IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.1156 OF 2013 C/W CRIMINAL APPEAL No.336 OF 2014 IN CRIMINAL APPEAL NO.1156 OF 2013 BETWEEN:
GIRIJAMMA WIFE OF THIMMAPPA BANDARI AGED ABOUT 65 YEARS RESIDING AT ARAGA VILLAGE THIRTHAHALLI TALUK SHIMOGA-577 414. ... APPELLANT (BY SRI. GIREESHA J.T., ADVOCATE) AND:
1. IMTHIYAZ SON OF SHEIK HUSSAIN @ KULLA HUSSAIN AGED ABOUT 25 YEARS KEB METER READER RESIDING AT ARAGA THIRTHAHALLI TALUK-577 414.
2. SUDHIRA SON OF JANARDHANA AGED ABOUT 23 YEARS COOLIE, RESIDING AT ARAGA THIRTHAHALLI TALUK SHIMOGA-577 414.
3. STATE OF KARNATAKA THIRTHAHALLI POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001. ... RESPONDENTS (BY SRI. P.B. UMESH, ADVOCATE FOR SRI. R.B. DESHPANDE, ADVOCATE FOR R1 AND R2 SRI. V.S. HEGDE, STATE PUBLIC PROSECUTOR-II FOR R3) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITAL DATED 27.06.2013 PASSED BY THE ADDITIONAL SESSIONS JUDGE, SHIMOGA IN SESSIONS CASE NO.192 OF 2011 – ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF INDIAN PENAL CODE.
IN CRIMINAL APPEAL NO.336 OF 2014 BETWEEN:
THE STATE OF KARNATAKA BY THIRTHAHALLI POLICE-577 432. ... APPELLANT (BY SRI. V.S.HEGDE, STATE PUBLIC PROSECUTOR-II) AND:
1. IMTHIYAZ SON OF SHEIK HUSSAIN @ KULLA HUSSAIN AGED ABOUT 26 YEARS KEB METER READER RESIDING AT ARAGA THIRTHAHALLI TALUK-577 432.
2. SUDHIRA SON OF JANARDHANA AGED ABOUT 24 YEARS COOLIE, RESIDING AT ARAGA THIRTHAHALLI TALUK-577 432. ... RESPONDENTS (BY SRI. P.B. UMESH, ADVOCATE FOR SRI. R.B. DESHPANDE, ADVOCATE R1 AND R2) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITAL DATED 27.06.2013 PASSED BY THE ADDITIONAL SESSIONS JUDGE, SHIMOGA IN SESSIONS CASE NO.192 OF 2011 – ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF INDIAN PENAL CODE.
THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING AND HAVING BEEN RESERVED FOR JUDGMENT ON 05.09.2019, THIS DAY, H.P.SANDESH, J., PRONOUNCED THE FOLLOWING:
JUDGMENT These two appeals are filed by the complainant P.W.1 and the State respectively, as against the judgment of acquittal dated 27.6.2013 passed in S.C.No.192/2011 on the file of Additional Sessions Judge, Shimoga passed for the offence punishable under Section 302 r/w Section 34 of Indian Penal Code.
2. Brief facts of the prosecution case are that:
On 28.5.2011 at 8.30 p.m. near Araga gate of Thirthahalli taluk in front of the hotel of P.W.6(C.W.9)- Venkatesh, accused Nos.1 and 2 with an intention to commit murder of deceased Manjunatha, pounded his head to the road knowing fully well that such injury would result in death of Manjunatha, as a result, he succumbed to the injuries.
It is the case of prosecution that accused No.1 had eve-teased some girls at a fair and he was advised by deceased Manjunatha not to do so. At that time, C.Ws.20(P.W.12) to 22 had assaulted accused No.1 since he misbehaved. Accused No.1 had also not paid the hair cutting charges got done through the deceased who was a barber by profession and when deceased demanded payment of the said amount, accused No.1 got enraged and with previous enmity, with a common intention to take away the life of deceased Manjunatha, secured him through accused No.2 and assaulted him by pounding his head to the road. The injury was noticed by the family members of the deceased when he came to the house, but he did not inform anything and kept quiet and ultimately, on the night of 09.6.2011 when he was seriously ill, on persistence, he revealed that accused No.1 assaulted him with club and he had sustained injury. The injured was taken to Anuradha Nursing home and thereafter, on the advice of the doctor, he was taken to KMC hospital, Manipal, but he did not survive and lost his breath on 13.6.2011 at 7.45 p.m. The mother of the deceased lodged the complaint on 11.6.2011 and same was registered for the offence punishable under Sections 307 of Indian Penal Code. Subsequent to his death it was converted to the offence punishable under Section 302 r/w Section 34 of Indian Penal Code. The police based on the complaint of the mother of the deceased in terms of Ex.P19 registered the case and investigated the matter and filed the charge sheet for the offence punishable under Sections 302 r/w Section 34 of Indian Penal Code.
