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2017 DIGILAW 550 (KAR)

Manjappa Shankrappa v. State of Karnataka

2017-03-03

K.N.PHANEENDRA

body2017
JUDGMENT : K.N. Phaneendra, J. The appellant has called in question the judgment of conviction and sentence passed in S.C. No. 45/2013 dated 28.10.2014 passed by the Fast Track Court & Addl. Sessions Judge, Dharwad. By the above said judgment the trial Court has convicted the appellant for the offences punishable u/S. 304-II of IPC and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.25,000/- in default to undergo simple imprisonment for one year. The trial Court has also awarded an amount of Rs.20,000/- out of the fine amount as compensation to P.W.11-Mallamma, who is the wife of the deceased Gwalappa. The Court has also granted the set-off for the period which the accused has undergone during the enquiry and trial. 2. The learned counsel appearing for the appellant has submitted before the Court that in view of the appellant has already undergone four years four months and nine days imprisonment out of five years awarded against him, he do not want to press the appeal on merits of the case. However, he only challenges the sentence passed by the trial Court as exorbitant and also the learned counsel contends that, in view of the facts and circumstances of the case, the accused appellant has to be sentenced to the period he has already undergone in the jail. 3. In view of the said submission, the Court need not go to the consideration of the merits of the case. However, the Court should look into the factual aspects of the case to find out whether the sentence passed by the trial Court is exorbitant or in view of the long incarceration of the accused, this Court can reduce the sentence to the period already undergone by the appellant. 4. The brief factual matrix of the case that emanate from the records are that, the accused is an agriculturist, is resident of a village called Bagur. The deceased Gwalappa and the accused are the brothers to each other, they are the sons of P.W.7, the complainant. P.W.10 a person by name Gurunath is the younger brother of the accused and the deceased. There was a partition amongst the members of the family in presence of the elderly persons in the village. The deceased Gwalappa and the accused are the brothers to each other, they are the sons of P.W.7, the complainant. P.W.10 a person by name Gurunath is the younger brother of the accused and the deceased. There was a partition amongst the members of the family in presence of the elderly persons in the village. It is the case of the prosecution that the accused was not satisfied with the said partition and he was frequently quarrelling with the deceased Gwalappa in this regard since six months prior to the incident. The accused was advised by the elders of the village and the family members but he did not heed to their advise at any point of time. This is the background under which the alleged incident has happened, as per the prosecution. 5. It is the further case of the prosecution that on 23.10.2012, at about 7.30, the father of the accused (complainant) and the brother of the accused, i.e., deceased Gwalappa, has returned to the house after completing their marketing. At that time, the accused started abusing the deceased Gwalappa in filthy language on the allegation that he was not provided with proper share in the family properties. Simultaneously, while abusing the deceased, the accused-appellant went inside the house and brought an axe with an intention to kill the deceased Gwalappa and assaulted upon the head of Gwalappa with the axe, which is marked as M.O.1 and caused severe injury on his head. Later, the said Gwalappa was taken to the hospital at Kalaghatagi, the treatment was not fructified. However, he died later. Earlier the Police have registered a case u/Ss. 307 and 504 of IPC. But, subsequently, as the deceased Gwalappa succumbed to the injuries, the case has been registered against the appellant for the offences punishable u/Ss. 302 and 504 of IPC. 6. The accused-appellant was arrested on 25.10.2012 and since then he has been in custody. After committal proceedings and registration of a Sessions Case in No. 45/2013, the Court after getting the presence of the accused, framed charges against the accused for the offences punishable u/Ss. 302 and 504 of IPC. As the accused pleaded not guilty, he was put on the trial. After committal proceedings and registration of a Sessions Case in No. 45/2013, the Court after getting the presence of the accused, framed charges against the accused for the offences punishable u/Ss. 302 and 504 of IPC. As the accused pleaded not guilty, he was put on the trial. The prosecution in order to bring home the guilt of the accused examined 22 witnesses as P.Ws.1 to 22 and got marked documents as per Exs.P.1 to P.29A and M.Os.1 to 6 material objects are marked. 7. After completion of the prosecution evidence, the accused was also examined u/S. 313 of Cr.P.C. As the accused did not choose to lead evidence on his side, after hearing the arguments, the trial Court has rendered the judgment convicting the appellant and sentenced him accordingly as noted supra. 