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2019 DIGILAW 307 (KAR)

Somu v. State Of Karnataka

2019-01-31

K.N.PHANEENDRA, K.NATARAJAN

body2019
JUDGMENT : K.N.Phaneendra, J. The appellants are arraigned as accused Nos.1 to 6 in S.C.No.108 of 2012 on the file of the Fast Track Court at Shivamogga. Totally seven accused were arraigned before the Trial Court, out of them, accused No.7 was acquitted by the Trial Court. The Trial Court vide judgment dated 28.08.2014 convicted accused Nos.1 to 6 for the offences punishable under Sections 143, 147, 504, 324, 506(2), 302 read with 149 of the Indian Penal Code. For the offence under Section 143 r/w Sec.149 of IPC, the accused Nos.1 to 6 shall undergo simple imprisonment for a period of six months and shall pay fine of Rs.500/- each, in default to pay fine, they shall further undergo simple imprisonment for fifteen days. For the offence under Section 147 r/w Sec.149 of IPC, the accused Nos.1 to 6 shall undergo simple imprisonment for a period of six months and shall pay fine of Rs.500/- each, in default to pay fine, they shall further undergo simple imprisonment for fifteen days. For the offence under Section 504 r/w Sec.149 of IPC, the accused Nos.1 to 6 shall undergo simple imprisonment for a period of three months. For the offence under Section 324 r/w Sec.149 of IPC, the accused Nos.1 to 6 shall undergo simple imprisonment for a period of six months and shall pay fine of Rs.500/- each, in default to pay fine, they shall further undergo simple imprisonment for fifteen days. For the offence under Section 506 r/w Sec.149 of IPC, the accused Nos.1 to 6 shall undergo simple imprisonment for a period of six months and shall pay fine of Rs.500/- each, in default to pay fine, they shall further undergo simple imprisonment for fifteen days. For the offence under Section 302 r/w Sec.149 of IPC, the accused Nos.1 to 6 shall undergo life imprisonment and shall pay fine of Rs.2,000/- each, in default to pay fine, they shall further undergo imprisonment for two months. 2. We have heard the learned counsel for the appellants and also the learned Additional Public Prosecutor for the State and carefully looked into the oral and documentary evidence adduced and produced by the prosecution before the Trial Court and also examined the judgment of conviction and sentence passed by the Trial Court. 3. 2. We have heard the learned counsel for the appellants and also the learned Additional Public Prosecutor for the State and carefully looked into the oral and documentary evidence adduced and produced by the prosecution before the Trial Court and also examined the judgment of conviction and sentence passed by the Trial Court. 3. Sri R.B.Deshpande, learned counsel for the appellants strenuously contends before this Court that though there is zero offence so far as accused Nos.3 to 6 are concerned, the Trial Court with the help of Section 149 of the Indian Penal Code convicted accused Nos.3 to 6 for all the above said offences which is erroneous and illegal. He also contends before this Court that even the so-called eye witness particularly the injured witness has concluded the presence of accused Nos.3 to 6 at the time of the incident or at any point of time. He further contends before the Court that the Court cannot draw any inference under Section 149 or under Section 34 of I.P.C. When such being the case, the overt act of accused No.1 is that, he assaulted the deceased Ramappa on his head so far as accused No.2 is concerned, he only assaulted PW-6 causing simple injuries to him. There is no material to show that there is any pre-meeting of minds of the accused persons. The incident happened in a spur of moment for some quarrel that took place between the two groups, PW- 1 and others on one side and accused Nos.1 and 2 only on the other side. Therefore, when neither Section 149 or Section 34 of I.P.C. can be invoked, the accused persons cannot be convicted jointly for the above said alleged offences. Therefore, when neither Section 149 or Section 34 of I.P.C. can be invoked, the accused persons cannot be convicted jointly for the above said alleged offences. The learned counsel also contended that considering the situation of the case and the single blow given and the injuries sustained by the deceased Ramappa and only one blow that has been dealt with by accused No.1, no other injuries are sustained by the deceased, the offence ought not to have been held to be proved under Section 302 of I.P.C. but at the most, it would fall under Section 304 Part II of I.P.C. Therefore, he requested to release the accused persons in considering period of imprisonment already undergone or to modify the sentence so far as the accused Nos.1 and 2 are concerned, in accordance with the facts and circumstances of the case and he contended that there is absolutely no evidence in so far as accused Nos.3 to 6 are concerned and they may be acquitted from the charges leveled against them. 4. The learned Addl.SPP has contended before the Court that, there is some evidence against accused Nos.3 to 6 by PW-1 in his complaint as per Ex.P1 and the witnesses have also stated commonly about all the accused persons. Therefore, the Trial Court has rightly invoked Section 149 of I.P.C. for the purpose of convicting and sentencing the accused, which does not call for any interference with the judgment of the Trial Court. Hence, he pleads for dismissal of the appeal. 