Karnataka High Court
State Of Karnataka, vs Yallappa S/O Fakirappa Hugar, on 15 September, 2018
Bench: L.Narayana Swamy, B.M.Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2018
PRESENT
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
CRIMINAL APPEAL NO.100213/2014
C/W
CRIMINAL APPEAL NO.100218/2014
IN CRL.A.NO.100213/2014
BETWEEN:
STATE OF KARNATAKA
REP. BY THE NAREGAL POLICE
THROUGH THE ADDL. STATE
PUBLIC PROSECUTTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. V.M. BANAKAR, ADDL. SPP)
AND:
1. YALLAPPA S/O FAKIRAPPA HUGAR,
AGE:49 YEARS, OCC: AGRICULTURE,
R/O HOSALLI VILLAGE,
TQ: RON.
2. SMT. CHANNAVVA W/O YALLAPPA HUGAR,
AGE: 41 YEARS, OCC: COOLIE,
R/O HOSALLI VILLAGE,
TQ: RON.
...RESPONDENTS
(BY SRI. K.L. PATIL, ADV.)
2
THIS APPEAL IS FILED UNDER SECTION 378(1) & (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER PASSED IN SC NO.26/2013 ON
14.07.2014 ON THE FILE OF ADDL. DISTRICT AND SESSIONS
JUDGE, GADAG AND SET-ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 24.07.2014 SO FAR IT RELATES TO
RESPONDENTS/ACCUSED NO.1 AND 2 PASSED BY THE ADDL.
DISTRICT AND SESSIONS JUDGE, GADAG IN SC NO.26/2013,
AND CONVICT THE RESPONDENTS/ACCUSED NO.1 AND 2 FOR
THE CHARGED OFFENCES.
IN CRL.A. NO. 100218/2014
BETWEEN:
BASAVARAJ S/O YALLAPPA HUGAR
AGE: 21 YEARS, OCC:COOLIE,
R/O HOSALLI VILLAGE, TQ:RON,
DIST: GADAG.
...APPELLANT
(BY SRI. K.L. PATIL, ADV.)
AND:
THE STATE OF KARNATAKA
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA.
...RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(1)
OF CR.P.C. SEEKING TO SET-ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 24.07.2014 PASSED BY THE
ADDL. DIST. AND SESSIONS JUDGE, GADAG IN SC NO.26/2013
FOR THE OFENCES PUNISHABLE UNDER SECTION 302 OF IPC
AND ACQUIT THE APPELLANT OF THE OFFENCES PUNISHABLE
UNDER SECTION 302 OF IPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 09.07.2018 AND COMING ON FOR
3
PRONOUNCEMENT, THIS DAY, B.M. SHYAM PRASAD J.,
DELIVERED THE FOLLOWING:
COMMON JUDGMENT
These two appeals are filed impugning the
judgment dated 24.07.2014 in SC No.26/2013 on the
file of the Addl. District and Sessions Judge, Gadag (for
short, 'Sessions Court'), and the Sessions Court has
convicted accused No.3 (the appellant in Crl. A. No
100218/2014) for the offence punishable under Section
302 of IPC and the accused (including accused No. 1 &
2 who are the parents of accused No.3) are acquitted of
the offences punishable under Sections 324, 354, 504,
506 read with Section 34 of the Indian Penal Code (IPC).
Accused No.1 and 2 also acquitted of the offence
punishable under Section 302 of IPC. The Sessions
Court has sentenced the accused No.3 to life
imprisonment and fine of Rs.5,000/- with default
sentence of simple imprisonment of one month. The
Accused No.3 (hereinafter referred to as 'appellant-
4
accused'), who was taken into custody immediately after
the initiation of investigation, has been in incarceration
over a period of five years and continues to be
incarcerated. The appellant - accused has filed appeal
in Crl.A. No. 100218/2014 impugning his conviction
and sentence and the State has filed the appeal in
Crl.A.No.100213/2014 impugning acquittal of the
accused Nos.1 and 2 (hereinafter referred to as 'accused
- parents'). The accused Nos.1 to 3 are together referred
to as 'accused'.
