IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DRARWAD DATED THIS THE 22’ DAY OF AUGUST 2011 PRESENT THE HON’BLE MR.JUSTICEf H.BILLAPPA AND THE HON’BLE MR. JUSTICE ARALI NAGARAJ CRIMINAL APPEAL No.2732/2010 BETWEEN: Sri Jagadish S / o. Shivappa Vaderahalli Age. 25 years, R/o. Manakur, Tq. Ranebennur, District Haven. Appellant (By Sri S.S. Koti & Sri Sninand A. Pachhapurc, Act v o c a tes) AND: The State of Karnataka Through Halageri Police Station. Now Rep. By H.C.G.P. Re s p on (lent (By Sri V.M. Banakar, Addi. S. PP.) This Criminal Appeal is filed U/s. 374(2) Cr.P.C. seeking to set aside the Judgment of conviction and Order of sentence dated 25.06.2010 passed by the Sessions Judge, Presiding Officer, Fast Track Court, Ranebennur, in S.C. No. 47/2008, for the offence punishable under Section 302 & 504 of l.P.C. This Criminal appeal coming on for hearing this day, Arali Nagaraj , J. , delivered the following: JUDGMENT This appeal is by accused No. 1 in Sessions Case No. 47/2008 on the file of the learned Presiding Officer, Fast Track Court, Ranebennur (hereinafter referred to as Tria1 Court’ for short). The other accused had been a juvenile. Therefore, accused No.1 only came to be tried in the said case. The appellant- accused has challenged in this appeal legality and correctness of the Judgment and Order of conviction dated 25.06.2010 passed in the said case convictlng him for the offences under Sections 302 and 504 both r/w. Section 34 of I.P.C. 2. Stated in brief the case of the prosecution as alleged in the complaint (Ex. P7) dated 19.07.2008 filed 3 4 by one Tippanna Sb. Karbasappa Vaderhalli of Manakur village, taluk Ranebennur is as under- a) The complainant has been residing in the said village. He has agricultural lands within the limits of the said village. One Shivappa Sb. Krishnappa Vaderahalli, the father of the accused also has his land adjacent to that of the complainant. b) There has been dispute between the complainant and accused as to the boundary of the said land. The accused and his father are claiming that the complainant has encroached upon their land. Therefore, the complainant suggested the accused to get both the lands surveyed, and if it is found that complainant has encroached upon the land of the accused, accused would be at liberty to take the possession of the land. c) A panchayat was held in the presence of the elderly persons of the village viz., Neelappa Hanamappa Hosamani (PWI2), Devappa Ningappa Goudara (PW8) and younger brother of Shivappa viz., C.W.14 Basappa Krishanappa Vaderahalli. In the said panchayat the accused were advised by the elderly persons. 4 d) On 19.07.2008 at about 3 p.m. while the complainant and his wife Smt. Mallamma (CW6) and his deceased son Sanjeeva were together in their land, the deceased Sanjeeva was making a field channel in their land for getting water. At that time accused No.1 Jagadeesh and his younger brother, accused No.2 Harcesh (juvenile), were also irrigating their land. When the said accused saw the deceased making channel in his land, both thc accused camc there and questioned why he was making channel in their land. To that, the deceased told them that he was making channel within the limits of his land. Then both the accused became enraged against the deceased and abused him in filthy language. Accused No.2 Hareesh slapped the deceased and pushed him. Consequently, the deceased fell to the ground. Then accused No. I Jagadeesh snatched the spade that was held by the deceased for making the channel and hit with it on right side of his head. Consequently, the deceased sustained severe injuries on the right side of his head and fell to the ground. On hearing the galata, the parents of the deceased viz., complainant Thippanna and CW6 Smt. Mallamma and also the neighbours viz., Devappa (PW8), Hanamappa (PW9), lmamsab (PW1 1), Dharmappa (CW1O) and Yallappa (CW9) 5 4 all rushed to the said place and rescued the deceased from accused. Then the accused left the place saying that though they assaulted thc deceased he did not died. 3. On appreciation of the oral evidence of PW1 to 16, the documents at Ex.Pl to P19 and M.O. Nos. I to 6 placed on record by the prosecution and also after considering Exs.D1 to D3, the relevant portions of the statements of prosecution witnesses, the Trial Court, by its impugned Judgment and Order, convicted accused No.1 for the offences under Sections 302 and 504 both nw. Section 34 of I.P.C. Therefore, the present appeal is by the said accused. 