Karnataka High Court
The State Of Karnataka vs Nagaraju @ Rajanna on 5 June, 2018
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL APPEAL No.500/2010
BETWEEN:
THE STATE OF KARNATAKA
DODDABALLAPUR RURAL POLICE STATION
BANGALORE RURAL DISTRICT ...APPELLANT
(BY SRI NASRULLA KHAN, HCGP)
AND:
1.NAGARAJU @ RAJANNA
S/O ANNAYAPPA
AGED 53 YEARS
BUSINESS,
NO. 376, BHAJANEHATTI
RANGAPPA CIRCLE
DODDABALLAPUR TOWN
2.VENKATATAJU
S/O ANNAYAPPA
AGED 38 YEARS
BUSINESS,
NO.376, BHAJANEHATTI
RANGAPPA CIRCLE
DODDABALLAPUR TOWN
3.SHABARI @ SHABAREESHA
S/O NAGARAJA @ RAJANNA
2
AGED 29 YEARS, STUDENT
R/O BUSINESS, NO.376
BHAJANEHATTI RANGAPPA CIRCLE
DODDABALLAPUR TOWN ..RESPONDENTS
(BY SRI CHANDRASHEKAR, ADVOCATE ALONG WITH SRI
C H HANUMANTHARAYA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S.377 OF CR.P.C
PRAYING TO ALLOW THIS CRIMINAL APPEAL AND SET
ASIDE THE INADEQUATE SENTENCE PASSED BY THE
PRINCIPAL SESSIONS JUDGE, BANGALORE RURUAL
DISTRICT, BANGALORE IN S.C.No.13/2005
DATED:18.02.2010 BY IMPOSING ADEQUATE SENTENCE
FOR THE OFFENCE PUNISHABLE UNDER SECTION 304-
PART II OF IPC, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Appeal is directed against the Judgment dated 18.02.2010 passed by the learned Principal District and Sessions Judge, Bangalore Rural District in S.C.No.13/2005, wherein the accused Nos.1, 2 and 3 therein were convicted for the offence punishable under Section 304-II of IPC and imposed fine of 3 Rs.25,000/- and as accused had spent one month twenty one days as under trial prisoners, judicial custody during trial for the said period was treated as the period of imprisonment and thus they were given benefit of set off. However it is seen that, the period of imprisonment consequent to non-payment of time is not mentioned. State being aggrieved by the quantum of sentence imposed by the learned Trial Judge has preferred the appeal seeking enhancement of the same.
2. Trial court records are made available.
3. Heard learned counsel appearing for both sides.
4. Another development to be considered in the disposal of the present case is that the State had preferred Crl.A.No.501/2010 before this Court and when the matter came up for consideration before the Division Bench of this Court their Lordships found the 4 matter in the said appeal was challenging the same Judgment and sentence. The prosecution insisted that it should have been considered for the offence punishable under Section 302. In the judgment dated 18.01.2011, their Lordships considered the aspect and observed at paragraph 5 as under:
"5. On perusal of the postmortem report given to us, we note that the opinion of the doctor is that the death was due to vasovagal shock as a result of injuries over the abdomen. It further indicates that all the internal organs of the deceased were intact except for a sub-coetaneous Haemotoma around umbilicus. Having regard to the circumstances in which the incident happened, as explained by the learned trial Judge there was justification to conclude that there was no pre-plan to do away with the life of the deceased and the accused were only intending to teach him a lesson for the alleged theft of coconuts in the garden. If at all they 5 wanted to do away with his life, when the accused were three in number, they could have definitely caused much serious injuries. Therefore, we are of the opinion, that no purpose would be served in admitting this appeal filed challenging the acquittal of the accused persons for the offence punishable under Section 302 r/w 34 IPC."
and matter was disposed of as mentioned in paragraph 6 as under:
"6. We note that already another Criminal Appeal 500/2010 is filed by the State under Section 377 Cr.P.C., seeking enhancement of sentence. In that view of the matter, this appeal does not survive for consideration. Therefore, leave to file appeal is rejected."6
5. Thus, the sum and substance of order in Crl.A.No.501/2010 dated 18.01.2011 in observing that the disposal of the said appeal did not arise for consideration in the presence of the earlier appeal i.e. the present one in Crl.A.No.500/2010. As a result, the said appeal was rejected. The prayer in the present appeal is against the inadequacy of sentence on the accused persons.
