(Prayer: This Criminal Appeal Is Filed Under Section 378(1) and (3) Cr.P.C. By The State P.P.For The State Praying That This Hon'ble Court May Be Pleased To Grant Leave To Appeal Against The Judgment And Order Of Acquittal Passed By Learned Prl.Judge, Bangalore Rural District, Bangalore In S.C.No.255/2004 Dated:20.01.2009, Thereby Acquitting The Respondents-Accused Of The Offences P/U/'S 302 R/W Sec.34 Of Ipc.)
1. This appeal is preferred by the State against the judgment and order dated 20.01.2009 passed by the Principal Sessions Court, Bangalore Rural, Bangalore.
By the said judgement the trial Court acquitted accused Nos. 1, 2 and 3 for the offences under Section 302 r/w Section 34 of I.P.C. However, Accused No.1 is convicted for the offences under Section 304-11 IPC and sentenced to undergo imprisonment for five years and to pay a fine of Rs.2,00,000/-. Since the accused No.1 has already served sentence and paid fine he is released from custody. Convicted accused No.1 has not filed the appeal questioning his conviction and sentence.
2. The case of the prosecution in brief is that, there was a rivalry/dispute between the family of the accused and family of the deceased with regard to boundaries of certain agricultural land; it is alleged that the accused have encroached upon the land of the deceased to an extent of 2 feet and in that regard, dispute has arisen between the families. Both the deceased namely, Gopala Reddy and Somashekara Reddy are brothers interse. So also PWs. 1, 2 and 3 are brothers of the deceased. Accused No.1 is son of the accused 'No.2. Accused No.3 is brother of accused No.2 and uncle of accused No. 1.
That on the date of the incident i.e.. on 25.05.2004 at about 7.30 a.m., deceased Gopala Reddy, deceased Somashekara Redely, Muni Reddy (PW.3), Balram (not examined before the court), Ravindraiah (PW.2) were involved in their routine work near brick factory situated at Singena Agrahara; the complainant who was at a distance heard hue and cry raised by both the deceased. Immediately thereafter the complainant (PW. 1) went to the spot and found that accused Nos.2 and 3 were quarrelling with both the deceased in respect of the boundary dispute of agricultural land; accused No.1 (R H Keshava) assaulted Gopala Reddy with crow bar; accused No.2 Hanumanthappa stabbed Somashekara Reddy with sharp knife; Govindappa (accused No.3) had held the hands of Gopala Reddy from behind tightly; at that point of time the complainant was standing at a distance and was seeing the incident since he had feared about the incident in question; after seeing the incident the complainant cried loudly; immediately thereafter PWs.2 and 3 and Balaram came to the spot and on seeing these people all the accused ran away from the scene. PWs.2 and 3 and PW.1 immediately went to the spot wherein both the injured were lying and found that both the injured have sustained number of injuries and immediately thereafter they bought a jeep and took both the injured to St. John's Hospital. While going to St. John's Hospital, on the way they also went to Narayana Hrudayalaya Hospital, wherein the authorities of Narayana Hrudayalaya Hospital advised the complainant and others to take the injured to St. John's Hospital. The doctors at St. John's Hospital examined both the injured and declared that they are dead. PW. 1 (the complainant) came back to his village, wrote the complaint and thereafter went to Hebbagodi Police Station and lodged the complaint at 10.00 a.m, on 25.05.2004 before the P.S. I. (PW.26) who registered the case in Crime No.237/2004. The first information has reached the jurisdictional Magistrate at 2.00 p.m. on the very day The police took up the investigation. After completing all the investigation formalities, the chargesheet came to be filed against the three accused for the offences under Section 302 r/w Section 34 of IPC.
3. The accused were charged for the offences under Section 302 r/w Section 34 of IPC in Sessions Case No.- 255/2004. During the course of trial the prosecution in all examined 28 witnesses and got marked 39 exhibits and 26 material objects. On behalf of the defence no witness is examined. However, four exhibits were got marked. During the course of recording the statement of the accused, the accused Nos. 1 and 3 have filed their written statements also. The trial court on evaluation of the material on record and after hearing acquitted all the accused for the offences under Section 302 r/w Section 34 of IPC; however, convicted accused No. 1 for the offence under Section 304-11 of IPC and sentenced him to undergo imprisonment for five years and to pay a fine of Rs.2,00,000/ -.
