Karnataka High CourtState Of Karnataka, vs Yallappa S/O Fakirappa Hugar, on 15 September, 2018Bench:L.Narayana Swamy,B.M.Shyam Prasad1




          IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

     DATED THIS THE 15TH DAY OF SEPTEMBER, 2018
                        PRESENT
     THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
                           AND
     THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
           CRIMINAL APPEAL NO.100213/2014
                        C/W
           CRIMINAL APPEAL NO.100218/2014

IN CRL.A.NO.100213/2014

BETWEEN:

STATE OF KARNATAKA
REP. BY THE NAREGAL POLICE
THROUGH THE ADDL. STATE
PUBLIC PROSECUTTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                         ...APPELLANT
(BY SRI. V.M. BANAKAR, ADDL. SPP)

AND:

1.     YALLAPPA S/O FAKIRAPPA HUGAR,
       AGE:49 YEARS, OCC: AGRICULTURE,
       R/O HOSALLI VILLAGE,
       TQ: RON.

2.    SMT. CHANNAVVA W/O YALLAPPA HUGAR,
      AGE: 41 YEARS, OCC: COOLIE,
      R/O HOSALLI VILLAGE,
      TQ: RON.
                                     ...RESPONDENTS
(BY SRI. K.L. PATIL, ADV.)
                              2




      THIS APPEAL IS FILED UNDER SECTION 378(1) & (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER PASSED IN SC NO.26/2013 ON
14.07.2014 ON THE FILE OF ADDL. DISTRICT AND SESSIONS
JUDGE, GADAG AND SET-ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 24.07.2014 SO FAR IT RELATES TO
RESPONDENTS/ACCUSED NO.1 AND 2 PASSED BY THE ADDL.
DISTRICT AND SESSIONS JUDGE, GADAG IN SC NO.26/2013,
AND CONVICT THE RESPONDENTS/ACCUSED NO.1 AND 2 FOR
THE CHARGED OFFENCES.

IN CRL.A. NO. 100218/2014

BETWEEN:

BASAVARAJ S/O YALLAPPA HUGAR
AGE: 21 YEARS, OCC:COOLIE,
R/O HOSALLI VILLAGE, TQ:RON,
DIST: GADAG.
                                            ...APPELLANT
(BY SRI. K.L. PATIL, ADV.)

AND:

THE STATE OF KARNATAKA
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA.
                                         ...RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL. SPP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(1)
OF CR.P.C. SEEKING TO SET-ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 24.07.2014 PASSED BY THE
ADDL. DIST. AND SESSIONS JUDGE, GADAG IN SC NO.26/2013
FOR THE OFENCES PUNISHABLE UNDER SECTION 302 OFIPCAND ACQUIT THE APPELLANT OF THE OFFENCES PUNISHABLE
UNDER SECTION 302 OFIPC.

       THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR    JUDGMENT ON 09.07.2018 AND COMING ON FOR
                                3




PRONOUNCEMENT, THIS DAY,             B.M.   SHYAM   PRASAD     J.,
DELIVERED THE FOLLOWING:


                    COMMON JUDGMENT


     These    two    appeals       are   filed   impugning    the

judgment dated 24.07.2014 in SC No.26/2013 on the

file of the Addl. District and Sessions Judge, Gadag (for

short, 'Sessions Court'), and the Sessions Court has

convicted accused No.3 (the appellant in Crl. A. No

100218/2014) for the offence punishable underSection

302of IPC and the accused (including accused No. 1 &

2 who are the parents of accused No.3) are acquitted of

the offences punishable underSections 324,354,504,506read withSection 34of the Indian Penal Code (IPC).

Accused No.1 and 2 also acquitted of the offence

punishable underSection 302of IPC.               The Sessions

Court   has   sentenced    the       accused      No.3   to   life

imprisonment and fine of Rs.5,000/- with default

sentence of simple imprisonment of one month.                 The

Accused No.3 (hereinafter referred to as 'appellant-
                              4




accused'), who was taken into custody immediately after

the initiation of investigation, has been in incarceration

over a period of five years and continues to be

incarcerated. The appellant - accused has filed appeal

in Crl.A. No. 100218/2014 impugning his conviction

and sentence and the State has filed the appeal in

Crl.A.No.100213/2014       impugning    acquittal     of   the

accused Nos.1 and 2 (hereinafter referred to as 'accused

- parents'). The accused Nos.1 to 3 are together referred

to as 'accused'.


