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2013 DIGILAW 117 (KAR)

PUTTARACHAIAH v. STATE OF KARNATAKA

2013-01-31

K.JAGANNATHA SHETTY, K.L.MANJUNATH

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JUDGMENT K.L. MANJUNATH, J.-The appellants are questioning the legality and correctness of the judgment of conviction and order of sentence passed by the I Addl. Sessions Judge, Mysore, dated 20.2.2004 passed in S.C. No. 160/98 wherein the appellants have been convicted for the offence punishable under Section 302 read with Section 34 of IPC and have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 25,000/- each I.D. to undergo further S.I. imprisonment for two years. 2. Heard the learned counsel for the appellants and the Sri. Sampangiramaiah, learned Govt. Pleader for the respondent. 3. It is the case of the prosecution that at about 3.00 p.m. on 19.10.1997 at Mellahalli village in Yelandur Taluk, the appellants with a common intention to commit murder of one Kyathaiah assaulted him with MO1 on his head and other parts of the body due to which he sustained injuries and succumbed to the same at K.R. Hospital, Mysore, at about 10.15 p.m. on 30.10.1997 and thereby they have committed the offence punishable under Section 302 read with 34 IPC. 4. The appellants pleaded not guilty and they claimed to be tried. 5. In order to bring home the guilt of the accused the prosecution relied upon the evidence of PWs1 to PW17, exhibits P1 to P15 and MOs 1 to 4. Ex.D1 was marked while cross examining PW3. The appellants denied the incriminating circumstances while answering the statement under Section 313 Cr.P.C. and submitted they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused. 6. The learned trial Judge after hearing the counsel for the parties formulated the following points for his consideration :- (1) Whether the prosecution has proved the guilt against the accused No. 1 and 2 beyond all reasonable doubts for the offence under Section 302 read with Section 34 of IPC? (2) What is the order? 7. The Sessions Court after appreciating the entire evidence let in by the prosecution came to the conclusion that the prosecution has proved beyond reasonable doubt the guilt of the accused and accordingly convicted and sentenced them as aforesaid by the impugned Judgment and Order. The same is called in question in this appeal. 8. (2) What is the order? 7. The Sessions Court after appreciating the entire evidence let in by the prosecution came to the conclusion that the prosecution has proved beyond reasonable doubt the guilt of the accused and accordingly convicted and sentenced them as aforesaid by the impugned Judgment and Order. The same is called in question in this appeal. 8. The learned counsel for the appellants contends that the Sessions Court has failed to appreciate the evidence in the proper perspective and the appreciation of the evidence by the trial Court is perverse and liable to be set aside. There is no corroboration in the evidence of PWs 11, 15 and 16 who are said to be the eye witnesses to the occurrence. According to him there was no motive suggested by the prosecution against the appellants to commit the murder of the deceased. Even according to the prosecution on the day of the incident, the appellants were questioning PW11 for having constructed a shed on their land and at that time the deceased Kyathaiah informed appellant No. 1 stating that it is he who had permitted PW11 to put up a shed on the land in question since deceased Kyathaiah had no right to permit PW11 to put up a shed on the property of A1 and in that connection A1 in the fit of anger assaulted the deceased with MO 1 and that A2 also assaulted on his back and that immediately the deceased was shifted to Yelandur hospital at the first instance and then to General Hospital, Kollegal where he was treated as an outpatient by PW10-Dr. Shivaram and thereafter he was referred to K.R. Hospital Mysore, for further treatment and that the evidence of PWs 11, 15 and 16 has not been properly appreciated by the Sessions Court. Even if the Court had considered the evidence of PW15, at no stretch of imagination it can be said that the appellants had assembled at the place of incident with deadly weapon with an intention to commit murder of the deceased. According to the learned counsel the actual quarrel was between PW11 and the appellants as PW11 had constructed a shed on the property of appellant No. 1 and even it is not the case of the prosecution that the appellants had assembled with an intention to do away with PW11. According to the learned counsel the actual quarrel was between PW11 and the appellants as PW11 had constructed a shed on the property of appellant No. 1 and even it is not the case of the prosecution that the appellants had assembled with an intention to do away with PW11. He further contends that the appellants were questioning PW11 about his high handedness about the construction in their