4. PW. 1 C Muniraju is the younger brother of the deceased. He lodged the complaint at 10.00 a.m. on 25.05.2004 before PW.26 who registered the complaint. He is also the witness for the scene of offence mahazar EX.P2. He is stated to be the eye witness to the incident in question. PW.2 Ravindraiah is another brother of the deceased. He is also stated to be the eye witness to the incident in question. PW.3 Munireddy is one more brother of both the deceased and he was also stated to be present alongwith PWs. 1 and 2 near the scene of offence at the time of incident and thus he is stated to be the eye witness.
PW.4 Manjunatka Reddy is the friend of PWs. 1 to 3 and deceased. He incidentally came there for taking help of the deceased and PW.1 and PW.2 for rectifying the mistake in the transformer fixed in his factory which is situated at about half a kilo meter from the factory of the deceased. He is also stated to be the eye witness to the incident. Immediately after the incident both the injured were taken to hospital in the jeep driven by PW.4 to Narayana Hrudayalaya at the first instance. Thereafter PW.4 requested Somashekara Reddy (PW.15), the ambulance driver of Narayana Hrudayalaya to drive the jeep to St. John's Hospital inasmuch as PW.4 did not have driving licence and consequently he was scared to drive the vehicle in Bangalore city.
PW.5 Dr. Narayana Reddy is a relative of the deceased and their family doctor. He received telephone call at 8.30 a.m. from PW. 1 and came to know about the incident. He came to the mavn road from his village wherein the jeep which was transporting both the deceased with PW.l and others came at 8.15 a.m. PW.5 followed the said jeep in his scooter to St. John's Hospital. According to PW.5, deceased Gopala Reddy was not in a position to speak, whereas Somashekara Reddy was able to speak in his feeble voice. From him, he came to know that all the three accused assaulted him and Gopala Reddy. Thereafter he made arrangements to get both the injured examined in St. John's Hospital and for getting the post mortem done subsequently at Victoria Hospital at Bangalore. PW.5 is mainly examined for the purpose of proving the oral dying declaration said to have been made by Somashekara Reddy before PW.5.
PW.6 Dr. Vijaya Bhaskar has treated accused No.1 on 25.05.2004; accused No.1 had also sustained two simple injuries on his palm and wrist. PW.7 R V Gopala Reddy is a mahazar witness for inquest panchanama (EX.P12) over the dead body of Gopala Reddy. PW.8 Keshava Reddy is another inquest pancha for the inquest report (EX.PI3) over the dead body of Somashekara Reddv.
PW.9 K R Nagaraja Reddy is the witness for survey by the Surveyor on 12.05.2004; he has deposed that accused No. 2 had encroached upon two feet of land in Sy.No. 154/1 from North to south. EX.P14 is the survey report.â
PW. 10 Rajashekar is a witness to seizure of knife -- MO.8 under mahazar EX.PI5. The said knife was seized at the instance of accused No.3 on 28.05.2004. He is also the witness to seizure of MO.6 knife, MO Nos.23 and 24 under mahazar EX.P.16 at the instance of accused No.l. PW.ll Ramaswamy Reddy is the witness for seizure mahazar of MO.7 knife and MO Nos.25 and 26 (shirt and lungi) under mahazar EX.P17 at the instance of accused No.2.
PW 12 Nicolas is the photographer who has taken photographs of the dead bodies and other photographs as per EXs.PS to 6. The negatives are marked at EX.P3(a) to P6(a).
PW. 13 Dr. Prabhudev B Gowda is the medical officer at Chandapura. On 28.5.2004 at 5.00 p.m. he examined accused No.l who was taken by CW.36-Police Constable of Hebbagodi Police Station. He has stated that accused No. 1 has suffered two incised wounds.
PW.14 is Dr. C N Sumangala who conducted post mortem examination of the dead body of Somashekara Reddy on 25.5.2004 at Mortuary of Victoria Hospital as per EX. P. 20. She also conducted post mortem examination of the dead body of Gopala Reddy on 25.5.2004 between 3.30 p.m. to 4.30 p.m. at Mortuary of Victoria Hospital, Bangalore, as per EX.P.21. She has examined the weapons MOs. 6, 7 and 8 on 16.6.2004 and has given report as per EX.P.22.
PW.15 Somashekara Reddy is the driver of the ambulance who drove the jeep from Narayana Hrudayalaya Hospital to St. John's Hospital, Bangalore, at 8.15 a.m. on 25.5.2004 at the request of PW.4 and others. He also deposed that PW.5 Dr. Narayana Reddy got into jeep at Madivala. However, he did not observe with whom PW.5 spoke.