4. We have heard the arguments of Sri S.S. Koti, learned counsel for the appellant-accused and Sri V.M. Banakar, the learned Addl. S.P.P. for the respondent State. Perused the impugned Judgment and Order of conviction and the entire material found in the original record. 6 6 5. At the outset, Sri S.S. Koti, the learned counsel for the appellant-accused fairly submits that though the present appeal is filed on various grounds disputing the very occurrence of the incident of the assault on the deceased by the accused as alleged in Ex.P7 complaint and also the other circumstances of the case, in vicw of consistent evidence of PW3, complainant-Tippanna, who is none other than the father of the deceased, PW8 Devappa who actually witnessed the incident of assault on the deceased by accused No.1 and also evidence of PWs. 9 and 11, who have consistently stated that immediately on hearing the cry of the deceased, they both (PWs9 and 11) rushed to the scene of occurrence and saw that the deceased had fallen to the ground having sustained fatal wound on right side of his head and PWs. 3 and 8 were present there, Smt. Mallamma, the mother of the deceased was also there and they all informed them (PW5.9 & 11) that accused No. I assaulted the deceased with spade and thereby inflicted the said wound the 7 vi occurrence of the said incident as stated in the complaint and as deposed by the said witnesses is not disputed in this appeal. While submitting so, he contends that the Trial Court, having regard to the circumstances in which the said incident occurred, has erroneously convicted accused No.1 for the offence under Section 302 of I.P.C. as the case against the appellant-accused falls within the ambit of Exception 4 to Section 300 I.P.C. and as such this appellant- accused could be convicted for the offence under Section 304 Part-Il l.P.C. and hence conviction of the appellant deserves to be modified. 6. Per contra 4 learned Addi. S.P.P. while supporting the impugned Judgment and Order of conviction strongly contends that accused No.1 assaulted the deceased with spade on vital part of his body i.e., head, by giving forcible blow and thereby inflicted fatal wounds which resulted in his dcath and hence, the Trial Court is quite justified in convicting S 4 him for the offence under Section 302 of I.P.C., and therefore, the present appeal of the appellant deserves to be dismissed as being devoid of merits. 7. PW3 Tippanna is the complainant and also father of the deceased. He has stated in his evidence that while himself and his wife were in the land at a distance of about l5Oft. from the place where the deceased was making a field channel for irrigating the land, he heard the quarrel between the deceased on the one side and accused Nos.l and 2 on the other and therefore, immediately on hearing the quarrel, he rushed to the scene of offence saw that accused No.2 slapped the deceased and then accused No.1 snatched the spade from the hands of the deceased and hit with it on right side of his head and consequently, the deceased sustained severe injury and fell to the ground. He has stated in his cross-examination that, when he heard the galata he was about I 5Oft. away from the scene of offence and that when he was about 9 4 4Oft. away from the said place he saw accused No.1 assaulting the dcceased with the spade. He has further stated in his evidence that the incident of quarrel between the accused on the one side and the deceased on the other took place for about 2-3 minutes and that during the said quarrel the accused and the deceased were abusing each other. Other witnesses viz., PW8 Devappa, PW9 Hanamappa and PWI 1 Imamsab have also consistently stated in their evidence that the accused and the deceased quarreled with each other, abused against each other and during thc said quarrel accused No. I assaulted the deceased with the spade. 