State of Karnataka Vs. Lachamanna S/O Eranna - Court Judgment

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(a) criminal procedure code - section 378(1)(3) and indian penal code (central act no. 45 of 1860) 304/part ii.; son (accused) murdered his mother as she refused to give money demanded by him. after trail the sessions judge acquitted the accused-son. in an appeal filed against acquittal by the state it was held that the rejection of evidence of 4 eye witnesses on an untenable ground that there was no clinching evidence that the witnesses have seen the entire incident, by the trial court was not correct.; (b) indian penal code (central act no. 45 of 1860) - section 88.; contention of the accused and was that he was under a delusion in suffering from spell of witch craft and as such he was under mental aberratior and on that count he could not control his senses in which case he would come under the exception available under section 88 of the indian penal code was not accepted.; another submission advanced by the learned counsel for the respondent was that the defence has brought out the fact that the accused appeared to be under a delusion in so far as he seems to be suffering from spells of witchcraft. learned advocate has pointed out to us in support of his plea, that there is evidence on record to indicate that the accused was under a mental aberration which was put down to witchcraft and on that account he could not be in control of his senses in which case he would come under the exception available under section 88 ipc. it is true that there are some references of this type in that regard which have not really been refuted but we take note of the fact that such reference would not be sufficient to bring the case within the ambit of a general exception effectively where the plea is one of insanity or one where the contention is that the accused was not in control of his senses, the onus shifts to the defence and the plea has got to be fully substantiated. even though the respondent's learned advocate has done his best in this regard, we are of the opinion, that the plea cannot be upheld. ;(c) code of criminal procedure 1973 (central act no. 11 of 1974) section 162 ; death was caused due to the depressed fracture of the skull due to a blew given by the blunt side of the axe and there was no bleeding. but the witnesses had stated in their police statements that the accused was holding a blood stained axe immediately after the assault. relying on this contradiction, it was contended that the evidence of the eye witness be discarded ; the respondent's learned advocate in this regard drew our attention to the fact that p.w.1 makes a specific and positive statement that he saw the accused holding a blood stained axe immediately after the assault on tayamma. it has been brought out in the course of cross examination that p.w.1 had not stated so in the police statement and this improvement has been proved through the investigation officer. also as far as the axe is concerned, though it has been taken charge of by the police,there is no evidence of blood stains on the axe. the submission is that this was therefore a dear cut and deliberate attempt on the part of p.w.1 and his wife p.w.2 to implicate the accused in the offence which in fact he had not committed. as far as this aspect of the matter is concerned, undoubtedly p.w.1 has accepted the position that he did not make such a statement to the police which is probably the correct position because the axe itself did not have any blood stains. the evidence seems to indicate that since the injury was inflicted with the blunt side of the axe that it did not result in any external bleeding at that stage and this is the possible explanation that there was no blood on the axe. to this extent, the evidence of p.w.s 1 and 2, vis-a-vis, the allegation that the accused was seen with the blood stained axe will have to be discarded. the real question is, as to whether this improvement is sufficient to totally reject the rest of the evidence.; we have carefully examined the evidence of p.w.1 and his wife p.w.2 , more importantly the evidence of p.w.3, who is the cousin and his brother p.w.4, as also p.w.s, who is a neighbour. it is undoubtedly true as pointed out by the respondent's learned advocate that there are certain minor inconsistencies in their evidence as far as the overall version is concerned. what impressed us however is the fact that their presence cannot be disputed. there is no animus between them, all of whom are closely related and in this background their evidence will have be assessed from the angle of ascertaining as to whether they appear to be telling the truth. though these witnesses have been considerably cross examined, their evidence by and large remain unshaken. we do find a dear consistency in the versions put forward by these witnesses. we find some degree of corroboration also from the child witness p.w.10, who is the minor son and who even refers to the presence of the weapon. a court cannot lose sight of the fact that the witnesses happen to be unsophisticated that they deposed long after the incident and that in the absence of anything to the contrary, that it would have to be presumed that they are telling the truth. the defence has not been able to shatter their credibility nor impute any motives to them and having regard to the fact that they are persons who are naturally present at the spot, in