Basavaraj and Others vs The State of Karnataka

Ravi V. Malimath, J—These two appeals are directed against conviction and sentence against the seven accused in SC No. 306/2010 on the file of the learned Sessions Fast Track Judge, Saundatti.

Brief case of the prosecution is that one Somalmgappa Kashappa Melliken of Hosur Village, Saundatti Taluk lodged a complaint against the accused-appellants alleging that there existed a long standing dispute between the families of accused and the complainant pertaining to the land in R.S. No. 550 measuring 18 acres 3 guntas of Hosur Village, Saundatti Taluk, Belgaum District and neem and tamarind trees standing on the boundaries of the said land. About three years prior to the incident, at the intervention of elders survey was conducted and it was decided that the said trees and some portion of the land belonged to the complainant and his family. On 22.04.2010, at about 11.00 a.m., the complainant and his deceased brother Mallappa and another brother Ningappa along with a coolie by name Saiki Ajam Shaikh went to their land to pluck tamarind fruits. At that time, all the accused persons who were in their land, objecting to plucking of the fruits, came running to the spot, abused the complainant and deceased in filthy language and assaulted them. Accused Nos. 1 and 2 assaulted the deceased Mallappa with sickles and accused No. 3 assaulted with an axe. They assaulted on the head, face and other parts of the body of the deceased. At that time, another brother of the complainant-Ningappa rushed to the spot and the accused ran away from the scene of offence. On the basis of the said complaint, Crime No. 110/2010 was registered by the CPI, Saundatti and further investigation was taken up. Charge sheet was filed against the accused under Sections 302 and 307 of IPC.

In support of its case, the prosecution in all examined 29 witnesses and got marked 53 exhibits and 20 material objects. After a full dressed trial, learned Sessions Judge convicted and sentenced the accused as follows:

"The accused Nos. 1 to 7 are sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 30,000/-each and in default to pay fine amount, the accused shall undergo rigorous imprisonment for 5 years for the office punishable u/s. 302 R/W Sec. 149 of IPC.

The accused Nos. 1 to 7 are further sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 10,000/- each and in default to pay the fine amount, the accused shall undergo further period of two years rigorous imprisonment for the offence punishable u/s. 307 R/W Sec. 149 of IPC.

Further the accused Nos. 1 to 7 are further sentenced to undergo Rigorous imprisonment for 3 months and to pay a fine of Rs. 500/- each and in default to pay the fine the accused shall undergo imprisonment for one month for the offence punishable u/s. 143 R/W Sec. 149 of IPC.

The accused Nos. 1 to 7 are further sentenced to undergo Rigorous imprisonment for 6 months and to pay a fine of Rs. 500/- each and in default to pay the fine amount, the accused shall undergo further period of 2 months rigorous imprisonment for the offence punishable u/s. 147 R/W Sec.149 of IPC.

The accused Nos. 1 to 7 are further sentenced to undergo Rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- each and in default to pay the fine amount, the accused shall undergo further period of 3 months rigorous imprisonment for the offence punishable u/s. 148 R/W Sec.149 of IPC.

The accused Nos. 1 to 7 are further sentenced to pay a fine of Rs. 500/- each and in default to pay the fine amount the accused shall undergo further period of imprisonment for 6 months for the offence punishable u/s. 504 r/w Sec.149 of IPC.

Out of the total fine amount, 50% of the amount be given to the injured complainant (PW-4) as compensation.

All the sentences shall run concurrently."

Aggrieved by their respective conviction and sentences, accused Nos. 1 to 3 have filed Crl.A. No. 2824/2012 and accused Nos. 4 to 7 have filed Crl.A. No. 2785/2012.

We have heard Sri A.P. Murari, learned Counsel for appellants and Sri V.M. Banakar, learned Addl SPP for the State and perused the records.

Sri A.P. Murari, learned counsel for the appellants/accused in both the appeals submits that the trial Court has committed an error in misreading the evidence on record. That the prosecution has failed to establish its case beyond all reasonable doubts. That there are sufficient inconsistencies in the case of the prosecution which the Trial Court has failed to appreciate. That the evidence as let in by the prosecution is not trustworthy. In the alternative, he contends that the incident took place in a heat of passion. He therefore places reliance on the 4th exception to Section 300 of IPC and contends that since the act took place all of a sudden in the heat of passion and there was no premeditation, nor the accused had taken any undue advantage or acted in an unusual manner and therefore the charges leveled against them is unsustainable. Hence, he pleads that the appeals be allowed and the accused be acquitted of the charges leveled against them.

