Karnataka High Court
The State Of Karnataka By vs B G Mohan on 29 March, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No.1974 of 2018
C/W CRL.A No.2087 of 2018
CRL.A No.501 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR JUSTICE B.VEERAPPA
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1974 OF 2018 (C)
C/W
CRIMINAL APPEAL NO.2087 OF 2018
CRIMINAL APPEAL NO.501 OF 2019
CRIMINAL APPEAL NO.1974 OF 2018
BETWEEN:
1. SRI. HARISH @ HARSHVARDHANA
S/O JNANASHEKHARA
AGED ABOUT 19 YEARS,
RESIDENT OF
CONSERVANCY ROAD, BEHIND ESHWARA TEMPLE
BIDADI TOWN
RAMANAGAR TALUK
Digitally signed by
LAKSHMINARAYAN ACCUSED NO.1 PRESENTLY IS IN
N
Location: High JUDICIAL CUSTODY IN SUB JAIL
Court of Karnataka
RAMANAGAR-562159
...APPELLANT
(BY SRI. RAVI B. NAIK, SENIOR ADVOCATE
FOR SRI MAHABALESH K. PATIL, ADVOCATE)
AND:
1. STATE BY BIDADI POLICE STATION
RAMANAGAR TALUK AND DISTRICT
REPRESENTED BY
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CRL.A No.1974 of 2018
C/W CRL.A No.2087 of 2018
CRL.A No.501 of 2019
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE-560 001
...RESPONDENT
(BY SRI. VIJAYAKUAMAR MAJAGE, ADDL. SPP.)
CRL.A. FILED U/S.374(2) CR.P.C BY THE ADVOCATE FOR
THE APPELLANT/S PRAYING THAT THIS HONOURABLE COURT
MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION DATED 05.10.2018 AND SENTENCE DATED
06.10.2018 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, RAMANAGARA IN S.C.NO.82/2011 -
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE
OFFENCE P/U/S 302,323,324,326 R/W 34 OF IPC.THE
APPELLANT/ACCUSED NO.1 IS HEREBY SENTENCED TO LIFE
IMPRIONMENT AND ALSO TO PAY A FINE OF RS.5,000/- IN
DEFAULT OF PAYMNET OF FINE, HE SHALL FURTHER UNDERGO
R.I FOR 1 MONTH FOR THE OFFENCE P/U/S 302 OF
IPC.FURTHER, THE APPELLANT/ACCUSED NO.1 IS HEREBY
SENTENCED TO UNDERGO S.I FOR A PERIOD OF 1 MONTH FOR
THE OFFENCE P/U/S 323 R/W 34 OF IPC.FURTHER, THE
APPELLANT/ACCUSED NO.1 IS HEREBY SENTENCED TO
UNDERGO S.I FOR A PERIOD OF 1 MONTH FOR THE OFFENCE
P/U/S 324 R/W 34 OF IPC.FURTHER, THE APPELLANT/ACCUSED
NO.1 IS HEREBY SENTENCED TO UNDERGO S.I FOR A PERIOD
OF 3 YEARS AND ALSO TO PAY A FINE OF RS.1,000/- AND IN
DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO FURTHER
S.I FOR A PERIOD OF 1 MONTH FOR THE OFFENCE P/U/S 326
R/W 34 OF IPC.THE PERIOD OF SENTENCE SHALL RUN
CONCURRENTLY.
CRIMINAL APPEAL NO.2087 OF 2018
BETWEEN:
1. SRI B G MOHAN
S/O JNANASHEKHARA,
R/AT CONSERVANCY ROAD, BEHIND ESHWARA
TEMPLE,
BIDADI TOWN,
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CRL.A No.1974 of 2018
C/W CRL.A No.2087 of 2018
CRL.A No.501 of 2019
RAMANAGAR TALUK-562 109
2. JNANASHEKHARA
S/O B.R.GANAGADHARAIAH,
R/AT CONSERVANCY ROAD, BEHIND ESHWARA
TEMPLE, BIDADI TOWN,
RAMANAGAR TALUK-562 109
3. NEELAMMA
W/O JNANASHEKHARA,
R/AT CONSERVANCY ROAD, BEHIND ESHWARA
TEMPLE, BIDADI TOWN,
RAMANAGAR TALUK-562 109
...APPELLANTS
(BY SRI. RAVI B. NAIK, SENIOR ADVOCATE
FOR SRI MAHABALESH K. PATIL, ADVOCATE)
AND:
1. STATE BY BIDADI POLICE STATION
RAMANAGAR TALUK AND DISTRICT
REP BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR S. MAJAGE, ADDL. SPP.)
CRL.A. FILED U/S.374(2) CR.P.C BY THE ADVOCATE FOR
THE APPELLANT/S PRAYING THAT THIS HON'BLE COURT MAY
BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 05.10.2018 AND SENTENCE DATED
06.10.2018 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, RAMANAGARA IN S.C.NO.82/2011 -
CONVICTING THE APPELLANT/ACCUSED NO.2 TO 4 FOR THE
OFFENCE P/U/S 323,324,326 R/W 34 OF IPC.THE
APPELLANT/ACCUSED NO.2 TO 4 ARE HEREBY SENTENCED TO
UNDERGO S.I FOR A PERIOD OF 1 MONTH EACH FOR THE
OFFENCE P/U/S 323 R/W 34 OF IPC.FURTHER, THE
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CRL.A No.1974 of 2018
C/W CRL.A No.2087 of 2018
CRL.A No.501 of 2019
APPELLANT/ACCUSED NO.2 TO 4 ARE HEREBY SENTENCED TO
UNDERGO S.I FOR A PERIOD OF 1 MONTH EACH FOR THE
OFFENCE P/U/S 324 R/W 34 OF IPC.FURTHER, THE
APPELLANT/ACCUSED NO.2 TO 4 ARE HEREBY SENTENCED TO
UNDERGO S.I FOR A PERIOD OF 3 YEARS EACH AND ALSO TO
PAY A FINE OF RS.1,000/- EACH AND IN DEFAULT OF PAYMENT
OF FINE, THEY SHALL UNDERGO FURTHER S.I FOR A PERIOD
OF 1 MONTH FOR THE OFFENCE P/U/S 326 R/W 34 OF IPC.THE
PERIOD OF SENTENCE SHALL RUN CONCURRENTLY.THE
APPELLANTS/ACCUSED NO.2 TO 4 PRAYS THAT HE BE
ACQUITTED.I.A.NO.1/2018 FOR SUSPENSION OF SENTENCE
AND BAIL.I.A.NO.1/2018 FILED BY THE ADVOCATE FOR THE
APPELLANT/S PRAYING TO SUSPEND THE EXECUTION OF THE
ORDER OF CONVICTION DATED 05.10.2018 AND SENTENCE
DATED 06.10.2018 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, RAMANAGARA IN S.C.NO.82/2011 AND
GRANT BAIL TO APPELLANT NO.2 TO 4, FOR THE REASONS
STATED THEREIN..
CRIMINAL APPEAL NO.501 OF 2019
BETWEEN:
1. THE STATE OF KARNATAKA BY
BIDADI POLICE
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARANTAKA
BANGALORE-01
...APPELLANT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP.)
