Karnataka High Court
Bochhegowda vs State Of Karnataka on 6 November, 2020
Equivalent citations: 2021 (2) AKR 273
Bench: B.Veerappa, K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.724 OF 2015
BETWEEN:
1. BOCHHEGOWDA
S/O. LATE CHANDREGOWDA,
AGED ABOUT 65 YEARS,
RESIDING AT NERALAKERE VILLAGE,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT - 36.
2. PRADEEP
S/O. BOCHHEGOWDA,
AGED ABOUT 26 YEARS,
WORKING AT V.T.T.L. FACTORY,
MYSORE,
RESIDING AT NERALAKERE VILLAGE,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT - 36.
... APPELLANTS
(BY SRI HASHMATH PASHA, SENIOR COUNSEL,
ALONG WITH SRI KALEEM SABIR, ADV.)
2
AND:
STATE OF KARNATAKA
BY ARAKERE POLICE,
MANDYA DISTRICT - 36,
REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR.
... RESPONDENT
(BY SRI S. RACHAIAH, H.C.G.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CR.P.C. PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENT OF CONVICTION AND ORDER ON
SENTENCE DATED 3-6-2015 PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA,
SITTING AT SRIRANGAPATNA, IN S.C. NO.71 OF 2011
CONVICTING THE APPELLANTS/ACCUSED NOS.1 AND 2
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302
AND 324 OF THE IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 22-10-2020 AND COMING
ON FOR PRONOUNCEMENT THIS DAY, NATARAJAN, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellants- accused Nos.1 and 2 against the impugned judgment of conviction and order on sentence dated 3-6-2015 passed in Sessions Case No.71 of 2011 on the file of the III Additional District and Sessions 3 Judge, Mandya, sitting at Srirangapatna (hereinafter referred to as 'trial Court') for having convicted the appellants for the offences punishable under Section 302 and 324 of the Indian Penal Code (for short, 'the IPC'). The appellants are sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of six months for the offence punishable under Section 302 of the IPC and sentenced to undergo simple imprisonment for one year for the offence punishable under Section 324 of the IPC.
2. For the sake of convenience, the parties herein shall be referred to their status before the trial Court.
3. The case of the prosecution is that Arakere Police registered a case against accused Nos.1 and 2 4 for the offences punishable under Sections 302 and 307 read with Section 34 of the IPC on the complaint filed by P.W.1. It is alleged by the complainant that his father-Madegowda (hereinafter referred to as 'the deceased') purchased the land, which is adjacent to the land of accused No.1, and planted tomato saplings. Prior to one month of the incident, the land was surveyed and boundary was fixed. On 16-8-2010 at 9:30 a.m., his uncle's son-Jayaramu had been to the land to supply water to the crop, at that time, accused Nos.1 and 2 picked up quarrel and questioned as to why they have planted tomato saplings in their land and they removed the tomato saplings. At that time, the complainant and the deceased came to the land and asked them, why they quarreled with Jayaramu as they have planted tomato saplings only after surveying the land and fixing the boundary. When the deceased tried to 5 replant the tomato saplings, accused Nos.1 and 2 picked up quarrel with an intention to murder the deceased, assaulted on his head and other parts of the body with the club and caused bleeding injury, due to which, the deceased lost his conscious. When the complainant came to rescue his father, from the same club, accused Nos.1 and 2 assaulted him on his head and he also sustained bleeding injury. Both of them were shifted to the Hospital. Since the deceased had severe head injury, on advise of the Doctor, he was shifted to NIMHANS, Bengaluru. Later, the deceased was shifted back to Mandya District Hospital, where he succumbed to the injuries. After intimation to the Police by the Hospital Authorities, the Police have obtained complaint from P.W.1 as per Ex.P.1 and registered a case against the accused. Thereafter, the accused were arrested and sent to judicial custody. After 6 completion of the investigation, the Police filed charge-sheet against accused Nos.1 and 2 for the offences punishable under Sections 302 and 307 read with Section 34 of the IPC.
4. The J.M.F.C. after taking cognizance committed the case to the Sessions Court. The learned trial Judge framed the charges against accused Nos.1 and 2, they pleaded not guilty and claimed to be tried.
5. In order to prove the case of the prosecution, it examined twenty witnesses as P.W.1 to P.W.20, got marked thirty-six documents as Ex.P.1 to Ex.P.36 and eleven material objects as M.O.1 to M.O.11. During cross-examination of prosecution witnesses, accused Nos.1 and 2 got marked seven documents as Ex.D.1 to Ex.D.7. After completion of evidence of the prosecution witnesses, 7 the statements of the accused as contemplated under Section 313 of the Code of Criminal Procedure were recorded and not lead any defence evidence.
6. After considering the oral and documentary evidence on record, the learned trial Judge found accused Nos.1 and 2 guilty for the offences punishable under Sections 302 and 324 of the IPC and sentenced them to undergo imprisonment as stated supra. Being aggrieved by the same, accused Nos.1 and 2 preferred this appeal.
7. Heard the arguments of the learned senior counsel for accused Nos.1 and 2 as well the learned Additional State Public Prosecutor for the respondent-State and perused the entire material including the original record carefully. 8
8. Sri Hashmath Pasha, learned senior counsel appearing for accused Nos.1 and 2, has contended that impugned judgment of conviction and order on sentence passed by the trial Judge is not sustainable in law. Quarrel took place between the complainant and the accused, when the deceased tried to replant the tomato saplings. They have also lodged a counter complaint in Crime No.180 of 2010 which has been registered for the offences punishable under Sections 341, 504, 114, 324 and 307 read with Section 34 of the IPC. Even in Ex.P.26-F.I.R., they have not mentioned about the injuries sustained by accused Nos.1 and 2. Injuries sustained by accused Nos.1 and 2 have been suppressed by the prosecution and they have not whispered anything about it. Accused No.1 had sustained head injury and accused No.2 had sustained two serious cut lacerated wound on his 9 head which have been noted by P.W.11-Dr. Habeeb Jan in the District Hospital, Mandya, and the Wound Certificate of accused No.2 is marked as Ex.D.7.
