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2020 DIGILAW 1489 (KAR)

Manik Irappa Alavani v. State Of Karnataka

2020-07-24

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - This appeal has been preferred by the appel lants-accused Nos.1 and 2 chal lenging the judgment of conviction and order of sentence dated 20.07.2017 passed by the learned IX Addl. Sessions Judge at Belagavi in S.C. No. 402/2009 wherein accused Nos. 1 and 2 have been convicted and accused No. 3 has been acquitted of the charges leveled against him. 2. We have heard the learned counsel Sri K.L. Pati l on behalf of Sri K.S.Pati l and Sri Sadanand M.K. for the appellants-accused so also we have heard Sri V.M. Banakar, learned Addl. SPP for the respondent-State. 3. The brief facts of the case of the prosecution are that, one Basavanni was the brother of accused No.1. Agricultural land bearing R.S. No. 162/1A situated at Hire- Munovall i vil lage is jointly standing in the names of Basavanni, accused No.1 and their brothers. A bore well was also existing in the said land. It is al leged that there was a dispute between the said Basavanni and the accused No.1 for taking the water from the bore well. In that l ight, on 14.08.2009 at about 5 p.m. when Basavanni and his son, the complainant had been to the land which had been fallen to the share of accused No.1 for watering the land from the bore well, al l the three accused persons picked up quarrel. Accused No.2 assaulted the complainant by sickle and attempted to commit his murder whereas accused Nos.1 and 3 assaulted Basavanni by a sickle and stick respectively and caused fatal injuries and committed his murder. On the basis of the complaint a case has been registered by the Pol ice in Crime No. 141/2009 and proceeded with the investigation. Upon conclusion of the investigation charge sheet came to be filed. The case was committed to the Sessions Court. Learned Sessions Judge after hearing the learned counsels for the parties framed the charge and read over and explained to the accused wherein the accused pleaded not gui lty and claimed to be tried. As such, the trial was fixed. 4. The prosecution in order to prove its case got examined 17 witnesses and got marked 35 documents so also 16 material objects. Thereafter the accused persons have been questioned u/s 313 of Cr.P.c. by putting incriminating materials against them. As such, the trial was fixed. 4. The prosecution in order to prove its case got examined 17 witnesses and got marked 35 documents so also 16 material objects. Thereafter the accused persons have been questioned u/s 313 of Cr.P.c. by putting incriminating materials against them. The accused denied the al legations and not led any evidence however got marked documents as per Exs.D1 to D3. After hearing the learned counsels appearing for the parties, the impugned judgment of conviction and order of sentence came to be passed. 5. The main grounds urged by the learned counsel for the appel lants-accused is that the motive for the al leged incident is col lecting water from the bore well to water the land. He further submitted that the said bore wel l was commonly used by both complainant as well as the accused persons and no right has been created to the complainant to use the bore well exclusively. The bore wel l is situated in the land of accused No.1. The complainant and other persons have come to the land of the accused to fetch water and it is they who have started galata. Further, the other accused persons have also f i led a complaint which is registered in Crime No. 142/2009 and as a counter blast, the present complaint has been fi led. Further, the chi lly powder al leged to have been used for commission of the offence has not been seized but the Investigating Off icer in another case, i.e., counter case in Crime No. 142/2009, has seized the mud with chi l ly powder, which itself creates doubt in the case of the prosecution. The only question which remains for consideration of the court is as to who are the aggressors. This aspect has not been properly considered and appreciated by the trial court. The trial court without looking into the material placed on record has come to a wrong conclusion and has wrongly convicted the accused. 6. Per contra, Sri V.M. Banakar, learned Addl. SPP vehemently argued and submitted that PWs6 and 8 have deposed with regard to the motive of sharing of the water from the bore well and they are also the eyewitnesses to the alleged incident. Their evidence corroborates with the evidence of PW15-Dr.Basavaraj Talawar, who has conducted autopsy over the dead body and issued PM report as per Ex.P.17. SPP vehemently argued and submitted that PWs6 and 8 have deposed with regard to the motive of sharing of the water from the bore well and they are also the eyewitnesses to the alleged incident. Their evidence corroborates with the evidence of PW15-Dr.Basavaraj Talawar, who has conducted autopsy over the dead body and issued PM report as per Ex.P.17. Further, the trial Court after considering the evidence and material placed on record has rightly convicted the appellants-accused. No good grounds have been made out to interfere with the judgment of the trial court. The appeal is devoid of merits and prayed to dismiss the appeal by confirming the judgment of the trial Court. 