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2018 Supreme(Kar) 572
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
JOHN MICHAEL CUNHA, J.
Babajan S/o. Hashimsab Makandar & Ors. - Appellants
Vs.
The State of Karnataka, by Mudalgi Circle Police, rep. by State Public Prosecutor - Respondent
Criminal Appeal No. 2568 of 2010
Decided On : 07-03-2018
For the Appellant : Sri. Neelendra D. Gunde, Adv.
For the Respondent: Sri. Praveen K. Uppar, HCGP.
Headnote:INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Sections 96 to 106 - Right of self-defence - Accused allegedly while acting in self-defence assaulting deceased by club resulting in her death - Eye-witnesses of incident deposing that accused first proceeded to field of deceased and after that incident complainant party went near house of accused - None of prosecution witness armed with weapon - No evidence that complainant party gave threat to accused persons by weapons - Neither evidence regarding provocation by deceased to accused to use force nor putting his life in danger - Failure of defence to bring circumstances on record necessitating them to use force and aggression - Held, In absence of evidence accused cannot take shelter of self-defence.
INDIAN PENAL CODE, 1860 [C.A. NO. 45/1860] - Section 304, Part II - Culpable homicide not amounting to murder - Accused persons assaulting deceased by club resulting in her death - Complainant admitting that they went near house of accused to question them regarding assault - Accused assaulting while verbal altercation between parties taking place - Medical evidence showing only one injury on head of deceased - Deceased died after 3 days of incident - Single blow inflicted on scalp - Fact that accused also sustained injuries on his person shows that there was retaliation from complainant - Absence of intention and premeditation to cause death - Conviction under Section 304, Part II held, proper instead of Section 304, Part I.
INDIAN PENAL CODE, 1860 [C.A. NO. 45/1860] - Section 304, Part II - Culpable homicide not amounting to murder - Accused allegedly assaulting deceased by using club resulting in her death - Seizure of stick and broken pieces of bangles - Cut lacerated wound on vault of scalp of deceased measuring 3" x ½" x ½" - Medical evidence proving death due to injury to head - Spot of incident established - Reliable testimony of injured witness duly corroborated by eye-witnesses and medical evidence - Failure of defence to establish right of self-defence - Accused held, liable to be convicted.
This appeal is directed against the judgment of conviction and order of sentence passed by the Fast Track and Additional Sessions Court, Hukkeri, sitting at Gokak in S.C.No.114/2000 dated 06.02.2010.
2. Four accused persons were sent up for trial on the accusation that, on 05.12.1999 at about 01:00 a.m., in front of the house of accused No.2, accused Nos.1 to 4 armed with iron rods abused the complainant and his family members and accused No.3 assaulted the complainant –PW1, PW8, PW9 and PW10 with an iron rod; accused No.1 – Babajan assaulted on the head of the deceased Hajaratma wife of Jamalsab Makandar and on account of the said injury, she died on 07.12.1999. It is further alleged that accused No.2 and accused No.4 who were present at the spot, instigated accused Nos.1 and 3 to commit the above offences.
3. The complaint was lodged on the same day at 12:30 noon. Based on the said complaint, Crime No.66/1999 was registered against all the four accused persons under Sections 324, 325, 114, 504 read with Section 34 of IPC.
4. In respect of the very same incident, accused No.2 also lodged a report before the same Police and Crime No.67/1999 came to be registered against five accused persons including the complainant in Crime No.66/1999 under Sections 143, 147, 148, 323, 324, 504 read with Section 149 of IPC.
5. After investigation, the charge sheet was laid against all the four accused. The accused persons denied the charges and faced trial.
6. In proof of the charges, the prosecution examined as many as 30 witnesses. Amongst them PW1 is the complainant and PW8, PW9 and PW10 are the injured witnesses. The wound certificates relating to the injuries sustained by them during the occurrence were marked as Ex.P-26, Ex.P-25, Ex.P-22 and Ex.P24 respectively. The Medical Officer who conducted the postmortem examination on the deceased was examined as PW20 and the postmortem examination report was marked as Ex.P-31, wherein the cause of death was certified as due to coma as a result of injury to vital organ brain. According to the Medical Officer who examined the deceased soon after the occurrence, he noticed the following injuries on the deceased viz :
(i) two abrasions on the left knee, one below other.
(ii) cut lacerated wound on the vault of the scalp measuring 3’’ x 1/2’’ x 1/2’’.
7. Considering the evidence of the eyewitnesses as well as the medical evidence and the other supporting material produced by the prosecution, the Trial Court found accused No.1 guilty of the offences punishable under Section 304-I and Section 326 of IPC. Accused No.3 was found guilty of the offence punishable under Section 324 of IPC. Accused No.4 was acquitted of all the charges.
8. Case against accused No.2 stood abated. Accused No.1 was sentenced to undergo simple imprisonment for eight years and a fine of Rs.5,000/- for the offence punishable under Section 304-I of IPC and for the offence punishable under Section 326 of IPC, he was sentenced to undergo simple imprisonment for five years and a fine of Rs.3,500/-. Accused No.3 was sentenced to undergo simple imprisonment for six months for the offence punishable under Section 324 of IPC.
9. Accused Nos.1 and 3 are before this Court questioning the correctness and legality of the conviction recorded against them.
10. I have heard the learned counsel appearing for the appellant Shri Neelendra D. Gunde and the learned HCGP Shri Praveen K. Uppar and have examined the record.
11. PW1 is the complainant and the injured witness. He has deposed in conformity with the prosecution case. The wound certificate relating to this witness is marked as Ex.P-26. PW2 is the panch witness to the spot mahazar – Ex.P-2, whereunder, the stick of guava tree and bangle pieces were seized. PW3 is the panch witness for the inquest mahazar – Ex.P-3. PW4 and PW5 are the panch witnesses to Ex.P-4, Ex.P-5, Ex.P-6, Ex.P-7 and Ex.P-8 – seizure mahazars. PW6 is a panch witness to the mahazar, Ex.P-9 and Ex.P-10. PW7 is a panch witness