     2.    A summary of the prosecution's case, with

the necessary essentials, is as stated hereinafter.


     3.    The deceased, Smt. Renavva, and her family

and accused lived as neighbors and there was ill-will

between   these    two   families   because   the   accused

suspected that the deceased and her family, to harm

them, practiced black magic.        The accused suspected

that the deceased and her family members indulged in
                               5




black magic practices because the deceased and her

family members would hang certain clothes on the

clothesline between their residences. On 18.01.2013 at

about 4 p.m., a quarrel broke out between the

accused/accused-parents and the deceased's daughter,

Smt. Basavva (PW 1-complainant) because the accused

alleged that the complainant/deceased despite protests

had hung certain clothes as part of some practice in

black magic. The accused abused the deceased in filthy

language, disturbed peace and attempted to outrage the

modesty of one of the daughters of the deceased, and

the accused, with the common intention of murdering

the deceased, assaulted the deceased on her head with

the handle of an axe and also assaulted the deceased

and her daughters/daughter-in-law with thorny sticks

threatening them with danger to their life.


      4.    The deceased suffered head injury and the

daughters/    daughter-in-law     suffered   certain   minor

injuries,   the   neighbors   intervened     and   later   the
                             6




deceased was taken to Taluka hospital at Ron, Haveri

District by an Ambulance.       The doctors in the Taluk

Hospital    at    Ron     advised      the    deceased's

daughter/complainant/PW1 and others to shift the

deceased to the District Hospital at Gadag. Accordingly,

the deceased was shifted to the District Hospital at

Gadag at 6.50 p.m. on the same day, but the deceased's

health deteriorated overnight and she breathed her last

in the afternoon on the next day i.e. 19.1.2013 at about

12.30 p.m., and thereafter, with the assistance of an

acquaintance (PW6), who was calling on the deceased

and her family at the hospital to know about the

injuries, the complaint (EX. P1) was drafted and lodged

with the police at about 2.30 p.m., which is registered

as Crime No.5/2013.


     5.    The    jurisdictional     police   conducted

investigation and filed Final Report against the accused

for the offences punishable underSections 324,354,7302,504and506read withSection 34of IPC; and the

accused were accordingly charged, but the accused

denied the charges; and therefore, the Sessions Court

commenced the trial.



     6.   The prosecution in support of its case

examined the complainant (daughter of the deceased

and one of the injured) as PW1, inquest and the spot

panchanama witnesses as PW2 and PW3 respectively,

an Engineer, who drew sketch of the place of the

occurrence, as PW11, a Forensic Science expert as

PW15, the Investigating Officer as PW13, other police

personnel as PW16, 17 and 18 and the eye-witnesses as

PW5, PW7, PW8, PW9 and PW10. The prosecution also

examined the scribe of the complaint as PW6. Amongst

the witnesses examined by the prosecution as eye-

witnesses, PW1 (Complainant), PW7 and PW9 are the

daughter and daughter-in-law of the deceased.
                            8




     7.   The Sessions Court on appreciation of the

evidence concluded that the prosecution had not

succeeded in establishing the charges against the

accused (appellant - accused and the accused - parents)

insofar as the offences punishableSections 504,324,354and506of IPC, but as regards the offence

punishable underSection 302of the IPC, the Sessions

Court concluded that the prosecution's case as against

the appellant - accused for the offence punishable

underSection 302of IPC was established beyond all

reasonable doubts holding that there was definite

evidence as regards the injury to the deceased, the

reason for the demise of the deceased and the specific

overt act by the appellant - accused in assaulting the

deceased on her head with the handle of an axe, despite

some discrepancies in evidence.    The Sessions Court

acquitted the accused-parents concluding that no case

was made out against them even as regards the offence

punishable underSection 302of IPC.
                                  9




        8.      The   learned   counsel    appearing    for   the

accused (appellant - accused and the accused - parents)

in the appeal filed by the State contended that there is a

substantial delay in lodging of the complaint - Ex. P1

and consequential registration of the FIR - Ex.P24, the

investigation is tainted, there is no evidence as regards

the motive and there are material discrepancies as

regards the alleged assault, medical evidence and the

ocular evidence that go to the root of the Prosecution's

case.        The learned Counsel also contended that the

evidence on record demonstrates that the Police Sub-

Inspector (PW17) was informed about the alleged

occurrence       on   the   date     of   the   occurrence    viz.