our considered view, the court will have to accept the consistent version put forward that the incident was preceded by a demand from the accused from tayamma for money which she refused and this irritated the accused to an extent that he assaulted tayamma with the blunt end of the axe irrespective of the fact that she was his own aged mother. this version of the prosecution does stand clearly established from the evidence of these witnesses. the learned trial judge has given undue importance to very minor and insignificant infirmities while assessing the evidence and has come to the conclusion that it is unreliable. this finding is incorrect and in our considered view, the evidence completely makes out the charge against the accused. - karnataka sales tax act, 1957 sections 13 & 15: [d.v.shylendra kumar,j] liability - property auctioned by karnataka state financial corporation under section 29 of the state financial corporations act, 1951 - notice to auction purchaser towards sales tax due from erstwhile owners of the auctioned property liability held, an auction purchaser is not a person who steps into the shoes of an assessee in default per se. he is a purchaser of property which if had been charged with the liability such as sales tax liability of the erstwhile owners and if he is a person with some notice of the charge, the charge binds the purchaser also. section 15 of the karnataka sales tax is not attracted and if at all it can be said provisions of section 13 of the sales tax act are attracted. even then, the entitlement of the department to realise such amount which was an arrears of tax due by the erstwhile owners is only to the extent of enforcing the charge on the property and nothing beyond. notice cannot be allowed to operate on all the properties of the purchaser. sales tax department is not entitled to attach the bank accounts of the petitioner/auction purchaser which has nothing to do with the property in question. - s 1 to 4. the other factor on which the learned state public prosecutor has placed very strong reliance is the fact that the accused was admittedly residing there and that his presence therefore, cannot be disputed. chandrasekharaiah, has submitted that the doctor himself has clearly pointed out that he had asked the police to take the lady to a better hospital for proper medical treatment as the facilities in the hospital were limited. deceased tayamma was a very poor person from the village and unfortunately, nobody seems to have bothered to take any further steps. 9) have both stated very clearly that there was a depressed fracture of the skull and they have listed this injury as being one of sufficient seriousness and one which could cause death. it is true that there are some references of this type in that regard which have not really been refuted but we take note of the fact that such references would not be sufficient to bring the case within the ambit of a general exception effectively where the plea is one of insanity or one where the contention is that the accused was not in control of his senses, the onus shifts to the defence and the plea has got to be fully substantiated. even though the respondent's learned advocate has done his best in this regard, we are of the opinion, that the plea cannot be upheld. this version of the prosecution does stand clearly established from the evidence of these witnesses. the learned trial judge has given undue importance to very minor and insignificant infirmities while assessing the evidence and has come to the conclusion that it is unreliable.m.f. saldanha, j.1. this is an appeal preferred by the state of karnataka and is directed against the judgment and order of the learned sessions judge, raichur dated 19.6.1993 in s.c.no. 70/1992.2. the charge against the respondent-accused was that on 9.7.1992 at about 6.00 a.m. at hirapur village within the limits of yeragere police station that he is alleged to have assaulted his mother tayamma on the head with an axe because she refused to give him money and thereby committed an offence punishable under section 304 part ii ipc.3. the prosecution case was that the accused is alleged to have got into an argument with his mother earlier in the morning on that day and subsequently assaulted her with the butt end of an axe because she refused to give him money for alcohol. the other residents of the house and the neighbours immediately came to the scene and according to them since the accused was in a violent rage, they disarmed him and tied his hands and legs with a rope after which the complainant went to the police station. this is a rather remote village and is at a distance of over 25 k.ms from the police station and there was a considerable time lag before the police came to the village and removed tayamma to the hospital. thereafter, the investigation proceeded though rather slowly, possibly because the police had originally registered an offence only under section 324 ipc. tayamma, who was admitted to the hospital with a depressed fracture on the parietal region was in an unconscious condition and virtually kept lingering on and ultimately died after a lapse of 42 days in the hospital. the charge was accordingly altered and the accused who had been arrested in the meanwhile was charge sheeted and put on trial. the case was committed to the court of sessions and the learned trial judge examined as many as 14 witnesses. we are basically concerned with the