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2006 DIGILAW 742 (KAR)

STATE BY C. P. I. , HOSADURGA v. PRABHU

2006-09-13

CHIDANANDA ULLAL, V.JAGANNATHAN

body2006
JUDGMENT V. Jagannathan, J., These three appeals arise out of the common judgment rendered b) the learned II Additional Sessions Judge, Chitradurga and therefore they are disposed of by this common judgment. 2. The facts in brief giving rise to these three appeals are as follows.- On 30-9-1993 at about 2.30 p.m. in front of the house of C.W. 19, C.Ws. 5, 10 and 12 there was a talk regarding the exhumation and burning of the dead body of one Nethramma, wife of accused 3-Shivappa. This was because of the fact that the deceased Nethramma had died just after delivering the child. At that time, accused persons opposed the body being exhumed and burnt. In this regard, a galata took place and the accused 1-Prabhu and accused 2-Jayappa said to have assaulted the complainant group inasmuch as the accused 1-Prabhu assaulted on the head of one Shivamurthy and accused 2 assaulted other persons of complainant group. Following the assault with stone M.O. 1 by accused 1-Shivamurthy sustained lacerated wound and he died immediately at the spot. As per the evidence of the P.W. 16-Dr. Hanumantharaya, there was a lacerated wound measuring 1/2" x 1/5" situated 2" above the left ear and the said wound had led to comminuted fracture of left temporal bone with subdural haemotoma associated with laceration. The opinion of the doctor was that the death of Shivamurthy was on account of head injury as a result of laceration of brain and Ex. P. 8 is the post-mortem report issued by him in this regard. The accused persons were put on trial and they were charged for the offences punishable under Sections 143, 323, 324, 504 and 302 read with Section 149 of the IPC. The prosecution led evidence in support of the charge by examining P.Ws. 1 to 20 and the documents Exs. P. 1 to P. 11 were got marked and M.Os. 1 to 6 material objects were produced at the trial. The learned Trial Judge after appreciating the evidence on record came to the conclusion that the prosecution had established the offence punishable under Section 304, Part II of the IPC as against accused 1 and offence punishable under Sections 323 and 324 of the IPC as against accused 2. 1 to 6 material objects were produced at the trial. The learned Trial Judge after appreciating the evidence on record came to the conclusion that the prosecution had established the offence punishable under Section 304, Part II of the IPC as against accused 1 and offence punishable under Sections 323 and 324 of the IPC as against accused 2. The Trial Court has convicted accused 1 under Section 304, Part II of the IPC and sentenced him to undergo rigorous imprisonment for three years and to pay fine of Rs. 2,000/- and in default to undergo simple imprisonment for 4 months. However, accused 2 was released on probation of good conduct under the Probation of Offenders Act, 1958. 3. In Criminal Appeal No. 821 of 2000, the State has questioned the conviction of accused 1 for the offences punishable under Section 304, Part II of the IPC and Sections 323 and 324 of the IPC. Criminal Appeal No. 822 of 2000 is also filed by the State praying for enhancement of sentence under Section 304, Part II of the IPC as against accused 1 and conviction under Sections 323 and 324 of the IPC as far as accused 2 is concerned. 4. We have heard the submissions made by Sri P.M. Nawaz, learned Government Pleader and Sri Venkatareddy, learned Counsel appearing for the accused. 5. The only point in regard to which the argument addressed was mainly focussed, is as to whether the Trial Court was justified in convicting accused 1 for the offence punishable under Section 304, Part II of the IPC instead of convicting under Section 302 of the IPC. In other words, the challenge is not very serious insofar as the finding of the Trial Court with regard to the assault committed by accused 1 and 2 is concerned. In fact, the learned Counsel for the accused also did not seriously question the said finding of the Trial Court. Even otherwise, as could be seen from the judgment of the Trial Court, the incident was witnessed by number of persons and the Trial Court has accepted the testimony of the eye-witnesses as reliable and also found support for the testimony. The controversy is not with regard to the finding of the Trial Court as regard assault committed by accused 1 and 2 but as to the nature of offence committed by the said accused persons. The controversy is not with regard to the finding of the Trial Court as regard assault committed by accused 1 and 2 but as to the nature of offence committed by the said accused persons. Therefore, we deem it proper to confine our discussion only to this aspect of the matter. 