AND:
1. B G MOHAN
S/O JNANASHEHARA
AGED ABOUT 23 YEARS,
KWALITY CONTROLLING INSPECTOR
R/O CONSERVENCY ROAD,
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CRL.A No.1974 of 2018
C/W CRL.A No.2087 of 2018
CRL.A No.501 of 2019
BEHIND ESHWARA TEMPLE
BIDADI TOWN
RAMANAGARA TALUK-562 109
2. JNANNASHEKHARA
S/O B R GANGADHARAIAH
AGED ABOUT 58 YEARS,
R/O CONSERVENCY ROAD, BEHIND ESHWARA
TEMPLE BIDADI TOWN
RAMANAGARA TALUK-562 109
3. NEELAMMA
W/O JNANASHEKHARA
AGED ABOUT 46 YEARS,
R/O CONSERVENCY ROAD, BEHIND ESHWARA
TEMPLE BIDADI TOWN
RAMANAGARA TALUK-562 109
...RESPONDENTS
(BY SRI. RAVI B. NAIK, SENIOR ADVOCATE
FOR SRI MAHABALESH K. PATIL, ADVOCATE)
CRL.A. FILED U/S.378(1) AND (3) CR.P.C BY THE STATE
P.P. FOR THE STATE PRAYING THAT THIS HON'BLE COURT MAY
BE PLEASED TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER DATED 05.10.2018 PASSED BY THE
PRINCIPAL DISTRICT AND SESSION JUDGE AT RAMANAGARA
IN S.C.NO.82/2011 FOR THE OFFENCE P/U/S 302 OF IPC AS
AGAINST A2 TO A4.THE SPP/STATE PRAYS THAT THE ABOVE
ORDER MAY BE SET ASIDE.I.A.NO.1/2019 FOR CD IN
FILING.I.A.NO.1/2019 FILED BY THE ADVOCATE FOR THE
APPELLANT PRAYING TO CONDONE THE DELAY OF 70 DAYS IN
FILING THE ABOVE CRL.A, FOR THE REASONS STATED
THEREIN; AND ETC.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
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CRL.A No.1974 of 2018
C/W CRL.A No.2087 of 2018
CRL.A No.501 of 2019
JUDGMENT
Accused No.1-Harisha @ Harshavardhana filed Criminal Appeal No.1974 of 2018; Accused 2 to 4 B.G. Mohan, Jnanashekar and Neelamma filed Criminal Appeal No.2087 of 2018; and Criminal Appeal No.501 of 2019 is filed by the State for not convicting the accused 2 to 4 for the offences punishable under Sections 302 of Indian Penal Code. All these appeals are filed by Accused 1 to 4 and the respondent-State against the judgment of conviction and order of sentence dated 05th October, 2018 made in S.C.No.82 of 2011 by the Principal District and Sessions Judge, Ramanagara, convicting accused No.1 for imprisonment of life with fine of Rs.5,000/- for the offence punishable under Section 302 of Indian Penal Code; and accused 1 to 4 sentences for a period of three years with fine of Rs.1,000/- each for the offence punishable under Section 326 of Indian Penal Code; and accused No. 1 to 4 sentences for a period of one month each for the offence punishable under Section 323 R/W 34 IPC and accused No. 1 to 4 sentences for one month each for the offence punishable under Section 324 R/W 34 IPC. And the State filed appeal for -7- CRL.A No.1974 of 2018 C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 acquitting accused 2 to 4 for the offence punishable under Section 302 of Indian Penal Code.
2. It is the case of the prosecution that on the basis of complaint by PW1-B.G. Lokesh Kumar as per Exhibit P1 dated 15th May, 2010 that, there was a dispute between the family of the accused and the family of deceased-B.G. Gurudev in respect of flowing of drainage water on the road in front of the house of the accused; and in that connection on 15th May, 2010 at 8.45 am when PW3-Anita was washing clothes on the small bridge over the public drainage along with maid servant CW10- Gowramma (not examined), accused questioned regarding washing of clothes on the said bridge, brought dirty water from her house and threw it on the bridge. Noticing the same, PW2- Prema asked accused No.4 Neelamma, as to why she poured dirty water. Thereby, accused No.4 Neelamma started abusing, and at that time, deceased-Gurudev intervened and tried to advise both of them. Accused No.4-Neelamma and PW2-Prema fell down by assaulting each other and accused No.4 hit on PW2 with a brick and caused hurt to her. Then the other accused 1 to 3 came shouting and accused No.1 assaulted deceased- Gurudev on the backside of his head; accused No.2 also -8- CRL.A No.1974 of 2018 C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 assaulted on the head of Gurudev with iron rod and caused bleeding injuries. When PW4-Somashekar came to rescue Gurudev, the said accused, with an intention to kill him, chased him and assaulted him on his head and left hand and caused him severe injuries. All the four accused, making use of the situation and with a common intention of committing murder of Gurudev, assaulted him and others. Accused No.2 assaulted PW4-Somashekar with iron rod on his left hand, head and back and accused No.3-Jnanashekar assaulted PW1-Lokesh with stone and, on arriving at the spot, he also assaulted PW2- Prema and PW3-Anita on the hand, back and thighs and hurt them. It is further stated that accused No.4-Neelamma kicked PW2-Prema with hand and legs holding her tuft. She also pulled mangalya chain of PW2, as a result the chain broke and fallen. Accused No.4 assaulted deceased-Gurudev with a brick on his chest and threw away Rudrakshi chain which was in his neck and as a result of the same, the deceased-Gurudev sustained fatal injuries and succumbed. Thereby, on the basis of complaint lodged by PW1, the jurisdictional police registered case in Crime No.279 of 2010 on 15th May, 2010 at about 10.00 am, for the offence punishable under Sections 323, 324, 307 -9- CRL.A No.1974 of 2018 C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 and 302 read with Section 34 of Indian Penal Code. On committal by the learned Principal Senior Civil Judge and CJM, Ramanagara the learned Sessions Judge secured the presence of accused 1 to 4, framed charge for the aforesaid offence punishable under provisions of Sections 323, 324, 307 and 302 read with Section 34 Indian Penal Code and read over to the accused in the language known to them who pleaded not guilty and claimed to be tried.
3. The prosecution, in order to prove the involvement of accused in the homicidal death of the deceased, examined in all, 16 witnesses as PW1 to 16 and marked material documents as per Exhibits P1 to P30 and material objects MO1 to MO15. On behalf of the defence side, the defence examined two witnesses DW1 and DW2 and produced documents Exhibits D1 to D3. After completion of the evidence of the prosecution witnesses, the statement of the accused, as contemplated under the provisions of Section 313 of Code of Criminal Procedure were recorded. The accused denied all the incriminating circumstances against them by the prosecution witnesses.
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019
4. Based on the aforesaid pleadings, the learned Sessions Judge proceeded to frame following points for consideration:
1. Whether the prosecution proves beyond reasonable doubts that on 15.5.2010 at 8.45 am in Bidadi Town, all the accused with the common intention of assaulting the family members of deceased and committing murder of deceased, in connection with drainage water dispute existing between them, picked up quarrel with them and voluntarily assaulted with club, iron rod, stone and brick pieces and caused hurt to them and thereby they have committed the offence punishable under Section 324 r/w 34 of the IPC?
