Karnataka High Court
Siddasetty And Ors. vs State Of Karnataka on 15 July, 1999
Equivalent citations: 2000CRILJ703
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT M.F. Saldanha, J.
1. The three appellants before us were the original accused in Sessions Case No. 37/1991 on the file of the IInd Additional Sessions Judge, Mysore. The accused were charged with having committed the murder of Mahadeva Setty on 30-1 -1991 at about 3.30 p.m. in front of Narayanaswamy temple at Mangala village which comes within the jurisdiction of Kuderu Police Station. Briefly stated, the prosecution contends that there was a dispute between the side of the deceased and the side of the accused in respect of a share in the land ad measuring 3 acres being Sy. No. 587/4. It has come on record that the deceased and his brothers and the accused were quarrelling over the share in respect of this land because the three accused who were the sons of the first wife of Mada Setty contended that they were entitled to the proportionate share whereas this was being resisted by the deceased and his brothers who were the sons by the second wife. We are not much concerned with the inter se dispute because the immediate provocation for the incident appears to have'arisen from the fact that the deceased Mahadeva Setty had proceeded on the morning of that day with a bullock cart to the land where he had felled a tree, cut it into pieces and was returning with the wooden pieces in the bullock cart. At that time, the three accused are alleged to have attacked him in front of the Nara yanaswa my temple. The prosecution alleges that Al used a cart peg, A2 used an iron rod and A3 used a small axe normally known as pichu Kodali in the assault. It is the case of P.W. 1 who is the brother that P.W.2-Nagaraju ran and informed the brother P.W. 1 about the fact that the three accused were assaulting the deceased where upon P.W. 1 rushed to that spot and because he shouted, the three accused stopped assaulting the deceased and ran away from that place. The medical evidence indicates that the deceased had sustained as many as 13 external injuries out of which, two were serious namely the injuries on the head and on the legs. As a result of the assault, the deceased died on the spot and P.W. 1 thereafter lodged the complaint which is the F.I.R. at the Police Station at about 6 p.m. on that evening. A copy of the F.I.R. was transmitted to the learned Magistrate at about mid night on that day. The defence has contended that this delay is of consequence because of the fact that this is one of the few cases wherein the star witness for the prosecution had admitted in unequivocal terms that he is extremely hostile to the accused persons. The defence is basically one of denial and by implication, what is contended is that there has been a history of disputes and incidents between the two groups though they are the children born through two wives and that therefore the accused have been falsely implicated in order to virtually get them out of the picture so that the other group could hold on to the lands that were the bone of contention. We need to mention that it is alleged that in the course of investigation, the three accused made certain statements pursuant to which the cart peg, iron rod and the axe were recovered and these items have been produced before the Court in the course of the trial. On completion of the investigation, the three accused who were arrested some time later, were put up for trial and the learned Judge at the conclusion of the trial held the three accused guilty of the offences punishable under Sections 302 read with 34, IPC and sentenced them to suffer R. I. for life and to pay a fine of Rs. 5,000/- each, in default to undergo further R. I. for six months. This appeal is directed against the conviction and sentence awarded to the accused.
2. At the commencement of the hearing of the appeal, Mr. B. T. Parthasarathy, learned counsel who represents the appellants stated that he desires to lay special emphasis on the background of the case which is admitted and the intense hostility that existed between the two parties even though they were the sons of two wives. His submission was that from the complaints that have been referred to and brought on record, that there can be no dispute about the fact that the fight over the share in Sy. No. 587/4 which ad measures 3 acres had been going on for a considerable period of time and that there had been a series of incidents prior to the present one which had only escalated the hostilities between the two factions. He submitted that the Court will have to take special cognizance of this situation and he thereafter straightaway drew our attention, while making his comments with regard to the evidence of PW. 1 who is the younger brother of the deceased, to the unequivocal admission made by the witness that though he does not bear any ill will towards any other people in the village that as far as the accused are concerned, that they were his "sworn enemies". Learned counsel submitted that in this background, the Court would have to straightaway reject his evidence completely because he is a self professed enemy regardless of the relationship and he submitted that where there was such intense ill feeling, that there was no doubt about the fact that P.W. 1 would go to any extent to not only involve the three accused who are brothers but further more to try and get them convicted so that they would virtually be out of the way once and for all. We have taken note of the fact that there was this background of hostility, we have taken note of the fact that P.W. 1 is the younger brother of the deceased and we have also taken note of the fact that the law is now well settled with regard to the position of a witness who is closely related and therefore interested and the cautions that have been laid down by the Courts while appreciating the evidence of a witness who is also extremely hostile to the accused persons.
