(Prayer: This Criminal Appeal is filed under Section 374(2) Cr.P.C., praying to set aside the impugned judgment dated 13.06.2012 and order of conviction dated 14.06.2012 passed by the Additional Senior Judge, Chikmagalur in S.C.No. 72/2008-convicting the appellant/accused for the offence. P/U/S 504 and 302 of IPC. The appellant/accused is sentenced to undergo life imprisonment and pay fine of Rs.5,000/-, in default to pay fine, he shall undergo S.I. for a period of 2 months for the offence P/U/S 302 of IPC. The appellant/accused is sentenced to pay fine of Rs.1,000/-, in default to pay fine, he shall undergo further S.I. for a period of 15 days for the offence P/U/S 50 of IPC. Both sentences shall fun concurrently.)
1. The appellant was charged by the trial court for the offences punishable under section 504 and 302 IPC on the allegations that, on 28.02.2008 at about 4.00 p.m. on a road, in front of the house of the deceased Velayudhan, the accused in connection with the payment of some money towards tea consumed by him in the shop of Velayudhan, started abusing the Velayudhan in filthy language and strongly provoked himself and kicked said Velayudhan with his right knee on the private part. Due to the impact of the said blow the deceased Velayudhan succumbed to the blow. On these allegatio
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ns the police have submitted a charge sheet before the trial court and infact the prosecutions in order to bring home the guilt of the accused examined 10 witnesses and got marked 10 documents Ex.P.1 to P.10 and no material objects are exhibited before the court.
2. The trial court after consideration of the oral and documentary evidence on record has convicted the accused/appellant for the above said offences and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.5000/- and to undergo simple imprisonment for two months in default for the offence under Section 302 of IPC. He was also convicted and sentenced for the offence under Section 504 imposing a fine of Rs.1000/- and in default to undergo simple imprisonment for 15 days. The said judgment of conviction and sentence is called in question in this appeal. The prosecution has examined 10 witnesses, out of which 2 witnesses PW-7 and 8, Harish and Prema, respectively are the eye witnesses to the incident and other witnesses are circumstantial witnesses.
3. PW–1 is the brother-in-law of the deceased. He receives the information hearsay from PW-7 and 8, Harish and prema that the accused kicked on the private part of the deceased. Thereafter he went to the police station and lodged a complaint as per Ex.P.1. What has been written in the said Ex.P.1 is only with regard to the existence of a dispute between the deceased and the accused with reference to some amount due by the accused for having consumed tea in the shop of deceased Velayudhan. It is stated by PW-1 that as the deceased had received a low on his private part he was admitted to the hospital and he was brought back from the hospital to house and on the next day he died in the house. It is stated by him that the scrotum of the deceased was swollen.
4. PW-2 Somashekar spoke about the incident and presence of other witness PW–10 and 11 and the accused kicking the deceased. But further he has not stated that what is the reason for the accused kicking the deceased. He is also a witness to Ex.P.2 – spot mahazar. In the course of cross-examination he specifically stated that he has not witnessed the quarrel. However he stated that the deceased was already lying on the ground when he reached the spot.
5. PW-3 is another hearsay witness and he has also a witness to Ex.P.2 - spot mahazar and Ex.P.3 – inquest mahazar. He never stated anything about the accused, non implicating him to the crime. PW-4 Radha is the wife of the deceased. She stated that she came to know about the quarrel between the deceased and the accused. However she enquired with the deceased as to what happened and thereafter the deceased told her that, the accused kicked him because the accused has not paid the tea money and because he asked him for the money, the quarrel started. Though she is hear say to the incident but, the evidence given by her can be relied upon because immediately after the incident, the natural conduct of the deceased shows that he has informed his wife about the incident though this cannot be considered as a dying declaration. Nevertheless the immediate act of the deceased and the other witnesses can be relied upon, which happened in a natural course.
6. PW-5 N.K. Gopala is also hearsay witnesses. He came to know about the incident when he enquired about the incident in the village. PW-6 is also a similar witness as that of PW-5, who is also a hearsay witness and no reliance can be placed upon. PW-7 and 8 are the important witnesses who are close relatives of the deceased PW–7 is the son of the deceased and is an eye witness and PW–8 Prema who is the sister of the deceased, who are the persons actually present at the time of the incident. They have specifically stated that on the date of the incident the accused came to the shop of the deceased and consumed tea and he did not pay the money. When the deceased asked him to pay money, suddenly the accused picked up quarrel and due to the sudden quarrel he gave only one blow by kicking on the private part of the deceased and also it is stated that the accused has abused the deceased.
7. In the cross-examination more concentration has been bestowed in detail on the alleged complaint. But there is no material elicited during the cross–examination as to why these witness have to be disbelieved. No doubt in the course of cross-examination PW.7 it was suggested that he is not an eye witness and that the deceased did not die due to the kicking by the accused. Similarly PW-8 has stated the same factual aspects. Therefore there is no reason to disbelieve these two witnesses as there is nothing worth elicited in the cross examination to totally discard the evidence of these witnesses.