5. We have carefully re-evaluated the oral and documentary evidence available on record. i) PW-1 Shanthakumar is the son of the deceased who is an eye witness to the incident. ii) PW-2 Laxmanappa is the brother of the deceased who is another eye witness to the incident who lodged the information after the death of the deceased Ramappa. iii) PW-3 Shekarappa is the elder brother of the deceased has not even implicated accused No.2 but he implicated accused No.1 to the crime and he also a witness to spot mahazar Ex.P2, with regard to seizure of MOs.1 to 5. iv) PW-4 Sathish @ Sathyanarayana is also a panch witness to Ex.P2 and seizure of MOs.1 to 5. v) PW-5 Vasantha is actually not an eye witness. He only stated shifting of the deceased Ramappa to the hospital but he does not know anything about the incident. iv) PW-4 Sathish @ Sathyanarayana is also a panch witness to Ex.P2 and seizure of MOs.1 to 5. v) PW-5 Vasantha is actually not an eye witness. He only stated shifting of the deceased Ramappa to the hospital but he does not know anything about the incident. vi) PW-6 Rajappa is the brother of the deceased Ramappa and he has examined to show that he is also an eye witness to the incident. But he has also not stated anything about the presence of accused Nos.3 to 6. vii) PW-7 Yashodamma is none other than the wife of the deceased Ramappa. She has also not implicated accused Nos.3 to 6 to the crime but she has only stated the presence of accused Nos.1 and 2 and accused No.1 assaulted the deceased and accused No.2 assaulted the injured Rajappa. viii) PW-8 Prema is the wife of PW-6 Rajappa. Infact, she also spoke about the overt act of accused Nos.1 and 2 but not the presence of accused Nos.3 to 6. ix) PW-9 Raghavendra only implicated accused No.1 and he not even stated anything about accused Nos.2 to 6. x) PW-10 Yogeesh is also examined as an eye witness to the incident but he turned hostile to the prosecution, did not implicate any of the accused. xi) PW-11 Dr.Rangaiah initially treated the deceased Ramappa and as well as Rajappa and through him Exs.P6 and P4 were marked. xii) PW-12 Dr.Tanujkanchan is the doctor who conducted the post-mortem examination on the dead body of deceased Ramappa and gave the opinion that, the death of the deceased was due to the head injury sustained by him. It is relevant to note here that, the death of the deceased occurred on 19.03.2009 and he survived for 11 days after the incident. xiii) PW-13 Jayaprakash, A.S.I. who conducted the spot mahazar as per Ex.P5 and seized MOs.1 to 5 from the spot. xiv) PW-14 Nanjappa has apprehended the accused persons. There is no dispute in so far as this aspect is concerned. xv) PW-15 V.S.Siddalingappa is the Investigating Officer who after investigation led the charge-sheet. 6. Before adverting to the material evidence on record, we would like to have the brief factual matrix of this case: PW-1 is none other than the son of the deceased Ramappa. There is no dispute in so far as this aspect is concerned. xv) PW-15 V.S.Siddalingappa is the Investigating Officer who after investigation led the charge-sheet. 6. Before adverting to the material evidence on record, we would like to have the brief factual matrix of this case: PW-1 is none other than the son of the deceased Ramappa. He lodged a report as per Ex.P1 stating that, about five to six days prior to the incident, the Forest Department people have raided the house of one Huchappa, Son of Ashoka and they have seized some teak wood logs from the house of the said Huchappa, Son of Ashoka. The accused persons have suspected that PW-1 and his father and the family members have given information to the police or the Forest Department in this regard. In this background, it is alleged that on 08.03.2009 at about 7.00 p.m., all the accused persons, i.e., particularly, accused Nos.1 to 6 at about 9.30 p.m., had been to the house of PW-1 and started abusing PW-1 and his family members. At that time, accused No.1 has assaulted with an iron rod on the back of PW-1. At that time, the deceased Ramappa came to rescue PW-1. In that context, accused No.1 also