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2019 DIGILAW 1389 (KAR)

Dombayya Poojary v. State

2019-06-22

S.SUNIL DUTT YADAV, SREENIVAS HARISH KUMAR

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JUDGMENT : Sreenivas Harish Kumar, J. The accused who has been convicted for the offence under Section 302 of the Indian Penal Code (for short 'IPC') and sentenced to undergo life imprisonment with fine of Rs.5,000/- and, to further undergo imprisonment for a period of 6 months in default of payment of fine, has preferred this appeal. The case of the prosecution in brief is as follows:- The deceased is the mother of accused. P.W.1 who is the wife of accused is the first informant. The accused was earning his livelihood by doing coolie work. He was unable to maintain his family from his earnings and therefore, he expected that his mother should also work and earn money. In this regard there used to take place quarrels between the accused and his mother very often. On 19.02.2013 at about 8.30 p.m., the accused returned to his house and seeing his mother, he asked her as to why she should not earn by doing some work. To this, she replied that she was aged and unable to work; she also stated that if he was not able to look after her, he could kill her. It is stated that suddenly the accused took a wooden club and assaulted on her mother's head. When the wife and children of accused interfered, the accused said to his wife that he would kill her also. Hearing this, the wife and children went to the house of one Rama Bhat and remained there till next day morning. On 20.02.2013, when his wife and children came to their house, they saw the deceased being dead. In this regard, P.W.1 made a report to the police on 20.02.2013 at 14.30 hours After registration of the complaint, police held investigation and filed charge sheet against the accused. 2. The prosecution examined 12 witnesses. Appreciating the evidence of these witnesses, the trial Court came to the conclusion that the accused was guilty of offence under Section 302 of IPC and convicted him as stated above. The trial Court has recorded findings that from the evidence placed before it, the happening of the incident stands proved. After the quarrel started, P.Ws. 1 and 2 went to the house of Rama Bhat-P.W.3 and stayed there overnight. When they returned to the place of incident on the next day morning, they saw multiple injuries being present on the dead body. After the quarrel started, P.Ws. 1 and 2 went to the house of Rama Bhat-P.W.3 and stayed there overnight. When they returned to the place of incident on the next day morning, they saw multiple injuries being present on the dead body. Only accused was present in the house. It is not the case of the accused that someone had come to his house during that night. It was within the knowledge of the accused as to what happened on that night. He only should explain as to how his mother sustained fatal injuries. According to Section 106 of the Indian Evidence Act, the burden was on the accused to prove the facts which were within his special knowledge. Referring to the evidence given by P.W.1, the trial Court has given a finding that the suggestion given to P.W.1 that she used to go to hillock area situate behind the house for answering nature's call, and the deceased was also going to the very same hillock for the same purpose and therefore, there was possibility of deceased having fallen down and sustained injuries, cannot be believed. Suggestion to this effect was not given to P.W.1 when she was cross-examined. In addition, when the accused was examined under Section 313 of Cr.P.C. he gave a statement that actually a quarrel broke out between his wife and the deceased and thereafter P.W.1 went out of the house with her children and then he slept in his house. The trial Court has disbelieved this statement. No suggestion was given to P.W.1 in this way when she was cross-examined. Therefore, the evidence on record would disclose that it was the accused who killed his mother. According to the trial Court, this is a case of murder punishable under Section 302 of IPC. 3. Assailing the findings of the trial Court, the learned counsel for the appellant argues that the incident is said to have taken place around 8.30 p.m. on 19.02.2013, but Ex.P.2 shows that it was registered at about 14.00 hours on 20.02.2013. It is a typed one. Therefore, this delay in registration of FIR has to be viewed seriously. He also argues that P.Ws. 1 and 2 are actually eye witnesses according to the prosecution, but they have not supported the prosecution case. It is a typed one. Therefore, this delay in registration of FIR has to be viewed seriously. He also argues that P.Ws. 1 and 2 are actually eye witnesses according to the prosecution, but they have not supported the prosecution case. These two witnesses turned hostile and when they were cross-examined by the Public Prosecutor he failed to elicit from them that they had actually seen the incident. Evidence given by P.Ws.1 and 2 finds support from the evidence of P.W.3, who has clearly stated that P.Ws. 1 and 2 came to his house and slept there on that night. Therefore, it is possible to draw an inference that P.Ws.1 and 2 are not the eye witnesses. Moreover, when P.Ws.1 and 2 returned to their house on the next day morning, accused was still sitting there. If he had really assaulted his mother, he would have left that place. The very fact he was there shows that the prosecution case cannot be believed. He further argues that evidence given by P.W.8 with regard to recovery cannot be believed. Even if it can be relied upon, the testimony of P.W.8, cannot be based to come to a conclusion about the involvement of the accused in the incident. 