IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL NO.3 OF 2018 BETWEEN:
1. CHIKKANNA S/O. LATE VENKATEGOWDA AGED ABOUT 55 YEARS 2. SHIVARAMU S/O. LATE VENKATEGOWDA AGED ABOUT 46 YEARS 3. UMESHA SON OF KRISHNE GOWDA AGED ABOUT 30 YEARS ALL ARE R/O. THIMMEGOWDANADODDI VILLAGE KASABA HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT-562 112. ... APPELLANTS (BY SRI. ABHISHEK K., ADV. FOR SRI. DIWAKARA K., ADV.) AND:
STATE OF KARNATAKA BY KANAKAPURA RURAL POLICE RAMANAGARA REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001. ... RESPONDENT (BY SRI. K. NAGESHWARAPPA, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 28.12.2017 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA TO SIT AT KANAKAPURA IN S.C.NO.5029/2014 – CONVICTING THE APPELLANT/ACCUSED NO.1 TO 3 FOR THE OFFENCE PUNISHABLE UNDER SECTION 306 READ WITH SECTION 34 OF INDIAN PENAL CODE.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the accused challenging the judgment of conviction passed in S.C.No.5029/2014 dated 28.12.2017, on the file of the II Additional District and Sessions Judge, Ramanagara to sit at Kanakapura, for the offence punishable under Section 306 read with Section 34 of Indian Penal Code.
Brief facts of the case:
2. It is the case of the prosecution that the accused persons with common intention had quarrel with C.Ws.1, 7, 8 and the deceased Venkatesha with regard to land dispute and subjected the deceased for assault and the act of the accused persons amounts to physical and mental torture to the family members of C.W.1. In that regard, several panchayats were held. That on 04.08.2013, accused Nos.1 to 3 picked up quarrel with mother of C.W.1 and the deceased Venkatesha and voluntarily assaulted C.W.8 and the deceased Venkatesha. For that, one more panchayath was held. In view of the said ill-treatment, the deceased Venkatesha got depressed and took the extreme step of committing suicide on 05.08.2013 by using lungi and hence, the accused Nos.1 to 3 are responsible for the death of the deceased Venkatesha.
3. Based on the complaint of P.W.1 in terms of Ex.P1, the police have registered the case against the accused Nos.1 to 3. The Investigating Officer conducted the spot mahazar and subjected the dead body for inquest as well as post mortem examination and thereafter recorded the statement of witnesses. After completion of the investigation, he filed the charge sheet against the accused persons for the offence punishable under Section 306 read with Section 34 of Indian Penal Code.
4. The accused persons were secured before the Court below and charges were framed. The accused persons denied the charges and claimed for trial. The prosecution, in order to substantiate their case, examined P.Ws.1 to 8 and got marked the documents Exs.P1 to P5 and so also marked M.O.1-Lungi. Accused did not choose to lead any evidence.
5. The Court below recorded the statement of the accused under Section 313 of the Code of Criminal Procedure. After closure of the evidence, the Court below heard the arguments of learned Public Prosecutor and also the learned counsel for the accused. On considering both oral and documentary evidence, the Court below has convicted accused Nos.1 to 3 for the offence punishable under Section 306 read with Section 34 of Indian Penal Code. Hence, the present appeal is filed challenging the judgment of conviction.
6. The appellants/accused Nos.1 to 3 in the appeal would contend that the Court below has failed to consider the material discrepancies in the evidence of prosecution witnesses particularly, the evidence of P.Ws.1 to 3. P.Ws.1 to 3 are the interested witnesses and none of the independent witnesses have been examined before the Court below. The evidence of P.Ws.1 to 3 is omnibus in nature and no documents are produced before the Court for having subjected the deceased to assault and no medical treatment records are placed before the Court below. Hence, the evidence of P.Ws.1 to 3 does not inspire the confidence of the Court. The post mortem report does not disclose any injury sustained by the deceased and the Court below has failed to take note of these factors while considering the case of the prosecution.
