Karnataka High Court
Gowramma vs The State Of Karnataka By on 29 May, 2019
Bench: Ravi Malimath, H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 29TH DAY OF MAY, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.140 OF 2013
CONNECTED WITH
CRIMINAL APPEAL NO.511 OF 2013
CRIMINAL APPEAL NO.798 OF 2013
IN CRIMINAL APPEAL NO.140 OF 2013:
1. GOWRAMMA
WIFE OF LATE SHIVANNA @ SHIVAMURTHY,
AGED ABOUT 52 YEARS,
OCCUPATION: HOUSEHOLD,
RESIDENT OF 2ND CROSS,
KAMAKSHI STREET,
SHIVAMOGGA-577 201.
2. USHA
DAUGHTER OF LATE SHIVANNA @ SHIVAMURTHY,
WIFE OF KIRAN,
AGED ABOUT 24 YEARS,
OCCUPATION: HOUSEWIFE,
RESIDENT OF 2ND CROSS,
KAMAKSHI STREET,
SHIVAMOGGA AND NOW RESIDENT OF
SUNKADAKATTE, KEBBEHALLA,
BENGALURU-560 001.
2
3. TULASAMMA
WIFE OF NANJUNDAPPA,
AGED ABOUT 72 YEARS,
RESIDENT OF 2ND CROSS,
KAMAKSHI STREET,
SHIVAMOGGA-577 201.
4. KIRAN
SON OF ESHA @ VISHWANATHA,
AGED ABOUT 25 YEARS,
OCCUPATION: LORRY DRIVER,
RESIDENT OF MALLIKARJUNA EXTEN.,
4TH CROSS, GOPALA,
SHIVAMOGGA-577 201,
NOW RESIDENT OF SUNKADAKATTE,
KEBBEHALLA,
BENGALURU-560 001. ... APPELLANTS
(BY SRI UMESH P.B., ADVOCATE FOR
SRI R.B. DESHPANDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY DODDAPETE POLICE STATION,
SHIVAMOGGA-577 201.
... RESPONDENT
(BY SRI I.S. PRAMOD CHANDRA, STATE PUBLIC
PROSECUTOR-2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET-ASIDE CONVICTION AND
SENTENCE DATED 31.01.2013/01.02.2013 PASSED BY
THE SESSIONS JUDGE, FAST TRACK COURT-I,
SHIVAMOGGA IN S.C.NO.21 OF 2012 - CONVICTING THE
3
APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 144,147,115 READ WITH SECTION 149
OF IPC. THE APPELLANTS/ACCUSED ARE SENTENCED TO
UNDERGO SIMPLRE IMPRISONMENT FOR 6 MONTHS FOR
THE OFFENCE PUNISHABLE UNDER SECTION 143 READ
WITH SECTION 149 OF IPC. THE APPELLANTS/ACCUSED
ARE SENTENCED TO UNDERGO SIMPLRE IMPRISONMENT
FOR 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 144 READ WITH 149 OF IPC. THE
APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO
SIMPLRE IMPRISONMENT FOR 6 MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 147 READ WITH
149 OF IPC. THE APPELLANTS/ACCUSED ARE SENTENCED
TO UNDERGO SIMPLRE IMPRISONMENT FOR 5 YEARS AND
PAY FINE OF RS.10,000/- EACH, IN DEFAULT TO PAY FINE,
THEY SHALL UNDERGO FURTHER SIMPLRE IMPRISONMENT
FOR 1 YEAR FOR THE OFFENCE PUNISHABLE UNDER
SECTION 115 OF IPC. THE ABOVE SENTENCES SHALL RUN
CONCURRENTLY.
