IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 18TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL No.1179 OF 2013 BETWEEN:
SRI. SHANTHAPPA GOWDA AGED ABOUT 45 YEARS SON OF LATE RAMANNA GOWDA RESIDING AT NARAMAJE HOUSE BANDARU VILLAGE BELTHANGADY VILLAGE BELTHANGADY TALUK-574 326. ... APPELLANT (BY SRI CHANDRANATH ARIGA K., ADVOCATE) AND:
1. STATE BY CIRCLE INSPECTOR OF POLICE PUTTUR RURAL POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR BENGALURU-560 001.
2. SRI. DHARMANNA GOWDA SON OF THIMMAYA GOWDA AGED ABOUT 48 YEARS RESIDING AT NINNI KALLU HOUSE BANDARU VILLAGE-574 326 BELTHANGADY TALUK DAKSHINA KANNADA.
3. SMT. MOHINI @ LALITHA WIFE OF DHARMANNA GOWDA AGED ABOUT 42 YEARS RESIDING AT NINNI KALLU HOUSE BANDARU VILLAGE-574 326 BELTHANGADY TALUK DAKSHINA KANNADA. ... RESPONDENTS (BY SRI V.S. HEGDE, STATE PUBLIC PROSECUTOR-II FOR RESPONDENT NO.1 SRI. A KESHAVA BHAT, ADVOCATE FOR RESPONDENT NOS.2 AND 3) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF CRIMINAL PROCEDURE CODE PRAYING TO MODIFY THE CONVICTION DATED 11.10.2013 PASSED BY THE V ADDITIONAL DISTIRCT AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU SITTING AT PUTTUR, DAKSHINA KANNADA IN SESSIONS CASE NO.79 OF 2006.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 19.09.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:
JUDGMENT This appeal is filed by the complainant challenging the judgment and order of acquittal dated 11.10.2013 passed in S.C.No.79 of 2006 for the offences punishable under Sections 504, 302 read with Section 34 of Indian Penal Code, on the file of the V Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, Sitting at Puttur.
Brief facts of the case:
2. It is the case of the prosecution that accused Nos.1 and 2 are the husband and wife and the deceased is the neighbour and fellow resident of Bandaru Village, Belthangady Taluk. C.W.4 – Thaniyappa Gowda is the brother-in-law of the accused No.1. Both were having a dispute regarding road and for this reason their relationship was strained. The deceased is the father of P.W.1- Shanthappa Gowda and fellow resident of Bandaru Village of Belthangady Taluk, who owns arecanut garden in Sy.No.232/2 of Narmaje of Bandaru Village. C.W.4 was working under the deceased as labour. For this reason both the accused were under an impression that the deceased was assisting C.W.4 in the road dispute, which prompted them to teach a lesson to the deceased. They decided to commit the murder of the deceased and waited for an opportunity to implement their common intention. Such opportunity came to them on 25.3.2006. As on that day, at about 8.00 p.m., the deceased was in his arecanut garden in Sy.No.232/3, fixing sprinkler jet to pump water to the land. Both the accused having seen the presence of the deceased alone in the land, in order to prosecute their common intention of committing the murder, armed with wooden clubs, trespassed into the said land, picked up quarrel with the deceased, abused him in filthy language, so as to cause breach of peace, intentionally insulted the deceased and in furtherance the accused No.1 by means of wooden club did inflict head injury to the deceased. Accused No.2 also did inflict injury on the right shoulder, due to which the deceased fell to the ground. Both the accused caused grievous injuries to the deceased. After hearing the screaming sound, the family members of the deceased rushed to the spot. The accused persons by seeing the arrival of the family members of the deceased and others, left the place. Immediately the deceased was taken to the Wenlock Hospital and inspite of best efforts, he did not survive and succumbed to the injuries on 26.3.2006.
3. The police based on the complaint of P.W.1, registered the case and thereafter investigated the matter and recoveries were also made at the instance of the accused persons. After the completion of the investigation, the police have filed the charge-sheet against the accused persons for the offences punishable under Sections 447, 504, 302 read with Section 34 of Indian Penal Code.