7. We have careful ly and cautiously gone through the submissions made by the learned counsels for the parties and perused the records including the trial court records. 8. To prove the case of the prosecution, 17 witnesses were examined. To establish the case there was some dispute with regard to l ifting and using of the bore well water, the prosecution got examined PWs 5, 6 and 8. PW5 in his evidence has deposed that in Sy. No. 162 he has got share to an extent of one acre sixteen guntas. A bore well is situated in the said land and his uncle Adiveppa and accused No. 1 were also having right to use the water for every 4th day and accused No.1 and his sons used to object for taking the water and as such there was some il l wi l l between them. During the course of cross-examination he has deposed that, for having al lotted one acre sixteen guntas of land to each one of them there is no written document but it has been done in the presence of elders. He has further admitted that after the partition bore wel l has been dug and a pipeline has been laid to take water by putting'T'. Further, when Mallappa was alive, himself or his sons have not objected for taking the water by PW8. Except that, the other suggestions have been denied. PW6 has also deposed with regard to taking of bore well water and during the course of cross-examination nothing has been el icited and simi lar admissions have been made which have been made by PW5. 9. Pw8 is the elderly person. Except that, the other suggestions have been denied. PW6 has also deposed with regard to taking of bore well water and during the course of cross-examination nothing has been el icited and simi lar admissions have been made which have been made by PW5. 9. Pw8 is the elderly person. Earl ier to the al leged incident there was some dispute and the matter went up to the Pol ice Station and compromised. On 14.08.2009 the alleged incident has taken place. During the course of cross-examination nothing has been elicited with regard to the alleged act of dispute existing between the parties for taking the bore well water. In this behalf the prosecution has clearly establ ished that there was a motive for the al leged incident. 10. The prosecution in order to prove the case has also relied upon the evidence of PWs 5, 6 and 8. They are the eyewitnesses to the al leged incident. PW5 in his evidence has deposed that on 14.08.2009 at about 4 pm himself and his father Basavanni (deceased) went to the field to water the land and started the bore. At that time, accused No.2 came and questioned why they are taking water, for which, he said that since one month they have not taken water and the crop is getting dried. By hearing his words, the accused No.2 went near the Hi l lock by saying that he wi ll do something. Later accused No.2 brought his brother-accused No.1 and at the same time accused No.3 also came from the vi l lage. Al l the accused persons told that they wil l not give water since the complainant party behaving arrogantly and they wi ll not leave the complainant party. At that time, the accused Nos.1 and 2 were holding sickle and the accused No.3 was holding the stick. The accused No.2 assaulted the victim with sickle on his left palm, wrist and head, accused No.3 assaulted on his back, hands and legs so also the accused No.1 assaulted with sickle on his stomach. As a result of the assault, the stomach of the victim was cut and part of the lever came out and the victim also suffered fatal injuries to the other parts of the body. Accused No.3 also assaulted the victim with stick, due to which, the left hand was broken. As a result of the assault, the stomach of the victim was cut and part of the lever came out and the victim also suffered fatal injuries to the other parts of the body. Accused No.3 also assaulted the victim with stick, due to which, the left hand was broken. Immediately, the complainant made hue and cry, at that time his uncle who was working in a nearby land by hearing the voice, came and rescued the injured and immediately taken him in a bul lock cart to the road and later in 407 vehicle to the Government Hospital. His father, i.e., the victim, expired on the way to the hospital. 