9. The learned senior counsel further contended that in the complaint, they have stated that accused Nos.1 and 2 assaulted the complainant and his father. However, they have suppressed the fact that the complainant and his father also assaulted the accused. Charge-sheet clearly reveals that there was case and counter-case registered against both of them. Accused Nos.1 and 2 sustained simple injuries. While the deceased assaulting accused No.1, accused No.2-being the son of accused No.1, in order to protect his father would have assaulted the deceased and in order to protect themselves, there would have been self 10 defence against the deceased and P.W.1. The weapon used by the accused is club, which was found on the spot and there is no premeditation or intention on the part of accused Nos.1 and 2 to commit the murder of the deceased. The entire incident took place due to boundary dispute of the land and the deceased himself is the cause of the assault.
10. The learned senior counsel further contended that the Investigating Officer has also not stated about the injuries sustained by the accused persons, but the accused were arrested in the Hospital, after taking treatment. The genesis of the incident or the origin of the incident has been suppressed by the prosecution. The Investigating Officer has not properly investigated the case and it is one side version. The trial Court, though 11 conducted trial of the counter-case, committed error in holding that these accused persons are aggressors for the incident. When the prosecution not explained the genesis of the incident, this Court cannot come to the conclusion that who used the force for the first time, but evidence on record goes to show that the accused assaulted the deceased as a self defence, otherwise, the accused would have been killed by P.W.1 and the deceased. He further contended that there is delay in registering the case. After due deliberation, the complaint has been registered, which is highly doubtful. From the inception, there is suppression of facts and false version has been projected with interested witnesses and truth cannot be ascertained. Therefore, the benefit of doubt shall be extended to the accused. He further contended that it is very difficult to come to a conclusion that any weapon used for self 12 defence, when there is a threat for life, the right of self defence cannot be considered as an offence, thereby, serious miscarriage of justice is committed by the trial Court. Therefore, the impugned judgment of conviction and order on sentence is liable to be set aside. Hence, he prayed for allowing the appeal.
11. Per contra, Sri S. Rachiah, learned High Court Government Pleader, has justified the impugned judgment of conviction and order on sentence passed by the trial Court and contended that there are eyewitnesses to the incident, apart from the injured eyewitnesses-P.Ws.1 and 2. The accused have also filed a counter-complaint against the prosecution witnesses. They have also not whispered anything about the assault on the deceased and P.Ws.1 and 2, which goes to show that 13 they have also suppressed the fact. Land has been purchased by the deceased about five years back and about one month prior to the incident, the deceased surveyed the land, refixed the boundary and thereafter, he has planted tomato saplings. But on the date of the incident, accused Nos.1 and 2 picked up quarrel and questioned why they have planted tomato saplings in their land and they removed the tomato saplings. At that time, the complainant and the deceased came to the land and asked them why they quarreled with Jayaramu as they have planted tomato saplings only after surveying the land, but the accused not accepted the explanation and they picked up quarrel, when the deceased tried to replant the tomato saplings, at that time, accused Nos.1 and 2 with an intention to murder the deceased assaulted on his head and other parts of the body with the club and caused 14 bleeding injury and when P.W.1 tried to rescue P.W.2, the accused have also assaulted P.W.1, which clearly goes to show that the accused persons are the aggressors for the incident.
12. The learned High Court Government Pleader further contended that the accused have objected the deceased to plant the crop by disputing the boundary in spite of survey being done by the deceased. Even if any error committed by the Investigating Officer, the victim shall not make to suffer. Merely, delay in lodging the complaint that itself is not a ground to reject the case of the prosecution. Incident took place at 10:00 a.m., the deceased was shifted to Mandya District Hospital and on examination, Doctor advised to take him to NIMHANS, Bengaluru, and P.W.1 also admitted in the Hospital by sustaining head injury. Such being 15 the case, intimation is sent to the Police by the Hospital Authorities and the Police visited the Hospital, recorded the statement of P.W.1, but not registered the case immediately, which is not the fault on the part of P.W.1. Eyewitnesses and adjacent owners of the land have categorically stated about the assault made on the deceased by the accused. Post-Mortem examination report goes to show that it is homicidal death. Therefore, he sought to dismiss the appeal.
13. In view of the rival contentions urged by the learned senior counsel for accused Nos.1 and 2 and the learned High Court Government Pleader for the respondent-State, the only point that arises for our consideration in this appeal is;
16
Whether accused Nos.1 and 2 have made out a case to interfere with the impugned judgment of conviction and order on sentence passed by the trial Court under Sections 302 and 324 of the IPC in the facts and circumstances of the case?
