Dasappa and Others vs State of Karnataka

Mohan M. Shantana Goudar, J—Judgment and order of conviction dated 16.6.2011 passed by the Fast Track Court, Hassan in Sessions Case No. 126/2009, is called in question in this appeal by the convicted accused.

All the four accused were tried and convicted for the offences punishable under Section 302 r/w Section 34 of IPC and under Section 326 r/w Section 34 of IPC.

The case of the prosecution in brief is that accused No. 1, accused No. 2 and deceased are brothers inter se. Accused No. 3 is the son of accused No. 2, whereas accused No. 4 is the son of accused No. 1. They were all divided brothers. House of the deceased was adjoining the house of accused No. 1. House of the accused No. 2 is situated opposite to the house of the deceased. At about 9.00. p.m.-9.30 p.m. on 3.4.2009, deceased had his dinner and was sitting in front of his house. He was scolding his brothers accused Nos. 1 and 2 on the ground that the accused are not looking after their mother Smt. Kariamma properly and that the deceased was not invited by accused Nos. 1 to the marriage of accused No. 4. At that point of time, all the accused came in a bus from Arsikere; they came near the house of the deceased and questioned him as to why he was scolding them unnecessarily and quarrel took place in that regard; suddenly accused Nos. 1 to 4 took out sticks and assaulted on the head of the deceased; a stone was thrown by accused No. 1 on the head of the deceased, consequent upon which, the deceased died on the spot. P.Ws. 5 and 6 being the daughter and wife of the deceased rushed to the spot from inside the house to save the life of the deceased; however, P.W. 6 was also assaulted by the accused, consequent upon which, P.W. 6 sustained three fractures.

Immediately after the incident, the family members of the deceased and the injured did not get conveyance to go to the hospital for treatment; hence, P.W. 5 called P.W. 1(her brother) over phone and informed about the incident; in turn P.W. 1 who had been to Bangalore, rushed to the village and shifted P.W. 6 to the hospital on the next day morning i.e., at about 5.30-6.00 a.m. on 4.4.2009. The Medico-legal intimation was sent by the hospital authorities to the Sub-Inspector of Police of Arsikere Rural police station, Hassan District; P.W. 13, the Assistant Sub-Inspector of the said police station came to the police station and recorded the statement of P.W. 6 as per Ex. P4, based on which, Crime No. 59/2009 came to be registered by P.W. 13. P.W. 14 completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 14 witnesses and got marked 23 exhibits and 11 material objects. On behalf of the defence, one exhibit was got marked. As aforementioned, the trial Court convicted all the accused for the offence punishable under Sections 302 and 326 r/w Section 34 of IPC.

Sri. K.A. Chandrashekara, learned Amicus Curiae taking us through the entire material on record submits that the evidence of P.Ws. 5 and 6 cannot be relied upon by the Court in view of the clear admission of P.W. 6 that she came to the spot only after the death of the deceased; according to him, P.Ws. 5 and 6 are not the eyewitnesses to the incident and that the story as made out by the prosecution is created and concocted. He further submits that even if the eyewitnesses are believed fully, it can be said that the accused have committed the offence punishable under Section 304(II) of IPC, in as much as, they did not have any intention to commit the murder of the deceased and that the incident has taken place on the spur of the moment without pre-meditation and in a fit of anger because of sudden fight.

Per-contra, Sri. P.M. Nawaz, learned SPP has argued in support of the judgment of the Court below.

