is one category, a culpable homicide not amounting to murder defined in the exception of Section 300 and punishable under 1st part of Section 304 is the second category and the third and the milder category is envisaged in the second part of Section 304 Indian Penal Code which prescribes an imprisonment for a term extended to 10 years or with fine or both.
14. The offence envisaged in the second part of Section 304 Indian Penal Code is distinct from the other two categories in the sense that in the absence of intention to cause death or intention to cause an injury which is likely to cause death would take such situation outside the purview of the second and third category of Section 300 Indian Penal Code so also the 4th category whether the act of causing death amounts to murder, if the act is done with the knowledge that it is imminently dangerous that it must, in all, probability, cause death or such bodily injury as is likely to cause death. It is to be noted that in the 4th category, the intention to commit the act or the injury is omitted. Only knowledge of the consequence of the act is taken into consideration. Therefore, the offence not covered by Section 300 Indian Penal Code would be the one which is punishable under Part-II of Section 304 Indian Penal Code.
14. A time has come for further slicing of more finer categorisation of different and varying degrees in the offence of culpable homicide prescribing rational and equitable punishment consistent with the gravity of the motive and other relevant factors and circumstances that lead to the commission of the crime and so also to clarify the distinction between the offence postulated in second part of Section 304 Indian Penal Code and the 4th category in Section 300 Indian Penal Code by a legislative exercise. As of now, the distinction between the two does not appear to be precisely clear. Suffice in this case, that the motive of the accused not being precarious to the members of the society at large, the facts warrant a lenient view is the matter of sentence.
15. Accordingly, the accused is convicted u/s 304 Part I Indian Penal Code and sentenced to rigorous imprisonment to the extent the period he has already undergone i.e., five years and 4 months. The accused having served the sentence imposed, is directed to be set at liberty forthwith if not required in any other case. The fee for Amicus Curiae is fixed at Rs. 2,000/-.
