K. Keshav Reddy vs State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for appellant and the learned Additional State Public Prosecutor.

The appellant was the accused before the trial Court for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as ''I.P.C, for brevity) read with Section 3 (1) (x) and 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ''SCST Act'', for brevity).

It was the case of the prosecution that on 13.07.2011 at about 11.30 p.m. the complainant, one Shashibai W/o. Lokya Naika, had approached Tornagal police station, Kudligi district and had lodged a complaint to state that she was residing along with her husband and three children at Vaddu village and that they are Lambanis by caste. He husband was working as a Master Technician at the Jindal Factory from two years prior to the complaint. One Keshava Reddy the accused appellant herein was a co-worker with her husband and he was employed as a Fitter.

It transpires that, as claimed by the accused he had saved Rs. 2,000/- per month from January to May, and the sum of Rs. 10,000/-, thus saved, was handed over to her husband Lokya Naika towards the purchase of a motor cycle and in the month of June the accused is said to have brought pressure on the husband of the complainant to repay the amount, since the motor cycle was not delivered. The husband of the complainant had expressed his inability to return the amount in one lumpsum and had sought time to repay the amount. The accused is said to have been enraged and had left in a huff. A week prior to the complaint, it was alleged that the accused had again come to their house and demanded the amount, when the complainant''s husband expressed his inability to pay the amount, he had abused him in foul language with reference to the caste of the accused and also threatened to do away his life if he did not return the money soon.

On 13.07.2011 it transpires that the husband of the complainant had left home at 9.00 a.m. as usual, for work at the Jindal Factory. In the evening at about 6.15 p.m. a friend of her husband Nanya Naika had informed her that at about 5.30 p.m. her husband, after completing his work, was exiting from the main gate of the Factory on his motor cycle, the accused had assaulted him, while abusing him in foul language, with a wooden stick on his head and as a result of the blow he had fallen to the ground. The accused is said to have run away and he could not be immediately traced. Thereafter the injured victim was taken to hospital and given treatment, and referred to the V.I.M.S. Hospital, Bellary. On his way to the hospital, he is said to have succumbed to the injuries. It is thereafter that the complaint was lodged at about 11.30 p.m. On the basis of the complaint a case in Crime No. 106/2011 was registered for the offences punishable, as aforesaid, and the First Information Report was lodged with the competent Court.

In the course of the investigation, the statements of eye witnesses were recorded and other material was gathered and a charge sheet was said to be filed on the basis of the same. The accused is said to have been arrested on 14.11.2011 and charges were framed for the offences punishable under Sections 504 and 302 of the I.P.C. and under Section 3(1)(x) and 3(2)(v) of the SCST Act. The accused having pleaded not guilty and having claimed to be tried and after recording the plea of the accused, the prosecution had examined 20 witnesses and marked several exhibits and material objects. The court below, after having heard the accused under section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to ''Cr.P.C, for brevity) in respect of the incriminating evidence appearing against him which was denied, and after hearing the State as well as the accused, the court below had framed the following points for consideration:--

"1. Whether the prosecution proves beyond all reasonable doubt that one week prior to 13.07.2011 when complainant and her husband in their house situated at Kogall Thanda, accused came to their house with an intention to abuse complainant husband who belongs to scheduled caste with a view to defame a member of scheduled caste, abused him as and thereby accused has committed offences punishable under Section 504 of I.P.C and under Section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989?

Whether prosecution further proves that on 13.07.2011 at about 5.30 p.m. when Lokya Naika was coming on his motor cycle through Jindal Factory Main Gate, accused after abusing Lokya Naika who belongs to scheduled caste in filthy language with an intention to murder him, assaulted with stick on his head and back, caused his death and thereby committed offences punishable under Section 302 of I.P.C. and under Section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989?

What order?"

The court below had answered point No. 1 in the negative and point No. 2 in the affirmative and convicted and sentenced the accused to undergo rigorous imprisonment for the offence punishable under Section 302 and acquitted him of the offences punishable under Section 504 of I.P.C. and under Sections 3 (1) (x) and 3 (2) (v) of the S.C.S.T. Act.

It is that judgment which is under challenge in the present appeal.

The State has not chosen to file any appeal against that portion of the judgment acquitting the accused in respect other offences.