4. The accused persons were secured and they did not plead guilty and claimed trial. Hence, the prosecution examined P.Ws.1 to 13 and got marked Exs.P.1 to 16 and M.Os.1 to 10. The statement of the accused persons under Section 313 of the Code of Criminal Procedure was also recorded. The defence also examined witnesses D.Ws.1 to 6 and relied upon Exs.D1 to 5. The Court below considering both oral and documentary evidence available on record and after hearing the arguments of the respective counsel, acquitted accused Nos.1 and 2 for the offences punishable under Sections 504, 302 read with Section 34 of Indian Penal Code, convicted accused No.1 for the offences punishable under Sections 447 and 304 Part II of Indian Penal Code, convicted accused No.2 for the offences punishable under Sections 447 and 324 of Indian Penal Code. Being aggrieved by the judgment of acquittal for the offences punishable under Sections 504, 302 read with Section 34 of Indian Penal Code, the present appeal is filed by the complainant.
5. The grounds of appeal are that the Court below has committed an error in acquitting the accused persons for the offences punishable under Section 302 read with Section 34 of Indian Penal Code. The lower Court ought to have held that the facts and circumstances of the case would definitely make out the intentions on the part of the assailants to cause death. The Court below has also committed an error in taking lenient view in imposing the sentence of only eight months and fine of Rs.25,000/- for the offence punishable under Section 304 Part II of Indian Penal Code and sentence of three months and fine of Rs.5,000/- for the offence punishable under Section 324 of Indian Penal Code. The sentence of three months and fine of Rs.500/- for the offence punishable under Section 447 of Indian Penal Code is also very meager. The Court below ought to have convicted the accused persons for the offences punishable under Section 302 read with Section 34 of Indian Penal Code and also ought to have imposed appropriate sentence. The very sentence imposed by the Court below shocks the conscience of the Court. Hence, it requires interference of this Court.
6. The counsel appearing for the complainant vehemently contended that the Court below has committed an error in not appreciating the evidence, particularly the evidence of P.Ws.1 to 4, who have spoken that with an intention to take away the life of the deceased, both the accused have assaulted with club and there was a pre- meditation and so also they trespassed into the land of the deceased and assaulted on the vital part. The Court below taking note of the injuries sustained by the accused No.1, expressed its lenience while sentencing the accused.
Hence, prayed this Court to allow the appeal and instead of convicting the accused for the offence punishable under Section 304 Part II of Indian Penal Code, to convict the accused for the offence punishable under Section 302 of Indian Penal Code. The Court below also erred in acquitting the accused persons for the offence punishable under Section 504 of Indian Penal Code. Hence, it requires interference of this Court.
7. Per contra, the counsel appearing for the respondent/accused in his argument vehemently contended that the prosecution did not explain the injuries sustained by the accused No.1. The prosecution suppressed the genesis of the case and none of the witnesses, who claim that they are the eyewitnesses to the incident, have spoken anything about the injury caused to accused No.1. The defence also adduced the evidence and particularly relied upon the evidence of doctor – D.W.1, who treated accused No.1. Injury certificate is also marked as Ex.D.5. It corroborates the case of the defence and the Court below committed an error in convicting the accused. The Trial Judge ought to have acquitted accused No.1 even for the offences punishable under Section 447 and 304 Part II of Indian Penal Code. Hence, prayed this Court to dismiss this appeal.
8. Having considered the arguments of the complainant’s counsel and also the accused counsel, this Court has to re-appreciate the material available on record insofar as to grounds urged in the appeal whether the ingredients of Section 302 of Indian Penal Code are proved. The Court below has considered the material available on record in bringing the offence within the purview of Section 304 Part II of Indian Penal Code. Hence, the points that arise for our consideration are:
(i) Whether the Court below has committed an error in acquitting the accused persons for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and committed an error in convicting accused No.1 for the offence punishable under Section 304 Part II of Indian Penal Code and it requires interference of this Court?
(ii) Whether the Court below has committed an error in convicting the accused for the offence punishable under Section 447 of Indian Penal Code and it requires interference of this Court?
(iii) Whether the Court below has committed an error in acquitting the accused persons for the offence punishable under Section 504 of Indian Penal Code and it requires interference of this Court?