PW. 16 Satish is the mahazar witness for scene of offence panchanama EXJJ.2 dated 25.5.2004. M.O. Nos.3 to 5 were seized under said panchanama. He is also witness to EX.P. 15 under which MO Nos.8, 21 and 22 were seized on 28.5.2004. He is also the witness for EX.P. 16 seizure mahazar under which MO Nos.6, 23 and 24 were seised.
PW. 17 H M Rudrappa is the police constable who carried the FIR to court on 25.5.2004. PW.18 Nagaraju is the police constable who participated in the investigation process by collecting EXs.P.20 and 21 - post mortem reports from Victoria Hospital. He carried the sealed packets containing clothes and other articles of the dead body which were subjected to PF under EX.P.23.â
PW. 19 Rajashekar is a mahazar witness for seizure panchanama EX.P17 under which MO Nos.7, 25 and 26 were recovered and seized at the instance of accused No.2 on 1.6.2004. PW.20 B M Nagaraju was the police constable who guarded the dead body of deceased Gopala Reddy at Victoria Hospital. PW.21 Yellappa has turned hostile. He has not supported the case of the prosecution inasmuch as he has deposed that he has stayed back in the house at the time of incident. PW.22 Mr. Revanna is the police constable who carried 21 sealed articles to FSL, Bangalore on 12 7.2004 on pass - port EX.P.25. PW.23 Srinivas is the head constable who guarded the dead body of Somashekara Reddy at Mortuary of Victoria Hospital. PW.24 Hanumanthappa is the Investigating Officer who conducted the investigation and filed the chargesheet. It is relevant to note that initially the investigation was done by CW.44 Nagaraj S, police officer.â
PW.25 R Arun is the Taluk Surveyor who -had surveyed the land bearing Sy.No. 154/1 on 12.05.2004 and EX.P. 14 is his report. EX.P.32 is the sketch prepared by him.
PW.26 Nagaraj S is the Sub inspector of Police of Hebbagodi police station. He received the complaint lodged by PW 1 at 10.00 a.m. on 25.5.2004 and registered the same in crime No.237/2004 for the offences under Section 302 of IPC. The complaint is at EX.P. 1. The complaint was sent to court through police constable PW.17. He apprehended accused Nos. 1 and 3 at Varthur bus stand and produced them before the Investigating Officer with his report at EX.P.27 on 1.6.2004. He apprehended accused No.2 at J P Nagar and produced him before the Investigating Officer with his report EX. P. 30.
PW.27 Dr. S Rajanna has examined the accused No.2 on 31.5.2004 when he was the casualty Medical Officer at B and LC Hospital, Bangalore. He made entries in MLC Register as per EX.P.42. PW.28 is Dr. Nagarathna. She has examined accused No.2 on 31.5.2004 and made entries in MLC Register at EX.P.44,
It is relevant to note that PWs.27 and 28 are not the charge sheet witnesses. However, they were examined subsequently by the prosecution. Both the witnesses have not identified accused No.2 before the court.
5. Learned SPP Sri. Venkatesh supporting the case of the prosecution vehemently contends that the version of the eye witnesses PWs. 1 to 4 is consistent and cogent; their presence on the spot is natural; PWs. 1 to 3 being the brothers of the deceased, naturally were to be present near their own brick factory as usual every day and even on the date of the incident; PW.4 being the friend of PWs. 1 to 3 and the deceased had come to the spot for seeking certain help for getting rectified the defect found in the electric transformer fixed to his factory which is situated half a kilometer away from the spot in question; all the eye witnesses have consistently deposed that all the three accused have assaulted both the deceased with knives; the eye witnesses have specifically identified the knives held by each of the accused; the nature of injuries is deep stab injuries and incised injuries and they co-relate with the weapons used; such injuries could not have been caused by the sickle as contended by the defence; both the deceased had suffered number of incised and stab injuries on their bodies and hence it was impossible for one person to cause such number of injuries on two able bodied persons; the motive aspect is also amply proved by the prosecution by examining PWs. 1 to 3 as well as the surveyor; the evidence of all the prosecution witnesses is natural; since the presence of the eye witnesses cannot be doubted and as the complaint is lodged immediately after the incident, it cannot be said that the prosecution has falsely implicated the accused. According to him, the appreciation of the evidence by the trial court as well as the conclusion reached is improper and incorrect and therefore the judgment needs to be interfered with.