On the other hand, Sri V.M. Banakar, learned Addl. SPP strongly supporting the judgment of trial Court, contends that the trial Court has not committed any error in the impugned order of conviction and sentence. The witnesses are very clear and categorical in their statements with regard to the involvement of the accused. It is not only that overt acts have been alleged against accused Nos. 1 to 3 but also against accused Nos. 4 to 7 who have instigated commission of the offence. Therefore, the trial Court has rightly considered the evidence while convicting the accused. The alternative plea of the appellants'' counsel taking shelter under Section 300 of IPC would not arise for consideration as the acts committed by the accused are premeditated and they are done with the sole intention of causing fatal injuries to the complainant as well as the deceased. Therefore, the same cannot be made applicable to the facts of this case. Hence, he pleads that the appeals be dismissed by confirming the judgment of conviction and sentence imposed by the trial Court.

PWs-1 to 3 are the panch witnesses. PW-4 is the complainant and an injured eye witness. PWs.5 and 6 are other eye witness. PW. 4 has narrated in his evidence that the land in R.S. No. 550 belonged to them and that adjoining land in R.S. No. 551 belonged to the accused. That on the date of the incident, he, along with his brothers namely Ningappa PW-6 and the deceased Mallappa went to their land along with a coolie by name Saiki Ajam Shabbir Shaikh, PW-5, for plucking tamarind fruits. The deceased Mallappa asked the coolie/PW-5 to climb the tree and to pluck the fruits. Accordingly, when PW-5 was about to climb the tree, all the accused persons who were working in the adjoining groundnut farm, came to the spot and started to abusing and assaulting them. Accused No. 1 assaulted the deceased with a sickle on the right hand; accused No. 2 assaulted on the palm; accused No. 3 assaulted on the neck, forehead, head, nose etc. The complainant intervened and tried to rescue his brother Mallappa and all the accused started assaulting both the complainant and the deceased. Accused Nos. 4 to 7 instigated the commission of offence by shouting finish all those people''. In the meanwhile, his brother Ningappa/PW-6 also reached the spot and on seeing him, all the accused ran away. The deceased fell unconscious on the ground and the complainant also sat there. Thereafter they were given some water and taken to the hospital.

PW-5, coolie hired to pluck tamarind fruits, has stated in his evidence with regard to the presence of the accused persons. He has stated that a quarrel ensued between the complainant and the deceased and the accused started assaulting the deceased and the complainant with a sickle and axe.

PW-6, brother of PW-4 as well as the deceased has narrated the incident in identical terms with the evidence of PW-4. He has stated that he along with deceased Mallappa and P.W.4 had gone to their land. Accused were working in their groundnut farm. He also began working in their sugarcane farm. At about 11.00 AM., P.W.5 who was hired to pluck tamarind fruits went near the tamarind tree. At that time, he heard the accused shouting to the effect that (deceased and others) had gone to pluck tamarind fruits though accused have been claiming the ownership of the trees and they should be assaulted. At that time, accused Nos. 1 and 2 with sickle and accused No. 3 with an axe started assaulting his brother Mallappa on the right forearm, right hand, on the left side ribs, forehead, right eyebrow, right ear and below the ear, on the neck, near left eye, on the nose, on lower lip, chin and on the leg. P.W.6 and 4 went to protect their brother.

He has further stated that when his brother Somalingappa (P.W.4) rushed to protect the deceased, accused Nos. 1 and 2 with sickle and accused No. 3 with an axe assaulted him on the right forearm, left palm, forearm, forehead, nose, left side of neck, right cheek and head.

PWs-7 and 8 are the hearsay witnesses. They were informed after the incident and they shifted the injured to the hospital.

PWs-10 and 11 are elders residing in the village who have spoken about the prior dispute between the parties.

PW-12 is the doctor who examined the complainant at the first instance. He has stated that the victim Mallappa was unconscious when he was examined by him and therefore, he referred him to the K.L.E. Hospital, Belgavi.