The prosecution, in order to prove the case, examined P.Ws.1 to 20 and got marked Exs.P1 to P23 and also got marked M.O.1 and closed its side. The defence got marked Exs.D1 and D1(a). Statements of the accused were recorded under Section 313 of Criminal Procedure Code and they denied the incriminating circumstances. The accused did not choose to lead any defence evidence. The Court below, after hearing the arguments of Public Prosecutor and the defence counsel, acquitted the accused. Hence, present two appeals are filed by the Complainant as well as by the State, respectively.
3. The Complainant/P.W.1 in Crl.A.No.1156/2013 has contended that the Court below has gravely erred in considering the evidence of P.W.1 regarding the oral dying declaration of deceased; P.W.2 has affixed his signature to Ex.P1-Inquest mahazar as pancha; P.W.3 is the brother of deceased as well as hearsay witness and he speaks about injury to deceased; P.W.4 is the pancha to Ex.P2-Seizure mahazar, but he has turned hostile; P.W.5 supports the prosecution case and confirmed the recovery of M.O.1- hand kerchief and motorbike and acted as pancha to Ex.P2 and he identifies Exs.P3 to P6, P.W.6 is the eyewitness to the incident and he has clearly disclosed about the assault of accused No.1 by rolling M.O.1 to his fist. Further, P.W.6 is also pancha to Ex.P7-spot mahazar; P.W.7 is the Doctor of Anuradha Nursing Home and she speaks that she saw the deceased in a van outside her nursing home and she advised to take the deceased to major hospital; P.W.8 is the eyewitness to the incident and he also supported the prosecution case partly; P.W.9 is the sister of the deceased and she speaks about oral dying declaration of the deceased and she is hearsay witness to the incident;
P.W.10 is the owner of van and he speaks about shifting the deceased to Manipal hospital; P.W.11 is the pancha to Exs.P3 to P6, who turned hostile; P.W.12 is the independent witness and supports the case of prosecution and also he speaks about the motive and earlier altercation between accused No.1 and deceased; P.W.13 is the Doctor who conducted post mortem as per Ex.P10;
P.W.14 is the RTO of Jayanagar, Bangalore and speaks about issuance of Ex.P13; P.W.15 speaks about the quarrel between deceased and accused No.1 and further also deposes that deceased was brought by accused No.2;
P.W.16 is the Station House Officer and Exs.P15 and 16 were marked through him; P.W.17 is the CPI who investigated the matter partly; P.W.18 has registered the FIR in terms of Ex.P19; P.W.19 is Deputy Superintendent of Police, who filed the charge sheet and P.W.20 is the Doctor who treated the deceased at KMC hospital. Despite solid evidence on record, the Court below has failed to consider the documents as well as oral evidence of P.Ws.1, 3, 9, 6, 12 and 15.
The Court below has erred in not considering the evidence of P.Ws.6 and 15 who are the eyewitnesses to the incident. The evidence of P.W.6 is consistent that the incident has taken place in front of his hotel and the overt act is also spoken by him. P.W.15 has pacified the quarrel between accused No.1 and deceased Manjunatha. Such an important material evidence against the accused persons has been ignored by the prosecution. The Court below, has also failed to take note of the evidence of Doctors, who have been examined as P.Ws.13 and 20 who supports the prosecution case. It is contended that the Court below has not appreciated the evidence in a right perspective and accordingly, prayed this Court to set aside the order of acquittal passed by the Court below.
4. The State, in Crl.A.No.336/2014, would contend that the very order of acquittal passed by the Court below is erroneous and the trial Judge has reached at a wrong conclusion resulting in substantial miscarriage of justice. Learned Sessions Judge has failed to appreciate the evidence of P.W.1, the mother of the deceased, so also, the evidence of P.Ws.2, 3, 5 and 6. The medical officer has advised to take the injured to Manipal hospital. P.W.9 sister of the deceased has stated that accused No.2 forcibly took the deceased and on the next day morning she had noticed injury below the eye of deceased and P.W.10 has also deposed that he had taken the injured to the hospital in his vehicle. It is contended that the learned Sessions Judge has failed to consider the evidence of prosecution witnesses and also medical evidence and committed an error in acquitting the accused persons.