7. The learned counsel appearing for the appellants would also submit that P.Ws.1 to 3, who are the brother, father and sister of the deceased, their evidence is not consistent and there are discrepancies in the same.
Though these witnesses have spoken with regard to the fact that after the assault, the deceased was taken to the hospital, no documents are placed to show that he has taken treatment in the hospital. There are no injuries to the deceased and the opinion of the doctor is that death is due to hanging and hence, the very findings of the Trial Court is erroneous and the evidence of independent witnesses have not been examined. The Court below also did not discuss in detail the evidence of prosecution witnesses whether it inspires the confidence of the Court or not. Hence, the judgment of conviction and sentence requires to be set aside.
8. Per contra, learned High Court Government Pleader for the State in his argument vehemently contend that merely because the witnesses P.Ws.1 to 3 are the relative witnesses, their evidence cannot be discarded and the same ought to have been considered by the Court below. The Court below, without considering the evidence of P.Ws.1 to 3, has given much importance to minor discrepancies in their evidence, which will not take away the case of the prosecution and the same is not fatal to the case of the prosecution.
9. Learned High Court Government Pleader for the State also brought to the notice of the Court that there was an injury on the right shoulder above the chest and even though the post mortem report does not disclose any external injuries, the doctor, who has been examined before the Court states that there was an injury. Hence, the arguments of the learned counsel for the appellants/accused that there was no injury caused to the deceased cannot be accepted. The Court below has given reasons while convicting the accused and hence, there are no grounds to interfere with the findings of the Trial Court.
10. Having heard the arguments of learned counsel for the appellants/accused and also the learned High Court Government Pleader for the respondent/State, the points that arise for my consideration are:
1. Whether the Court below has committed an error in convicting the accused persons for the offence punishable under Section 306 read with Section 34 of Indian Penal Code and whether it requires interference of this Court?
2. What order?
Point Nos.1 and 2:
11. The case of the prosecution in nut shell is that, there was a civil dispute between the parties and the accused Nos.1 to 3 assaulted the deceased on 04.08.2013. Due to the said humiliation, the deceased Venkatesha took extreme step to commit the suicide. The prosecution mainly relies upon the evidence of P.Ws.1 to 8 and also the documents which are marked as Exs.P1 to P5. The main contention of the learned counsel for the appellants/accused is that, the evidence of P.Ws.1 to 3 does not inspire the confidence of the Court and there was no injuries on the deceased. It is also his contention that no documents are placed before the Court with regard to the treatment taken by the deceased. The very incident on 04.08.2013 is not proved and in spite of the same, the Court below has committed an error in convicting the accused.
12. Keeping in view the contention of learned counsel for both the parties, this Court has to re-appreciate the evidence available on record. The prosecution mainly relies upon the evidence of P.Ws.1 to 3, who are relatives of the deceased i.e., the brother, father and sister of the deceased.
13. Before appreciating the evidence of these witnesses, this Court would like to mention in brief the contents of the complaint which is marked as Ex.P1. The complaint is given by the brother of the deceased, who has been examined as P.W.1. In the complaint, he states that on 04.08.2013, the accused persons quarreled with their family members and when the deceased came to the village, at that time, accused Nos.1 to 3 again quarreled with him and assaulted him with their hands and stamped on his stomach. He was in Bengaluru and the same was informed to him over phone by his mother and immediately, he rushed to the village on the same day night. On enquiry, his mother revealed that accused persons assaulted her and his brother Venkatesha. Hence, he went and met the village elders and told that he intends to lodge a complaint. At that time, the village elders told not to lodge any complaint and they will call both of them and settle the dispute. Hence, he stated that he is not interested to lodge the complaint but, the dispute has to be resolved. In the meanwhile, on the very same day night at 9.30 p.m., he came to know through his friend Basavaraju that his brother Venkatesha committed suicide and hence, he lodged a complaint that the accused persons are responsible for the death of his brother and the case was registered.
14. The complainant, who has been examined as P.W.1 in his evidence reiterated the contents of the complaint. He was subjected to cross-examination.