PW-13 is the Assistant Executive Engineer who visited the spot and drew the sketch of the scene of offence. PW-14 admitted the injured to the K.L.E. Hospital, Belgavi. PW-15 is the person who summoned the ambulance. PW-16 went to the spot and secured the ambulance. He saw the injured and deceased fallen on the ground. PW-17 is the doctor who conducted the postmortem of the body of the deceased. PW-18 is the Police Constable who took the First Information Report to the Court.

PW-19 is the another doctor who gave first aid to the victim Mallappa (deceased) at Government Hospital, Bailhongal. He has deposed that the Mallappa was brought to the hospital on 22.04.2010 with an history of assault and that he had noticed 12 injuries on him.

PW-20 is the Police Constable who accompanied the PSI to K.L.E. Hospital, Belagavi and he sent the complaint to Murgod Police Station for registration of the crime.

PW-21 is the another Police Constable who took the dead body of deceased Mallappa for postmortem. PW-22 is the Police Constable who seized 20 articles and were sent to the Regional Forensic Science Laboratory (RFSL).

PWs.23 to 25 are police personnel who assisted in registration of crime and investigation. PW-26 is the Assistant Executive Engineer who speaks about Exs. P-12 and P-13 namely a hand sketch of the spot and a covering letter. PW-27 is a radiologist who speaks about the CT scan.

PW-28 is the PSI who visited the K.L.E. Hospital, Belgavi, recorded the complaint and arranged to shift the dead body to the mortuary.

PW-29 is the Investigating Officer who has laid the charge sheet. He has spoken about the further investigation conducted by him. He has seized the clothes of the injured as per Ex. P-2 and M.Os. No. 1 to 3 and recorded the statements of brothers of the deceased and seized the clothes of the deceased and identified Ex. P-3, M.Os. No. 4 to 8 and Exs. P-35 to P-37. He identified Ex. P-4, M.Os. No. 9 to 13 and photographs, Ex. P-38 to P-43.

We have carefully examined the evidence let and the materials produced by the prosecution. The evidence of eyewitnesses namely, PWs-4, 5 and 6 are important and stood the scrutiny. PW-4 is the complainant and an injured eye witness. PW-5 is the labourer who was summoned to pluck the tamarind fruits. PW-6 is also another eyewitness and brother of the complainant who is an advocate by profession. The evidence of PWs-4, 5 and 6 are on identical terms. All three of them speak about the overt acts committed by the accused Nos. 1 to 3 and speak about the manner in which the assault took place. According to them, the accused Nos. 1 to 3 assaulted the complainant namely PW-4 as well as the deceased on vital parts of the body as described in earlier paragraphs. Their evidence is cogent and consistent. There is no discrepancy in their version. The trial Court has therefore rightly accepted their evidence and held that the accused Nos. 1 to 3 are guilty of charges leveled against them. On re-appreciating their evidence, we are of the view that there is no reason to interfere with the finding recorded by the trial Court. The same is based on the evidence of eyewitnesses including an injured eye witness. The witnesses are consistent in their deposition and firmly withstood the cross-examination.

So far as accused Nos. 4 to 7 are concerned, the case of the prosecution is that they abetted the commission of offence. Prosecution has relied upon the very same witnesses to bring home their guilt. In the evidence of PW-4, he has stated that accused Nos. 4 to 7 were shouting that the complainant and the deceased should not be spared and should not be allowed to escape and they should be chopped into pieces. The prosecution has placed heavy reliance on the statement made by the PW-4 and also identical statement made by PW-6. However, such a narration is absent in the evidence of PW-5 who is also an eyewitness to the incident. He has stated that a quarrel ensued between the accused and the family members of the deceased. The accused assaulted the deceased and the complainant. He does not speak anything about the involvement of accused Nos. 4 to 7. Therefore, the evidence relied by the prosecution would be that of PWs-4 and 6. We have carefully considered in detail the said evidence. The literal meaning of the words uttered by accused Nos. 4 to 7 are to the effect that the victims should not be spared and they should be chopped. However, it would be a travesty of justice to adopt the literal interpretation of the language used by the witnesses. It is not disputed by both learned counsel, that the language that has been employed by Accused Nos. 4 to 7 at the time of the incident, does not necessarily mean that a person should be actually chopped into pieces. It is a common terminology/slang used in this part of Karnataka. It cannot be read to understand that accused Nos. 4 to 7 intended that the deceased or the complainant should be actually chopped into pieces. Such intention nor literal meaning is attributable to the words uttered by them. Both counsel fairly submit that such language used is in common parlance. Therefore, giving a literal meaning to it, would be wholly incorrect. Notwithstanding the same, the entire evidence will have to be read holistically to understand as to what the witnesses intended to state. By reading the deposition of all witnesses in entirety, we have no hesitation to hold that at the most the witnesses meant to stop them from plucking the tamarind fruits and to teach a lesson. Nothing more can be inferred from their evidence and certainly not as a provocation to kill some one. The literal meaning should not be employed in order to understand what the witnesses intended. Therefore, the contention of the prosecution advanced at the trial stage that this particular sentence is to be understood as an incitement for committing the murder of the complainant and the deceased would therefore be too far fetched an argument to accept. Thus, there is no evidence against the accused Nos. 4 to 7 to hold them guilt of the offence alleged against them. Under these circumstances, we are of the view that the prosecution has failed to establish its case qua the accused Nos. 4 to 7.