2. Whether the prosecution further proves beyond reasonable doubts that on the above said date, time and place, in furtherance of their common intention, the 4th accused assaulted the PW2-Prema by her hands and legs holding her tuft and caused her simple hurt and thereby committed the offence punishable under Section 323 r/w 34 of IPC?
3. Whether the prosecution further proves beyond reasonable doubts that on the above said date, time and place, in furtherance of their
- 11 -CRL.A No.1974 of 2018 C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019
common intention the 1st accused and 2nd accused assaulted PW1-Lokesh Kumar on the back of his head, on his face with a firewood and iron rod respectively and caused him grievous injury and the act of the accused is without such intention or knowledge and under such circumstances that had the act of accused would have caused death of PW1-Lokesh Kumar and thereby committed the offence punishable under Section 307 r/w 34 of the IPC?
4. Whether the death of deceased-Gurudev is homicidal?
5. Whether the prosecution further proves beyond reasonable doubts that on the above said date, time and place, in furtherance of their common intention the accused committed murder of Gurudev and thereby committed the offence punishable under Section 303 r/w 34 of the IPC?
5. Considering both the oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the Prosecution proved beyond reasonable doubt that on 15th May, 2010 at 8.45 am in Bidadi Town, all the accused with a common intention assaulted the family members of deceased and committed the murder of deceased-Gurudev in connection
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 with drainage water dispute and voluntarily assaulted with club, iron rod, stone and brick piece, thereby, committed the offence punishable under the provisions of Section 324 read with Section 34 Indian Penal Code and further recorded a finding that the prosecution proved beyond reasonable doubt that in furtherance of the common intention, accused No.4 assaulted PW2-Prema by her hands and legs holding her tuft and caused simple hurt and thereby committed the offence punishable under the provisions of Sections 323 read with Section 34 of Indian Penal Code; and further recorded a finding that accused 1 and 2 assaulted PW1-Lokesh on the back of his hand and face with firewood and iron rod respectively, causing grievous injury and the act of the accused with such intention or knowledge and under such circumstances that if they by that act of caused death of PW1 and thereby committed the offence punishable under the provisions of Section 307 read with Section 34 Indian Penal Code; and further recorded a finding that the death of the deceased is homicidal death in view of evidence of PW14- Dr. Raghuramiah, who has issued post-mortem report Exhibit P9 and further recorded a finding that accused committed the murder of deceased-Gurudev and thereby they are liable to be
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 punished under the provisions of Section 302 read with Section 34 of the Indian Penal Code. Accordingly, by the impugned judgment of conviction and order of sentence, convicted accused No.1 for imprisonment of life with fine of Rs.5,000/- for the offence punishable under the provisions of Section 302 Indian Penal Code; and convicted accused 1 to 4 and sentenced to undergo simple imprisonment for a period of one month each for the offence punishable under the provisions of Section 323 and 324 read with Section 34 Indian Penal Code and accused 1 to 4 were sentenced to undergo simple imprisonment for a period of three years each and to pay a fine of Rs.1,000/- each for the offence punishable under the provisions of Section 326 Indian Penal Code. Hence the accused No.1 filed Criminal Appeal No.1974 of 2018 and accused 2 to 4 filed Criminal Appeal No.2087 of 2018 and the respondent-State filed Criminal Appeal No.501 of 2019 for acquitting the accused 2 to 4 under the provisions of Section 302 Indian Penal Code, but the State has not file any appeal against the conviction of accused 1 to 4 under the provisions of Section 323, 324 and 307 of Indian Penal Code.
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019
6. We have heard the learned counsel for the parties to lis.
7. Sri Ravi B. Naik, learned Senior counsel appearing for the accused 1 to 4 would contend with vehemence that the impugned judgment of conviction and order of sentence convicting the accused No.1 under the provisions of Section 302 of Indian Penal Code and accused 2 to 4 under the provisions of Section 326 Indian Penal Code is erroneous, contrary to the material on record and cannot be sustained and is liable to be set aside. He would further contend that though in Exhibit P1-complaint, as to the occurrence of incident it was originally stated as 7.00 am, only in order to bargain the time to implicate the accused, the same was tampered as 9.00 am. He would further contend that PW1, who is the complainant has deposed that he has given compliant to the police at his house. PW15-Invesigating Officer, in his deposition, deposed that on 15th May, 2010 at 10.00 am, he received complaint-Exhibit P1 at police station. Thereby, the very complaint filed by PW1 is doubtful. On that ground alone the impugned judgment of conviction and order of sentence, passed by trial Court cannot be sustained. He would further contend that the Police arrived
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 at the place on the information given by PW8, the alleged eye- witness to the incident, as admitted by him in his cross- examination. PW4 deposed that only accused 1 and 2 assaulted the deceased. As per Exhibit P9-Postmortem report, there were eight external injuries that can be attributed to accused No.1. As per Exhibit P10-wound certificate of PW4, all the injuries caused by all the accused, except injury No.4, all other injuries are simple in nature. Exhibit P11-wound certificate of PW1 shows assault with hands by accused No.1, but in evidence it is disclosed as assaulted by all, on his head and injuries 1 and 2 are simple in nature.
8. The learned Senior Counsel would further contend that PWs1 to 3 and PW5 specifically stated in verbatim that it was a quarrel between the family of accused and deceased accused wherein when PW3 was washing clothes on the small bridge over the public drain along with maid servant accused No.4-Neelamma questioned as regards washing of clothes on the said bridge, thereby, the quarrel erupt between the family members of the accused and deceased and in the sudden provocation and not with any motive or intention and thereby the unfortunate incident happened resulting in homicidal death
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 of deceased-Gurudev. The said aspect of the matter has not been considered by the learned Sessions Judge and has erroneously proceeded to convict the accused No.1 for imprisonment of life with fine of Rs.5,000/- for the offences punishable under the provisions of Section 302 of Indian Penal Code; convicted accused 1 to 4 to undergo simple imprisonment for a period of three years with fine of Rs.1,000/- each for the offences punishable under the provisions of Section 326 of Indian Penal Code without there being any basis and the same cannot be sustained.
9. The learned Senior Counsel further contended that PWs.1 to 3, in their evidence, deposed that accused No.1 assaulted the deceased with firewood on his head and with brick on his chest. However, they do not depose, as to which object was particularly used by the accused No.1. On going through the evidence, nothing is forthcoming as to which weapon was held by the accused No.1. He would further contend that MOs.1 to 9, which are the alleged weapons used by the accused No.1 and other accused in committing alleged offence, are not the articles that are seized by drawing mahazar. On the sealed bag, signatures of the witness are not
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 found. He would further contend that PW9 specifically deposed in his evidence that it is the Police who told about MOs1 to 4 at the place of incident. With the material available on record, the trial Court should have considered the fact that MOs.1 to 4 are articles which have been falsely planted in the case against the accused persons, thereby, it has resulted in miscarriage of justice. He would further contend that the unfortunate incident happened due to quarrel between the members of two families, viz. PW3-Anita and accused No.4-Neelamma and thereby, at their instance, the male members of both the families were invited and in the scuffle, on the assault made by accused No.1 with club, the unfortunate incident of homicidal death of the deceased-Gurudev had occurred and thereby, it is the clear case which falls under the provisions of exception 4 of Section 300 of Indian Penal Code, thereby the accused No.1, is at the most, liable to be convicted for the offence punishable under the provisions of Section 304 Part-II of Indian Penal Code and not under Section 302 of Indian Penal Code.
