SHEEBH AHMED Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal by accused nos. 1 to 3 in Sessions Case 87/1995 is filed being aggrieved by the judgment of conviction and sentence dated 2-2-2002 passed by the learned Additional Sessions Judge, mandya, wherein accused Nos. 1 to 3 have been found guilty of the offence punishable under Section 304, Part II of the Indian Penal code and sentenced to undergo rigorous imprisonment for a period 5 years each and also to pay fine of Rs. 20,000/- each and in default of payment of fine, to undergo rigorous imprisonment for one year and it is further ordered that if the fine amount is deposited, a sum of Rs. 30,000/- shall be paid in favour of pw-6- wife of the deceased namely Kuthejabi as compensation.

(2.) THE essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows : it is the case of the prosecution that on the basis of the complaint filed by PW-3 as per ex.-P4, Crime No. 99/1993 was registered by maddur Town Police against accused Nos. 1 to 3 for the offence punishable under Section 324 read with 34 of the Indian Penal Code and thereafter after the death of the injured, first Information Report was filed for the offence punishable under section 302 read with 34 of the Indian Penal Code. It is averred in the complaint filed by PW-3 that on 2-4-1993 when he was sitting in his shop, his senior uncle Sabulal came to the shop and at about 7. 00 p. m. , accused Nos. 1 to 3 came there and questioned the senior uncle of the complainant Sabulal and there was quarrel between them and accused No. 1 took iron rod lying in the shop of the complainant and assaulted him near the eye brow of the left eye and accused nos. 2 and 3 pushed Sabulal and Sabulal fell down and accused ran away. The complaint was registered by PW-9 on 3-4-1993 at 00. 30 hours and he sent the injured Sabulal to the hospital wherein he was examined by PW-1, who issued wound certificate as per Ex. P-2 and thereafter, at the instance of PW-1 he was shifted to Mandya General Hospital and thereafter to NIMHANS hospital and he succumbed to the injuries and died on 4-4-1993 and thereafter offence under Section 302 read with 34 of the Indian Penal Code was included. Post-mortem- examination was conducted and report was secured as per Ex. P-14. Further investigation of the case was taken over and charge-sheet was filed by PW-13, who was working as CPI at Maddur Circle, for the offence punishable under Section 302 read with 34 of the Indian Penal Code. The case was committed to the Sessions Court and charge was framed against the accused for the offence punishable under Section 302 read with 34 of the Indian Penal Code. All the accused pleaded not guilty and claimed to be tried. The prosecution examined PWs-1 to 13 and got marked Exs. P-1 to 14 and M. Os. 1 to 3. The statement of the accused under section 313 of the Code of Criminal Procedure was recorded. The defence of the accused is one of denial. The accused did not lead any defence evidence.

(3.) THE trial Court after considering the contentions of the learned counsel appearing for the parties, in its judgment dated 2-2-2002 framed the following points for determination.