Per contra, Sri S K Venkata Reddy, learned advocate for the defence argues in support of the judgment of the court below. He submits that there are no eye witnesses to the incident in question in as much as all the so called eye witnesses are planted witnesses; all the four alleged eye witnesses are created by the prosecution and their presence on the spot is doubtful; PWs. 1 to 3 have come to the spot only after the incident and not during the incident; there was no reason for PWs. 1 to 4 to come to the spot in the earlier hours of the day, particularly, when PW.2 is a physical education teacher working at Anekal which is at a distance of about 22 kms. from the spot; PW.4 is unrelated to the family and he was not expected near the scene of offence at early hours of the day; the complaint EX.PI itself clearly reveals that PWs. 1 to 4 are not the eye witnesses to the incident and they have come to spot after the incident is completed; the evidence of PWs. 1 to 4, the eye witnesses is inconsistent and suffers from number of improvements; omissions and contradictions; the conduct of PWs. 1 to 4, more particularly, PWs. 1 to 3 is highly unnatural inasmuch as they would not have witnessed the incident as mute spectators, particularly when their own brothers were being assaulted mercilessly by the accused; the additional statement of PW.1 is not recorded by the police; the statements of PWs.2 to 4 were also not recorded by the police, but somehow they are created subsequently only to suit the case of the prosecution. He further submits that looking to the theory of the defence and the material on record it is clear that accused No.1 alone was responsible for the incident; the trial court is justified in acquitting accused Nos.2 and 3. He further submits that tne trial court is justified in convicting accused No.1 for the offences under Section 304-11 of IPC inasmuch as he has committed offences under sudden provocation as both the deceased had teased accused No.1 by making vulgarly statement relating to his fiancee with whom the marriage of accused No.1 was fixed on 6.6.2004. He further submits that only three pairs of foot wears were found lying on the spot which belonged to the two deceased and accused No.1; if the accused 2 and 3 had really participated in the incident their foot wears also would have fallen on the spot. On these among other grounds he argues for confirming the judgment and order of the trial court.
6. We have carefully perused all the material on record meticulously more particularly, the versions of the eye witnesses accompanied by other materials. In the matter on band, the defence has come out with the specific statement/theory that it was accused No.1 alone who committed the crime in exclusion of accused Nos,2 and 3. in other words it is the case of the defence that accused Nos.2 and 3 are innocent and they were not at all in the scene of offence. According to the defence, the incident has occurred on the spur of the moment i.e., when both the accused teased the fiancee of accused No.1 by telling that he should send his fiancee to sleep with the deceased Gopala Reddy at first night; being enraged, suddenly accused No.1 who was aged about 25 years snatched the sickle from the hands of the deceased and assaulted them mercilessly, at the fit of rage under grave and sudden provocation.
7. The complaint EX.P1 is lodged by none other than the brother of the deceased. According to the complainant (PW. 1) he saw the incident; he was standing about 25 to 30 feet away from the scene of offence and watching the incident coolly without interfering in any manner; at that point of time PWs. 2, 3 and 4 were also present along with him; those witnesses also did not try to rescue the deceased; after the incident, all of them ran to the spot and found that both the injured had sustained number of grievous injuries and immediately thereafter the injured was taken to hospital wherein they were declared as dead. Strangely, neither PW.1 nor any of the other eye witnesses did lodge the complaint upto 10.00 a.m. though two police stations are lying during transit between the place of incident and St. John's Hospital. Curiously the authorities of Narayana Hrudayalaya as well as St. John's Hospital also did not inform about the medico-legal case to the police; none of the brothers of deceased i.e., PWs. 1 to 3 also tried to call the police over phone though they allegedly called PW.5 over phone seeking his help; though PWs. 1 to 4 could have lodged complaint at Bangalore, they did not do so; PW. 1 came back to the village, wrote the complaint and then went to police station and lodged the complaint. The native place of the deceased and PWs. 1 to 3 is Ramasagara village. The police station is at Hebbagodi. The distance between Ramasagara and Hebbagodi is about 3 kilometers. There was no reason as to why PW. 1 came back to his village and wrote the complaint and thereafter went to police station for lodging the complaint. He would have directly gone to police station and lodged the complaint. Curiously PWs. 2 and 3 who are the brothers of deceased and PW.4 who is the close friend of deceased also did not tried to inform the police till PW. 1 informed the police by lodging the complaint at Hebbagodi. They simply kept quite till their statement was recorded by the police after the inquest panchanama. The aforementioned facts and circumstances clearly reveal that the complaint was not immediately filed though it is made to appear so. As aforementioned the complaint has reached the jurisdictional Magistrate at 2.00 p.m. on the said day. Thus PW. 1 had got ample time to think over, deliberate, consult and lodge the complaint.â
