IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE B.A. PATIL AND THE HON’BLE MR.JUSTICE R. DEVDAS CRIMINAL APPEAL NO.941/2015 BETWEEN:
Gangaraju S/o Gejjigangappa Aged about 24 years R/o Ramapattana Village Mandikal Hobli Chickaballapura Taluk & District-562 101.
(By Sri D. Nagaraja Reddy, Advocate) … Appellant AND:
State of Karnataka through the Gudibande Police Chickaballapura Represented by State Public Prosecutor High Court of Karnataka Bangalore-560 001.
… Respondent (By Sri Vijaya Kumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment and order dated 05.02.2015 passed by the Prl. District and Sessions Judge, Chickaballapura, in S.C.No.117/2013, convicting the appellant/accused for the offence punishable under Section 302 of Indian Penal Code.
This Criminal Appeal having been heard and reserved on 05.01.2019 coming on for pronouncement of judgment this day, B.A.Patil J., delivered the following:-
J U D G M E N T Accused by challenging the judgment and order of conviction and sentence passed by the Principal District and Sessions Judge, Chickaballapura, in SC.No.117/2013, dated 5.2.2015 is before this Court in this appeal.
2. Facts leading to the case are that prior to the alleged incident, accused-appellant tried to outrage the modesty of the daughter of the brother of the deceased. Deceased and other persons went and advised the accused to keep good behaviour. On the very night when the deceased was sleeping, accused came and assaulted with a stone and caused grievous injuries to the deceased. A complaint was registered against the accused in this behalf. With an earlier ill-will accused hatched a plan to commit the murder of Chikkagangappa and by seeing him, on 21.4.2013 at about 6.30 a.m., when the deceased Chikkagangappa had been to the land of K.T.Aswathreddy to attend the second call of nature, at that time, he came and assaulted Chikkagangappa with an axe and caused the grievous injuries on the head and other parts of the body of Chikkagangappa. As a result of the same, Chikkagangappa fell down and breathed his last. It is further case of the prosecution that the said fact was informed to the son of the deceased Srinivas who was residing in Bangalore. He immediately came from Bangalore and by seeing the alleged incident, he went to Police Station and filed a complaint as per Ex.P1. On the basis of the said complaint, a case came to be registered against the accused in Crime No.72/2013 for the offence punishable under Section 302 of IPC. After completion of investigation, the Investigating Agency filed the charge sheet against the accused. The committal Court took cognizance and as the case was triable by the Sessions Court, it was committed to the Sessions Court. After committal, the Sessions Court took cognizance and by securing the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused, charge was prepared, which was read over and explained to the accused. Accused pleaded not guilty and as such the trial was fixed.
3. In order to prove its case, the prosecution got examined 10 witnesses as PWs.1 to 10 and got marked 23 documents as per Exs.P1 to P23 along with 9 Material Objects. After closure of the prosecution evidence, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating material against him which he denied. Accused has neither led any evidence nor got any documents marked. After hearing the learned counsel appearing for the parties, the trial Court passed the judgment and order of conviction and sentence whereunder accused has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/-, in default to undergo rigorous imprisonment for further period of one year. Accused has also been directed to pay an amount of Rs.25,000/- to the legal heirs of the deceased as compensation. Against the said judgment and order of conviction and sentence, the accused is before this Court.
4. We have heard the learned counsel Sri Nagaraja Reddy for the appellant and the learned Additional SPP Sri Vijayakumar Majage for the respondent-State.
5. It is the submission of the learned counsel for the appellant-accused that the trial Court has failed to appreciate the evidence on record. He submitted that there is no motive to the alleged incident. He further submitted that the accused was not there in the village as on the date of the incident. When the presence of the accused itself is doubtful, then under such circumstances, the judgment and order of conviction and sentence is not sustainable in law. He further submitted that no independent witnesses have been examined by the prosecution and contradictions and improvements in the case have not been properly appreciated by the trial Court. He further submitted that the trial Court under the influence of the complainant and others has wrongly convicted the accused. He further submitted that even as could be seen from the evidence of the doctor, it is not specifically stated whether the death is due to smothering or throttling. On these grounds, he prayed to allow the appeal by setting aside the impugned judgment and order passed by the trial Court.
6. Per contra, the learned Additional SPP vehemently argued and submitted that there is a strong motive for the alleged incident as the accused tried to tease the daughter of the brother of the deceased and he tried to outrage her modesty and a criminal case was registered against the accused for having assaulted the victim with stone and causing injuries to him earlier to the alleged incident. In that background, with an intention to take revenge, on the date of the alleged incident, accused assaulted the deceased with an axe brutally and caused his murder. This entire evidence shows that there is a strong motive for the alleged incident. He further submitted that there are two eye witnesses to the alleged incident, who have categorically deposed about the act of the accused assaulting the deceased and there is nothing to discard their evidence. He further submitted that though the accused has taken up plea of alibi to the effect that he was not there in the village on the date of incident, the same has not been established by the accused. When the accused fails to establish the plea taken by him, then under such circumstances, the case of the prosecution stands proved. He further submitted that there is evidence of recovery of the weapon at the instance of the accused and even the clothes stained with blood were recovered at the instance of the accused. Even FSL report clearly indicates the fact that the axe used for commission of offence and the clothes of the accused were stained with human blood and even grouping of blood is also that of the deceased. This entire material evidence clearly points out the guilt of the accused. He further submitted that entire evidence on record if it is read, the presence of the accused can be gathered. The accused-appellant has not made out any good grounds to interfere with the impugned judgment and order. On these grounds, he prays to dismiss the appeal.
7. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the entire evidence on record and re-appreciated the same. Prior to the incident in question, accused tried to outrage the modesty of the daughter of the brother of the deceased and at that time the deceased assaulted him and advised him suitably. On the very night, accused went to the place where the deceased was sleeping and assaulted him and a complaint was registered in this behalf. In order to substantiate the same, the prosecution has got examined PW.1, son of the deceased and also PW.3, brother of the deceased, who have deposed with regard to the earlier incident. Even as could be seen from the cross-examination of these two witnesses the said fact has not been denied. During the course of cross-examination of PW.1, at paragraph-7 it was suggested that after the first incident, accused left the village and has not come back. The said suggestion was denied, which itself substantiates the case of the prosecution that there was an earlier incident as alleged and there was some animosity between the accused and the deceased for having assaulted and advised him when he tried to outrage the modesty of the daughter of the brother of the deceased.
8. In order to prove that it is the accused who assaulted the deceased with axe, the prosecution got examined the daughter of the brother of the deceased as PW.2. She has deposed that at about 6.30 a.m. on the date of the incident, herself and one Gangamma were proceeding towards the land of Aswathreddy to attend the second call of nature and at that time near the tank in the said land deceased Chikkagangappa was attending the second nature of call. They saw that the accused was proceeding by holding an axe towards the deceased Chikkagangappa and thereafter, he assaulted on the left side of his head with axe, due to which the deceased fell down and thereafter accused assaulted on his head and cut his neck with axe. He also assaulted on his private part. As a result of the same, brain of the deceased came out and blood was oozing and thereafter accused by holding the axe ran away from the place. PW.2 has also deposed about the earlier incident. During the course of her cross-examination, it has been elicited that they have neither tried to apprehend the accused nor tried to snatch the axe. It was further suggested that as there was animosity, she is deposing falsely. But the said suggestions have been denied by this witness.
9. In order to prove that the death of the deceased is a homicidal death due to the injuries sustained by him, the prosecution has got examined PW.8, the doctor who conducted autopsy over the body of the deceased Chikkagangappa. PW.8 has deposed that when he examined the dead body, injuries were found over neck, scalp, upper part of the head, behind left ear and over right upper abdomen. The same is reiterated in the inquest mahazar at Ex.P10. Even the doctor has opined that the injury caused to neck, trachea and oesophagus with neck vessels leading to acute shock and also scalp injury over left temporal left vertex lead to intracranial bleed leading to death. This evidence fully corroborates with the evidence of the eye witness PW.2. When the ocular evidence and the injuries mentioned by the eye witness is co-related with the evidence of the doctor, then under such circumstances, the said evidence is sufficient to conclude that it is the accused who assaulted and caused the said injuries in causing the death of the deceased. In this behalf, the evidence of PW.2 who is said to be an eye witness to the alleged incident is cogent, trustworthy and reliable. There are no circumstances suggested except suggesting that because of previous animosity she is deposing falsely, there is no other evidence. When the motive stands established and the evidence of eye witness is also cogent and acceptable so also when the relationship was not cordial, then under such circumstances, the said evidence can be relied upon by the Court. Coupled with this, there is evidence of PW.5 who was working as a Watchman in the said field, he saw accused jumping the stone fence and when he questioned him accused told him that people were chasing him and at that time accused also told that he finished Chikkagangappa. He also told that if he talks with him he would also finish him. At that time accused was holding an axe. By seeing the same, he ran away from the place and subsequently he came to know that in the land of Aswathreddy body of the deceased Chikkagangappa was lying with injuries. During the course of cross-examination, when this was questioned, PW.5 has specifically stated about the colour of pant and shirt which the accused was wearing. Other suggestions were denied by PW.5. The said words of the accused though not specifically stated, it amounts to nothing but an extra judicial confession made by the accused. Coupled with this, there is a seizure of clothes of the accused so also axe in the presence of PW.7 as per Ex.P5. PW.7 has deposed that police called him to Gudibande Police Station where accused and police were present and thereafter accused led them to a road leading to Ramapatnam, from there he went near the bamboo bush and he took out an axe used for commission of offence, which was thrown by him in the said bush. The said axe was seized by drawing a mahazar as per Ex.P5. During the course of cross- examination, nothing has been elicited so as to discard his evidence.
10. It is the defence of the accused that he was sent out of the village after the first incident and he never came back to the village. But the evidence of PW.2, the eye witness corroborated with the recovery of axe at the instance of the accused and the motive. All these circumstances make the evidence of the prosecution worthy of credence. Even it is not in dispute that the accused was known to the witness. Under such circumstances, the identification of the accused also cannot be doubted at all. Looking from any angle, the evidence produced makes a conclusive proof that it is the accused who assaulted the deceased and taken away his life with earlier animosity. There is a strong evidence as against the accused- appellant to establish the guilt of the accused beyond all reasonable doubt.
11. We have carefully and cautiously gone through the impugned judgment and order of the trial Court by giving thoughtful consideration. The trial Court after considering the entire evidence and the material placed on record, has come to a right conclusion while convicting the accused. The impugned judgment and order of conviction and sentence is neither capricious nor illegal. The appellant has not made out any good ground so as to interfere with the same. Hence, the impugned judgment and order of conviction and sentence passed by the trial Court is liable to be confirmed and the same is confirmed.
Accordingly, the appeal being devoid of merits, stands dismissed.
Sd/- JUDGE Sd/- JUDGE *ck/-