10. He further contended that there is inconsistency with the involvement of accused No.2 on the homicidal death of deceased. PW1 who is the complainant, deposed that on the
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 date of incident when he was inside the house, as there was a quarrel, he came out of the house and seen accused No.1 assaulting his father with club on his head, and accused No.2 assaulting with iron rod. He has not deposed as to on which part of the body the accused No.2 assaulted his father. Very curiously, PW1 deposed that he has given complaint in the house and after giving complaint he went to Police Station and PW15 deposed that he has received the complaint at the Police Station. PW2 also deposed that accused No.2 assaulted on the head of PW4 and PW4, the alleged eye-witness to the incident, deposed that accused No.1 assaulted with club and accused No.2 assaulted on his head, thereby, there is inconsistency in the evidence of PWs1 to 3 and PW5 with regard to assault with iron rod by accused No.2 on the head of the deceased, thereby, the learned judge was not justified in convicting accused No.2 under the provisions of Section 326 of Indian Penal Code. He would further contend that though the verbatim of all the prosecution witnesses, especially PWs1 to 4 depose about the involvement of accused 3 and 4 on the homicidal death of the deceased, but there is no specific averment either in the cross- examination or in the examination-in-chief or the wound
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 certificate produced as per Exhibit P10 in respect of PW4, Exhibit P11 in respect of PW1 and Exhibit P12 in respect of PW3, the involvement of the accused 3 and 4. Thereby, the learned Sessions Judge is not justified in convicting the accused 3 and 4 in the absence of any material or recovery made by the jurisdictional police. Therefore, he sought to allow the appeal filed by accused 1 to 4.
11. With regard to punishment to be imposed against accused No.1 only under the provisions of Section 304 Part II Indian Penal Code, the learned Senior Counsel relied upon the following judgments:
i) LAKSHMICHAND V. STATE OF UTTAR PRADESH [(2018)9 SCC 704] paragraph 7;
ii) ELANGOVAN v. STATE OF TAMILNADU [(2020)10 SCC 533] paragraphs 10 and 13;
iii) KALA SINGH @ V. STATE OF PUNJAB [(2021)10 SCC 744] paragraphs 2, 10 and 13;
iv) DEO NATH RAI v. STATE OF BIHAR [(2018)13 SCC 87] paragraph 11.1;
v) MAHADEV AND OTHERS v. STATE OF TAMILNADU [(2017)5 SCC 582] paragraph 11; and
vi) STATE OF KARNATAKA v. P. RAVIKUMAR @ RAVI [(2018)18 SCC 768] paragraph 7.
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019
12. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment of conviction and order of sentence convicting accused No.1 for the offence punishable under the provisions of Section 302 of Indian Penal Code and accused 1 to 4 for the offence punishable under the provisions of Section 326 Indian Penal Code, would contend that PWs.1 to 3 and injured eye-witness, specifically stated on oath that accused No.1 assaulted deceased with MO1 and accused No.2 with MO2-iron rod. Doctor PW14 who conducted postmortem on the dead body of deceased-Gurudev, specifically stated that injury No.2 lacerated wound over the scalp measuring 3" in length breadth and depths underlying bone felt extending from vertex towards the occipital region, and accordingly issued Exhibit P9- postmortem report and opined death was due to shock and hemorrhage as a result of head injury and other injuries sustained over the body. Therefore, the evidence of PWs1 to 5 and the evidence of PW14 and Exhibit P9-postmortem report clearly depicts the homicidal death of the deceased. Though, accused No.1 examined by DW2-Doctor who issued Exhibit P26, has deposed that on 15th May, 2010, one Harish @
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 Harshavardhan (accused No.1) aged about 30 years, case to Channapatna Hospital between 10.00 am to 2.00 pm with the history of head injury due to self-fall. It is further stated in cross-examination that it is true to suggest since the injured Harish @ Harshavardhan when came to the Hospital revealed that he himself fell on the ground and sustained injuries, did not register the case as MLC; it is true to suggest that the history of the injury was voluntarily revealed by Harish @ Harshavardhan himself; it is true to suggest that he did not mention about the scuffle or quarrel; it is true to suggest that he alone came to hospital for treatment; it is true to suggest that history of injury is mentioned as self-fall according to Exhibit-P7 and nil MLC issued. Exhibit P26 also depict the same. Thereby, the allegation that accused No.1 also sustained injury in the scuffle cannot be accepted. Thereby, the accused who assaulted the deceased on head has resulted in his death as stated by Doctor that the death was due to shock and hemorrhage as a result of injury sustained and other injuries over the body as per Exhibit P9, thereby, he submits that the order impugned passed by the learned Sessions Judge convicting accused No.1 for the offence punishable under the
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 provisions of Section 302 Indian Penal Code is just and proper and this court cannot interfere. He further contended that though there is some inconsistency and stray sentences with regard to accused No.2, who also assaulted the deceased with iron rod, the evidence of PWs1 and PW4, the same has to be ignored as they have also involved in the homicidal death of the deceased. In Exhibit P1-complaint, the allegation was that accused No.2 assaulted with iron rod on the deceased and his brother. PW1 also deposed that accused No.2 assaulted the deceased with iron rod. Thereby, learned Sessions Judge was not justified in convicting the accused No.2 under the provisions of Section 326 of Indian Penal Code and ought to have convicted under the provisions of Section 302 Indian Penal Code. He would further contend that since the unfortunate incident occurred on 15th May, 2010, the common charge was made against the accused under the provisions of Section 323, 324, 307 and 302 read with Section 34 Indian Penal Code and thereby, accused 2 and 4 are also liable to be convicted under the provisions of Section 302 Indian Penal Code. Therefore, he sought to allow the appeal preferred by State and dismiss the appeals preferred by accused.
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019
13. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in the present appeals are:
1) Whether the accused No.1 Harish @ Harshavardhan has made out a case to interfere with the impugned judgment of conviction and order of sentence for imprisonment of life under the provisions of Section 302 Indian Penal Code with fine of Rs.5,000/-?
2) Whether accused No. 1 to 4 have made out a case to interfere with the impugned judgment of conviction and order of sentence convicting them for the offence punishable under the provisions of Section 326 Indian Penal Code for a period of three years with fine of Rs.1,000/- each?
3) Whether the respondent-State has made out a case to convict the accused 2 to 4 under the provisions of Section 302 Indian Penal Code in the peculiar facts and circumstances of the case?
14. We have given our anxious consideration to the arguments advanced by the learned counsel appearing for the
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 parties and perused the entire material on record, including the original records, carefully.
