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2011 DIGILAW 1113 (KAR)

Borappa v. State of Karnataka

2011-11-17

SUBHASH B.ADI

body2011
JUDGMNT SUBHASH B. ADI, J.—This appeal is by accused 1 to 3 in S.C. No. 11/1997 dated 13th July 2005 on the file of II Additional Sessions Judge, Tumkur. 2. The Pavagada Police charge-sheeted the accused 1-Borappa, accused 2-Jogappa, accused 3-Kempaiah and accused 4-Chikkamma for an offence punishable under Sections 447, 324, 506 and 302 read with Section 34 of the Indian Penal Code. 3. The trial Court on appreciation of the entire evidence on record convicted accused 2 and 3 for an offence punishable under Section 304 Part I of IPC with 7 years’ R.I. and Rs. 1,000/- fine each, in default, two months’ S.I. Accused 1 to 3 were convicted for an offence punishable under Section 324 with 3 years’ R.I. and accused 4 was acquitted of all the charges. 4. Case of the prosecution is that accused No. 1 and the husband of P.W. 1 Yajanian Kempaiah are the brothers. Accused 2 and 3 are the sons of accused 1. Accused 4 is the wife of accused 1. P.W. 1-Sakamma and P.W. 7-Govamma (wile of the deceased-Jogappa) are the sisters and P.W. 10 is the father of P.W. 1 and P.W. 7. There was a dispute in respect of land bearing Sy. No. 279/2 situated at Bydanur GoIlarahatti Pavagada taluk. P.W. 1 was claiming that her mother had executed a registered sale deed in her favour transferring 1 acre of land out of Sy. No. 279/2 and the said land was being cultivated by her for about one year prior to the incident. Accused were claiming that the said portion of the land belongs to them. On 1 1.7.1996, while P.W. 1, P.W. 7 and P.W. 10 were in the land for sowing purpose, accused 1 to 4 holding clubs in their hand trespassed into the land and accused 1 assaulted with the club on the left and right shoulder, left leg of the deceased Jogappa; accused 2 hit on the left leg of P.W. 1; accused 3 assaulted with the club on the right thigh, right palm of P.W. 10. By that time/ P.W. 8, P.W. 9, P.W. 2 came to the spot. P.W. 9 and P.W. 8 took the injured P.W. 1, P.W. 7. P.W. 10 and deceased Jogappa to the hospital, P.Ws. 1, 7 and 8 were treated, at Community Health Centre. By that time/ P.W. 8, P.W. 9, P.W. 2 came to the spot. P.W. 9 and P.W. 8 took the injured P.W. 1, P.W. 7. P.W. 10 and deceased Jogappa to the hospital, P.Ws. 1, 7 and 8 were treated, at Community Health Centre. Pavagada at about 1.00 p.m. to 1.10 p.m. On 1.1.7.1996, deceased was taken to NIMHANS Hospital, Bangalore, where he was treated, however, he succumbed to the injuries at about 12.40 p.m. on 13.7.1996. The NIMHANS Hospital authorities had informed the local Police Station viz., Wilson Garden Police Station, Bangalore, as to the death of Jogappa at 12.40 p.m. P.W. 13-Head Constable was deputed to take the body of Jogappa for postmortem, P.W. 13 went to NIMHANS Hospital, conducted inquest, as per Ex. P5 and sent, the body for postmortem. P.W. 12-Doctor conducted the post-mortem and issued postmortem report as per Ex. P10. 5. In the meanwhile, P.W. 1 had appeared before P.W. 14 on 11.7.1996 at 1.30 p.m. and her statement was recorded and a case was registered in Crime No. 153/1996, and P.W. 14 had gone to the spot on the very same day, i.e., on 11.7.1996, conducted spot mahazar under Ex. P3, recorded the statement of P.W. 6-Kempaiah, on 1.2.7.1996, Head Constable produced accused 1 and 2 before him, they were arrested and were remanded to the judicial custody, P.W. 14 got the information from, the NIMHANS Hospital that injured Jogappa. died at 12.40 p.m. on 13.7.1996 and he also received a file from Wilson Garden Police Station in U.D.R. No. 156/1996, however, he requested the Magistrate to add the offence punishable under Section 302 of IPC, as the injured Jogappa died. Thereafter, he handed over the investigation to P.W. 11, P.W. 11 continued the investigation from 16.7.1996 and on completion of the investigation, he filed the charge sheet. 6. On committal, learned Sessions Judge securing the presence of the accused framed the following charge for the offences punishable under Sections 447, 324, 506 and 302 read with Section 34 of the Indian Penal Code: “Firstly, that you A1 to A4 on 11.07.96 at about 9.00 a.m., in land bearing Sy. 6. On committal, learned Sessions Judge securing the presence of the accused framed the following charge for the offences punishable under Sections 447, 324, 506 and 302 read with Section 34 of the Indian Penal Code: “Firstly, that you A1 to A4 on 11.07.96 at about 9.00 a.m., in land bearing Sy. No. 279/2 of Byadanur Gollarahatti belonging to CW.1 in furtherance of your common intention., criminally trespassed into the said land with an intention to cultivate or plough the said land to cause hurt to CWs.1, 8 and 11 and to commit the murder of the deceased dogappa and that your thereby committed an offence punishable under Section 447 read with 34 IPC and within my cognizance. Secondly, that you At. to A4 on the above said date, time and place mentioned in the 1st charge, in furtherance, of your common intention, you