State vs Hanumantha and Lakshmamma

Shylendra Kumar, J.—Appeal filed by the state u/s 378(1) and (3) of Code of Criminal Procedure [CrPC] directed against the judgment and order dated 9-11-2005 passed by the Sessions Judge, Mandya in SC No 95 of 2005, convicting only first accused under latter part of Section 304 IPC and acquitting the both first and the second accused of the charge levelled against them for the offence punishable u/s 302 read with Section 34 IPC.

Appellant-State is in appeal, complaining that both the accused persons should have been convicted u/s 302 read with Section 34 IPC.

The incident which led to the death of complainant''s husband by name Munisaiah, a resident of B Sriramana Hally village, Nagamangala taluk, is said to have occurred at 8 pm on 4-4-2005 and at a place in the colony where Janata houses were being constructed and complainant and her husband were in the process of constructing one such house, the neighbours - accused 1 and 2 - had assaulted her husband due to difference of opinion in the context of construction and that they started to assault her husband with club and stone on the head and he succumbed to the injuries on the next day morning at around 7.30 when he had been moved in front of the house of accused and therefore action should be taken against the accused and punish them in accordance with law.

In due course. Nagamangala police filed first information report before the jurisdictional court and after filing charge sheet for the offence punishable u/s 302 IPC, case was committed to sessions court. The learned sessions judge framed charges for the said offence, but the accused pleaded not guilty. Accused having denied the charge, the mater went to trial to enable the prosecution to prove its case.

On behalf of the prosecution, 10 witnesses were examined. PW1 is the complainant, PWs 2 and 3 are nephews of deceased; PW4 is a neighbour, who turned hostile; PWS is a panch witness to the inquest mahazar ExP4; PW6-ASI, who received the first information from PW10-PSI, who had visited the spot after receiving a telephonic message at the police station about the death of Munisaiah; PW7 is the investigating officer, who conducted investigation and fled charge sheet; PWS is an assistant executive engineer at BESCOM, Nagamangala, who had issued a certificate at ExP11 indicating that there was power supply on the intervening night of 4/5th April 2005 at the place of incident etc; PW9 being doctor who conducted autopsy and gave post mortem report as per ExP3 and PW10, as stated above, who visited the spot initially etc. Prosecution has also got marked documentary evidence as ExP1 to 11. Accused did not choose to lead any evidence, either oral or documentary.

The learned judge of the trial court, appreciating such evidence on record, though believed the incident to have taken place and the deceased having received a blow on his head and accepted version of the prosecution, in terms of post mortem report, that the death of husband of the complainant was due to said injury, nevertheless, found the evidence not sufficient to convict the accused of the offence punishable u/s 302 IPC, particularly as the prosecution had not established any animus on the part of the accused persons to kill the deceased and also having noticed that the conduct on the part of the accused persons being on that is spontaneous during a quarrel between the parties and that too due to some provocation even on the part of the deceased person, found no occasion to convict the accused u/s 302 IPC, and further held that the injuries suffered by the deceased person being not attributable to two persons, but only one person i.e. only one head injury noticed by the Doctor who had conducted autopsy of the body and had given the post mortem report (exhibit P9) and as no prosecution witness having spoken to about any specific act of assault attributable to second accused, found no evidence to hold her guilty of the offence charged and therefore acquitted the second accused.

It is against such findings, judgment of acquittal u/s 302, the State has presented this appeal.

Notice had been issued to the respondents-accused of the appeal, but the respondents, though served, have remained unrepresented.

After perusing the judgment and after hearing Sri P M Nawaz, learned Adll SPP, appearing on behalf of the appellant state, though in such a case normally court would have appointed an amicus curiae on behalf of the respondents, as we found not much scope for interference in this appeal, we have refrained from doing so, but disposing of the appeal as under.

