Karnataka High Court
Narasimhaiah vs State Of Karnataka By Kallambella ... on 17 September, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17th DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRIMINAL APPEAL No.1421/2005 (C)
BETWEEN:
1. Narasimhaiah,
S/o late Rangappa,
Aged about 72 years.
2. K.N.Sreedhar
S/o Narasimhaiah,
Aged about 42 years.
Both are Residing at
Kuntegowdanahalli,
Sira Taluk,
Tumkur District. ...Appellants
(By Sri.S.K.Venkata Reddy, Adv.)
AND:
State of Karnataka,
By Kallambella Police,
Sira Taluk,
Tumkur District. ...Respondent
(By Sri.K.Rajesh Rai, HCGP)
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This Criminal Appeal is filed under Section 374(2) of the
Cr.P.C. against the judgment dated 28.07.2005 passed by the
Fast Track Court-1, Tumkur in S.C.No.179/2003, convicting
the appellants-accused for the offences punishable under
Sections 304 (I) and 324 r/w 34 of IPC & etc.,
This Criminal Appeal coming for final hearing on this
day, the Court delivered the following:
JUDGMENT
This appeal by the convicted accused persons is directed against the judgment of conviction and order of sentence dated 28.07.2005 passed by the Presiding Officer, FTC-1, Tumkur in S.C.No.179/2003 convicting them for the offences punishable under Sections 304 Part-I and 324 r/w 34 of IPC and sentencing them to undergo R.I. for 7 years and to pay fine of Rs.10,000/- for the offence punishable under Section 304 Part-I r/w 34 of IPC and R.I. for 2 years and to pay fine of Rs.5,000/- for the offence punishable under Section 324 r/w 34 of IPC.
2. The case of the prosecution in brief was that PW-4 and accused No.1 are the brothers being the sons of one Rangappa. They are residents of Kuntegowdanahalli in Sira 3 taluk. PW-1 is the wife of PW-4. Accused No.2 is the son of accused No.1. PW-2 Ranganathappa, PW-3 Anantharaju and the deceased Panduranga are the sons of the sister of accused No.1 and PW-4. Daughter of PW-4 is given in marriage to PW-3 Anantharaju. PWs 2 and 3 and the deceased are residents of Kataveeranahalli, about 2 kms from Kuntegowdanahalli. Accused No.4 and PW-4 effected partition of their family properties in the year 1966. Though Sy.No.102 of Yeladabagi village was also one of the land which was the subject of the partition PW.4 and Accused No.1 were enjoying the said land jointly. They had grown arecanut plants in the said land. In the year 1999, accused No.1 filed a suit against PW-4 for the relief of permanent injunction in respect of the southern portion of the land in Sy.No.102 in O.S.No.139/99 contending that the said portion fell to his share in the partition and that he has been in exclusive enjoyment of the said land by raising 400 arecanut plants and the defendants therein are trying to interfere with his possession and enjoyment of said land. Thereafter, PW-4 4 initiated RRT proceedings before the Revenue officer for mutating his name in respect of the entire land in Sy.No.102. Thereafter, PW-4 filed a suit in O.S.No.18/02 for partition and separate possession of his share in about 11 items of the properties including land in Sy.No.102 of Yeladabagi village. Both the suits filed by the respective parties were pending.
3. On 24.07.2003 at about 10 a.m., accused Nos. 1 and 2 were in the land in Sy.No.102 and they were plucking areca nuts by engaging PW-5 Bheemaiah as a coolie worker. On coming to know of this, PWs 1 and 4 went to the said land. In the meanwhile, PW-3 along with his two brothers namely PW-2 and the deceased came to the land and all of them asked the accused not to pluck areca nuts till the disposal of the suit filed by PW-4 for partition. At that time, accused No.1 took out a knife from his nicker pocket and stabbed the deceased on the right side of the chest. At the same time, accused No.2 also took out a knife from his nicker pocket and stabbed the deceased on the left shoulder, as a result of which, the deceased sustained severe bleeding injuries and 5 fell down, while PWs 1 to 3 tried to intervene, accused No.2 assaulted them causing bleeding injuries. The deceased died on the spot. Immediately, the police were informed about the incident and on arrival of the police to the scene of occurrence, PW-1 gave a written complaint as per Ex.P1. The complaint was taken to the police station and on the basis of the said complaint, case came to be registered and investigation was taken up. During investigation, inquest was held over the dead body and thereafter, it was subjected to post-mortem examination. PW-16 Dr.Shylaja who conducted the P.M.Examination over the dead body of the deceased and submitted a report as per Ex.P14, opined that the death was due to shock and haemorrhage as a result of stab injury to the chest cavity.