assaulted on the head of the deceased Ramappa. PW-6 Rajappa also came to rescue the deceased Ramappa and PW-1. In that context, it is alleged that accused No.2 Basappa assaulted on the head of PW-6 Rajappa and at that time, one Kitty, Aruna and Vasantha came to the that particular spot and shifted the injured and the deceased to the hospital. All the accused persons threatened PW-1 and others with dire consequences of killing them, later throwing all the weapons on the spot, they went away from the spot. 7. In EX.P1 itself, there is absolutely no allegation whatsoever in so far as the overt acts of accused Nos.3 to 6 are concerned. All the accused persons threatened PW-1 and others with dire consequences of killing them, later throwing all the weapons on the spot, they went away from the spot. 7. In EX.P1 itself, there is absolutely no allegation whatsoever in so far as the overt acts of accused Nos.3 to 6 are concerned. Subsequently, PW-2 Lakshmanappa has once again gave a report to the police incorporating the name of Rudrappa as the instigator to the crime and also reporting the death of Ramappa in the hospital on 19.03.2009 in the early hours at about 4.00 a.m. The police earlier have registered the case against the accused persons for the offence punishable under Sections 143, 147, 504, 324, 506(2) read with Section 149 of I.P.C. Even no case was registered under Section 307 of I.P.C. The case was registered in Crime No.37 of 2009. Subsequently, after the death of the deceased, the case was converted for the offence punishable under Section 302 of I.P.C. and a report was sent to the Jurisdictional Magistrate. The respondent police have investigated the matter and thereafter submitted the charge-sheet before the Court. 8. The Trial Court, after securing the presence of all the accused persons framed charges against them for the above said offences including the offence under Section 302 of I.P.C. The prosecution in all examined 15 witnesses PWs-1 to 15 as discussed above and got marked Exs.P1 to P8 and during the course of cross-examination of PWs-1 and 7, Exs.D1 to D3 were marked. Ex.D4 was marked through the evidence of the doctor. The prosecution also got marked MOs.1 to 5. The accused were also examined under Section 313 of Cr.P.C. as they did not choose to lead any defence evidence, after hearing both the sides, the Trial Court has passed the impugned judgment of conviction and sentence as noted supra. 9. On total re-evaluation of the evidence on record, it is clear that, the prosecution witnesses are one way or the other closely related to the deceased and PW-1. The relationship between the parties has been elicited from the mouth of PW-1 during the course of cross-examination. It is worth to refer the cross-examination of PW-1. He has stated that, CW-2 is his paternal uncle. PWs-2 and 3 are also his paternal uncles. PWs-4, 5 and 7 are his relatives. CW-8 Aruna is also his paternal uncle's son. The relationship between the parties has been elicited from the mouth of PW-1 during the course of cross-examination. It is worth to refer the cross-examination of PW-1. He has stated that, CW-2 is his paternal uncle. PWs-2 and 3 are also his paternal uncles. PWs-4, 5 and 7 are his relatives. CW-8 Aruna is also his paternal uncle's son. CW-9 Rajappa is the brother of his father. CW-14 is his mother. CW-15 is again his paternal uncle's son. CW-16 is his paternal uncle's wife. CW-17 is his distant relative. CW-19 is the wife of CW-18 and they are all residing in the same area. Therefore, all the witnesses except the police witness and panch witnesses are all relatives to PW-1. In this background, if we look into the evidence of PW-1, he is none other than the son of the deceased. He though stated in Ex.P1 the presence of all the witnesses, in the course of cross-examination, he has stated that all the accused persons came to the spot with iron rod and clubs in their hands and threatened them with dire consequences but he implicated accused Nos.1 and 2 as the persons whose overt act on the spot was alleged. It is specific from the evidence of these witnesses that accused No.1 has assaulted PW-1 on his back and also assaulted deceased Ramappa on his head and PW-2 assaulted Ramappa on his head. Though he has stated that all the accused persons have assaulted with clubs but he has not stated who assaulted whom. He also stated the presence of PW-2 Lakshmanappa, PW-3 Shekarappa and PW-4 Satish at that particular point of time and he also admitted filing of Ex.P1 before the police. 