IN CRIMINAL APPEAL NO.511 OF 2013:
BETWEEN:
AVINASH @ ABHI
SON OF LATE SHIVANNA @ SHIVAMURTHY,
AGED ABOUT 21 YEARS,
RESIDENT OF: 2ND CROSS, KAMAKSHI STREET,
SHIVAMOGGA-577 202. ... APPELLANT
(BY SRI HASHMATH PASHA, SENIOR COUNSEL FOR
M/S. HASHMATH PASHA AND ASSOCIATES)
AND:
STATE OF KARNATAKA
BY DODDAPETE POLICE,
SHIVAMOGGA,
SHIVAMOGGA DISTRICT-577 202. ... RESPONDENT
4
(BY SRI I.S. PRAMOD CHANDRA, STATE PUBLIC
PROSECUTOR-2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
31.01.2013 / 01.02.2013 PASSED BY THE SESSIONS
JUDGE, I FAST TRACK COURT, SHIVAMOGGA IN S.C.NO.21
OF 2012 CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302, 144, 147,
115 READ WITH 149 OF IPC.
IN CRIMINAL APPEAL NO.798 OF 2013:
BETWEEN:
STATE OF KARNATAKA
BY DODDAPETE POLICE,
SHIVAMOGGA.
... APPELLANT
(BY SRI I.S. PRAMOD CHANDRA, STATE PUBLIC
PROSECUTOR-2)
AND:
1. GOWRAMMA
WIFE OF LATE SHIVANNA @ SHIVAMURTHY,
AGED ABOUT 51 YEARS,
HOUSEHOLD,
RESIDENT OF: 2ND CROSS,
KAMAKSHI STREET,
SHIVAMOGGA-577 201.
2. USHA
DAUGHTER OF LATE SHIVANNA @ SHIVAMURTHY,
WIFE OF KIRAN,
AGED ABOUT 23 YEARS,
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HOUSEWIFE,
2ND CROSS, KAMAKSHI STREET,
SHIVAMOGGA, AND NOW RESIDENT OF
SUNKADAKATTE,
KEBBEHALLA,
BENGALURU-560 079.
3. TULASAMMA
WIFE OF NANJUNDAPPA,
AGED ABOUT 71 YEARS,
2ND CROSS, KAMAKSHI STREET,
SHIVAMOGGA-577 201.
4. KIRAN
SON OF ESHA @ VISHWANATHA,
AGED ABOUT 24 YEARS,
DRIVER OF LORRY,
RESIDENT OF MALLIKARJUNA EXTENSION
4TH CROSS, GOPALA,
SHIVAMOGGA,
NOW RESIDENT OF SUNKADAKATTE,
KEBBENAHALLI,
BENGALURU-577 201.
... RESPONDENTS
(BY SRI HASHMATH PASHA, SENIOR COUNSEL FOR
M/S. HASHMATH PASHA AND ASSOCIATES,
FOR R-1 TO R-3;
SRI UMESH P.B., ADVOCATE FOR
SRI R.B. DESHPANDE, ADVOCATE FOR R-4)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGEMENT AND ORDER OF
ACQUITTAL DATED 31.01.2013 PASSED BY THE SESSIONS
JUDGE, FAST TRACK COURT-I, SHIVAMOGGA IN
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S.C.NO.21 OF 2012 - ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTION 302 OF IPC.
*****
THESE CRIMINAL APPEALS COMING ON FOR FINAL
HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE
FOLLOWING:
JUDGMENT
It is the case of the prosecution that the house property measuring about 30 x 60 feet situated at Kamakshi Street, II Cross, Shivamogga, earlier belonged to Sri Nanjundappa, namely, the husband of accused No.4. He executed a Will bequeathing the said property to his wife and daughter and his grand-children. Though PW.11 was in occupation of the hind portion of the premises he was not given any share. With regard to the same, a suit for declaration and possession was filed by the wife of Nanjundappa and other accused against her son PW.11 in OS.No.40 of 2004 on the file of Civil Judge(Senior Division), Shivamogga. The suit was decreed in favour of accused No.4, namely the wife of Nanjundappa and others. 7 Aggrieved by the same, PW.11 filed RA No.1532 of 2007. An interim order of status-quo was granted. The appeal was pending on the date of the incident. Because of this civil litigation there was strained relationship between the parties.
