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2004 DIGILAW 334 (KAR)

CHANDU v. STATE BY KUNCHAWARAM POLICE STATION

2004-06-05

MANJULA CHELLUR, MOHAN M.SHANTANAGOUDAR

body2004
MANJULA CHELLUR, J. ( 1 ) THE appellant herein is the first accused who was convicted by the trial Court. It is not in dispute that two other accused-A2 and A3 were acquitted of the charges. Though an appeal was preferred by the State challenging the said acquittal, at the stage of admission itself, the appeal was dismissed. Therefore, we have to now concentrate only with regard to appellant-accused 1. ( 2 ) IT is not in dispute that, appellant and complainant-Pandu are all from the same Village Bikkunaik Tanda in Kunchawaram Police Station limits in Gulbarga District. The case of the prosecution unfolded before the Trial Court is as under: one Ramsingh had brothers and also sons in the said Tanda. P. Ws. 1 and 10 are the sons of Ramsingh, P. W. 8-Sitaramsingh is the brother of said Ramsingh. The family owned landed property, and we are now concerned with one of the properties i. e. , Survey No. 85. Mr. Sitaramsingh got share of a portion in Survey No. 85. Certain portion of said survey number went to the share of Mr. Tulsiram (elder brother of complainant) and Pandu (P. W. 1-complainant ). It is brought on record that house sites were formed in this survey number and sold to several residents of the said Tanda. In the meanwhile, the Government had acquired the said land in Survey No. 85 for the purpose of formation of sites under "ashraya Scheme". Hence, the purchasers of the sites were demanding return of money. There were disputes and quarrels between the alleged purchasers and also Seetharam and Tulsiram. In this regard, panchayat was held in the presence of elders of the village and so also the family members of complainant especially complainant, tulsiram-P. W. 10 and Seetharam-P. W. 8. P. W. 9-Chandru was Dalapati of the said Tanda who also took part in the panchayat. In the said panchayat, it was agreed for return of a portion of money. However, accused who is also the purchaser of certain sites, demanded for return of entire money and there was some sort of exchange of words, wherein he declared to finish off Tulsiram and complainant-Pandu. With the intervention of Chandru-P. W. 9, he went away. ( 3 ) PANDU was living separately along with his wife, three sons and one daughter. However, accused who is also the purchaser of certain sites, demanded for return of entire money and there was some sort of exchange of words, wherein he declared to finish off Tulsiram and complainant-Pandu. With the intervention of Chandru-P. W. 9, he went away. ( 3 ) PANDU was living separately along with his wife, three sons and one daughter. House of his uncle, brother and father were also situated in the same locality within the vicinity of each other. House of P. W. 9 is also near the house of Pandu. On the fateful night on 25-3-1993 at about 9. 00 p. m. , after having dinner along with his family members, Mr. Pandu, as it was summer, settled on the payal of the house in front of the main door along with his three sons. The wife and daughter slept inside the house. The deceased Vijayakumar, the last son, aged about 4 years, was sleeping on the chest of complainant. Suddenly in the midnight, he woke up on hearing the cry of his son Vijayakumar "baa" (in Lambani language it means father ). He also felt something heavy on his head. Therefore, he woke up. Then he notices A1 holding a stone and standing near his head trying to drop the said stone. According to the complainant, the said stone was dropped on the head of Vijayakumar and then the accused ran away. On hearing the cry of Vijayakumar and pandu, the inmates and the neighbours woke up and came to the spot. They all noticed head injury on the deceased Vijayakumar. With the help of neighbours, they took them to hospital. Unfortunately, before they could reach the hospital, Vijayakumar succumbed to injuries. Therefore, he went and lodged a complaint as per ex. P. 1 which was registered in Crime No. 3 of 1993 on the file of kunchawaram Police. A spot mahazar was conducted as per Ex. P. 3 at the spot. The bloodstained mat, bloodstained mud, bloodstained waist thread and shirt of the deceased were also recovered. Inquest was conducted in the hospital itself. The dead body was arranged for postmortem was done in the hospital, opining that the death was due to cerebral haemotoma, as a result of head injury. Merely 18 witnesses were examined in support of the case of the prosecution. Inquest was conducted in the hospital itself. The dead body was arranged for postmortem was done in the hospital, opining that the death was due to cerebral haemotoma, as a result of head injury. Merely 18 witnesses were examined in support of the case of the prosecution. No evidence was let in on behalf of the appellant-accused apart from marking exhibits. Several material objects were also marked for the prosecution. P. Ws. 1, 8, 9 and 10 are examined in order to prove the alleged motive i. e. , the dispute with regard to the formation of sites and return of money. P. W. 2 the wife of complainant speaks about the said quarrel and the fact that, on hearing the cry of her husband, she comes out of the house and notices the injury on her son. P. W. 3 is the witness for Ex. P. 2-inquest on the dead body of the deceased. So also P. W. 4 is another inquest witness. P. W. 5 is the spot mahazar witness i. e. , Ex. P. 3. P. W. 