STATE Vs. RAMU THALAPPA KAMBLE

JUDGEMENT

(1.) THE State of Karnataka has assailed the correctness of the order passed by the Trial Court in S. C. No. 30 of 1994, dated 16-3-1995. Three accused persons were charged with having assaulted the deceased Nin-gappa on 25-1-1994 at 4. 00 p. m. at Kajumala Gangoda of Joida Taluk and having caused him injuries as a result of, which he died in the hospital after five days. The accused 1 is the father and accused 2 and 3 are the sons and it is also relevant to mention that the deceased is the step-brother of accused 1. We do not need to recount in detail the evidence because P. Ws. 1 and 2 are the eye-witnesses and they have in the course of the trial deposed to the effect that pursuant to some property dispute, a verbal altercation took place and that the accused 1 picked up a piece of firewood that was lying there and assaulted on the head of the deceased. They have also alleged that accused 2 and 3 assaulted the deceased with their hands and that they were inciting accused 1. The deceased collapsed on the spot and he was subsequently taken to the hospital for treatment. The prosecution has examined the doctor P. W. 7 who has in terms opined that the deceased had sustained fracture of the skull and the post-mortem report which is deposed to by P. W. 8 indicates that there was damage to the brain and that it is because of these injuries that the deceased died. The learned Trial Judge has accepted the evidence and has recorded the conclusion that the injuries sustained by the deceased were at the instance of the accused. He has also recorded the finding that the evidence conclusively establishes that it was accused 1 who used the piece of firewood and that it was the blows inflicted by him that caused the head injuries. The Trial Court however, for a variety of reasons including the fact that the incident seems to have been sporadic, that there is no pre-meditation, that the parties are all villagers and farmers with no criminal background held that on the material before the Court, the accused could only be held liable for the offence punishable under Section 324 read with Section 34 of the IPC and the Court further recorded the finding that the period undergone by the accused in custody would be sufficient sentence. The record indicates that the accused had undergone approximately 3 months and 17 days in custody. The accused having not appealed against their conviction and sentence, the State has assailed the correctness of the verdict of the trial Court, insofar as where a death has occurred the finding that the accused could only be convicted of the offence punishable under Section 324 of the IPC as also the adequacy of the sentence have both been called into question.

(2.) WE have heard the learned Additional State Public Prosecutor as also the learned Advocate who represents the respondents-accused and we have also done a thorough review of the record before us. We have not confined ourselves to only the two limited aspects that are raised by the State but we have also, as of necessity had to review the conclusions recorded by the Trial Court on the basic question as to whether the evidence establishes the charges. We do find that the evidence is consistent, that the evidence is reliable and that the evidence is trustworthy. The Trial Court has carefully considered the different heads of evidence and has held that the medical evidence corroborates the evidence of the eye-witnesses and has therefore, concluded that the injuries were inflicted at the hands of the accused persons. The Trial Court has also held that the accused were acting in furtherance of their common intention. As far as this finding is concerned, we need to observe that even though there is a reference to the effect that accused 2 and 3 had assaulted the deceased with their hands, we see no inter- connection between the action of accused 1 in suddenly picking up a piece of firewood and assaulting the deceased with it and the generality of objective that existed earlier. Under these circumstances, it is necessary to draw a distinction between the individual acts of accused 1 and the limited acts of accused 2 and 3 which had taken place earlier. In this view of the matter, we uphold the conviction of accused 2 and 3 for the offence punishable under Section 324 read with Section 34 of the IPC as also the verdict of the Trial Court that the period undergone by them in custody is adequate sentence for these offences.

(3.) HOWEVER, the Trial Court is clearly in error in having overlooked the medical evidence in this case which very clearly establishes that the blows inflicted by accused 1 on the deceased resulted in fractures of the skull. The medical evidence and the post-mortem report also conclusively establish that the fractures had caused internal damage to the brain and that it was these injuries that resulted in the death of the deceased even though it was after five days. We have carefully ascertained as to whether there were any other circumstances that may have intervened and we find from the record that the medical evidence is very clear that it was the injuries which caused the death of the deceased and nothing else. The question therefore arises as to what would be the liability of the accused 1. It was contended on behalf of accused 1 that the incident was sudden, that there was no preparation or pre-meditation, that it was in the heat of the moment and an argument was also advanced that from the description in the FIR and the evidence, that it further appears that it was the deceased who started the altercation. On a scrutiny of all these factors, the manner in which the incident took place, the type of weapon used, the injuries that have occurred and above all, the circumstances under which these injuries were inflicted, in our considered view, the accused 1 would be liable for the offence punishable under Section 326 of the IPC.