2. A summary of the prosecution's case, with
the necessary essentials, is as stated hereinafter.
3. The deceased, Smt. Renavva, and her family
and accused lived as neighbors and there was ill-will
between these two families because the accused
suspected that the deceased and her family, to harm
them, practiced black magic. The accused suspected
that the deceased and her family members indulged in
5
black magic practices because the deceased and her
family members would hang certain clothes on the
clothesline between their residences. On 18.01.2013 at
about 4 p.m., a quarrel broke out between the
accused/accused-parents and the deceased's daughter,
Smt. Basavva (PW 1-complainant) because the accused
alleged that the complainant/deceased despite protests
had hung certain clothes as part of some practice in
black magic. The accused abused the deceased in filthy
language, disturbed peace and attempted to outrage the
modesty of one of the daughters of the deceased, and
the accused, with the common intention of murdering
the deceased, assaulted the deceased on her head with
the handle of an axe and also assaulted the deceased
and her daughters/daughter-in-law with thorny sticks
threatening them with danger to their life.
4. The deceased suffered head injury and the
daughters/ daughter-in-law suffered certain minor
injuries, the neighbors intervened and later the
6
deceased was taken to Taluka hospital at Ron, Haveri
District by an Ambulance. The doctors in the Taluk
Hospital at Ron advised the deceased's
daughter/complainant/PW1 and others to shift the
deceased to the District Hospital at Gadag. Accordingly,
the deceased was shifted to the District Hospital at
Gadag at 6.50 p.m. on the same day, but the deceased's
health deteriorated overnight and she breathed her last
in the afternoon on the next day i.e. 19.1.2013 at about
12.30 p.m., and thereafter, with the assistance of an
acquaintance (PW6), who was calling on the deceased
and her family at the hospital to know about the
injuries, the complaint (EX. P1) was drafted and lodged
with the police at about 2.30 p.m., which is registered
as Crime No.5/2013.
5. The jurisdictional police conducted
investigation and filed Final Report against the accused
for the offences punishable under Sections 324, 354,
7
302, 504 and 506 read with Section 34 of IPC; and the
accused were accordingly charged, but the accused
denied the charges; and therefore, the Sessions Court
commenced the trial.
6. The prosecution in support of its case
examined the complainant (daughter of the deceased
and one of the injured) as PW1, inquest and the spot
panchanama witnesses as PW2 and PW3 respectively,
an Engineer, who drew sketch of the place of the
occurrence, as PW11, a Forensic Science expert as
PW15, the Investigating Officer as PW13, other police
personnel as PW16, 17 and 18 and the eye-witnesses as
PW5, PW7, PW8, PW9 and PW10. The prosecution also
examined the scribe of the complaint as PW6. Amongst
the witnesses examined by the prosecution as eye-
witnesses, PW1 (Complainant), PW7 and PW9 are the
daughter and daughter-in-law of the deceased.
8
7. The Sessions Court on appreciation of the
evidence concluded that the prosecution had not
succeeded in establishing the charges against the
accused (appellant - accused and the accused - parents)
insofar as the offences punishable Sections 504, 324,
354 and 506 of IPC, but as regards the offence
punishable under Section 302 of the IPC, the Sessions
Court concluded that the prosecution's case as against
the appellant - accused for the offence punishable
under Section 302 of IPC was established beyond all
reasonable doubts holding that there was definite
evidence as regards the injury to the deceased, the
reason for the demise of the deceased and the specific
overt act by the appellant - accused in assaulting the
deceased on her head with the handle of an axe, despite
some discrepancies in evidence. The Sessions Court
acquitted the accused-parents concluding that no case
was made out against them even as regards the offence
punishable under Section 302 of IPC.
9
8. The learned counsel appearing for the
accused (appellant - accused and the accused - parents)
in the appeal filed by the State contended that there is a
substantial delay in lodging of the complaint - Ex. P1
and consequential registration of the FIR - Ex.P24, the
investigation is tainted, there is no evidence as regards
the motive and there are material discrepancies as
regards the alleged assault, medical evidence and the
ocular evidence that go to the root of the Prosecution's
case. The learned Counsel also contended that the
evidence on record demonstrates that the Police Sub-
Inspector (PW17) was informed about the alleged
occurrence on the date of the occurrence viz.