A1 Borappa voluntarily caused hurt to CW, 1 Sakamma. by assaulting her by means of club over her both arms and, left leg, you A.2 dogappa. bit her left leg with your teeth, you. A3 Kempaiah assaulted, with club over her fore arm and you A3 Kempaiah voluntarily caused hurt to CW.8 Gauamma by assaulting her by means of club and you A2 dogappa voluntarily caused, hurt, to CW. 11 Kariyappa with club and that you thereby committed an offence punishable under Section 324 read with 34 IPC and within my cognizance. Thirdly, that you Al to 4 on the above said date, time and place mentioned in the I” charge were the members of unlawful assembly and the common object of such assembly was to commit, the offences mentioned in the 1st charge, in furtherance of your common intention, you accused, persons committed criminal intimidation by threatening CWs.1, 8 and 11 with injury to their person with intent to cause alarm to the said CWs.1, 8 and 11 by threatening them to do away with their lives and that you thereby committed an offence punishable under Section 506 read with 34 IPC and within, my cognizance. Fourthly, that you. AI to 4, on the above said date, time and place mentioned in the 1st charge in furtherance of your common intention, when. CWs, 1.8 and 11 alongwith the deceased Jogappa prevented or stopped you from sowing groundnut seeds in. the land bearing Sij. Fourthly, that you. AI to 4, on the above said date, time and place mentioned in the 1st charge in furtherance of your common intention, when. CWs, 1.8 and 11 alongwith the deceased Jogappa prevented or stopped you from sowing groundnut seeds in. the land bearing Sij. No. 279/2 belonging to CW.l Sakarnina, you A.2 Jogappa committed the murder of deceased. Jogappa by assaulting him with club over his head and caused homicidal injuries Le., intentionally or knowingly that such injuries are likely to cause his death and on account of such injuries, the deceased Jogappa died on 13.07.1996 while undergoing treatment in NIMHANS, Bangalore and that your thereby committed an offence punishable under Section 302 read with 34 IPC and within my cognizance. The last charge are altered as per order passed in the order sheet date 15.02.2005. Lastly, that you A1 to 4, on the above said date, time and place mentioned in the Is’ charge in furtherance of your common intention, when CWs 1,8 and 11 alongwith the deceased Jogappa prevented, or stopped, you from sowing groundnut seeds in the land bearing Sy. No. 279/2 belonging to CWA Sakamma, you A2 Jogappa and A3 Kempaiah committed the murder of deceased Jogappa by assaulting him with club over his head, and caused homicidal, injuries, i.e., intentionally or knowingly that such injuries are likely to cause his death and on. account of such injuries, the deceased. Jogappa. died, on 13.07,96 while undergoing treatment in NIMHANS, Bangalore and that you thereby committed, an offence punishable under Section 302 read with 34 IPC and with in my cognizance,” 7. All the accused pleaded not guilty and claimed to he tried. 8. Prosecution to bring home the guilt of the accused examined P.Ws. 1 to 14, marked Exs. P1 to P13 and produced M.Os. 1 to 3 clubs. However, the accused did not lead any defence evidence, in turn, they filed the statement under Section 313 of the Code of Criminal Procedure, 9. Trial Court relying on the evidence of P.W. 1, P.W. 7 and P.W. 10-the injured and the evidence of P.W. 12-Doctor, who conducted the postmortem on the body of the deceased, held that the death of the deceased was homicidal. Relying on the evidence of P.Ws. 1, 7 and 10 and Exs. P7, 8 and 9-wound certificates of P.Ws. 1, 7 and 10 and also the evidence of P.Ws. Relying on the evidence of P.Ws. 1, 7 and 10 and Exs. P7, 8 and 9-wound certificates of P.Ws. 1, 7 and 10 and also the evidence of P.Ws. 2 and 8 held that the prosecution has proved the offence punishable under Section 324 of IPC against accused 1 to 3. Trial Court relying on the evidence of P.Ws. 1, 7 and 10 as injured, eye-witnesses, evidence of P.Ws. 2, 8 and 9, the direct. evidence supporting the prosecution case stated to he the witness to the incident and the evidence of P.W. 12, held that though the prosecution has proved that death of deceased was homicidal, but it, did not amount to murder as the incident occurred as the accused and deceased and their supporters fought in the disputed land, accused had not premeditated and prepared to commit, the murder, but in the incident, the deceased sustained grievous injury and succumbed to the same and held that the accused 2 and 3 are guilty of the offence punishable under Section 304 Part I of IPC and accordingly, had convicted the accused. It is against the said judgment, accused 1 to 3 are in appeal. 10. Sri. Venkata Reddy, learned Counsel appearing for the accused submitted that though the prosecution has proved that the death of the deceased Jogappa was homicidal, but the evidence of the prosecution do not prove the offence punishable under Section 304 Part I as the very genesis of the offence is doubtful and the witnesses examined by the prosecution do not support the ease of the prosecution. 