14. In order to re-appreciate the evidence on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon;
i. P.W.1-Shivanna is the son of the deceased and the injured. He has given evidence in support of his complaint to the Police and he also speaks about the assault made by the accused to his father and caused injury. He has identified M.Os.1 to 3- clubs and Exs.P.5 to P.8-photos of the dead body of 17 his father. He has supported the case of the prosecution.
ii. P.W.2-Jayaramu is the grand-son of the deceased and one of the injured eyewitnesses. He has stated on 16-8-2010 at 7:30 a.m., he had gone to the land to supply water to the crop, at that time, the accused objected. He informed the same to P.W.1 and the deceased and when they came to the land, the incident took place. He has supported the case of the prosecution.
iii. P.W.3-Marigowda is another eyewitness to the incident. He has stated that on 16-8-2010 morning, he was going towards his uncle's land, while so going, he saw the assault made by the accused on the deceased. He snatched the club from the accused. Thereafter, the Police came to the spot and drawn Mahazar-Ex.P.3 and the Police 18 seized M.Os.1 to 3-clubs which was shown by him, M.O.6-blood stained mud and M.O.7-mud. He has supported the case of the prosecution.
iv. P.W.4-Kempamma is another eyewitness to the incident. She has stated that she was working in the adjacent land where the incident took place. She has also spoken about the assault made by the accused on the deceased. She has supported the case of the prosecution.
v. P.W.5-Mahesh is the brother-in-law of the deceased. He has stated that on 16-8-2010, he came to know about the incident through P.W.2. He went to the land and found the deceased lying by sustaining injury. He shifted the deceased in his motorbike to Village bus stand and from there, ambulance was arranged to Mandya Hospital and on advise from the Doctor, the deceased was shifted to 19 NIMHANS, Bengaluru, and again the deceased was shifted back to Mandya Hospital and on the same day, the deceased succumbed to the injuries. The Police have seized the clothes of the deceased under Ex.P.10 and he has identified M.O.8 to M.O.11 are the clothes of the deceased.
vi. P.W.6-Kumara is the photographer, who took the photos of the dead body of the deceased and identified the same as Exs.P.5 to P.8.
vii. P.W.7-Dr. S.J. Swamy, Casualty Medical Officer, Mandya Hospital, has stated that on 16-8-2010 at 4:15 p.m., the Doctor, who had admitted P.W.1, told to issue intimation to the Police. Accordingly, he issued Ex.P.11-Admission Memo. On the same day, the deceased was referred to NIMHANS and he has given intimation to the Police with regard to the admission of the deceased 20 as per Ex.P.12. Arkere Police gave requisition to record the statement of P.W.1 as per Ex.P.13 and he also signed on the complaint as per Ex.P.1.
viii. P.W.8-Sunil, Assistant Engineer, who prepared the sketch of scene of occurrence as per Ex.P.14.
ix. P.W.9-Puttamadu is the brother's son of the deceased. He has stated that on 17-8-2010, he has seen dead body of the deceased in the Hospital and he got to know that the accused have assaulted the deceased.
x. P.W.10-Shivu is the inquest panch witness. He has stated that the Police have conducted inquest panchanama on the dead body of the deceased as per Ex.P.16. He has also identified Exs.P.5 to P.8 are the photos of the dead body of the deceased. 21
xi. P.W.11-Dr. Habeeb Jan, Medical Officer, Mandya District Hospital, who examined P.Ws.1, 2, the deceased and accused Nos.1 and 2. On 16-8-2010 at 11:00 a.m, while he was in emergency ward, P.W.1 came with the history of assault, he was admitted to the Hospital and issued Ex.P.17- Wound Certificate. He also examined the deceased and found lacerated injury over head on the deceased. On the next date, i.e. on 17-8-2010, P.W.2 came with history of assault and noted two tenderness and issued Ex.P.19-Wound Certificate. He has also stated that on 16-8-2010, he has examined accused No.2 and found two injuries and issued Ex.D.7-Wound Certificate.
xii. P.W.12-Siddaiah, Head Constable, was deputed to District Hospital to keep surveillance of accused No.2 and after discharge from the Hospital, 22 he apprehended accused No.2 and produced before the Investigating Officer and gave report, which is not seriously disputed by the defence.
xiii. P.W.13-Chandrashekar, Police Constable, was deputed to trace accused No.1 and on 23-8-2010, he apprehended accused No.1 at Bannuru bus stand and produced before the Investigating Officer.
xiv. P.W.14-Dr. Puttaswamy, District Hospital, Mandya, who conducted Post-Mortem on the dead body of the deceased and issued Post-Mortem examination report as per Ex.P.22. After examining M.Os.1 to 3, he also gave opinion as per Ex.P.23.
xv. P.W.15-Mahadeva, Police Constable, was deputed to watch the dead body of the deceased and after Post-Mortem examination, he received the 23 clothes of the deceased and produced before the Investigating Officer. His evidence is only formal in nature.
xvi. P.W.16-Govindaraju, Police Constable, who accompanied Circle Inspector of Police to the scene of occurrence and drawn mahazar as per Ex.P.9. He speaks about the seizure of M.Os.1 to 3- clubs, M.O.6-blood stained mud and M.O.7-mud.
xvii. P.W.17-Chikkaraju, Assistant Sub- Inspector of Police, who visited the Hospital on 16-8-2010, after receiving intimation from the Doctor as per Exs.P.11 and P.12. He gave requisition as per Ex.P.13 to record the statement of P.W.1 and recorded the statement as per Ex.P.1 and came to Police Station and handover the same to Sub-Inspector of Police. On the next day, i.e. on 17-8-2010 at 6:45 a.m., Sub-Inspector of Police received information about the death of the 24 deceased, he went to the Hospital, collected the death memo and converted the offence into Section 302 and 114 of the IPC and second statement of P.W.1 was recorded by him as per Ex.P.2. He also speaks about the fact that accused No.2 was also admitted in the same Hospital.
xviii. P.W.18-Nagaraju, Sub-Inspector of Police, received information from the District Hospital regarding admission of P.W.1 and the deceased. He sent P.W.17 and Head Constable No.214 to record the statement of P.W.1 and identified the statement of P.W.1 as per Ex.P.1 and upon which F.I.R. is registered in Crime No.179 of 2010 as per Ex.P.26. He has also stated that he has recorded the statement of accused No.2 in the Hospital and registered a case in Crime No.180 of 2010 (counter-case). In respect of both the cases, he 25 visited the spot and drawn mahazar as per Ex.P.9 and seized M.Os.1 to 3-clubs, M.O.6-blood stained mud and M.O.7-mud. He has also prepared one more mahazar in respect of counter-case. Thereafter, he visited the Hospital and seized clothes of P.W.1 under Ex.P.3, M.O.4-towel and M.O.5-shirt.
xix. P.W.19-Mahadeva, Police Constable, who carried the F.I.R. in Crime No.179 of 2010 to the Court.
xx. P.W.20-Prabhakar Rao, Circle Inspector of Police, who conducted the investigation and filed charge-sheet in case and counter-case.