6. Sri P.M. Nawaz, learned Government Pleader submitted that the said Shivamurthy died immediately after receiving the blow from accused 1 and it is also not in dispute that accused 1 assaulted Shivamurthy with stone M.O. 1 and the medical evidence of P.W. 16 confirms that death of Shivamurthy was caused on account of head injury i.e., injury to the brain. Therefore, it was submitted that the very act of accused 1 in assaulting the deceased with stone M.O. 1 and causing injury on the vital part of the head itself is sufficient to bring the case within the ambit of Section 300 of the IPC. In this connection, our attention was drawn to the provisions of the Section 300 and it was contended that accused 1 had the knowledge that the injury is likely to cause death of the deceased and as such the case falls within Section 300 of the IPC. 7. On the other hand, Sri Venkatareddy, learned Counsel for the accused persons submitted that the incident took place in the spur of the moment because the accused were opposed to the decision of the complainant group to exhume and bum the dead body and as such the accused persons were upset rather emotionally, and there was no intention on the part of the accused to commit murder of Shivamurthy. It was further submitted that even the evidence of the Doctor, P.W. 16 would go to show that the stone-M.O. 1 which was used to assault the deceased was not a very big one, and the Doctor was unable to say as to what is the exact weight of the stone. There is no evidence in this regard in the spot mahazar Ex. P. 1. On the other hand, the size of the stone-M.O. 1 was 9' x 6' (sic) and it was not a big stone and further there is no indication in the spot mahazar also about the weight or thickness of the stone so as to take a view that it was a very big stone. P. 1. On the other hand, the size of the stone-M.O. 1 was 9' x 6' (sic) and it was not a big stone and further there is no indication in the spot mahazar also about the weight or thickness of the stone so as to take a view that it was a very big stone. Another aspect of the evidence which was referred to is the medical evidence of the doctor and the post-mortem report Ex. P. 8 and from these two materials, it was pointed out that the injury caused to the deceased was of the 1/2' x 1' (sic) lacerated wound and therefore it cannot be said that having regard to the said aspect that the accused 1 had intention or knowledge of causing such bodily injury to the deceased resulting in death. Hence, it was argued that the case will not come within the ambit of Section 300 of the IPC but it may come within the purview of Section 323 of the IPC because the injury caused was a simple injury. Therefore, it was argued that even the conviction of accused 1 for the offence punishable under Section 304, Part II of the IPC is a erroneous finding. But, on the other hand, the accused 1 could be convicted under Section 323 of the IPC. It was further submitted by the learned Counsel for the accused that even if this Court were to take the view that the offence under Section 304, Part II of the IPC is made out and still having regard to the facts and circumstances of the case, the benefit of Probation of Offenders Act could be extended to accused 1 and in support of his argument, he relied on the decision of the Apex Court in State of Karnataka v Muddappa1• Our attention was also drawn to another decision of Bombay High Court in Dnyaneshwar Dagdoba Hivrekar v State of Maharashtra . In the said decision, it is held that: "When one blow on the head of the deceased is given with a stick weighing only 210 grams, it could not be said that the accused had knowledge that blow by such stick would cause death and therefore conviction under Section 304, Part II of the IPC was altered as Section 323 of the IPC". 8. 8. Having heard the submissions made by both sides, we are unable to agree with the submissions made by the learned Counsel for the accused that the offence falls under Section 323 of the IPC. Having regard to the fact that the Shivamurthy died instantaneously after receiving the blow on his head and the further fact that the medical evidence is to the effect that the deceased died on account of injuries sustained on his head and as a result of laceration of the brain, and there being fracture of the left temporal bone, it is not a case to apply Section 323 of the IPC or Section 324 of the IPC. Though injury is a simply injury but on the other hand it has led to the death of Shivamurthy. We therefore reject the said contention urged by the learned Counsel for the accused. 9. As regards the argument of the learned Government Pleader is concerned, we are of the view that the offence punishable under Section 300 of the IPC cannot be said to have been made out particularly having regard to the facts and circumstances of the case. It is a fact that the accused has brought the dead body of Nethramma from Bangalore to Hunisekatte Village and buried the same. But, it was only when some of the persons of the complainant group started talking of exhuming the dead body and burning it; the accused persons were upset and when accused 1 was questioning in this regard, the Shivamurthy had intervened and the accused 1 took a stone and assaulted on the head of Shivamurthy. Therefore, the facts though indicate that there was no intention on the part of the accused 1 to commit the murder of the deceased but, the· incident has taken place in the spur of the moment when passion took control of senses and to quote a saying from "Don Quixote": "the first impulses of a man are beyond his control". Therefore, in all probability accused 1 must have assaulted the deceased in the spur of the moment, not intentionally, could be inferred from the above act of accused 1. In arriving at this conclusion, we are also