2. That on 28-7-2011, at about 12.00 noon there was a quarrel with regard to the house property between the deceased Ravisha who is son of PW.11, Usha who is accused No.3 and her husband accused No.5. At that stage, the case of the prosecution is that accused No.1 had brought the knife and dealt a single blow on the back of the deceased Ravisha, due to which he died on the way to the hospital. PW.1 filed a complaint before the Doddapet Police Station, Shivamogga and a case was registered in Crime No.263 of 2011 for the offence punishable under Sections 143, 144, 147, 302, 115 read with Section 149 IPC. Investigation was taken up. Thereafter, the accused were arrested. A charge sheet was filed. The accused pleaded not guilty and claimed to be tried. In order to 8 prove its case, the prosecution examined 12 witnesses and produced Exs.P-1 to P-17(a) along with 7 Material Objects. By the impugned order, accused Nos. 1 to 5 were convicted and sentenced as follows:-
"Accused No.1 to Accused No.5 are convicted for the offence punishable under Section 144, 147, 115 read with Section 149 IPC.
Accused No.1 is sentenced to undergo imprisonment for life and also to pay a fine of Rs.10,000/- and in default of payment of fine he shall undergo S.I. for further one year for the offence punishable under Section 302 IPC. Further Accused No.1 to Accused No.5 each are sentenced to undergo S.I. for six months for the offence punishable under section 143 read with Section 149 IPC.
Further Accused No.1 to Accused No. 5 each are sentenced to undergo S.I. for 6 months for the offence punishable under Section 144 read with Section 149 of IPC.
Further Accused No.1 to Accused No.5 each shall undergo S.I. for 6 months for the offence punishable under Section 147 read with Section 149 IPC.9
Further Accused No.2 to Accused No.5 each shall undergo S.I. for a period of five years and also to pay a fine of Rs.10,000/- each and in default of payment of fine, they shall each undergo further S.I. for one year, for the offence punishable under Section 115 IPC.
The above sentences shall run concurrently. A.2, A.3 & A.5 are given set off of the period undergone in J.C. under Section 428 Cr.P.C."
Aggrieved by the same, accused No.1 has filed Criminal Appeal No.511 of 2013 and accused Nos.2 to 5 have filed Criminal Appeal No.140 of 2013. The State have filed Criminal Appeal No.798 of 2013 in so far as it relates to acquitting the respondents - accused for the offence punishable under Section 302 of IPC.
3. Heard Sri Umesh P.B., learned counsel appearing for the appellants - accused Nos. 2 to 5 in Criminal Appeal No.140 of 2013 and Sri Hashmath Pasha, learned Senior counsel appearing for the appellant's counsel in Criminal Appeal No.511 of 2013 and 10 Sri I.S.Pramod Chandra, learned State Public Prosecutor - II, appearing for the appellants in Criminal Appeal No.798 of 2013 and the respondents in Criminal Appeal No.140 and 511 of 2013.
a) PW.1 is the brother of the deceased and the complainant. He has deposed that on 28-7-2011 at about 12.00 noon his brother Ravisha, his mother PW.2 Hemavathi were at the house. At that time, the accused called Ravisha from the house. He abused him with regard to the house properties. A quarrel took place. Accused No.3 and Accused No.5 pushed the deceased and himself and his mother. They pushed Ravisha towards the house of Ramanna. Accused No.2 was holding the right hand of the deceased. Accused No.4 caught hold the left hand of the deceased. At that time, accused No.1 went inside the house, brought the knife and pierced the same on the backside of Ravisha. The knife got stuck in the backside of Ravisha. Then the accused threw the handle of the knife on the ground and ran away. He and his mother PW.2 and 11 PWs 4 & 3 were present. The deceased fell down on the ground. He and his mother took him in the auto to the hospital. On the way to the hospital, he died at about 1.00 p.m. He went to the Doddapet Police Station and filed a written complaint. Thereafter, the police came to the spot.