18.01.2013 and that the Police Sub Inspector (PW 17)
had deputed one Assistant Sub-Inspector (PW16) to visit
the place of occurrence and visit the deceased in the
District Hospital at Gadag on 18.01.2013 and made
entry in this regard in General Diary. But, the
10
complaint was registered only at about 2.30 p.m. on
19.01.2013 purportedly on receipt of information from
the complainant about the occurrence as per Ex.P1 and
General Diary is neither produced nor other witnesses
have spoken about such entries in the General Diary.
According to the learned counsel, the aforementioned
circumstances establish deliberate delay in registering
the first information and also render the investigation
tainted giving room to a greater suspicion that the FIR
is registered against the accused after due deliberation
with embellishments and improvements to implicate the
accused in the case.
9. The learned counsel further submitted that if
the testimonies of the eye-witnesses - especially the
complainant (PW1), other daughter (PW7) and the
daughter-in-law(PW9) -are viewed in the context of the
serious doubts in the prosecution' case because of the
possibilities of deliberations and embellishments (with
11
such doubt being inevitable because the FIR is not
registered at the earliest and there is delay in lodging of
Ex- P1), the investigation is undoubtedly tainted and
untrustworthy.
10. The learned counsel emphasized that as per
Ex.P14 - a Medico-Legal Cases Register Extract from
the Taluk Hospital at Ron - the deceased was taken to
the hospital at 5 p.m. and as per Ex.P14 (In-patient
Case Sheet with the District Hospital at Gadag which is
available in the records as part of Ex.P14) the deceased
was admitted at 6.50 p.m. with the history of assault by
stick and sutured wound because of the injuries in the
temporoparietal region, but neither the Case- Sheet nor
any other material from the Taluk Hospital at Ron is
marked. The learned Counsel contended that such
records were vital as they would contain the very first
narration as to the reason and history for the injury;
and the prosecution has deliberately not produced such
12
material because the prosecution wants to suppress the
history as related at the Hospital at Ron which would
have demonstrated that none of the accused were
responsible for the demise of the deceased.
11. Further, the learned counsel submitted that
according to the prosecution's case, as spoken by PW1,
PW7, PW9 and another eye-witness, these eye-witnesses
also suffered injuries because the accused assaulted
them and as proof of that Exs.P17, P18 and P19, which
are Wound Certificates issued by the Chief Medical
Officer of the Taluk Hospital at Ron, are marked; and if
indeed these witnesses had suffered injuries and taken
treatment as asserted, the same would be reflected in
the Medico-legal register (Ex.P14) especially because
these witnesses, it is asserted, were treated for the
injuries simultaneously when the deceased was treated
at the first instance at the Taluk Hospital in Ron, but
there is no such entry in Ex.P14. Even otherwise, these
13
Wound Certificates are replete with the material
contradictions.
12. In addition, the learned counsel relied upon
different decisions of the Hon'ble Supreme Court and
this Court, as regards the implication of a tainted
investigation, delay in registration of FIR,
commencement of the investigation without registration
of the FIR and the appreciation of inconsistent evidence
as regards the injury found on the deceased and the
alleged assault/weapon used for causing such wound.
The Learned Counsel for the accused has relied upon
the following decisions:
1. State of Andhra Pradesh vs. Punati Ramulu AIR
(1993) SC 2644,
2. (1994) 5 SCC 188- Meharaj Singh (L/Nk.) Vs.
State of UP (Para 12),
3. Criminal Appeal No.165/1971 - Thulia Kali vs.
State of Tamil Nadu (Para 12),
4. (2007) 12 SCC 641 - Dilawar Singh Vs. State of
Delhi (Para 5, 12, 15 and 16)
14
5. (2008) 15 SCC 582 - State of A.P. Vs.
Madhusudhan Rao. (Para 23 to 29)
On the point of Direct Evidence inconsistent with
Medical Evidence
6. (1987) 1 SCC 679 - Amar Singh and others Vs.