11. During the course of cross-examination this witness has admitted that, at the time of alleged incident paddy crop was grown in the land and the incident took place in the corner of the said land. This witness has denied the suggestion that himself and his father were also holding sickle and one Gangappa was holding stick and with an intention to ki l l the accused party they poured chi lly powder and assaulted. The other suggestions are denied. 12. Pw6 also reiterated the evidence of PW5. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness. 13. Pw8 has also reiterated the evidence of PW5. During the course of cross-examination nothing has been elicited to discard the evidence of this witness. 14. We have also perused the evidence of PW15-Doctor who has conducted autopsy over the body of the deceased, who has deposed that he has conducted autopsy and found cut injury measuring about 35-40 inch from the gastro duodenal junction the smal l intestine is cut into two parts, cut surface is clean clearly defined and everted, Omentum and mesentry are also cut abdominal part IVC ( inferior vena cava) is punctured. He has also further deposed that 11th and 12th ribs are cut on left midaxi l lary, an incised wound of obl ique portion found across the umbi l icus extending 5" long on left side of umbil icus and 6th long on right side of umbil icus, multiple fracture of both bones of left forearm at middle 1/3rd and lower 1/3rd portion and cut lacerated wound on the other parts of the body. He has opined that the death is due to cardio-respiratory failure due to hemorrhage shock due to trauma to major vessel, i.e., abdominal part of IVC. He has issued postmortem report as per Ex.P.17. He has also given opinion as per Ex.P.19 stating that after perusal of the postmortem report he is of the opinion that the injuries mentioned in the report might have been caused by the articles examined by him. This opinion of the doctor corroborates with the evidence of PWs 5, 6 & 8. 15. Though during the course of arguments learned counsel for the appellants-accused contended that where the dispute took place is a moot question and that itself is doubtful and the chi l ly power has not been seized by the Investigating Of ficer but the same has been seized in another case. On perusal of the cross-examination of these witnesses, the incident in question has not been disputed. On the contrary it has been suggested that the victims were also holding the sickle and they tried to assault them and cause injuries. Taking into consideration the said aspect we are of the considered opinion that the incident in question is not disputed. It also indicates that it is because of the assault committed by accused No.1 the victim suffered injuries and died. At this juncture, it is the contention of the learned counsel for the appellants-accused that the al leged incident has taken place in the land belonging to the appellants-accused as admitted by PW5 and it is the complainant-party who are the aggressors. Further, the witness has deposed that accused No.1 was also having right to use the water from the disputed bore well . On perusal of the evidence it indicates that there is no preparation or intention on the part of the accused to cause death of Basavanni, the deceased. The al leged incident occurred because of the dispute of sharing of the water in a heat of exchange of words and quarrel. Under such circumstances, the accused may not be having any intention to cause death. 16. On perusal of the evidence on record, though the prosecution has proved that there was an incident but fai led to prove the fact of common intention. Under such circumstances, the accused may not be having any intention to cause death. 16. On perusal of the evidence on record, though the prosecution has proved that there was an incident but fai led to prove the fact of common intention. In order to bring home gui lt of the accused u/S 34 of IPC, the prosecution has to prove there was a prior meeting of the minds. On perusal of the evidence produced by the prosecution and even the evidence of PW5 would indicate the accused No.2 came and questioned him as to why they are taking water and thereafter he went and brought accused No.1 and in the meanwhile accused No.3 also came from the vi llage side. This clearly goes to show that there was no prior meeting of the minds of the accused. In that l ight, the trial Court has come to the wrong conclusion that the accused persons had an common intention to commit the offences. 