land and therefore, even if it is proved by the prosecution that the appellants had assaulted the deceased with MO1, the offence does not fall within the ambit of Section 302 of IPC since the appellants had no intention to commit murder and it is only an accidental one. He further contends that the deceased is said to have lodged a complaint as per Ex.P4 which has been received by PW6 Head Constable who has not even noted in which Crime number case has been registered. The further statement of the deceased, which is said to have been recorded on 20.10.1997 by PW7, also cannot be believed in view of the evidence of PW10 Dr. Shivaram who has stated that the deceased was admitted to Kollegal General hospital and he was in an unconscious condition and he has been treated as an inpatient. Further, by looking into Ex.P7 it cannot be inferred by the Court that the deceased was in a sound state of mind to give statement and the doctor has also not given any opinion that the deceased was in a fit condition to give statement. Therefore, he requests the Court to re-appreciate the evidence and reverse the findings of the Sessions Court. 9. Per contra, the learned Govt. Pleader Mr. Sampangiramaiah, supporting the judgment of the Sessions Court contends that the prosecution has proved the guilt of the accused beyond reasonable doubt in view of the evidence of the eye witnesses PWs 11, 15 and 16 whose evidence has not been challenged by the appellants herein. He further contends that Ex.P12-accident register discloses that the deceased has sustained head injury. On account of the same he was under a semi conscious state and he was getting irritation in cerebra and the name of the assailant is also mentioned in Ex.P12 and that PW10 has issued Ex.P12 who treated the deceased at about 7.45 p.m. on 19.10.1997. He further submits that autopsy was conducted by PW9-Dr. On account of the same he was under a semi conscious state and he was getting irritation in cerebra and the name of the assailant is also mentioned in Ex.P12 and that PW10 has issued Ex.P12 who treated the deceased at about 7.45 p.m. on 19.10.1997. He further submits that autopsy was conducted by PW9-Dr. K.W.D. Ravichandra which discloses that the deceased died due to COMA on account of the injuries caused to his brain and the evidence of PW9 has also not been seriously challenged by the appellants. In the circumstances he requests the Court to dismiss the appeal. 10. Having heard the learned counsel for the parties, what is required to be considered in this appeal is, 'Whether the appreciation of the evidence by the Sessions Court is just and proper, whether the prosecution has proved the guilt of the accused beyond reasonable doubt and whether the judgment of conviction and order of sentence is liable to be set aside? 11. The appellants and the deceased are close relatives. The appellant No. 2 is the sister's son of appellant No. 1. A1 is elder brother's son of the deceased. They are all residents of Mellahalli village. Appellant No. 1 was working as a coolie at Ramanagaram in a silk factory and further he used to visit the village now and then. As could be seen from the evidence of PW11-Siddaraju, on the date of incident at about 3.00 p.m. the first appellant came near his site and started questioning PW11 as to why he had unauthorisedly constructed the shed in his site. At that time deceased Kyathaiah came to the spot and advised A1 stating that it is he who had permitted PW11 to construct the shed in the said site. Having heard the same A1 stating that the deceased alone is responsible for all these things, took MO1 and assaulted on the head of the deceased as a result of which, deceased sustained injuries on the left side of his eye, ear and other parts and thereafter appellant No. 2 took MO1 from the hands of appellant No. 1 and assaulted the deceased on his back. Immediately the deceased was shifted to police station and he was in the police station in a semi-conscious state. Then he was shifted to Kollegal hospital along with the police. Immediately the deceased was shifted to police station and he was in the police station in a semi-conscious state. Then he was shifted to Kollegal hospital along with the police. Similarly, PW15 Mahadevaswamy has deposed in the similar lines as that of the evidence of PW11. PW16 is the son of the deceased. He was a minor boy when the incident occurred and when he was examined on 29.1.2003 he was aged about 19 years. The incident has taken place on 19.10.1997. His evidence is also similar to the evidence of PWs 11 and 15. 12. In this background we have also seen the evidence of PW10-Dr.Shivaram who treated the deceased at the first instance at Kollegal General hospital. According to him the deceased was in semi conscious condition, cerebral irritation was present and there was one linear abrasion just below the left eye about 1' in length and he had suspected left side haemoplegia. He has also stated that the deceased was treated in the hospital for three days and later he was shifted to K.R. Hospital Mysore. 