5. Learned counsel appearing for the complainant in his arguments has vehemently contended that P.Ws.6, 8 and 15 are the eyewitnesses who have witnessed the incident. Though P.Ws.8 and 15 have partly turned hostile, the evidence of P.W.6 is consistent and the Court below has not considered the material evidence available on record.
6. Learned State Public Prosecutor-II appearing for the State also, in his arguments, vehemently contends that though there was delay in lodging the complaint, P.W.3, brother and P.W.9 sister of deceased Manjunatha have categorically deposed that accused No.2 took his brother and they including P.W.1 had noticed the injuries suffered by deceased Manjunatha. The Court below has committed an error in considering both oral and documentary evidence on record even though, the medical evidence supports the case of prosecution. Hence, the impugned judgment passed by the Court below is liable to be set aside.
7. Per-contra, learned counsel appearing for the accused would submit that the evidence of P.W.6 cannot be believed. The conduct of P.W.6 has to be taken note of. He has not informed either the police or the family members of the deceased even though he claims that he has witnessed the incident. It is also important to note that he did not take the injured to hospital for treatment.
P.W.8 has turned hostile and his evidence is only to the effect that he had seen the injured lying at the spot. The evidence of P.W.15 who claims that he is the eyewitness to the incident also does not inspire confidence of the Court. Hence, the evidence of P.Ws.6, 8 and 15 that they are the eyewitnesses to the incident cannot be believed. It is also contended that there is delay in lodging the complaint. Further, the evidence of the Investigating Officer also does not support the case of prosecution. There are material contradictions. The Court below taking note of both oral and documentary evidence has rightly acquitted the accused persons and hence, there are no grounds to reverse the findings of the trial Court.
8. Having heard the arguments addressed by both the Complainant as well as by the State and also the learned counsel appearing for respondents-accused, the points that would arise for our consideration are:
(i) Whether the Court below has committed an error in acquitting accused Nos.1 and 2 for the charges leveled against them for the offence punishable under Sections 302 r/w Section 34 of Indian Penal Code and whether it requires interference of this Court?
(ii) What order?
9. The prosecution mainly relies upon the evidence of P.Ws.6, 8 and 15 and also the relative witnesses P.W.1- mother, P.W.3-brother and P.W.9-sister of deceased Manjunatha. The prosecution also relies upon the evidence of P.W.13, the Doctor who conducted the post mortem of the body of deceased Manjunatha and also of P.W.20, the Doctor who treated the injured at KMC hospital, Manipal.
10. Now let us consider the evidence of P.Ws.1, 3 and 9 who are mother, brother and sister of deceased Manjunatha respectively.
11. P.W.1 is the mother who lodged the complaint as per Ex.P19. In the complaint she states that on 28.5.2011 her son went to Araga gate to bring blade for the hair salon and when he came back around 10 p.m. she found blood stained injury on his left cheek and she asked her son about the same, he did not disclose anything, but slept. On the next day, he did not go to shop and was telling that he is having headache and he also did not go to hospital. When the headache was persistent, on the night of 9.6.2011, on enquiry, he revealed that accused No.1 met him on 28.5.2011. When he demanded for money which was due from accused No.1 towards hair cutting, he assaulted him with club on his head, as a result, he sustained injury to his left cheek and he also made an attempt to take away his life. Since his condition was serious, immediately, she called her son-in-law over phone and shifted him to Anuradha Nursing Home in a car around 10.00 p.m. wherein the Doctor advised them to take him to Manipal hospital. He was in coma and thereafter, succumbed to the injuries. Accordingly, in the complaint she has requested the police to take action against accused No.1.
P.W.1 has reiterated the contents of the complaint in her evidence. She was subjected to cross-examination.
In the cross-examination she admits that nobody told them about the incident till her son told about the assault made by accused No.1. She also did not make any enquiry with others about the injury to her son. She also did not visit the place of incident and enquired about the incident. She claims her son was assaulted in front of Vaishali hotel at Araga gate. She also told the police that accused No.2 had forcibly taken her son to Araga gate. She had also told the police while lodging the complaint that accused No.1 had eve-teased the girls at car festival during Shivarathri and her son had advised him and that accused No.1 was subjected to assault by somebody. No complaint was lodged either by Manjunatha or by her or by her family members from 28.05.2011 to 11.06.2011. It is suggested that two to three days prior to his death, Manjunatha was suffering from jaundice and fever and same was denied. It is suggested that her son was advised not to have cold bath and that he had cold bath, as such, his son died due to illness and cold bath. The said suggestions were denied.