6. Sri.C.H.Hanumantharaya, learned Senior counsel appearing for the respondents in the case would submit that there is a threshold bar for entertaining the present appeal as the matter has been already dealt with. In this connection, learned Senior counsel would submit on Sections 385,386-(a) and (c) of Code of Criminal Procedure. He would submit that when the matter was before the Division Bench of this Court, it was disposed of as Stated above.
7
7. In this connection, in a document that includes a judgment, observations or opinion and a finding etc., are to be read with reference to whole context of the matter, sentence, statement and related cannot be isolated from the document. In this connection, the matter is quite simple that this appeal was preferred by the prosecution seeking enhancement of sentence on 5.5.2010 and was registered as Crl.A.No.500/2010. By virtue of the sentence of one month 21 days imposed on the accused after holding them guilty of the offence punishable under Section 304 part II, learned Trial Judge had considered the period of judicial stay as of one month 21 days as the imprisonment and disposed of the matter.
8. Incidentally, another appeal came to be preferred by the prosecution before the Division Bench this Court and was registered in Criminal Appeal 8 No.501/2010 on the same day i.e. on 5.5.2010. Their Lordships of the Division Bench of this Court have opined that no purpose would be served in admitting the appeal filed challenging the acquittal of the accused persons for the offences punishable under Section 302 read with Section 34 of IPC and rejected the appeal. Regard being had to the fact that because of the pendency of Criminal Appeal No.500/2010 filed by the State seeking enhancement of punishment. Thus, it can be seen that the terms of disposal, the presentation of this appeal had an embargo for disposing of the subsequent appeal. Thus, the subsequent appeal preferred by the prosecution came to be rejected in the light of the pendency of the present appeal.
9. Learned Senior Counsel for the respondents would submit that the appeal has to be considered as 9 disposed of and matter cannot be taken up for disposal.
10. Sri.Nasrulla Khan, learned High Court Government Pleader would submit Criminal Appeal No.501/2010 was not disposed of on merits nor there was a bar for this appeal to be disposed of as per law.
11. The very contents of the terms of the appeal, legal position and the order of their Lordships in Crl.A.No.501/2010, I am of the considered and firm view that there is no embargo for going ahead with this appeal and I do not accept the submissions made by the learned Senior counsel for the appellant.
12. Further, it is clear that appeal is preferred by the State seeking enhancement of sentence imposed by the learned Trial Judge by virtue of the judgment convicting the accused persons. Regard being had to the fact that the accused persons have not chosen to 10 prefer their appeal against conviction. However, under this circumstance, learned Senior counsel for respondents would submit that he be given an opportunity to submit on the other aspects to counter the points and findings of the learned Trial Judge for holding it that the death not amounting to homicide. Respecting the principles of natural justice, I have accommodated the learned Senior Counsel for the respondents to submit on the appeal and to point out the stand, legal and factual position against the findings of the learned Trial Judge in his judgment dated 18.2.2010.
13. Insofar as the facts that led to setting the criminal law into motion are that, the complaint dated 17.4.2004 came to be lodged by one Y. Prabhakara, S/o. D.M. Yellappa, residing near Railway Station, Doddaballapur Town, stating that on 17.4.2004 morning at about 10.00 a.m. he was at home. 11 Servant/worker Nagaraj came and told him that former's elder brother Y. Hanumantharaju was tied and was being beaten and on asking the reason, he said that at 8.00 a.m. when he was going back to house after fetching water, he saw one Rajanna @ Nagaraja, his younger brother Venkataraju and Shabhari, S/o Nagaraj were dragging Y. Hanumantharaju despite latter's resistance. They also threatened him that if he did not accompany them he would be done to death. He further said that after seeing the accused persons and Y. Hanumantharaju, again after half an hour Nagaraj went near the garden by that time, Y. Hanumantharaju was tied to a coconut tree and was beaten by the accused by using clubs. The said servant got frightened and came back. By that time, Ramanjanappa came to the house of the complainant and told him that Hanumanthraju 12 was tied to a tree and he told the accused to release the said Hanumantharaju.
