State of Karnataka vs Raju

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal dated 16.12.2008 passed by the Additional Sessions Court, Shimoga, in SC. No. 98/2008, is called in question in this appeal by the State.

The accused-respondent was tried and acquitted for the offences punishable under Sections 302, 323, 324, 447 and 427 of IPC.

Case of the prosecution in brief is that at 4.30 p.m. on 25.2.2008, the complainant-Chandru (PW. 1) was celebrating birthday of his only son aged 2 years; He arranged meals in the afternoon of 25.2.2008; about 50 persons had lunch in the afternoon; his friends Soleman Secqura (deceased) and Ganapa Naik went for work in the afternoon and consequently, they could not come for meals in the afternoon; the complainant had invited Ganapa Naik and Soleman Secquara in the evening; near his house, the complainant-Chandru was constructing a cattle shed; while complainant-Chandru looking after the construction work, the accused had told him that he was not constructing the cattle shed in the proper way and that he was not satisfied with on-going construction; at that point of time, the deceased Soleman, Secqura, who was passing by told the accused that why he was disturbing PW. 1-Chandru in construction work and that he should mind his own affairs; at that point of time, there was a verbal quarrel between the accused and deceased; later, they went to their respective houses; at 7.00 p.m., deceased Soleman Secqura and Ganapa Naik had dinner in the house of PW. 1-Chandru (complainant); thereafter, Ganapa Naik went to his house; when deceased was proceeding from the house of PW. 1 at 7.30 p.m. and when he crossed about 25 yards, accused Raju came near the deceased with club in his hand and assaulted on the forehead of the deceased with the club and consequent upon which deceased fell down due to impact; PW. 2-brother of PW. 1 was witnessing the incident; PW. 3 came to the spot immediately thereafter and both of them gave first aid to the deceased; the blood was oozing from the forehead of the deceased; thereafter Soleman Secqura was taken to the house of PWs. 1 to 3; while taking back the injured to the house by PWs. 1 to 3, accused again assaulted PW. 2 on his shoulder and also broke Mangalore tiles of the house of PWs. 1 to 3; PWs. 1 to 3 were waiting for the relatives of Soleman Secqura to come to their house, but unfortunately, the injured succumbed to the injuries at about 7.45 p.m. thereafter PW. 1 lodged the first information as per Ex. P1 at about 10.30 p.m. on 25.2.2008, which came to be registered in Crime No. 44/2008 of Hosanagara Police Station by PW. 6-Nanjappa who was the SHO during the relevant point of time; ultimately PW. 8 completed the investigation and laid the charge sheet.

In order to prove its case, in all the prosecution has examined 8 witnesses and marked 10 Exhibits and 7 Material Objects. As aforementioned, the trial Court on evaluation of the material on record, acquitted the accused.

Sri Visweswaraiah, learned Government Pleader taking us through the entire material on record and the judgment of the Court below submits that trial Court is not justified in acquitting the accused; it ignored the evidence of PWs. 1 to 3; it has not at all assigned the valid reasons to over come the evidence of PWs. 1 to 3; it has proceeded merely on assumptions and conjectures; minor variations in the evidence of prosecution are given much weightage in favour of the accused while coming to the conclusion; the evidence of PWs. 1 to 3 is consistent and cogent; their evidence is fully supported by the evidence of the doctor (PW. 7) who conducted the postmortem examination; since the prosecution has proved its case beyond reasonable doubt, the trial Court ought not to have acquitted the accused.

Per contra, Sri Prasad, learned counsel appearing on behalf of the accused argued in support of the judgment of the Court below. He submits that trial Court is justified in relying upon the discrepancies and contradictions on record; PW. 3 is not an eye witness to the incident in question, inasmuch as he came to the spot after the incident; PW. 2 was treated on 25.2.2008 and not on 26.2.2008; the incident in question has occurred at 10.00 a.m. on 25.2.2008 itself; deceased Soleman Secqura died due to the assault of PWs. 1 to 3 and not by the assault of the accused. On these among other grounds, he prays for dismissal of the appeal.

PW. 1 is the first informant (complainant). Complaint is at Ex. P1. He is the eye witness to the incident. He is also witness for Ex. P2, the spot/seizure mahazar under which M.O. Nos. 1 to 4 are seized. MO. No. 3 is the club and M.O. No. 4 are the pieces of tiles said to have been broken because of the act of the accused.