4. During investigation, both the accused were apprehended when they went to the police station on the same day. Later they were subjected to Judicial Custody. During investigation, a knife said to have been used by accused no.2 was recovered from the spot while the knife 6 stated to have been used by accused No.1, and which had been snatched by PW-3, was recovered from the house of PW-
1. During investigation, the I.O. recorded the statement of the witnesses and after completing investigation, filed charge sheet for the offences punishable under Sections 302 and 324 r/w 34 of IPC.
5. On committal of the case, the appellants-accused appeared before the Sessions Court and pleaded not guilty for the charges levelled against them and claimed to be tried. The prosecution in order to bring home the guilt of the accused for the charges levelled against them, examined PWs 1 to 22 and relied on the documentary evidence Exs.P1 to P27 and M.Os 1 to 14. Accused denied all the incriminating circumstances appearing against them in the evidence of prosecution witnesses. Accused did not choose to lead any defence evidence. The defence of the accused was one of total denial and that of false implication.
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6. As could be seen from the evidence of the material prosecution witnesses, the defence of the accused was that in the partition which took place in the year 1966, the southern portion of land bearing Sy No.102 fell to the share of accused No.1 while the northern portion fell to the share of PW.4; that since the date of partition PW.4 and accused No.1 started enjoying the properties fell to their respective shares; that in the portion which fell to his share in Sy No.102, accused No.1 raised 400 arecanuts plants whereas PW.4 in the portion which fell to his share in that land raised only 100 arecanut plants; that seeing the good crop in the land of Accused No.1, PW.4 became jealous and filed a frivolous suit for partition.
7. During their examination under 313 statement, the accused also filed the written statement interalia contending that on 24.07.2003 at about 10.30 a.m. when they were in their house, they learnt through some one that PWs 1 to 4 and the deceased after trespassing into their (accused) land are plucking the arecanuts; that immediately, both of them went to the land, saw PWs 1 to 4 and the deceased plucking 8 arecanuts; that on seeing the same, when they (accused Nos. 1 and 2) questioned PWs 1 to 4 and the deceased, PWs 1 to 4 and deceased quarreled with them stating that they also have a share in the property and that led to quarrel; that at that time, PW-3 Anantharaju took out a knife from his pocket and tried to stab accused No.1; that at that time, the deceased intervened, as a result, the blow fell on the deceased and accused No.1 escaped from the blow; that the deceased sustained severe injuries, he fell down and on seeing the same, PWs 1 to 4 out of fear, with the help of knife by self infliction caused themselves injuries and caused some more injuries on the left shoulder and left side of the neck of deceased after the deceased died and out of fear, when both the accused went to the police station to inform the police as to what transpired in the land, both of them were arrested.
8. After hearing both sides and on assessment of oral and documentary evidence, the learned Sessions Judge by the judgment under appeal held that though the prosecution has proved beyond reasonable doubt that the deceased died 9 on account of physical violence on him which occurred at about 10 a.m. on 24.07.2003 in the portion of the land in Sy.No.102 in possession of accused No.1, but the death of the deceased was not a 'murder' within the meaning of 300 of IPC punishable under Section 302 of IPC. However, the learned Sessions Judge in the light of the evidence of PWs 1 to 4 recorded a finding that both the accused were responsible for the death of the deceased and the act committed by the accused is culpable homicide not amounting to murder punishable under Section 304 of IPC. Learned Sessions Judge also held that both the accused had shared common intention and in furtherance of the said common intention had caused injuries to PWs 1 to 3. In that view of the matter, learned Sessions Judge convicted both accused for the offences punishable under Sections 304 Part-1 and 324 r/w 34 of IPC and sentenced them to undergo imprisonment as well as to pay fine as noticed supra. Aggrieved by the said judgment of conviction and order of sentence both accused are in appeal before this Court.
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9. I have heard Sri.S.K.Venkata Reddy, learned counsel for the appellants and Sri.Rajesh Rai, learned HCGP for the respondent-State.
