Karnataka High Court
Muppanna S/O Siddappa Devaramani vs The State Of Karnataka on 2 February, 2011
Bench: K.Sreedhar Rao, C.R.Kumaraswamy
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 02"? DAY OF FEBRUARY 20] SOL, = PRESENT THE HON'BLE MRJUSTICE K. SRE -EDHAR RAG AND - oy THE HON'BLE MR. JUSTICE €.R.KUMARASW AMY CRE. APPEAL NO. 2606/2010 BETWEEN: L. MN fd Muppanna S/o Siddappa Devaramant, . Age: 50 years, Occ; Agriculture, ~~ Rio Neerabudihal villaze.. Tq: Badami, Dist: Bagalkots, . Mallappa S/o Siddapwa Devaramani, | Age: 49 years, Occ- Agricult ture Rio Neerabudihal v Hage, Tq: Badami: Dist: Bawalkor. . . Yallappa S/o Siddappa Devaramani., "Age: 46 years, Oce; Agriculture, Rio Necrabudibal village, TqeBadami, Dist Bagalkot. ; Hanamant Si o Sidd dappa Devaramani, Age: 38 vears, Occ: Agriculture. "., Rio Neerabudihal village, ~. Tq: Badami, Dist: Bagalkot, Appellants. (By Sri. Shriharsh A Neelopanth; Sri. B.D. Hiremath, Sri. M.S. Satish, Advocates.) "ehh he AND: The State of Karnataka, Circle Police Inspector, Badami Police Station, Badami, Through Special Public Prosecutor, High Court of Karnataka, Circu it Bench, Dharwad. Respondent. (By Sri. V.M. Banakar, A.S.P-P.) This Criminal. 'Appeal | is filed" 'wis 374 2) of Cr.PLc seeking to set aside the Judgement and Order of conviction dated 19-03-2010 passed. by ne "District. and Sessions Judge. pagal in S.€.No: 42/2009" for the: offences punishable '3.323, 324, 35 AS 504, 302 s/w 34 onl PC. This Criminal A: ppeal. ceming on for final hearing this dav. K. Sreedhar Rao,J.od oliv ered the following: JUDGMENT
The material facts of the prosecution case disclose that, one Basappa is the deceased. The appellants No.1 to 4 are the brothers sand are accused No.| to 4 before the Trial Court o (fot short A.) to A.4). The deceased and A.1 had owned dan ds adjoining each other in Neerabudihal village, Badami Paiuka. On the boundary of land of A.i and the deceased. there was a thorny baboel tree. The accused persons -are claiming that the tree is situated within the boundaiy of theif. land. The deceased was protesting asad. insisting that the moet location of the tree should be decided bv conducti:
SuPVey,
2. On 8/2/2009 atvabout 2-30-p7moA.l and A.2 were present in the land. The deceased. 'his. wife Shankrawwa-
-2 and Tranna-PW.3 were also PW.o1. her daughter * thas? W present in their fand, AM. wielding a Axe went to cut the babool tree. Phe-deceased came and protested that the tree should not be cut until the -survey is conducted. There was exchange of words, A.f became wild and with the handle of i an axe assauMed. on the lees, chest and on the back of the deceased. "The Geceased fell down. PW. 1 came running to "rescue the deceased. A.2 who was present with A.1 took the axe and assautted PW ot with the handle of axe on the head of 4 "PPALL EY . ait A Aosyadhes teseee ee taceree le " sce we ny som eee tery * JPA OE. ALS and A.4 ow mo Were WOPrKiNG fearer (he scene. aller hearing the noise they aiso came running to the scene. Thes abused the deceased and PW i. They fisted and kicked the Geceased who fell on the ground. The accused after-ihe assaul€ left the scene.
3. PW of along with PW.2 and 3 came. to the village io go to Bagalkot Government Hospital for taking tréaiment. PW.1 at the bus-stand informs Kotfeppa-PW.4. her brother LPapy about the ineident and stites that the deceased is lvine injured in the land. PW | 7 * and + have vg Oe Bagalkot Government Hospital and "PW. is treated at Government Hospital, Baga Hee P Ww who is informed of the incident comes te the scene. The hospital authorities intimated the police whorcome-aid recorded the statement of the PW loas per bx PoP atiabout 11-30 9.m. On the basis of EXPT a case. is registered. The police came lo the seene on the next day so conduct inquest and spot mahazar. The dead
- body Was sent 416 postmortem. The autopsy report discloses "that he death'is due to shock and cardiorespiratary arrest and ~ head.injury. The time of death is within 12 to 14 hours. The deathas said to be hamicidal.