P.W. 1 is the son of the deceased. He came to the spot after hearing the news from P.W. 5. He is the hearsay witness. He shifted the injured to the hospital. P.W. 2 is the witness for panchanama Ex. P2. Ex. P2 is not only the scene of offence mahazar, but also inquest mahazar; under the very panchanama three clubs and a stone are seized. P.W. 2 has turned hostile to the case of the prosecution. P.W. 3 though an eyewitness to the incident has turned hostile to the case of the prosecution. P.W. 4 is another witness who has deposed about seizure of M.Os. 4 to 7 from the spot. She also assisted in shifting P.W. 6 to the hospital. P.Ws. 5 and 6 are the eyewitnesses. P.W. 5 is the daughter of the deceased, whereas, P.W. 6 is the wife of the deceased. P.W. 6 has suffered grievous injuries in the incident; the wound certificate is at Ex. P7. P.W. 7 is another eyewitness; she has turned hostile. P.W. 8 is one more witness to Ex. P2. P.W. 9 is the Doctor who conducted autopsy over the dead body. Post mortem report is at Ex. P6. P.W. 10 is the Doctor who treated the inured P.W. 6 in the hospital. She was in the hospital for about 16 days. Ex. P7 is the wound certificate of P.W. 6 issued by P.W. 10. P.W. 11 is the Engineer working in Karnataka Electricity Board. He has deposed that there was electricity supply during the relevant point of time in the area in question and he has issued Ex. P9, the certificate to that effect. P.W. 12 is the Junior Engineer. He drew the sketch of scene of offence as per Ex. P10. P.W. 13 is the Assistant Sub-Inspector of Police. He has recorded the statement of the injured in the hospital as per Ex. P4 and registered the case in Crime No. 59/2009 and sent the FIR to the Court as per Ex. P12. P.W. 14 is the Investigating Officer who completed the investigation and laid the charge sheet.

Case of the prosecution mainly depends upon the evidence of P.Ws. 5 and 6. As aforementioned, P.W. 6 has lodged the complaint as per Ex. P4 while she was taking treatment in the hospital.

Ex. P4, the complaint suggests that the deceased came to the house of the deceased at about 9.00 p.m. on 3.4.2009. The deceased after having dinner was sitting in front of the house on katta (pail). He started scolding the accused on the ground that their mother Kariamma is not being looked after well by all the accused. At that point of time, accused Nos. 1 to 4 came to the spot after alighting the bus from Arsikere. Since the deceased was scolding them, they questioned the same and quarrel took place between the deceased and the accused. At that point of time, accused assaulted the deceased on his head and other parts of the body with three clubs and thereafter, a stone was thrown on the head of the deceased, consequent upon which, the deceased died on the spot. After hearing the hue and cry, P.Ws. 5 and 6 rushed to the spot from inside the house; the accused assaulted P.W. 6 also with clubs as a result, P.W. 6 has sustained three fractures.

The aforementioned version as found in Ex. P4, practically finds support from the version of P.Ws. 5 and 6 in all material particulars. Both these eyewitnesses have unequivocally deposed that when the deceased was scolding the accused on the ground that they are not looking after their mother Kariamma properly, the quarrel took place between the deceased and the accused wherein the accused did not spare the deceased. They took out three clubs and assaulted on the body of the deceased. The head of the deceased was also crushed by throwing the stone M.O. 7. Since P.W. 6 intervened, she was also assaulted by the accused with clubs. Consequently, she also suffered to grievous injuries. This portion of the evidence has remained virtually uncontroverted. However, in the cross-examination of P.W. 5, she has admitted that the three clubs M.Os. 4 to 6 used for commission of the offence were suddenly taken from the heap of firewood stored in front of house of Yellamma. Even the stone M.O. 7 was taken from the heap of stone stored near the house of Yellamma. It is also not disputed by prosecution witnesses P.Ws. 5 and 6 that the accused came from outside place during the relevant point of time; the deceased was scolding the accused; the accused were not armed with any weapon when they reached the spot, on the other hand, they came in a bus from Arsikere side and they were going to their house. Thus, it is clear from the evidence of P.Ws. 5 and 6 that the deceased was scolding the accused on the ground that his mother is being not looked after by the accused properly, on the other hand, evidence on record clearly reveals that the mother of the deceased was living in the house of accused No. 2 and she was not living with the deceased. It is also admitted by P.W. 6 that about three years prior to the date of the incident Kariamma was living with the deceased. Therefore, there was no reason for the deceased to scold the accused. One more ground on which the incident allegedly has taken place is that the accused did not invite the deceased to the marriage of accused No. 4. It has come on record that though there was no ill-will between the families of the accused and the deceased, they were not in talking terms since five years. May be in that regard invitation must not have been extended to the family of the deceased. Be that as it may. The fact remains that the deceased was scolding the accused on one pretext or the other at about 9.30 and 10.00 p.m. when the accused were going to their houses after alighting from the bus. They were unarmed. Since the deceased was scolding the accused, quarrel took place between the deceased and the accused on the spur of the moment. Immediately, the accused in a fit of anger took out three clubs and assaulted on the body of the deceased and even a stone was thrown on the head of the deceased and during the said quarrel P.W. 6 also sustained grievous injuries.