4. It is the further argument of the learned counsel for the appellant that the circumstances clearly indicate that the involvement of the accused was not there. If the version of P.Ws. 1 and 2 can be believed, it is possible to arrive at a conclusion that on the provocation given by the deceased, the accused resorted to assaulting his mother. Intention of killing the deceased was not there. In this view, the offence under Section 302 of IPC does not get attracted. The only offence that can be made out is one punishable according to Section 304, Part-II of IPC. Already the accused has been in jail for the last 6 years 4 months. The time he has already spent in jail be set off and he may be released. 5. Sri. Vijayakumar B. Majage, learned Additional State Public Prosecutor, argues that the findings given by the trial Court regarding involvement of the accused in the incident cannot be set aside. The trial Court has appreciated the evidence properly. Every minute aspect has been considered. Actually, P.Ws. 1 and 2 are the eye witnesses. 5. Sri. Vijayakumar B. Majage, learned Additional State Public Prosecutor, argues that the findings given by the trial Court regarding involvement of the accused in the incident cannot be set aside. The trial Court has appreciated the evidence properly. Every minute aspect has been considered. Actually, P.Ws. 1 and 2 are the eye witnesses. It is quite obvious that they do not support the prosecution case as P.W.1 is the wife and P.W.2 is the son of accused. However, their evidence as to the reason for commencement of quarrel in night of 19.02.2013 has stood established. They returned to the house on the next day morning and by that time, the deceased was found dead. Therefore, as has been rightly held by the trial Court, Section 106 of the Indian Evidence Act comes into picture and he having failed to give reasons as to what happened during that night after P.Ws.1 and 2 left that place, is sufficient to hold that he is the one who killed his mother. Moreover, evidence given by P.W.8 supports the prosecution case. Recovery mahazar shows that M.O.9 - wooden piece, used for assaulting the deceased, was recovered at the instance of the accused. This evidence corroborates the testimony of P.Ws. 1 and 2. Therefore, the finding of the trial Court about the happening of the incident cannot be disturbed. 6. Sri Vijay Kumar B. Majage, learned Additional State Public Prosecutor, further argued that the evidence on record clearly discloses the intention on the part of the accused. In Ex.P.1, it is clearly stated that when PW.1 interfered to pacify the quarrel between the deceased and accused, the latter reacted that he would also kill PW.1. Therefore, it discloses the intention. When intention is forthcoming, the case cannot be brought down to Section 304 II of IPC. The trial Court is justified in convicting the accused for the offence punishable under Section 302 of IPC and argues for dismissing the appeal. 7. We have considered the points for arguments. 8. As regards to the incident, according to the prosecution, PWs.1 and 2 are the eyewitnesses to the incident. PW.1 is the wife and PW.2 is the son of the accused. It was PW.1 who gave first information as per Ex.P.1. If Ex.P.1 is read, it gives an impression that she was an eyewitness and PW.2 was also present at that time. PW.1 is the wife and PW.2 is the son of the accused. It was PW.1 who gave first information as per Ex.P.1. If Ex.P.1 is read, it gives an impression that she was an eyewitness and PW.2 was also present at that time. However, when these two witnesses were examined in the Court, they did not support the case of the prosecution. It is quite obvious that they being wife and son of the accused, might have turned hostile. But their evidence cannot be totally discarded. PW.1 has stated that she was suffering from tuberculosis and her mother-in-law from hyper tension, and that the accused had to spend money towards their medicines. He used to become angry to spend money for buying medicines. One day the quarrel broke out at 8.30 p.m. The accused was drunk and asked her as to why she was standing there. She has stated that at about 8.30 p.m., the accused sent her and the children out of the house and therefore, they went near the hillock which is situate near their house. From there, they went to the house of Rama Bhat PW.3. They slept there and at about 6.00 a.m. on the next day, when they returned to their house, they saw the deceased having fallen down in the front yard of the house. Except stating this much she did not support the prosecution case. She was subjected to cross-examination by the public prosecutor treating her hostile. Even in the cross-examination, she did not support the prosecution case. When she was cross-examined by the counsel for the accused, she stated that when she returned to the house at about 6.00 a.m., on the next day morning, her mother-in-law was still alive and she gave her water to drink. 