17. At this juncture, the learned counsel for the appel lants-accused submitted that the evidence produced by the prosecution shows that the accused were not having any intention to cause death and the injuries which have been caused was inf l icted suddenly in a quarrel which has taken place in between the accused and the deceased. In that l ight, he submits that the trial court instead of convicting the appellantsaccused for the offence punishable u/s 304 part II wrongly convicted them for the offence u/s 302 of IPC. 18. In order to consider the case under Sections 304-I and II of IPC, the case has to be made out under exceptions No.1 or 4 of Section 300 of IPC. For the purpose of brevity we quote Section 300 of IPC and exceptions (1) and (4) which reads as under: "300. Murder -Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly, If its done with the intention of causing such bodily injury as the offender likely to cause the death of the person to whom the harm cause, or Thirdly. If its done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly. If its done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.- When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or cause the death of any other person by mistake or accident. The above exception is subject to the following provisos:- Firstly.-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 act. Exception 2.- xxx xxx xxx Exception 3.- xxx xxx xxx Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault." 19. On going through exception 1 of Section 300 of IPC, culpable homicide is not a murder if the offender while doing the act deprived of the power of self control, by grave and sudden provocation. In order to bring the case under the said exception accused has to show that he was deprived of the power of self control, by grave and sudden provocation which is caused by the person whose death has been caused. 20. In order to bring the case under the said exception accused has to show that he was deprived of the power of self control, by grave and sudden provocation which is caused by the person whose death has been caused. 20. Second aspect is in order to attract exception No.4, four requisites must be satisfied by the accused viz., (i) it was a sudden fight (ii) there was no premeditation (iii) the act was committed in heat of passion and (iv) assailant has not taken undue advantage or acted in cruel manner. 21. By considering the evidence and material placed on record it appears that whi le doing the act, accused No.1 might have been deprived of power of self control and he might have acted by grave and sudden provocation that too when the deceased and his son were taking water. In that l ight, we are of the considered opinion that the said act of accused No.1 fal ls within exception I of Section 300 of IPC. As such, accused No.1 is l iable to be convicted for the of fence punishable u/s 304 part 1 of IPC instead of convicting him for the offence punishable u/s 302 of IPC. 22. As could be seen from the evidence of PWs5 and 15, the injured has suffered cut lacerated wound over medial side of left lower part of forearm nearer to wrist, cut lacerated wound over hypothenar part of left hand, cut wound over posterial aspect of left forearm nearer to elbow, cut lacerated wound mid pariatel region and abrasion over left upper part of shoulder edges of cut wound or clear cut and well defined and everted. The Doctor-PW15 has opined that the above injuries are simple in nature and he has issued the wound certif icate as per Ex.P.18. Under the facts and circumstances we are of the considered opinion that the trial Court ought not to have convicted accused No.2 for the offence punishable u/s 307 of IPC. In that l ight, the accused No.2 is l iable to be convicted for the offence punishable u/s 324 of IPC instead of 307 of IPC. For having come to the conclusion that the accused No.1 has been convicted for the offence punishable u/s 304 part 1 of IPC we pass the fol lowing order. ORDER The appeal is allowed in part. For having come to the conclusion that the accused No.1 has been convicted for the offence punishable u/s 304 part 1 of IPC we pass the fol lowing order. ORDER The appeal is allowed in part. The judgment of conviction and order of sentence passed by the learned IX Addl. Sessions Judge, Belagavi dated 20.07.2017 in S.C. No. 402/2009 is modif ied. The appellant-accused No.1 is convicted for the offence punishable u/s 304 part 1 of IPC and he is sentenced undergo rigorous imprisonment for a period of 10 years. He shal l pay the fine with default clause as ordered by the trial Court. The appellant-accused No.2 is convicted for the offence punishable u/s 324 of IPC. He is convicted for the period which he has already undergone. He shal l also pay a f ine of Rs.10,000/-. In default, he shal l undergo simple imprisonment for six months. Bai l bonds and surety bonds of accused No.2 stood cancelled. If fine amount has not been deposited by the accused No.2, the same shal l be deposited. Upon deposit, out of the fine amount, 50% has to be paid as compensation to the complainant- PW5 on proper identif ication and acknowledgement. In view of disposal of the appeal on merits, I.A. No. 2/2018 does not survive for consideration and is accordingly disposed off. Registry is directed to return the original records to the trial Court, forthwith.