11. In furtherance of his contention, he relied on Ex. P1-complaint registered on the basis of the statement of P.W. 1. According to the complainant, the incident had. occurred at 9 a.m., however, complainant and P.Ws. 7 and 10. the alleged Injured were examined by the Medical Officer at. Pavagada between 1.00 p.m. and 1.10 p.m. P.W. 14, who registered the case, in his evidence has stated that complainant came to the Police Station and gave her statement and on. According to the complainant, the incident had. occurred at 9 a.m., however, complainant and P.Ws. 7 and 10. the alleged Injured were examined by the Medical Officer at. Pavagada between 1.00 p.m. and 1.10 p.m. P.W. 14, who registered the case, in his evidence has stated that complainant came to the Police Station and gave her statement and on. the basis of the said statement, he registered the case and sent the FIR, P.W. 8 In his evidence has slated that he took the injured to the Government, Hospital, Pavagada at 10.30 a.m. The presence of P.W. 8 is stated by the complainant in the complaint itself and the complainant admits that she took the injured to the hospital. P.W. 7 in her cross-examination has stated that. Police recorded fier statement while she was in hospital. P.W. 10 in his examination-in-chief itself has stated that Police made enquiries with him in the hospital. Relying on these evidence, learned Counsel submitted that. P.W. 14 had the first information, through the wife of the deceased-P.W. 7, who had given her statement to the Police in the hospital itself. The said information is not forthcoming in the prosecution case. The prosecution has suppressed the very genesis of the offence by not producing the statement alleged to have been recorded by the Police in the hospital. 12. He also submitted that P.W. 1 in her complaint has stated that accused came and assaulted deceased, P.Ws. 7 and10 and they were taken to the hospital. There is no wound certificate or injury certificate of the deceased. Neither P.W. 1 nor P.W. 7 or P.W. 10 have stated as to what happened to the deceased immediately after the incident, whether he was taken to the local hospital and when, he was taken to NIMHANS Hospital. He also submitted that though Exs. P7, P8 and P9 have been produced to show that. P.Ws. 1, 7 and 10 sustained injuries in the incident, apart from the fact that the certificate shows the injuries sustained by these witnesses arc; simple in. nature, but no Doctor has been examined to prove that the injured were brought to the hospital and he has treated them, and mere production of the wound certificate will not prove that P.Ws. 1, 7 and 10 had sustained injuries, 13. Learned Counsel also relied on Ex. nature, but no Doctor has been examined to prove that the injured were brought to the hospital and he has treated them, and mere production of the wound certificate will not prove that P.Ws. 1, 7 and 10 had sustained injuries, 13. Learned Counsel also relied on Ex. P1 and submitted that in the complaint, P.W. 1 has stated that P.W. 8-Kempaiah and P.W. 9-Chittappa had taken, the injured to the hospital whereas, Exs. P7 to P9 show that one B. Borappa had brought the injured to the hospital. The prosecution has not proved the case of P.Ws. 1, 7 and 10 sustaining injury in the alleged incident. He submitted that evidence of P.W. 13. the then Head Constable in Wilson Garden Police Station, shows that he was deputed to take the body of deceased Jogappa from NIMHANS Hospital for postmortem and Ex. P5-inquest, mahazar discloses that deceased Jogappa died at 12,40 p.m. and he was treated by one Dr. S. Ganesh. If the deceased Jogappa was alive and had sustained grievous injury in the incident, P.W. 14 who had the information on 11.7.1996 itself, at least on the basis of the statement of P.W. 1, which was registered in. Crime No. 153/1998 wherein it was mentioned that deceased P.Ws. 1, 7 and 10 were injured in the incident should have recorded the statement of the deceased, however, P.W. 14 has not made any effort to record the statement of the deceased, if he was in position to give statement. In turn, even P.W. 1’s further statement is also not recorded to know as to the condition of the injured. The evidence of P.W. 13 proves that deceased Jogappa. was admitted to NIMHANS Hospital. To show that he had suffered grievous infury arid was treated for the said injury and he died on account of the said Injury, there is no evidence produced by the prosecution. What happened to Jogappa between 11.7.1996 to 13.7.1996 for three days, is not explained by the prosecution. In fact, the Wilson Garden Police, who got the information of the death of Jogappa, had conducted the inquest and registered an UDR ease and it was sent to P.W. 14 and P.W. 14 comes to know the death of Jogappa only when he receives the UDR file. In fact, the Wilson Garden Police, who got the information of the death of Jogappa, had conducted the inquest and registered an UDR ease and it was sent to P.W. 14 and P.W. 14 comes to know the death of Jogappa only when he receives the UDR file. Relying on these evidence, he submitted that., the prosecution has not explained, as to how the incident had occurred, the genesis of the incident has been suppressed by the prosecution. 