14. It was thereafter the complainant and his relative Srinivasa went to the garden land of the accused and found Y.Hanumantharaju was unconscious, had injuries on back, limbs and he was bearing club injuries and reaper injuries. They also saw clotting of blood and one Nagaraj brought auto and the complainant took him in an auto to the hospital. The doctor who examined Y. Hanumantharaju stated that by that time he was dead 20 minutes earlier.
15. It is in this background, a case came to be registered at 1.00 p.m. on 17.4.2004 in Crime No.71/2004 of Doddaballapur Rural Police Station for the offence punishable under Sections 342, 302 read with Section 34 IPC.
13
16. After the matter being investigated, final report came to be filed in CC No.322/2004 for the offence punishable under Sections 341, 342, 302 read with Section 34 of IPC against the accused persons 1, 2 and 3.
17. The evidence available before the learned Trial Judge is, the oral evidence of PWs 1 to 13 and DWs 1 to 3, documentary evidence of Exs.P1 to P20, Exs.D1 and 2 and the material objects of MOs 1 to 3.
18. The learned trial Judge on completion of the trial found accused not guilty and acquitted for the offences punishable under sections 341, 342 and 302 read with Section 34 of IPC. However, accused Nos.1 to 3 are found guilty for the offence under section 304 Part II r/w sec. 34 of IPC and convicted them under said Section.
14
19. The judgment does not reflect the answer to the charge framed under Sections 342, 302 read with Section 34 of IPC. However, in the context, it concludes that accused persons were not convicted for the offences punishable under Sections 342, 302 read with Section 34 of IPC. They stood acquitted.
20. After hearing on the quantum of sentence, the learned Trial Judge imposed fine of Rs.25,000/- each on accused 1 and 2 and considered the period spent as under trial prisoners by accused Nos. 1 to 3 as sufficient in regard to corporeal punishment and entire fine recovered be paid to Vasanthamma PW4. Thus imprisonment sentenced on each of the accused is 1 month and 21 days.
21. Among witnesses so examined, the complainant is PW8-Prabhakar who is the younger brother of Y. Hanumantharaju. PW1-Dr.Krishnaiah, who conducted 15 Postmortem on the dead body of Y. Hanumantharaju. PW2-M.Nagesh Murthy is Assistant Executive Engineer who has drawn the spot sketch Ex.P3, PW3- Ramanjanappa is the relative of PW8 is mentioned as special witness. PW4-Vasanthamma is the wife of deceased Y.Hanumantharaju and she states regarding the marital relationship with Hanumantharaju, PW5- Venkatesh is the spot mahazar witness for Ex.P4. PW6-Muniyappa is the mahazar witness for inquest mahazar, Ex.P5. PW7- Guru mahazar witness for mahazar Ex.P6 to recover big club. PW9-Nagaraj servant of PW8 is eye witness. PW10-M.Venkatesh and PW11- Srinivasa are also the eye witnesses. PW12-B.N.Obalesh and PW13-M.H.Nagathe are the investigating officers who have registered the case and conducted the investigation and filed the chargesheet.
16
22. Learned High Court Government Pleader for appellant would further submit that the punishment or sentence passed against the accused persons is unreasonably disproportionate to the offences for which they were found guilty. He further submits that the sentence ought to have been more rigorous/ larger instead of the present one that lays down the period of imprisonment for one month 21 days for accused Nos.1 to 3 and a fine of Rs.25,000/- each to accused Nos. 1 and 2 which is being considered as sufficient, is very much contrary to the reasons assigned by the learned Trial Judge.
23. The learned High Court Government Pleader would further submit that the accused persons have in a brutal way done to death of Y.Hanumantharaju after making him hopelessly helpless. 17
24. Learned High Court Government Pleader for appellant would submit that it is a case of homicide proved beyond reasonable doubt before the learned Trial Judge that the accused persons committed the murder of Y. Hanumantharaju. But the Trial Judge found the accused 1 to 3 guilty for the offence punishable under Section 304 part II read with Section 34 of IPC and not on the main charges of the offences punishable under Section 302 read with Section 34 and 341 of IPC.