In the cross-examination, the defence of the accused is that, the brother-in-law of the deceased has also committed suicide one month prior to this incident. There were differences between his sister and brother-in-law and for the suicide of his brother-in-law, the deceased was responsible and hence, he has committed suicide and no such incident has taken place as narrated in the complaint and the said suggestion was denied. P.W.1 reiterates that frequently, there was galata between both the family in respect of civil dispute. But he admits that there was no complaint registered earlier. In the cross-examination, it is elicited that, when the phone call was made by his mother, his mother was in the hospital and he has not mentioned the same in the complaint. It is also elicited that, when he went to hospital, his brother was alive and the rural police station is located next to the hospital and they did not give any complaint against the accused persons and so also did not inform the same to the doctor or to the police about the previous day incident. It is suggested that the accused persons are not responsible for the death of the deceased and the same was denied.
15. P.W.2 is the father of the deceased. In his evidence, he reiterates that there was civil dispute and the accused persons have assaulted his son. In his evidence, he states that the accused came with stone and he threatened not to come to rescue his son and the incident has taken place at 7.00 p.m. near the house of accused No.1. At that time, he was in the house. After coming to know about the incident, he came to the spot. When the accused threatened, he told them not to commit the murder of his son. But mercilessly, the accused persons have stamped their son. The accused persons by holding his hands and legs twisted on him and thereafter, he himself and P.W.1 shifted the injured son to the hospital. It is also his evidence that accused person came in the morning and told that not to lodge the complaint and they can sit together and settle the issue. On the very same day, his son committed suicide.
In the cross-examination of P.W.2, he admits the civil dispute between the parties and he is contesting the case by engaging the counsel. It is elicited that his son was in the hospital one night, but he has not produced any document before the Court. It is elicited that he did not make the statement before the police that incident has taken place at 7.00 p.m. near the house of accused No.1.
16. The other witness is the sister of the deceased, P.W.3. In her evidence, she states that on 04.08.2013 at 6.00 to 6.30 p.m., the accused persons have assaulted the deceased in front of the house of Chikkanna. When she heard the screaming sound, herself, her father and mother went to the spot but she claims that all the accused came with stone and threatened them also. But she claims that the accused assaulted her brother with their hands and also with clubs and nobody came forward to pacify the galata and thereafter, he was taken to Government hospital. When they were going to lodge the complaint, at that time, the village elders came and told not to lodge any complaint.
In the cross-examination, it is elicited that they have not given any complaint since, the village elders told not to give any complaint. It is suggested that for the death of her husband the deceased Venkatesha was responsible. Hence, they have not given any complaint and the said suggestion was denied. It is further suggested that her brother Venkatesha assaulted her husband and hence, due to humiliation, her husband committed suicide and hence, due to the act of the deceased, she became widow and hence, the deceased took extreme step to commit the suicide and the said suggestion was denied.
17. The other witness relied upon by the prosecution is P.W.5, doctor, who has conducted post mortem examination. The doctor, in his evidence states that he conducted post mortem examination and he noticed an injury on the right shoulder of the deceased above the chest and also found ligature mark on the neck and the death is due to hanging and he gave the report in terms of Ex.P4 and also identifies M.O.1 and states that by using M.O.1, any person can commit suicide. The evidence of P.W.5 is not questioned.
18. The other witnesses are formal witnesses and none have supported the case of the prosecution. The important witnesses remained before the Court are P.Ws.1 to 3 and 5.
19. Keeping in view the contentions of learned counsel for both the parties, this Court has to re-appreciate the evidence available on record. The main contention of the learned counsel for the appellants is that the evidence of P.Ws.1 to 3 does not inspire the confidence of the Court. Having considered the evidence of P.Ws.1 to 3, it has to be noted that P.Ws.1 to 3 in their evidence though have consistently deposed that after the incident, injured was taken to the hospital and was provided treatment in the hospital, no document is placed before the Court for having provided the treatment to the deceased.