PW. 2 is the brother of PW. 1 who is injured eye witness. PW. 3 is another brother of PW. 1. He is stated to be eye witness. In the cross-examination, PW. 3 admitted that he came to the spot after about three minutes of the incident.

PW. 4 is the witness for inquest mahazar at Ex. P3. PW. 5 is the witness for Ex. P2, the scene of offence/seizure mahazar. PW. 6 is the Sub-Inspector of police who registered Crime No. 44/2008 based on the first information lodged by PW. 1. He participated in the investigation to certain extent.

PW. 7 is the doctor who conducted postmortem examination over the dead body. Postmortem report is at Ex. P6. He has given his opinion that deceased died due to Injury No. 1 sustained by the deceased. P.W. 8 is the Investigating Officer who completed the investigation and laid the charge sheet.

As afore-mentioned, PW. 1 is the complainant. Ex. P1 is the complaint. The complaint is lodged at 10.15 p.m. Thus, virtually there is no delay in lodging the complaint inasmuch as the incident has taken place at about 7.30 p.m. on the very day i.e., 25.02.2008. According to Ex. P1-complaint, the complainant-PW. 1 had arranged for lunch in order to celebrate his only son''s birthday and about 50 persons had gathered for lunch in the afternoon. However, his friends namely, Soleman Secqura (deceased) and Ganapa Naika had not attended the lunch since they had gone to their respective work, both of them were invited by the complainant (PW. 1) at 7.00 p.m. on 25.02.2008 for dinner. At about 7.30 p.m. Ganapa Naika went from the house of PW. 1 after his dinner. When the deceased was proceeding to his house, which is situated about 25 yards away from the house of PW. 1, the accused came near the deceased with a club and assaulted on the fore-head of the deceased. Immediately, the deceased fell down because of the impact. Immediately, relatives of the complainant (PW. 1) namely, Govinda and Raghu have lifted the deceased to their house and he was given first-aid by them; the deceased omitted and blood oozing from the forehead. When the deceased was being carried to the house of PWs. 1 to 3, PW. 2 was assaulted by the accused with the very club and the tiles of the house of PW. 1 were broken. Ultimately, the deceased succumbed to the injuries at 7.45 p.m. on 25.02.2008.

It is relevant to note here itself that PWs. 1 to 3 who are the eye-witnesses inter se. According to the case of the prosecution, all of them were present and seen the incident while the deceased was going from their house to his house. It is also relevant to note that PWs. 1 to 3 are neither related to the accused nor to the deceased. The house of the deceased is about 80 feet away and the incident has taken place on the southern side of the house of PWs. 1 to 3.

PW. 1 fully supports the case of the prosecution before the court. He has deposed that as to how and why the incident took place. PW. 1 has reiterated in his evidence that as the deceased and Ganapa Naika could not attend the lunch arranged by him on account of his only son''s birthday on the afternoon of 25.02.2008, he and Ganapa Naika were invited for dinner on the same day; The deceased and Ganapa Naika came to the house of PWs. 1 to 3 in between 6.30 to 7.00 p.m.; Ganapathi Naik went from the house of PWs. 1 to 3 at 7.30 p.m. So also, the deceased started proceeding towards his house. At that point of time, PWs. 1 to 3 along with relatives Govinda and Raghu, were present in their house. All of them came out of their house in order to see-off the deceased and Ganapa Naika. While they were so seeing-off, the accused came near the deceased, who was on the way to his house and assaulted him with a club on his forehead. Immediately, on seeing the incident, PWs. 1 to 3 along with their relatives Govinda and Raghu went near the injured and they started giving first-aid. While they were lifting the injured in order to take him to their house, the accused once again assaulted PW. 2 with a club, consequent upon, PW. 2 sustained certain simple injuries. Ultimately, at 7.45 p.m. the deceased succumbed to the injuries. Though PW. 1 is subjected to lengthy cross-examination, nothing worth is elicited in his cross-examination. On the other hand, in the cross-examination of PW. 1, it is elicited that the accused did not assault PW. 2 with force, but he assaulted mildly. He has explained in the cross-examination that they were of the impression that the victim had become unconscious and they were waiting for his relatives to come for shifting him to the hospital. It is also admitted by PW. 1 that he and other eye-witnesses did not try to intervene and apprehend the accused. Even in the cross-examination, PW. 1 has reiterated that he and his brothers had went to the backyard for seeing-off the deceased, after the dinner. To a specific suggestion by the defence, PW. 1 has deposed that the sun was not set during the relevant point of time and that generally there will not be darkness at about 6.30 to 7.00 p.m. It is also borne-out from the evidence of PW. 1 that the incident has taken place because of one assault by the accused and because of assault, the deceased suddenly fell down. Immediately, they rushed to the spot and concentrated on the victim in giving first-aid.