They took the blood sample and the knife which had fallen on the ground and conducted panchanama. In the cross- examination he has deposed that he and his parents were jointly residing. He is working in Airtel Company situated at Shivamogga. That Girisha was working at Mysuru. Accused No.1 was working as a Bus Agent. Accused Nos. 3 & 5 are residing in Bengaluru. He denied the suggestion that at the time of the incident, accused No.4 was at Bengaluru. He further admits that for the last 50 years, there is a dispute with regard to the immoveable property. He has denied that since the Judgment was in favour of the accused, due to enmity that he is deposing falsely before the Court. That he has denied that he was not present at the time of scene of offence.
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b) PW.2 is the mother of the deceased. She has stated that at on 28-7-2011 at about 12.00 noon, the deceased was in the house. PW.1 came out from the house. At that time, Accused No.4 and Accused No.2 called her son Ravisha and abused in a filthy language with regard to the house property in question. Accused No.4 caught hold the left hand of her son and they called accused Nos. 1 & 2 to murder the deceased. Accused Nos.3 and Accused No.5 were pushing her son on the floor. Accused No.1 brought the knife and pierced in the backside of the deceased and accused No.1 tried to pull out the knife which got stuck in the body of the deceased. Then he threw the handle of the knife on the ground and ran away. PW.3 and others were present. She and her son took the injured in the auto and when they were proceeding to Mc.Gann Hospital her son died. She has identified the knife and Karimanisara and pieces of the handle of the knife as well as the pant. There is nothing 13 worthwhile in the cross-examination to disbelieve the evidence of this witness.
c) PW.3 is yet another eye witness. He has stated that on 28-7-2011 at about 12.00 noon when he was coming from Savarline Road towards Kamakshi street there was a galata near the house of PW.11 and PW.2. The accused were also present. There was a quarrel between the accused and the deceased. Accused No.3 and accused No.5 were pushing Ravisha and accused Nos. 2 and 4 were holding the hands of Ravisha. They abetted accused No.1 to bring something and to murder him. Accused No.1 went inside the house and brought the knife and pierced in the backside of Ravisha. PWs 1 & 2 thereafter took the deceased in the auto and proceeded towards the hospital and later-on he came to know that the deceased had succumbed to the injuries. He identifies the knife which is marked as MO.4. There is nothing worthwhile in the cross-examination to disbelieve the evidence.
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d) PW.4 is yet another eye witness. He has deposed that on 28-7-2011 at 11.30 a.m. he went to Ganapathi Temple and after finishing the pooja at 12.00 noon, he went towards the house of his mother. There was a quarrel in front of the house of Eshwarappa. At that time the accused No.3 - Usha and Kiran accused No.5 were quarrelling with the deceased. Accused No. 2 and Accused No.4 caught hold the hands of the deceased. Accused No.3 and Accused No.5 caught hold the collar of the shirt of the deceased. Accused No.2 and Accused No.4 abetted accused No.1 to bring something to put on him. Accused No.1 went inside the house and brought the knife and pierced in the backside of the deceased. They made a hue and cry. The knife got stuck and the handle piece of the knife came out. Then the accused ran away from the spot. PWs.1 & 2 took the injured in the auto and proceeded towards Mc.Gann hospital, Shivamogga. Thereafter he came to know that the deceased succumbed to the injuries. He identified the knife and pieces of the 15 handle. Then the Public Prosecutor treated this witness as hostile and put questions to PW.4 and he has admitted the same in the cross-examination. In the cross-examination by the counsel for the accused he has stated that Ganapathi Temple is situated nearby the road. That he has witnessed the incident from 10 to 15 feet. He has stated before the police that accused Nos. 2 and 4 caught hold the hands of deceased and he has stated before the police that accused Nos. 3 and 5 were pushing the deceased towards the house. He has further deposed that there was quarrel between the accused and PW.11 often in respect of the immoveable properties. He has denied the suggestion that on 28-7-2011, he has not applied for leave. He has denied that he has not witnessed the incident.
e) PW.5 is a panch witness for the inquest.
f) PW.6 has turned hostile.