The alternative plea contended by the appellants'' counsel is that even assuming that the prosecution has established its case beyond reasonable doubt, the accused are entitled for the benefit of 4th exception to Section 300 of IPC which reads as follows:

"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

Secondly.--xxx

Thirdly.--xxx

Fourthly-xxx

Exception 1.--When culpable homicide is not murder-Culpable homicide is not murder if the offender, whilst deprived oft the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

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 having taken undue advantage or acted in a cruel or unusual manner."

Placing reliance on the above provision of law, it is contended by the learned Counsel for appellant that culpable homicide would not be a murder, if it is committed without any 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. He submits that the facts of the case on hand disclose that the accused richly deserve to be given the benefit of exception 4. We have carefully examined the contention urged by the learned Counsel for appellant on this point. In order to extend the benefit of 4th exception, accused have to satisfy all conditions prescribed therein. Firstly, that there was no premeditation and the incident had occurred in a sudden fight in the heat of passion. Secondly, that the accused have not acted in any cruel or unusual manner by taking undue advantage of the situation. With regard to the first condition, it is urged that when the complainant and his brother came to pluck tamarind fruits, the accused were in their lands tending the groundnut plants; on seeing the complainant, they came rushing in the heat of passion; a sudden fight ensued and therefore, the complainant and the deceased were assaulted.

With regard to second condition, in our view, the accused have demonstrably failed to fulfill the second condition. The wound certificate of the complainant, Ex. P14 discloses that he has sustained following injuries:

"1. Sutured wound on the forehead, left side 4cms then continued on the nose 3 cms superficial CLW. Same C.L.W continued on the frontal part of scalp.

CLW on the right cheek 8 cms/1 cms

CLW on the upper lip left side 2cms/1cm.

CLW on the left side neck 4 cms/1 1/2 cms skin deep sutured wound on the right hand anterior aspect 2 in number 3 cms & 2 cms.

CLW on the left thumb 2 cms/1 cms.

CLW on the left thumb 2cms/1cm CLW on the left palmer aspect of hand 4cms/1 cms.

Sutured wound on the left forearm 3cms anterior aspect of superficial cut on the left forearm dermal aspect.

C.T. Scan brain plane-There is evidence of B/L Nasal bone fracture."

Ex. P-11 is a letter written by the doctor who treated the complainant at the first instance. He has noted that the complainant came with a history of assault and multiple injuries on the face, head, forearm etc. and that the complainant was unconscious.

Ex. P-21 is the wound certificate of the deceased wherein the following injuries have been noted:

"1) CLW on the right frontal region measuring 8x6cms with exporting the bone, bleeding (+)

2) On left side mandible CLW measuring 3x2cms with fracture present with tooth partially dislocated.

3) Right forearm on the back CLW measuring 7x2 cms present exporting the underneath structure bleeding (+)

4) CLW about 4x1 cms above the left eye present

5) Chop wound over the right side mandible with fracture of the mandible extending from lower lip to chin

6) CLW over the bridge of the Nose extending to the left orbit with the fracture of the Nasal bone and the left orbit present Bleeding (+)

7) CLW over the left parietal bone 3X1 cm with exporting the bone present. Red in color.

8) CLW over the right side of the forehead measuring 4x1 cm above the eyebrow present. Red in colour oozing present

9) CLW over the left ear present. Red in colour.