20. It is also important to note that the prosecution, in order to prove the fact that the deceased was subjected to assault, no material is placed before the Court. The doctor, who has been examined as P.W.5 states that there are no external injuries. But, in his oral evidence, states that he found blood clotting on the right shoulder above the chest and the same has not been mentioned in the post mortem report. It is also important to note that the prosecution did not elicit anything from the mouth of P.W.5, the doctor that there are chances of sustaining such injury, if the deceased is subjected to assault. In order to substantiate the fact that the deceased was subjected to assault, there is no material before the Court. It is also important to note that according to P.Ws.1 to 3, the incident has taken place on 04.08.2013 in the evening between 6.30 to 7.00 p.m. and no complaint was given. But, P.W.1 claims that when he came to village from Bengaluru, he went and met the village elders and told that he intends to give complaint. But the village elders advised him not to lodge any complaint. Hence, he did not give any complaint.
21. P.W.2, the father of the deceased in his evidence states that on the very next day morning, the accused persons themselves came and requested not to lodge any complaint and they can settle the issue between them. The very evidence of P.Ws.1 and 2 is contradictory to each other with regard to not filing of the complaint.
P.W.1 claims that he approached the village elders. But, P.W.2 states that accused persons themselves came and requested not to lodge any complaint. It is pertinent to note that P.Ws.1 to 3 have deposed that the deceased was taken to the hospital. But no material is placed on record . It is also not in dispute that there was a civil dispute between the parties and the defence also did not dispute the said fact. In order to invoke Section 306 read with Section 34 of Indian Penal Code, there must be proximity to the cause of death and immediate circumstances which led to commit suicide.
22. In the case on hand, in order to connect the accused persons, no material is placed on record. Merely because there was a civil dispute between the parties is not a ground to connect the accused persons to the suicide committed by the deceased. The prosecution though relies upon the evidence of P.Ws.1 to 3, there are material discrepancies in their evidence with regard to providing treatment to the deceased. If really, the assault has taken place on 04.08.2013 and he was taken to the hospital, the prosecution ought to have produced the treatment records before the Court and the same has not been placed before the Court. No doubt, it is a settled principle of law that even though the witnesses are relative witnesses, their evidence cannot be discarded and while appreciating the evidence of the relative witnesses, the Court below ought to have examined the same with due care and caution.
23. Having considered the evidence available on record and after giving anxious consideration to the material available on record, I does not find any material before the Court to connect the accused persons to the deceased taking extreme step to commit the suicide. The Court below, while considering the material on record has only formed its general opinion accepting the case of the appellants/accused that there was an incident of assault and failed to consider the material available before the Court to connect the accused persons for the charges leveled against them. The Court below even did not discuss the evidence of P.Ws.1 to 3 in detail, though formed its general opinion that the case rests upon circumstantial evidence. The Court below ought to have discussed the evidence of P.Ws.1 to 3 whether it inspires the confidence of the Court and the same has not been done. The Court below while convicting the accused has assigned the reason that the prosecution has proved the case, without considering the material on record.
24. Firstly, the prosecution has to discharge its burden that the ingredients of Section 306 read with Section 34 of Indian Penal Code can be invoked in the case on hand. Hence, there must be proximity to the cause of death and immediate circumstances which led the deceased to take extreme step to commit the suicide. In the absence of the same, the Court cannot presume the factual aspects and the judgment should not be based on the surmises and conjectures. The Court below has committed an error in appreciating both oral and documentary evidence available on record. Hence, it requires interference of this Court and the impugned judgment of conviction requires to be set aside.
25. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed. The impugned judgment of conviction passed in S.C.No.5029/2014 dated 28.12.2017, on the file of the II Additional District and Sessions Judge, Ramanagara to sit at Kanakapura, for the offence punishable under Section 306 read with Section 34 of Indian Penal Code is set aside.
(i) The accused persons are set at liberty. If any bail bonds are executed by the accused persons, the same are cancelled.
(ii) The Court below is directed to refund the fine amount deposited by the accused on proper identification.
Sd/- JUDGE ST