18.01.2013 and that the Police Sub Inspector (PW 17)

had deputed one Assistant Sub-Inspector (PW16) to visit

the place of occurrence and visit the deceased in the

District Hospital at Gadag on 18.01.2013 and made

entry in this regard in General Diary.                 But, the
                            10




complaint was registered only at about 2.30 p.m. on

19.01.2013 purportedly on receipt of information from

the complainant about the occurrence as per Ex.P1 and

General Diary is neither produced nor other witnesses

have spoken about such entries in the General Diary.

According to the learned counsel, the aforementioned

circumstances establish deliberate delay in registering

the first information and also render the investigation

tainted giving room to a greater suspicion that the FIR

is registered against the accused after due deliberation

with embellishments and improvements to implicate the

accused in the case.


     9.    The learned counsel further submitted that if

the testimonies of the eye-witnesses - especially the

complainant (PW1), other daughter (PW7) and the

daughter-in-law(PW9) -are viewed in the context of the

serious doubts in the prosecution' case because of the

possibilities of deliberations and embellishments (with
                             11




such doubt being inevitable because the FIR is not

registered at the earliest and there is delay in lodging of

Ex- P1), the investigation is undoubtedly tainted and

untrustworthy.


     10.   The learned counsel emphasized that as per

Ex.P14 - a Medico-Legal Cases Register Extract from

the Taluk Hospital at Ron - the deceased was taken to

the hospital at 5 p.m. and as per Ex.P14 (In-patient

Case Sheet with the District Hospital at Gadag which is

available in the records as part of Ex.P14) the deceased

was admitted at 6.50 p.m. with the history of assault by

stick and sutured wound because of the injuries in the

temporoparietal region, but neither the Case- Sheet nor

any other material from the Taluk Hospital at Ron is

marked.    The learned Counsel contended that such

records were vital as they would contain the very first

narration as to the reason and history for the injury;

and the prosecution has deliberately not produced such
                            12




material because the prosecution wants to suppress the

history as related at the Hospital at Ron which would

have demonstrated that none of the accused were

responsible for the demise of the deceased.


     11.   Further, the learned counsel submitted that

according to the prosecution's case, as spoken by PW1,

PW7, PW9 and another eye-witness, these eye-witnesses

also suffered injuries because the accused assaulted

them and as proof of that Exs.P17, P18 and P19, which

are Wound Certificates issued by the Chief Medical

Officer of the Taluk Hospital at Ron, are marked; and if

indeed these witnesses had suffered injuries and taken

treatment as asserted, the same would be reflected in

the Medico-legal register (Ex.P14) especially because

these witnesses, it is asserted, were treated for the

injuries simultaneously when the deceased was treated

at the first instance at the Taluk Hospital in Ron, but

there is no such entry in Ex.P14. Even otherwise, these
                                   13




Wound      Certificates    are    replete   with   the    material

contradictions.


     12.     In addition, the learned counsel relied upon

different decisions of the Hon'ble Supreme Court and

this Court, as regards the implication of a tainted

investigation,     delay         in    registration      of   FIR,

commencement of the investigation without registration

of the FIR and the appreciation of inconsistent evidence

as regards the injury found on the deceased and the

alleged assault/weapon used for causing such wound.

The Learned Counsel for the accused has relied upon

the following decisions:


        1. State of Andhra Pradesh vs. Punati Ramulu AIR
             (1993) SC 2644,
        2. (1994) 5 SCC 188- Meharaj Singh (L/Nk.) Vs.
             State of UP (Para 12),
        3. Criminal Appeal No.165/1971 - Thulia Kali vs.
             State of Tamil Nadu (Para 12),
        4. (2007) 12 SCC 641 - Dilawar Singh Vs. State of
             Delhi (Para 5, 12, 15 and 16)
                                  14