13. We have also seen the evidence of PW9 Dr. K.W.D. Ravichandra who conducted autopsy over the body of the deceased and has issued postmortem report as per Ex.P10. According to him death was due to Coma, consequent to the head injury by blunt force impact to the left side head. 14. From the evidence of PWs 9 and 10 it is clear that death of Kyathaiah is an homicidal one and this is not seriously disputed by the learned counsel for the appellants. What is disputed is that the appellants had no intention to commit murder of the deceased and even they had no intention to assault the deceased also. Since PW11 had constructed a shed on the site of appellant No. 1, he was questioning the right of PW11-Siddaraju having constructed the shed on the land belonging to him. At that juncture deceased came and tried to pacify the matter stating that it is he who had permitted PW11 to construct the shed. Appellant No. 1 gave a blow on the head of the deceased with MO1 which resulted in causing injuries to the deceased. 15. At this juncture, the learned counsel for the appellants submits that there are variations in the statements given by the deceased Kyathaiah as per Exs.P4 and P7. Appellant No. 1 gave a blow on the head of the deceased with MO1 which resulted in causing injuries to the deceased. 15. At this juncture, the learned counsel for the appellants submits that there are variations in the statements given by the deceased Kyathaiah as per Exs.P4 and P7. If the Court considers Exs.P4 and P7, it is the contention of the learned counsel for the appellants that the prosecution has not proved the case of assault. 16. According to Ex.P4 it has been stated that both Venkatesh-A2 and Puttarachaiah-A2 have assaulted the deceased, but as per Ex.P7, it has been stated that it is A2 who had assaulted the deceased on his head, A1 assaulted on his back and A1 also was present there. Even if we ignore Ex.P7-the statement recorded by the police on 20.10.1997, this Court cannot ignore Ex.P4 which has been recorded by the police immediately after the incident, i.e., on 19.10.1997 and thereafter the deceased was shifted to Kollegal Govt. hospital for treatment. From looking into the evidence of PWs 11, 15 and 16, the assault made by the accused on the deceased cannot be disputed. Therefore, the prosecution has proved the assault made by the appellants on the deceased. However, the intention of the appellants to commit murder of the deceased Kyathaiah is concerned, we are of the view that the prosecution has failed to bring home the guilt of the accused under Section 02 of IPC because the appellants had no intention to assault the deceased Kyathaiah. We have come to this conclusion because as the quarrel was taking place between PW11-Siddaraju and A1 in connection with the shed put up by PW 11 on the land of accused, the deceased came in the way to pacify the issue stating it is he who had permitted PW 11 to put up the shed on the land of appellant No. 1. A1 in the fit of anger has assaulted the deceased with a club which was lying on the spot and it is clear that he had no grudge or grievance against the deceased and he had not anticipated the deceased granting permission to PW1 to put up a shed on his property. Deceased could not have permitted PW 11 to put up a shed on the property of the accused. Deceased could not have permitted PW 11 to put up a shed on the property of the accused. Therefore, in such circumstances, if A1 has assaulted the deceased with a club lying on the spot and at no stretch of imagination it can be held that he had intention to commit murder and it also cannot be inferred that the blow given by A1 would result in the death of the deceased. Therefore, we are of the view that the appellants had no intention to commit the murder of the deceased nor they had the knowledge that their act of assaulting the deceased would result in his death. Therefore, in the facts and circumstances we are of the view the act of the appellants cannot be construed as culpable homicide amounting to murder, on the other hand, it would be culpable homicide not amounting to murder falling within the ambit of Section 304 Part I of I PC. Accordingly, we hold the appellants guilty of the offence punishable under Section 304 Part I of IPC. 17. In the result, we pass the following :- ORDER (i) The appeal is allowed in part. (ii) The judgment of conviction and order of sentence passed by the I Addl. Sessions Judge, Mysore, in S.C. No. 160/98 is set aside. The appellants are convicted for the offence punishable under Section 304 Part I of IPC and accordingly, sentenced as hereunder: The appellants are sentenced to undergo imprisonment for a period of 9 years and to pay fine of Rs. 2,000/- each I.D. to undergo S.I. for a period of three months. The appellants are entitled for set-off under Section 428 Cr.P.C.