15. This Court being the appellate court, in order to re- appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses and documents relied upon.
a) PW1-B.G. Lokesh, son of the deceased and complainant, deposed that on 15th May, 2010 at about 9.00 am, when he was in house, there was a quarrel between PW2 and accused No.4-Neelamma and when he came out of the house, he saw accused was assaulting his father on his head with firewood and accused No.2 was assaulting his father with iron rod. He would further depose that accused No.3 has stone in his hand and hit on his head with brick and hit his father with firewood on his right shoulder. He also assaulted on his chest with his hand. Thereby, he lodged a complaint with the jurisdictional police on the same day. Accordingly, he supports the case of prosecution;
b) PW2-Prema, who is the wife of the deceased, deposed that on 15th May 2010, at about 9.00 am, when she was inside the house along with her sons and daughters-in-law, she heard the quarrel that was
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 taking place between her husband and accused and accordingly she came out of the house and at that time she noticed accused No.1 assaulting on the backside of the head of her husband with a firewood. She herself and with other family members rushed to rescue the deceased. Accused No.4-Neelamma held the tuft of PW2 and made her fall down by pulling her, accused No.4 has also assaulted her with brick piece on her hand and thigh. Accused No.2 was holding stone in his hand and he assaulted deceased with iron rod on the back of his head and also assaulted in his wrist and arm. Accused No.3 assaulted the deceased with a stone and also assaulted PW4-Somashekar. Thereby, she supports the case of prosecution.
c) PW3 Smt. Anitha wife of PW4 and daughter-in-law of deceased Gurudev, deposed that when she came out of the house along with others on the fateful day morning after hearing the quarrel sound, she noticed that Accused No.1 was holding fire wood piece- MO1 and Accused No.2 was holding MO2-iron rod and were shouting. Accused No.1 assaulted her father-in-law i.e. deceased on back side of his head with fire wood and Accused No.2 assaulted the deceased with iron rod on his forehead, then her husband PW4-Somashekar came to rescue the deceased; at that time, Accused No.2 chased him and assaulted on his head, left hand and ears. Accused No.1 assaulted PW1 with fire wood piece on his right arm and gave a blow on the chest
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 with his fist. Thereby, supported the case of the prosecution.
d) PW4-Somashekar, who is the son of the deceased, also deposed on par with his wife PW3 and specifically stated that, Accused Nos.1 to 4 were holding fire wood, iron rod, stone and brick respectively. He has further deposed that Accused No.3 saying that, 'you all are only responsible for this', has assaulted his mother-PW2 on back of her head and on her right hand finger with a stone and Accused No.4- Neelamma pulled his mother's tuft, felled and kicked her. PW4 thereby supported the case of the prosecution.
e) PW5-Nirmala the daughter-in-law of deceased Gurudev, deposed that she came out of the house after hearing the quarrelling sound and saw that, Accused 1 and 2 were assaulting her father-in-law, the deceased. She has further deposed that, Accused 1 and 2 assaulted the deceased as well as PWs 2, 3 and
4.
f) PW6- Hithyshi, grand daughter of the deceased, who is the eye witness to the alleged incident has deposed that, on the date of incident, as she heard the noise, she peeped through the window of the room and saw the accused assaulting the deceased and PWs 1 to 4.
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 She videographed the incident. Thereby, she supported the case of the prosecution.
g) PW7-B R Raje Urs, an independent witness to the alleged incident, has deposed that, on hearing the quarrelling sound, when he went to the spot, he noticed that accused were assaulting the deceased and also son, daughter and wife of the deceased who came to rescue him. He has specifically deposed that, accused 1 and 2 assaulted PW4 on his hand and head. Accused No.2 holding the tuft of PW4, had assaulted her. Thereby, the said witness supported the case of the prosecution.
h) PW8-Sharath, another independent witness and neighbour of the accused and the deceased, has deposed that, the accused assaulted the deceased and thereby supported the evidence of PWs 1 to 6.
i) PW9-Vijayakumar deposed that, he knows both the accused and the deceased, who was an Archak in Eshwara temple and it belongs to them and the houses of the deceased and accused are adjacent to the temple. He is the Inquest mahazar witness as per Ex.P3, He further deposed that, he saw dead body of deceased, bricks, stones, wood piece, iron rod etc. Thereby supported the case of the prosecution.
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019
j) PW10-Prakash, independent and neighbouring witness to the alleged incident, has deposed that, he knew accused and the deceased and the deceased was the Archak of the temple. He has further deposed that, on 15.5.2010, between 8.30 A.M. to 9.00 A.M. when he was in his house, he heard quarrelling sound and he went near the house of the accused, where he found the family members of both the deceased and the accused there. He has further deposed that, Accused No.1 was assaulting the deceased with a club and brick; Accused No.2 assaulted the deceased, Somashekar-PW4 and B. G. Lokesh Kumar-PW1 with iron rod on their face and hands. Thus, supported the case of the prosecution.
k) PW11-Umesh was the witness to the seizure mahazar as per Ex.P4 wherein the I.O. seized the blood stained shirt-MO.11 of Accused No.3. Thus, supported the case of the prosecution.
l) PW12-Ravi deposed that, the concerned Police Inspector had summoned him to the Police Station and shown the CD whereby he found that accused persons abusing the family members of the deceased in filthy language and holding iron rod and club, which were seized under Ex.P2-seizure mahazar, He identified CD
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 marked as MO.10 and supports the case of the prosecution.
m) PW13-Bhanuprakash, has deposed that he is a witness to Ex.P6-Arrest Mahazar and identified it and also identified OPD slip as per Ex.P7, seized by police at the time of arrest of accused. He has further identified Ex.P8-seizure mahazar and identified MOs 12 and 13-blood stained colour shirt and T-shirt respectively, which were recovered. Thereby, he supported the case of the prosecution.
n) PW14- Dr.Raghuramaiah, who conducted the post mortem of the deceased on 15.5.2010 at about 1.15 p.m., deposed that, the deceased had sustained eight external injuries and had died due to shock and haemorrhage as a result of head injuries and has issued Ex.P9-post mortem report. Thereby he supported the case of the prosecution.
o) PW15-K.P.Sathyanarayana, deposed that he has been working as a PSI in Bidadi police station from 2008 to 2010 and on 15.5.2010 when he was in the police station, at about 10.00 A.M., PW1 came along with Ex. P1 -written complaint and he registered the case in Crime No.279/2010 under Sections 323, 324, 327, 302 read with 34 of IPC and submitted FIR as per Ex.P16 and conducted inquest panchaname as per
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 Ex.P3. Recovered MOs 1 to 9, recorded the statements of PWs 3 and 4, prosecution witnesses and others and he also requested the Doctor of Government hospital to conduct post mortem of the deceased as per Ex.P17 and after detailed investigation, he filed chargesheet as per Ex.P18. Thereby, he supported the case of the prosecution.
p) PW16-H N Dharmendra, Police Inspector, would depose that he has taken charge of the investigation from PW15 on 15.5.2010, visited the spot and recorded the statements of the witnesses to the incident and deployed police personnel to trace out the accused. He has further deposed that, on 19.9.2010, he received post-mortem report as per Ex.P9 and verified the CD produced by PW4 and thereafter, he had drawn the mahazar as per Ex.P2 and seized the CD as per MO10 and recorded the statements of the prosecution witnesses and received the wound certificate as per Exs.P10 to 12 of PWs 1, 4 and 3 i.e. of Lokesh, Somashekar and Anitha respectively. After detailed further investigation, he filed charge sheet against the accused. Thereby supported the case of the prosecution.