The evidence of PW. 1 is fully supported by the evidence of PW. 2. PW. 2 is the brother of PW. 1. He has also deposed that PW. 2 is the brother of PW. 1. He also deposed that he was also assaulted by the accused when the injured was being shifted by PW. 1 to 3 along with others to their house. He has admitted that MO. 3 is not a heavy club and it is a light club, and that such wood can be used for preparing match sticks or the paper., Certain omissions which are unimportant are brought on record during cross-examination. However cooking to the entire evidence of PW. 2 makes it clear that his evidence fully corroborates the evidence of PW. 1 as also the case of the prosecution. PW. 3 is another brother of PWs. 1 & 2. Though he has deposed that he saw the incident. In the cross-examination he has admitted that he came to the spot after three minutes of the assault on the deceased by the accused. However, his evidence corroborates the case of the prosecution in all other material aspects.

We find that the evidence of PWs. 1, 2 and 3 is consistent, cogent and reliable. The deceased had come to the house of PWs. 1 to 3 for having dinner. The incident has taken place after the deceased took dinner and while coming to his house. The distance between the house of PWs. 1 to 3 and the house of the deceased is about 80 feet. P.Ws. 1 and 2 had come to the backyard of their house to see-off the deceased to his house after the dinner.

It is also not in dispute that accused and the deceased were known to PWs. 1 to 3. In this view of the matter, in our considered opinion, the Trial Court is not justified in disbelieving the version of PWs. 1 to 3 only on the basis of minor variations in their evidence. All of them have deposed that the incident has taken place because of earlier incident that occurred at 4.30 p.m. on the very day. It is clear from the record that when PWs. 1 to 3 were proceeding with the construction of their cattle shed, the accused came and started disturbing PWs. 1 to 3 by telling that they are not constructing the cattle shed properly and that they should construct the same in a particular manner, etc. At that point of time, the deceased intervened and told the accused that he should not disturb PWs. 1 to 3 while they were constructing the cattle shed. Being enraged, the accused started quarrelling with the deceased. Initially, there was a verbal quarrel between the two parties, later it turned to seriousness and ended in the incident in question.

The evidence of PWs. 1 to 3 is fully supported by the evidence of the Doctor-PW. 7, who conducted post-mortem examination on the dead body of the deceased. He deposed that the deceased had sustained three injuries, out of them, injury No. 1, an incised wound, is measuring 4"x 1/2" in width. The very doctor has deposed that the deceased had sustained fracture of right temporal bone measuring 3"x 1/2". He also found that the stomach of the deceased was containing rice. He has also deposed that at about 10.00 a.m. on 25.02.2008, he treated PW. 2-Manjunath, who had sustained Simple Injuries. The wound certificate relating to injuries sustained by Manjunath at Ex. P7. The doctor, in his further examination-in-chief stated that Manjunath (PW. 2) was treated on 26.02.2008 and not on 25.02.2008; There is a mistake on his part in mentioning the wrong date in the medical certificate; on the next day i.e., on 26.02.2008, he examined the accused. He did not find any abnormality in both of his physical and mental health. However, he has deposed that the accused behaves dramatically. He has further deposed that injury No. 1 sustained by the victim can be caused by weapon-M.O. 3, which can cause the death. In the cross-examination, the doctor though has admitted that incised wound can be caused only by a sharp-edged weapon, he has clarified that the sharp edge of weapon-MO. 3 if comes into contact with the body can cause the incised wound like Injury No. 1. He has also clarified that such weapon can cause the fractures of temporal bone. However, he has admitted that the death must have occurred about 24 hours prior to the post-mortem examination.