15. On perusal of the evidence of the prosecution witnesses and the documents relied by the accused and the defence taken by the accused in 26 the cross-examination is pertaining to counter-case registered against P.Ws.1, 2 and the deceased.
16. The substance of the prosecution is that the deceased had purchased a portion of land from the brother of accused No.1 and a month prior to the incident, the deceased surveyed the land and fixed the boundary. Some of the land of the accused has gone to the deceased under the survey. After fixation of the boundary, the deceased and P.W.1 have cultivated tomato saplings, but the accused were disputing the boundary stating that the deceased planted tomato saplings in their land. The things stood thus that, on 16-8-2010 morning, P.W.2 had gone to the land of the deceased to supply water to the crop, at that time, accused Nos.1 and 2 were present in the adjacent land and questioned P.W.2 as to why they have planted tomato saplings 27 in their land and asked the deceased to come to that place. P.W.1 and his father came to the land and told the accused that boundary has been fixed after survey from the Revenue Department. Such being the case, the accused have no right to object for planting the crop in his land. The accused have plucked the crop which was planted by the deceased within his boundary and when the deceased tried to replant the tomato saplings stating that it is within his boundary which was purchased by him, at that time, accused Nos.1 and 2 assaulted the deceased on his head with club. P.W.1-son of the deceased tried to rescue the deceased, the accused also assaulted him and caused injury. When P.W.2 also came to rescue, even he was also assaulted by the accused. Then, P.W.1 with the help of Mahesh shifted the deceased to the Hospital and the Hospital Authorities referred the deceased to NIMHANS, 28 Bengaluru, and later, they shifted back the deceased to District Hospital and he died in the Hospital. A case has been registered by the Police against accused Nos.1 and 2 in Crime No.179 of 2010.
17. It is the case of the accused that on the same day of the incident, i.e. on 16-8-2010, P.Ws.1 and 2, another person along with the deceased, came to the spot, picked up quarrel with accused Nos.1 and 2 and assaulted them with sickle and club and caused injury to them. Accused Nos.1 and 2 were also admitted in the Hospital and they have also lodged a complaint against P.Ws.1, 2 and the deceased. A case in Crime No.180 of 2010 has been registered in the same Police Station. Based upon the counter-case, trial was held and the trial Court acquitted P.Ws.1 and 2 in Sessions Case No.59 of 2012. Against the said acquittal, accused Nos.1 and 29 2 have filed an appeal before this Court in Criminal Appeal No.1411 of 2015.
18. On the background of the case and counter-case, and on perusal of the lodging of the complaint by P.W.1 against the accused and accused No.1 lodging counter-complaint against P.W.1 is pertaining to same place of occurrence which goes to show that incident is admitted one. It is not in dispute that the deceased sustained head injury and he was shifted to the District Hospital and was referred to NIMHANS, Bengaluru and again he was shifted back to District Hospital on the same day night. It is not in dispute that the Police, after receiving the information from the District Hospital, visited the Hospital, obtained the statement of P.W.1 and registered a case in Crime No.179 of 2010 for the offences punishable under Sections 307 and 324 30 read with Section 34 of the IPC. After receiving the information about the death of the deceased, the Police again obtained statement of P.W.1 as per Ex.P.2 and based upon that statement, the Police have converted the offence into Sections 302 and 114 of the IPC as additional offence against the accused. In view of the case and counter-case arising out of the same incident, the incident that occurred on 16-8-2010 has been admitted by both the parties. However, it is pertinent to note that P.Ws.1 and 2 have not stated anything about the injury sustained by the accused in the same incident and the complaint shows that the accused have assaulted P.Ws.1, 2 and the deceased. Whereas accused No.1 also lodged a counter-complaint against the deceased, P.Ws.1 and 2 stating that they have assaulted them with club and they sustained injury. They have also not stated anything about 31 the injury sustained by P.Ws.1 and 2 and caused head injury to the deceased, which resulted in death.
19. In support of his arguments, the learned senior counsel for accused Nos.1 and 2 has relied upon the following judgments;
i. The Hon'ble Supreme Court in the case of STATE OF M.P. v. MISHRILAL (DEAD) AND OTHERS reported in (2003) 9 SCC 426 has held that when the Investigating Officer has submitted challan against both the parties, both the complaints cannot be said to be right. Either one of them must be false. In such a situation, legal obligation is cast upon the Investigating Officer to make an endeavour to find out the truth and to cull out the truth from falsehood. If the Investigating Officer fails to discharge the obligation, the same will result in 32 grave miscarriage of justice. It further held that when case and counter-case arising out of the same incident, it would be just, fair and proper to decide both the cases together by the same Court in order to avoid conflicting opinions.
ii. The Hon'ble Supreme Court in the case of LAKSHMI SINGH AND OTHERS v. STATE OF BIHAR reported in (1976) 4 SCC 394 has held that failure of prosecution to explain the injuries caused to the accused, the case might be one of private defence.
iii. The Hon'ble Supreme Court in the case of STATE OF RAJASTHAN v. RAJENDRA SINGH reported in 1998 SCC (Cri) 1605 has held that if any omissions and contradictions in respect of the statements by the prosecution witnesses regarding snatching of the weapon and suppressing the fact 33 and sustained injury by the accused, then the benefit of doubt shall be extended.