16. In order disprove the case of the prosecution, Accused No.1-Harisha was examined as DW1. He deposed that,
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 on 15.5.2010 at about 9.30 a.m., as the rinsed water from the clothes washed by PW3-Anitha had flown inside their house, his mother-Neelamma (Accused No.4) questioned PW3, they started abusing his mother in filthy language and deceased Gurudev tried to assault his mother with a brick. Seeing this, he went to prevent Gurudev from assaulting his mother and in the scuffle between Gurudev and himself, both of them fell on the stone slab in front of his house and PW4-Somashekar, who came to the spot and tried to pacify the scuffle between us, also fell down. Due to the said fall, all of us sustained head injuries. He has further deposed that, thereafter, he went to Channapattana Government Hospital by bus to get treatment from Dr.Shashi for the injuries sustained by him and after taking treatment, he informed the doctor that the said injuries were sustained by him in the aforesaid quarrel. In the cross examination, he has admitted that he is not called by the name Harshavardhana but is only called by the name Harsha. He has also admitted that there is a hospital at Bidadi about 750 mtrs from his house and that there is Government Hospital at Ramanagaram and also private hospitals; that, when the incident occurred, he was studying II year BBM at Government
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 I Grade College, Vijayanagar, Bengaluru. He has further admitted that, except sustaining injuries on his left side, he has not sustained any other injuries; his father, mother and brother also sustained minor injuries but no documents are produced to prove the same and that he has not lodged any complaint to the jurisdictional police alleging the scuffle between families of the deceased and accused.
17. DW2-Dr Shashi, who examined Accused No.1 (DW1), has deposed that, on 15.5.2010 one Harish had come to Channapattana Government Hospital with a history of head injury due to self-fall and has further deposed in the cross examination that, it is true to suggest that, injured Harish when came to the hospital revealed that he himself fell on the ground and sustained the injury and that the said history was voluntarily revealed by DW1 and thereby did not register the case as MLC; further deposed that it is true to suggest that DW1 did not mention about the scuffle or quarrel and that DW1 alone came to the hospital for treatment and therefore, in Ex.P7-OPD slip, injury is mentioned as 'self fall' and 'nil MLC'.
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18. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to convict accused No.1 for imprisonment of life with fine of Rs.5,000/- for the offence punishable under Section 302 of Indian Penal Code; and accused 1 to 4 for a period of three years with fine of Rs.1,000/- each for the offence punishable under Section 326 of Indian Penal Code; and accused No. 1 to 4 sentenced for a period of one month each for the offence punishable under Section 323 R/W 34 of IPC and accused No.1 to 4 sentenced for one month each for the offence punishable under Section 324 R/W 34 of IPC; and the State filed appeal for acquitting accused 2 to 4 for the offence punishable under Section 302 of Indian Penal Code.
19. By a careful perusal of Ex.P1-complaint dated 15.5.2010 filed by PW1, son of the deceased, it is noticed that, there was a dispute between the family of the accused and the deceased with regard to flow of drainage water on road in front of the house of the accused. On 15.5.2010 at about 8.45 A.M. when PW3-Anitha, along with maid servant-CW10 Gowramma (not examined in this case as a witness) was
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 washing clothes on the small bridge over the public drainage and Accused No.4-Neelamma questioned regarding washing of clothes on the said bridge and brought dirty water from her house and poured over the bridge. Noticing this, when PW2- Premamma questioned Accused No.4, there ensued a quarrel between them and Accused No.4 abused and assaulted them. At that time, deceased Gurudev intervened and tried to pacify the quarrel. In the meanwhile, other accused also came there and scuffle took place between the parties on both sides at the instance of the quarrel between the women folk of both the families and during the scuffle, it is alleged that, Accused No.1 had assaulted deceased Gurudev on backside of his head with MO.1- fire wood and Accused No.2 assaulted on his hand with iron rod causing bleeding injuries to the deceased and Accused No.2 had also assaulted PWs 1, 2 and 4. The aforesaid unfortunate incident happened at the instance of quarrel between PW3 and Accused No.4, resulting in the homicidal death of the deceased. PWs 1 to 3, son, wife and daughter in law of the deceased, in their evidence have clearly deposed regarding the assault by Accused No.1 on the head of the deceased with MO1 and assault by Accused No.2 on the
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 deceased and PWs 3 and 4 with the iron rod-MO.2. The evidence of Dr.Raghuramaiah-PW14, who has conducted post mortem of the deceased on 15.5.2010 at about 1.15 P.M, has deposed that he has conducted examination of the dead body of Gurudev and found the following external injuries :
1. Both nostrils are blood stained.
2. Lacerated wound over the scalp measuring 3" in length 0.5cm breadth depth underlying bone felt extending from vertex towards the occipital region.
3. Abrasion over the right arm 5"X3"
4. Fracture of the right ulnar bone in the middle with lacerated wound over the right forearm 2cm X 1cm with blood stained margins.
5. Abrasion over the left forearm 2"X1"
6. Abrasions over the left lower limb measuring 5"X2", 3"X1" and 6"X2".
7. Abrasions over the right lower limb and thigh measuring 3"X2", 1"X1' and 1"X1'.
8. Abrasions over the chest measuring 2"X3" and 2"X1".
And has further deposed that he has issued post mortem report as per Ex.P9, wherein it clearly depicts that death was due to shock and haemorrhage as a result of injuries sustained on the
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 head and other parts of the body. It is further observed that though Accused No.1 was examined as DW1 and the doctor who treated DW1 was examined as DW2, the said Doctor has only stated that he has treated DW1-Harisha,who came to the hospital with the history of self-fall and in the cross examination, she has admitted that DW1 has not disclosed to her that he has sustained the said injuries in the scuffle between the two families occurred on 15.5.2010 as DW1 had voluntarily revealed that he himself fell on the ground and sustained injury and therefore, she had not registered the case as MLC and in Ex.P7, history of injury was mentioned as, 'self- fall and nil MLC'. Therefore, the contention of the learned Senior Counsel for accused No.1 that, Accused No.1 had also sustained injuries during the scuffle between the members of the family in the unfortunate incident occurred due to flow of drainage water in front of the house of the accused and the deceased, cannot be accepted.
20. The fact remains that, Ex.P9-post mortem report of the deceased clearly depicts that he had sustained external injury No.2 i.e. lacerated wound over the scalp measuring 3" in
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 length, 0.5 cm breadth depth underlying bone felt extending from vertex towards the occipital region. The unfortunate incident happened at the instance of PW3-Anitha, PW2-Prema and Accused No.4-Neelamma, the woman folk of both the families and the language used by them in the said scuffle, the male members of both the family came to the spot. Therefore, it is apparent, the unfortunate incident happened as a result of the scuffle due to sudden provocation and heat of passion. However, the said aspect has not been considered by the learned Sessions Judge and has proceeded to convict Accused No.1 under the provisions of Section 302 of IPC holding that, Accused No.1 is the cause for the homicidal death of the deceased, without there being any evidence, either oral or documentary on record with regard to the motive of Accused No.1 to murder the deceased.