3. P.W. 1 is the complainant and it is he who lodged the complaint at about 6 p.m with the Police. The appellants' learned counsel has pointed out to us that the incident was of a short duration and that everything was over within a matter of minutes and he laid stress on the fact that this is not a case in which the injured was required to be carried to hospital and several other for mali-ties attended to because admittedly, Mahadeva Setty died on the spot. It was also pointed out to us that it would not have taken more than half an hour at the very most to travel to the Police Station and, in this background, the delay of approximately three hours must put the Court on extreme guard because of the fact that the possibility or probability of false implication gets immensely heightened if there is a time lag during which period of time the complainant, his relations and others could and would have discussed among themselves about the incident and the further steps to be taken. It is true that the complaint has been lodged after 6 p.m. and that it could have been lodged earlier. The explanation which P.W. 1 has put forward is that he was shocked, that he was also depressed because it took him considerable time to gather himself together and to thereafter go to the Police and lodge the formal complaint. This explanation is not altogether an unbelievable one and we notice that strangely enough, though the cross-examination has been very elaborate, not a word has been asked to P.W. 1 with regard to what precisely he was doing during the interim period. In other words, the explanation given by him has not really been beaten down or demonstrated to be false nor has a parallel theory been established that this interim period was used for plotting and planning false implication. In this background, nothing seriously turns on the fact that the complaint was lodged after 6 p.m. because the time is not abnormally long. Also, the learned Counsel was sharply critical of the fact that there is no valid reason why the complaint could have taken six hours to reach the learned Magistrate. Some explanation has been put forward by the I. O. which does not appear to be a very good explanation. The appellants' learned counsel submitted that if the complaint is supposed to have taken six hours to reach the learned Magistrate, that the truth of the matter would be that it must have been lodged much later than 6 p.m. which only worsens the situation. No such case has really been put to the I.O. and in this background, we can only attribute the delay to the usual Police laxity and to nothing else. We have also taken note of the fact that the first duty of the Police is to visit the scene of offence and commence the initial formalities which could have taken some time and secondly, we do not propose to accept the defence contention that merely because there is a small time lag that ipso facto the complaint should be regarded as a fabrication. To a very large extent, this conclusion would depend on the credibility and the quality of the evidence of P.W. 1 because if this evidence was either suspect or if the credibility itself was extremely low, then this does have a bearing on the delay factor.
4. Before assessing the evidence of P.W. 1, we would prefer to deal with the evidence of P.W. 2-Nagaraju because in point of time of sequence he is the person who was with the deceased when the incident took place. We need to point out here that P.W. 1 contends that it was P.W. 2 who ran to him and told him about the assault on his brother. P.W. 2-Nagaraju has flatly denied this. He has only admitted that he had given his bullocks to the deceased on hire for a sum of Rs. 50/- and that the deceased had used those bullocks on the cart in which he was transporting the wooden pieces. He disclaims all knowledge of the incident and he disclaims any knowledge of how the deceased got injured and died. In view of this position, he was treated as hostile and cross-examined by the learned Prosecutor. We need to indicate here that unlike other Instances where witnesses are completely hostile that P.W. 2 is only partially hostile in so far as he has stuck to his original version in everything except the actual incident. The learned trial Judge has clearly taken note of this factor for the limited purpose of ascertaining as to whether or not P.W. 2 can safely be held to have been with the deceased when the incident took place which is of some consequence. We need to record that the appellants' learned counsel has attacked his evidence very strongly and has submitted that it is an error of law to place any reliance on any part of his evidence. We are inclined to partially uphold this submission in so far as his evidence would be useless to the extent of the Court placing reliance on it on the question of culpability of the accused. However, there is a substratum of evidence where what he has deposed to falls in with the . general scheme of the case and after appreciating the evidence very carefully and hearing the two learned counsel, we need to record that the finding of the learned trial Judge that P.W.2-Nagaraj was present with the deceased and was accompanying him in the cart up to the point when the incident took place, is established. The learned Addl. SPP submitted that in the hostile background in which the two groups of persons were placed, that P.W.2 who is a small man in so far as he is a mere Coolie has tried to distance himself from making any statement that could implicate the accused or for that matter assist the opposite party. The learned Addl. SPP submitted that it is really the aspect of self-preservation of a small individual that has made P.W. 2 resile from his statement vis-a-vis the actual incident. We cannot fathom the reasons why P.W. 2 has departed from his earlier version and it is for this reason therefore, that we propose to make very limited use of his evidence. We cannot however accept the extreme position canvassed by the defence that P.W. 2 was nowhere near the scene of incident and that P.W. 2 was not a person who communicated the happenings to P.W. 1.