14. He also submitted that P.W. 11, who investigated the matter, in his cross-examination has admitted that P.W. 14 had informed him that the incident took place in the agricultural land of the accused and it is corroborated by P.W. 7. P.W. 7 in her cross-examination, has stated that accused are in possession of land bearing Sy. No. 279/2 and they have raised ragi crop and also planted coconut trees and raised groundnut, crop and they have constructed water tank in their land. This evidence shows that the incident had occurred, in the land of the accused and the accused were in possession of the disputed land and submitted that accused have filed statement under Section 313 of Cr.P.C. and in the said statement, they have specifically alleged that they are in possession of land bearing No. 279/2 and the complainant and five others came to their land holding clubs and assaulted accused Nos. 2 and 3 and they have filed the complaint in Crime No. 154/1996, which was pending in CC. No. 62/1997 on the file of J.M.F.C Pavagada. This fact of filing of complaint is also admitted by P.W. 2, P.W. 7 and P.W. 10. P.W. 2 in the cross-examination has stated that P.W. 1, deceased. P.Ws. 8 and 9, all together went and assaulted the accused with club by forming an unlawful assembly and the accused have filed the Police complaint on the date of incident against P.W. 1 and three others. This is also admitted by P.W. 7 in her cross-examination wherein she has admitted that earlier to the filing of the complaint in this ease, the accused had filed a complaint against her and three others. This is also admitted by P.W. 7 in her cross-examination wherein she has admitted that earlier to the filing of the complaint in this ease, the accused had filed a complaint against her and three others. P.W. 10 also admits that in the incident, accused No. 2-Jogappa and accused No. 3-Kernpaiah had sustained injuries and has also admitted, that they were four In number and P.W. 1 and others were six in number, P.W. 14, who registered the case on the basis of the complaint filed by accused, has also admitted that accused had given complaint, it was registered in Crime No. 154/1996 and he had filed a charge sheet. 15. Learned Counsel submitted that the prosecution has not disclosed the genesis of the crime by producing the first information. Further the prosecution has not explained the injury sustained by the accused in the incident. Prosecution has also not explained the complaint filed by the accused prior to the complaint filed by P.W. 1. 16. He further submitted that there is a material contradiction even as regard to the assault by the accused by dub, as Ex. P1-complaint shows that the accused threw the dobs-M.Os. 1 to 8 on the spot whereas. P.W. 10 states that Kempaiah produced the dubs. P.W. 7 states that she produced the clubs before the Police, Ex. P3-spot mahazar shows that the clubs were collected by the injured and Ex. P4-seizure of M.Os. 1 to 3 shows that P.W. 7 produced the clubs. He pointed out that Ex. P3-spot mahazar does not bear the time and it creates the doubt as to whether P.W. 4 had gone to the spot and conducted mahazar, as he had not recorded the statement of the witnesses nor recorded the statement of the injured, except the statement of Kempaiah. 17. Lastly he submitted that the evidence of the prosecution shows that incident had taken place in the land of the accused; P.W. 1 and others were six in number, they had come to the land of the accused, they were the aggressors and they had formed unlawful assembly, armed with clubs, deadly weapons and had assaulted accused 2 and 3 and for which the complaint was filed even prior to the statement of P.W. 1 recorded by P.W. 14 and submitted that even If the incident had occurred, it had occurred. In the land of the accused and if P.W. 1, deceased and others were six in number as against four accused, if there is any assault on the deceased, it was by way of right of private defence as the aggression and the deadly weapons used by P.W. 1 and others, was likely to cause death or grievous injury. The deceased has sustained head injury, due to which, he died. If there is one blow given on the head of the deceased, by way of private defence in order to save the life of the accused, it would not amount to accused assaulting the deceased with intention to kill, but it was only to protect themselves and in such circumstances, even if there is no specific plea, but the evidence of the prosecution discloses that incident had occurred in the land of the accused and by way of private defence, if they had used some force, it will not constitute an offence. 