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g) PW.7 is the Head Constable, who took the
articles belonging to the deceased for chemical
examination.
h) PW.8 is the Doctor. He has deposed that he
has conducted the autopsy on the dead body of the deceased. He has noticed 13 external injuries as narrated therein. He has opined that the death was due to shock and haemorrhage and issued a post-mortem report as per Ex.P-6. He has identified the MO.4 - the knife, MO.5 - pant and MO.7 - the Dollar with thread. He has stated that injury No.1 is vital in nature. Injury Nos. 2 to 13 are simple in nature. Injury Nos.4,5,7 & 11 are not possible if a person falls on the ground. That MO.1 was inserted in the body of the deceased. That MO.4 is one side sharp knife. He has denied the suggestion that if a person is not standing, it is not possible to sustain the stab injuries.
i) PW.9 is the PSI. He has stated that PW.1 appeared before him and filed the written complaint. On the basis of the same, he has registered the case in Crime 17 No.263 of 2011 under Sections 143, 144, 147, 302 read with Section 115 of IPC and sent the FIR to the Court. The complaint is marked as Ex.P-1 and the FIR as Ex.P-8. He has handed over the further investigation to PW.12. PW.12 deputed himself and his staff to search the accused. On 29-7-2011 at about 11.45 p.m., accused Nos.1, 3 and 5 were arrested near Magadi Road at Sunkadakatte, Bengaluru. He took them to Shivamogga. He produced them before PW.12 with report in terms of Ex.P-9.
j) PW.10 is the Head Constable. He brought 5 Material Objects and produced them before PW.12 and submitted the report as per Ex.P-10.
k) PW.11 is the father of the deceased. He has deposed that on 28-7-2011 he had been to Vijayanagar for personal work. At that time, at 12.45 noon his son PW.1 informed through phone that Ravisha had died due to the stab injuries committed by accused No.1. That they are in the hospital and the accused Avinash, Gowramma, Usha, Kiran and Tulasamma had quarrled and that accused No.1 18 pierced the knife in the backside of the deceased and he came to Mc.Gann Hospital and his son had died. He noticed the injuries on the body of the deceased. PWs 1 & 2 were present at the hospital.
l) PW.12 is the Investigation Officer. He has deposed before the Court that on 28-7-2011 he received the case file from PW.9. He conducted the further investigation and filed the charge sheet.
4. Based on these evidences, the trial court was of the view that there is sufficient material and the prosecution has proved its case beyond all reasonable doubt, so far as accused No.1 is concerned for the offence punishable under Section 302 of IPC. So far as other offences are concerned, accused Nos.1 to 5 were convicted for the offence punishable under Sections 143, 144, 147 of IPC.
5. Sri Hashmath Pasha, learned Senior counsel appearing for the appellant's counsel contends that the 19 trial court failed to consider the material and evidence on record while convicting accused No.1. He contends that the incident took place in view of the continued dispute between the deceased and the complainant. That the civil dispute is an admitted fact. Litigations were going on for quite some time. On the date of the incident also, a quarrel took place. There was an altercation between the accused, deceased and others. The incident at the most could be held to be an incident that took place at the heat of passion. It cannot be said that there was any intention to commit the murder nor there was any intention by other accused, leave alone accused No.1 to commit the murder of the deceased. There was no premeditation. It was an incident that took place in the heat of passion in view of the property dispute. He therefore pleads that the conviction of accused No.1 for the offence punishable under Section 302 of IPC is not justified. He requires to be acquitted or at the most he requires to be convicted for a lesser offence than what he has been convicted for. 20
6. Sri Umesh P.B., learned counsel appearing for the appellants - accused Nos.2 to 5 on the other hand contends that accused No.2 is a lady aged 50 years. Accused No.4 is her mother who is aged 70 years. Keeping their age in mind, they cannot be said to be involved in the offence. Furthermore, there are no overt- acts attributed to accused Nos. 2 to 5 with regard to the assault on the deceased. That the cause of death is due to the stab injury. The case of the prosecution is that the stab injury was caused by accused No.1. Therefore, the deceased succumbed to the injuries as a result of the assault made by accused No.1 and not by accused Nos. 2 to 5. Therefore, accused Nos. 2 to 5 are required to be acquitted of all the charges.