5. Before dealing with the evidence of P.W. 1, we need to record a few significant aspects with regard to the evidence of P.W. 2-Nagaraju. Firstly, there is a clear cut admission on his part that he had given his bullocks to the deceased for use on the cart on that day for a sum of Rs. 50/-. This is very material because admittedly, the deceased was accompanying the cart at the time when it reached near the temple where the incident took place. The record indicates that after the incident, the cart remained there and that the bullocks were only unyoked after the Police came to the spot. In addition to this, there is a second admission of consequence by P.W. 2 in his evidence where he states that the cut pieces of wood from the tree were in the cart. The learned trial Judge has very rightly on the basis of this evidence held that there is no dispute about the fact that P.W. 2 was accompanying the cart and probably driving it when the incident took place and this aspect of the case is important because it fully supports the version of P.W. 1 who states that it was P.W. 2 who ran to him and informed him of the incident.
6. As far as the evidence of P.W.I is concerned, he states that immediately on being informed of the assault by A1 to A3 on his brother, that he rushed to that spot and he deposes to the fact that he saw the Al assaulting with the cart peg, A2 assaulting with the iron rod and A3 assaulting with the axe. He has also indicated the areas of the body on which these accused were assaulting his brother and for purposes of crosschecking, we have carefully perused the medical evidence and the post-mortem notes and we find that corresponding injuries are to be found on the deceased. According to him, the accused immediately ran away from that place because he shouted. This witness has been cross-examined in great detail about the family affairs and the defence has also seriously disputed the possibility of his having seen the incident. Judging from the fact that P.W. 1 was at the spot which is reasonably close to the scene of offence, Mr. Parthasarathy submitted that irrespective of who assaulted the deceased, that it would have created a commotion and that it is this that ultimately brought the P.W. 1 to the scene and not the intimation from P.W. 2. Learned counsel pointed out to us that the assault on the deceased could not have lasted long and whosoever did it would have immediately run away from that place and that even if P.W. 1 rushed to the spot, that he could not have witnessed the actual assault and further more that it is quite impossible that the assailants would have still been there by the time he got to that spot. We have again very carefully examined this aspect of the case because there is the basic charge against P.W. 1 that since he was intensely hostile to the accused that he would always look for an opportunity to involve and implicate them and in this background, every aspect of his evidence requires extra special scrutiny. We have taken note of the fact that having regard to the short distance involved, that it would have hardly taken any time for P.W. 2 to have rushed to where P.W. 1 was and having regard to the nature of the news namely that the brother was being assaulted by the three accused, P.W. 1 would have got doubly alarmed and rushed to that spot. All of this would not have taken much time and having regard to the general tenor and calibre of his evidence and the fact that it has remained absolutely unshaken and unscathed in the cross-examination, there is really no ground on which we can call into question the quality of the evidence of P.W. 1.