4. Al and A. 2? were arrested on 12/2/2008. A.3 and A.4 had taken anticipatory bail. No recoveries are ¢€ flected al fhe voluntary instance of the accused. Phe accused persons, are charged for committing offence. wW/S.323° An4> 30 2 riwSee.34 of IPC. The charge uw/S. 3235504, 384 is redundient, The effective charge should be urS 3240 302 riwSee.k4 of PP.
Lat The prosecution in order ta pravesthe case has examined PW.oL the. iajured witness in the incident. Her evidence disclose -that.areund. 2-30 pom. herself. the deceased, PW.2 and 3 were present in the land. A.t and A.2 were present in their adjoining land. A] went to cut the babool tree. The deceased Went and protested and he was assaulted "With the handle of an axe on the back. legs and chest. The deveased fell down. When she went to reseue, A? took the axe droni Ai and assaulted her with the handle of an A x AS and A.4 who were working nearby the SEenes ney @iSo came running and abused and fisted and kicked the deceased who was Iving on the ground. &
6. The evidence of PW.1 further discloses that after the assault herself. PW.2 and 3 go to the bus-statd, sre meeis and informs PW 4 about the incident. Herself, PW.o2- and 3 go by bus to Bagalkot to get the treatment. The police came and recorded her statement in the hospital as. per Ex.P.1. The same is registered as FiR. The evidencé of PW.2 and 3 18 similar to the evidence of PW 1. with regard to the assault.
7. The postmortem: report "discloses that the deceased had sustased cervical aiid head injury. The death is said to be homicidal. The Tela! Court placing reliance upon the evidence of PW. lis 3 ané-coupled with the postmortem report convicted the accused for the offence punishable 19/Se0s.323 324, 354. 504, 302 r/w.Sec.34 of IPC. The conviction Tor "the offence U/Sec.323. 354 and 304 ve i/w.See.34 of IPC is redundant and unwarranted. Because there was no.intention on ihe part of the accused persons to ~ outrage modesty of PW.1. Therefore conviction U/Sec.354 of IPC_is bad in law. The offence U/Sec.404 of IPC is a non 4 cognizable offenee, [i is quite inconsequential im @ state of quarre! when a person is committing an offence of nrurdes. vulgar and abusive words are always used and. the said.. conduct becomes part of the transactian of the offence of murder. Therefore minor offence cominitted in the coursdé-.of transaction of murder should be. ieuored.. The- aecused persons are in appeal assailing the arder-of conviction on the following grounds.
ay The evidence of PW-ol 'diseleses that it was A.l who assaulted the deceased "ith-the handle of an axe. Alo Avd kicked the deceased. There 1s assaulted PW.1.°A=3 an d no premeditation on the partvel the accused persons. The accused persons wha owere located in different places come and converge and they caused assault without wielding any weapons.
