Sokke Hanumanthappa and Kamplepara Gopalappa vs State of Karnataka

Subhash B. Adi

Appeal by the accused Nos. 1 and 2 against the judgment of conviction in S.C. No. 127/2002 dated 19th August 2004 on the file of the Fast Track Court-I, Davangere.

Accused Nos. 1 and 2 were charge sheeted and tried for an offence punishable under Sections 304 Part-II and 324 read with Section 34 of the Indian Penal Code.

Case of the prosecution was that, deceased Sannarangappa, father of PW-1. PW-2, PW-3, PW-6 and PW-9 had purchased the land from the father of accused No.1, however, accused were claiming that the land belongs to them. PW-2 had gone to the land to cut the babool tree. At that time, accused had obstructed PW2, claiming that the land belongs to them, At about 1 p.m. on 29.1.2002, when PW-2 had gone for coolie work, accused No. 1 had assaulted PW-2 with chappal. In this regard, there was a panchayat in the village. However, some of the panchayat members did not attend the panchayat and it was not held. On the same evening, accused came to the house of the deceased and assaulted PWs-1, 3 and 4 and also assaulted the deceased with the hand, as a result of which, the deceased fell down, the accused left the place. PWs-1, 3 and 4 took the injured to the house of PW-6 -daughter of the injured, where he drank water and told to PW-6 that, accused assaulted him. Thereafter, he succumbed to the injury. Since it was night and there was no bus convenience, PW-1 did not go to the Police Station. On the next day morning at 11.30 a.m. he went to the Police Station where PW-18 - P.S.I. registered the complaint in Crime No. 11/2002 and sent the FIR - Ex.P14 to the jurisdictional Magistrate, which reached at 1.40 p.m. PW-16 took over the investigation from PW-18, went to the spot, conducted an inquest and sent the body of the deceased for postmortem. PW-14 conducted the postmortem on the body of the deceased and issued Ex.P10 - postmortem report. PW-16 conducted the spot mahazar. seized the cloths of the deceased and also stone, bloodstained mud and sample mud from the spot, arrested the accused on 11.2.2002 and after completion of the investigation, he filed the charge sheet.

On committal, accused were brought before the learned Sessions Judge. Learned Sessions Judge in the presence of the accused framed the charges for an offence punishable under Sections 148, 302 read with Section 149 and 324 read with Section 149 of the Indian Penal Code.

Prosecution in order to prove the guilt of the accused examined PWs-1 to 18, produced Exs.P1 to P14, M.O.1--stones and M.O.2 - seized cloth of the deceased.

Trial court on appreciation of the evidence of PW-1 and PW-3, who are the injured witnesses, PW-6 --daughter of the deceased before whom the deceased had made oral dying declaration, evidence of PW-8 -wife and PW9 - another son of the deceased, found that the prosecution has established that there was scuffle between the accused Nos. 1 and 2 and PWs-1, 3, 4 and the deceased, and the deceased, PWs-1, 3 and 4 have suffered injuries and deceased succumbed to the injury. Though the trial court held that the death of the deceased was homicidal, however, found that the deceased died due to the internal bleeding of liver and spleen and there is no external injury, there was no intention on the part of the accused to commit murder of the deceased, but incident occurred in a heat of passion and in a sudden quarrel, accused had not taken disadvantage of the situation and held that the prosecution has proved the offence punishable u/s 304 Part II of the IPC as against accused Nos. 1 and 2 and also held that the accused have assaulted PWs-1, 3 and 4 and committed an offence punishable u/s 324 of IPC. Accordingly, accused-1 and 2 were convicted for these offences and accused-3 to 7 were acquitted, as the charge against them was not proved. It is against the said conviction, accused Nos. 1 and 2 are before this Court.

Heard Sri. Vijayakumar, learned Counsel for the appellants - accused Nos. 1 and 2 and the learned Government Pleader for the State.

The evidence of PWs-1, 2 and 3 is consistent that the deceased had purchased the property from the father of accused No. 1, that PW-2 had gone to the land to cut the babool tree on 29.1.2002 and accused No. 1 obstructed, he came and reported the same to his deceased father and in the afternoon at about 1.00 p.m. PW-2, while he had gone to coolie work, accused No. 1 assaulted him with chappal and there was a panchayat. To this extent, the evidence of PWs-1, 2 and 3 is consistent i.e., about the incident occurred prior to the assault on the deceased. PW-4, another injured has been treated as hostile, however, in his evidence he has stated that, PW-2 had gone to cut the babool tree to the land and accused-1 had obstructed him and he had also stated that, he came to know that PW-2 was assaulted with chappal by accused-1, he also admits that there was a panchayat, since all the panchayat members had not come, the panchayat was not held. He also admits that, the deceased had gone towards the lake nearby to attend the nature call.