The learned counsel for the appellant while taking this court through the record would draw attention to several infirmities in the present case on hand. It is pointed out that the case of the prosecution is on the basis of four witnesses namely, P.Ws. 2, 3, 7 and 8. PW.2 was said to be a Security Officer, at the Factory where the accused and deceased were working. According to his evidence, he was on mobile duty, or in other words, he was patrolling the area on a motor cycle and he claims to have witnessed the deceased being attacked by the accused. He further claims that at the spot, where the deceased was being attacked by the accused, there were several people gathered and he had seen the accused at a distance of 70 metres. There is no evidence by this witness as to having witnessed the overt act of the accused attacking or assaulting the deceased and secondly, when the witness has stated that there were several people surrounding the accused, the evidence of the said witness to establish the commission of the offence does not support the case of the prosecution.

Further the said witness has stated that he immediately apprehended the accused and handed him over to the Police. Whereas, PW.14, a Police Constable has claimed that it was he who arrested the accused at the railway station on the next day. Therefore, the veracity of the evidence of PW.2 becomes highly doubtful.

Insofar as PW.3 is concerned, he was said to be an Engineer working at the Factory. According to his evidence, he was on duty between 6 a.m. and 2 p.m. It is also stated that he was a friend of P.W.8, the brother in law of the deceased and he claims that he met PW.8 outside the Factory at about 2 p.m. and from there they proceeded to the railway station and they spent time in the railway station till about 5.30 p.m., at which time, he came back to the Factory on the ground that P.W.8, who had come from outside town to visit his sister, and the wife of the deceased and that he had stated that he would join the deceased brother-in-law who would be going home between 5.00 p.m. and 5.30 p.m., and therefore, they had come back to the Factory gate and it was at that time that they had seen the incident. However, it is pointed out that it would be inexplicable for the Engineer PW.3 to have completed his duty at 2.00 p.m. and to have spent more than three hours at the railway station. There is no explanation forthcoming as to what they were doing at the railway station and why they were there for so long, and therefore, the prosecution has fielded these witnesses only to bolster their case by all and every means.

It is pointed out that the incident is said to have taken place at about 5.30p.m., when the Factory gate would be abuzz with activity. That apart from the workers, the auto rickshaw drivers and others, who were normally stationed outside the Factory gate would have been present and it is inexplicable that no other witness is examined in support of the case of the prosecution. Except P.W.3, who is admittedly a close friend of the brother in law of the deceased leading to a strong suspicion that he had merely come as a witness to support the case of the prosecution, at the instance of P.W.8.

PW.7 was said to be a Civil Contractor. He claims to have arrived at the spot when the accused was assaulting the deceased and it is further claimed that the quarrel went on for 20 minutes, which by itself is unbelievable that after the assault when the deceased had fallen down to the ground, the question of quarrel going on for 20 minutes is not tenable and it is surprising that the court below has accepted this evidence as being of substance. Further, he had stated that the accused had attacked the deceased on his head and his leg, whereas, the injuries found on the deceased were on his head and there were no injuries on his leg. Hence, the evidence of this witness is highly doubtful.

PW.8, as already stated, was the brother in law of the deceased and his very presence at the scene was highly suspicious, for there was no reason for him to come to the Factory at 2.00 p.m. when he is said to have met PW.3 and again to have left the Factory and to go the railway station for unknown reasons along with PW.3 and to stay at the railway station till 5.30p.m. and come back to the Factory gate. These are unexplained circumstances which clearly create a strong suspicion of all the above said witnesses, namely, P.Ws. 2, 3, 7 and 8 as being tutored and produced to merely frame the accused when it was quite possible for the prosecution to have examined other independent witnesses when there were innumerable persons, admittedly present at the time of the alleged incident.

Further, it is pointed out that the motive for the murder is that the accused was enraged at the deceased not having repaid a sum of Rs. 10,000/-, which was paid towards the purchase of a motor cycle and since the deceased had not delivered the motor cycle or repaid the money there were constant quarrels and threat, day in and day out just one week prior to the incident, in the presence of the complainant.

However, apart from the say of the complainant there was no material produced to show that there was such transaction where Rs. 10,000/- had been paid by the appellant accused to the deceased and that since it was not returned he was enraged and had threatened to kill the deceased. Further, the complainant has changed her version of accused having threatened her husband one week prior to the complaint while in her evidence she had stated that it was one day prior to the incident that the accused had put out such a threat. There is another infirmity and contradiction in the evidence of the complainant, whereas, in the complaint she had narrated that a friend of her husband Nanya Naika had informed her about the incident. In the evidence before the court, she had stated that it was her brother who had informed her about the incident and it was on record that the complaint was actually written by Nanya Naika and it was significant that Nanya Naika was not examined as a witness. The prosecution had miserably failed to establish the motive by not tendering any oral or documentary evidence of the alleged transaction between the deceased and the accused, apart from the say of the complainant.