The attempt on the part of the state to secure conviction against both accused persons u/s 302 IPC appears to be rather lukewarm and purporting to be on the reason that the evidence on record supported conviction in respect of both accused persons u/s 302 IPC; that evidence has not been properly appreciated by the learned judge of the trial court; that evidence of PW.1. an eye witness, was corroborated by the evidence of PWs 2 and 3 and therefore the further supporting evidence of PWs 4 to 8 coupled with post mortem report given by PW9 doctor, all support the evidence of. PW1, the learned judge of the trial court should have concluded that the offence u/s 302 read with Section 34 IPC is made out by the prosecution and has committed an error in acquitting second accused and convicting first accused only under part-II of Section 304 IPC.

Sri Nawaz, learned Addl. SPP, reiterates these grounds and has taken us through the judgment and evidence on record.

We have perused the judgment under appeal, looked into the records and have bestowed our attention to the submissions made at the Bar.

The only point that arises for our consideration in this appeal is as to whether the learned judge of the trial court has committed an error in appreciating the evidence on record and if so as to whether the evidence was sufficient to secure a conviction in respect of both accused persons u/s 302 read with Section 34 IPC?

On a perusal of the evidence of PW2, who is characterized as an eye witness to the incident, it is seen that her evidence is not at all consistent. While deposition during examination-in-chief, indicates the lady stating that when her husband had been to the place of construction, accused persons had beaten her husband, on the other hand, in her cross-examination, she states that she went to the spot only after hearing her husband''s hue and cry and when she reached there, she found the accused persons beating her husband with stones and clubs etc.

It is not very clear from the evidence of PW1 that she had if at all witnessed the incident of her husband being beaten by the accused persons. If at all the evidence can be one of circumstantial evidence to arrive at a conclusion. While the evidence on record does show that the deceased person had received injuries and had been moved from the spot, even as per PW1, accused themselves had gone to the house of one Ponnaiah a neighbour, and brought him to the spot, but he had left saying that it was a routine quarrel between the parties, which clearly shows that there was absolutely no intention on the part of the accused persons even to cause such injuries sufficient to kill a person, leave alone an intention to kill the person.

This coupled with the version of PW1 that none of the other village-folk came to the spot even after the hue and cry of the husband of complainant and her own cry for help, while not less than 60 to 70 houses are there in the village belonging to their community people, in fact, considerably weakens the case of the prosecution about the role of the accused persons resulting in the death of the complainant''s husband, leave alone attributing a motive to accused persons, to cause death of deceased person intentionally.

When the post mortem report. ExP9 only indicates one single head injury on the deceased and abrasions on other parts of the body, at the best, it can be attributable to one person and not to both accused and this has been the main reason for the learned judge of the trial court not only to acquit the second accused totally but in convicting first accused under part-II of Section 304 IPC.

Though we find the post mortem report does indicate there was no presence of alcohol in the stomach of deceased and the learned judge of the trial court has gone a little overboard with the term ''alcohol'' and has based his conclusion for convicting first accused under part-II of Section 304 IPC on the assumption that accused persons were under the influence of alcohol, and the parties had a quarrel due to the effect of alcohol and therefore no motive can be attributed, we are afraid, that part of the reasoning is not sustainable based on the evidence on record, but the fact remains that deceased died due to an assault and consequential head injury attributable to a club [MO 1] and presence of accused No 1 being established on the spot and the circumstances and the material evidence on record, particularly evidence of PW9 doctor, who conducted autopsy indicating that the death was attributable to the kind of injury suffered by deceased on being assaulted with a hard and blunt object like MO 1, which links up the first accused to the incident, but no motive or intention having been established by the prosecution attributable to first accused for deliberately causing the death of the deceased and the evidence totally lacking for such an inference, the learned judge of the trial court has rightly acquitted the accused persons of the offence u/s 302 read with Section 34 IPC.

We do not find the prosecution case strong enough in terms of the evidence on record to secure conviction u/s 302 read with Section 34 IPC against accused persons and therefore appeal is dismissed.