iv. The Hon'ble Supreme Court in the case DEO NARAIN v. THE STAE OF U.P. reported in (1973) 1 SCC 347 has held that commencement of right of private defence, continuance of the right to private defence of the body, if any injury caused to the prosecution witness as a private defence is not an offence.
v. The Hon'ble Supreme Court in the case of NATHILAL AND OTHERS v. STATE OF U.P. AND ANOTHER reported in 1990 (Supp) SCC 145 has held regarding the procedure to be followed in a case and counter-case. The judgments should be pronounced by same Judge one after the other. 34
vi. A Co-ordinate Bench of this Court, in the case of THE STATE OF KARNATAKA v. BALAPPA BHAU VADAGAVE AND OTHERS reported in IRL 1984 KAR 21, has taken a similar view that non-explanation of the injuries sustained by the accused at the occurrence or in the course of altercation.
20. We have carefully perused the judgments relied by the learned senior counsel for accused Nos.1 and 2 with regard to case and counter-case, principles of suppression of material facts, injuries sustained by the accused, the benefit of doubt to be extended and the duty of the Investigating Officer to investigate the case and counter-case.
21. By keeping all the principles in mind and now, coming to the case on hand, P.W.1- complainant has given evidence in support of his 35 complaint filed before the Police as per Ex.P.1. According to him, on the date of the incident, i.e. on 16-8-2010, P.W.2 had gone to the land to supply water to the crop belonging to them. It is not in dispute that the deceased planted tomato saplings in his land after surveying the land from the Revenue Department by fixing the boundary. But the accused persons disputing the boundary that a portion of the land belongs to them, when P.W.1 and the deceased went to the spot and questioned why they quarreled with P.W.2, at that time, accused Nos.1 and 2 plucked out the tomato saplings and when the deceased tried to replant the tomato saplings, accused Nos.1 ad 2 took the club and assaulted the deceased and immediately, when P.Ws.1 and 2 went to rescue the deceased, they have also assaulted them. He has categorically stated that accused No.2 assaulted with a club and after 36 the deceased fell down, he assaulted on chest and other parts of the body. Immediately, adjacent land owners and workers in the land came to the spot. P.W.3, Ramegowda, Madegowda and Puttaswamy snatched the club from accused Nos.1 and 2 and pacified the quarrel. His uncle-Mahesh came and took the deceased in his bike to village bus stand, from there in an ambulance to Mandya District Hospital. His father was referred to NIMHANS, Bengaluru, and from there, he was shifted back to Mandya District Hospital. He has also stated that the Police came to the Hospital and recorded his statement as per Ex.P.1.
22. During cross-examination, the learned counsel for the accused made lengthy cross- examination and suggested that P.Ws.1, 2 and the deceased picked up quarrel with them and P.W.1 37 tried to assault accused No.1 with club, when he escaped, the hit fall on the deceased and he sustained injury and the same was denied by P.W.1. He further suggested that his father abused accused No.1 in filthy language and P.Ws.1, 2 and the deceased conspired and assaulted accused No.1. P.W.2 instigated the deceased to assault accused No.2 and P.W.1 tried to assault accused No.2 with chopper and accused No.2 fell down and became unconscious. All these suggestions were denied by P.W.1. Further suggested that P.W.1 sustained injury in the altercation and nobody assaulted P.W.2. Except suggestions, nothing has been elicited in the cross-examination. On the other hand, P.W.1 has also admitted that he sustained injury while altercation. Injury caused to the deceased and P.W.1 has not been seriously disputed by the prosecution. Even in the cross-examination, 38 the learned counsel for the accused has not at all set up any defence that in order to prevent the assault on the accused as a private defence, they assaulted P.Ws.1 and 2. In the entire cross-examination, it is clearly elicited that the accused have plucked out the tomato saplings and when the deceased tried to replant the tomato saplings, the quarrel took place. P.W.1 has categorically stated about the assault made by accused Nos.1 and 2 on his father, P.W.2 and on him.
23. To support the evidence of P.W.1, P.W.2 has also given evidence and spoken about the assault made on the deceased, P.W.1 and on him. He has stated that P.W.1 and the deceased came to the land and questioned the accused for removing the tomato saplings, at that time, when the deceased tried to replant the tomato saplings, the accused 39 assaulted the deceased. P.Ws.1 and 2 have stated that during quarrel, P.Ws.3, 4, Ramegowda, Madegowda and Puttaswamy snatched the club from accused Nos.1 and 2 and pacified the quarrel.
24. P.W.3-Marigowda also deposed before the Court that he has witnessed the incident of assault made by the accused on P.Ws.1, 2 and the deceased. He came and snatched the club from the accused and pacified the quarrel. He has stated that due to the hit by the accused, the deceased fell down and became unconscious. He called the ambulance and shifted the deceased to the Hospital. The evidence of this witness is not impeached in the cross- examination to disbelieve his evidence.
25. P.W.4-Kempamma is an independent eyewitness, who is working in the adjacent land also supported the case of the prosecution. She has 40 spoken about the assault made by the accused on P.Ws.1, 2 and the deceased. She has also identified the club. Nothing has been elicited in the cross- examination to disbelieve her evidence.
