- 1 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2025 PRESENT THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.775/2019 (C) BETWEEN: JENUKURUBARA SURESHA S/O LATE RAMA @ GOMBE RAMA R/AT C/O ICHETTIRA ROHITH BALEGUNDI GIRIJANA COLONY VALNOOR VILLAGE, SOMWARPET TALUK KODAGU DISTRICT – 571 533 …APPELLANT (BY SRI.SURESH H S, ADVOCATE) AND: STATE OF KARNATAKA BY MADIKERI TOWN CIRCLE P.S. MADIKERI KODAGU REP. BY SPP, HIGH COURT COMPLEX BENGALURU – 560 001 …RESPONDENT (BY SMT.RASHMI JADHAV, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 19.12.2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, KODAGU-MADIKERI IN S.C.NO.99/2016 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302 AND 323 OF IPC. THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL AND HON'BLE MR. JUSTICE VENKATESH NAIK T Digitally signed by K S RENUKAMBA Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 ORAL JUDGMENT (PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL) Challenging the judgment and order of conviction and sentence passed against him, accused in S.C.No.99/2016 on the file of Principal District & Sessions Judge, Kodagu, Madikeri has preferred this appeal. 2. Appellant was the sole accused in S.C.No.99/2016. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court. 3. Accused was tried in S.C.No.99/2016 for the charges for the offences punishable under Sections 302 and 323 of IPC on the basis of the charge sheet filed by PW.20/Circle Inspector of Police of Madikeri Town Police Circle in Crime No.129/2016 of Siddapura Police Station. The said case was registered against the appellant on the basis of complaint of PW.1 as per Ex.P1. 4. The case of the prosecution in brief is as follows: That due to some previous enmity on 24.07.2016 at 8.30 p.m. when PW.1, deceased Rama, PWs.6 and 7 were in the house of Rama, accused came to the said house, picked up quarrel with Rama and assaulted him with MO.1/Machete and - 3 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 committed his murder. Based on Ex.P1, PW.19/Sub-Inspector of Police of Siddapura Police Station registered first information report as per Ex.P14 for the offences punishable under Sections 323, 302 of IPC and handed over further investigation to PW.20/Circle Inspector of Police of Siddapura Circle. PW.20 conducted further investigation and filed charge sheet. 5. The Trial Court on hearing the parties framed charges against the accused for the offences punishable under Sections 302, 323 of IPC. Accused denied charges and claimed trial. Therefore trial was conducted. In support of the case of the prosecution, PWs.1 to 20 were examined, Exs.P1 to P20 and Mos.1 to 7 were marked. After his examination under Section 313 of Cr.P.C., accused did not lead any defence evidence. 6. The trial Court on hearing the parties by the impugned judgment and order held that the charges were proved by the evidence of eyewitnesses/PWs.1, 6 and 7, the evidence of PW.10 before whom extrajudicial confession was made by the accused, medical evidence and other evidence on record. Further the trial Court has sentenced the accused for - 4 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 the aforesaid offences on different terms of imprisonment and fine as follows: Sl. No. Offence u/s Sentence Fine Amount in Rs. Default sentence 1 302 of IPC Imprisonment for life 25,000/- Imprisonment for 2 years 2 323 of IPC SI of 2 months - - Challenging the said order, the above appeal is filed. 7. Heard Sri H.S.Suresh, learned Counsel for the accused and Smt.Rashmi Jadhav, learned Additional SPP for the State. Submissions of Sri H.S.Suresh, learned Counsel for the appellant/accused: 8 (i) According to the prosecution, the accused has committed the offence due to previous enmity between him and the deceased. But none of the witnesses have supported the theory of motive. Further the eyewitnesses PWs.1, 6 and 7 do not support the version of assault by the accused on the victim. Deceased was quarreling with PW.1 in a drunken state, therefore the accused intervened. The prosecution's evidence itself shows that the deceased himself was the aggressor and accused had acted in self defence. The injured victim was not taken to the hospital. Therefore, he died due to negligence in - 5 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 not taking him to the hospital immediately and the injury was not the immediate cause of death. The evidence of PW.10 regarding extrajudicial confession is unacceptable. Even otherwise as per the evidence, Rama/deceased himself was the assailant and caused injury to the accused. Therefore accused was taken to the hospital which is evident from the evidence of PW.13. (ii) The evidence on record goes to show that Rama had assaulted the accused as well as PW.1. That goes to show that neither there was motive nor premeditation on the part of the accused to commit the crime. The evidence regarding the recovery of the weapon was blatantly