7. On the important question as to whether a Court would be right in placing heavy reliance on the evidence of a self-professed enemy, we have duly observed the requisite caution namely that this evidence would have to be fully and completely corroborated through other evidence before it forms the basis of a conviction. On the other hand, we take note of the fact that the law is equally clear that merely because a witness is a relative or is interested or is hostile to the accused, that ipso facto there is no legal sanction to reject the evidence in toto. The law is that it has got to be examined very carefully. The law is that it has to be accepted with a degree of caution provided it passes the general test of credibility and the law also is to the effect that normally, as a measure of safety, a Court would look to other supportive evidence and not base a conviction solely on such evidence. These basically are the guidelines that we have applied while assessing his evidence and while considering its evidenciary value. Suffice it to say on the basis of intrinsic quality, we confirm the view expressed by the learned trial Judge that the evidence does inspire confidence. One of the reasons for this is because P.W. 1 has been subjected to very detailed and very grilling cross-examination and the evidence remains unshattered.
8. The evidence of P.W. 3-Chik-kathayamma is of some consequence. According to her, she had gone to the flour mill which is situated closeby and she categorically states that immediately after the incident, she has seen Al, A2 and A3 running away and she not only identifies them but she also states that Al had a cart peg with him, A2 was carrying the iron rod and A3 was carrying the axe. It is true that some criticism perhaps to a slightly lesser degree has been advanced by the appellants' learned counsel as far as this evidence is concerned in so far as he states that being the sister of the deceased, she is bound to tow the line which P.W. 1 has commenced and that she would stand by whatever he does. P.W. 3 is an adult and her evidence has been tested in cross-examination in its own right. Nothing has been brought on record on the basis of which the Court can either hold that her credibility or veracity is vulnerable. This evidence has again been accepted by the learned trial Judge and in our considered view rightly, because, while it is true that P.W. 3 has not witnessed the incident, what is crucial is that she has been the accused leaving the scene of offence immediately after the incident armed with the very weapons with which it is alleged that the deceased was assaulted. There is no difficulty with regard to the identity because P.W. 3 knows the three accused and the incident has taken place in broad day light. It was pointed out to us by the appellants' learned counsel that P.W. 3 admits that there were several persons at the mill and he submits that instead of relying on P.W. 3 who is highly interested and hostile to the accused and a family member of the deceased, that the prosecution ought to have banked upon the evidence of any one of the other persons who were near the mill since the learned counsel submits that if P.W. 3 saw the accused, then they would also have seen them and it would certainly inspire confidence if independent outsiders come forward as witnesses. He has also pointed out from the evidence of P.W. 1 that admittedly, many other persons have gathered at that spot and he banks heavily on the fact that all the rest of these persons have not supported the prosecution. His submission is that if P.Ws. 1 and 3 were telling the truth, this is rather strange that P.W. 2 and as many as 14 of the other witnesses would not have turned hostile and he therefore contends that even going by mere numbers, the Court ought to consider the evidence of these two witnesses namely P.Ws. 1 and 3 with a very high degree of suspicion. We have already indicated that in the light of the protracted hostilities and various violent incidents, that there might have been reasons why the remaining persons who were initially cited as witnesses did not desire to support the prosecution evidence because it would amount to an involvement one way or the other. There are many other possibilities which we would prefer not to speculate upon including the direct charge that invariably emanates from the prosecution, that pressures could have been exerted from the side of the accused themselves. The mere fact that all the remaining witnesses including two of the witnesses who had taken part in the recovery have turned hostile is not ground on which the good evidence can be called into question.
9. The other head of evidence which we need to deal with very briefly is with regard to the charge against the accused that their not being available in the village after the incident took place for a period of ten days constitutes abscondance and is a guilty circumstance. It has come on record that Al and A2 were arrested only on 9-2-91 at Gundlupet Bus Stand and that A3 was arrested on 6-2-91 at Kumbar Koppal. The explanation put forward by the accused is that they had left the village in normal course and A2 has even sought to point out that he is not a regular resident of the village. Al has sought to state that he had gone away in connection with a health problem and was under treatment but the learned trial Judge has considered all these explanations and has rejected them on the ground that none of these pleas have been substantiated. The appellants' learned counsel submitted that the reasons why the accused were not present in the village after the incident may be several such as the one pleaded and he pointed out that the learned trial Judge has applied the principles applicable to a defence of alibi and held that the accused ought to have proved the reasons for their absence from that place through evidence. His submission is that there is no requirement of law because this was not a plea of alibi but a mere explanation for their not having been present in the village for a few days and that a distinction will have to be drawn. We do agree that the accused have not entered a plea of alibi but at the same time, the fact that they were not found in the village after the incident in the absence of their having produced some reliable material in support of their absence, would inevitably be a guilty circumstance. The learned trial Judge has therefore rightly relied on this circumstance of abscondance as a circumstance of guilt.