8. On taking us through the evidence of PW-9, the learned counsel for the appellant submits that, no specific cause of death has been given by the doctor in the post mortem report, which is marked as Ex.P.4. The doctor has relied upon the RFSL report as per EX.P.5 and report of KMC College, Mangalore as per Ex.P.6. There is no mention of specific cause of death of the deceased, thus it is argued that, the prosecution has failed to prove the homicidal death of the deceased, therefore based on the evidence given by PW-9, the accused is entitled to be acquitted. We have carefully perused the evidence of the doctor. Of course he has not given any specific cause of death. Nevertheless he has stated that if a person is kicked on the private part, such death can occur. Though the specific cause of death is not mentioned, the eye witness’s version are there and surrounding circumstances are available with regard to the accused visiting the shop of the deceased Velayudhan and consuming tea and about the conservation that took place and thereafter the accused abusing the deceased in filthy language and kicking on the private of the deceased. Though there are some deficiencies in the evidence of PW-9 in not mentioning the specific cause of death of the deceased, but he has stated that such death may happen if a person without his knowledge kicked on the private part of the deceased. Therefore in our opinion the eye witness’s version is therefore believable though the medical evidence is not fully supporting. Normally when medical and ocular evidence are in different the eye witness’s version has to be preferred. Therefore we do not find any strong reason to discard the case of the prosecution merely because of the above.
9. PW-10 is the person who registered a case after receiving a report as per Ex.P.1 and dispatched the FIR as per – Ex.P.8 to the court, he has also drawn the, Spot Mahazars –Ex.P.2 and Ex.P.3. He has also recorded the statements of the witnesses. Nothing has been elicited in the course of the cross-examination as to why the above discussed evidence has to be disbelieved. In the absence of any strong material evidence elicited in the course of cross examination of any witness, in our opinion, the evidence adduced by the prosecution deserves to be accepted. Therefore we are of the opinion that, the trial court has properly and correctly convicted the accused person for the offence under Sec.504 IPC.
10. The question that remains for consideration is that whether the accused has committed the offence under Section 302 of IPC. Again we have bestowed our attention to the evidence of the eye witnesses. In fact PW-7 and PW-8 have stated in their evidence that, on that particular day the accused came to the canteen of the deceased and he was infact drunk on the particular day. After consuming tiffin and tea, the accused refused to pay the bill amount. When the deceased demanded for money, the accused abused him in filthy language and in that context, the father of PW-7 i.e., the deceased has demanded for money, When the accused stated abusing the deceased and in turn the deceased also questioned, him as to why he cannot pay the money and in turn abused the deceased, in that context. Suddenly the accused caught hold the deceased and kicked him on the private part. So in the above said circumstances spoken to by PW-7 and 8 clearly disclosed that when the accused had been to the shop of the deceased Velayudhan, he might not have any intention to cause any injury or even to commit the murder of the deceased. It appears that suddenly when the deceased asked for the money, he provoked himself and done such particular act against the deceased. Therefore in our opinion in the absence of any intention and specific knowledge that such blow is sufficient to cause the death of a person, the accused might not have any other intention to cause the death of the deceased.
11. Under these circumstances, it is worth to mention here a decision of the Hon’ble Apex Court reported in AIR 2004 SC 504 wherein the Honb’le Apex Court dealt with a case similar to this particular case. Wherein it is said that,
'Where the accused during the quarrel suddenly took axe and gave solitary blow on the back of head of the deceased resulting into his death. Medical evidence not showing that injury inflicted by itself would be sufficient in ordinary course to cause death. Accused could be imputed with knowledge that injury inflicted by him was likely to cause death. Conviction altered form Section 300 to one under Section 304, Part II of IPC.'
12. If the above factual aspects of that case as pointed out by the Apex court is applied to this case, in this case also the medical evidence is not so supportive of the prosecution case. On the other hand, the eye witness’s version also show that the incident happened in the sudden and for a moment due to provocation, by the accused himself. Therefore we are of the opinion the conviction recorded by the trial court under Section 302 may not be proper. However the prosecution case even accepted as it is it falls under Section 304 Part 2 of IPC for which the accused is liable to be convicted.
13. As the learned counsel strenuously contend that the accused was arrested on 3.3.2008 and released on 14.08.2008. Again he was arrested on 09.09.2001 and since then he has been in judicial custody. Therefore he has already undergone imprisonment for 6 years, 9 months and 3 days and the learned counsel seeks for a sentence equivalent to the period already undergone. We do not find any unreasonable demand made by the counsel in this regard. Therefore considering the status of the accused and the status of the family of the deceased and the surrounding circumstance, we are of the opinion that the period already undergone by him is sufficient because he has already undergone nearly seven years in jail and therefore giving set off of the period would be appropriate.
14. Therefore we feel it just and necessary to sentence the accused to undergo seven years of imprisonment for the offence under Section 304 part B of IPC which would meet the ends of justice. Hence, we proceed to pass the following:
i. Appeal is partly allowed.
ii. The judgment of conviction and sentence so far it relates to Section 504 of IPC is not disturbed
iii. The judgment of conviction and sentence passed by the trial court under Section 302 is hereby modified. The accused is convicted for the offence Under Section 304 Part II IPC and sentence to undergo imprisonment for a Period of seven years. Both the sentence shall run concurrently. The Accused shall pay a fine of Rs.10,000/-, in default he shall undergo simple Imprisonment for six month and the fine imposed under Section 504 shall Run consecutively. The accused is entitled for set off for the period already Undergone by him in the jail.
iv. Accordingly the appeal is disposed of.