8. It is not in dispute that there was long standing dispute between the complainant and the deceased on the one side and both the accused and their father on the other in respect of boundaries of their respective lands. It is also not in dispute that there was panchayat in respect of the said dispute and 10 I the complainant had suggested the accused to get both the lands measured to ascertain as to whether complainant had made any encroachment in the land of the accused. From the facts it appears that instead of getting their respective lands measured for resolving the dispute, the deceased went to make the field channel for irrigating his land, and therefore, alleging that the deceased was making the said channel in their land the accused came there and then quarrel started between the accused and the deceased. It is pertinent to note that, though the accused were also doing their agricultural operations in their land they did not come to the scene of offence holding any weapon. The incident of quarrel commenced in the land of the complainant. During the said quarrel accused No.1 became enraged against the deceased and then snatched the spade from complainant’s hand and gave him a blow on his person and it fell on his head. The circumstance under which the incident occurred clearly shows that there was quarrel and the accused II became enraged during the said quarrel and then assaulted the deceased. Therefore, we are of the opinion that the case against accused No. 1 squarely falls within Exccption-4 to Section 300 of l.P.C. 9. Now we have to see with what intention or knowledge the appellant-accused assaulted the deceased with spade and thereby inflicted fatal wound rn his head, which resulted in his death. PWs. 3 and 8 have consistently stated in their evidence that during the said quarrel the accused No.1 snatched the spade from the hands of the deceased and gave a very forcible blow on his head resulting in fracture of skull and consequential death of the deceased. Therefore, it is quite clear that while giving the said blow with spade the accused intended to cause death of the deceased or to cause such bodily injury, as is sufficient to cause death of a person in the ordinary course of nature. PW3 complainant has clearly stated in his evidence that after the assault was o er while going away from the scene of offence accused No.1 uttered the words —zn -czz r t This conduct of 12 I accused No.1 even after assaulting the deceased with spade clearly goes to show that he intended to cause the death of the deceased. Therefore, the contention of Sri 5.5. Koti, the learned counsel for the appellant-accused that the case against the appellant-accused falls within the ambit of Section 304 Part-lI of I.P.C. does not deservc acceptance. Therefore, the impugned Judgment and Order of conviction requires to be modified, convicting this appellant-accused No.1 for the offence under Section 304 Part-I of I.P.C. Since this accused No.1 abused the deceased in filthy language and thus intimidated him, we do not find any reason to interfere with the impugned Judgment and Order insofar as it relates to his conviction for the offence under Section 504 of I.P.C. 10. Since we are convicting the appellant-accused for his individual act we do not make any observations as to whether accused No.2 who has been a juvenile shared any common intention with this appellant-accused No. I. If the trial against the juvenile (accused No.2) is still pending, the Trial Court 13 I (Juvenile Court) shall not be influenced by the findings recorded by us in this Judgment. 11. For the reasons aforesaid, we pass the following- ORDER The present appeal is allowed in part. The impugned Judgment and Order insofar as it relates to conviction of this appellant (accused No.1) for the offence under Section 302 of l.P.C. is hereby modified by convicting him for the offence punishable under Section 304 Pan-I of I.P.C. In view of the fact that this appellant (accused No.1) was aged about 25 years as on the date of the incident and he has no criminal background, we feel that ends of justice would be met with, if he is sentenced to undergo R.I. for a period of 8 years. It is an undisputed fact that the accused are owning irrigated lands. This very fact that the accused owns irrigated lands was the cause for the occurrence of the incident. Therefore, it is clear this 14 accused has capacity to pay substantial amount as fine. Therefore, we hereby sentence him to undergo RI. br a period of $ years and to pay fine of 1 ,00,000 ‘- (One Lakh Rupees onh) with default sentence of RI. fur a period of six months. The impugned Judgment and Order insofar as it relates to conviction of this appellant-accused for the offence under Section 504 of 1 P.C. is left undisturbed. If the said amount of fine is deposited, a sum of 90,OO0/- shall be paid as compensation to PW3 Tippanna, the father of the deceased. The appellant accused shall be entitled to set off in respect of the period of his detention as provided under Section 428 of Cr.P.C. Sd! 3UDGE h n m / -