        5. (2008)      15   SCC       582   -   State    of    A.P.    Vs.
             Madhusudhan Rao. (Para 23 to 29)
        On the point of Direct Evidence inconsistent with
        Medical Evidence
        6. (1987) 1 SCC 679 - Amar Singh and others Vs.
             State of Punjab (Para 10),
        7. 1994 Supp (2) Supreme Court Cases Page 289 -
             Mani Ram Vs. State of U.P. (Para 9),
        8. H.C.      Karigowda      @    Srinivasa      Vs.    State    of
             Karnataka, Karnataka High Court (4th Jan,
             2013)
        9.    Yallappa S/o Siddppa Timmapur Vs. The State
              of Karnataka, Karnataka High Court (23rd Feb,
              2018),
        10. Laxman S/o Rangappa Kankani Vs. The State
              of Karnataka, Crl.A.100010/2014, Karnataka
              High Court (14th Mar, 2017), and
        11. State of Rajasthan Vs. Wakteng, AIR 2007 SC
              2020,
        12. Govindaraju         @       Govinda    Vs.        State    By
              Sriramapuram P.S. & Another on 15th March,
              2012 (SC)


     13.     The      learned       Additional       State       Public

Prosecutor, in support of the appeal filed against the

acquittal      of       the         accused          parents           in
                              15




Crl.A.No.100213/2014     and      the   conviction   of   the

appellant, contended that the evidence on record

established even the culpability of the accused-parents

for punishment underSection 302of IPC as the injured

eye-witnesses (daughter and daughter-in-law) and the

husband of the deceased (PW14) have spoken about

motive and assault by the accused and that the

aforementioned eye-witnesses and other eye-witnesses

have consistently deposed about the accused parents

assaulting the deceased and the injured witness.

Therefore, the Sessions Court was not justified in

acquitting   the   accused    parents    for   the   offence

punishable underSection 302of IPC. Insofar as the

arguments of the learned counsel appearing for the

accused, the learned Addl. SPP contended that the

delay, if any, in lodging the first information as per

Ex.P1 was reasonably and justifiably explained by PW1,

who has specifically stated that the relatives,

including other witnesses, at the relevant time were
                            16




more keen on saving the life of the injured. The learned

counsel canvassed that it is settled law that mere delay

in registering the FIR cannot be a ground to debunk the

prosecution's case.


     14.   In response to the submissions that the

evidence on record established that the Police Sub-

Inspector (PW17) was informed about the incident, the

Assistant Sub-Inspector           (PW16) was instructed

to go and visit the place of occurrence and the Assistant

Sub-Inspector called upon the injured (later deceased)

at hospital on 18.01.2013, but no FIR was registered

and it was registered only much later on receipt of the

complaint from PW1 on 19.01.2013 at about 2.30 p.m.

and as such the investigation was tainted and unsafe to

rely upon the investigation to bring in the guilt of the

accused, the learned Addl. SPP contended that the

investigation cannot be held defective, and in any event

a defective investigation is only a reason for the Courts
                             17




to be circumspect in evaluating the evidence but it

would not be right to acquit the accused solely on that

ground. Further, the learned Addl. SPP laid emphasis

on the evidence of PW1, her sister(PW7) and sister-in-

law (PW9) and the medical evidence EX.P13 (PM report)

and the Wound Certificate of the injured witnesses and

the evidence of the Investigating Officer in support of his

case for conviction of even the accused-parents.        The

learned Addl. SPP contended that merely because there

is no independent evidence as regards the motive, it

cannot be a ground for acquittal of the accused, when

there is otherwise sufficient evidence to establish their

culpability for the definite offences.     The Additional

State Public Prosecutor has relied upon the following

decisions:

     1. 1991 Supp(1) SCC 536 (Para-6) Tara Singh &
        Others Vs. State of Punjab,
     2. (2009)   15   SCC   108   (Paras   23   and   24)
        Padmanabhan Vs. State by Inspector of Police,
        Tamilnadu,
                                 18




       3. 1994 Supp (3) SCC 235 (para-6) Sivalingappa
         Kallayanappa and others Vs. State of Karnataka
       4. (2004) 3 SCC 654 (Para 5 to 8) Dharaj Singh Vs.
         State of Punjab, and
       5. (2011) 9 SCC 115 Para 20 State of Rajasthan Vs.
         Arjun Singh and others


       15.   In    view   of   the   rival   contentions,   the

questions that arise for our consideration in these

appeals are, whether the Sessions Court is justified in

convicting the accused/appellant underSection 302of

IPC and whether the Sessions Court should have also

convicted    the     accused-parents         for   the   offence

punishable underSection 302read withSection 34of

IPC.