8. The complaint EX.PI merely states about the motive behind the incident and about the incident in part. The complaint states that accused No.1 Keshava stabbed deceased Gopala Reddy with crowbar; accused No.2 Hanmanthappa stabbed deceased Somashekara Reddy with a sharp weapon. At that point of time accused No.3 Govindappa had held the hands of deceased Gcpala Reddy from behind tightly. These are the only statements made in the complaint. No other overtacts are mentioned. In the complaint itself the complainant/younger brother of the deceased has not alleged any overtact against accused No.3 Govindappa except that he had allegedly held the hands of Gopala Reddy from behind. He has not alleged that accused No.3 has assaulted anybody. The complainant further says that he was seeing the incident from a distance since he had a fear in his mind. It is further mentioned in the complaint that only after the complainant making hue and cry, PWs.2, 3 and one more person viz., Mr. Balaram came to the spot. After seeing them the accused ran away from the spot. If the complaint is read plainly, the same makes it clear that none of PWs. 1 to 4 are the eye witnesses to the incident. All of them have come after the incident. Curiously it is relevant to note that complaint does not state the presence of PW. No.4 at the spot at the time of incident.
09. As aforementioned the complaint is lodged after about 3 hours of the incident in question as is alleged by the younger brother of the deceased. He had seen the incident; accompanied the deceased to the hospital and thereafter has come back to the village and has written the complaint. He would not have missed any material particulars in his complaint. It is relevant to note that further statement of complainant is not recorded subsequently also. Thus the statement of the complainant remains as per the version found in the complaint.
Firstly, the complaint excludes the presence of PW.4 and the involvement of accused No.3 in assaulting and stabbing. Secondly, the complainant has specifically stated in his complaint that PWs.2 and 3 have come to the spot after the incident, that too after hearing the cries of PW. 1.
Strangely, PW.1 has deposed that he was seeing the incident from a distance. We find that the conduct of PW.1 as well as PWs.2 to 4 (if really they are the eye witnesses) is highly unnatural. Inasmuch as, it is not expected of a genetive brothers watching the incident coolly by standing at a distance. They would have tried to interfere and save the lives of the deceased. Atleast they would have thrown the stones against the against keeping themselves at a distance. They would have at least raised hue and cry. The incident has occurred in the premises wherein the brick factory of the deceased is situated. Admittedly the workers working in the brick factory were available and were sleeping in the brick factory itself. PWs. 1 to 4 would have taken the help of the workers of the brick factory belonging to the deceased and PW.1 to 3 for stopping the incident. Having regard to the aforementioned material on record, we find that the presence of all these witnesses is doubtful.
10. It is relevant to note that PW.4 in his deposition has stated that he came to the spot for getting his work done from the deceased and he saw the incident. The injured were taken by him in the jeep to the hospital alongwith PWs. 1 to 3. He does not whisper even in his examination in chief that at the time of incident PWs. 1 to 3 were also present on the scene of offence. He completely excludes the presence of PWs. 1 to 3 from the scene of offence in his examination in chief itself.
11. It is the specific case of the defence that the incident has occurred much earlier and death has occurred much earlier. The doctor who conducted the post mortem examination (PW.14) has not specified the approximate time of death. She has deposed that she cannot tell the time of death because the dead bodies were in cold storage at Mortuary.
12. The prosecution has introduced PW.5 into the case. As aforementioned he is a relative of the deceased as well as the family doctor. He was informed over phone by PW.1 about the incident and as to who all assaulted the deceased. On the request of PW.1, PW.5 has joined PWs. 1 to 4 and accompanied them by following them on scooter to St. John's Hospital. According to PW.5, he spoke to Somashekasra Reddy who in his feeble voice told that he was assaulted by all the three accused. He has also specifically deposed that Gopala Reddy was not in a position to talk. However, both were declared 'brought dead' by the doctors of St. John's Hospital. PW.5 was examined to depose about the so called dying declaration made by Somashekara Reddy. We find that the evidence of PW.5 is highly doubtful. Since he had already heard about the incident from PW. 1 over phone he might not have talked with Somashekara Reddy to know about the incident once again, more particularly, when Somashekara Ready was having feeble voice and at that point of time Gopala Reddy was voiceless. More over, the evidence relating to oral dying declaration is very feeble evidence. If the other material on record is believable, then the oral dying declaration might have been useful for the prosecution. In the matter on hand, we find that the presence of PWs. 1 to 5 is highly doubtful, consequently, their evidence is unbelievable. Therefore, in our considered opinion the trial court was justified in acquitting accused Nos.2 and 3.