9. Pw.2 is the son of accused and PW.1. In his examination-in-chief he has stated that on the day when his grandmother died, his father returned to the house during night time and then there took place a quarrel between his father and grandmother. He and his mother intervened to pacify the quarrel and at that time, the accused asked them to go out of the house and therefore, they went to the house of Rama Bhat PW.3 and returned on the next day morning. He too saw his grandmother having fallen down. He and his mother intervened to pacify the quarrel and at that time, the accused asked them to go out of the house and therefore, they went to the house of Rama Bhat PW.3 and returned on the next day morning. He too saw his grandmother having fallen down. According to him, the deceased was alive when he and his mother came to that place on next morning. She died later. The prosecutor treated this witness hostile and cross-examined him, but his efforts to discredit him has gone in vain. 10. Pw.3 is examined by the prosecution to prove the fact that PW.1 and PW.2 came to his house on the night of 19.02.2013 and slept there. PW.3 has supported the case of the prosecution to this extent. He has also stated that PW.1 told him that a quarrel was taking place between her husband and mother-in-law. PW.3 has stated that on the next day morning he also went to the house of the accused and saw the accused. He has stated that at that time, the accused told that his mother had passed away. This witness was treated hostile and cross-examined by the public prosecutor. PW.3 admitted the suggestion that PW.1 told him about a quarrel going on between her mother-in-law and the accused, and the accused assaulting the deceased with a wooden club, and when PW.1 and her children interfered, the accused tried to beat them also and therefore, they came out of the house and went to nearby hillock and from there they came to the house of PW.3. 11. Drawing of inquest is not disputed. When the evidence of PW.7 the doctor who conducted the post mortem examination, is read, it is found that the deceased had sustained thirteen external antemortem injuries. In the cross-examination of PW.7, the suggestion has been given that if a person falls from a certain height there is possibility of happening of injuries as mentioned in the post mortem report. But PW.7 has not admitted this suggestion and he answered that only injury Nos.3 and 4 could occur. 12. Pw.8 was an witness to seizure mahazaar drawn as per Ex.P.9. His clear evidence is that, the police seized the blood stained clothes of the accused marked as MOs.7 and 8 and then, the police also seized a club MO.9 at the instance of the accused. 12. Pw.8 was an witness to seizure mahazaar drawn as per Ex.P.9. His clear evidence is that, the police seized the blood stained clothes of the accused marked as MOs.7 and 8 and then, the police also seized a club MO.9 at the instance of the accused. He has also stated that the accused himself lead the police and the witnesses to a place called Pilinja and there he removed a club from a bushy plant and gave it to the police. The defence has failed to discredit this evidence in the cross-examination. 13. So if entire evidence of PWs.1, 2, 3, 7 and 8 is assessed, it is possible to draw inferences that though PWs.1 and 2 have turned hostile, their evidence cannot be totally discarded. Atleast to the extent of commencement of quarrel between the accused and the deceased their evidence stands. The fact that PWs.1 and 2 went to the house of PW.3 on that night and slept there is corroborated from the testimony of PW.3. Therefore, if it can be said that PWs.1 and 2 really did not see the incident, still it is possible to say that the involvement of the accused cannot be ruled out. The reason being that the deceased was very much present in the house. At the time when the quarrel took place, the accused was also present. If PWs.1 and 2 went out of the house fearing the quarrel between the deceased the accused, the accused alone should explain as to what happened after PWs.1 and 2 left that place. The evidence of PW.7 discloses the presence of thirteen external injuries. It is not the case of the defence that the deceased had gone to nearby hillock to answer the natural call at that time. Therefore, suggestion made to P.W.2 in this way is of no