PW-6 is not an eye-witness, but she has stated that, there was a dispute between the accused and the deceased regarding the land and she also states that, PW-2 was assaulted with the chappal by accused-1 and accused-1 had obstructed cutting of the tree. This is also supported by PW-5, though PW-5 has been heated as hostile. PW-8, the wife of the deceased has also supported the prosecution case, PW-9 another son has also supported the case of the prosecution.

PWs-8 and 9 are not eye-witnesses to the incident. PW-10 -the Doctor, who had examined PW-4, has stated that. PW-4 was examined by her at about 4 p.m. on 30.1.2002 and she did not find any external injury except pain on the chest. PW-14 is the Doctor, who conducted postmortem on the body of the deceased, he has stated that, he noticed bleeding from the right ear and swelling on the abdomen and opined that, shock and intraperitoreal bleeding has caused the death of the deceased, In the cross-examination, PW-14 has denied that, the rupture of liver and spleen would occur. if the person is fallen from the height of 3 to 4 feet.

This evidence of the prosecution shows that, there was earlier incident where accused-1 had prevented PW-2 from cutting the babool tree and in the afternoon, he had slapped PW-2 with chappal.

As far as incident is concerned, the evidence of PWs-1, 2, 3, 6, 8 and 9, though all are relatives, they have consistently stated that the incident occurred at 6 p.m. on 29.1.2002, however, in Ex.P1 - complaint filed by PW-1, PW-1 states that the accused came to the house of the deceased and assaulted PW-1 with the stone on the chest, then he assaulted PW-2, PW-4 and they assaulted the deceased with the hands. However, PW-1 in his evidence has stated that, at about 6 p.m., PW-1, PW-4 and PW-5 were sitting near the temple. At that time, their father had gone to attend the nature call near water tank and accused-1 and 2 held the deceased and assaulted him. When PWs-1, 3 and 4 went there, the accused assaulted PWs-1, 3 and 4. The deceased fell down and PWs-1, 3 and 4 took the deceased to the house of PW-6 and she gave water, where deceased informed PW-6 that the accused assaulted him. Since there was no bus convenience, complaint was not given on the same day.

There is a contradiction insofar as place of offence stated in the complaint -Ex.P1 and the evidence of PW-1. In the complaint, PW-1 has stated that the incident occurred in front of their house and deceased died on the spot whereas, in the evidence he has stated that the incident occurred near the water tank where the deceased had gone to attend the nature call and he was brought to the house of PW-6. However, PWs-1, 3, 4 and 6 have consistently stated that the incident occurred near water tank where the deceased had gone to attend the nature call. Even PW-5, who had been declared as hostile, in the examination-in-chief, he admits that, since all the panchayat members had not assembled, panchayat was not held and that the deceased went to attend the nature call. No doubt, the discrepancy as regard to the place of occurrence stated in the complaint and the evidence of PW-1 is contradicting, however, PW-12, an Engineer, who had drawn the sketch of the scene of occurrence has shown the place near the lake and the house of deceased is also shown at a distance of more than 100 meters as per Ex.P8. The temple is also shown, which is 48 meters from the main road and the place of incident is about 35 meters from the main road. No doubt, there is some discrepancy as regard - to the place of occurrence, but all the witnesses viz., PWs-1, 3, 4, 5, 6, 8 and 9 have consistently stated that the deceased had gone to attend the nature call where the incident had occurred. Ex.P6 - spot mahazar also shows that the incident had occurred near village water tank. Complaint by itself is not an encyclopaedia of the prosecution Case. PW-1 is not a literate person, his statement has been recorded by the Sub-Inspector PW-18. There may be some inconsistency but that does not change the prosecution case itself.

However, to corroborate that the offence had occurred at the place, the said contradiction has not been marked in the cross-examination of PW-1 and it is not seriously disputed by defence also as far as place of occurrence is concerned. PW-14 has examined PW-1 and PW-3 - injured and has issued Exs.P11 and P12. No doubt, PWs-1 and 2 have not suffered any grievous injury, but they have suffered internal pain and laceration. Even according to the evidence of PWs-1 and 3 -the injured, they have not stated that the accused had come armed with deadly weapons, their evidence shows that the accused came and assaulted with the stone and insofar as the deceased is concerned, in the complaint it is stated that he was assaulted with hands.

The deceased was aged about 65 years at the time of the incident. There is no external injury on the abdomen, but there is bleeding injury to the right ear. A suggestion has been made that, such injury may occur if the deceased fall from the height of 3 to 4 feet, but that is not admitted by PW-14.