13. As aforementioned, the defence has taken a specific stand that it was accused No.1 who assaulted both the deceased on the spur of the moment, that too at the fit of rage i.e., under sudden grave and provocation, in the written statement, accused No.1 has narrated as to how the incident has occurred and how he was teased by the accused. He specifically admits in his statement that he has assaulted both the deceased repeatedly. The deceased were aged about 47 and 49 years, whereas the accused No. 1 was aged about 25 years and he was to be married within eight days from the date of the incident. The accused No. 1 seems to have over-powered of both the deceased and assaulted them with the sharp cutting weapon. The accused No. 1 has also sustained two incised injuries on the palm and wrist. Both of them are simple in nature. Thus the presence of accused No.1 cannot be doubted at all over the scene of offence. So also his involvement cannot be doubted. Now the question remains as to what is the offence that is committed by accused No. 1?
14. The post mortem reports as well as the evidence of the doctor PW. 14 who conducted the post mortem examination clearly reveals that the injuries sustained by both the deceased are deep stab injuries.
(A) Injuries sustained by Gopala Reddy are - External Injuries:
1. Horizontal stab wound measuring 4 cms x 1.5 cms x chest cavity deep, situated over front of lower part of chest almost in the midline, 14 cms below sternal notch, 8 cms inner to left nipple, left end is blunt, right end is sharp.
2. Oblique stab wound measuring 3 cms x 5 cms x 5.5 cms situated front of lower part of abdomen 2 cms below umbilicus in the midline, 17 cms above public symphysis, left upper inner end is blunt, right lower outer end is sharp.
3. Transverse stab wound measuring 3 cms x 1.5 cms x 6 cms along muscle plane, situated over front of upper third of right thigh, 11 cms below, right anterior superior iliac spine. Left inner end is blunt right outer end is sharp.
4. Superficial incised wound measuring 1.5 cms. X 0.3 cms x skin deep, present over right side upper part of abdomen 15 cms below right nipple 10 cms to the right of midline.â
5. Superficial incised wound measuring 2 cms x 0.3 cms x skin deep, present over right side lower of middling and 5 cm above right anterior superior iliac spine.
6. Superficial incised wound measuring 1cm x 0.3 cms x skin deep present just above left groin, 6 cms left of midline, 5 cms inner to left anterior superior iliac spine.
7. Superficial incised wound present over left side, lower part of back, measuring 9 cms x 0.3cm x skin deep with tailing towards outer aspect situated and extending from a point 9 cms left posterior superior iliac spine up to a point 1 cm from midline.
8. Abrasion measuring 1.5 cms x 1 cm present over left side of front of abdomen, 15 cms left of midline4 13 cms below and lateral to left nipple.
On dissection of external injury No. 1 the weapon, after piercing the chest wall has cut through the lower part of body of sternum and further penetrated the heart through front of left ventricle and come out through apex of heart, making a nick over' lower lobe of left lung. Blood and blood clots weighrng 950 gms. Present in left side thoracic cavity. Wound is directed backwards and slightly towards left.
On dissection of external injury No.2, the weapon has entered along the muscle plant of anterior abdominal wall. Wound is directed downwards and backwards from a depth of 5.5. cms.
On dissection of external injury No.3, the weapon has entered muscle plane in front of right thigh. Wound is directed upwards and backwards for a depth of 6 cms.
On the dissection of the cranium and spinal canal:
Skull and vertebrae is intact, membranes, brain and spinal card were intact and pale. On dissection of the Throat:
Chest wall described ribs; intact, sternum described, blood extravasation present around cut area.
Pleurae: right pleurae intact, left pleurae shows nick corresponding to injury No.1.
Larynx and trachea contains blood stained froth.
Lungs: right lung intact pale, left lung collapsed left lower lobe shows nick cavity contains 950 gms of blood and blood clots.
Pericardium cavity contains 500 ml of blood.
Heart injury described. Heart is conti acted
Large vessels intact.
Abdominal Walls described, peritoneum intact and pale, mouth pharynx and oesophagus, intact stomach contains 300 ml of semidigested rice and ragi meals, smell: no abnormal smell, mucosa- normal, small intestine and large intestine intact and pale contains gas and its contents, liver and spleen intact.