25. Sri.C.H.Hanumantharaya, learned Senior counsel for the respondents would submit that the prosecution has not proved main offence and there was no ingredients for the offences punishable under Section 304 part II of IPC. The very presence of the accused with Y. Hanumantharaju was not established and the presence of the manner or unnatural death of Y. Hanumantharaju was not in the knowledge of the 18 accused. The learned counsel for the accused/respondents would submit that there is no proper appreciation of oral evidence of the witnesses. Had there been contextual assessment while appreciation, it would resulted in acquittal.
26. Learned counsel would further submit that even while framing charges there is no enabling Section for the offence punishable under Section 34 of IPC so that to nail each of the accused those present who have committed offences in furtherance of common intention as the judgment excludes from mentioning of Section 34 in the operative portion.
27. Thus, the learned Senior counsel would continued his submission that in the absence of common intention each one from the accused persons would be liable only in respect of the individual overtact if any proved against him, and not all the 19 accused persons. Thus there is no correlation between the order of convicting and that of sentencing.
28. Learned counsel would further submit that the prosecution is not certain about who are the eye witnesses. It is also the contention of the learned Senior counsel that there are no injuries which are proportional or correlating or as found in the complaint and the oral evidence of the witnesses.
29. The injuries as noted in the postmortem report at Ex.P1 are not that grievous to be considered as injuries on the vital parts. Regard being had to the fact that accused persons do not know about the cause of those injuries i.e. contusions and lacerations. It was further submitted that the injuries as could be seen in the evidence of the Doctor and also as mentioned as external injuries and finding of the Doctor as to the state of rigor mortis. Further there 20 was no material to establish that the death occurred on 18.4.2004 and to conclude that the death occurred on 17.4.2004 in the morning. Learned counsel would submit that the material available would speak themselves that death of Y. Hanumantharaju invariably occurred earlier to 17.04.2004 and it was aged not less than 36 hours at the time of postmortem. Further, the injuries were trivial and there were no marks of ligature.
30. It is stated by the prosecution that the victim was tied to a coconut tree and that MOs 1 and 2 cannot be considered as deadly weapons which could have inflicted fatal injuries. On the other hand, they were improved in order to get the versions to suit the prosecution. The learned counsel further submits that there are material contradictions in the oral evidence. 21
31. Insofar as the evidence of the complainant CW1 who is examined as PW8 is concerned, it has to be examined along with the contents of the complaint. In the complaint marked as Ex.P9, Prabhakar, S/o. Yellappa who is the younger brother of Hanumantharaju had stated that he got the information of the incident from one Nagaraj, PW9 who works as their servant. Nagaraj has stated that in the garden of Rajanna, Doddaballapur, Kasaba Hobli, Bengaluru Rural Taluk at 8.00 a.m. at a time when he was carrying water to his house, accused persons, Nagaraj, his brother Venkataraj and Shabari son of Nagaraj were dragging Y. Hanumantharaju from Railway station end and Hanumantharaju was resisting. Again, after half an hour this servant Nagaraj went to the garden. There the accused persons had tied Hanumantharaju to a coconut tree and were beating him with the clubs. Servant Nagaraj 22 got frightened and came back. Thereafter, one Ramanjanappa came to the house of the complainant and told Y. Hanumantharaju was being tied to a tree and he told them to leave him and asked the complainant to go and get back Hanumantharaju. It was then the complainant goes to the spot along with his relative Srinivas. There they found his brother Hanumantharaju unconscious and was bearing injuries on his back, legs, hands inflicted from Donne which is the term used in Kannada language for a reasonably holdable wooden stick.
32. The clotting of blood was also seen. One Nagaraju brought auto and Hanumantharaju was taken to Doddaballapur Hospital and the Doctor who examined Hanumantharaju stated that Hanumantharaju was dead 20 minutes back. 23
33. I do not find injustice, miscarriage of justice, prejudice or deprival of principle of natural justice in case of the accused, much less, accused No.3. The mentioning of section 34 IPC connotes that when there are two or more persons who are the accused and the offence was committed by them.
34. The further contention of the respondents- accused is that PW8 is not the eye witness. PW8 has stated a version to the effect of receiving information from his servant Nagaraj on the date of incident. Further, he goes along with PW11 and found his injured brother. The information what he received was narration of two incidents by PW9. First one is, when PW9 was carrying water towards his house, he saw accused persons taking Hanumantharaju, who was resisting to go along with them. There was a 24 threat by the accused that in case Hanumantharaju did not go along with them, he would be killed.