10. Therefore, in the evidence of these witnesses, there is no overt act actually alleged so far as accused Nos.3 to 6 are concerned. In the course of cross-examination at paragraph No.11, he stated that he has seen accused No.1 assaulting his father and accused No.2 assaulting his uncle but he has not seen the other accused persons assaulting anybody. But he says that accused persons kicked Ramappa but the same is conspicuously absent in Ex.P1. PW-2 infact has not implicated accused Nos.3 to 6 at all. He only stated about the presence of accused Nos.1 and 2 and he also pleads his ignorance about accused No.2 assaulting Ramappa. But he says that accused persons kicked Ramappa but the same is conspicuously absent in Ex.P1. PW-2 infact has not implicated accused Nos.3 to 6 at all. He only stated about the presence of accused Nos.1 and 2 and he also pleads his ignorance about accused No.2 assaulting Ramappa. However he has stated that weapons were there in the hands of the accused. Therefore, from the evidence of this witness, there is no overt act alleged against accused Nos.3 to 6 nor have been presence of accused Nos.3 to 6 has been stated and he also admitted that, till the death of Ramappa, i.e., on 19.03.2009 his statement was recorded. Therefore, there is chance of falsely implicating accused Nos.3 to 6 into crime. PW-3 Shekarappa in his evidence only implicated accused No1. He has not even stated about the presence of accused No.2. He was also a panch witness to Ex.P2 and has stated MOs.1 to 5 were seized from the spot. But from the evidence of this witness it is evident that he only implicated accused No.1, there is no whisper about accused Nos.2 to 6. PW-4 is not a material witness but he is a witness to seizure of MOs.1 to 5. PW-5 has also not implicated anybody to the crime but he is a hear-say witness, he came to know about the incident later. 11. Pw-6 is the material witness who is an injured eye witness to the incident who is none other than the brother of the deceased Ramappa. He has deposed that on the date of the incident, PW-9 and accused Nos.1 and 2 came to the spot holding a rod and club in their hands and accused No.1 assaulted Shanthakumar on his back and assaulted on the head of the deceased Ramappa, and accused No.2 has assaulted this witness on the head with a club. He sustained injuries and thereafter, the accused persons went away from the spot. There is absolutely no whisper of even the presence of accused Nos.3 to 6 at the spot according to this witness. There is no necessity for discussing the cross-examination of this witness because nothing worthy has been elicited so as to disbelieve the evidence of this witness so far as the presence of accused Nos.1 and 2 and their overt act are concerned as the same has been corroborated by the evidence of other witnesses. There is no necessity for discussing the cross-examination of this witness because nothing worthy has been elicited so as to disbelieve the evidence of this witness so far as the presence of accused Nos.1 and 2 and their overt act are concerned as the same has been corroborated by the evidence of other witnesses. PW-7 is the wife of the deceased Ramappa. She has also deposed about the presence of accused Nos.1 and 2 and their overt acts as stated by PW-6. She has also does not stated anything about the presence of accused Nos.3 to 6 at the spot. PW-8 Prema is the wife of PW-6 Rajappa. She has also in the similar fashion stated about the presence of accused Nos.1 and 2 and their overt acts. PW-9 Raghu further damaged the case of the prosecution stating only about the presence of accused No.1. He not even stated about the presence of accused No.1 and his overt acts but he is consistent with regard to accused No.1 stating that accused No.1 has assaulted on the head of the deceased. PW-10 Yogesha turned hostile to the case of the prosecution. 12. On reappraisal of the above evidence of the prosecution, as rightly contended by the learned counsel for the appellants that there is absolutely no evidence so far as accused Nos.3 to 6 are concerned. Now, the Court has to consider whether the Court can invoke Section 149 or 34 of I.P.C. It is the case of the prosecution that, because PW-1 and others have given intimation with reference to the storing of teak wood logs in the house of one Huchappa and the same were seized by the Forest officials except the evidence of PW- 1, there is absolutely no material so far as this aspect is concerned. Ofcourse, it is there in the evidence of the prosecution witnesses that accused Nos.1 and 2 came to the spot holding iron rod and a club with them. It cannot be unequivocally inferred by the Court that they came to the spot for the purpose of committing the murder of the deceased. The deceased Ramappa was not at all there at the initial stage when the quarrel that took place between accused Nos.1 and 2 and PW-1, but thereafter, the deceased came out of the house. It cannot be unequivocally inferred by the Court that they came to the