(iv) What order?
Point (iii):
9. Before considering point Nos.(i) and (ii), this Court would like to consider any material to convict the accused persons for the offence punishable under Section 504 of Indian Penal Code, since the Court below acquitted the accused persons for the offence punishable under Section 504 of Indian Penal Code. Having considered the evidence available on record, it is evident that none of the witnesses have spoken with regard to abuse made by the accused Nos.1 and 2. The Trial Court while considering the point for consideration, has taken note of the evidence available on record. While answering point No.4 in paragraph No.42, the Trial Court has held that it is seen from the evidence of the prosecution witnesses, particularly P.Ws.1 to 4 that they did not hear the conversation between the accused and the deceased, there was any exchange of filthy language throwing each other with an intention to insult the deceased and as such the ingredient of the offence under Section 504 of Indian Penal Code cannot be attracted. In the absence of the same, the Court cannot reverse the findings of the Trial Court. No doubt, it is the case of the prosecution that the accused Nos.1 and 2 abused the deceased in filthy language. But it has to be noted that the witnesses rushed to the spot only after hearing the screaming sound. Hence, this Court cannot reverse the findings of the Trial Court regarding Section 504 of Indian Penal Code and hence we do not find any reasons to convict the accused persons for the offence punishable under Section 504 of Indian Penal Code, by re- appreciating the evidence.
Point (i), (ii) and (iv):
10. Now this Court has to re-appreciate the material available before this Court regarding whether the ingredients of Section 300 of Indian Penal Code are proved and whether the case comes within the purview of exception to Section 300 of Indian Penal Code to bring the case within the purview of Section 304 Part II of Indian Penal Code. It has to be noted that it is contention of the complainant’s counsel that the accused persons have trespassed into the land of the complainant and assaulted the deceased when he was alone in the land, with deadly weapons like wooden club. The Court below while considering the material available on record has taken note of the fact that accused Nos.1 and 2 did not deny that they were not having any dispute either with C.W.4 or with the deceased and in the evidence of the defence witnesses also they admit that there was a dispute with the deceased also. It is the case of the prosecution that accused Nos.1 and 2 thinking that the deceased was supporting C.W.4, who is the relative of accused Nos.1 and 2, with regard to the dispute in respect of the road, have committed the murder of the deceased. Though the defence disputes the incident had not taken place in the land of the deceased and contended that the incident had taken place in the road, the defence did not place any material to accept the contention of the accused persons.
11. The prosecution relied upon the sketch, which is marked as Ex.P.9. It discloses that the incident had taken place within the vicinity of arecanut land of the deceased. The sketch – Ex.P.9 is also not disputed during the course of cross-examination of prosecution witnesses. The sketch clearly depicts the respective houses of the accused and the deceased. The land of the deceased and the accused are bifurcated with the road. Though an attempt is made by the defence to show that the incident had taken place on the road, nothing is placed on record. Instead, the prosecution relied upon the spot mahazar and seizure of the articles at the spot. Hence, the very defence of the accused that the incident had taken place on the road, cannot be accepted.
12. Now the question before this Court is with regard to whether the case comes within the purview of Section 304 Part II of Indian Penal Code or Section 302 of Indian Penal Code, since the accused persons have not filed any appeal against the judgment of conviction against them for the offences punishable under Sections 447 and 304 Part II of Indian Penal Code. It is the definite finding of the Trial Court that accused Nos.1 and 2 have trespassed into the land of the deceased. The sketch, which is marked as Ex.P.9 clearly shows the place of incident. The main contention of the accused counsel is that accused No.1 also sustained injuries and Ex.D.5 wound certificate is marked. In order to consider the evidence of the defence, this Court also can take into note the evidence of the doctor – D.W.1. It has to be noted that the doctor in his evidence stated that the accused No.1 had sustained injuries on the front of his head measuring 12 cm. x 1 cm. and there was a fracture of the skull and he was treated at Wenlock Hospital. In the further examination, he also says that the wound certificate was issued, but he claims that the said injury could be caused if any person is inflicted injury with the machete. He was subjected to cross-examination.