Kidneys intact and pale, bladder intact and empty, organs of external and internal genetalia were intact.
All injuries are antemorterm and fresh in nature. Blood is preserved as per request of Investigating Officer and handed over to concerned police.
(B) Injuries sustained by Somashekara Reddy are:
1. Stab injury measuring 4 cms. X 1 cm. x abdominal cavity deep present over the right side of upper abdomen 6 cms to the right of midline x 38 cms. Below the right midclavicle along the midclavicular line margins are clean cut. Both edges are sharp and transversely placed.
2. Stab injury measuring 3 cms x 1.5 cms x 3 cms. Present over the right side of lower abdomen, 10 cms. above the right anterior superior iliac; spine and 14 cms. To the right of midline margins clean cut, obliquely placed, lower inner end sharp and upper outer end blunt.
3. Stab injury measuring 3 cms x 1.5 cms. X muscle deep situated over the right side lower abdomen situated 3 cms, above the right iliac crest and 17.5 cms. to the right of midline, obliquely placed. Both edges are sharp, margins are clean cut.
4. Stab injury measuring 3 cms x 1.5 cms x 10 cms along the muscle plane over the right groin region, 4.5 cms. below the right iliac crest, margins clean cut, both edges are sharp, slightly transverse.
5. Stab injury measuring 3 cms. X 1 cm x chest cavity deep situated 17 cms. below the inferior angle of left scapula.
Margins clean cut, both edges are sharp.
On dissection of injury No. 1 it was observed that the weapon after cutting the skin and muscles of abdomen has entered the peritoneal cavity and has cut the mesentery and its vessels through and through and then entered the illeum as its middle part through and through. The injury is directed backwards and downwards for a depth of 8 cms.
On dissection of injury No.5 it was observed that the weapon after cutting the skin and muscles of left chest has entered the left 10th intercoastal space along the posterior axillary line and has then entered the peritoneal cavity and has pierced the spleen through and through and then made a knick over the spleen flexure.
The injury is directed backwards slightly downwards and to the left for a depth of 9 cms.
On the clissection of the cranium and spinal canal:
Scalp skull and vertebrae intact, membranes and brain intact and pale.
On dissection of the Thorax:
Chest wall described in external injuries, ribs intact, pleurae, larynx and trachea intact and pale, both the lungs oedematous and pale exudes dark blood, pericardium and heart intact and pale contains scanty blood. Large vessels intact and pale contains scanty blood.
On dissection of abdomen:
Walls described in external injuries, peritoneum shows laceration peritoneal cavity contains 2.5 Itrs of blood mouth pharynx and oesophagus intact and pale. Stomach contains 200 mi of brown fluid smell NAD muscosa healthy. Small intestine and large intestine described in external injuries and pale.
Liver intact.
Spleen lacerated irregularly and pale.
Kidneys intact and pale.
Bladder intact and empty.
Organs of external genital and internal intact and healthy.â
All injuries are fresh and antemortem in nature. Blood sample preserved as per police request and handed over to the concerned police.
15. The doctor has opined that the death was due to shock and haemorrhage as a result of multiple stab injuries sustained over both the dead bodies.
From the evidence of the doctor and the post mortem reports it is clear that both the deceased have sustained number of stab injuries and the death was due to shock and haemorrhage as a result of multiple stab injuries. Hence it is amply clear that death has occurred due to the stab injuries caused by accused No.1. '
16. Learned counsel for the defence may be right in arguing that the accused No.1 being a young and hot blooded and whose betrothal ceremony had already taken place with a prospective bride and marriage was fixed on 6.6.2004, could not tolerate the insulting words uttered by the accused. The accused stated to have uttered the following words, as per the defence version.
(âLanguageâ)
Translated version:
"Hay; it appears your wedding is fixed, you allow me to sleep with your wife at first night, I will sleep."
Though nothing is found in the prosecution record about the aforementioned fact relating to teasing etc., the defence taken by the accused cannot be ruled out under the facts and circumstances of the case. Since vulgar statements (as aforementioned) were stated to have been made by the deceased, the accused must have taken law into his hands by stabbing the deceased. Thus the trial court is justified in observing that the incident has occurred under sudden grave and provocation by the deceased and at a fit rage. However, in our considered opinion the trial court should not have convicted the accused No.1 for the offence under Section 304-11 of IPC, even assuming that the incident has taken place under grave and sudden provocation, the incident in question squarely falls under Section 304-1 of IPC.