6 is the husband of sister of complainant who also gives certain facts before the Court about immediately what happened at the scene of offence after the incident. P. W. 7 another son of P. W. 1 complainant who is alleged to have seen the accused throwing the stone on the head of vijayakumar. P. W. 11-Doctor Pandurang who conducted autopsy on the dead body of Vijayakumar and the post-mortem report is at Ex. P. 4. His preliminary opinion is at Ex. P. 5. P. W. 12 is the Constable who took the dead body for post-mortem and after post-mortem, he handed over the dead body to the relatives. Ex. P. 3 is the spot mahazar conducted in the presence of Police Constable P. W. 12. P. W. 13 is the witness examined for recovery of bloodstained shirt M. O. 2 from the person of accused in the Police Station under Ex. P. 6. P. W. 14 another witness for the spot mahazar Ex. P. 3. P. W. 15 is the witness to another mahazar recovery of m. Os. 1, 6, 7, 8 and 9 at the spot. P. W. 16 is the KEB Operator who speaks about the supply of electricity on 25-3-1993, especially during relevant period. P. 6. P. W. 14 another witness for the spot mahazar Ex. P. 3. P. W. 15 is the witness to another mahazar recovery of m. Os. 1, 6, 7, 8 and 9 at the spot. P. W. 16 is the KEB Operator who speaks about the supply of electricity on 25-3-1993, especially during relevant period. P. W. 17 is the PSI who registered the case and did most of the investigation and lastly, P. W. 18-CPI, who did put of investigation and filed the charge-sheet. ( 4 ) THE main contention of the learned Counsel for the appellant-accused is, there was no motive as such which is established by the prosecution for the alleged act of the appellant so far as P. W. 1-the complainant is concerned. He further submits, so far as deceased vijayakumar is concerned, there is absolutely no evidence pointing out any motive or intention to kill said Vijayakumar on the part of the accused. Therefore, according to him, the offence would squarely attract the provisions of Section 304 of the IPC and not Section 302 of the IPC. As against this, the learned Government Pleader Mr. P. M. Nawaz brought to our notice relevant portions of evidence, and according to him, the offence established against the accused would squarely attract the provisions of Section 301 of the IPC and not Section 304 of the IPC. He also relies on the judgment in the case of Gyanendra Kumar v State of Uttar Pradesh. ( 5 ) THE evidence of the doctor, apart from the evidence of the relatives i. e. , the parents of the deceased Vijayakumar, point out that deceased sustained lacerated injury to the right side of the scalp, measuring by 1 x 1 x 0. 5 c. m. with underlying muscles and subcutaneous tissues stained with firm clotted blood. On dissection of the head, P. W. 11-Dr. Pandurang found fracture of the right parietal bone in its posterior part. On account of this meninges were torn against the fracture side and were congested. This has caused haematoma i. e. , right side cerebral hemisphere contains blood clots. The external and internal injuries correspond with each other and the entire impact was on the right side of the parietal bone in its posterior aspect. On account of this meninges were torn against the fracture side and were congested. This has caused haematoma i. e. , right side cerebral hemisphere contains blood clots. The external and internal injuries correspond with each other and the entire impact was on the right side of the parietal bone in its posterior aspect. The death was due to cardio-respiratory failure, as a result of haematoma present in the cerebral hemishpere which was secondary to the fracture. The post-mortem report and further opinion of the medical expert at Exs. P. 4 and P. 5 confirms the statement of the medical expert before the court. With this, we can definitely come to the conclusion that the death of Vijayakumar was homicidal in nature. But, we have to see whether it amounts to the offence charged against the accused i. e. , Section 302 of the IPC. ( 6 ) P. W. 3-Ramachandra also speaks about the injury on the dead body while conducting the inquest. Ex. P. 2 is the inquest mahazar. Then, coming to the place of incident, apart from the evidence of the investigating Officer, we have the mahazar i. e. , spot mahazar, which is brought on record as Ex. P. 7. P. W. 12-Shantappa and P. W. 15-Kishen speak about these facts. P. W. 12 depose that they had prepared the panchanama as per Ex. P. 3. M. Os. 3 and 4 were seized under Ex. P. 3. P. W. 7 speaks about the spot in which again M. O. 1-the mattres, M. O. 6 and M. O. 7, two bloodstained stones, so also, M. O. 8 and M. O. 9 were seized. The place of offence is the payal of the house of P. W. 1- complainant Pandu, attached to the house of complainant and as a matter of fact, according to P. W. 1, they were sleeping on the mattres in front of the main door of the house. Ex. P. 7 is also to the said effect. It was P. W. 1 who actually showed the spot to the witnesses and also to the Investigating Officer. The defence has not seriously disputed so far as the place of occurrence of the incident is concerned. ( 7 ) ACCORDING to Mr. Ex. P. 7 is also to the said effect. It was P. W. 1 who actually showed the spot to the witnesses and also to the Investigating Officer. The defence has not seriously disputed so far as the place of occurrence of the incident is concerned. ( 7 ) ACCORDING to Mr. Veeresh B. Patil, learned Counsel for the appellant-accused, when different