evidence of p.w.3, who is the cousin and who claims to be the eye-witness, p.w.4, who is the brother of p.w.3 and who also claims to be the eye-witness, p.w.1, who is the elder brother and p.w.2, who is his wife, all of whom were living in the same residence as the deceased or immediately next doors. the evidence of p.w.10 who is the minor son of p.w.1 is also of some consequence. the learned trial judge, after a detailed discussion of the evidence came to the conclusion that at the point of time when tayamma sustained the injury viz., at 6 a.m. in the morning that none of the witnesses were immediately present and that at the highest they came at the scene shortly thereafter. he has also taken note of the inconsistencies between the evidence inters the fact that there are certain improvements particularly as far as p.w.1 is concerned and the defence case that it was p.w.1 who had assaulted the mother because of a partition dispute and has recorded the finding that in this back ground a conviction would not be permissible in law. the state of karnataka, has through the present appeal assailed the correctness of the acquittal recorded in favour of the original accused.4. at the hearing of the appeal on behalf of the respondent-accused, we have had the assistance of the learned advocate mr. j. chandrasekharaiah, who has argued the matter with considerable degree of experience and ability as also of the learned state public prosecutor who has argued on behalf of the state. since the respondent did not have counsel of his own, mr. j. chandrasekharaiah, has appeared as amicus curiae.5. the principal submission canvassed on behalf of the state is that if the crime in question were to be virtually reconstructed, we would have a situation whereby the court would have to take note of one fact, namely, that the huts in which the deceased and the prosecution witnesses were residing are so close to each other that almost everything that happened in that area could not have escaped the notice of all those residing there. his submission is that, even though the incident took, place at 6 a.m. as is customary with persons who live in rural areas that all of them were awake and very much awake of what had happened at that hour of the morning and that irrespective of whether p.w.s, 1, 2, 3, 4 and 10 were physically watching the deceased tayamma and the accused, that they were within the hearing distance of what was going on and when the deceased was assaulted, that it was within the shortest possible time that they would have come there. it is submitted that in this back ground merely because there does not appear to be any absolutely clinching evidence that the witnesses have in fact physically seen the entire incident, that the trial court was not justified in having rejected the evidence of p.w.s 1 to 4. the other factor on which the learned state public prosecutor has placed very strong reliance is the fact that the accused was admittedly residing there and that his presence therefore, cannot be disputed. the recovery of the axe from the scene of offence corroborates the version of the witnesses and the learned state public prosecutor submitted that one factor which stands out is the fact that the witnesses themselves deposed to the fact that the accused was caught hold of and tied hand and foot and his submission is that this circumstance alone will indicate that it was only because of the violence which has been indulged in by the accused with his own relations who included his brother, that they were left with no option except to disarm him and tie him. the submission is that in view of this back ground the prosecution has succeeded in fully and successfully establishing that it was the accused and none other who had assaulted the deceased tayamma on the head and further more that the assault was with a deadly weapon, viz, the axe on a vital part of the body and the learned state public prosecutor therefore submitted that the accused is liable to be convicted of the offence punishable under section 304 ii i.p.c.6. the respondent's learned advocate has seriously assailed this position. we appreciate his efforts in having virtually taken us through the entire evidence. he canvassed that in his submission there are two factors which are crucial, the first being that the injury to tayamma was not a serious one, in so far as there was no heavy bleeding but more importantly that she survived the injury for almost 1 1/2 months. even the police at that point of time considered it as a minor injury and he submits therefore that tayamma ultimately died because of want of competent medical assistance; that the charge under section 304 part ii is itself unwarranted. the learned advocate submitted that even if there is an injury with a weapon, that the court has to examine the nature and gravity of the injury and not mechanically accept a contention that the weapon was a deadly one and that the injury was on the vital part of the body. to this extent we are in agreement with the submission canvassed in because the manner in which an injury is inflicted and the gravity of the injury are the crucial factors for the purpose of deciding the legal liability, namely, the question as to whether it is a case of simple hurt, grievous hurt, culpable homicide not amounting to murder or murder. in the present case, mr. j. chandrasekharaiah, has submitted that the doctor himself has clearly pointed out that he had asked