b} In so far as A.2 is concerned. in the complaint it is Stated that he assaulted the deceased with the handle of an y . ase On the chest. back and hands. Bul in the evidence of PW.) does not incriminate the A.2 ef causing injuries io the deceased. The manner and conduct of the accused stated. mt the evidence of PW 1 does not disclose that ley Shared» common intention of causing murder, -Lherefore the acts -of each accused should be judged individually by-their action and net collectively by invoking Section 34 of IPE. ~ gf} The manner of assault meade -hy A 1 does not disclose that he had intention of causing murder-nor intention of causing injury which is dikely to cause death in the ordinary course, A 'Pomakes assauitoon the non vital parts of the body with the pandie ofan axe and not with the axe. If really All had an intention of cadsine murder. he would have caused injury with an axe son the head and on vital parts of the pod\. Theréfore the evidence does not suveest thai the accused could.be field guilty UsSee.302 of IPC. d}) =. Phe incident takes lace In a state of quarrel and ZL provocation. Therefore the A.) cannet be held aullts of iPC. With regard to A.2. he caused assault on 9 PW ot and he does mot assault the deceased. Uherefore A.2 could be held guilty only for causing injury io PWe UeSee 324 of EPC. AS and Ad who cdime alt commencement of the incident. indulgein fi isting and kigke Ee the deceased who had fallen on the ground. Therefore they could be held guilty oniy U/See.323-of IPC. e} The postmortem report docs not disclose that the injuries caused on the deceased are sult cient to cause death in the ordinary COUPE Tf YS are cued: thai the A.) at the most could be held ab U See. sot part Hof EPC and A.2 could be held guilty Gsee32 4 of i ¢ Por. causing injuries to PW I, AS and A, 4 could be. held silts te See.323 of IPC. go Sti. V.M-Banakar, ASPP for the State submitted (hat fhe involvement of all the four accused is established Moomas be that A.3 and A.4 who were net . Wielding weapons. they come and join in the assault. there may tot be a prior meeting of minds but at the time of OFence and in the course of transaction they a ip joined and their conduet and participation would sugeest an inference that they all shared common intention. Aland other accused caused assault openly telling that the: deceased"
has to be killed. Therefore the intention to cause murder is pronouncedly evident as per the evidense of PW Hence the conviction of all the accused U/See 302 of IPC is sound and proper.
9. On thorough consideration™ofo1he facts and evidence we find thatthe evidence does mak justify invoking section 34 of IPC. Before commencement of the incident A] and 2 were present at the scene, AS and A.4 came running during the course of incident. Merely because A.] used some abusive words at the time of assault, that cannot be taken Ference thar he had an intention te Seriousiv.to Siigpest cause death. Pf reatly A.L had intention of causing death, he € "would have assauited the deceased with the axe on the vital 'parts-ol the body and not with the handle of the axe on non "Vital parts-of the body. There is no evidence to show that A.2? sulted the deceased, A.2 Only assaudtled the PW] with the as 7 nandie of an axe. A.3 and A.4 who came lately. during the course of incident. they indulge in kicking the deceased who was lying on the ground. Therefore it is improper 'to inves e. section 34 of EPC to sav that all the accused" had premeditation with meeting of minds. ard: shared common infention of causing death. The "actions of the' acoused persons are to be jJudeed by thet. individual actions. The medical evidence also does nok disclose. that ine injury caused by Al is sufficient to cause death in the ordinary COUPrse.
iG. Tlowever the death is caused by assault made by A.J, The prosetution has Falfed to prove the intention to cause death and intention to cause injury which Is likely to cause, death in the ordinary course. But however from the manner-oF conduct by A} it could be said that he had "knowledge of causing death. Therefore A.) can be held ceoneersed: he has assaulted the PW oi with the handle af an axe] nerefore A.2 is held guilty USec3 A.4 during the course of incident they kicked the deceased and assaulted with hands. Therefore they could be held "ead ty u/See.323 pow. Sec.34 of PPC.
the above discussron the order of conviction recorded by the Trial. Court-holding A.2 to A.4 guilty U/See. 302 of IPC is set aside. So also. the comviction Ursee.324, 354. and S04 of IPC iS also setaside, The appeal is allowed in terms indicated above. gO RE for a period of 3
12. All is. sentenced tocunder years and to payoa Tine of @.1-S6.060% in default to suffer Sf. for a period of-6 seurssfor the offence punishable W/See.304 Part) of IPC.
13. As2 Es sentenced to undergo R.1. for a period of SIX months and to payoa fine of ¥.10.000/- in default to suffer _ a i es:
coo b. forsa periodof six months for the efnee punishable See. 324 of PPC.
r4. °° AS and A.A are sentenced te undergo Ri. for a a gee ne) + ay tidy speed ; P Pyare a an Wage é why de perlod of 4 months and to pay a fine of F.1.000/. each in Lad default to suffer S.f. for a period of three months for the offence punishable U/Sec.323 of TPC. ea PW.1 shall be paid compensation of S71.S08)000~ From the fine amount paid by A.}. Av] is entithed for penetit of ser of LifSee.478 of Cr. P.C. A. to Aid are entitled to -be released forthwith upon payment 'of fine imposed in this appeal.
[6. The operative portion of this judgment shall be communicated te the -felal Court. as well as the jail aAUEHOTIELIGS. | as . mo tf we Mrki- Ne wk!