35. When he went again for the second time after half-an-hour, he saw accused persons at the spot and found they were beating Hanumantharaju and this witness got frightened and came back and informed the same to PW8. Thus, the evidence of PWs.8 and 9 are to be read together.
36. In so far as direct knowledge of PW8 is concerned, when he goes to the spot along with PW9, they saw the brother of PW8 being tied to a tree and he was unconscious. He also noticed injuries inflicted through club and reapers. But when PW9 had seen Hanumantharaju, he was conscious and was beaten by the accused. PW8 is the complainant. He is not the eye witness to the entire incident and he got information from PW9. But he saw the first phase of 25 the incident. The two phases that followed one after the other are to be read in one context.
37. It is also necessary to make a mention that when PW9 wanted to know as to why accused were taking Hanumantharaju, he told that Hanumantharaju has committed theft of tender coconuts. At this juncture, it is necessary to mention that the incident is claimed to have occurred in the garden land of accused Nos.1 to 3. PW9 deposes that when he visited the house of complainant, his mother was alone and she was not keeping well and he told her that Hanumantharaju was being taken by the accused as stated above. However, PW9 goes to the spot and sees that Hanumantharaju was being beaten black and blue with MOs.1 and 2 and this time he comes back to the house of complainant and found that the complainant was present, who is none other than the brother of Hanumantharaju. It is necessary to 26 mention that when PW9 went to the house of complainant on first occasion, the complainant's mother was alone and when he went to the house for second time, the deceased brother who is the complainant was present in the house. Thus, the presence or absence of the mother of Hanumantharaju has no significance when PW9 went for the first time.
38. The substance of the evidence of PW3 is that he received information from the mother of Hanumantharaju about tying of the Hanumantharaju and beating by the accused and the lady asked for his help and this witness goes to the spot and sees the deceased being tied to a tree. It is also the evidence of PW3 that he saw accused No.3 who is the son of accused No.1 and enquired as to why Hanumantharaju was tied to a tree and asks accused No.3 to secure his father accused No.1. After enquiry, 27 he came to know that the accused had tied the Hanumantharaju to a tree alleging that Hanumantharaju committed the theft of tender coconuts from their trees. Then, he scolded them and asked them to release Hanumantharaju at once. Further, this witness went towards the house of Yellappa who is the father of Hanumantharaju. Thus the triangular combination of PW8-9 and 3 also are inter connected.
39. The evidence of PW11 reveals that he along with PWs.8 and 9 went to the garden land on the date of incident and saw Hanumantaraju was exhausted and neither he was able to stand nor sit. They secured an auto and the injured was taken to hospital. The evidence of this witness corroborates with the evidence of PWs.8 and 9. PW9 is the direct witness who saw beating of Hanumantharaju by the accused. 28 The evidence of PWs.8, 9 and 11 have to be read together for present to know the sequence of events.
40. PW1 is the doctor who conducted postmortem on the dead body of Hanumantharaju on 18.04.2004 at the request of Doddaballapura Rural Police Station with reference to Cr.No.71/2004. He conducted postmortem and found the following external injuries:
"1. The body of a male person is well built and nourished laying on mortuary with straight lower limbs and upper limbs on the sides of the body. Eyes closed, length of the body is 5.4 feet scalp hair black 2 inch size 10 triger mark is present in the lower limbs and absen in upper limbs and neck.
2. Contusion over leg and foot.
(1) Contusion in leg and foot right leg 9 to 10 number contusions 3 x 1 inch size blackish colour. Left leg 10 to 12 numbers 3 x 2 inch size black colour. Both foots 29 swollen and contusion. Contusion around the umbilicus 4 x 4 in size.