false. The alleged recovery under Ex.P3 was on 25.07.2016. But PW.12/Head Constable states that PW.20 deputed him to arrest the accused on 26.07.2016. Further Ex.P8, the report of PW.12 shows that he arrested the accused and produced him before PW.20 on 26.07.2016. In the evidence of PW.12, absolutely there was no clarification on that issue. PWs.8 and 14, the witnesses to the alleged seizure of MO.1 did not support those proceedings. (iii) The evidence on record at the most indicates that when the accused went to the house of the deceased, to pacify - 6 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 the quarrel of PW.1 and the deceased, deceased himself assaulted the accused with MO.1. In defence, accused assaulted victim/Rama which is further evident from the evidence of PW.13 and MLC Register Extract Ex.P12. The trial Court has failed to appreciate the evidence judiciously in convicting the accused for the charges for the offences punishable under Section 302 of IPC. (iv) So far as the charge under Section 323 of IPC, the evidence on record shows that Rama himself was assaulting PW.1. Therefore, the accused intervened. Subsequently, taking advantage of that injury, the accused is tried for the offence under Section 323 of IPC. PW.1 and other witnesses do not make any attempt to take her husband to the hospital. There is delay in filing the complaint and delivering FIR. Even in the extrajudicial confession before PW.10 relied on by the prosecution, there is no whisper about the accused assaulting PW.1. Therefore, convicting the accused under Section 323 of IPC also does not sustain. The accused has dependant wife and children. His wife is suffering from serious ailments. If at all the accused is convicted, lenient view may be taken in the order of sentence. - 7 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 9. In support of his submissions, he relied on the judgment of the Hon’ble Supreme Court in Ajay Singh v. State of Maharashtra1 Submissions of Smt.Rashmi Jadhav, learned Additional SPP for State: 10. The case is based on the evidence of the eye- witnesses PW.1, PW.6 and PW.7. The eye-witnesses have supported the case of the prosecution regarding the overt acts of the accused. Further, the evidence of PW.10 shows that the accused himself made extra-judicial confession before him regarding commission of the offence. The fact of death being homicidal one is proved by the medical evidence. The delay in filing the FIR is explained. PW.20/Investigating Officer has categorically spoken about recovery of weapon of offence on the basis of the voluntary statement of the accused. The discrepancy in the evidence of PW.12 regarding the date of arrest of the accused is clarified through the evidence of PW.20. As the case is based on evidence of injured witness, even assuming that there are some discrepancies or 1 (2007)12 SCC 341 - 8 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 inconsistencies in the evidence of the witnesses regarding motive and recovery of the incriminating material at the instance of the accused, the same is not fatal. The fact of accused assaulting with MO.1 on the head of the victim shows that he had clear intention. Therefore, there is no merit in the contention that, at the most, the act amounts to the offence of culpable homicide not amounting to murder. The trial Court on judicious appreciation of the evidence has convicted and sentenced the accused. There are no grounds to interfere with the impugned judgment and hence, the appeal be dismissed. 11. On hearing 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 12. Some of the undisputed facts of the case are as follows: That the victim Rama had two wives. PW.1 is his second wife. PW.7 is the sister of Rama and PW.6 is the husband of PW.7. PW.18/J.R.Suresha @ Kulla and Parvathi/PW.4 are the son and daughter respectively of the victim through his first - 9 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 wife. The accused was relative of PW.1 and was employed in the coffee estate of PW.10. Rama suffered injuries on 24.07.2016 at 8.30 p.m. in his house and succumbed to the injuries on the same day. 13. The case of the prosecution is as follows:- That there was previous enmity between the accused and victim Rama. Therefore, on 24.07.2016, at 8.30 p.m., accused went to the house of the victim and PW.1 abused the victim in filthy language, when victim questioned that, the accused assaulted him with MO.1 on his head, caused him fatal injuries. When PWs.1, 6 and 7 tried to intervene, accused fisted near the right eye of PW.1 and ran away with the weapon. In the process of escaping, he hit against electric pole situated near the scene of offence and suffered injuries. 