Insofar as the alleged visit by the accused to threaten the deceased claiming refund of his money, P.Ws.11, 12 and 13 who were said to be neighbourers of the deceased and the complainant were sought to be examined. However, they had turned hostile, and therefore, there is no evidence of the accused having threatened the deceased prior to the incident.

P.W.8, who was the brother in law of the deceased had not chosen to explain as to what brought him to town and why had come there to the Factory gate knowing that his brother would leave the Factory only late in the evening and there is no possible explanation for the coincidence in him having arriving at the Factory gate even as his brother in law was being attacked. This strange coincidence further strengthens the suspicion of the witness having been set up merely to frame the accused.

The learned Counsel would further point out that even according to the prosecution, the weapon used in the commission of the offence was a green branch of a tree and readily picked up in the Factory premises itself, and therefore, it would indicate that there was no premeditation by the accused in having committed any such alleged assault and there was only one injury on the head and another simple injury on the back and the fact that the homicidal death is established by itself did not indicate that any assault was committed with an intention to commit murder and the unfortunate death of the deceased could not be characterised as a brutal premeditated murder intending certain death by causing of the said injury. The sole injury caused with the green branch of a tree was certainly not intended to cause death, and therefore, the court below having taken a strict view of the circumstance is also not justified.

The learned counsel would point out that in identical circumstance in two decisions of the Supreme Court, one in the case of Madhusudan Satpathy and others Vs. State of Orissa, and Mahindra Mulji Kerai Patel Vs. State of Gujarat, , it has taken a view that in such circumstances as in the present case on hand, the accused ought not to be punished with any severe sentence and in both the instances the Supreme Court had tempered its judgment with mercy and had drastically reduced the punishment imposed.

In the case of Mahindra Patel''s case, which was also similar to the case on hand, the accused was said to be in love with the daughter of the complainant and there was a strong opposition to the proposed marriage made by the accused and in a fit of rage he had attacked two women causing the death of one and causing injury to another. He was, however, acquitted by the trial court for the offences punishable under sections 302 and 307 of I.P.C., but he was found guilty of the offence punishable under section 452 of I.P.C. and was sentenced to a light punishment of imprisonment of one year and a fine. The High Court, however, held that the accused was guilty of the offences punishable under sections 302 and 307 of the I.P.C.

The apex court had opined that having regard to the nature of the injuries that was inflicted and the background facts indicating that there was no premeditation over the exchange of words and a sole injury leading to the death of the victim and while also observing that though in all cases the number of injuries is not a determinative factor for attracting Section 302 of I.P.C, but considering the nature of the weapon used which was a small dharia and the surrounding factors, the conviction was altered having regard to the age of the accused therein, who was 19 and that he had spent time in custody of six years and reduced the punishment to custodial sentence of 6 years.

Similarly, in the case of Madhusudan Satpathy, the appellants, who had tried along with four others for offences punishable under sections 302 read with sections 148 and 149 of the IPC and the case rested mainly on the evidence of the eye witnesses. The trial court dismissed the case. The appeal before the High Court was, however, allowed convicting the three appellants under section 304 Part I of I.P.C. read with section 34 of the IPC and sentenced them to undergo six years rigorous imprisonment. The Supreme Court found that the medical evidence showed that there was only one injury that proved to be fatal, the other injuries were simple in nature. The weapons used were not also deadly weapons. In the circumstances, the Supreme Court altered the conviction from section 304 Part I of I.P.C. to one punishable under section 304 Part II of I.P.C. and reduced the sentence of rigorous imprisonment of each of the appellant from six years to three years.

The learned counsel for the appellant would, therefore, submit that in the present case on hand, the weapon used was a green branch of a tree, which was picked up at the spot by the accused and there was certainly no indication of a premeditated murder and there was only one injury caused to the head and there was a simple injury on the victim''s back. Therefore, applying the reasoning of the Supreme Court in the above said two cases, the case of the appellant also would have to be viewed with compassion and since the appellant had been in custodial confinement since the past four years, and the appellant was 24 at the time of the alleged incident, the best part of his youth had been spent in jail and the appellant would certainly turn over a new leaf if the sentence imposed on him is confined to the period already spent in custody bringing the case under section 304 Part II of I.P.C. and giving him a set off for the period spent in custody and setting him at liberty.