State of Punjab (Para 10),
7. 1994 Supp (2) Supreme Court Cases Page 289 -
Mani Ram Vs. State of U.P. (Para 9),
8. H.C. Karigowda @ Srinivasa Vs. State of
Karnataka, Karnataka High Court (4th Jan,
2013)
9. Yallappa S/o Siddppa Timmapur Vs. The State
of Karnataka, Karnataka High Court (23rd Feb,
2018),
10. Laxman S/o Rangappa Kankani Vs. The State
of Karnataka, Crl.A.100010/2014, Karnataka
High Court (14th Mar, 2017), and
11. State of Rajasthan Vs. Wakteng, AIR 2007 SC
2020,
12. Govindaraju @ Govinda Vs. State By
Sriramapuram P.S. & Another on 15th March,
2012 (SC)
13. The learned Additional State Public
Prosecutor, in support of the appeal filed against the
acquittal of the accused parents in
15
Crl.A.No.100213/2014 and the conviction of the
appellant, contended that the evidence on record
established even the culpability of the accused-parents
for punishment under Section 302 of IPC as the injured
eye-witnesses (daughter and daughter-in-law) and the
husband of the deceased (PW14) have spoken about
motive and assault by the accused and that the
aforementioned eye-witnesses and other eye-witnesses
have consistently deposed about the accused parents
assaulting the deceased and the injured witness.
Therefore, the Sessions Court was not justified in
acquitting the accused parents for the offence
punishable under Section 302 of IPC. Insofar as the
arguments of the learned counsel appearing for the
accused, the learned Addl. SPP contended that the
delay, if any, in lodging the first information as per
Ex.P1 was reasonably and justifiably explained by PW1,
who has specifically stated that the relatives,
including other witnesses, at the relevant time were
16
more keen on saving the life of the injured. The learned
counsel canvassed that it is settled law that mere delay
in registering the FIR cannot be a ground to debunk the
prosecution's case.
14. In response to the submissions that the
evidence on record established that the Police Sub-
Inspector (PW17) was informed about the incident, the
Assistant Sub-Inspector (PW16) was instructed
to go and visit the place of occurrence and the Assistant
Sub-Inspector called upon the injured (later deceased)
at hospital on 18.01.2013, but no FIR was registered
and it was registered only much later on receipt of the
complaint from PW1 on 19.01.2013 at about 2.30 p.m.
and as such the investigation was tainted and unsafe to
rely upon the investigation to bring in the guilt of the
accused, the learned Addl. SPP contended that the
investigation cannot be held defective, and in any event
a defective investigation is only a reason for the Courts
17
to be circumspect in evaluating the evidence but it
would not be right to acquit the accused solely on that
ground. Further, the learned Addl. SPP laid emphasis
on the evidence of PW1, her sister(PW7) and sister-in-
law (PW9) and the medical evidence EX.P13 (PM report)
and the Wound Certificate of the injured witnesses and
the evidence of the Investigating Officer in support of his
case for conviction of even the accused-parents. The
learned Addl. SPP contended that merely because there
is no independent evidence as regards the motive, it
cannot be a ground for acquittal of the accused, when
there is otherwise sufficient evidence to establish their
culpability for the definite offences. The Additional
State Public Prosecutor has relied upon the following
decisions:
1. 1991 Supp(1) SCC 536 (Para-6) Tara Singh &
Others Vs. State of Punjab,
2. (2009) 15 SCC 108 (Paras 23 and 24)
Padmanabhan Vs. State by Inspector of Police,
Tamilnadu,
18
3. 1994 Supp (3) SCC 235 (para-6) Sivalingappa
Kallayanappa and others Vs. State of Karnataka
4. (2004) 3 SCC 654 (Para 5 to 8) Dharaj Singh Vs.
State of Punjab, and
5. (2011) 9 SCC 115 Para 20 State of Rajasthan Vs.