versions are given by the very family members of the complainant regarding the so-called motive to do away with the life of complainant, the very piece of evidence trivial motive, accused committed the murder of deceased cannot be believed as it is not established beyond reasonable doubt. From the evidence of P. W. 1-Pandu, P. W. 2-Walibai wife of P. W. 1, P. W. 6-Chandru brother-in-law of complainant, P. W. 8-uncle of the complainant and P. W. 10-Tulsiram - brother of the complainant, it is ascertainable that two or two and half acres of land in Survey No. 85 did belong to the family of complainant. It may be a fact, actually the land was in the name of P. W. 8-Mr. Sitaram. But, however, the cross-examination of P. Ws. 1, 8 and 10 would confirm the fact that certain plots in Survey No. 85 were purchased by accused 1 and ultimately the said land was acquired by the panchayat for the purpose of 'ashraya Scheme'. Therefore, accused and other purchasers were asking back their money. In this regard, a panchayat came to be held in the said Tanda and P. W. 9-Chandru who is Dalapati of that tanda was the mediator. It is also come on record, many purchasers agreed to take back portion of the sale consideration paid by them and accept the plot offered by the family members of the complainant. However, accused did not agree for exchange of any plot after taking part of the amount paid by him. He insisted for entire money to be returned. This was the actual difference of opinion or misunderstanding so far as the accused was concerned. The prosecution is not able to pin point to whose share exactly these plots had fallen and in whose name the records were standing. There may be some controversy over this. He insisted for entire money to be returned. This was the actual difference of opinion or misunderstanding so far as the accused was concerned. The prosecution is not able to pin point to whose share exactly these plots had fallen and in whose name the records were standing. There may be some controversy over this. But, the fact and the statement of p. W. 1 that he actually sold three plots out of the plots owned by the family to the accused is not at all disturbed. When he came out with such a statement in his examination-in-chief, in the normal course, if p. W. 1 had nothing to do with these plots, a suggestion would have been made to the effect that accused never purchased any site from P. W. 1-complainant. Except in a general statement or suggestion to P. W. 1 that the entire story of panchayat regarding the plots was false, no specific suggestion is made. So also, holding a panchayat on that day in the said Tanda is also clearly spoken to by P. W. 9-Chandru - Dalapati of the Tanda, apart from the family members. Even in his statement under section 313 of the Cr. P. C. , the accused, except general denial of every material put to him, he has never come out with a case that he had not purchased any site from the family members of the complainant. Participation of Pandu in the panchayat aiong with his uncle and brother is established. Participation of accused in the said panchayat and the quarrel between the family members of complainant and this appellant-accused is also well-established in this case. In that view of the matter, the discrepancies or the deficits with regard to minute details as to who had how many plots and whether there was any agreement of sale in writing to this effect, goes into the background. In other words, such minute discrepancies do not shake the case of the prosecution so far as the sale of some plots to the accused, panchayat regarding the said sale and the misunderstandings which existed regarding the sale of plots between the two parties. ( 8 ) THE complainant has categorically deposed that, he was sleeping on the payal of the house along with his three sons, especially having the deceased, who was 4 years old, on his chest. ( 8 ) THE complainant has categorically deposed that, he was sleeping on the payal of the house along with his three sons, especially having the deceased, who was 4 years old, on his chest. When he felt some heavy object brushing his head, he woke up and noticed A1 holding a stone in his hand and standing near the feet. He actually saw the accused throwing the said stone towards his head and it fell on his son who was sleeping on his chest. At this stage, the learned Counsel for the appellant-accused tries to place reliance on one statement of the complainant in his complaint which is marked as Ex. P. 1. He wants to take benefit of the statement to the effect that when he saw the accused trying to throw the stone towards his head, he turned to one side therefore, the said stone fell on his son's head. Unfortunately, lengthy cross-examination on several aspects of the matter was done, but this piece of evidence was not brought on record either as omission or as a contradiction. The fact remains, there was some enmity or animosity nurtured in the mind of the accused on account of sale of certain plots which were ultimately acquired by Gram Panchayat. One cannot say that he has nurtured ill-will towards 4 year old son of the complainant. ( 9 ) THE Court below while assessing the evidence of the eye-witnesses, has rightly disbelieved the evidence of P. Ws. 6 and 7 i. e. , brother-in-law and second son of the complainant. P. W. 6-Chandru's presence was rightly disbelieved as there is material on record to show that after completing his dinner, Chandra went to his father-in-law's