       16.   It is obvious from the arguments of the

learned counsel for the accused that there is no dispute

about the homicidal death of the deceased, but the

defense on behalf of the accused is that the deliberate

failure to produce the General Diary to establish the

entries purportedly made by the PSI on 18.3.2013 and
                                19




the failure to register the first information received on

18.01.2013, and the delay in registering the FIR, show

that there were deliberations before registration of the

FIR and embellishments included in the FIR to implicate

the   accused       in   the   case,   and    therefore,    the

investigation, which is tainted and attuned to implicate

the accused, is unreliable and cannot be the basis for

conviction.


      17.     The   canvass    as   regards   the   delay    in

registration of the FIR and the investigation being

tainted is because the Police Sub-Inspector, who is

examined as PW17, has stated in his cross-examination

that he entered the information received about the

occurrence on 18.01.2013 and deputing the Assistant

Sub Inspector (PW16) to visit the place of occurrence

and the hospital in the General Diary. This witness has

also stated that he received the complaint (Ex.P1) from

PW1 when he was at OP Dept. in the District Hospital at
                            20




Gadag and that the complaint was written by the scribe

in his presence and he received it before seeing the body

of the deceased at the mortuary.      The scribe of the

Complaint (Ex.P1), examined as PW6, has stated in his

cross-examination about his prior acquaintance with

the deceased's family, his hobby in writing for journals

and magazines and his acquaintance with the legal

procedure as participant in legal literacy programs.


     18.   As such, there is evidence that the police

received the first information about the incident on

18.01.2013 immediately after the occurrence.           The

entries were made in this regard in the General Diary

but FIR was not registered and the FIR in Crime

No.5/2013 was registered after the receipt of Ex.P1

(Complaint written by PW6 and lodged by PW1) on

19.1.2013 @ 2:45 p.m. and that the Complaint was

scribed by PW6, a journalist by hobby and who was

acquainted with legal processes.     While the accused
                            21




would like to disparage the entire investigation and the

prosecution's case because there is evidence about

delay and that such delay could have been used for

deliberations with the complainant and her family

members to include embellishments to implicate the

accused, the State contends that the delay of 20 and

odd hours is reasonably explained because the deceased

(who was initially treated at Taluk Hospital at Ron and

later shifted to District Hospital at Gadag) suffered

deterioration in health and the family members, who

themselves were injured, were keen on securing medical

assistance than registering the complaint.


     19.   It is settled law that every delay cannot be a

ground to disbelieve the prosecution's case and delay

cannot be fatal to the prosecution's case if there is

reasonable and justifiable explanation; and a useful

reference could be made to the following enunciation of
                                22




law by the Hon'ble Supreme Court in Sahebrao vs. state

of Maharashtra1:

         "We are not providing an exhaustive
         catalogue of instances which could cause
         delay in lodging the FIR. Our effort is to try
         to point out that the stale demand made in
         the criminal courts to treat the FIR vitiated
         merely on the ground of delay in its
         lodgement cannot be approved as a legal
         corollary. In any case, where there is
         delay in making the FIR the court is to look
         at the causes for it and if such causes are
         not attributable to any effort to concoct a
         version no consequence shall be attached
         to the delay in launching the FIR".

        20.   The following recent affirmation of such

proposition in Mukesh versus State (NCT of Delhi)

would also be helpful:2


         "Delay in setting the law into motion by
         lodging of complaint in Court or FIR at

1
    (2006) 9 SCC 794
2
    (2017) 6 SCC page 1
                                    23




          police station is normally viewed by the
          courts with suspicion because there is
          possibility   of      concoction   of   evidence
          against an accused. Therefore, it becomes
          necessary       for     the   prosecution     to
          satisfactorily explain the delay. Whether
          the delay is so long as to throw a cloud of
          suspicion on the case of the prosecution
          would depend upon a variety of factors.
          Even a long delay can be condoned if the
          informant has not looked for implicating
          the accused".