26. Evidence of P.Ws.1 to 4 also corroborates with the evidence of P.W.5, who is the relative of the deceased, who came to spot, after the incident and shifted the deceased in his motorbike to the village bus stand, thereafter shifted the deceased in ambulance to Mandya District Hospital and on advise of the Doctor, the deceased was shifted to NIMHANS, Bengaluru, and the deceased was again shifted back to Mandya District Hospital and death of the deceased on the same night at 11:00 p.m. This witness also speaks about the presence of eyewitnesses, i.e. P.Ws.1 to 4 and Puttaswamy at the spot. It is clear from the evidence of P.Ws.1 to 5 that 41 the presence of the said eyewitnesses at the spot is not in dispute. Snatching of clubs from the accused by in P.Ws.3, 4 and others is clearly spoken by P.Ws.1 and 2 and the same is corroborated with their evidence that the accused have assaulted P.Ws.1, 2 and the deceased and caused injury to them. Later, they have been shifted to the Hospital. Evidence of P.W.7-Dr. Swamy goes to show that after injured were admitted in the Hospital, he sent intimation to the Police as per Ex.P.11 and the Police came to the Hospital. The deceased was referred to NIMHANS, Bengaluru. On the same day at 6:30 p.m., the Police requested him to give certificate regarding fit condition state of mind of P.W.1 for recording statement and he has given certificate that P.W.1 was in a fit condition to give statement. Thereafter, the statement of P.W.1 has been 42 recorded and he has identified the same as Ex.P.1 and his signature as Ex.P.1(b).
27. Evidence of P.W.7 is corroborated with the evidence of P.W.17-A.S.I., who has stated that he has received intimation from the Hospital and at the request of P.S.I., he visited the Hospital and gave requisition as per Ex.P.13 and recorded the statement of P.W.1 and he came back to the Police Station and handover the same to P.S.I. Subsequently, on 17-8-2010, he also went to the Hospital and collected death memo of the deceased and handover the same to P.S.I. Then, P.S.I. on the basis of death memo, recorded the statement of P.W.1 and based upon the statement, converted the offence into Section 302 of the IPC. Nothing has been elicited to disbelieve his evidence for having visited the spot and recording the statement of P.W.1 43 in the presence of P.W.7. P.W.17 has admitted that accused No.2 was also admitted in the Hospital, but does not remember in which ward, he was admitted. He has admitted the presence of accused Nos.1 and 2 in the Hospital. Merely this witness has not recorded the statement of accused Nos.1 and 2 that itself is not a ground to disbelieve his evidence as on the request of P.S.I on the memo sent by the Doctor, he went to the Hospital and recorded the statement of P.W.1. Evidence of P.W.17 corroborates with the evidence of P.Ws.1 and 2 and lodging of the complaint as per Ex.P.1.
28. P.W.18-P.S.I. has deposed that he has received the complaint from P.W.1 through P.W.17 and registered the F.I.R. in Crime No.179 of 2010 as per Ex.P.26. He further deposed that on the same day, a complaint of accused No.1 has been registered 44 in Crime No.180 of 2010. Thereafter, on 17-8-2010, he visited the spot and P.W.3-one of the eyewitnesses to the incident shown the spot. He prepared mahazar in the presence of panch witnesses. P.W.3 showed M.Os.1 to 3-clubs used by the accused for assaulting P.Ws.1, 2 and the deceased. Later, he received information through wireless regarding the death of the deceased. He identifies Ex.P.9 is the mahazar drawn by him. He further stated that he has also prepared spot mahazar in Crime No.180 of 2010. He has examined the witnesses on the spot and seized M.Os.4 and 5. Thereafter, he has handed over the investigation of the case to C.P.I. Evidence of this witness also corroborates with the evidence of P.Ws.1, 2, 7 and 17 regarding Ex.P.1 and registering the case. As per his evidence, after receiving the further statement of P.W.1, he registered F.I.R., 45 visited the spot, prepared the spot mahazar, seizure of M.Os.1 to 3 on the spot which corroborates with the evidence of P.Ws.1 to 4, M.Os.1 to 3 and Ex.P.9. Evidence of this witness clearly goes to show the assault made by the accused on P.Ws.1, 2 and the deceased and caused injury. Evidence of P.Ws.1 to 4 and P.W.17-A.S.I., who went to the Hospital, collected death memo and recorded the second statement of P.W.1 as per Ex.P.2 and based upon the further statement of P.W.2, they converted the offence into Section 302 of the IPC, due to the death of the deceased, who succumbed to the injuries in the Hospital. Later, P.W.18 has collected the blood stained mud and common mud from the spot and identifies M.Os.6 and 7 and according to his evidence, tomato saplings were destroyed and blood stains were found on the spot, which corroborates with the evidence of P.Ws.1 to 4 and other witnesses. 46 It is evident from these witnesses that there was assault made by the accused on P.Ws.1, 2 and the deceased.
29. P.W.20-C.P.I. took up the case for further investigation from P.W.18. He requested the Doctor to conduct Post-Mortem examination on the dead body of the deceased. After production of accused No.2, he has arrested him and followed the procedure. Later, he received the clothes of the deceased and seized the same under panchanama. Statements of P.W.3, Madegowda and other eyewitnesses were recorded and obtained the Post- Mortem examination report of the deceased and later, sent the clothes to the Doctor and obtained opinion of the Doctor regarding M.Os.1 to 3 would cause the injury found on the deceased. The 47 evidence of this witness is corroborated with the evidence of P.W.11-Dr. Habeeb Jan.