10. As far as the medical evidence is concerned, we do not propose to deal with it at any length except to the extent of pointing out that we have very carefully perused the number of injuries and the nature of injuries and the medical evidence for purposes of correlating these with the deposition of P.W. 1. P.W. 1 had clearly indicated the three types of weapons that were used in the course of assault, the manner in which these weapons were used and the parts of the body on which the attack was directed. It is these three heads that require to be correlated with the medical evidence and on doing so, we find that the two correspond perfectly. The doctor has also opined on the basis of injuries that have been pointed out by him that these are the type of injuries that could have resulted from an assault with the type of weapons which the accused had used. This is a crucial aspect of the case because there is a serious challenge to the acceptability of the evidence of P.W. 1 and we find that the medical evidence which is virtually documentary evidence is something that so completely and perfectly compliments the evidence of P.W. 1 that it would have been impossible for this to happen if P.W. 1 had not witnessed the incident or if he was fabricating or wrongly implicating the accused.
11. In recording a conviction against the accused, the learned trial Judge has thereafter examined the evidence relating to recovery. As far as the M.O.I is concerned, which is the iron rod it is the prosecution case that this was recovered at the instance of Al pursuant to a voluntary statement made by him. This evidence has been accepted by the learned trial Judge and we have reviewed the grounds on which this has been done and we are satisfied that the recovery is in order. The appellants' learned counsel pointed out to us that an error of some seriousness had occurred because even though the item has been exhibited in Court and forms part of the property that due to an obvious procedural error the item was not marked by the learned Judge. The submission is that this item therefore has to be completely ignored. The learned Addl. SPP has pointed out to us that assuming that a procedural error has taken place, the Court would have to regard this error or lapse as a curable one in so far as if the evidence of recovery passes scrutiny and more importantly, if it is physically demonstrated that the weapon has been produced in Court and duly identified, the mere fact that it has not been marked would not be sufficient to discard the item in toto. The correct position would be that the error would have to be ignored in so far as it is an obvious mistake.
12. Coming to the next item of recovery namely the cart peg which is M.O. 1, the recovery of this item has been accepted by the learned trial Judge and has also been deposed to by the Investigating Officer. The same position applies with regard to the axe which is M.O. 2 but we are bracketing these two items because at the hearing of the appeal, the items were called for and were seen by the learned Advocates and one of the submissions canvassed was that there do not appear to be clear distinguishable markings or labels on these two items. We are not impressed by this head of criticism because the description of the articles in question is very clear. We also take note of the number of years that have passed and, having regard to the record which we have scrutinised, we find that there is no ambiguity about the correctness of these two items. We have however taken note of another aspect of the case which is of importance in relation to these two items which was repeatedly emphasised by the appellants' learned counsel. He pointed out to us that the iron rod in question is not a lethal weapon of the type one would probably be armed with if the intention was to do away with a person. M.O. 1 in fact is a cart peg or probably a club which could have also been used for purposes of assaulting somebody. More importantly, the appellants' learned Advocate drew our attention to the fact that M.O. 2 is not the traditional type of axe but happens to be an axe which is normally used by persons for cutting small branches. This does make a considerable difference because again, M.O. 2 would be the type of implement that an agriculturist in a village would normally be carrying in the course of his daily functions. We shall have occasion to indicate something with regard to the type of weapons used, at a subsequent point in this Judgment. The learned trial Judge has not placed much reliance on the recovery evidence and the appellants' learned counsel submitted before us that this evidence should be totally discarded. There is hardly any valid ground on which this submission can be upheld. We need to record that the recovery evidence is of some consequence because on the one hand it fully corroborates the evidence of P.Ws. 1 and 3 who have described the weapons and on the other hand, it acts as a nexus between the accused and the incident or the offence because the recoveries have been at their instance. Basically, the criticism is that the panchas who had assisted in the recovery have all not been examined and that they have in greater part, not supported the prosecution. The law on the point is virtually settled by the decision of the Supreme Court reported in Modan Singh's case AIR 1978 Supreme Court 1511 : 1978 Cri LJ 1511 where the evidence is acceptable as long as the IO substantiates it.