8. As could be seen from the evidence of the prosecution witnesses, it is very much clear that the appellant and the deceased and some of the witnesses are close relatives to each other and as noted above, P.W.7 is the mother of the accused, deceased is the brother of the accused and P.W.10 is the another brother of the accused. Though they are close relatives to the accused, they have emphatically stated about the incident and the quarrel between the accused and the deceased. The trial Court has rightly believed the version of those witnesses in convicting the accused. Though the trial Court has believed the said witnesses for the purpose of drawing an inference against the accused, and has also properly appreciated the same evidence for the purpose of imposing sentence on the accused. 9. As could be seen from the sentence passed by the trial Court, though it is urged before the trial Court that the accused is married and having one son and one daughter and he has got a mother and another brother as noted above and the accused has already suffered mental agony since 2012, in spite of all those things, the Court has imposed rigorous imprisonment of five years. Though the trial Court would have sentenced the accused less than five years but I do not find any strong reasons to say that the trial Court has committed any wrong in imposing sentence of five years when this Court being the first appellate Court, in addition to the above said facts and circumstances also has to see the nature of long incarceration of the accused and his conduct during the course of the investigation, trial and his societal status and his responsibility in the society and whether he could come back to the main stream in the society, etc. 10. In this background the social status of the accused has to be examined. He is a villager, eking his livelihood by doing agriculture, he has got some landed properties. The main grouse against the deceased was that the partition was not properly done amongst the family members and therefore he had some ill will against his own brother. Apart from the above sole incident in his life, absolutely the prosecution has not placed any material to show that he is an anti-social element or he has got any criminal background and any bad antecedents. The age of the accused-appellant is 45 years when he preferred this appeal before this Court. Still a long way to go in his life. He has got two children, they are to be brought up and it is his responsibility to see that those children are grown up and settle in their life. He has also got a wife. She is also dependent upon this man and if he continues to be in jail their life also may become miserable. 11. Considering the totality of the circumstance, though this Court is of the opinion, imposing sentence by the trial Court is improper but still by exercising the appellate jurisdiction considering the long incarceration that is major portion of the sentence passed by the trial Court has already been undergone by the appellant, this Court feels that the period already undergone by the appellant can be treated as the sentence imposed upon him and accused shall be released. However, it is a notable point that the trial Court has also imposed a sentence of fine imposing an amount of Rs.25,000/- and out of that, an amount of Rs.20,000/- has been awarded as compensation to P.W.11, the wife of the deceased by name Mallamma. However, it is a notable point that the trial Court has also imposed a sentence of fine imposing an amount of Rs.25,000/- and out of that, an amount of Rs.20,000/- has been awarded as compensation to P.W.11, the wife of the deceased by name Mallamma. As the said lady has lost her husband during her young age, therefore, the equitable principles of criminal jurisprudence shows that the Court also should bear in mind the victim- s status. Under the above said circumstances, though this Court inclines to modify the sentence passed by the trial Court but the sentence of fine imposed by the trial Court should be maintained. 12. Having reasoned out in the above said manner, I am of the opinion, the long incarceration of the accused can be treated as the sentenced imposed upon him. In view of the same, the sentence passed by the trial Court requires to be modified. Hence, the following order is passed. ORDER 1. The appeal is partly allowed. 2. The judgment of conviction and sentence of fine passed by the trial Court is not disturbed and the same is maintained. However, the sentence imposed by the trial Court for the offence punishable u/S. 304-II of IPC is modified and the accused is hereby sentenced to undergo rigorous imprisonment for four years four months and nine days, which he has already undergone as the sentence imposed upon him. 3. The sentence of fine imposed upon the accused, as the same is maintained, the accused shall pay a fine of Rs.25,000/- and he thereafter shall be released, if he is not required in any other case immediately after payment of fine. If the amount of fine is deposited before the trial Court, out of that, as ordered by the trial Court an amount of Rs.20,000/- shall be paid to P.W.11-Mallamma, the wife of the deceased Gwalappa, after proper identification. 4. Accordingly, the appeal is disposed of. 5. Registry is directed to forthwith send back the records of the trial Court for issuance of release order after the fine is deposited.