30. P.W.17-Dr. Habeeb Jan has given evidence that on 16-8-2010, he examined P.W.1 with history of assault by Pradeep with wooden log. On examination, he found the cut lacerated wound over vertex vertically measuring 1 x 6 cm with sharp edges with bleedings, which is simple in nature and issued Ex.P.17. He has further stated that on the same day, he has examined the deceased and found two injuries, i.e. crushed lacerated wound over occipital area with clotted blood horizontally 1 x 4 cm and swelling over left wrist 2 x 3 cm and referred the deceased to expert opinion to surgery and ortho department and the MLC Register of the deceased is marked as Ex.P.18. Evidence of this witness also corroborates with the evidence of P.Ws.1 and 2 and 48 other witnesses regarding assault made by the accused on P.Ws.1, 2 and the deceased. To corroborate the evidence of P.Ws.1 to 4, P.W.14- Dr. Puttaswamy has deposed that he has conducted Post-Mortem examination on the dead body of the deceased and found twelve injuries and they are ante-mortem in nature and the deceased died due to head injury. He has issued Ex.P.22-Post-Mortem examination report. He has further stated that on requisition of the Police, he also examined three clubs, which was received by him in a sealed condition and after examination, he gave opinion as per Ex.P.23. During cross-examination, nothing has been elicited to disbelieve the evidence of this witness and the cause of death is due to head injury, which is homicidal and the same is not disputed by the defence. The accused have also not disputed the homicidal death of the deceased.
49
31. On perusal of the evidence of P.Ws.1 to 4, medical evidence of the Doctors and the evidence of Investigating Officer clearly corroborate with each other in respect of assault made by the accused on P.Ws.1, 2 and the deceased. Due to assault, P.Ws.1 and 2 sustained injury and the deceased sustained head injury and succumbed to the same. Therefore, the prosecution is successful in proving the incident of assault made by accused Nos.1 and 2 on P.Ws.1, 2 and the deceased.
32. Evidence of P.W.11-Dr. Habeeb Jan goes to show that accused Nos.1 and 2 were admitted in the same Hospital and he has examined them. On examination of accused No.2, he found cut lacerated wound over right frontal area 1 x 3 cm with bleeding sharp edges and lacerated wound over vertex 1 x 3 cm vertically, which are simple in nature and issued 50 Ex.P.7-Wound Certificate. P.W.17-A.S.I. also admitted the fact accused Nos.1 and 2 were taking treatment in the same Hospital. P.W.18-P.S.I. also stated that he has received complaint from accused No.1 and registered a counter-case against P.Ws.1 and 2, the deceased and another. On perusal of the evidence of this witness, it cannot be said that the prosecution suppressed the material fact that accused Nos.1 and 2 also sustained injury in the same incident though P.Ws.1 and 2 have not stated that the accused have also sustained injury. In the cross-examination of P.Ws.1 and 2 as well eyewitnesses, the learned counsel for the accused tried to suggest that P.Ws.1, 2 and the deceased assaulted accused Nos.1 and 2, but no where the accused have set up defence in the cross- examination. It is not at all suggested that the accused have also sustained injury in the same 51 quarrel that took place in the morning hours. Therefore, there is no occasion arises for accused Nos.1 and 2 to say that even they sustained injury and the same is one sided. Therefore, the contention raised by the learned senior counsel for accused Nos.1 and 2 cannot be accepted that the prosecution suppressed the genesis of the crime and not explained the injury sustained by the accused persons in the same incident. Whereas the accused have set up a separate case in cross-examination as good as they are the victims that the deceased assaulted the accused, which was denied by them. Therefore, the judgments referred by the learned senior counsel for accused Nos.1 and 2 will not come to the help of the accused.
33. Apart from that, on careful perusal of these evidence and counter-case filed against 52 P.Ws.1, 2 and others goes to show that the accused persons are the aggressors for the incident. The deceased, after purchasing the land and surveying the same from the Revenue Department, planted tomato saplings and the accused were disputing regarding boundary as they have lost certain portion of the land during survey. When P.Ws.1, 2 and the deceased planted tomato saplings, the accused plucked out the tomato saplings and told that, the land belongs to them. When the deceased tried to replant the tomato saplings, accused Nos.1 and 2 assaulted the deceased and caused serious injuries and have assaulted P.Ws.1 and 2, when they tried to rescue the deceased. The evidence of eyewitnesses, i.e. P.Ws.3 and 4 clearly goes to show that the accused assaulted P.Ws.1, 2 and the deceased and they pacified the quarrel, which clearly demonstrates 53 the story of the prosecution that accused Nos.1 and 2 are the aggressors for the incident.
34. Even on perusal of the documents marked in the cross-examination as per Exs.D.1 to D.6 and contradictions marked in the evidence of P.Ws.1 to 4 that will not take away the evidence of P.Ws.1 to 4. There may be little discrepancies or omissions or contradictions, but evidence of these witnesses cannot be disbelieved merely on some discrepancies in their statements made before the Police. Even otherwise, perusal of the F.I.R. in Crime No.180 of 2010 of the accused, they have not at all admitted regarding assault on P.Ws.1, 2 and the deceased. Therefore, without any foundation in the cross- examination of the accused in respect of right private defence set up by the accused raising the same point in an appeal that the accused assaulted 54 the deceased as a right private defence cannot be acceptable. Therefore, the judgments relied upon by the learned senior counsel will not come to help of the accused.
35. In view of our findings, it clearly depicts that assault is made by accused Nos.1 and 2 on P.Ws.1, 2 and the deceased.
36. Now, the question that arises is whether the assault and causing the death of the deceased amounts to murder or not? A careful perusal of the entire material on record goes to show that the deceased and the accused are the adjacent land owners. The deceased planted tomato saplings, which were plucked out by the accused and when the deceased tried to replant it, the accused assaulted P.Ws.1, 2 and the deceased with a wooden log, used for tying tomato saplings. The quarrel took 55 place when the deceased tried to replant the tomato saplings and due to sudden provocation, accused Nos.1 and 2 assaulted the deceased and when P.Ws.1 and 2 came to rescue the deceased, they have also assaulted them. When the trial Court had given findings that there is intention to murder P.Ws.1 and 2 and found guilty for the offence punishable under Section 324 of the IPC, but failed to appreciate the fact in a proper perspective that there is no premeditation or intention by accused Nos.1 and 2 to commit the murder of the deceased, but the quarrel took place in a sudden provocation and the accused took up the clubs, which were available in the land, and assaulted the deceased. The incident occurred on a spur of moment, heat of anger and on sudden provocation without premeditation. Therefore, the contention of the learned High Court Government Pleader that 56 accused Nos.1 and 2 had intention to commit the murder of the deceased is not acceptable. Further, accused Nos.1 and 2 assaulted the deceased in a heat of anger when the deceased was replanting the tomato saplings is not in dispute.