In case of death due to shock and haemorrhage, as a result of rupture of liver and spleen that occurred in this case, the rupture of liver is possible by a blow, kick, crushing, motor cycle accident, fall or even sudden contraction of abdominal muscles or in case of fracture of ribs, mild degree of external violence may rupture the liver. In this case, the deceased was aged and may be because of his advanced age might have suffered some disease, even if single blow is given on the abdomen, there is a possibility of injury or rupture to the liver. Similarly, rupture of spleen is also possible by force of compression or contraction force or in a fight, fall from the horse, bicycle or fracture of rib and in case of rupture of spleen, there will be profuse hemorrhage and the death may occur immediately. Single blow may also produce more than one rupture. Though there are no external injuries except the injury to the ear, that has not resulted in the death of the deceased, but the rupture of liver and spleen resulted in shock and haemorrhage. No doubt, PWs-1, 2, 3, 6, 8 and 9 are all interested witnesses, they are all related to the deceased, but the suggestion that the deceased might have fallen from the height of 3 to 4 feet and resulted in sustaining the injury has not been proved or is admitted by the Doctor also.

PWs-1 and 2 have sustained injuries is proved by the evidence of PW- 14. Deceased died due to the injury and said injury is possible by single blow is also proved. Just because there is a discrepancy in the complaint and the evidence of PW-1. the entire case of the prosecution on that ground of discrepancy or on the ground of interested witnesses cannot be discarded. While appreciating the entire evidence, no doubt, the trial court has not considered the contradictions between the complaint - Ex.P1 and the evidence of PW-1, even otherwise, that contradiction has not been confronted to PW-1 in the cross-examination. In my opinion, when there are two injured witnesses and the circumstantial witnesses coupled with the earlier incident on the same day, convening a panchayat and further, the dispute as regard to the land proves that the accused Nos. 1 and 2 had assaulted the deceased, but their assault was not intended to commit the murder of the deceased, the assault on the deceased is by hand and accused had not come with preparation. It is in these circumstances, the trial court has properly held that the incident has occurred in a sudden quarrel and there was no intention on the part of the accused to commit murder of the deceased.

I find that the conviction of the accused for an offence punishable u/s 304 Part-II IPC is based on proper appreciation of the evidence. As far as offence punishable u/s 0324 IPC is concerned, the stones seized have not been proved having been used to assault. May be there was an altercation between the accused and the deceased and in a quarrel, accused might have assaulted with the hand and pushed PWs-1, 2 and the deceased. In my opinion, prosecution has not proved the use of deadly weapons by the accused and the injuries sustained by PWs-1 and 2 are also not grievous in nature. Hence, the evidence does not prove the offence u/s 324 of IPC, the accused for having caused simple injury without using the deadly weapon, they could be convicted for an offence punishable u/s 323 of IPC. Accordingly, I pass the following;

ORDER

The appeal is partly allowed. The conviction of the accused-1 and 2 for an offence punishable u/s 304 Part II of the Indian Penal Code, is confirmed. The conviction of the accused for an offence punishable u/s 324 of IPC. is set aside and the accused are convicted for an offence punishable u/s 323 of IPC.

Heard the learned Counsel for the accused-1 and 2 and the learned Government Pleader on sentence. The trial court has convicted the accused-1 and 2 with five years'' R.I. and Rs. 5,000/- fine each, in default to undergo three months'' S.I.

The accused, PW-1 and the deceased, all are from the same village and it was not a case of premeditated, planned assault, the incident had occurred on account of the dispute for the land. Accused-1 and 2 were in custody as undertrial prisoners from 11.2.2002 to 17.11.2002 for about more than nine months and after conviction also, accused were in custody from 19.8.2004 to 28.12.2004. They have served the sentence for about more than one year one month. Considering the circumstances and the accused being the male members of the family, being rustic villagers and they have been enlarged on bail by this court during the pendency of this appeal, in my opinion, the sentence, which the accused have already served, could be held sufficient for the offence punishable u/s 304 Part II of IPC with fine of Rs. 15,000/- each, in default, to undergo further sentence of three months'' S.I. each. If the accused had already deposited Rs. 5,000/- fine as ordered, they shall deposit additional Rs. 10,000/- each and out of the said fine amount, PW-8 - wife of the deceased be given. Rs. 20,000/-.

The accused-1 and 2 are also sentenced with fine of Rs. 5,000/- each for the offence punishable u/s 323 of IPC and in default, the accused to undergo S.I. for a period of 11/2 months. Out of the said fine amount of Rs. 10,000/-, Rs. 7500/- be paid to PW-8 and Rs. 2,500/- be appropriated to the State account. The sentence for an offence punishable u/s 304 Part-II and Section 323 of IPC shall run concurrently u/s 428 of the Code of Criminal Procedure.