14. The victim succumbed to the injuries and he could not be shifted to the hospital due to non-availability of transportation. Regarding the incident, PW.1 filed complaint as per Ex.P1 before PW.19, the PSI of Siddapura Police Station. Based on that, he registered an FIR as per Ex.P14 and handed over investigation to PW.20. PW.20 visited the scene of offence, conducted inquest as per Ex-P2 in the presence of - 10 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 panchas PWs.2 and 3 and sent the dead body for post-mortem examination. After post-mortem examination, he received the post mortem report. 15. After commission of the offence, accused approached PW.10/employer and confessed about the crime before him. PW.10 sent the accused to Community Health Center, Siddapura for treatment, he informed the police and as there was bereavement in his family, he went to attend to his personal work. 16. PW.20 had deputed PW.12 and his other staff to apprehend the accused. Accordingly, they apprehended him and produced him before PW.20. Interrogating the accused, he recorded his voluntary statement as per Ex.P18. On the basis of the voluntary statement of the accused, PW.20 seized M.O.1 the weapon of offence under mahazar Ex-P3 in the presence of panchas PWs.8 and 14. The Investigating Officer recorded the statements of the witnesses, collected the post mortem report, collected the clothes of the deceased under mahazar Ex.P6 in the presence of PW.9, he collected the FSL report and on completing the investigation, he filed the charge sheet. - 11 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 17. The case of the prosecution was based on the following set of evidence:- 1. Medical evidence/Homicidal death; 2. The evidence of eyewitnesses PW.1, PW.6 and PW.7; 3. Circumstance of motive; 4. Extra-judicial confession allegedly made by the accused before PW.10; 5. Recovery of weapon of offence under Ex.P3, at the instance of the accused. 6. FSL evidence and the evidence of official witnesses. Reg. Nature of death: 18. Since the accused is convicted for the offence of murder, the prosecution was required to prove the death was homicidal one. To prove that, apart from the evidence of the eyewitness and other witnesses, the prosecution relied on the evidence of PW.13/the Doctor, who conducted post mortem examination and post mortem report Ex.P9. PW.13 deposed that on the requisition of the police, he conducted the post- mortem examination on the dead body of Rama on 25.07.2016 between 1.30 p.m. and 4.00 p.m. and issued the post-mortem examination report as per Ex.P9. He deposed that on - 12 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 examination of the dead body, he found the following external and internal injuries:- External injuries:- a. A chop wound 2 cm above Glabella upward and slightly to right side in the Sagital plane, which is 18 cm long and 1.5 cm across at the widest in the middle. Edges of the wound are sharp with fracture of underlying frontal and right parietal bone. Internal injuries:- a. Linear fracture of frontal and parietal bone 11 cm long x 0.25 cm across with jagged edges of the inner table at both the ends. b. Membrane is lacerated beneath the skull fracture. c. Intra cranial Hemorrhage present. d. 5 cm long x white matter depth depth lacerated wound in the right side frontal lobe of cerebrum. 19. He opined that death was due to head injury and shock. It was not even disputed that the injuries found were homicidal one. Even in the evidence of PW.1/the complainant and the alleged eye witnesses, death due to injury found on the head was not denied. But the line of defence was that there was quarrel between PW.1 and victim and he assaulted her, therefore, to defend herself, she hit on the head of the victim and caused such injury. Therefore, the trial Court was justified in holding that the death was due to homicidal injury. - 13 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 Reg. Motive: 20. According to the prosecution, there was ill-will between the accused and deceased, therefore, he committed the murder of the deceased. It is stated that when PW.1 was working in the house, there was verbal spat between her and her husband and the accused came to her house abusing her husband. When victim was standing outside, accused assaulted him with M.O.1 Katti, when she went to his rescue, he fisted near her right eye. 21. PW.1 in para 3 of her chief examination itself states that the relationship between them and accused was cordial. She only states that on that day, around 9.00 p.m., deceased was quarreling with her sitting on the deck of her house, then she went to the house of one Thammu and accused enquired her what happened, then went to her house and assaulted the victim. PW.6 and PW.7 are the brother-in-law and sister of the deceased. They also do not speak anything about previous ill- will between the accused and the deceased. PWs.4 and 18 are the daughter and son of the deceased through his first wife. They do not speak about any ill-will between the accused and deceased. Thus, the fact of there being any ill-will between the - 14 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 accused and deceased, that too, to the extent of committing the murder was not established by the prosecution. Reg. Evidence of the eye witnesses: 22. According to the prosecution, PW.1, PW.6 and PW.7 are the eye witnesses to the incident. PW.1 is the second wife and PW.7 is the elder sister of the deceased. PW.6 is the husband of PW.7. It is not the case of the prosecution itself that PWs.6 and 7 were living together with PW.1 and deceased. According to them, they had come and stayed with PW.1 and deceased since few days earlier to the incident. 