1. The appellant though acquitted by the learned sessions judge, Dakshina Kannada, Mangalore in sessions case No. 54 of 1990 of the charge for the offence punishable under Section 302 of the Indian Penal Code for having fatally assaulted his younger brother John D' Souza with a kathi on his neck at 8.15 a.m. on 26.4.1990 near the store room inside their house had to come to this Court in view of the reversal of the order of acquittal by the High Court of Karnataka in criminal appeal No. 671 of 1996 and as a consequence being convicted under Section 302 IPC and sentenced to undergo life imprisonment.
2. Shorn of all greater details the sum and substance of the matter as reflected from the evidence on record is that the appellant with his wife, his father, mother, youngest sister and the two brothers Ronald and the deceased John were living in the same house, that the appellant being the eldest was entrusted by the father with the management of the agricultural land and the household, that in course of such administration misunderstandings appears to have surfaced leading to some extent of grouse resulting even in litigation before a civil court and as such one or the other seem to be arrayed against every one else in their dealings with the other. As misfortune would have it, on the fateful day the trouble seems to have triggered with both the groups putting a lock of their own one by the father and the deceased and the other by the appellant on the store room where the substantial number of coconuts, plucked from the garden, were stored. In the altercation which was said to have followed because both sides actually started challenging the right of the other to lock the store room and tried to break the lock of the other a tussle ensued between the victim and the appellant resulting in physical manhandling and in the process the appellant was said to have wielded kathi by inflicting cuts on the neck of the deceased. The defence story with reference to the actual occurrence among other details of his case was found disclosed in a lengthy written statement filed by the appellant under Section 233(2) read with Section 313 of the Code of Criminal Procedure and it could be seen from the same that though the salient features of what has been said above has been broadly and generally accepted, so far as the actual injury caused to the deceased is concerned it was the case of the appellant that Bonaventure Roche -the brother-in-law of both took up the kathi and threw it at them when the deceased and the appellant were grappling with each other and the kathi fell on the deceased causing injury in the result.
3. Before the trial court the prosecution had examined PWs 1 to 15, in addition to marking exhibits P-1 to P-29 and MOs 1 to 15. The appellant also got DWs 1 to 7 examined on his behalf, in addition to marking exhibits 1 to 12. After considering the material on record the learned trial judge carried away by some of the discrepancies or additions and inconsistencies noticed by him in the evidence thought fit to reject the evidence of PWs 1 and 2 the sister and the mother respectively of the appellant and the deceased. The trial court also drew support for its conclusion to discard the evidence of PWs 1 and 2 from the non-examination of the father who also was said to have been present on the spot at that time. Ultimately, the trial judge, keeping in view, also the admitted misunderstandings between the parties had returned a verdict of acquittal on the view that the real story has not been brought properly before the court.
4. When the matter was taken up before the High Court in appeal the learned judges of the division bench adverted to the entire material on record at length and after adverting to the main reasons which weighed with the trial court to acquit the appellant and dispelling the same by pointing out the serious infirmities and grave errors in the approach of the trial court found that there was no justifiable or reasonable ground for the trial court to disbelieve the evidence of PWs 1 and 2, especially, when there was ample corroboration from the other attending circumstances and materials placed on record. On that view of the matter the High Court undertook an independent scrutiny and assessment of the entire materials and placing reliance upon the evidence of PWs 1 and 2, which in the opinion of the High Court, was not only found to be truthful but also inspired confidence for its acceptance, reversed the acquittal by convicting the accused, as noticed earlier.
5. Mr. D.P. Chaturvedi, learned counsel appearing for the appellant strenuously contended before us that having regard to the materials on record substantiating the misunderstanding between the parties and the attempt of the complainant group to eliminate the appellant from the management of the properties, he has been falsely implicated taking advantage of the unfortunate circumstance, which according to the case of the appellant happened in the way it was narrated by him though he was not really responsible for the murder of the deceased. Argued the learned counsel further that the reasons assigned by the learned trial judge to record an acquittal by exonerating the appellant are well merited and the High Court went wrong in reversing the acquittal as if it was permissible for the High Court to take a different view merely because there was some possibility for another view on the very facts. In support of the stand taken for the appellant we have been taken through the relevant portions of the judgment of the trial judge as well as that of the High Court. Per contra, Mr. Siddharth Dave, learned counsel appearing for the respondent-state while inviting our attention to the portions of the judgment of the High Court tried to demonstrate as to in what form and manner the findings recorded by the learned trial judge suffered from serious infirmities and perversities due to patent misreading and an unreasonable miss-appreciation and perfunctory consideration of the evidence on record which according to the learned counsel justified the exercise undertaken by the High Court to embark upon an independent appreciation of the materials to arrive at its own findings in respect of the guilt of the appellant.