18. On the other hand, learned Government Pleader submitted that this case involves evidence of three injured witnesses and two eye-witnesses, P.Ws. 1, 7 and 10 are the injured persons. Their evidence is corroborated by the wound certificates-Ex. P7 to P9. He submitted that the Doctor, who examined P.Ws. 1, 7 and 10, was dead by the time he was to be examined, and there is a note in the order sheet dated 24.3.2004, wherein the trial Court has recorded that CW12 is dead. CW12 is none other than Dr. T.G. Dayananda, who treated P.Ws. 1, 7 and 10. learned Government Pleader also relied on the evidence of P.Ws. 1, 7 and 10 and more so the suggestions made to these witnesses as regard to the injury sustained by the accused, which proves the incident. He also relied on the statement recorded under Section 313 of Cr.P.C. referred to by the learned Counsel for the accused and submitted that the complaint in Crime No. 154/1996 and filing of charge sheet at the instance of the accused in respect, of the very Incident and a suggestion that the accused 2 and 3 also sustained injury in the incident proves beyond doubt that the incident had occurred, P.Ws. 1, 7 and 10 have consistently stated that the accused 1 to 3 assaulted the deceased and the evidence also shows that deceased was taken to NIMHANS Hospital. 1, 7 and 10 have consistently stated that the accused 1 to 3 assaulted the deceased and the evidence also shows that deceased was taken to NIMHANS Hospital. P.W. 12, who conducted postmortem, has stated that the deceased died due to “right temporal parietal acute subdtiral haemotoma right temporal and right frontal contusion” and submitted that it proves that there was an incident, it proves that in the incident deceased sustained injury, evidence of P.W. 12 proves that the death was due to the injury sustained to the head and it is a homicidal death. Once the prosecution, has proved the death of deceased as homicidal and if the presence of the accused at the time of the incident, which is corroborated by the evidence of P.Ws. 1, 7, 8, 9 and 10, who speak the presence of the accused and also the overt acts, this evidence proves beyond reasonable doubt that the accused assaulted the deceased. The trial Court though the injury caused by the accused has resulted in. the death, but has convicted the accused for an offence punishable under Section 304 Part I IPC only, as the trial Court found that the evidence is insufficient to show that the accused had premeditated the plan to commit murder of the deceased. He submitted that the discrepancy as to the Investigating Officer not recording the statement of the deceased may be the lapse on the part of the Investigating Officer, it will not have any bearing on the prosecution case, as the evidence produced by the prosecution proves the offence and the trial Court on proper appreciation of the entire evidence has rightly convicted the accused which, according to him. does not call for interference. 19. In the light of the submissions made by both the Counsel, the point that arises for consideration is: “Whether the judgment of conviction calls for interference?” 20. The prosecution case shows that there was a dispute in relation to Sy. No. 279/2 to the extent of I acre of land. Evidence of P.W. 1 shows that accused 1, 2 and 3 came to their land, accused 1, assaulted deceased, accused 2 assaulted P.W. 1 and accused 3 assaulted P.W. 10. Complaint discloses that. P.W. 9, P.W. 2 and P.W. 8 came to the spot. It does not disclose that P.Ws. No. 279/2 to the extent of I acre of land. Evidence of P.W. 1 shows that accused 1, 2 and 3 came to their land, accused 1, assaulted deceased, accused 2 assaulted P.W. 1 and accused 3 assaulted P.W. 10. Complaint discloses that. P.W. 9, P.W. 2 and P.W. 8 came to the spot. It does not disclose that P.Ws. 2, 8 and 9 were present when the incident took place, but when P.W. 1 screamed for help, they came to the spot immediately after the incident. 21. No doubt, there is a contradiction in the evidence of P.Ws. 1, 7 and 10 as regard to their statement given to the Police. According to P.Ws. 1 and 14, P.W. 1’s statement was recorded at 1.30 p.m. in the Police Station by P.W. 14. According to P.W. 7, her statement was recorded in the hospital. Even P.W. 10 also says that his statement was recorded by the Police in the hospital. What is to be appreciated is that P.Ws. 1, 7 and 10 as per Exs. P7, 8 and 9 wound certificates, had gone to the hospital at 1.00 p.m. and they were treated between 1.00 p.m. and 1.10 p.m. The complaint is registered at. 1.30 p.m. Even according to the evidence of P.Ws. 7 and 10, it is not their case that the Police came to the spot, recorded the statement and thereafter, they were sent to the hospital. The time gap between the alleged statement recorded by the Police, according to P.Ws. 7 and 10 and the registration of the complaint is not much. It was registered at 1.30 p.m., P.W. 1 has stated that her statement was recorded. P.W. 14 has stated that P.W. 1 gave her statement before him in the Police Station, however, when an incident has taken place and if there are case and counter case, which is not disputed by the accused, as it is the suggestion by the accused to P.W. 14 that accused had filed a complaint and P.W. 14 has stated that accused came and filed