spot for the purpose of committing the murder of the deceased. The deceased Ramappa was not at all there at the initial stage when the quarrel that took place between accused Nos.1 and 2 and PW-1, but thereafter, the deceased came out of the house. Therefore, it cannot be inferred by the Court that the accused persons came to that particular spot for the purpose of killing anybody. There is no material or evidence to show that, there was any pre-mediation or pre-meeting of minds of accused Nos.1 and 2, nevertheless the Court can definitely draw an inference that, they came there holding deadly weapons to commit some unlawful act. In that background, when we look into the overt acts of the accused, it is consistent that accused No.1 assaulted on the head of the deceased and the deceased has sustained injuries to his head. In this background, the evidence of PW-11 Dr.Rangaiah play a dominant role. 13. Pw-11 Dr.Rangaiah has stated that he has examined the deceased Ramappa and he found only one injury on the head. Through him, wound certificate has been marked as Ex.D4. At the earlier stage, the police have not even registered the case for the offence under Section 307 of Cr.P.C. After the injured sustained any serious injury, the police would have registered a case atleast under Section 307 Part II of I.P.C. Though the injured sustained injuries on 08.03.2009 but he survived upto 19.03.2009. Therefore, the said injuries, in our opinion may not be so fatal, if it was treated in a proper manner. The age of the inured is also 60 years at that point of time. PW-12, the doctor who conducted post-mortem examination has also stated the existence of only one injury and that too it was a sutured one. The other injuries were also not proximal to the above said injury No.1. He has given the post-mortem report stating that the death was due to head injury sustained by the deceased. 14. In the course of cross-examination, he has stated that if a person is assaulted with an iron rod with sufficient force that would have caused the breakage of bones inside the head or it would have caused fractures to the bones inside the head or would have also caused multiple fractures. 14. In the course of cross-examination, he has stated that if a person is assaulted with an iron rod with sufficient force that would have caused the breakage of bones inside the head or it would have caused fractures to the bones inside the head or would have also caused multiple fractures. Therefore, the evidence of the doctor also creates a serious doubt whether the blow given by accused No.1 was so forceful so as to cause any severe injury to the head. If the force was not so high, it is very difficult for the Court to draw an inference that the accused had really intended to cause the death of the deceased. Though the deadly weapon iron rod was used and vital part of the body was selected by accused No.1 but all these things happened when the quarrel between accused No.1 and PW-1 took place and the deceased came out from the house to rescue PW-1. By looking to the circumstantial evidence, it creates a serious doubt whether accused No.1 has really intended to cause the death of the deceased. 15. In the above said context, learned counsel for the appellants has relied upon a decision of the Apex Court reported in (Harish Kumar Vs. State(Delhi Administration), (1994) Supp1 SCC 462 wherein the Apex Court has held in the following manner: "A. Penal Code, 1860 Ss. 304 Part II or 302 and 300 Thirdly Appellant coming back one hour after the initial exchange of words with the deceased holding a gupti (sharp edged weapon) and inflicting a fatal blow near the neck apart from other minor injuries on the deceased when he was held back by the co-accused deceased died two days thereafter doctor conducting autopsy opining that the neck injury was sufficient in the ordinary course of nature to cause death Having regard to the nature of injuries, time gap between the time of infliction of the injury till time of death and lack of sufficient material as to nature of treatment given to deceased during that period, held, it cannot be conclusively said that the injury was sufficient in the ordinary course of nature to cause death hence the offence would fall under Section 304 Part II and not under Section 302 - Sentence of seven years' RI imposed". 16. 