3. Contusion over the right fore arm 3 x 1 inch size 3 in number.
4. Contusion over the left form arm 3 x 1 inch size black colour.
5. Abrasion over the neck ½ cm 1 cm size probably caused by nail marks.
6. Contusion over left face lateral to eye 1 x 2 cm size.
7. Contusion of the right scapular area 3 x 1 inch, right shoulder area 3 x 1 inch size.
8. Broken incisor teeth upper jaw
9. Postmortem lividity present over the back and buttock of the body.
On desection the skull and spinal column intact and healthy. Dissection of the thorax internal organs are intact and 30 healthy. Abdomen organs sub-cutanious hematoma around the umbilicus 4 x 4 inch size. Stomach esophagus they are intact and healthy. Interstine find Petichce hemorrhages found and conjusted. Large interstine liver spleen are intact. Genital organ and urinary system were intact.
No evidence of fractures found multiple contusion on the body are blackish colour and lower limb foot, and fore arm, right shoulder and scapular area contusion over the abdomen around umbilicus is 4 x 4 size inches. Above said injuries are antemortem in nature.
I opined that the death was due to Vaso Vagal shock as a result of injuries over abdomen. The time log between death and P.M. about 24 hours.
The P.M. report now shown to me is the now which was issued by me. The same is marked as Ex.P.1 and the signatures are marked as Ex.P.1(a) and Ex.P.1(b).
31
Subsequently the I.O. sought for my opinion with the use of weapons sent by him. On verifying the said weapons were delivered to me in the sealed condition. On verifying the seal and after examining the said clubs sent by the interim order I opined that the injuries caused by as per the letter now shown to me. The letter is marked as Ex.P.2. Ex.P.2(a) my signature. After examining the weapons return the same in the sealed condition."
41. In so far as other witnesses are concerned, PW2 is the Engineer who drew sketch of the place of occurrence - Ex.P3. PW4 is the wife of deceased. PW5 is the spot mahazar witness, PW6 is the inquest mahazar witness, PW7 is a witness for recovery mahazar. PW10 is the relative of deceased who has stated that he saw PWs.8, 9 and 11 were taking deceased in an autorickshaw to the hospital. PW12 is 32 the investigating officer. PW13 is the Police Inspector who registered the complaint.
42. Learned Counsel for the respondents-accused places reliance on the decision of Hon'ble Supreme Court in the case of Ganesh Bhavan Patel and another Vs State of Maharashtra reported in (1978) 4 SCC
371. Paragraph 15, reads as under:
"15. As noted by the trial Court, one unusual feature which projects its shadow on the evidence of PWs Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under Section 161 Cr.P.C. were recorded on the following day. Welji (PW 3) was examined at 8 a.m., Pramila at 33 9.15 or 9.30 a.m. and Kuvarabai at 1.00 p.m. Delay of a few hours, simpliciter, in recording the statements of eye witnesses may not, be itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case."
43. He also places reliance of the decision of Hon'ble Supreme Court in the case of Bhimapa Chandappa Hosamani and Others Vs State of Karnataka reported in (2006) 11 SCC 323. Paragraph 24 reads as under:
"24. We have undertaken a very close and critical scrutiny of the evidence of PW1 and the other evidence on record only with a view to assess whether the 34 evidence of PW1 is of such quality that a conviction for the offence of murder can be safely rested on her sole testimony. This Court has repeatedly observed that on the basis of the testimony of a single eyewitness as conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness."35
44. He also places reliance on the decision of the Hon'ble Supreme Court in the case of Harbeer Singh Vs Sheeshpal and Others and State of Rajasthan Vs Sheeshpal and Others reported in (2016) 16 SCC 418. Paragraphs 17 and 19, read as under:
"17. However, Ganesh Bhavan Patel Vs State of Maharastra, is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. ... Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case.
19. In Darya Singh Vs State of Punjab, this Court was of the opinion that a related or interested witness may not be 36 hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities must be taken into account. This is what this Court said:' '6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. ... but where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts to examine the evidence given by such witness very carefully and scrutinize all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or 37 whether they were really present on the scene of the offence. ... if the criminal Court is satisfied that the witness who is related to the victim was not a chance witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinized."
45. Learned Counsel for the respondents-accused relying upon the above decisions would submit that the evidence of PWs.8 and 9 cast serious suspicion and they assume character of exaggeration. He would further submit that there is no occasion to believe the version of said witnesses as there are exaggeration and emotion in their evidence. He further submits that the delay in lodging the FIR also casts doubt in the evidence of prosecution.