10) Chop wound about 8x2 cm muscle deep about 10 cms above the left anterior superior iliac pine present Bleeding (+)

11) Incised wound over the right hand present 4x1 cm red in colour.

12) Contusion of the right cheek, upper lip, right eye present."

Ex. P-17 is the postmortem report of the deceased wherein the following injuries have been recorded:

"1) Chop injury over frontal part of scalp, shirring a lap of scalp skin, 8x cms, exposing the frontal part of skull bone

2) A cut laceration of 3x1 cms over left parietal area, bone deep 6cms above left ear (P)

3) Bone deep incised wound of 4x0.5 cms over right side of forehead, 4cms above right eyebrow.

4) Left external ear partially chopped.

5) Abraded contusions across whole of right cheek

6) Bone deep chop wound across the bridge of nose, extending on to the left orbit, with fracture of nasal bone and left orbital bone (P)

7) Bone deep chop wound of 4x1 cms across outer angle of left eye (P).

8) Chop wound across lower lip, extending on to the chin with fracture of mandible and dislocation of mandible or teeth

9) Chop wound of 5x2 cms, bone deep, over middle of back of right forearm, 10cms below right elbow, exposing the ruptured muscles and vessels.

10) Incised wound of 4x1 cms, muscle deep over wib of thumb of right hand and multiple small incised wounds over palmer aspect.

11) Muscle deep, 1x1 cms incised wound over outer aspect of right thigh (P).

12) Muscle deep punctured wound of 1x1 cms over right scapular area, 7 cms behind right jeromion

13) Muscle deep incised wound of 2x1 cms over the left arm fold (anterior axillary line-axillary fold)

14) An oblique, 8x2 cms, muscle deep chop would over left flank 11 cms above left anterior superior iliac spine (P)"

On careful examination of the documents containing narration of injuries sustained by the complainant as well as the deceased and the condition of victims, it is noted that the complainant was unconscious. Secondly, he had sustained injuries over the forehead and vital parts of the scalp, on the upper lip, nasal bone. The postmortem report of the deceased would indicate that injuries were found on the right frontal region, on the left mandible, right forearm, left eye, on the bridge of the nose, left parietal bone, right side of the palm, head, right ear, cheek, over spine, etc. The injuries are grievous in nature and on the vital parts of the body. Therefore, in our view, the 4th exception to Section 300 would not come to the aid of the accused. Even if it is held that the incident took place during a sudden fight in the heat of passion, the same runs contrary to the medical records which discloses fatal injuries. The injuries sustained by the deceased and the complainant are to the vital organs of the body. If there was no intention to commit the murder, the injuries would not have been inflicted on the vital organs of the body. It therefore supports the case of the prosecution that the intention was clear and unambiguous to commit the murder of the complainant as well as the deceased. Therefore, we are of the view that the contention of the appellants in seeking benefit under the 4th exception to Section 300 of IPC would not merit any consideration. The material and evidence on record belittles such a contention. Hence, the contention is rejected.

We have bestowed our anxious consideration to every contention urged on behalf of the learned Counsel for the appellants and the learned Addl SSP and meticulously examined the material papers. On reappreciation of the entire evidence on record, we are of the considered view that so far as the conviction of Accused Nos. 1 to 3 is concerned the same is based on cogent and consistent evidence including that of an injured witness. Therefore, the judgment and sentence imposed by the trial Court requires to be confirmed.

However, so far as accused Nos. 4 to 7 are concerned, we are of the view that the prosecution has failed to establish its case beyond all reasonable doubt. The trial Court committed an error in misreading the evidence and the material on record. Therefore, the findings recorded by the trial Court so far as Accused Nos. 4 to 7 are concerned, requires to be interfered with. Accordingly same is reversed. Accused Nos. 4 to 7 are acquitted of all the charges levelled against them. Consequently, the following:

ORDER

"i) Crl.ANo.2824/2012 is dismissed.

ii) Crl.ANo.2785/2012 is allowed. The judgment of conviction and sentence dated 19.07.2012 passed by the Presiding Officer, Fast Track Court, Saundatti, in Sessions Case No. 306/2010 is set aside. The appellants/accused Nos. 4 to 7 are acquitted of the charges levelled against them. Their bail bonds stand cancelled. The fine paid by them, if any, is directed to be released to them.

iii) M.Os. are ordered to be destroyed after expiry of 90 days."