Sri. B.S. Prasad, learned Advocate appearing on behalf of the defence relying on the medical certificate submits that the incident has not occurred at about 7.30 p.m. on 25.02.2008, but it has occurred at 10.00 a.m. on 25.02.2008. In the very incident that occurred on 25.02.2008 at 10.00 a.m., PW. 2 also sustained injuries and the contention that, PWs. 1 to 3 are the cause for the death of the deceased, cannot be accepted. The Doctor clarified that he has committed a mistake by mentioning the wrong date as 26.02.2008 instead of 25.02.2008 in the medical certificate. It is also clarified by the doctor that the sharp edge of MO. 3 can cause Injury No. 1 as found on the dead body of the deceased. Merely because the doctor has opined that the death has occurred prior to 24 hours of the post-mortem examination, that itself would not be sufficient to conclude that the death must have occurred prior to 24 hours. Having regard to the ample materials on record, more particularly, the evidence of PWs. 1 to 3, it is clear that the incident has occurred at 7.30 p.m. on 25.02.2008. Moreover, the doctor has merely opined and such opinion cannot take the place of proof and on mere opinion of the doctor, the entire case of the prosecution cannot fail. The entire evidence of the prosecution has to be seen homogeneously. Sri. B.S. Prasad tries to argue that the incident has taken place at about 10.00 a.m. on 25.02.2008, but, not even a suggestion is made to any of the three eye-witnesses that the incident has taken place at that point of time. For the first time, the defence counsel has taken such a contention before the First Appellate Court, which is impermissible, unless there is material foundation to that effect. Not even a suggestion is made to PW. 2 that he has sustained injury at 10.00 a.m. on 25.02.2008 and not in the evening of 25.02.2008. However, he was treated by the doctor only on 26.02.2008 and not on 25.02.2008.

As afore-mentioned, we are of the considered opinion that the Trial Court has not assigned the valid reasons for coming to the conclusion. The minor variations in the evidence of PWs. 1 to 3 are given much importance by the Trial Court while coming to the conclusion. In view of the consistent evidence of PWs. 1 to 3, which is fully reliable and their contention is fully supported by the other materials on record. In our considered opinion, the Trial Court ought to have convicted the accused. However, we find that the incident has taken place on a flimsy matter at about 4.30 p.m. on 25.02.2008 as the accused had verbal altercation with the deceased in the matter of PWs. 1 to 3 constructing their cattle shed. Neither the deceased nor accused were concerned with the construction of cattle shed by PWs. 1 to 3 and both of them were strangers to such construction. However, the deceased wanted to help PWs. 1 to 3 by telling the accused that he should not have disturbed PWs. 1 to 3 at the time of the construction of the cattle shed and only thereafter, the verbal quarrel has taken place. This has enraged the accused, which has resulted in he assaulting the deceased only once with the club. Admittedly, the club is not a heavy club and it is a light one. Having regard to the totality of the facts and circumstances of the case, in our considered opinion, the incident has taken place on trivial matter and since the accused had assaulted the deceased only once with a light club, the accused shall be convicted for the offence punishable u/s 304 Part-II of IPC and not for the offence punishable u/s 302 of IPC.

We have heard both the counsel on the question of sentence. After having heard the learned counsel, we find that the interest of justice would be met if five years imprisonment is awarded to the accused. The incident appears to be unintentional, as initially the quarrel started verbally between the accused and the deceased, and during such verbal altercation, on being enraged, the accused must have picked-up the club on the spot and assaulted the deceased, which has resulted in the death of the deceased, as such, there is no prior preparation or any intention on the part of the accused to commit murder of the deceased. We would have imposed heavy fine on the accused. But, having regard to the background in which the accused hails from, we are of the opinion that he may not be in a position to pay fine. Therefore, we do not impose fine on him. In this view of the matter, the following order is made:-

i) The judgment and order of acquittal dated 16.12.2009 passed in S.C. No. 98/2008 on the file of the Additional Sessions Judge, Shimoga, acquitting the respondent/accused is set aside. The respondent/accused is convicted for the offence punishable u/s 304 Part-II IPC and he is sentenced to undergo Rigorous Imprisonment for five years;

ii) The period of imprisonment already undergone by the accused/respondent shall be given set-off;

iii) The Trial Court is directed to take the accused/Respondent into custody for the purpose of serving his remaining period of sentence.