38
46. The incident happened in the coconut garden of accused within the limits of Doddaballapur. The time of incident is about 10.00 a.m. FIR was lodged at 1.00 p.m. Considering the evidence regarding the sequence of events and communication from one witness to another witness, I do not find there is a delay in lodging the complaint, which had lead to make a false case against the accused and suppression of truth. The evidence of witnesses are in continuity and sequence of events. Further, the witnesses do not appear to be biased. It is also to be noted that incidents are narrated in a natural way without adding spices of exaggeration
47. In the present case, the prosecution case rests not only on sole testimony, but also direct corroboration through attendant circumstances, besides the evidence of complainant who is the eye witness to the second part of the incident is supported 39 by one witness PW9 who is the direct eye witness. There is no lapse in the investigation, which cause prejudice or bias. The versions of the witnesses are natural.
48. It is the further contention of learned Counsel for the accused/ respondents that there was no ligature marks on the body, though the deceased was said to have tied to a tree. It is to be noted that the cause of death is due to 'Vaso Vagal shock' as a result of injuries over abdomen. Moreover, the deceased Hanumantharaju was not tied after making him naked and it is not the case that the death resulted due to churning and stalling body tight with the help of rope tying around the body. The injuries are said to be ante mortem. It is not only the injury that will have impact over the body or physical capacity of the person. The shock matters much. Further, the accused were three in number. The allegations 40 against the deceased Hanumantharaju was that he had stolen tender coconuts from the garden of accused. Therefore, the accused persons tied the deceased Hanumantharaju to a tree and had beaten with MOs.1 and 2.
49. It was also the submission of learned Counsel for the accused/respondents that Mos.1 and 2 are not that kind of weapon which can cause lethal blows. Now, the question that arises for consideration is, 'whether the of blows continuously one after another in a whipping manner to a person who was tied to a tree could cause injurious impact on the person?'
50. The injuries over the body of the deceased becomes a serious issue.
51. It was also the contention of learned Counsel for the respondents-accused that the postmortem was conducted on 18.04.2004 at 10.30 a.m. The date of 41 death was 17.04.2004 at about 10.00 a.m. The injuries sustained by Hanumantharaju was long before 24 hours on 17.04.2004 and the accused, however, had no occasion to know about the injuries that might have caused 12 hours before on 17.04.2004. At this juncture, it is also necessary to mention that the garden land containing coconut trees where the incident happened belongs to the accused persons. The dead body was found in the said garden and being owner of the garden land, it cannot be said that the accused do not know anything of the dead body which was found with injuries. Thus what they knew, fortified by the circumstances and the materials on hand is not forth coming then. It is clear that common intention definitely prevailed among the accused persons. Each of the accused were knowing their act.
42
52. Hence, the prosecution has successfully established its case beyond all reasonable doubt regarding the offence being committed by the accused punishable under Section 304 Part-II IPC. More particularly, it cannot be brushed aside that all the accused 1,2 and 3 had 100% common intention to commit the ghostly offence 304 II IPC on Y Hanumantharaju. All of them are family members each of them believed and also had the knowledge of their Act, that ended in the offence punishable under Section 304 II IPC on Y.Hanumantharaju.
53. It is the quantum of sentence that is being sought to be enhanced in this appeal for the offence punishable under Section 304 Part II IPC only. Regard being had to the fact, though an appeal was not preferred by the accused persons, an opportunity was given to the learned Counsel for the accused to submit against the enhancement as well. In so far as 43 sentence imposed by the learned Trial Judge, in SC No.13/2005 is concerned, fine of Rs.25,000/- was imposed for accused Nos.1 and 2 and the period spent as under trial prisoners was considered sufficient.
54. For the reasons morefully assigned after perusing the records, on hearing detailed submission of the learned counsel for appellant-prosecution and the accused-respondents, I find that on the basis of the material available in the form of oral and documentary evidence coupled with submissions, the learned Trial Judge came to a finding that accused Nos.1, 2 and 3 committed the offence punishable under Section 304 read with Section 34 IPC and sentenced the accused Nos.1 and 2 to pay a fine of Rs.25,000/- each. The period of one month 21 days judicial custody of the accused was treated as imprisonment.