complaint, which was registered in Crime No. 154/1996 and it is also suggested that accused 2 and 3 were injured in the incident, this fact is corroborated by the evidence of P.W. 2 wherein he has stated that P.W. 1, deceased, P.W. 8 and P.W. 9 went and assaulted the accused with clubs. As this statement of P.W. 2 in the cross-examination is based on a suggestion made by the defence counsel that in the incident, accused were injured, similar is the suggestion made to P.W. 7 wherein P.W. 7 has stated that earlier to filing of the complaint in this case, the accused had filed a complaint against her and three others for having assaulted them and she was also arrayed as one of the accused in the said complaint. P.W. 10 has also admitted that he was also arrayed as accused in the complaint filed by accused in this case. A suggestion is also made to P.W. 14 of filing of complaint by the accused, which was registered in Crime No. 3 54/1998 and pending in C.C. No. 82/1997, The filing of complaint by the accused and a suggestion that the accused had filed a complaint as against P.W. 1 and others for assaulting the accused and in the statement recorded under Section 313 of Cr.P.C. it is the specific plea that the accused were assaulted by P.W. 1 and three others, this evidence clearly shows that the incident had occurred and in the incident, both parties fought with each other and accused also sustained Injuries. In view of these evidence and filing of counter case establishes that. In the incident, the accused as well as the deceased and others sustained injuries. 22. No doubt, there is serious lapse on the part of P.W. 14 in not recording the statement of the injured immediately after the incident and not investigating the matter in a true spirit, however, the evidence led as it is by the prosecution proves that the accused had also suffered injuries, so also the deceased and others. 23. Even if Exs. P7 to P9 are not proved by examining the Doctor or producing the medical register, it cannot be said that the deceased had sustained injury in the incident, and it is also not even the case of the accused or the prosecution. In the incident if the deceased had sustained injuries, even in the absence of the statement of the deceased or the records pertaining to NIMHANS Hospital, Bangalore, as to what treatment was given to the deceased, the fact that the deceased died at 12.40 p.m. on 13.7.1996 is evident from Ex. P5-Inquest and Ex. P10)-post-mortem report. In the incident if the deceased had sustained injuries, even in the absence of the statement of the deceased or the records pertaining to NIMHANS Hospital, Bangalore, as to what treatment was given to the deceased, the fact that the deceased died at 12.40 p.m. on 13.7.1996 is evident from Ex. P5-Inquest and Ex. P10)-post-mortem report. P.W. 12, Doctor, who conducted the postmortem on the body of the deceased has also stated that the deceased had sustained three injuries as under: “(1) 2 x 1 cm, laceration over the left shin. Suhgaieat oniam in (rondo parieto iempero occipital region bilaterally linear fracture of the frontal hone midline, thin hifrontal extradural haemotoma. (2) Right iempero parietal acute subdural haemotoma: (3) Right temporal and right, posterior frontal contusion, diffuse cerebral edema, bilateral uncal and tonsillar haemotoma.” He has also stated that the cause of death is due to “right tempero parietal acute subdural haemotoma right temporal, and right frontal contusion diffuse cerebral edema and bilateral uneal and tonsillar haemotoma”. If the deceased had sustained injuries as his presence in the incident is also evident from the evidence of P.Ws. 1, 7, 10, 8 and 9, who speak of the presence of the deceased and sustaining injury, even the accused’s plea in the statement, recorded under Section 313 Cr.P.C. also prove that the deceased was present, though the defence is taken that the deceased and others were armed with clubs, came to the lane of the accused and assaulted. To prove that the incident had occurred, and deceased was present is clear from this evidence. If the deceased’s presence and the Incident is proved, though it might have occurred without any premeditation in a sudden fight in the heat of passion upon sudden quarrel and the accused not taking any advantage, but it cannot, be said that as a right of private defence, the accused used such force to prevent, the deceased and others to protect, themselves and the property. As the accused do not state in their statement recorded under Section 313 of Cr.P.C, that they had used such minimum force against the decreased to prevent his aggression with deadly weapon, there is no plea by the accused of private defence, No doubt, in a case and counter case and in case of injury sustained by the accused, it may not require that the accused to prove the right of private defence with standard of proof that may require to prove the offence by the prosecution, bur to prove the preponderance of probabilities, there has to be minimum evidence. It is doubtful as to whether the land in which the incident took