use. When the accused was examined under Section 313 of Cr.P.C., he came out with a different stand that actually quarrel broke out between the deceased and PW.1. The evidence of PWs.1 and 2 is totally the other way. Moreover when PWs.1 and 2 were cross-examined, suggestions were not given to them in the background of the stand taken by the accused when he was examined under Section 313 Cr.P.C. This stand should also to be ignored. The evidence of PWs.1 and 2 is totally the other way. Moreover when PWs.1 and 2 were cross-examined, suggestions were not given to them in the background of the stand taken by the accused when he was examined under Section 313 Cr.P.C. This stand should also to be ignored. Therefore, as has been held by the trial Court, the accused should alone explain as to what happened during that night. The doctor who conducted the post mortem report as per Ex.P.7 has clearly opined that the death was due to trauma to the brain as a result of multiple blunt force to the skull. In the post mortem report, it is mentioned that in all 13 external injuries were found on the body of the deceased. Injuries No.6 and 7 are important. Injuries mentioned at serial Nos.6 and 7 are contusion over the right upper eyelid and abrasions over the forehead. Therefore, the doctor's evidence is worth believable. In this background, it has to be concluded that though PWs.1 and 2 have turned hostile, the prosecution case stands proved beyond reasonable doubt. The findings given by the trial Court cannot be disturbed. 14. The trial Court has convicted the accused for the offence punishable under Section 302 IPC. It is difficult for us to concur with the findings of the trial Court in this regard. The trial Court has held that the accused had intention to do away with the life of his mother. It has also been held that when incident is established by the direct evidence, the motive loses its significance. 15. In this regard what we want to observe is that from the prosecution case itself, intention on the part of the accused is difficult to be made out. Ex.P.8 is the First Information Report which clearly states that the accused forced his mother to work and earn money as his income alone was not sufficient to maintain the family. But the deceased was aged and unable to work. In this background, a quarrel commenced. During that night, the deceased said that the accused could kill her if he was unable to maintain her. It is stated in the FIR that suddenly, the accused brought a wooden piece and gave a blow on her head. Therefore, what is forthcoming is a kind of provocation given by the deceased during the quarrel. During that night, the deceased said that the accused could kill her if he was unable to maintain her. It is stated in the FIR that suddenly, the accused brought a wooden piece and gave a blow on her head. Therefore, what is forthcoming is a kind of provocation given by the deceased during the quarrel. This can be clearly made out from the evidence. It is true that if nature of the injuries are seen, those injuries are sufficient in the ordinary course to cause death. That too, when an old lady receives these injuries, they are sufficient to cause her death. Therefore, initially the case can be brought squarely within thirdly of Section 300 of I.P.C. But exception No.1 to Section 300 I.P.C. is as below: " Exception 1. When culpable homicide is not murder. Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos: (First) That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. (Secondly) That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. (Thirdly) That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation. Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact." 16. It can be very well said here that accused was provoked by the deceased and hence whole case can be brought within the purview of Section 304 Part II of IPC. The trial Court, in our opinion, has failed to notice this aspect. To this extent, we do not agree with the findings of the trial Court. Therefore, we proceed to pass the following order: a. The appeal is allowed in part. b. The judgment of the trial Court convicting the accused for the offence punishable under section 302 I.P.C. is set aside. However, the accused is found guilty of the offence under Section 304 Part II of IPC. Therefore, we proceed to pass the following order: a. The appeal is allowed in part. b. The judgment of the trial Court convicting the accused for the offence punishable under section 302 I.P.C. is set aside. However, the accused is found guilty of the offence under Section 304 Part II of IPC. c. The accused is undergoing imprisonment for the last six years four months. Having regard to the background as to how the quarrel broke out that led to the death of the deceased and the fact that the accused is a poor coolie, we are of the opinion that the accused could be sentenced to undergo imprisonment for the period he has already spent in jail and ordered accordingly. d. The accused be set at liberty forthwith.