fortified by the observations of the Hon'ble Supreme Court in Smt. Sandhya Jadhav u State of Maharashtra 1. Therefore, in all probability accused 1 must have assaulted the deceased in the spur of the moment, not intentionally, could be inferred from the above act of accused 1. In arriving at this conclusion, we are also fortified by the observations of the Hon'ble Supreme Court in Smt. Sandhya Jadhav u State of Maharashtra 1. The Apex Court while dealing with Section 300, Exception 4 and Sections 302 and 304, Part II considered the application of Exception 4 to Section 300 and observed that for bringing in operation of Exception 4 to Section 300 of the IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage or not having acted in a cruel or unusual manner. In the course of the above said decision, the Apex Court has made the following observation: "It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"". The Apex Court has further observed that though there can be no rule of universal application that whenever the death occurs on account of a single blow, Section 302 of the IPC is ruled out, the fact situation has to be considered in each case. 10. Therefore, having regard to the above position in law and having considered the facts and circumstances of the case on hand, it cannot be said that the act committed by the accused 1 comes within Section 300 of the IPC. 10. Therefore, having regard to the above position in law and having considered the facts and circumstances of the case on hand, it cannot be said that the act committed by the accused 1 comes within Section 300 of the IPC. But, on the other hand, in our opinion it comes within the Exception 4 of Section 300. Therefore, we are unable to agree with the learned Government Pleader that the offence comes under Section 302 of the IPC as against accused 1. 11. Coming to the offence punishable under Section 304, Part II of the IPC, the Trial Court has rightly convicted the accused 1 for the said offence. But, however, the sentence for the offence imposed is rather inadequate and such leniency could not have been extended by the Trial Court. Therefore, in our considered opinion, the two decisions referred to by the learned Counsel for the accused are not applicable to the case on hand as the facts and circumstances of the case before use are quite different from the one involved in the said two decisions. 12. We agree with the submissions made by the learned Government Pleader that the sentence for the offence under Section 304, Part II of the IPC is rather inadequate. In this connection, we would like to refer to the observations of the Apex Court in State of Madhya Pradesh v Saleem alias Chamaru and Another1. In the said decision, the Apex Court has observed that the sentence imposed should respond to Society's cry for justice against the Criminal Liberal attitude by meagre sentence will be counter-productive. Therefore, having regard to the said position in law in the instant case, in our view, the sentence of three years of rigorous imprisonment imposed by the Trial Court requires to be enhanced to seven years and in addition the fine amount also needs to be increased from Rs. 2,000/- to Rs. 25,000/-. This in our view would secure the ends of justice. Therefore, we reject the submissions made by the learned Counsel for the accused in the connection. 13. Consequent to the above discussion, the criminal appeal filed by the State for conviction under Section 302 of the IPC is liable to be dismissed and so also the appeal filed by the accused for altering the conviction to Section 323 of the IPC. 13. Consequent to the above discussion, the criminal appeal filed by the State for conviction under Section 302 of the IPC is liable to be dismissed and so also the appeal filed by the accused for altering the conviction to Section 323 of the IPC. However, the appeal filed by the State, seeking enhancement of the sentence insofar as accused 1 is concerned offence under Section 304, Part II of the IPC requires to be allowed. 14. In the result, we proceed to pass the following order.- (i) Criminal Appeal No. 821 of 2000 filed by the State and Criminal Appeal No. 529 of 2000 filed on behalf of accused 1 and 2 are dismissed; (ii) Criminal Appeal No. 822 of 2000 filed by the State for enhancement of sentence as against accused 1 is allowed; (iii) For the offence punishable under Section 304, Part II of the IPC we sentence accused 1 to imprisonment for a period of seven years and further he shall pay a fine of Rs. 25,000/- in default of payment of fine, he shall undergo rigorous imprisonment for a period of one year. If the fine amount is recovered by the Trial Court, the same shall be paid to the wife of deceased Shivamurthy as compensation in accordance with Section 357 of the Cr. P.C. Accused 1 is however entitled to set off for the period already undergone by him during the trial in accordance with Section 428 of the Cr. P.C.; (iv) We direct accused 1 to surrender forthwith before the Trial Court to receive sentence; (v) We direct the Trial Court to take necessary steps to secure accused 1 so that he shall serve out sentence imposed upon him as above by us; (vi) Release of accused 2 by the Trial Court under the Probation of Offenders Act is sustained. Accordingly, all the appeals stand disposed of.