JUDGMENT
M.F. Saldanha, J.
1. The facts of this case present a rather sad state of affairs in so far as the two accused are the young sons of the deceased Putta Naika who was aged about 70 years at the time of his death. It is alleged that on the morning of 16.8.1993 at about 10.30 a.m. the deceased had gone up the hillock and that his daughter-in-law P.W.2 – Sujatha and his wife who is D.W.1 heard him shouting, that he is being beaten by his sons. On rushing to the spot, they found that the two accused who had the handle of pick axe and a short weapon used for plucking arecanut in their hands, they had just assaulted their deceased father and pushed him over. The dece’ased had sustained severe injuries on his head, neck, arms etc., and was carried by P.W.5 and others to the house. He died before they reached the house and ultimately, the son -P.W.1 who returned only in the afternoon made his way to the Vittal Police Station where he lodged a complaint late in the evening. In the complaint, he has pointed out that the accused who are his brothers had been insisting that the property be partitioned but that the deceased father was adamant about the fact that he was against it during his life time and that this could be done after his death. According to him, the accused had assaulted the deceased for this very reason a few minutes earlier but the deceased father had objected to the matter being reported to the Police as it was a family dispute. The accused came to be arrested, they were charge-sheeted and put up on trial. The learned trial Judge accepted the prosecution evidence and convicted the two accused of the offence of murder and awarded them a sentence of R.I. for life. The present appeal is directed against that conviction and sentence.
2. Mr. Deshpande, learned Counsel who appears on behalf of the appellants’ has taken us through the entire record, he submits that P.W.1 who is the son has only secondary knowledge of the incident as according to him, he came to know of what had happened on enquiries with his mother. The learned Counsel submitted that it is therefore necessary to look to the evidence of the mother who has been examined as D.W.1. She has very clearly stated in her evidence that the deceased had fallen down and had sustained some injuries on his person and when she asked him as to how this had happened, he told her that he had fallen from a tree. Learned Counsel submits that if the deceased had sustained such a fall, having regard to his age and physical condition that these injuries could have been caused and that possibly he was trying to make his way to the house when he was found. Secondly, Mr. Deshpande heavily relies on the categorical statement of Gangu, the mother when she states that there was never any dispute between the sons over the property. In addition to that, what the learned Counsel points out to us is that the property in question stood in the name of the mother and not in the name of the father His submission therefore is that it is very clear that because’ P.W.1 was unhappy’over the fact that the accused had secured places to build their houses that he has invented the whole theory of the assault in order to falsely implicate his brothers. The learned trial Judge has totally discredited the theory about the fall from a tree and in our considered view, it is impossible to accept that a 70 year old person would have climbed so high up on the tree as to sustain such serious injuries and if at all that had happened, he could never have moved from the spot. The record indicates that there were no other injuries and therefore it is very clear that Gangu in her anxiety to save her own two sons who were the accused, has tried to put forward this theory for purposes of assisting the defence.
3. On the other hand, we have the positive evidence of RW.2 who has very clearly indicated that she is as good as an eye witness in so far as she arrived on the spot within seconds of the incident having been completed. She has seen the accused who are her husband’s brothers. The incident took place in broad day light. She has also described the weapons used by them and more importantly, her evidence is absolutely unshaken in the cross-examination. Significantly enough, she has stated that she heard the deceased shouting out that his sons were beating him. This evidence coupled with the other supportive evidence including the medical evidence has been heavily relied upon by the learned trial Judge. Mr. Deshpande did make a valiant attempt to get over this material when he submitted that there is a variation with regard to the description of the weapons which were originally stated to be clubs and he points out that Sujatha has changed her version to bring her evidence in consonance with the type of injuries sustained by the deceased. Secondly, Mr. Deshpande .points out that Sujatha is an interested person in so far as she is the wife of P.W.1 and that obviously she is hostile to the two accused because of the property dispute. He also points out that the deceased was living with P.Ws.1 and 2 and that it is quite obvious that they form one group which was not on the best of terms with the other sons. We are unable to discredit Sujatha’s evidence merely because of these few very minor and insignificant infirmities because it is absolutely reliable and inspires confidence but more importantly because it is also corroborated by the rest of the evidence on record particularly the medicai evidence. Consequently, we virtually see no ground on which the finding of the trial Court that the two accused were the persons involved in the incident, can be disturbed.
4. The appellants’ learned Counsel then submitted that having regard to the weapons and having regard to the nature of injuries and accepting the prosecution background, that the highest which a Court can hold is that the accused got into a fight with their deceased father over the question of partition and that they assaulted him. His submission is that these persons are all agriculturists, that they have no criminal background and that it was at the highest a quarrel that got out of control and he advanced a strong submission that even if the death has ultimately resulted, that the Court should consider as to whether Section 302 IPC could apply at all. His main submission is that if the facts and circumstances conclusively indicate that there was neither the desire nor the intention to cause death that the offence at the highest could come under Section 304 IPC.
5. The learned Addl.S.P.P. has opposed any such alteration of the conviction because he submits that the test in law would be the question as to what are the consequences of the act. He points out that the injuries are not superficial but that they are serious and secondly they are essentially on the vital parts of the body such as the head and the neck. Under these circumstances, he submits that it would be impossible to accept the contention that the intention was only to assault and not to kill.
6. This is virtually a border line case but we need to take into account certain special circumstances namely the fact that the accused are the real sons of the deceased and that there is no real enimity of a serious nature that has even been alleged. In fact, the motive that is attributed is itself very weak as it has come on record that the accused were all residing in their separate houses, the property itself is a small one and stood in the name of the mother and therefore, the dispute relating to partition does not assume much significance. It is also clear from the record that the deceased was a rather domineering head strong person and this was obviously the point of friction which resulted in quarrels between him and the sons obviously because of the generation-gap. The weapons used are agricultural implements and the sharp end of the pick axe was not used but only the handle was used and even in the case of the second weapon, there was no attempt to stab the deceased with it. All these circumstances are indicative to us of the fact that it would be difficult to accept that there was any intention to Kill. We have used the expression “border line” because the case would still come within the ambit of Section 302 IPC. If the accused knew or had reason to believe that the consequences of the act would result in death. It is precisely this aspect of the law that has been emphasised by the learned Addl.S.P.P. when he opposed the reduction of the conviction. We have however, on a totality of the record come to the conclusion that on a complete evaluation, including the fact that the two accused are the sons, come to the conclusion that this is a case which would be covered by the provisions of Section 304 part II I.P.C. On the question of sentence, there are many aspects of the matter which Mr. Deshpande has submitted mainly the age of the accused, their background, their status in life and the consequences to them and their families if they have to undergo long jail sentences. We have taken each of these into consideration and are of the view that a sentence of five years R.I would meet the ends of justice.
7. The appeal partially succeeds. The conviction and sentence under Sections 302 read with 34 I.P.C. is set-aside and in its place the two accused are convicted and sentenced for having committed the offence punishable under Sections 304 part II read with 34 I.P.C. It is directed that they shall undergo a sentence of five years R.I. each.
8. With this modification, the appeal to stand disposed of.