From the aforementioned facts which are not in dispute it is clear that the accused were unarmed; they were simply going to their respective houses after alighting from the bus; quarrel took place because of abusive words used by the deceased against the accused; the accused suddenly got enraged by such abusive words used against them and took out clubs and stones and assaulted on the deceased. Hence, it is clear that the incident has taken place on the spur of the moment in a fit of anger and without any pre-meditation. There was no intention on the part of the accused to commit any crime when they came to the spot, in as much as, they were simply going to their houses. Having regard to these facts, which are not in dispute, we are of the considered opinion that the learned Amicus Curiae is justified in arguing that the offence committed by the accused falls under Section 304(II) of IPC and not under Section 302 of IPC in respect of death of the deceased.

In so far as the assault on P.W. 6 is concerned, the evidence of P.Ws. 5 and 6 amply proves that all the accused assaulted P.W. 6 with clubs. Even in the cross-examination, the defence has got it clarified that all the accused participated in the crime in question and all the accused assaulted P.W. 6 also.

The wound certificate Ex. P7 and the evidence of the Doctor P.W. 10 amply proves that P.W. 6 has sustained fractures. Of course, all the fractures are minor in nature i.e., fracture base of 5th metacarpal bone, fracture shift of 4th left metacarpal, fracture base of proximal phalanx of left little finger and fracture shift of middle phalanx of index left finger. In view of the aforementioned four fractures suffered by P.W. 6 because of the assault of the accused, the trial Court is justified in convicting all the accused for the offence punishable under Section 326 of IPC also.

Looking to the totality of the facts and circumstances, we are of the opinion that the accused are liable to be convicted for the offence punishable under Section 304(II) r/w Section 34 of IPC and Section 326 r/w Section 34 of IPC.

We have heard the learned Advocates on both sides on the question of sentence. It is brought to the notice of the Court by filing a Memo that appellant No. 1 Dasappa expired on 7.8.2014. According to the learned Advocate appearing on behalf of the accused, the peace exists within the family members and therefore, leniency may be shown while imposing sentence. Having regard to the aforementioned facts and circumstances and the arguments made at the Bar, the following order is made:

"(a) Appeal is allowed in part.

(b) The Judgment and order passed by the trial Court in S.C. No. 126/2009 convicting the accused for the offence punishable under Section 302 r/w Section 34 of IPC stands set aside. Accused Nos. 1 to 4 are hereby convicted for the offence punishable under Section 304(II) of IPC r/w Section 34 of IPC.

(c) The judgment and order of trial Court convicting the accused for the offence punishable under Section 326 of IPC r/w Section 34 of IPC stands confirmed and the sentence imposed by the trial Court in respect of the said offence also remains unaltered.

(d) The accused are sentenced to undergo imprisonment for a period of 8 years and to pay a fine of Rs. 30,000/- each for the offence punishable under Section 304(II) r/w Section 34 of IPC. In case of default of payment of fine amount, the accused shall undergo further imprisonment for two years.

(e) Both the sentences shall run concurrently.

(f) The accused are entitled for the benefit of set off as contemplated under Section 428 of Cr.P.C.

(g) If the fine amount is recovered, an amount of Rs. 80,000/- shall be paid to the wife of the deceased (P.W. 6) namely, Parvathamma. Rest of the amount will vest to the state."

The impugned judgment and order of conviction and sentence is modified accordingly.

We place on record the valuable assistance rendered by Sri. K.A. Chandrashekara, learned Amicus Curiae. Hence, the registry is directed to pay Rs. 10,000/- to learned Amicus Curiae.