the police to take the lady to a better hospital for proper medical treatment as the facilities in the hospital were limited. deceased tayamma was a very poor person from the village and unfortunately, nobody seems to have bothered to take any further steps. learned advocate also relied on the fact that her only relations had for some reasons not given their consent for any surgical treatment to her and he submits that this in fact aggravated her condition. undoubtedly, these are the circumstances which require to be taken into consideration, but the fact remains that the doctor who has given evidence in this case who is p.w.8 as also the doctor who has conducted the post-mortem (p.w.9) have both stated very clearly that there was a depressed fracture of the skull and they have listed this injury as being one of sufficient seriousness and one which could cause death. also the fact that the butt end of the axe was used would not make much difference when one considers that it was an assault on an old lady, aged 60 years and a blow with an axe even as far as the blunt side is concerned, would be one of sufficient seriousness and it would be difficult to uphold the submission that such an act would not be sufficient in the ordinary course of nature to cause death.7. another submission advanced by the learned counsel for the respondent was that the defence has brought out the fact that the accused appeared to be under a delusion in so far as he seemed to be suffering from spelts of witchcraft. learned advocate has pointed out to us in support of his plea, that there is evidence on record to indicate that the accused was under a mental aberration which was put down to witchcraft and on that account he could not be in control of his senses in which case he would come under the exception available under section 88 ipc. it is true that there are some references of this type in that regard which have not really been refuted but we take note of the fact that such references would not be sufficient to bring the case within the ambit of a general exception effectively where the plea is one of insanity or one where the contention is that the accused was not in control of his senses, the onus shifts to the defence and the plea has got to be fully substantiated. even though the respondent's learned advocate has done his best in this regard, we are of the opinion, that the plea cannot be upheld.8. coming to the evidence of the eye-witnesses, the general challenge is that they have neither seen nor heard the incident and that taking advantage of the fact that the accused had a somewhat wayward background, that he had been made a escaped goat by those persons to virtually to get him out of the way of the property dispute. this defence was not specifically pleaded to that extent before the trial court. but it is certainly open to the learned advocate to adopt it even before the court if it is sustainable from the record. the respondent's learned advocate in this regard drew our attention to the fact that p.w.1 makes a specific and positive statement that he saw the accused holding a blood stained axe immediately after the assault on tayamma. it has been brought out in the course of cross examination that p.w.1 had not stated so in the police statement and this improvement has been proved through the investigation officer. also as far as the axe is concerned, though it has been taken charge of by the police, there is no evidence of blood stains on the axe. the submission is that this was therefore a clear cut and deliberate attempt on the part of p.w.1 and his wife p.w.2 to implicate the accused in the offence which in fact he had not committed. as far as this aspect of the matter is concerned, undoubtedly p.w.1 has accepted the position that he did not make such a statement to the police which is probably the correct position because the axe itself did not have any blood stains. the evidence seems to indicate that since the injury was inflicted with the bluntside of the axe that it did not result in any external bleeding at that stage and this is the possible explanation that there was no blood on the axe. to this extent, the evidence of p.w.s 1 and 2, vis-a-vis, the allegation that the accused was seen with the blood stained axe will have to be discarded. the real question is, as to whether this improvement is sufficient to totally reject the rest of the evidence.9. we have carefully examined the evidence of p.w.1 and his wife p.w.2, more importantly the evidence of p.w.3, who is the cousin and his brother p.w.4, as also p.w.5, who is a neighbour. it is undoubtedly true as pointed out by the respondent's learned advocate that there are certain minor inconsistencies in their evidence as far as the overall version is concerned. what impressed us however is the fact that their presence cannot be disputed. there is no animus between them, all of whom are closely related and in this background their evidence will have be assessed from the angle of ascertaining as to whether they appear to be telling the truth. though these witnesses have been considerably as on examined, their evidence by and large remains unshaken. we do find a dear consistency in the versions put forward by these witnesses. we find some degree of corroboration also from the child witness p.w.10, who is the minor son and who even refers to the presence of the weapon. a court cannot lose sight of the fact that the witnesses happen to