        21.    Therefore, the question that needs to be

examined is whether the prosecution has been able to

establish justifiable reasons to explain the delay in

registering the FIR in Crime No.5/2013. Even as

regards non-registration of the first information, it is

settled that the FIR is not a substantial piece of

evidence and is only a statement underSection 162of

Cr.P.C. subject to the rigors thereof3 and if the


3
    State of Andhra Pradesh Vs. Punati Ramulu, AIR 1993 SC 2644
                                 24




prosecutions' case otherwise is consistent as regards

the culpability of the accused and there is no reason to

infer or doubt deliberations before registering FIR the

prosecution's case should not be entirely discarded

solely on the ground that there is delay in registering

the First Information and that the ensuing investigation

is tainted.     There must be some evidence as regards

embellishments        to   create      doubt   about   a   fair

investigation into the commission of offence by the

police and if the investigation is fair, it cannot be termed

'tainted'. The significance of the entries in the General

Dairy has been considered by the Hon'ble Supreme

Court in its recent decision in State of Karnataka Vs. H.

Srinivas4 in the light of the decision in Lalitha Kumari

Vs. State of MP5 and held that there is an obligation to

maintain and record all events concerning an enquiry in

General Diary, but non-maintenance of General Diary

would not make the investigation per se illegal and the
4
    2018 SCC Online SC 576 (Para 19)
5
    (2014) 2 SCC Page 1.
                                25




consequences of not entering the details of enquiry will

have to be weighed after the trial. Therefore, this Court

will have to examine the evidence in this case to

appreciate    whether    the    investigation   is   fair   and

significance of the prosecution's silence about the

entries in the General Diary.


     22.     A scrutiny of the evidence viz. the evidence of

the eye-witnesses and the medical records establish

that the deceased upon suffering the injuries was

shifted in an ambulance to the Taluk Hospital at Ron,

and she was shifted later to the District Hospital at

Gadag. The doctors at District Hospital Gadag recorded

that the deceased's wound was sutured and that the

deceased's health deteriorated from the early hours of

morning 19.01.2013, and ultimately, she breathed her

last on 19.01.2013 around 12.30 p.m.                 It is also

established that PW1 and other family members were
                             26




accompanying the deceased. In fact, these are not in

dispute.


     23.   These circumstances between 4:00 P.M. in

the evening on 18.1.2013 and 12:30 P.M. on 19.1.2013

definitely establish that the family members prioritized

securing medical aid to save the life of the deceased over

ensuring registration of the information with the police;

and given the turn of events that required the family

members to shift the deceased to two hospitals and the

deceased's deteriorating health conditions over a period

of 20 and odd hours, such prioritization by the family

members would be natural and this by itself cannot be

doubted to hold that the time between the occurrence

and the demise was used to embellish the case to

implicate the accused without the accused being

howsoever involved.     The Learned Additional State

Public Prosecutor's arguments in this regard placing

reliance upon the decision of the Hon'ble Supreme
                                27




Court in Padamanaban Vs. State by Inspector of Police,

Tamil Nadu6 will have to be accepted, and the Hon'ble

Supreme Court has held at para-23 as follows:

               "23. No doubt lodging of a first information
         report at the earliest possible opportunity is
         desirable. But, the courts cannot also ignore the
         ground realities that the relatives of the deceased
         would give priority to the treatment of a severely
         injured person. All attempts would first be made
         to save his life.   The action on the part of the
         prosecution witnesses, in our considered opinion,
         in giving priority to the treatment to the injured
         was wholly justifiable."

         24.   The learned Counsel for the accused has

emphasized on certain circumstances and contended

that these circumstances are material discrepancies,

but the question will be whether those circumstances go

to the very root of the prosecution's case and create

doubt about the Accused's culpability entitling them to

a complete acquittal. The complainant, who is examined

6
    (2009) 15 SCC Page 108
                             28




as PW1, has stated that both the accused No. 1 and 2

assaulted the deceased on her head and also repeatedly

assaulted the deceased and other witness, including her

with a thorny stick, but the PM Report mentions one

wound on the deceased on her right temporoperietal

area. As regards the wound certificates (Ex. P 17 and

P19) states that the injured (witnesses) were examined

at the Taluka Hospital at Ron either immediately after

the occurrence when the deceased was taken there on

18.1.2013 or a day after the registration of the FIR i.e.,

on 20.1.2013.