6. On a careful consideration of the relevant materials on record to which our attention has been pointedly referred to we are of the view that the High Court cannot be found to have exceeded its peripheral limits stated in various pronouncements for interfering with the order of acquittal passed by the trial court while dealing with the appeal against such order of acquittal. The reasons assigned by the learned trial judge to disbelieve and totally reject the evidence of PWs 1 and 2 are not only too general but flimsy which cannot be sustained as tenable reasons in the eye of the law. The non-examination of the father whom the appellant could have also summoned as he did of others including his one brother, the ill will both sides seem to have mutually carried for the other cannot by themselves be sufficient reasons when admittedly the whole episode was inside the house and in the presence of family and other related members. Perfunctory consideration and perversity of approach in unduly magnifying insignificant aspects appear to be patently on record in the judgment of the trial court. On the other hand the learned judges in the High Court have assigned, in our view, sufficient reasons as to why the testimony of PWs 1 and 2 can and ought to be relied upon. The evidence of PWs 1 and 2 has been rightly held to be most natural and proper and truthful to be acted upon and warrant a reversal of the order of acquittal by the High Court. The nature of the injuries found and the manner in which it was stated to have been inflicted by the appel-lant as spoken by PWs 1 and 2 were sufficiently found to accord with the medical opinion and stand fully corroborated by the evidence of PW6, the doctor who was examined and other innumerable factors highlighted by the High Court, which were found conveniently to be wholly ignored by the trial court. In a peculiar case of the nature there should be a sincere, effective and reasonable attempt by the courts to sift and analyse the materials to segregate the incorrect or unbelievable portions to find out the actual truth, unless it was found to be impossible and the whole evidence seem to be tainted to the core, We are in entire agreement with the approach, process of reasoning and the ultimate conclusions and findings arrived at by the High Court to indict the appellant of the offence and convict him.
7. The learned counsel for the appellant in the alternative has made a submission that, at any rate, the facts even held proved, could not be considered to be just and sufficient to warrant a conviction under Section 302 IPC and if at all conviction under Section 304 part II IPC alone could have been rendered possible. Though the learned counsel for the respondent - state strongly insisted that keeping in view the gravity of the offence and the brutal manner in which it has been committed with the background of animosity and ill-will there was no need for altering the nature of offence and that the finding of the High Court in this regard may not call for any interference. As noticed earlier and having regard to the materials and the evidence on record as spoken to even by the prosecution witnesses there does not appear to be any premeditated plan or intention to either put an end to the life of the deceased or cause any injury with the intention of causing his death or causing such bodily injury which within the knowledge of the accused was likely to cause his death even in the ordinary course of nature.
Irrespective of the silent nature ill-feelings which existed between the parties, it appears to have surfaced with a violent turn on the fateful day due to sudden quarrel which even according to the prosecution witnesses, commenced with an altercation and attempts to break open the lock which was said to have been placed on the door of the store room by the appellant in addition to the one part by the father and the deceased. In the tussle and altercation and an attempt to break the lock by the deceased with an hammer in his hand and attempts made by the appellant to physically prevent the deceased from so doing, and physical use of force in the process, passions seem to have flared up beyond proportion all of a sudden, perhaps neither anticipated nor intended by either of them. The prosecution version itself lends credence and support to the plea of sudden provocation on the spur of moment. Therefore, we are of the view that the High Court was not right in arriving at the conclusion to convict the appellant under Section 302 IPC. In our considered view, on the proved facts the only offence that could reasonably be said to have been made out and for which the appellant could be convicted would be under Section 304 part II IPC and to this extent we partly allow the appeal and set aside the order of conviction under Section 302 IPC and instead convict him un-
der Section 304 part II IPC.
8. So far as the quantum of sentence is concerned, keeping in view that it is purely a family affair and what has happened seem to have happened on the spur of the moment between parties, in either side losing their temper and allowing their ill feelings to surface and also keeping in view the submission of the learned counsel for the appellant that the appellant has by now partially lost his eye sight and hearing capacity and himself undergone sufficient sufferings to repent four years sentence of rigorous imprisonment to the appellant will sufficiently meet the ends of justice. Consequently, the appellant will undergo the remaining period of sentence before being released. The appeal shall stand partly allowed on the above terms.