10. Learned counsel for the appellants contended that the judgment under appeal is highly perverse and illegal, as the learned Sessions Judge has not properly appreciated various circumstances brought-out in the cross-examination of PWs.1 to 4, which have rendered the testimony of PWs.1 to 4 with regard to the alleged incident highly unreliable, therefore, the conviction recorded on the basis of testimony of PWs.1 to 4 cannot be sustained. He further contended that even according to the evidence of PWs.1 to 4, there was a partition between Accused No.1 and PW.4 in the year 1966 and the portions which fell to their respective shares in Survey No. 102 have been in enjoyment of Accused No.1 and PW.4 and their evidence further indicate that PWs.1 to 4 along with the deceased came to the portion in possession of the accused and tried to prevent the accused from plucking areca-nut, therefore, PWs.1 to 4 and the deceased were the 11 aggressors, who tried to prevent the accused from enjoying their property, therefore, even if there was an act of assault by accused persons, it was by way of self-defence to protect their property, therefore, the said act was not an offence punishable under the Indian Penal Code. He further contended that even according to the evidence of PWs.1 to 4, there was only one blow by Accused No.1 on the right side of the chest, while assault by Accused No.2 was on the left shoulder, which was not the cause for the death of the deceased and since PWs. 1 to 4 along with the deceased came to the land of the accused, there was no circumstance warranting inference of common intention shared by two accused, as such, the two accused persons are answerable only for the act committed by them individually in which event, Accused No.1 could be at best held guilty for the offence punishable under Section 304 Part II, while Accused No.2 may be held guilty for the offence punishable under Section 324 of IPC He also brought to the notice of this Court that both the accused have spent for about 4 months and 3 12 days in custody during the trial of the case and 32 days after the judgment of conviction passed by the trial Court and thus in all, they have spent five months five days. Having regard to the facts and circumstances of the case and also the circumstances under which the incident appears to have occurred, he contended that the accused may be sentenced for the period already undergone, instead of sentencing them for further jail terms.
11. On the other hand, learned Government Pleader sought to justify the judgment under appeal and contended that the judgment does not suffer from any perversity or illegality since the learned Sessions Judge on proper appreciation of oral as well as documentary evidence has recorded findings which are sound and reasonable, as such, the judgment under appeal does not warrant interference by this Court. He further contended that the evidence indicated that though there was an earlier partition in the year 1966 PW.4 had filed a civil suit for partition contending that the properties are jointly enjoying the land and when they tried to 13 question the accused about their authority to remove the standing crop, annoyed by the same, the accused have assaulted the deceased with an intention to cause his death and therefore, the trial Court is justified in holding both the accused guilty for the offences punishable under Sections 304 Part I and 324 r/w. 34 of IPC. Therefore, he sought for dismissal of the appeal.
12. In the facts and circumstances of the case and in the light of the submissions made by the learned counsel appearing on both sides, the points that arise for my consideration are,-
i) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court?
ii) Whether the learned Sessions Judge is justified in convicting the appellant/Accused Nos. 1 & 2 for the offences punishable under Sections 304 Part-I and 324 of IPC, respectively ?14
13. I have bestowed my anxious considerations to the submissions made on both sides.
14. Perusal of the evidence on record indicates the following undisputed facts:-
PW.4 and Accused No.1 being brothers had effected partition of their family properties in the year 1966 itself and since from that date they were enjoying their respective shares allotted to them. Under the said partition, the land in survey No.102 of Yeladabagi Village was divided East to West. The northern portion having fallen to the share of PW.4, while southern portion fell to the share of Accused No.1. Accused No.1 had raised about 400 areca-nut plants in the portion allotted to his share while, PW.4 had grown 100 areca-nut plants in the portion of land allotted to his share. However, due to certain differences, subsequently in the year 2002, PWs.4 filed a civil suit in O.S. No.85/2002 on the file of Cviil Judge (Sr.Dn.) and JMFC at Sira seeking relief of partition and separate possession in respect of 11 items of the property including survey No.102 and the said suit was 15 pending. On 24.07.2003 the deceased Pandurangaiah received certain injuries in the portion allotted to the share of Accused No.1 in survey No. 102 and died at the spot, while PWs.1 to 3 sustained some minor injuries. The evidence of PW.16-Dr.Shylaja M. and the contents of post-mortem report- Ex.P.14 indicate that the deceased Pandurangaiah had sustained the following injuries:-
i) A stab wound about 2 cms. length below the medial end of the right clavicle; 3.5 cms. from the midline below the 2nd rib in the 2nd intercostal space, obliquely placed, crossed the midline contusing the surrounding intercostal muscles;
ii) A stab would measuring 2.2 cms. above the middle of the left clavicle; 7 cms. from the midline elliptical in shape; 2.2 cms vertically placed depth in 9cms.-
Edges are sharp.
iii) Incised wound 2.5 cms. lateral to injury No.2; 1 cm.x2 mm. into muscle deep with sharp edges;
According to the said witness, on dissection of injury No.2, it was found that injury had penetrated the skin, muscle below 16 the left clavicle in the middle, penetrating the apical lobe of the left lung; muscles surrounding the wound are contused. The Doctor has opined that the death was due to shock and haemorrhage as a result of stab injury to the chest cavity.