house which is situated behind the house of the complainant. Therefore, it is evident that, he could not have seen the alleged incident. So also P. W. 7-Phoolsingh's evidence was rightly disbelieved so far as he witnessing the accused actually assaulting the deceased with a stone. It has come on record that he could have got up or he woke up only after hearing the cries of his brother and father. But, the lengthy cross-examination of neither complainant nor other relevant witnesses has established the defence of the appellant-accused that his presence was not at all expected at that hour. It has come on record that he could have got up or he woke up only after hearing the cries of his brother and father. But, the lengthy cross-examination of neither complainant nor other relevant witnesses has established the defence of the appellant-accused that his presence was not at all expected at that hour. In the light of evidence of P. W. 1 that he saw the accused in the electricity light i. e. , the street light nearby their house at a distance of 300 feet, cannot be just brushed off. KEB operator P. W. 16 confirms that throughout that night there was electricity supply to this village. During night at about 1. 00 a. m. to 3. 00 a. m. the incident must have occurred. Presence of the electric pole near the house of complainant and the supply of electricity is also proved by the prosecution. Therefore, it was quite possible and natural for the complainant to witness and identify the accused as he was a known person. ( 10 ) AS already stated above, the eye-witness account of the incident that accused threw a stone and caused injuries to the deceased on his head, is corroborated by the evidence of medical expert P. W. 11. ( 11 ) FROM the material placed before the Court, we are of the definite opinion that the death was due to head injury on account of throwing the stone by the accused. The target was not Chi. Vijayakumar. Unfortunately, the destiny decided his end. Then the Court has to see within what provision of law the offence would fall. Section 301 and section 304 of the IPC have to be considered here as argued by both the sides. As already stated above, there was an intention on the part of the accused to do away with the life of P. W. 1. He had all the reason to have such enmity so far as P. W. 1 is concerned. Definitely, Vijayakumar was not his aim. Unfortunately, the stone instead of touching the head of the complainant-father, it ended the life of an innocent child Vijayakumar. By reading Section 301, the entire case of the prosecution falls under section 301. He had all the reason to have such enmity so far as P. W. 1 is concerned. Definitely, Vijayakumar was not his aim. Unfortunately, the stone instead of touching the head of the complainant-father, it ended the life of an innocent child Vijayakumar. By reading Section 301, the entire case of the prosecution falls under section 301. The learned Counsel fpr the appellant relies on the judgment in the case of Rani Udgar Jha and Others v State of Bihar contending that accused did not intend to cause the death of the deceased, but, deceased became victim as he came in-between. On going through the facts of this case and the present case, the circumstances in which death of the victim occurred in the above case is entirely different from the circumstances under which the death occurred in the present case on our hand. Section 301 of the IPC reads as under:"section 301 of the IPC. If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person, whose death he intended or knew himself to be likely to cause". From reading the above section, the only thing one has to see whether there was transfer of malice that was building up in the mind of the accused. The malice was against Mr. Pandu which came to be transferred to his son Vijayakumar in this case. This is not a case of sudden or grave provocation as well because the panchayat was over in the afternoon and the accused had enough and reasonable time to cool down. None of the instances to bring down the intense of the crime are applicable to the facts of the present case. The only view that could be arrived at is that with the intention of killing Pandu, the accused came to the house of Pandu in the late night and threw the stone in order to accomplish his desire, but, unfortunately, a person whose death was not intended, died in the process. Doctrine of transfer of malice as contemplated under Section 301 of the IPC is established. Doctrine of transfer of malice as contemplated under Section 301 of the IPC is established. When once it fall under Section 301 of the IPC, in the absence of the accused coming under any of the exceptions, one has to hold that if Pandu had died in the bargain, what punishment an accused was liable to has to be the punishment for the death of Vijayakumar as well. Accordingly, we have to convict him for an offence punishable under Section 301 of the IPC. Taking into consideration that there was no enmity so far as little vijayakumar is concerned and the circumstances under which the incident took place, this is not a rarest of rare case to award the harsher sentence. Accordingly, we modify the judgment and order of conviction of the accused to one under Section 301 of the IPC read with Section 302 of the IPC. So far as sentence is concerned, we do not find any good ground to interfere with the sentence already imposed by the Trial Court. Accordingly, the appeal is disposed of. --- *** --- .