7. On the other hand, Sri I.S.Pramod Chandra, learned State Public Prosecutor-II disputes the same. He submits that the trial court was justified in convicting accused No.1 for the offence punishable under Section 302 of IPC. Further he pleads that accused Nos. 2 to 5 were 21 rightly convicted for the offence punishable under Section 302 of IPC. They have played an active role in the commission of the offence. That the act was premeditated and planned. Therefore, he pleads that the conviction be granted so far as accused Nos. 2 to 5 are concerned.
8. Heard learned counsels and examined the records. The material on record would clearly indicate that there was a property dispute between the accused, the deceased and his family members. That the dispute was pending for quite sometime. There were constant quarrels between both sides. As on the date of the incident, a quarrel ensued between the accused and the deceased. The accused came near the house of the deceased and summoned the deceased. When the deceased came out, a quarrel ensued. There was a scuffle between them. Thereafter accused Nos. 3 and 5 pushed the deceased and accused Nos. 2 and 4 held the deceased. The accused No.1 went inside the house and brought the knife and stabbed the deceased. The contention of accused No.1 is 22 that this act took place in the heat of passion. Therefore, the Court would have to consider Exception 4 to Section 300 IPC.
9. The fact that there are disputes with regard to the property is undisputed. There was a sudden quarrel between the two families. The accused came near the scene of offence, summoned the deceased and abused him. When the deceased came, a scuffle took place. At that point of time, the deceased was caught hold of by accused Nos. 2 and 4. Accused Nos. 3 and 5 pushed the deceased on the floor. Thereafter, the accused No.1 went inside the house, took a knife and stabbed the deceased.
10. We have considered the evidence of the eye witnesses PWs. 1 to 4 with regard to the manner in which the incident took place. However in order to appreciate Exception (4) to Section 300 of IPC, it would have to be shown that there was no premeditation. There was a sudden fight which took place in the heat of passion and upon a sudden quarrel.
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11. Premeditation is an act which is committed after a plan or a thought. It is an act which is immediately committed without any pre-plan. On considering the evidence of the eye witnesses PWs. 1 to 4, it can be seen that accused Nos. 2 to 4 were holding the deceased. Accused No.1 was present at the scene of offence. He was exhorted by accused Nos. 2 to 4 to assault the deceased. Thereafter, accused No.1 goes into the house, brings the knife and stabs the deceased. If the intention of accused No.1 was to stab the deceased he would have already been in possession of the knife. When the incident took place, he was not carrying any weapon. It was only when an altercation took place and in the heat of moment he brought the knife and stabbed the deceased. Therefore, considering the evidence on record, it cannot be said that there was a plan or design to commit the offence. The incident took place at that point of time itself. Therefore, it cannot be said that there was a pre- plan or that there was any plan to commit the offence. 24
12. In the given facts and circumstances of the case, we are of the considered view that the conviction of the accused No.1 for the offence punishable under Section 302 of IPC may not be appropriate. As has been held by the Supreme Court in a catena of decisions, that even in case of a single blow on the vital part of the body the same does not necessarily attract Section 302 of the IPC. Based on the manner in which the assault took place and the stab injury inflicted on the deceased, we are of the view that the offence committed by accused No.1 would clearly attract the provisions of Section 304 Part-I of IPC. Therefore, the conviction by the trial court for the offence punishable under Section 302 of IPC is inappropriate. Consequently, the conviction of accused No.1 for the offence punishable under Section 302 of IPC is altered to a conviction under Section 304 part -I of IPC. In the facts and circumstances of the case, we are of the view that it would be appropriate to sentence accused No.1 for a period of 8 years for the said offence along with a fine of 25 Rs.50,000/- and in default of payment of fine, to undergo further Simple Imprisonment for one year.