23. As already noted, PW.1 in her chief examination stated that on the date of the incident, at 9.00 p.m., her husband quarreled with her when they were sitting on the deck of the house, therefore, she left the house and went to the house of one Thammu. She says that accused went near her house, on enquiring her, he assaulted her husband on his head with katti and he also assaulted her on her right cheek by holding katti in his hand. In her chief examination, she did not speak about the presence of PW.6 and PW.7 at the time of the assault. - 15 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 24. PW.6 is none else, but elder brother of PW.1. He deposed that on the day of the incident at 05.00 p.m., himself and his wife i.e., PW.7, who in-turn is the sister of the deceased came down to the house of the victim. He further states that at around 8.00 p.m., when conversation was going on between the accused and deceased, he was inside the house and on hearing the screams of Rama, he came out and found Rama lying on the ground with head injury, but nobody else was there. He also denied the theory of he shifting the victim to the hospital and attending to the victim. He stated that since no vehicle was available, they made the victim to sleep on the deck of the house and at 10.30 p.m., the victim died. 25. PW.7, who is the none else, but the sister of the deceased, in her chief examination itself states that she had not seen the accused and she had gone to the house of the deceased, as victim was unwell, on his request, herself and her husband reached the house of the victim at 05.00 p.m. She states that when she and her husband were having dinner inside the house, PW.1 and deceased were quarrelling. At that time, accused came and assaulted the victim. Her evidence that she was having dinner inside the house improbabilizes she - 16 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 witnessing the incident, which took place outside the house. All these witnesses have admitted in their cross-examination by the defence counsel that PW.1 and the deceased, both had the habit of consuming alcohol and they used to quarrel with each other. According to PW.1, when her husband assaulted her, accused who was also related to her closely, came to her house and questioned. The victim himself first assaulted the accused and in-turn, the accused assaulted him. So far as the accused assaulting her, in the complaint, she says that accused fisted near her right eye, but in her deposition, she states that he assaulted her near right cheek holding katti. 26. The prosecution relies on the evidence of PW.10, before whom, the accused said to have divulged that Rama assaulted him with katti and in reaction collecting the same he assaulted Rama with the same. In the extra-judicial confession, there is nothing about the assault on PW.1. For the first time, in Ex.P10, when PW.1 was taken for examination to Community Health Center, Siddapura on 25.07.2016 at 03.30 p.m., i.e., after filing of the complaint, in the history, the accused was shown as assailant. It is material to note that as per Ex-P10, PW.1 was accompanied by police. If really, the victim was - 17 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 assaulted to commit murder and PW.1 was assaulted as alleged without any reason, PW.1 or at least somebody should have rushed the injured to the hospital. Their explanation for the same is that no transportation was available. Even PW.13/the doctor, who attended to her and issued Ex.P10 does not state that the history was given by PW.1. 27. The above facts and circumstances go to show that the accused came to the house of PW.1 and victim and PW.1 herself revealed that she was assaulted by the deceased. The extrajudicial confession made before PW.10 and the other evidence on record shows that the deceased and PW.1 had a quarrel and the deceased had assaulted PW.1. Therefore, the accused, who was her relative, came to the house of PW.1 and Rama and questioned him. The evidence on record shows that it was Rama, who was the aggressor and he first attacked the accused with katti causing him injuries. The evidence of PW.13/Doctor and Ex.P12 the MLC register extract, the prosecution's own evidence show that the accused was taken to Community Health Centre, Siddapura by one Kavan on 25.07.2016 at 08.30 a.m. with the history of assault on 24.07.2016 at 06.45 p.m. with a katti