21. It is to be noted that, on earlier 2 to 3 occasions also, there was quarrel between the two families with regard to flow of drainage water and if both the families had sat together and spoke the problem could have been solved and that the unfortunate death of the deceased could not have occurred. As already stated, because of the intervention of male members in
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 the dispute between the women folk of the two families, in the sudden fight and in a heat of passion, the incident has occurred. Thereby, it is a clear case which falls under exception 4 of Section 300 IPC, which reads as under :
Exception 4. "Culpable Homicide is not murder if it is committed without premeditation in a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
22. A careful reading of the aforesaid provision makes it clear that, to invoke said provision, four requisites must be satisfied, namely;
i) It was a sudden fight;
ii) there was no premeditation;
iii) the act was committed in a heat of passion and
iv) the assailant has not taken any undue advantage or acted in a cruel manner.
However, in the present case, there is no material on record to indicate that, the unfortunate incident happened with pre-meditation without any sudden provocation and with a
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 motive, taking advantage of the age of the deceased who was aged 78 years and has assaulted him. But the fact remains is that, the unfortunate incident had happened without pre meditation in a sudden fight between two parties in respect of the flow of drainage water at the instance of PW3-Anitha, PW2- Prema and Accused No.4 - Neelamma and thereby, this is not an extreme case to convict the accused under Section 302 IPC and it is a clear case which falls under Section 304 Part II of IPC. The said aspect of the matter has not been considered by the learned Sessions Judge.
23. On careful reading of the material on record in respect of commission of offence by Accused No.2, in Ex.P1-complaint it is alleged that Accused No.2 assaulted deceased and PW4 with iron rod-MO.2. But, in the complaint by PW1, he has not disclosed on which part of the body Accused No.2 assaulted the deceased or his brother. Very interestingly, PW1 who is the complainant-Lokesh has deposed that Accused No.2 assaulted with iron rod on the deceased. However, PW4 has deposed that Accused No.2 assaulted him but on which part of the body Accused No.2 has assaulted him is not stated either by PW 2 or
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019
3. There is inconsistency in the allegation made in the complaint and evidence and thereby the evidence of PW1 with regard to the alleged assault by Accused No.2 is doubtful.
24. PW2 - Prema, wife of the deceased has also deposed that Accused No.2 assaulted with iron rod-MO2 on PW4 on the back side of the head, but Ex.P10-wound certificate depicts all the accused persons have assaulted and that there were four external injuries and injuries Nos.1 to 3 are simple and injury No.4 is grievous in nature. Thereby there is no consistency in the evidence of PWs 1 and 2.
25. PW3-Anitha, wife of PW4 has also deposed that Accused No.2 assaulted the deceased with iron rod but has not deposed that, Accused No.2 has assaulted her also, as stated by PW1. She has not further disclosed that, Accused No.2 assaulted her and PW4. But the same was spoken to by PW1 in his evidence.
26. PW4-Somashekar also deposed that Accused No.2 assaulted with iron rod on his head. He has not deposed whether Accused No.2 assaulted the deceased and PWs 2 and
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019
3. From the evidence of the aforesaid witnesses, it is noticed that there is no consistency with regard to the alleged assault by Accused No.2 with MO2 either on PWs 2 and 3 or the deceased and thereby, as there are material contradictions not only in the evidence but also in the wound certificate produced as per Exs.P10, 11 and P12 of PWs 1, 3 and 4. It is also relevant to state at this stage that, on perusal of the original complaint-Ex.P1 it is noticed from the records that, at the inception, complaint was given at 7.00 A.M. and subsequently, the same has been tampered as 9.00 A.M. only to bargain the time.
27. PW1-complainant has deposed that he has given the complaint to the police in the house and went to the hospital whereas, PW15-Investigating officer, in the examination-in- chief has deposed that, on 15.5.2010 at 10.00 A.M., he received Ex.P1 in the police station. Thereby there is inconsistency with regard to lodging of the complaint. None of the witnesses have whispered about the involvement of Accused Nos.3 and 4 except general verbatim that, they also assaulted the deceased as well as PWs 1, 2, 3 and 4.
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28. It is further stated that, PWs 1,2, 3 and 4 have deposed about the quarrel between the parties and PW1 deposed that Accused No.1 assaulted with the club on the head of his father and Accused No.2 assaulted with iron rod on his head. The post mortem report-Ex.P9 depicts that death was due to head injury, as spoken to by the Doctor- PW14 and thereby the unfortunate incident has happened resulting in the homicidal death of the deceased.
29. From a careful reading of the provision of Exception (4) of Section 300 IPC, as stated supra, makes it clear that, to invoke said provision, four requisites must be satisfied, namely;
i) It was a sudden fight; ii) there was no premeditation; iii) the act was committed in a heat of passion and iv) the assailant has not taken any undue advantage or acted in a cruel manner.
Admittedly, in the present case, there was a sudden fight between the family of the accused and the deceased at the instance of PWs 3, 2 and Accused No.4 with regard to flow of drainage water on the road in front of the house of the accused. The material on record clearly depicts that, there was no pre-meditation on the part of Accused No.1 and the act
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 committed by Accused No.1 assaulting the deceased with MO.1-wooden club was in a heat of passion when there was a scuffle between the two family members without there being any pre-meditation and he has not taken any undue advantage. Thereby, the present case, does not warrant the extreme punishment under Section 302 IPC, but the case falls under Exception 4 of Section 300 IPC as Accused No.1 inflicted head injury on the deceased without an intention to cause death and thereby, Accused No.1 has to be punished under Section 304 Part II of IPC for a period of seven years with fine and this would meet the ends of justice.
30. It is also relevant to state at this stage that, Accused No.1 in his statement recorded under the provisions of Section 313 Cr.P.C. at question No.61 has admitted that there was quarrel between the deceased and accused family when PW3- Anitha was washing clothes on a small bridge over the public drainage along with her maid servant and when his mother- Accused No.4 questioned regarding flow of dirty water, the quarrel ensued and in that quarrel, Accused No.1 also sustained injury.
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019
31. On re-appreciation of the entire material on record, both oral and documentary evidence, admittedly, there is no specific overt act against Accused Nos.2, 3 and 4 in the alleged homicidal death of the deceased and in the absence of neither specific complaint nor any material document, the learned Sessions Judge is not justified in convicting Accused Nos. 2,3 and 4 under the provisions of Section 326 of IPC.
Ultimately, the fact remains is that, Accused Nos.2 to 4 have participated in the alleged incident along with Accused No.1. Though there is an allegation against Accused No.2 that he has assaulted both the deceased and the other eye witnesses including PWs 1, 2 and 3 with MO2-Iron rod, but there is no material and in view of inconsistency and material contradictions, the learned Sessions Judge was not justified in convicting Accused No.2. But the fact remains is, in the scuffle, Accused No.1 assaulted the deceased with MO1-Firewood Piece resulting in homicidal death of the deceased as stated by PW.14- Dr.Raghuramiah in the Post Mortem report.