12. P.W.3 is the brother and P.W.9 is the sister of the deceased Manjunatha. Both of them in their evidence have reiterated the evidence of P.W.1 in their chief examination. P.W.3 was subjected to cross-examination. He admits that police had only enquired him on 11.06.2011 about the injury to Manjunath. It is suggested that he was suffering from ill-health prior to his death and the same was denied. P.W.9 in her cross-examination admits that she did not enquire the friends of Manjunatha as to how deceased was injured till 09.06.2011. She also admits that she knows the fact that on coming to know of the fact of assault to Manjunatha, they should immediately report the same to the Police. Further she admits that till 09.06.2011, they were not aware that Imthiyaz was assaulted by somebody or that Manjunatha was advising accused No.1 not to tease the girls.
13. Having taken note of the evidence of PWs.1, 3 and 9, it is to be seen that they are not the eye-witnesses to the incident and they came to know about the incident only through the injured that too on 09.06.2011. It is their evidence that on persistent insistence of the family members, injured revealed about the earlier incident. The complaint was given on 11.06.2011 two days prior to his death. The injured has revealed the incident on 09.06.2011. Further, prosecution has relied upon the evidence of eyewitnesses PWs.6, 8 and 15.
14. PW.6 in his evidence states that on 28.05.2011 accused No.1 had come to his hotel at about 08:45 to 9:00 p.m. He was taking meals at the hotel. At that time, Manjunatha and accused No.2 Sudheendra came in a bike. Accused No.1 went out of the hotel. There was a scuffle among them. Later Manjunatha returned in his bike with accused No.2. After sometime, Manjunatha returned. At that time, accused No.1 rolled his kerchief to the fist and fisted Manjunatha on his face. Manjunatha fell down. Accused No.1 was still beating him. By that time, he switched off the light outside the hotel. Thereafter, accused No.1 came back and completed his meals and returned. As there were customers at his hotel, he could not go outside the hotel to see as to what had happened. After sometime, he went to the place of incident and found some blood on the road, but Manjunatha was not there. He was taken away by some body. When Manjunatha had come to hotel with accused No.2, he had questioned accused No.1 as to why he was teasing the girls and also demanded money from him towards cutting. Accused No.1 told Manjunatha that he had got assaulted him, for which, Manjunatha replied that he did not. For the said reason, he had assaulted Manjunatha. The police came to spot on 15.6.2011 and drawn the Mahazar in terms of Ex.P7 and he attested the Mahazar as per Ex.P7(a).
In the cross-examination, he admits that when there is some incident like fight, he should inform the police. But he did not inform the incident to the Police. He also admits that normally he closes the hotel at 9:00 to 9:30 p.m. If there are no customers, he would close at 7:00 to 8:00 p.m. On that day, he closed the hotel at about 08:45 to 9:00 p.m. There were about five to six customers in the hotel. But he admits that at the time of incident, he was inside the hotel and volunteers that half of the door was open and the road was visible. He admits that he had not stated before the Police that he does not remember the date and time of the incident as noted in Ex.D1(a). He also claims that at the time of incident one - Jhony and Sudheendra were also present. He had not attempted to prevent the assault on Manjunatha. He did not treat Manjunatha by offering water. He knows the house of Manjunatha and also his family members. He had not informed the family members of Manjunatha about the assault made by accused No.1 on Manjunatha.
15. PW. 8 is another eyewitness. In his evidence he states that he runs Annapurna Hotel. On the day of incident, he heard some noise in front of Vaishali hotel. he came out and found that Manjunatha had fallen injured. He had lost consciousness. They sprinkled water. After sometime he woke up. There were many persons at the said place. He does not know whether anybody had assaulted Manjunatha or not. He had not told the police that he had witnessed the incident and also did not see accused No.1 Imthiyaz at the spot. He was turned hostile except stating that he saw the injured lying at the spot.
16. PW.15 in his evidence states that he was the pigmy collector of VSS Bank of Guddekoppa. He went to Vaishali hotel at around 7:00 p.m. At that time, accused No.1 Imthiyaz was in the said hotel. Later, Manjunatha and accused No.2 Sudheendra had come to hotel. He collected pigmy from the hotel owner and had tea. At that time, Manjunatha and Imtiyaz were questioning each other. At that time, he advised them not to quarrel since they belong to same village and went away. He does not know anything more. He also did not support the case of prosecution. He was treated hostile and cross-examined. Nothing worth is elicited in his cross examination.