near his house. Further, - 18 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 the evidence of PW.13 shows that the accused had suffered the following injuries:- a. Cut injury lateral to left eye brow, 3 cm long with clots. b. Blackish bruise of left orbit. c. Scratch abrasion, left side neck 1 cm long. d. Scratch abrasion, 3rd and 4th left finger pulp. 28. The above evidence goes to show that the victim himself was aggressor and as a reaction to such acts of the victim the accused assaulted him. The evidence on record further probabilizes the defence that at that time victim had assaulted PW.1/his wife, therefore, injury found cannot be imputed to the accused more particularly having regard to the fact that in the extra judicial confession there is no mention about he assaulting PW.1. So also the evidence of PW.1 regarding the manner of alleged assault by accused on her with reference to the weapon or by fist is not consistent. By the above evidence it can be concluded that the accused assaulted the victim and caused the injuries as found in the post-mortem report. Whether such act of accused amounts to murder will be discussed in the later part of this judgment. - 19 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 Reg. Extra judicial confession: 29. PW.10/the employer of the accused deposed that in July 2016 at around 05.30 or 06.00 a.m. accused came to his house with injuries on his face and confessed that on previous night Rama assaulted him with knife and snatching the same he assaulted Rama. 30. Relying on the judgment in Ajay Singh's case referred to supra learned counsel for the appellant contends that such confessional statement and evidence of PW.10 regarding such confession cannot be accepted. In the cross- examination of PW.10, the fact of accused being the employee under him for 1 to 1.5 years was not discredited or disputed. No animosity or motive was imputed to PW.10 to falsely implicate the accused. In fact PW.10 says that it was he who telephoned to the other estate worker, ascertained about the death of Rama, informed the police over phone and he caused the accused to be taken to Siddapura Government Hospital. Even that evidence of PW.10 is not discredited. Such evidence is corroborated by the evidence of PW.13/the Medical Officer and Ex.P12 regarding the accused being taken to the hospital and being treated there. - 20 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 31. In Ajay Singh's case referred to supra, it was held that while dealing with extrajudicial confession, the Court has to satisfy that the same is voluntary and without any coercion or undue influence. If the Court is satisfied that the extrajudicial confession is free and voluntary and if the person before whom it is made is found unbiased and not inimical to the accused, conviction can be based on such extrajudicial confession. In the present case, nothing was elicited in the cross-examination of PW10 to show that he had any bias or enmity against the accused or such extrajudicial confession was the outcome of any undue influence or coercion. Therefore, the same was rightly found acceptable by the trial Court. Reg. recovery of MO.1/the weapon of offence. 32. According to the prosecution, when the accused was arrested and interrogated by PW.20, he volunteered to show the place where the weapon of offence was concealed. Then he led the Investigating Officer, PW.8 and PW.14/the Panchas to his house situated in Balegundi, Valnoor Village. Then accused took them to his bedroom, took out the weapon which was concealed under the cot and produced the same. - 21 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 PW.20 seized the same drawing the mahazar Ex.P3 in the presence of PWs.8 and PW.14. 33. PW.8 in the chief examination deposed that when he had gone to attend the burial ceremony of Rama, police brought the accused and he went inside his house, took out one Katti from beneath the cot and produced the same. But he does not know the names of others who were present at that time and his signature was taken in the document in the evening. Whereas, in his cross examination he took U-turn and said that he went to house of the deceased at 10.00 a.m., stayed there till 3.00 p.m. and Police met him near the house of the deceased. But police neither enquired him nor took him anywhere. In his evidence he admitted that around the house of the deceased there are several houses. But those people around him or the surrounding residents were not taken as witnesses to the said mahazar. When it was suggested to him in the cross examination that on that day he was drunk, therefore he does not know what the police have done, he replied that he does not know. 34. PW.14 the other mahazar witness says that police conducted the mahazar near the house of the accused and - 22 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 seized one katti lying under the cot in the house of the accused. But he does not say that the accused produced that. In the cross examination he stated that MO.1 had fallen near the house of the accused and he admits the suggestion that he is seeing MO.1 for the first time in the Court. 