13. Having very carefully reassessed the entire record and having applied out minds to the submissions canvassed on behalf of the appellants, we have also perused the line of reasoning adopted by the learned trial Judge, and we are of the considered view that the findings recorded by the lower Court are liable to be upheld. We need to record here that the learned Addl. SPP submittted that inevitably, in situations such as the present one that it would be extremely difficult for the prosecution to be able to get totally unconnected persons to come forward and depose as witnesses having regard to the type of fear and several other factors and the learned Addl. SPP also submitted that in situations where family members are involved inevitably, the prosecution would only be able to bring forward other members of the family as witnesses. This is an aspect of the case which merits consideration. He has also drawn our attention to the rest of the evidence which generally supports the evidence of P.Ws. 1 and 3 namely the evidence of P.W. 8 who is the mother of the deceased who has given a general background of the happenings and has also deposed about the condition in which the body of the deceased was. Similarly, P.W. 9-Sakamma who is the wife of the deceased has deposed about the injuries on his person. More importantly, a very important admission has come out in the cross-examination of this witness who has in terms deposed to the fact that on the date in question, it was P.W. 2-Nagaraju who had accompanied her deceased husband driving the cart when that sat out in the morning for purposes of bringing the timber. This evidence is crucial because of the dispute that has been raised by the defence with regard to whether at all Nagaraju had any part to play on that date. P.W. 22 is the Pancha who has spoken about the recoveries of M.Os. 1 and 2 and the learned Addl. SPP submits that in the light of P.W. 22's evidence, the learned trial Judge was in error in having discarded the important evidence relating to recovery. The two memos Exhibits P. 14 and P. 15 have been signed by this witness and he has fully supported the prosecution case. This is one of the additional grounds on which we have placed reliance on the recovery evidence.
14. In conclusion therefore, we need to hold that the finding recorded against Al to A3 that they were present on the date of incident i.e. 30-1-1991 at 3.30 p.m. in front of the Narayanaswamy temple, that they were armed with the cart peg, iron rod and axe respectively and that they assaulted the deceased Mahadeva Setty with these weapons and that they inflicted injuries on his person as a result of which he died, stands established. The learned trial Judge has, since the deceased was killed on the spot, recorded the finding that the three accused are liable to be convicted for the offence punishable under Section 302 read with Section 34, IPC.
15. The appellants' learned Counsel advanced two submissions before us on the question of conviction of the accused. Firstly, he submitted that the learned trial Judge has not carefully and independently assessed the thirteen injuries that were found on the person of the deceased and secondly, that the doctor has merely opined that two of the injuries i.e. the one on the head and the other on the legs were sufficient in the ordinary course of nature to cause death. His submission is that the Court ought to have assessed first of all as to whether at all it can be inferred that there was intention to kill Mahadeva Setty even assuming that the accused decided to assault him. The submission proceeds on the footing that none of the three weapons which are items of daily use or normally used by agriculturists can be termed as lethal weapons of assault which a person who decides to kill somebody would use. Consequently, his submission is that the manner in which the assault took place if carefully scrutinised will indicate that there were no stab injuries inflicted on vital parts of the body nor for that matter was the intensity of the blows of such gravity that would be aimed at killing a person. His submission therefore is that even if the accused are liable to be convicted, that at the highest the offence would come under Section 307, IPC and the second submission was that the Court must draw a distinction with regard to the liabilities of Al and A2 who were armed with comparatively harmless weapons and A3 who was earrying the axe. The learned Addl. SPP has vehemently objected to any alteration of the head of conviction because he submits that it is not the type of weapons that are used which matters but the manner in which these weapons were used, the number of blows inflicted, the parts of the body on which these blows were aimed and most importantly the effect namely the fact that the victim has in fact died on the spot, that matters. His submission is that the conviction under Section 302, IPC read with Section 34, IPC is perfectly in order and should not be altered.