13. Accused Nos. 2 to 5 were convicted for the offence punishable under Sections 143, 144, 147, 115 read with Section 149 of IPC. On considering the contentions and examining the records, we do not find that the conviction of the accused for the offences punishable under Sections 143, 144, 147, 115 read with Section 149 of IPC can be sustained. Only because, the accused were present at the scene of the offence does not entail their conviction under these Sections. Keeping in mind, the overall considerations and the findings recorded so far as accused No.1 is concerned, we are of the view that the conviction of the accused for the offence punishable under Sections 143, 144, 147 of IPC requires to be set aside. However, so far as the finding under Section 115 of IPC is concerned, we are of the view that there is sufficient material to convict them for the said offence. Hence, the 26 conviction of accused Nos. 2 to 5 for the offence punishable under Section 115 of IPC is confirmed.
So far as sentencing the accused for the offence punishable under Section 115 of IPC is concerned, we are of the view that the sentence awarded by the trial court is far too excessive. Accused Nos. 2 to 4 are women. Accused No.2 was aged 50 years, accused No.3 was aged 22 years, accused No.4 was aged 70 years and accused No.5 was 23 years on the date of the incident. Accused Nos. 2 and 3 have already undergone custody of 4 months and 17 days each. Accused No.4 has undergone the detention for a period of 23 days and accused No.5 for a period of 5 months. As on date accused No.2 would be 60 years and accused No.3 would be 32 years. Keeping in mind the manner in which the incident took place and the fact that accused Nos. 2 and 3 are women, we deem it just and necessary that accused Nos. 2 & 3 be sentenced to undergo Simple Imprisonment for a period of 6 months and to pay a fine of Rs.25,000/- each and in default of 27 payment of fine to undergo further imprisonment for one month.
As on date accused No.4 who is a lady would be 80 years. Hence, we deem it just and necessary that she be sentenced to undergo imprisonment for a period of 30 days along payment of fine of Rs.25,000/- and in default of payment of fine to undergo further imprisonment for a period of one week. Accused No.5 was aged about 23 years as on the date of the incident and would be 33 years as on date. Therefore, we deem it just and necessary to sentence him to undergo imprisonment for a period of 6 months and to pay fine of Rs.25,000/-.
For the aforesaid reasons, we pass the following order:-
1) Criminal Appeal No.798 of 2013 is dismissed.
2) Criminal Appeal No.140 of 2013 is partly allowed. Appellants 1 to 4 namely, accused Nos. 2 to 5 are acquitted of the offence punishable under Sections 143, 144, 147 read with Section 149 of IPC. They are 28 convicted for the offence punishable under Section 115 of IPC. Accused Nos. 2 and 3 are each sentenced to undergo Simple Imprisonment for a period of 6 months and to pay a fine of Rs.25,000/- each and in default of payment of fine to undergo further imprisonment for a period of one month. Accused No.4 is sentenced to undergo imprisonment for a period of 30 days along with payment of fine of Rs.25,000/- and in default of payment of fine to undergo further imprisonment for a period of one week.
Accused No.5 is sentenced to undergo imprisonment for a period of 6 months and to pay fine of Rs.25,000/- and in default of payment of fine to undergo further imprisonment for a period of one month.
3) Criminal Appeal No.511 of 2013 is partly allowed. The conviction of accused No.1 for the offence punishable under Section 302 of IPC, is set aside. Appellant No.1 is convicted for the offence punishable under Section 304 Part-I IPC. He is sentenced to undergo imprisonment for a period of 8 years and to pay fine of 29 Rs.50,000/- and in default of payment of fine, to undergo further Simple Imprisonment for a period of one year. He is acquitted of the offence punishable under Sections 143, 144, 147 read with Section 149 of IPC.
The accused are entitled for a set off under Section 428 of Cr.P.C., for the period spent in custody in this case.
Appeals are disposed off accordingly.
Out of the fine amount to be deposited, the same shall be paid to PW.2 and PW.11 who are the mother and father of the deceased.
Sd/- Sd/-
JUDGE JUDGE
Rsk/-