13. In the cross-examination, it is elicited that accused No.1 was having conscious when he came to treatment. He also admits that such injury could be caused if any person is assaulted with the club also. He further admits that when two persons involve in a scuffle, and if he is having any weapon in his hand, in the course of inflicting the injury to others, he may sustain injury in the said weapon. It is also elicited in the evidence of D.W.1 that if any person is subjected to assault, in order to protect his life, he may assault the other person, who is assaulting him.
14. Taking into note of the answers elicited in the cross-examination of D.W.1 and also Ex.D.5, it is evident that accused No.1 had sustained injury only on his head and there were no other injuries. But taking consideration of the defence evidence, i.e., D.W.2 – accused No.1, who in his evidence says that when he was proceeding in the road, three persons came and abused him claiming that they need the road and the deceased assaulted him with the club on his right shoulder. P.W.1 assaulted him with machete on his head and the other third person, who was at the spot, pushed him. Hearing the screaming sound, when his wife rushed to the spot, P.W.1 pushed her. The defence witnesses also did not tell how the deceased had sustained injuries. It has to be noted that if really the deceased assaulted accused No.1 – D.W.2, with the club on his right shoulder, he could have sustained the injury on right shoulder also. But no injuries were found on the right shoulder and hence the theory of the defence cannot be accepted.
15. Taking into note of the evidence of doctor – D.W.1, it is clear that if any person is subjected to assault, in order to prevent the assault, he may inflict the injury to the attacking person. But, there is no evidence before the Court as to who is the aggressor, whether the deceased or accused No.1. It is not the case of D.W.2 also that in order to exercise the right of private defence, he inflicted the injury on the deceased. But they did not dispute the fact of scuffle between them. The Court below while considering the evidence available on record, did not consider the evidence of doctor – D.W.1, particularly the answers elicited in the cross-examination, who treated D.W.2. But the Court below has taken note of the injuries sustained by accused No.1. The Court below while considering the offence under Section 302 of Indian Penal Code and ingredients of Section 300 of Indian Penal Code, has observed that the incident was not one sided, it happened in a scuffle. One has gone against another in a bit of anger. Before the arrival of P.Ws.1 to 4 at the spot, the accused No.1 had already received the injury from the hands of the deceased and as such the accused No.1 cannot be able to see as to who is the real aggressor. This Court also considered the evidence of P.Ws.1 to 4. In the absence of the appeal by the accused persons, this Court only has to consider the genesis of the incident. It is the observation of the Trial Court that the accused persons have never intended that the quarrel will culminate in the death of the deceased or that accused No.1 may sustain the injuries. It is the reasoning of the Trial Court that the prosecution evidence did fail to bail out from the exception 1 to 5 to Section 300 of Indian Penal Code so as to determine the offence of Section 302 of Indian Penal Code.
16. The accused on the other hand did explain that the deceased received the injuries in a scuffle and there was any pre-meditated act or any intention to commit the murder. The very observation of the Trial Court is not based on the material available on record and we have already mentioned that the prosecution witnesses did not explain the injuries sustained by accused No.1 and also the witnesses who have been examined on behalf of the defence have also not spoken anything about the injuries sustained by the deceased. No doubt the prosecution has to explain the injuries sustained by accused No.1. But taking note of the injuries sustained by accused No.1 i.e., only a single blow and the defence also did not dispute the scuffle. When there were two assailants, the deceased who had sustained 9 injuries and there are chances of inflicting one injury on the accused No.1 at the time of scuffle. The accused also did not dispute the number of injuries sustained by the deceased. But the Court below comes to the conclusion that the act of the accused fall under exception No.4 of Section 300 of Indian Penal Code. As such the homicidal death of the deceased will not satisfy the ingredients of the offence under Section 300 of Indian Penal Code and therefore the act of accused No.1 inflicting injury on the head of the deceased in a sudden fight and scuffle and as such the death of the deceased in the hands of accused No.1 did not fall within the ambit of Section 302 of Indian Penal Code but it clearly fall within the ambit of Section 304 Part II of Indian Penal Code.