be unsophisticated nillogen that they deposed long after the incident and that in the absence of anything to the contrary, that it would have to be presumed that they are telling the truth. the defence has not been able to shatter their credibility nor impute any motives to them and having regard to the fact that they are persons who are naturally present at the spot, in our considered view, the court will have to accept the consistent version put forward that the incident was preceded by a demand from the accused from tayamma for money which she refused and this irritated the accused to an extent that he assaulted tayamma with the blunt end of the axe irrespective of the fact that she was his own aged mother. this version of the prosecution does stand clearly established from the evidence of these witnesses. the learned trial judge has given undue importance to very minor and insignificant infirmities while assessing the evidence and has come to the conclusion that it is unreliable. this finding is incorrect and in our considered view, the evidence completely makes out the charge against the accused. the medical evidence supports the version of the witnesses in so far as there was a depressed wound on the parietal region of the deceased. furthermore, the version of all the witnesses including that of the police officer is that the accused was caught and tied up. on probabilities, there is hardly any reason which even the defence could not suggest for the accused being disarmed and tied up if he was not the person who committed the offence. this is a fact which heavily supports the prosecution case. we are of the view that the offence under section 304 part ii ipc has been established.10. on the question of sentence, the learned state public prosecutor submitted that the deceased was the mother of the accused; that she was an elderly person and that the accused has a history of being involved in acts of violence and that he has been prosecuted for the same. the respondent's learned advocate was pleased to point out that it is wrong on the part of the learned state public prosecutor to rely on this last incident because even if the accused has been prosecuted, the court has acquitted him and in this background, the presumption stands fortified. the learned advocate is justified in his submission. on the basis of the facts and circumstances of the case, the learned state public prosecutor has prayed for a deterrent sentence whereas the respondent's learned advocate submitted that this is a case which at the highest would call for a light sentence and that too under section 324 ipc. we have already indicated the reasons why it would not be correct for us to uphold the submission that the conviction can only be under section 324 ipc because, the injuries, the weapon used and all other surrounding circumstances would dearly bring the offence under the ambit of section 304 part ii ipc. respondent's learned advocate submitted that having regard to the condition in which the accused was placed viz, that he was certainly suffering form mental disturbance and several other factors that have been brought on record, that this court must show him almost leniency.11. we have carefully assessed everything that has been pointed out to us by the learned advocates. we have taken into consideration, the age of the accused, the nature of the injury, the circumstances under which the offence took place and all other relevant considerations. having regard to all of them, we set aside the acquittal passed in favour of the respondent by the learned trial judge and convict him of the offence punishable under section 304 part ii ipc and direct that he shall undergo r.i for 5 years.12. the record indicates that the accused is not in custody as of now and in these circumstances, appropriate steps shall be taken for taking him into custody. accordingly, we direct the learned sessions judge to take the accused into custody and consign him to prison to undergo the sentence. the appeal is accordingly allowed.13. it is necessary for us to quantify the honorarium payable to the learned advocate who appeared as amicus curiae on behalf of the respondent. as far as heavy appeals such as the present one are concerned, depending on the nature of the appeal and the duration of the matter, an honorarium of either rs. 500/- or rs. 1,000/-- was hitherto being fixed by the bench. having regard to all the relevant circumstances, we are of the view that this scale would be more or less fair except in situations where hearing of the appeal goes into a longer number of days. in such situations, we are of the view that the honorarium should be at the rate of rs. 500/- per working day depending on the duration of the appeal which is awarded in the present case.14. we are conscious of the fact that this fee would create some anomaly in so far as the scale of fees prescribed for the other side is the public prosecutor which was obviously fixed a long back would be rendered hopelessly unequal and we are firmly of the view, having regard to the complexion of these cases and the labour and professional competence that is required to conduct them, that the law department of the state government should take immediate steps to overhaul the scale of fees and make them commensurate with the principles of fairness.15. the registrar general shall forward a copy of this judgment to the law secretary, state of karnataka, for appropriate action.