       25.   The wound certificate (Ex.P17) speaks about

examination of PW1 on the date of the occurrence for

simple injuries suffered in an assault, but the medico-

legal register (EX. P14) does not contain any entry as

regards the injured          (PW1) being treated on that

day.   The other Wound Certificates (Ex. P18 and P19)

are a day after the registration of the FIR in Crime
                               29




No.5/2013.    The   learned        counsel   emphasizes    the

differences in the Sketches (Ex. P6 & Ex. P8) of the

location of the respective houses prepared by the

Engineer (PW11) and the Police (PW13) and he also

emphasized that the scribe of the complaint - Ex P1-

was acquainted with the legal procedure and interested

in writing and that the eye-witnesses had spoken

differently about the assault by the accused.             It is

because of these circumstances, it is contended that

there is every possibility of the accused being implicated

after deliberations, and therefore, the Accused are

entitled to be acquitted.


     26.   These circumstances do not detract the

evidence as regards the consistent testimony by the

witnesses about the Accused - appellant inflicting fatal

injury on the deceased, the redoubtable Doctor's

evidence and the Post Mortem Report about the cause

for the death of the deceased.           However, given the
                              30




inconsistencies in the account of the assault by the

witnesses (PW1, PW7 and PW9) as regards the Accused

- father (Accused No. 1) also assaulting the deceased on

the head and the Accused - Parents assaulting the

deceased, and the injured witnesses, with thorny sticks,

the tenuous medical evidence about the simple injuries

suffered by these Witnesses and lack of evidence of

strong motive do create doubt about the culpability of

the Accused - Parents.            Therefore, this Court is

persuaded to hold that the Accused - Parents have been

rightly acquitted by the Sessions Court.


     27.   The    evidence        (as   spoken   by    the

daughters/daughter-in-law of the deceased) establish a

lurking disquiet between the families because of a

grouse borne by the Accused against the deceased's

family members suspecting that they were trying to

subject the Accused to effects of black magic and break

out of an altercation between the families on the fateful
                               31




day resulting in the Accused - appellant assaulting the

deceased on her head with the handle of an axe, a blunt

object readily available in any house in countryside.

This evidence, however, is not sufficient to hold that

there was any premeditation or intention to do away

with   the   deceased's   life.    It   is   noted   that   the

Witness/Witnesses (PW1, PW7 and PW9) have stated

that the neighbors separated the members of the two

families when the deceased was assaulted on the head

by the accused - appellant, the deceased was walked

into her residence and thereafter they secured the

ambulance to shift the deceased to the Taluka Hospital

at Ron. The Sessions Court has failed to appreciate this

evidence in proper perspective and the conclusion by

the Sessions Court as regards the Accused - Appellant

being guilty of murder is illegal and perverse. As such,

the Accused - appellant could only be held guilty of

culpable homicide not amounting to murder and

punishable under Part II ofSection 304of IPC.             The
                                    32




Accused - appellant has been incarcerated for over 5

years. i.e., from the date he was firstly taken into

custody     by      the   police        and,   in   the   facts   and

circumstances, the sentence should be confined to the

sentence already undergone by the Accused - appellant

(Accused No. 3) as of this date. Therefore, this Court is

accordingly      persuaded         to     modify    the    impugned

conviction and sentence and pass the following:


                               ORDERThe Appeal by the State in Criminal Appeal No.

100213/2014 is dismissed.The Appeal by the Accused - Appellant (Accused

No. 3) in Criminal Appeal No. 100218/2014 is allowed

in part and the conviction and sentence of the Accused

by the Sessions Court in SC No.26/2013 is modified

and the Accused - Appellant (Accused No. 3) is

convicted     for    offence       of    culpable    homicide     not33amounting to murder under Part II ofSection 304of IPC

and sentenced to imprisonment for the period for which

the accused is in detention, and such period is set off

for the period of detention already undergone as

contemplated underSection 428of the C0de of Criminal

procedure. The Accused - Appellant (Accused No. 3) is

also sentenced to pay a fine of Rs.5000/- and the

Accused - Appellant (Accused No. 3), if not already paid

such amount after the conviction, shall pay such

amount.Sd/-JUDGE




                                    Sd/-JUDGE




JTR*