44
55. Present appeal is not against the acquittal of the accused/respondents 1,2 and 3 for the offence punishable under Section 342 and 302 r/w Section 34 of IPC. The main object of the prosecution is that the present punishment is unreasonably low and needs to be enhanced in the light of the gravity and seriousness of the offence.
56. It is also the contention of learned Counsel for the respondents-accused that accused No.3 could not have been held guilty as there was no mention of Section 34 IPC while framing charge. In the context and circumstances of the case, it clearly suggests that charge includes common intention that was read over. Non-mentioning of the digit 34 does not make impact on the case.
57. On total perusal of the judgment in SC.No.13/2005 the oral and documentary evidence 45 and the materials, I find that there is no occasion to disturb the finding of the learned Trial Judge regarding convicting the accused for the offence punishable under Section 304(ii) with common intention under Section 34 of IPC. The appellant state- prosecution has successfully established that the sentence imposed by the learned Trial Judge is totally insufficient as the effect of the offence is not assessed from required angles.
58. Learned counsel Sri.C.H.Hanumatharaya for the accused would submit that since the trial started on 29.08.2006 and ended on 27.08.2007 and the incident is of the year 2004 and thereafter, appeal coming up for final disposal today, the plight of the accused may be considered and they may be shown leniency in punishment, considering the age of the accused Nos.1, 2 and 3.
46
59. It is also submitted that accused do not possess criminal background and there are no complaints of threatening prosecution witnesses or tampering with the witnesses and even there is no allegation of violating the conditions imposed by the court.
60. Per contra, learned High Court Government Pleader Sri Nasrulla Khan would submit that accused persons 1 to 3 do not deserve lenience as they have taken law into their hands and inflicted serious injuries on Hanumantharaju. In the circumstances, the entire material boils down to one aspect that accused Nos.1, 2 and 3 among whom accused No.1 and 2 are brothers and accused No.3 is the son of accused No.1, thus consisting of two siblings one off spring committed the offence on the ground Hanumantharaju committed theft of coconut from the garden of the accused persons and he was a noted thief and the act 47 of the accused being the offence caused the death of Y.Hanumantharaju.
61. Learned High Court Government Pleader would submit that the prosecution has proved its case beyond all reasonable doubt and that the accused persons are liable for serious punishment and the punishment requires to be enhanced in the ends of justice.
62. Here is a case where the accused persons have taken law into their hands and inflicted punishment through injuries in a barbaric way. They assumed the concept of 'eye for an eye and tooth for tooth' instead of following law, provided they were aggrieved. The mode of committing offence does not appear at least nearer to established principles of humanity and natural justice.
48
63. Before imposing punishment there must be proper assessment of offence and punishment must be in proportion to offence, be it under any theory of punishment, but it did not happen before the Trial Court.
64. The offence under Section 304 of IPC punishable with imprisonment of either description for a term which may extend to ten years or with fine or with both. Learned Principal District and Sessions Judge in his wisdom found period of punishment of one month 21 days, the period of judicial custody of the accused was sufficient and to be treated as imprisonment along with a fine of Rs.25,000/- payable by accused Nos.1 and 3. In my considered view, the punishment imposed by the learned trial Judge is highly unreasonable and on the lower side which should have been proportional to the offence. In the context and circumstances, I find that a rigorous 49 imprisonment of 1½ years for each of the accused and a fine of Rs.75,000/- for each of the accused should have been imposed.
65. Thus, in the circumstances, it is just and proper to impose sentence of rigorous imprisonment of 18 months to the accused becomes invariably deserving. In case of default in payment of fine, accused shall undergo six months imprisonment. In case of fine amount is deposited, an amount of Rs.2,25,000/- be distributed among widow and children of Hanumantharaju in equal proportions.
66. Appeal is allowed in part. Accused Nos.1 to 3 are sentenced to undergo rigorous imprisonment for 18 months and shall pay fine of Rs.75,000/- each and in default in payment of fine, accused Nos.1 to 3 shall undergo imprisonment for six months. 50 In case fine amount is deposited by the accused, amount of Rs.2,25,000/- be distributed among widow and children of Hanumantharaju in equal proportion.
Accused/respondents are entitled for setoff under Section 428 of Cr.P.C against the period of judicial custody.
Sd/-
JUDGE SBN/tsn*/BGN