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Judgment
V. Jagannathan, J.—These three appeals arise out of the common judgment rendered by the learned II Additional Sessions Judge, Chitradurga and therefore they are disposed of by this common judgment.
The facts in brief giving rise to these three appeals are as follows:
On 30.9.1993 at about 230 p.m. in front of the house of C.W.19, CWs 5,10 and 12 there was a talk regarding the exhumation and burning of the dead body of one Nethramma, wife of accused No. 3-Shivappa. This was because of the fact that the deceased Nethramma had died just after delivering the child, At that time, accused persons opposed the body being exhumed and burnt. In this regard, a galata took place and the accused No. 1 Prabhu and accused No. 2 Jayappa said to have assaulted the complainant group inasmuch as the accused No. 1 Prabhu assaulted on the head of one Shivamurthy and accused No. 2 assaulted other persons of complainant group. Following the assault with stone MO-1 by accused No. 1 Shivamurthy sustained lacerated wound and he died immediately at the spot. As per the evidence of the PW-16-Dr. Hanumantharaya, there was a lacerated wound measuring 1/2 x 1/5" situated 2" above the left ear and the said wound had led to comminuted fracture of left temporal bone with sub-dural hematoma associated with laceration. The opinion of the doctor was that the death of Shivamurthy was on account of head injury as a result of laceration of brain and Ex.P-8 is the P.M. Report issued by him in this regard. The accused persons were put on trial and they were charged for the offences punishable under Sections 143, 323, 324, 504, 302 r/w 149 IPC The prosecution led evidence in support of the charge by examining PWs.1 to 20 and the documents ExsP-1 to P-11 were got marked and Nos. 1 to 6 material objects were produced at the trial.
The learned trial Judge after appreciating the evidence on record came to the conclusion that the prosecution had established the offence punishable u/s 304(2) of IPC as against accused No. 1. and offence punishable under Sections 323 and 324 of IPC as against accused No. 2. The trial Court has convicted accused No. 1 u/s 304(2) IPC and sentenced him to undergo R.I. for three years and to pay fine of Rs. 2000/- and in default to undergo S.I. for 4 months. However, accused No. 2 was released on probation of good conduct under the Probation of Offenders'' Act.
In Crl. Appeal No. 821/2000, the State has questioned the conviction of accused No. 1 for the offences punishable u/s 304(2) IPC and Sections 323 and 324 of IPC.
Crl. Appeal No. 822/2000 is also filed by the State praying for enhancement of sentence u/s 304(2) of IPC as against accused No. 1 and conviction under Sections 323 and 324 of IPC as far as accused No. 2 is concerned.
We have heard the submissions made by Sri P.M. Nawaz, learned Government Pleader and Sri Venkatareddy, learned Counsel appearing for the accused.
The only point in regard to which the argument addressed was mainly focused is as to whether the trial Court was justified in convicting accused No. 1 for the offence punishable u/s 304(2) IPC instead of convicting u/s 304 of IPC. In other words, the challenge is not very serious in so far as the finding of the trial Court with regard to the assault committed by accused Nos. 1 and 2 is concerned. In fact, the learned Counsel for the accused also did not seriously question the said finding of the trial Court, Even otherwise, as could be seen from the judgment of the trial Court, the incident was witnessed by number of persons and the trial Court has accepted the testimony of the eyewitnesses as reliable and also found support for the testimony. The controversy is not with regard to the finding of the trial Court as regard assault committed by accused Nos. 1 and 2 but as to the nature of offence committed by the said accused persons. Therefore, we deem it proper to confine our discussion only to this aspect of the matter.
Sri P.M. Nawaz, learned Government Pleader submitted that the said Shivamurthy died immediately after receiving the blow from accused No. 1 and it is also not in dispute that accused No. l assaulted Shivamurthy with stone MO-1 and the medical evidence of PW-16 confirms that death of Shivamurthy was caused on account of head injury i.e., injury to the brain. Therefore, it was submitted that the very act of accused No. 1 in assaulting the deceased with stone MO-1 and causing injury on the vital part of the head itself is sufficient to bring the case within the ambit of Section 300 of IPC In this connection, our attention was drawn to the provisions of Section 300 and it was contended that accused No. 1 had the knowledge that the injury is likely to cause death of the deceased and as such the case falls within Section 300 of IPC.