While the Additional State Public Prosecutor would vehemently oppose any such consideration and would point out that it was a cold blooded murder and the fact that there was fracture of the skull caused with a stick. The contention that there was no premeditation is not a tenable contention and that the conviction and sentence imposed by the court below be confirmed.

Given the above facts and circumstances and the rival contentions, and from an examination of the record, the prosecution has sought to place reliance on the evidence of four witnesses aforesaid, none of whom is said to have actually witnessed the overt acts committed by the accused. They only claimed to have come on the scene and seen the accused from a distance and there were several people milling around the accused and the accused is said to have run away from the scene. Whereas, it is inconsistently claimed by PW.2 that he had immediately taken the accused into custody and handed him over to the Police, which is contradicted by PW.14, who has stated that it was he who arrested the accused on the next day at the railway station. This infirmity is not sought to be explained. The further motive for the commission of the offence is also not established with any clarity. It is merely the claim of the complainant that there was a dispute over certain sum of money paid by the accused to the deceased and which was not repaid when demanded. There is no other material and documentary evidence in support of the transaction.

Insofar as the accused having threatened the deceased prior to the incident was sought to be established by examining P.Ws.11, 12, and 13 which again is proved fatal, since those witnesses had turned hostile. Insofar as the coincidence of the brother in law of the deceased and his friend P.W.2, who was incidentally an Engineer of the same Factory where the deceased, accused and he were working and their coincidental presence at the very moment, the assault had taken place also cannot be readily accepted, for the reason admittedly, PW.3 had completed his duty by 2.00 p.m., and it is then that he had met P.W.8, who had come there at the Factory gate possibly to meet his brother in law who was on duty till 5.30p.m., and thereafter, PW.3 and PW.8 the brother in law of the deceased are said to have gone to the railway station and stayed at the railway station till 5.30p.m., before coming back to the Factory gate at 5.30 p.m.. At the very moment, the assault had taken place. There is no explanation forthcoming as to why they went to the railway station and what they were doing there for more than three hours. Therefore, it is a coincidence which renders their evidence highly doubtful.

Therefore, the above infirmities and the vague evidence of the eye witnesses does not establish the case of the prosecution in any convincing manner. But then again, the homicidal death of the deceased cannot be denied and the incident having taken place at a point of time when there were many people in the area, it is unfortunate that the prosecution had not chosen to examine other independent witnesses to establish the case in a straight forward manner instead of fielding the witnesses who were either friends or relatives of the deceased when their presence at the spot does not appear to be natural.

In any event, the court below having convicted the accused had proceeded to impose a stringent punishment of life imprisonment, which certainly appears to be disproportionate to the circumstances of the case. The nature of the weapon used and the background facts which are alleged by the prosecution, there was only one injury which had resulted in the death of the deceased. Though it is not the number of injuries, that is the determinative factor in attracting section 302 of the I.P.C., in our opinion, in the facts and surrounding circumstances of the case on hand, if the punishment imposed on the accused is modified as one falling under Part-II of Section 304 of I.P.C. and if the sentence is reduced to four years, it would certainly meet the ends of justice as is the view taken by the Supreme Court in Madhusudan Satpathy''s case as well as Mahindra Patel''s case, supra, and in view of the appellant having already spent 4 years in custody, and if he is given appropriate set off under section 428 of the Cr.PC, the appellant is set at liberty forthwith.

Accordingly, the appellant is convicted for an offence punishable under section 304 Part-II of I.P.C. and sentenced to undergo rigorous imprisonment for a period of four years and set off under Section 428 of Cr.P.C. be given in respect of the time spent in custody, in accordance with law. The conviction and punishment imposed under section 302 of I.P.C. is set aside. In view of the lenient view having been taken, insofar as the appellant is concerned, a fine of Rs. 3,00,000/- is imposed on the appellant. The amount paid as fine shall be paid as compensation under Section 357 of the Cr.P.C. to P.W.1.

The amount of fine shall be paid within eight weeks and in default of payment of fine, the appellant shall undergo rigorous imprisonment for a period of one year.