16. The above said factual matrix of the case decided by the Apex Court is almost similar to the facts and circumstances of this case. In the above said case, after initially exchange of words, the accused has caused injury on the deceased only on the neck apart from causing minor injuries. But the deceased survived for two days after the said injury and there was lot of time in between the injury and the death. Therefore, the Court held that the offence would not have filed under Section 302 but would have filed under Section 304 Part II. In this case also, accused No.1 has not dealt any multiple blows on the deceased but he has dealt with only one blow, which is not a heavy blow on the head of the deceased as per the doctor's evidence which did not cause any fracture of bones in the head. Therefore, we are of the opinion that the offences alleged to have been committed by the accused would not fall under Section 302 of I.P.C. but it would fall under Section 304 Part II of I.P.C. 17. So far as accused No.2 is concerned, we do not find any strong reasons to come to the conclusion that he also intended to cause the death of the deceased at any point of time. He never assaulted or even touched deceased Ramappa but the whole of the allegation is that he assaulted PW-6 and caused simple injuries on his head. The evidence of the doctor PW-11 also shows that PW-6 has sustained only simple injuries to his head. Therefore, the offence committed by accused No.2 falls under Section 324 of I.P.C. In the above said circumstances, neither the Court can draw any inference under Section 34 of IPC nor under Section 149 of IPC. Considering the individual overt acts of the accused, we are of the opinion that the accused No.1 is liable to be convicted for the offence under Section 304 Part II of I.P.C., and accused No.2 is liable to be convicted for the offence under Section 324 of I.P.C. and both the accused are liable to be convicted under Section 506 of I.P.C. as almost all the witnesses have stated that the accused persons have threatened with dire consequences of killing them. In the above said circumstances, accused No.1 appears to be in jail for more than four years. In the above said circumstances, accused No.1 appears to be in jail for more than four years. Accused No.2 has already undergone more than four years in imprisonment. If accused No.1 who went to the spot with iron rod and selected the vital part of the body of the deceased, we are of the opinion that the imposition of simple imprisonment of seven years would meet the end of justice with some fine and also imposing three years of imprisonment for the offence under Section 324 of I.P.C. and some fine so far as accused No.2 is concerned and also imposition of two years imprisonment and some fine so far as offence under Section 506 of I.P.C. that would be proportionate and commensurate with the overt acts of accused Nos.1 and 2. 18. With the above said observations, we proceed to pass the following: ORDER i) The judgment of conviction and sentence dated 28.08.2014 passed by the Presiding Officer, Fast Track Court, Shivamogga in S.C.No.108 of 2012 against accused Nos.1 to 6 for the offence under Section 302 of I.P.C. is hereby set aside. ii) The judgment of the trial court convicting the appellants No.3 to 6 for the offences under Sections 143, 147, 504, 324 and 506 of I.P.C. are also hereby set aside. iii) Accused Nos.3 to 6 (A3-Shivu, A4-Veereshi, A5- Thippeshi and A6-Madhu) are totally acquitted for the charges leveled against them. The bail bonds and surety bonds executed by accused Nos.3 to 6 are hereby cancelled. iv) The conviction and sentence passed by the trial court in so far as accused Nos.1 and 2 (A1-Somu and A2-Basappa) are concerned for the offence under Sections 143, 147, 504 and 302 of I.P.C. is concerned is hereby set aside. v) However, accused No.1 is convicted for the offence under Section 304 Part II of I.P.C. and is sentenced to undergo simple imprisonment for a period of seven years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for two months for the above said offence. vi) Accused No.2 is convicted for the offence under Section 324 of I.P.C. and is sentenced to undergo simple imprisonment for three years and to pay a fine of Rs.5,000/- (Rupees Five Thousand only), in default, to undergo simple imprisonment for two months. vi) Accused No.2 is convicted for the offence under Section 324 of I.P.C. and is sentenced to undergo simple imprisonment for three years and to pay a fine of Rs.5,000/- (Rupees Five Thousand only), in default, to undergo simple imprisonment for two months. vii) Accused Nos.1 and 2 are further sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/- (Rupees One Thousand only) each, in default, to undergo simple imprisonment for fifteen days. The above substantive sentences shall run concurrently. If the appellants have already undergone the period of sentence as noted above, they shall be released forthwith if they are not required in any other case. Accused Nos.1 and 2 are also entitled for set off for the period of punishment as already undergone by them, as per Section 438 of Cr.P.C. I.A.No.3 of 2018 does not survive for consideration.