15. There was no serious challenge to the evidence of PW.16 with regard to the nature of the injuries she had noticed at the time of post-mortem examination over the dead body. Even according to the written statement filed by the accused, Pandurangaiah sustained injuries as a result of the stab with a knife. Of course, according to the accused, when PW.3, tried to attack Accused No.1 with a knife, the deceased intervened and the blow fell on him. Therefore, the death of the deceased, as rightly held by the learned Sessions Judge was homicidal.
16. As noticed supra, the learned Sessions Judge after finding the death of the deceased as homicidal has recorded a finding that the act is a culpable homicide not amounting to murder punishable under Section 304 Part-I of IPC. 17
17. As noticed supra, the incident occurred in the land bearing survey No.102 and in particular, in the portion, which was in occupation and cultivation of the accused. Even according to the evidence of PWs.1 to 4, on 24.07.2003 they came to know about the accused plucking areca-nut in their land and all of them along with the deceased went to the land and asked the accused not to pluck areca-nut till the disposal of the suit. From this it is clear that it was PWs.1 to 4 and the deceased who went to the land in possession of accused and wanted the accused to stop plucking the areca- nut. Though PW.4 had filed a civil suit for partition, admittedly there was no interim order preventing the accused from plucking areca-nut. In fact, it is on record that earlier to PW.4 instituting suit for partition, Accused No.1 had filed a suit against PW.4 for the relief of permanent injunction restraining him from interfering with his peaceful possession and enjoyment of the properties which fell to his share including survey No.102, wherein he had set-up an earlier partition that took place in the year 1966. It is about three 18 years later, PW.4 appears to have filed the civil suit for partition. The matter was ceased-off by the Civil Court. As long as the Civil Court had not rendered its decision, in the light of the admitted fact that there was an earlier partition in the year 1966, PWs.1 to 4 and the deceased had no right to question the authority of the accused to remove the standing crop in the portion which fell to the share of accused No.1. Nevertheless, they seem to have gone to the land of the accused to prevent them from plucking areca-nut. Thus, it was PWs.1 to 4 and the deceased who took the assault to the door-steps of the accused. Though the accused in their written statements have contended that on that day, while they were in the house, on hearing that PWs.1 to 4 and the deceased are plucking areca-nut, they went to the land and questioned PWs.1 to 4 as to why they are removing the areca- nut, they were sought to be assaulted by Accused No.3, there is no acceptable circumstance to substantiate the said plea. Of course, suggestions have been put to PWs.1 to 4 in this regard, however, all the witnesses have denied those 19 suggestions. Thus, this defence plea has remained only as suggestions. On the other hand, the evidence of PWs.1 to 4 would indicate that Accused Nos. 1 & 2 were in the land and they were plucking areca-nut with the help of PW.5.