Arjun Singh and others
15. In view of the rival contentions, the
questions that arise for our consideration in these
appeals are, whether the Sessions Court is justified in
convicting the accused/appellant under Section 302 of
IPC and whether the Sessions Court should have also
convicted the accused-parents for the offence
punishable under Section 302 read with Section 34 of
IPC.
16. It is obvious from the arguments of the
learned counsel for the accused that there is no dispute
about the homicidal death of the deceased, but the
defense on behalf of the accused is that the deliberate
failure to produce the General Diary to establish the
entries purportedly made by the PSI on 18.3.2013 and
19
the failure to register the first information received on
18.01.2013, and the delay in registering the FIR, show
that there were deliberations before registration of the
FIR and embellishments included in the FIR to implicate
the accused in the case, and therefore, the
investigation, which is tainted and attuned to implicate
the accused, is unreliable and cannot be the basis for
conviction.
17. The canvass as regards the delay in
registration of the FIR and the investigation being
tainted is because the Police Sub-Inspector, who is
examined as PW17, has stated in his cross-examination
that he entered the information received about the
occurrence on 18.01.2013 and deputing the Assistant
Sub Inspector (PW16) to visit the place of occurrence
and the hospital in the General Diary. This witness has
also stated that he received the complaint (Ex.P1) from
PW1 when he was at OP Dept. in the District Hospital at
20
Gadag and that the complaint was written by the scribe
in his presence and he received it before seeing the body
of the deceased at the mortuary. The scribe of the
Complaint (Ex.P1), examined as PW6, has stated in his
cross-examination about his prior acquaintance with
the deceased's family, his hobby in writing for journals
and magazines and his acquaintance with the legal
procedure as participant in legal literacy programs.
18. As such, there is evidence that the police
received the first information about the incident on
18.01.2013 immediately after the occurrence. The
entries were made in this regard in the General Diary
but FIR was not registered and the FIR in Crime
No.5/2013 was registered after the receipt of Ex.P1
(Complaint written by PW6 and lodged by PW1) on
19.1.2013 @ 2:45 p.m. and that the Complaint was
scribed by PW6, a journalist by hobby and who was
acquainted with legal processes. While the accused
21
would like to disparage the entire investigation and the
prosecution's case because there is evidence about
delay and that such delay could have been used for
deliberations with the complainant and her family
members to include embellishments to implicate the
accused, the State contends that the delay of 20 and
odd hours is reasonably explained because the deceased
(who was initially treated at Taluk Hospital at Ron and
later shifted to District Hospital at Gadag) suffered
deterioration in health and the family members, who
themselves were injured, were keen on securing medical
assistance than registering the complaint.
19. It is settled law that every delay cannot be a
ground to disbelieve the prosecution's case and delay
cannot be fatal to the prosecution's case if there is
reasonable and justifiable explanation; and a useful
reference could be made to the following enunciation of
22
law by the Hon'ble Supreme Court in Sahebrao vs. state
of Maharashtra1:
"We are not providing an exhaustive
catalogue of instances which could cause
delay in lodging the FIR. Our effort is to try
to point out that the stale demand made in
the criminal courts to treat the FIR vitiated
merely on the ground of delay in its
lodgement cannot be approved as a legal
corollary. In any case, where there is
delay in making the FIR the court is to look
at the causes for it and if such causes are
not attributable to any effort to concoct a
version no consequence shall be attached
to the delay in launching the FIR".
20. The following recent affirmation of such
proposition in Mukesh versus State (NCT of Delhi)
would also be helpful:2
"Delay in setting the law into motion by
lodging of complaint in Court or FIR at
1
(2006) 9 SCC 794
2
(2017) 6 SCC page 1
23
police station is normally viewed by the
courts with suspicion because there is
possibility of concoction of evidence
against an accused. Therefore, it becomes
necessary for the prosecution to
satisfactorily explain the delay. Whether
the delay is so long as to throw a cloud of
suspicion on the case of the prosecution
would depend upon a variety of factors.
Even a long delay can be condoned if the
informant has not looked for implicating
the accused".