37. In this regard, the learned senior counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of STATE OF RAJASTHAN v. MEHRAM AND OTHERS reported in (2020) 5 SCC 143, wherein the offence was converted into Section 304 (Part I) of the IPC and the accused was sentenced to undergo simple imprisonment for ten years. In the abovesaid case, provocation was not invited by the accused, but it was at the instance of complainant party and death of the deceased was caused by accused No.5 giving one fatal blow on head, which was with intention of 57 causing his death or causing such bodily injury as is likely to cause death, the case would be covered under Section 304 (Part I) of the IPC.
38. In the present case, the entire blow was given by accused No.2 on the head of the deceased. P.Ws.1 and 2 have also stated that accused No.1 assaulted the deceased on his shoulder and most of the injuries on the deceased are caused by accused No.2. In view of the dictum of the Hon'ble Supreme Court in Mehram's case (supra), the present case would squarely falls under the provisions of Exception - IV to Section 300 of the IPC as the element of intention or motive is not established by the prosecution. Therefore, the trial Court though rightly converted the offence under Section 307 of the IPC into Section 324 of the IPC against the accused for assaulting P.Ws.1 and 2, but failed to 58 appreciate the fact that the incident took place on a spur of moment due to sudden provocation with premeditation of causing death, which falls under the provisions of Exception - IV to Section 300 of the IPC. Therefore, the impugned judgment of conviction and order on sentence passed by the trial Court holding that the offence committed by accused Nos.1 and 2 under Section 302 of the IPC requires to be modified and they are liable to be convicted for the offence punishable under Section 304 (Part II) of the IPC.
39. As regards to the overt acts attributed against accused No.1 as he assaulted the deceased on his shoulder with a club, all eyewitnesses have stated that he has given one blow on the shoulder, but remaining blows were given by accused No.2. Even Medical Certificate also reveals the name of 59 accused No.2 and there is no evidence to show that accused No.1 shared common intention with accused No.2 to cause injury which led to the death of the deceased. The deceased died due to head injury suffered by him and the same is caused by accused No.2. As we already held above, though accused No.1 picked up quarrel with the deceased, but it was accused No.2 who hit the deceased on his head, chest and other parts of the body. Hence, we do not find any material against accused No.1 to show that he has shared common intention to commit homicidal death of the deceased. Therefore, accused No.1 is held guilty for the offence punishable under Section 324 of the IPC for assaulting P.Ws.1, 2 and the deceased. Since accused No.2 gave multiple blows to the deceased on his head, on a spur of moment, which caused the 60 injury, he is responsible for the death of the deceased.
40. In view of the above findings and considering the age of accused No.1, who was 65 years at the time of incident and now, he is 75 years old, therefore, instead of imposing sentence of imprisonment for the offence punishable under Section 324 of the IPC, by imposing fine with imprisonment for six months and giving set off for the period already undergone by him during the trial stage will meet the ends of justice. As regards to the sentence in respect of accused No.2 and considering the specific facts and circumstances of the case, by imposing imprisonment for seven years for the offence punishable under Section 304 (Part II) of the IPC and imprisonment for one year for the offence punishable under Section 324 of the IPC and 61 imposing fine will meet the ends of justice. Accordingly, the point for consideration is this appeal is answered partly in the affirmative.
41. For the reasons stated above, we proceed to pass the following ORDER i. The appeal is allowed-in-part;
ii. The impugned judgment of conviction and order on sentence dated 3-6-2015 passed in Sessions Case No.71 of 2011 on the file of the III Additional District and Sessions Judge, Mandya, sitting at Srirangapatna, in so far as convicting accused No.2 for the offence under Section 302 of the IPC is hereby modified and he is convicted for the offence punishable under Section 304 (Part II) of the IPC. The impugned judgment 62 of conviction and order on sentence in so far as accused Nos.1 and 2 for the offence punishable Section 324 of the IPC is hereby confirmed;
iii. Accused No.1 is sentenced to undergo imprisonment for six months and to pay a fine of Rs.10,000/- (Rupees ten thousand only) and in default of payment of fine, he shall undergo imprisonment for one month for the offence punishable under Section 324 of the IPC;
iv. Accused No.2 is sentenced to undergo imprisonment for seven years and to pay a fine of Rs.25,000/- (Rupees twenty-five thousand only) and in default of payment of fine, he shall undergo imprisonment for six months for the offence punishable under 63 Section 304 (Part II) of the IPC. He is further sentenced to undergo imprisonment for one year and to pay a fine of Rs.10,000/-
(Rupees ten thousand only) and in default of payment of fine, he shall undergo imprisonment for three months for the offence punishable under Section 324 of the IPC and all the sentences are ordered to run concurrently;
v. Accused Nos.1 and 2 are entitled to the benefit of set off as contemplated under Section 428 of the Code of Criminal Procedure, 1973; and vi. Exercising the powers under Section 357(3) of the Code of Criminal Procedure, 1973, out of the fine amount, Rs.40,000/- (Rupees forty thousand only) shall be paid to P.W.1- 64 Shivanna and Rs.5,000/- (Rupees five thousand only) shall be paid to P.W.2- Jayaramu as compensation.
Sd/-
JUDGE Sd/-
JUDGE kvk