16. We have carefully considered the legal position and we do see some justification for the submission that in the special facts and circumstances of this case that there is good ground to hold that having regard to the past hostilities and the fact that it was the deceased had entered the land and cut the tree, that the conviction would necessarily have to be brought down to one under Section 304, Part II, IPC. The reason for this is because even though the prosecution evidence is silent on the point this Court needs to take cognisance of the fact that the hostilities were not uni-direc-tional but that there were two way hostilites. It is sad that Mahadeva Setty lost his life in the incident but the fact remains that he was very much a party to the earlier hostilities and having regard to all that had transpired, there was no doubt about the fact that it was the accused obviously who desired to settle scores with him by giving him a sound beating. Had the intention been to kill, it is very clear that they would have used the traditional sharp edged weapons and not the ones in question. We are also inclined to hold, on a careful scrutiny of the evidence, that the incident was sporadic and not preplanned and was provoked by the fact that the deceased cut the tree and was taking away the timber. These are distinguishable features of the case which would justify reduction of the head of conviction to one under Section 304, Part II, IPC. At the same time, we decline to make any distinction between the accused for the simple reason that the facts clearly indicate that they were acting in furtherance of a common objective, that they had participated in the incident together and consequently, irrespective of the weapons which each one has used or what the direct effect of the individual blow might have been, the liability in law would be common and consequently, we refrain from making any distinction as far as this aspect of the case is concerned.
17. Lastly, on the question of sentence, the appellants' learned counsel advanced a strong plea that this Court must take into consideration the fact that the appellants-accused have spent approximately eight-and-half years in Jail and he submitted that they are three brothers, that they are agriculturists and not criminals in the traditional sense of the term, that they have no past record of criminality in the sense that even though there are complaints and counter-complaints, there is evidence of earlier convictions and he therefore submitted that even if the Court were to award a heavy sentence to them, that the interest of justice would require that the period already undergone should suffice. An examination of the record indicates that the appellants have been in custody for a period of approximately eight years and five months. We mention this duration for purposes of recording that having regard to the seriousness of the offence, that this Court is not taking a lenient view but that this Court is taking cognizance of the fact that the accused have been sufficiently punished. We are in this respect, guided by recent decision of the Supreme Court in the case of K. Ramakrishnan Unnihan v. State of Kerala wherein the Supreme Court while recording a conviction under Section 304, Part II, IPC held that the sentence of four years undergone in that case was adequate, the additional reason being that thirteen years had elapsed since the date of incident. In our considered view, the interest of justice would be sufficiently met if the accused are directed to undergo sentence for the period that has already been undergone by them.
18. The appeal partially succeeds. The conviction and sentence recorded against the appellants under Section 302 read with Section 34, IPC is set aside, in its place the three appellants stand convicted of the offence punishable under Sections 304, Part II read with Section 34, IPC and it is directed that they shall undergo imprisonment for the period that has already been undergone by them. Each of the accused is further directed to pay a fine of Rs. 1,500/- which amount will have to be deposited by them in the trial Court within an outer limit of three months from today.
19. This Court is not awarding an indefault sentence because if the fine amount for any reason is not deposited within this period, the same shall be recovered by the trial Court from the accused in the manner prescribed by law and we further direct that when the amount is recovered, the trial Court shall issue notice to P.W. 9 the widow of the deceased and pay over the amount of Rs. 4,500/- to her. We also clarify that since the sentence has been reduced to the period already unergone, that the appellants would be entitled to be released from custody, forthwith, if not required in connection with any other case and the non-payment of the fine shall not come in the way of their release.
20. The appeal partially succeeds and stands disposed of.