35. The major contradiction is that as per Ex.P3, the weapon was recovered on 25.07.2016 between 16 and 17 hours. But PW.12 says that the accused was arrested on 26.07.2016. An attempt was made to contend that the same was clarified in the evidence of Investigating Officer/PW20. But the material witness through whom it should have been clarified is PW.12, who apprehended the accused and submitted his report/Ex.P8 dated 26.07.2016. If Investigating Officer found any discrepancy in Ex.P8, he could have got the same corrected on the day of submission of the same itself or at least before filing the charge sheet, which is not done. Therefore, the circumstance of recovery is not established by acceptable evidence. Reg. charge under Section 302 of IPC 36. Even in the absence of the other circumstances like motive and recovery of the weapon, the above discussion goes - 23 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 to show that the fact that the accused assaulting Rama with MO.1 was proved. Whether that act amounts to murder is the question. As already discussed, the evidence on record shows that Rama was quarreling with PW.1 and had assaulted her and she herself went outside seeking some relief. On learning about that through her, accused who was her relative, came to her house. The above discussion shows that the victim himself enraged by the intervention of the accused first assaulted him with MO.1 and in reaction the accused assaulted him. The medical evidence, the evidence of PW.13 and PM report shows that the accused had dealt with only one blow on the head of the victim and then went away. He also had suffered the injuries. He again goes to his employer and confesses about his overt act. That goes to show that he had some remorse for what he had done. Having regard to the body part chosen to assault and the weapon, it can be said that the accused had the knowledge that such of his overt acts is likely to cause death. But he had not brought the weapon from his house and there was no premeditation or preparation on his part. Therefore, it cannot be said that he had an intention to commit murder or inflicted the blow with such intention. Even if the incident is - 24 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 accepted in the manner it occurred, it was in the spur of moment and without pre-meditation. Therefore, learned counsel of the appellant is justified in contending that Exception 4 to Section 300 of IPC shall be invoked, which reads as follows: “Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.” 37. At the cost of repetition, it can be said that in the present case also, there was a sudden fight between the accused and the deceased. There was no pre-meditation on the part of the accused. Such overt act of the accused was in a sudden fight and he had not taken any undue advantage. Therefore, the act of the accused falls under exception 4 to Section 300 IPC and constitutes an offence under second part of Section 304 IPC. 38. The accused at the time of the incident was aged nearly 35 years. It is not disputed that he has dependent wife - 25 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 and children. Before this Court, learned counsel for the appellant produced discharge summary of wife of the accused. The said records show that as on 13.11.2016 she was aged 23 years and delivered child undergoing cesarean section. He has no other criminal antecedents. Further, he had gone to help PW.1, which led to the unfortunate incident. Considering the same, it would be just and appropriate to impose minimum prescribed sentence for the offence punishable under Second part of Section 304 IPC. Hence the following: ORDER i) The appeal is partly allowed. ii) The impugned judgment and order of conviction and sentence is modified as follows: a) The appellant/accused is convicted for the offence punishable under Second part of Section 304 IPC. For the said offence, he is sentenced to the period of detention already undergone by him and fine of Rs.10,000/-. In default to pay fine, he shall undergo simple imprisonment for six months. b) On depositing the fine amount, he shall be set at liberty forthwith, if his detention is not required in any other case. - 26 - HC-KAR NC: 2025:KHC:42023-DB CRL.A No.775/2019 c) The order of the Trial Court with regard to disposal of the property, set off under Section 428 Cr.P.C. and reference of the matter under Section 357A of Cr.P.C. to concerned Legal Services Authority is maintained. d) The Trial Court shall issue modified conviction warrant accordingly. Communicate copy of this order to the Trial Court and the concerned prison. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (VENKATESH NAIK T) JUDGE KSR,MN,AKC List No.: 1 Sl No.: 20