place was in possession of the accused or in possession of P.W. 1. Ex. P2-Record of rights stands In the name of P.W. 1. Whether the entry is made rightly or wrongly, it Is for the criminal Court to decide, but it is evident that there was a serious dispute as regard to the land. Even in the evidence of P.W. 7, he has stated that ace used were In possession of the land, but what is stated is that accused were in possession of the land bearing Sy. No. 279/2 and what is claimed by P.W. 1 is 1 acre of land stated to have been sold by her mother and the extent of Sy. No. 279/2 is 12 acres 18 guntas. It is not known as to the exact extent of land in possession of the accused as well as P.W. 1, but there was a dispute amongst themselves for which the incident occurred and in such cases, to raise a plea of private defence under Section 100 of IPC, there must be material on record from which it should be possible to draw an inference. If the plea is vague and does not explain the circumstances under which the accused gave a fatal blow, there is no material to hold that accused as the right of private defence had given a blow. The Apex Court in a decision reported in AIR 1999 SC 1942 in the matter of State of U.P. vs. Laeeq in a case where the accused caused stab injury and claimed that he caused that injury in a right of private defence, has observed as under: “5. ...... The Apex Court in a decision reported in AIR 1999 SC 1942 in the matter of State of U.P. vs. Laeeq in a case where the accused caused stab injury and claimed that he caused that injury in a right of private defence, has observed as under: “5. ...... As provided by Section 100, I.P.C. right of private defence extends to voluntary causing of death of the assailant if the assault, is such as would reasonably cause an apprehension that death or grievous hurt would otherwise he the consequence. There is no material on record from which it is possible to draw such an inference. As stated earlier, the plea raised by the respondent is vague arid does not explain the circumstances under which he gave the fatal blow. The material on record does not show (hat the complainant side wets armed with weapons other than sticks. The material also does not show that the deceased, had aimed a stick blow at the respondent or any other person accompanying him when he had given the knife blow. Even if the defence version as accepted by the High Court is believed, it only indicates that the deceased and the persons alongwith him. He had started the assault on the respondent and his co-accused by wielding their sticks but it does not further probabilise causing of death under reasonable apprehension of death or grievous hurt The required justification for causing death in exercise of right of self-defence was neither pleaded, specifically nor the material on record, probabitises the same.. Without considering this aspect the High Court gave the benefit of the exception, and acquitted, the respondent Therefore, the judgment of the High Court and the acquittal of the respondent deserve to be set aside and it will have to be held that the respondent exceeded, the right of private defence when he gave the fated knife blow to the deceased. Accordingly, we hold him guilty for the offence punishable under Section 304, I.P.C.” 24. Accordingly, we hold him guilty for the offence punishable under Section 304, I.P.C.” 24. Even in another decision reported in 1991 SCC (Crl.) 630 in the matter of Amar Singh vs. State of Madhya Pradesh held that even if an accused gives a single blow as against the deceased holding gun, if the accused exceeds right of private defence, when the deceased had not even fired or aimed the gun at accused, merely holding a gun does not by itself allow the accused to use to deadly weapon and cause injury to the deceased as a right of private defence. The right of private defence must fall, in one of the Explanation of Section 100 of IPC, that must create an apprehension in the mind of the accused that the assault is likely to cause death. However, if may not be necessary in this ease to go into that aspect. It is not the plea of the accused nor there is any material to show that the accused used such force as a right of private defence to protect themselves. 25. The trial Court has convicted the accused 2 and 3 for an offence punishable under Section 304 Part I of IPC and has acquitted accused 1 for the said offence. The trial Court while considering the private defence and holding that on the date of incident, when the quarrel was going on between complainant party and accused party without premeditation and accused 2 and 3 dealt severe blow on the deceased Jogappa with club resulting in serious injuries, who died on 13.7.1996, accused 2 and 3 took the club, hit the deceased on the head, they had no plan and premeditation or intention, relying on the unreported judgment in Criminal Appeal No. 249/1998 dated 28.2.2003 held that accused 2 an 3 are guilty of offence punishable under Section 304 Part I of IPC. 26. P.Ws. 1, 7 and 10, whose presence is not in doubt both accused