21. Therefore, the question that needs to be
examined is whether the prosecution has been able to
establish justifiable reasons to explain the delay in
registering the FIR in Crime No.5/2013. Even as
regards non-registration of the first information, it is
settled that the FIR is not a substantial piece of
evidence and is only a statement under Section 162 of
Cr.P.C. subject to the rigors thereof3 and if the
3
State of Andhra Pradesh Vs. Punati Ramulu, AIR 1993 SC 2644
24
prosecutions' case otherwise is consistent as regards
the culpability of the accused and there is no reason to
infer or doubt deliberations before registering FIR the
prosecution's case should not be entirely discarded
solely on the ground that there is delay in registering
the First Information and that the ensuing investigation
is tainted. There must be some evidence as regards
embellishments to create doubt about a fair
investigation into the commission of offence by the
police and if the investigation is fair, it cannot be termed
'tainted'. The significance of the entries in the General
Dairy has been considered by the Hon'ble Supreme
Court in its recent decision in State of Karnataka Vs. H.
Srinivas4 in the light of the decision in Lalitha Kumari
Vs. State of MP5 and held that there is an obligation to
maintain and record all events concerning an enquiry in
General Diary, but non-maintenance of General Diary
would not make the investigation per se illegal and the
4
2018 SCC Online SC 576 (Para 19)
5
(2014) 2 SCC Page 1.
25
consequences of not entering the details of enquiry will
have to be weighed after the trial. Therefore, this Court
will have to examine the evidence in this case to
appreciate whether the investigation is fair and
significance of the prosecution's silence about the
entries in the General Diary.
22. A scrutiny of the evidence viz. the evidence of
the eye-witnesses and the medical records establish
that the deceased upon suffering the injuries was
shifted in an ambulance to the Taluk Hospital at Ron,
and she was shifted later to the District Hospital at
Gadag. The doctors at District Hospital Gadag recorded
that the deceased's wound was sutured and that the
deceased's health deteriorated from the early hours of
morning 19.01.2013, and ultimately, she breathed her
last on 19.01.2013 around 12.30 p.m. It is also
established that PW1 and other family members were
26
accompanying the deceased. In fact, these are not in
dispute.
23. These circumstances between 4:00 P.M. in
the evening on 18.1.2013 and 12:30 P.M. on 19.1.2013
definitely establish that the family members prioritized
securing medical aid to save the life of the deceased over
ensuring registration of the information with the police;
and given the turn of events that required the family
members to shift the deceased to two hospitals and the
deceased's deteriorating health conditions over a period
of 20 and odd hours, such prioritization by the family
members would be natural and this by itself cannot be
doubted to hold that the time between the occurrence
and the demise was used to embellish the case to
implicate the accused without the accused being
howsoever involved. The Learned Additional State
Public Prosecutor's arguments in this regard placing
reliance upon the decision of the Hon'ble Supreme
27
Court in Padamanaban Vs. State by Inspector of Police,
Tamil Nadu6 will have to be accepted, and the Hon'ble
Supreme Court has held at para-23 as follows:
"23. No doubt lodging of a first information
report at the earliest possible opportunity is
desirable. But, the courts cannot also ignore the
ground realities that the relatives of the deceased
would give priority to the treatment of a severely
injured person. All attempts would first be made
to save his life. The action on the part of the
prosecution witnesses, in our considered opinion,
in giving priority to the treatment to the injured
was wholly justifiable."
24. The learned Counsel for the accused has
emphasized on certain circumstances and contended
that these circumstances are material discrepancies,
but the question will be whether those circumstances go
to the very root of the prosecution's case and create
doubt about the Accused's culpability entitling them to
a complete acquittal. The complainant, who is examined
6
(2009) 15 SCC Page 108
28
as PW1, has stated that both the accused No. 1 and 2
assaulted the deceased on her head and also repeatedly
assaulted the deceased and other witness, including her
with a thorny stick, but the PM Report mentions one
wound on the deceased on her right temporoperietal
area. As regards the wound certificates (Ex. P 17 and
P19) states that the injured (witnesses) were examined
at the Taluka Hospital at Ron either immediately after
the occurrence when the deceased was taken there on
18.1.2013 or a day after the registration of the FIR i.e.,
on 20.1.2013.