17. The incident is without premeditation. The law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 IPC.
The kelp of Exception 4 to Section 300 IPC can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. Heat of passion requires that there must be no time for the passions to cool down. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel 13 sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4. it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage' as used in the provision means 'unfair advantage'.
Exception 1 to Section 300 of IPC can be taken benefit of by the offender if the offence has taken place while the offender was deprived of the power of self control by grave and sudden provocation, causes death of a person who gave provocation or causes the death of any other person by mistake or accident.
In the matter on hand, Exception 1 as well as Exception 4 to Section 300 are applicable inasmuch as the accused No. 1 was deprived of power of self control because of grave and sudden provocation and has caused the death of a person who gave provocation, so also the death is caused without premeditation, in a sudden fight by the accused; without the offender having taken undue advantage or acted in a cruel or unusual manner and the fight was with the person killed. As has been held by the Apex Court in the case of Sirkhbir Singh Vs State of Haryana, that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 of Section 300 of IPC. The matter has to be judged based on the particular and peculiar facts and circumstances of the case. As aforementioned, the deceased had teased the Accused No.1 by making vulgar utterances against the fiancee of Accused No.1; the Accused No.1, whose betrothal ceremony was performed and the marriage was to be celebrated within eight days from the date of the incident, could not tolerate the vulgar utterances used by the accused. Suddenly, without premeditation at the heat of passion since he was deprived of self control because of grave and sudden provocation, assaulted the deceased. Hence looking to the totality of the facts and circumstances of the case, the offence squarely falls within the meaning of culpable homicide not amounting to murder.
Having regard to the number of injuries sustained by the deceased it is clear that accused No.1 had intention to take away the life of the deceased. Or, at least he had the intention of causing such bodily injury as is likely to cause death. He had not only the knowledge that the act of him would take away the lives of two persons, but also had something more in his mind. Had he not got the intention of causing death of the deceased, he would have inflicted certain injuries on the deceased and would have run away from the scene. The very fact that he did not leave both the deceased without taking away their lives itself clearly reveals that he had got the intention of taking away the lives of the deceased or of causing such bodily injury as is likely to cause death. Therefore, the offence committed by him falls under Section 304- 1 of IPC.
However, as afore mentioned we are in agreement with the judgement of the trial court relating to the acquittal of accused Nos.2 and 3. Accordingly, the following order is made.â
The judgment and order of acquittal passed in favour of accused Nos.2 and 3 by the trial court in Sessions Case No.255/2004 stands confirmed. The appeal filed by the State with that regard stands dismissed.
The judgment and order of convicting the accused No.1 namely, Mr. R H Keshava is modified and is convicted for the offence under Section 304-1 of IPC.
It is made clear that the judgment and order of acquittal of accused No. 1 for the offence under Section 302 of IPC stands confirmed.
Heard Sri B T Venkatesh, learned SPP and Sri S K Venkata Reddy, learned advocate on the question of sentence. Sri Venkata Reddy, learned advocate for the accused No.1 submits that the first accused is young and he has already served sentence of five years and paid fine of Rs.2,00,000/-. He is already married and settled in life and therefore lenience may be shown by retaining the sentence of five years only and by enhancing the fine. He submits that in case if the accused No. 1 is sent back to the prison he may have to spend his prime youth in jail.
Learned SPP per contra opposed the aforementioned submission of Venkata Reddy and submits that no leniency can be shown to accused No. 1.
The accused No. 1 has taken away the lives of two persons; if leniency is shown, justice will suffer and it will send a wrong message to the society. Having regard to the aforementioned submissions and looking to the totality of the facts and circumstances, in our considered opinion, ends of justice will be met if accused No. 1 is sentenced to undergo imprisonment for a period of eight years and to pay a fine of Rs.6,00,000/-. (Rs. Six Lakhs only) Accordingly, the following order is made.
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ORDER
The accused No. 1 namely, Mr. R H Keshava is sentenced to undergo imprisonment for eight years and to pay a fine of Rs.6,00,000/'- for the offence under Section 304 Part I of IPC. in default of payment of fine, the accused No. 1/respondent No.1 herein shall undergo further imprisonment for 2Vo. years. In case of recovery of fine, the entire fine amount shall be paid to the respective wives of both the deceased in equal proportions as compensation.
The appeal stands partly allowed, accordingly.
Sentence already undergone as well as the fine amount already paid shall be given set off.