18. PW.5 in his evidence has stated that, on that day, he had been engaged by the accused for plucking areca-nut and since by the time PWs.1 to 4 came there, the work of plucking areca-nut was over, he left the place. Therefore, according to him, he does not know as to what transpired in the land. Thus, PW.5 did not support the case of the prosecution with regard to the acts of assault on the deceased. Nevertheless, it would indicate that he had been engaged by the accused to pluck areca-nut on that day and accordingly he worked there. He has also spoken about the presence of Accused Nos. 1 & 2 in the land. The fact that none of these accused persons had sustained any injury, there is no circumstance to infer that any of PWs.1 to 4 and the deceased were armed with any weapon. No doubt, having regard to the fact that PW.4, despite an earlier partition, had 20 filed a suit before the Civil Court seeking partition of the properties, as rightly contended by the learned counsel for the appellants, the target of assault should have been PW.4 and not the deceased. However, this circumstance itself cannot be a ground to hold that there were no acts of assault by the accused. The witnesses have consistently stated that both the accused took-out knives from their nicker pockets and committed acts of assault. The presence of PWs.1 to 4 and the deceased at that place is not disputed. Of course, PWs.1 to 4 are closely related and interested witnesses, however, on that ground their testimony cannot be discarded. May be there is some amount of exaggeration in their evidence to cover-up their acts, however, their evidence as to the acts of assault by these two accused on the deceased being consistent and cogent, has been rightly accepted by the learned Sessions Judge. I find no perversity in the finding recorded by the learned Sessions Judge in this regard. The acts of assault by the accused, having regard to the circumstances in which the acts have been committed, it 21 cannot be said that the accused have committed the said act by way of self-defence to protect their property. Therefore, in my considered opinion, the learned Sessions Judge is justified in holding that the accused persons are responsible for the death of the deceased. However, as noticed supra, even according to the evidence of PWs.1 to 4, Accused No.1 inflicted one blow on the right side of the chest of the deceased, while the blow by Accused No.2 was on the left shoulder. The cause of death, as opined by the doctor, who conducted post-mortem examination, was the stab injury to the chest cavity. Therefore, the injury which caused the death of the deceased was attributable to the acts of Accused No.1. The injury inflicted by Accused No.2 on the left shoulder of the deceased was not the cause for the death of the deceased. Having regard to the facts that PWs. 1 to 4 and the deceased came to the land of accused to prevent them from plucking areca-nut, at that time the quarrel ensued in which the deceased was assaulted, it cannot be said that the acts of assault by Accused Nos.1 & 2 was in furtherance of a 22 common intention shared by them so as to invoke the provisions of Section 34 of IPC. Therefore, both the accused persons are answerable for the individual overt-acts attributed to them. In this view of the matter, since the injury inflicted by Accused No.1 was the cause for the death of the deceased, he has to be held liable for the said act, while the injury inflicted by Accused No.2 on the deceased as well as on PWs.1 to 3 are simple in nature appears to have been inflicted with a knife which is a dangerous weapon is answerable for the said acts, which attracts the offence punishable under Section 324 IPC. The evidence on record, as observed by the learned Sessions Judge, clearly indicate that the act committed by Accused No.1 was not with any intention and of course, it was with the knowledge that it is likely to cause death of the deceased. Therefore, the acts committed by Accused No.1 attracts Part-II of Section 304 of IPC and not Part-I, as held by the learned Sessions Judge. In that view of the matter, the judgment of conviction recorded 23 by the learned Sessions Judge to the extent indicated above requires to be modified.
19. As noticed earlier, Accused No.2 is the son of Accused No.1 and Accused No.1 is the brother of PW.4. The deceased is none other than the son of the sister of Accused No.1 and PW.4 and also the son-in-law of PW.4. There was a civil dispute with regard to division of properties. The deceased absolutely had no right over the said property. The incident appears to have occurred in the midst of quarrel in which PWs.1 to 4 and the deceased tried to prevent the accused plucking areca-nut grown by them in their land. PWs.1 to 4 and the deceased wanted to see that the accused should not get the fruits of their hard labour.
20. It is submitted by the learned counsel for the appellants that Accused No.1 is now aged about 81 years.
21. Having regard to the above facts and circumstances of the case, I am of the considered opinion that since Accused No.1 is aged about 81 years and both the 24 accused have already spent nearly about five months in custody, interest of justice would be met by sentencing the accused persons for the period of custody already undergone and by imposing some fine instead of sentencing them for further jail term.
In the result, the appeal is allowed-in-part. In modification of the judgment of conviction recorded by the trial Court, Accused No.1 is convicted for the offence punishable under Section 304 Part-II IPC, while Accused No.2 is convicted for the offence punishable under Section 324 of IPC. Both the accused persons are sentenced for the period of custody already undergone. Accused No.1 is further sentenced to pay fine of Rs. 1,00,000/- (Rupees One Lakh) and in default to pay fine, he shall undergo Rigorous Imprisonment for one year. Accused No.2 is further sentenced to pay fine of Rs.10,000/- (Rupees Ten Thousand) and in default to pay fine, he shall undergo Simple Imprisonment for two months.
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On realisation of the fine amount, a sum of Rs.1,00,000/- (Rupees One Lakh) shall be paid to PW.10- mother of the deceased, as compensation.
Fine amount, if any already deposited, shall be given set-off.
The accused are given eight weeks time to deposit the balance fine amount.
SD/-
JUDGE SRL-Pgs-1-9 KGR*-Pgs-10-25