25. The wound certificate (Ex.P17) speaks about
examination of PW1 on the date of the occurrence for
simple injuries suffered in an assault, but the medico-
legal register (EX. P14) does not contain any entry as
regards the injured (PW1) being treated on that
day. The other Wound Certificates (Ex. P18 and P19)
are a day after the registration of the FIR in Crime
29
No.5/2013. The learned counsel emphasizes the
differences in the Sketches (Ex. P6 & Ex. P8) of the
location of the respective houses prepared by the
Engineer (PW11) and the Police (PW13) and he also
emphasized that the scribe of the complaint - Ex P1-
was acquainted with the legal procedure and interested
in writing and that the eye-witnesses had spoken
differently about the assault by the accused. It is
because of these circumstances, it is contended that
there is every possibility of the accused being implicated
after deliberations, and therefore, the Accused are
entitled to be acquitted.
26. These circumstances do not detract the
evidence as regards the consistent testimony by the
witnesses about the Accused - appellant inflicting fatal
injury on the deceased, the redoubtable Doctor's
evidence and the Post Mortem Report about the cause
for the death of the deceased. However, given the
30
inconsistencies in the account of the assault by the
witnesses (PW1, PW7 and PW9) as regards the Accused
- father (Accused No. 1) also assaulting the deceased on
the head and the Accused - Parents assaulting the
deceased, and the injured witnesses, with thorny sticks,
the tenuous medical evidence about the simple injuries
suffered by these Witnesses and lack of evidence of
strong motive do create doubt about the culpability of
the Accused - Parents. Therefore, this Court is
persuaded to hold that the Accused - Parents have been
rightly acquitted by the Sessions Court.
27. The evidence (as spoken by the
daughters/daughter-in-law of the deceased) establish a
lurking disquiet between the families because of a
grouse borne by the Accused against the deceased's
family members suspecting that they were trying to
subject the Accused to effects of black magic and break
out of an altercation between the families on the fateful
31
day resulting in the Accused - appellant assaulting the
deceased on her head with the handle of an axe, a blunt
object readily available in any house in countryside.
This evidence, however, is not sufficient to hold that
there was any premeditation or intention to do away
with the deceased's life. It is noted that the
Witness/Witnesses (PW1, PW7 and PW9) have stated
that the neighbors separated the members of the two
families when the deceased was assaulted on the head
by the accused - appellant, the deceased was walked
into her residence and thereafter they secured the
ambulance to shift the deceased to the Taluka Hospital
at Ron. The Sessions Court has failed to appreciate this
evidence in proper perspective and the conclusion by
the Sessions Court as regards the Accused - Appellant
being guilty of murder is illegal and perverse. As such,
the Accused - appellant could only be held guilty of
culpable homicide not amounting to murder and
punishable under Part II of Section 304 of IPC. The
32
Accused - appellant has been incarcerated for over 5
years. i.e., from the date he was firstly taken into
custody by the police and, in the facts and
circumstances, the sentence should be confined to the
sentence already undergone by the Accused - appellant
(Accused No. 3) as of this date. Therefore, this Court is
accordingly persuaded to modify the impugned
conviction and sentence and pass the following:
ORDER
The Appeal by the State in Criminal Appeal No. 100213/2014 is dismissed.
The Appeal by the Accused - Appellant (Accused No. 3) in Criminal Appeal No. 100218/2014 is allowed in part and the conviction and sentence of the Accused by the Sessions Court in SC No.26/2013 is modified and the Accused - Appellant (Accused No. 3) is convicted for offence of culpable homicide not 33 amounting to murder under Part II of Section 304 of IPC and sentenced to imprisonment for the period for which the accused is in detention, and such period is set off for the period of detention already undergone as contemplated under Section 428 of the C0de of Criminal procedure. The Accused - Appellant (Accused No. 3) is also sentenced to pay a fine of Rs.5000/- and the Accused - Appellant (Accused No. 3), if not already paid such amount after the conviction, shall pay such amount.
Sd/-
JUDGE Sd/-
JUDGE JTR*