17. It has to be noted that there was no prior enmity between the accused persons and the deceased. The case of the prosecution is that the accused persons were having ill-will against the deceased family that they are supporting C.W.4, who happens to be the relatives of accused persons. On the other hand, defence is that there was a land dispute between the accused persons and the deceased. The incident had taken place at around 8.30 p.m. It is also important to note that the accused No.1 also gave a complaint and after the investigation, ‘B’ report was filed and ultimately same was accepted. There was no counter case. The Court below taking note of the injuries sustained by the deceased, which caused death and the injuries sustained by the accused No.1, brought the offence within the purview of Section 304 Part II of Indian Penal Code. We do not find any error committed by the Court below in bringing the case within the purview of Section 304 Part II of Indian Penal Code instead of Section 302 of Indian Penal Code. Hence, the appeal filed by the complainant with regard to questioning the acquittal of the accused persons for the offence punishable under Section 302 of Indian Penal Code is not sustainable in the eye of law.
18. However, taking into consideration of the quantum of sentence awarded by the Trial Court, the Court below has committed an error in sentencing accused No.1 only for eight months and while sentencing for a period of eight months, it has observed that it is a special case where the Court is able to see convincingly the mitigating circumstance is weighing less than that of extenuating circumstances. It has also observed that the incident had taken place 7½ years ago and the accused persons are having minor children and the said reasoning cannot be accepted. It has to be noted that the accused persons trespassed the land of the deceased and inflicted injuries, particularly on the head and the accused was aware that the same is likely to cause the death but may be the accused No.1 was not having any intention to commit the murder. We have already pointed out that the incident had not taken place in the road and the same was in the arecanut land of the deceased. The accused himself went to the land of the deceased and inflicted injuries. Hence, the very approach of the Trial Court is erroneous with regard to imposing the sentence is concerned. It has to be noted that the Court below in paragraph No.7 of the judgment has discussed with regard to the punishment for the offence punishable under Section 304 Part II of Indian Penal Code that imposes the punishment with imprisonment of either description for a term which may extend to ten years, or with fine, or with both. But while sentencing, a lenient view was taken imposing rigorous imprisonment for a period of eight months and imposed fine of Rs.25,000/- and the same has to be modified. Instead of eight months, taking into note of circumstances under which the incident had taken place, it is appropriate to make it five years and to enhance the fine for the offence punishable under Section 304 Part II of Indian Penal Code and for an offence punishable under Section 447 of Indian Penal Code against accused No.1 and also for the offence punishable under Section 324 and 447 of Indian Penal Code against accused No.2.
19. In view of the discussions made above, we pass the following:
ORDER (i) The appeal filed by the complainant is allowed in part.
(ii) The conviction of accused No.1 for the offence punishable under Section 304 Part II of Indian Penal Code is confirmed. The sentence is modified as rigorous imprisonment for a period of five years instead of eight months and directed to pay a fine of Rs.50,000/- as against 25,000/- for the offence punishable under Section 304 II of Indian Penal Code. In default of payment of fine of Rs.50,000/-, he shall undergo rigorous imprisonment for a period of six months.
(iii) The accused No.1 is directed to pay fine of Rs.5,000/- as against Rs.500/- for the offence punishable under Section 447 of Indian Penal Code.
(a) The convictions against accused No.2 for the offences punishable under Sections 447 and 324 of Indian Penal Code are also confirmed. The sentence of fine is modified as hereunder.
(b) The accused No.2 is directed to pay a fine of Rs.20,000/- as against Rs.5,000/- for the offence punishable under Section 324 of Indian Penal Code. In default of payment of the fine amount, he shall undergo simple imprisonment for a period of three months.
(c) The accused No.2 is directed to pay a fine of Rs.5,000/- as against Rs.500/- for the offence punishable under Section 447 of Indian Penal Code. In default of payment of the fine amount, he shall undergo simple imprisonment for a period of one month.
(d) The imprisonment for the offences punishable under Sections 447 and 324 of Indian Penal Code are unaltered.
(iv) Out of the fine amount, an amount of Rs.60,000/- is payable to P.W.1 and balance of the fine amount shall vest with the Government.
(v) Both the sentences shall run concurrently and accused Nos.1 and 2 are entitled for set off under Section 428 of Code of Criminal Procedure.
Sd/- Sd/-
JUDGE JUDGE MD