On the other hand, Sri Venkatareddy, learned Counsel for the accused persons submitted that the incident took place in the spur of the moment because the accused were opposed to the decision of the complainant group to exhume and burn the dead body and as such the accused persons were upset rather emotionally and there was no intention on the part of the accused to commit murder of Shivamurthy, It was further submitted that even the evidence of the Doctor PW-16 would go to show that the stone-MO-1 which was used to assault the deceased was not a very big one and the Doctor was liable to say as to what the exact weight of the stone. There is no evidence in this regard in the spot mahazar ExP-1. On the other hand, the size of the stone -MO.1 was 9''x 6'' and it was not a big stone and further there is no indication in the spot mahazar also the weight or thickness of the stone so as to take a view that it was a very big stone. Another aspect of the evidence which was referred to this is the medical evidence of the Doctor and the P.M. Report Ex. P-8 and from these two materials, it was pointed out that the injury caused to the deceased was of the 1/2 x 1'' lacerated wound and therefore it cannot be said that having regard to the said aspect that the accused No. 1 had intention or knowledge of causing such bodily injury to the deceased resulting into death. Hence, it was argued that the case will not come within the ambit of Section 300 of IPC but it may come within the purview of Section 323 of IPC because the injury caused was a simple injury. Therefore, it was argued that even the conviction of accused No. 1 for the offence punishable u/s 304(2) of IPC is a erroneous finding. But, on the other hand, the accused No. 1 could be convicted u/s 323 of IPC.
It was further submitted by the learned Counsel for the accused that even if this Court were to take the view that the offence u/s 304(2) of IPC is made out and still having regard to the facts and circumstances of the case, the benefit of Probation of Offender''s Act could be extended to accused No. 1 and in support of his argument, he relied on the decision of the Apex Court reported in 1999 SCC (Cri) 1046 (State of Karnataka v. Muddappa). Our attention was also drawn to another decision of Bombay High Court reported in Dnyaneshwar Dagdoba Hivrekar Vs. The State of Maharashtra, . In the said decision it is held that;
When one blow on the head of the deceased is given with a stick weighing only 210 grams, it could not be said that the accused had knowledge that blow by such stick would cause death and therefore conviction u/s 304(2) of IPC was altered as Section 323 IPC.
Having heard the submissions made by both sides, we are unable to agree with the submissions made by the learned Counsel for the accused that the offence falls u/s 323 of IPC Having regard to the fact that the Shivamurthy died instantaneously after receiving the blow on his head and the further fact that the medical evidence is to the effect that the deceased died on account of injuries sustained on his head and as a result of laceration of the brain, and there being fracture of the left temporal bone, it is not a case to apply Section 323 of IPC or Section 324 of IPC, Though injury is a simple injury but on the other hand it has led to the death of Shivamurthy, We therefore reject the said contention urged by the learned Counsel for the accused.
As regards the argument of the learned Government Pleader is concerned, we are of the view that the offence punishable u/s 300 of IPC cannot be said to have been made out particularly having regard to the facts and circumstances of the case. It is a fact that the accused has brought the dead body of Nethramma from Bangalore to Hunisekatte village and buried the same. But, it was only when some of the persons of the complainant group started talking of exhuming the dead body and burning it, the accused persons were upset and when accused No. 1 was questioning in this regard, the Shivamurthy had intervened and the accused No. 1 took a stone and assaulted on the head of Shivamurthy. Therefore, the facts though indicate that there was no intention on the part of accused No. 1 to commit the murder of the deceased but, the incident has taken place in the spur of the moment when passion took control of senses and to quote a saying from Don Quixote"; the first impulses of a man are beyond his control. Therefore, in all Probability accused No. 1 must have assaulted the deceased in the spur of the moment, not intentionally, could be inferred from the above act of accused No. 1. In arriving at this conclusion, we are also fortified by the observations of the Hon''ble Supreme Court reported in (2006) 2 SCC (Cri) 394 (Sandhya Jadhav (Smt.) v. State of Maharashtra). The Apex Court while dealing with Sections 300 Exception 4, 302 & 504(2) considered the application of Exception 4 to Section 300 and observed that for bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage or not having acted in a cruel or unusual manner. In the course of the above said decision, the Apex Court has made the following observation:
It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a jury on account of the verbal altercation in the beginning, A fight is a combat between two or mom persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall he deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not efficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage.