32. Therefore, taking note of the fact that, Accused Nos.2 to 4 also participated in the scuffle along with Accused No.1 and on perusal of the injuries sustained by PWs 1, 3 and 4 as
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 per Ex.P10 to 12 - wound certificate wherein, injury No.4 is grievous in nature and the other injuries in respect of PWs 1 and 3 are simple in nature, thereby it could be said that, Accused Nos.2 to 4 are liable to be convicted under the provisions of Section 324 of IPC with imprisonment to the extent of three years or fine. Considering the material on record and taking into consideration the age of Accused No.2, who is aged about 23 years and working as a Quality Control Inspector; Accused No.3 who is aged 57 years and Accused No.4 who is aged 45 years, we are of the considered opinion that imposing fine of Rs.10,000/- to Accused No.2; Rs.5,000/- each on Accused Nos.3 and 4 would suffice in the interest of justice.
33. The learned senior Counsel for the appellants have relied upon by the following judgments in support of the case :
i) In LAKSHMI CHAND AND ANOTHER - vs - STATE OF UTTAR PRADESH reported in (2018) 9 Supreme Court Cases 704, the accused was convicted under the provisions of Section 304 part II of IPC and sentenced to undergo RI for eight years. It was a case where the occurrence took place at the spur of the moment without premeditation and assault was not made on vital part of body.
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 Thereby, the Supreme Court reduced the sentence from 8 years to 2 years.
But in the present case, the assault made by Accused No.1 was on the vital part of the deceased i.e. on the head with MO1-club and thereby the said judgment has no application to the fact situation of the present case.
ii) In ILANGOVAN vs STATE OF TAMIL NADU represented by Inspector of Police reported in (2020) 10 Supreme Court Cases 533, in the said case, the accused was originally convicted under the provisions of Section 304 Part II of IPC and reduced sentence of 5 years RI to 2 years RI under the provisions of Section 324 of IPC as in the said case, there was free fight and the appellant also sustained injuries and had even attempted to make a complaint, and hence, it was modified.
In the present case, as admitted by Accused No.1 himself that, he has not lodged any complaint but his voluntary statement before the Doctor-PW2 was that, he has not whispered regarding the incidence to the Doctor and in support of his defence, he has stated that, he sustained injuries as fell down during the scuffle between the accused and deceased family. Even in the 313 Cr.P.C. statement, accused No.1 has not whispered that he fell down that he has stated to question No.1 that, because there was scuffle between the parties and the incident happened. Thereby, the said judgment is also not applicable to the fact and circumstance of the instant case.
iii) In KALA SINGH AIAS GURNAM SINGH vs. STATE OF PUNJAB reported in (2021) 10 Supreme Court Cases 744, the Hon'ble
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 Apex Court while considering the material on record stated therein, allowed the appeals in part and modified the conviction of the appellant of one under Section 304 Part I to one under Section 304 Part II of IPC and conviction of the appellant to undergo R.I. for a period of 7 years with fine of Rs.10,000/- was maintained.
iv) In STATE OF KARNATAKA vs YENKAREDDY AND OTHERS reported in (2018) 18 Supreme Cases 768 considering the nature of injuries as simple and weapon used, namely, sticks, the Hon'ble Apex court thereby has not interfered with the sentence of imprisonment of five years passed by the Co-ordinate Bench of this Court and the conviction under Section 302 IPC was rightly modified to Section 304 Part II IPC.
34. Taking into consideration the peculiar facts and circumstances of the present case that, the unfortunate incident happened due to the scuffle between the parties on both sides and Accused No.1 assaulted with MO.1-club on the deceased -Gurudev who died on the spot and thereby, it could be inferred that, though the incident has happened in a spur of a moment, the incident could have been avoided if the issue had been resolved between the family members and hence, Accused No.1, being a young aged person of 19 years of hot blood undoubtedly, has forcefully assaulted on the head of the deceased who died on the spot thereby, Accused No.1 is liable
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 to be convicted and sentenced for a period of seven years under the provision of Section 304 Part II of IPC with fine of Rs.5,000/-.
35. For the reasons stated above, we answer point No.1 in the appeal (Appeal No.1974/2018 filed by Accused No.1) partly in the affirmative holding that, Accused No.1 has made out a case to interfere with the impugned judgment and order of sentence passed by the Trial Court, under Section 302 of IPC, is to be altered into one under Section 304 Part II of IPC.
Accordingly, Accused No.1 is liable to be convicted for the offence under Section 304 Part II of IPC for a period of seven years with fine of Rs.10,000/- in default, Accused No.1 has to undergo imprisonment for a period of two years.
Further, we answer point No.2 in the appeals (appeal filed by Accused Nos.2 to 4 in Criminal Appeal No. 2087/2018) in the affirmative holding that, Accused Nos.2 to 4 have made out a case to interfere with the impugned judgment and order of sentence for a period of three years under the provisions of Section 326 of IPC, passed by the Trial Court and they are liable to be convicted under the provisions of Section 324 of IPC.
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019 Accordingly, it is modified that Accused No.2 to 4 are hereby convicted for the offence under Section 324 of IPC and are liable to pay only a fine of Rs.10,000/- by Accused No.2, and Rs.5,000/- each by Accused Nos.3 and 4.
The third point raised in the appeals (Appeal No.501/2019 filed by the State) is answered in the negative holding that the State has not made out any case to convict Accused No.2 to 4 under the provisions of Section 302 of IPC.
36. In view of the above, we pass the following order :
ORDER
i) Crl.A 1974/2018 filed by Accused No.1 is allowed in part;
The impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting Accused No.1 to undergo life undergo life imprisonment under the provision of Section 302 of IPC is modified
ii) The accused No.1 is convicted under the provision of Section 304 Part II of IPC and is sentenced to undergo imprisonment for a period of seven years with fine of Rs.10,000/- and in default to undergo imprisonment for two years.
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019
iii) The impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting Accused Nos.2 to 4 and sentencing to undergo S.I. for three years and to pay fine of Rs.1,000/- each under the provisions of Section 326 of IPC is modified and accused 2 to 4 are here by convicted under the provisions of Section 324 of IPC and are sentenced to pay fine only at Rs.10,000/- by Accused No.2 and Rs.5,000/- each in respect of Accused Nos.3 and 4 respectively in default to undergo imprisonment of one year.
iv) The appeal filed by the State in Crl.A.501/2019 is dismissed as devoid of merits.
v) The impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting Accused Nos.1 to 4 under the provisions of Section 324 of IPC is hereby confirmed.
vi) All the sentences shall run concurrently;
vii) Accused are entitled to the benefit of set-off as contemplated under the provisions of Section 428 of Cr.P.C.
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CRL.A No.1974 of 2018C/W CRL.A No.2087 of 2018 CRL.A No.501 of 2019
viii) The Bail Bonds, if any, executed by Accused Nos.2, 3 and 4 hereby stand cancelled on deposit of fine amount imposed by this Court.
Sd/-
JUDGE Sd/-
JUDGE LNN (from paragraphs 1 to 10(b) rs (from paragraphs 10(c) to 35 List No.: 1 Sl No.: 10