as well as the complainant. P.W. 1 have stated that they were present, as P.Ws. 1, 7 and 10 and deceased were the accused in the complaint filed by the accused in Crime No. 154/1998. P.Ws. 7 and 10 have consistently stated that the accused 1 to 3 assaulted the deceased. P.W. 1 has stated that accused 1 has assaulted, however, the deceased as per Ex. 1, 7 and 10 and deceased were the accused in the complaint filed by the accused in Crime No. 154/1998. P.Ws. 7 and 10 have consistently stated that the accused 1 to 3 assaulted the deceased. P.W. 1 has stated that accused 1 has assaulted, however, the deceased as per Ex. P10-post-mortem report; had sustained 2 x 1 cm lacerated wound over the left shin. Even if the evidence of P.Ws. 1, 7 and 10 is considered, P.Ws. 7 and 10 are consistent that accused assaulted with the club on the head of the deceased. Though there is only one lacerated injury, but the ocular evidence of P.Ws. 2 and 3, whose presence is not disputed, clearly shows that accused 1 to 3 assaulted on the head of the deceased, but accused 1 has been acquitted by the trial Court and there is no appeal by the State. The evidence of P.Ws. 7 and 10consistently proves that the accused 2 and 3 gave a blow, which resulted in the death of the deceased. 27. It is not the case of the prosecution, that the accused had premeditation. In turn the evidence on record shows that the accused were in the land and also shows that there was a serious dispute as to the possession of the said land. If the accused were in the land and if P.W. 1 and deceased and others were aggressed and if there was a fight, it cannot be said that the accused had any intention to do away with the life of the deceased. Though the trial Court, has rightly stated that the accused had no intention to commit the murder and it had occurred in a sudden light and brought it under the Explanation IV of Section 300 IPC, but has erroneously convicted accused 2 and 3 for the offence punishable under Section 304 Part I of IPC. The entire evidence led by the prosecution only prove the guilt of accused 2 and 3 for an offence punishable under Section 304 Part II IPC and as far as offence punishable under Section 324 is concerned, it is doubtful as the wound certificates-Ex. The entire evidence led by the prosecution only prove the guilt of accused 2 and 3 for an offence punishable under Section 304 Part II IPC and as far as offence punishable under Section 324 is concerned, it is doubtful as the wound certificates-Ex. P7 to P9 have not been corroborated with the material evidence like Doctor or medical register and the statement of the injured were not immediately recorded, as such, the conviction of accused 1 to 3 for an offence punishable under Section 324 IPC is based on no evidence and it requires to be set aside. 28. Accordingly, I pass the following: ORDER The appeal is partly allowed. The judgment of conviction in S.C. No. 11/1997 dated 13th July 2005 on the file of II Additional Sessions Judge Tumkur, insofar as the conviction of accused 1 to 3 for an offence punishable under Section 324 IPC, is hereby set aside. The conviction of accused 2 and 3 for an offence punishable under Section 304 Part I IPC is also set aside. Accused 2 and 3 are convicted for an offence punishable under Section 304 Part II of IPC. Heard the learned Counsel on the sentence. The case of the prosecution shows that there was a dispute as regard to the land. Even the prosecution witnesses have admitted that accused were in possession and deceased and others went to the land of the accused, there were case and counter case. Unfortunately, both the cases were not tried together by the same Judge. One case appears to have been tried by the learned Magistrate and another by learned Sessions Judge. It also shows that the accused were injured and they filed a complaint and It was registered as second complaint. This incident had occurred in a sudden quarrel and there was no deadly weapon used by the accused or the complainant even the clubs referred to are wooden pieces found in the land their recovery is also not proved, they are all agriculturists residents of small village and closely related to each other. Accused 2 and 3 have already undergone sentence for about, more than 2 months and odd. Even after conviction, they have undergone sentence of 1½ months. No doubt, the offence is punishable for the sentence extendable up to 10 years or fine or both. Accused 2 and 3 have already undergone sentence for about, more than 2 months and odd. Even after conviction, they have undergone sentence of 1½ months. No doubt, the offence is punishable for the sentence extendable up to 10 years or fine or both. Hence it is held that the pretrial detention and the conviction sentence already served by the accused is held as a sentence for offence punishable under Section 304 part II of I.P.C with fine of Rs. 10,000/- each, out of which Rs. 15,000/- to be paid to P.W. 7 and Rs. 5,000/- to be appropriated in the State account, in default, the accused 2 and 3 to undergo S.I. for a period of three months each.