The Apex Court has further observed that though there can be no rule of rule of universal application that whenever the death occurs on account of a single blow. Section 302 IPC is ruled out, the fact situation has to be considered in case.
Therefore having regard to the above position in law and having considered the facts and circumstances of the case on hand, it cannot be said that the act committed by the accused No. 1 comes within Section 300 of IPC. But, on the other hand, in our opinion it comes within the Exception 4 of 302, Therefore, we are unable to agree with the learned Government pleader that the offence comes u/s 302 IPC as against accused No. 1
Coming to the offence punishable u/s 304(2) IPC, the trial Court has rightly convicted the accused No. 1 for the said offence. But, however, the sentence for the offence imposed is rather inadequate and such leniency could not have been extended by the trial Court, Therefore, in our considered opinion, the two decisions referred to by the learned Counsel for the accused are not applicable to the case on hand as the facts and circumstances of the case before use are quite different from the one involved in the said two decisions.
We arc agree with the submissions made by the learned Government Pleader that the sentence for the offence u/s 304(2) of IPC is rather inadequate. In this connection, we would like to refer to the observations of the Apex Court reported AIR 2005 SCW 3511 (State of Madhya Pradesh v. Saleem & Chamaru and Anr.). In the said decision, the Apex Court has observed that the sentence imposed should respond to Society''s cry for justice against the criminal Liberal attitude by meager sentence will be counter productive. Therefore having regard to the said position in law in the instant case, in our view, the sentence of three years of R.I. imposed by the trial Court requires to be enhanced to seven years and in addition the fine amount also needs to be increased from Rs. 2000/- to Rs. 25,000/-. This in our view would secure the ends of justice. Therefore we rejecting the submissions made by the learned Counsel for the accused in this connection.
Consequent to the above discussion, the criminal appeal filed by the State for Conviction u/s 302 of IPC is liable to be dismissed and so also the appeal filed by the accused for altering the conviction to 323 IPC However, the appeal filed by the State, seeking enhancement of the sentence insofar as Accused No. 1 is concerned offence u/s 304(2) IPC requires to be allowed.
In the result, we proceed to pass the following order:
i. Crl. Appeal No. 821/2000 filed by the State and Crl Appeal No. 529/2000 filed on behalf of accused Nos. 1 and 2 are dismissed.
ii. Crl Appeal No. 822/2000 filed by the State for enhancement of sentence as against accused No. 1 is allowed.
iii. For the offence punishable u/s 304(2) IPC, we sentence accused No. 1 to imprisonment for a period of seven years and further he shall pay a fine of Rs. 25,000/- in default of payment of fine, he shall undergo R.I. for a period of one year. If the fine amount is recovered by the trial Court, the same shall be paid to the wife of deceased Shivamurthy as compensation in accordance with Section 357 of CrP.C. Accused No. l is however entitled to set off for the period already undergone by him during the trial in accordance with Section 428 of Cr P.C
iv. We direct accused No. l to surrender forthwith before the trial Court to receive sentence.
v. We direct the trial Court to take necessary steps to secure accused No. 1 so that he shall serve out sentence imposed upon him as above by us.
vi. Release of accused No. 2 by the trial Court under the Probation of Offenders Act is sustained.
Accordingly, all the appeals stand disposed of.