In the cross-examination by the accused counsel, a suggestion was made that there was no altercation between Manjunatha and Imthiyaz and the same was denied. He admits he cannot say as to what were the words exchanged by them.
17. PW.13 is the Doctor who conducted Post Mortem examination. In his evidence he states that the death of deceased Manjunatha was due to complications of head injury due to secondary blunt force trauma.
In the cross-examination it is elicited that history was not that the head of deceased was crushed to the tar road or there was a punch. He claims according to the history given, deceased was hit with a wooden log. He also contends that history and physical examination report shows that the deceased had head ache three days prior to his admission on 10.06.2011, had drowsiness on that day and has lost consciousness and had head injury seven days prior to that day. The hospital sheet is marked as Ex.P12.
Having taken note of the evidence of P.W.13 it is clear that deceased had sustained injuries to his head and the Doctor also categorically opined that death was due to complications of head injury due to secondary blunt force trauma. Hence, it is clear that it is a case of homicidal death. However, the history given is contradictory to each other.
18. P.W.20 is the Doctor who examined and treated the deceased at KMC Hospital, Manipal. In his evidence there is no incriminating evidence against the accused persons and he only states that deceased was brought to the hospital. CT scan of the brain showed acute left side subdural hematoma. It is not possible to estimate as to how the said injuries to the injured could have been caused looking at the condition of the patient. The said injuries could be caused by any impact by pounding the head to the hard surface or hit or hard object also.
The evidence of P.W.20 is clear that deceased had sustained injuries to head as a result of which, death has occurred.
19. In order to bring the accused persons within the ambit of Section 302 r/w Section 34 of Indian Penal Code, even on perusal of the complaint Ex.P19, there is no allegation against accused No.2 and none of the witnesses have spoken anything about assaulting the deceased by accused No.2. It is the evidence of P.W.9 that accused No.2 came and took her brother on that particular day.
P.W.6 has spoken about the presence of accused No.2 also when the incident has taken place. But in the case on hand, it is to be noted that though P.W.6 supports the case of prosecution, in the cross-examination he categorically admits that he was inside the hotel and there were customers in the hotel. He also claims that there were other two persons Jhony and Sudheendra at the time of incident. Those two persons have not been examined. P.Ws.8 and 15 are independent witnesses. P.W.6 does not speak about the presence of P.Ws.8 and 15 at the place of incident. It is pertinent to note that though P.W.6 witnessed the incident, he did not inform the police about the incident and also did not make any attempt to prevent the assault. Further, he has not offered water to the deceased and though he was having acquaintance with the family members of the deceased, he did not inform the family members about the incident. When according to P.W.6 he was present at the time of incident, the normal conduct of a person who witnessed the incident would be to pacify the quarrel, but he has not made any such attempt and also did not inform the police, so also, the family members. Hence, the very presence of P.W.6 is doubtful.
20. It is pertinent to note that though P.W.8 is cited as eyewitness, he also did not support the case of the prosecution and only evidence is that he was in the hotel and heard some noise and he came out and found that Manjunatha had fallen, but he did not see accused No.1 in the said place. Hence, his evidence is also not helpful to the prosecution.
21. P.W.15 though examined as eyewitness, but he only speaks that there was altercation between the deceased and accused No.1. He has not spoken anything about the presence of accused No.2. Though he claims that there was altercation between them, in the cross- examination he admits that he cannot say as to what were the words exchanged by them. He was treated hostile.
22. Having considered the evidence of P.Ws.6, 8 and 15, as we have already pointed out the very presence of P.W.6 is doubtful since he did not take the injured to the hospital nor he has informed the police and family members of deceased Manjunatha about the incident. He has deposed that other two persons were present at the spot, but the said persons have not been examined. Apart from that, P.Ws.8 and 15 have been examined and they have not supported the case of prosecution. None of the witnesses have spoken about the overt act of accused No.1 and only says that they heard the noise. Though P.W.6 claims that he has witnessed the incident, the very conduct of P.W.6 is not acceptable. Apart from that, the incident is dated 28.5.2011 and till 11.6.2011 no complaint is filed. P.Ws.1, 3 and 9 claims that only on their insistence deceased Manjunatha revealed that accused No.1 assaulted him. The case of the prosecution at one breath is that, the head of the deceased was pounded on the road but in the complaint it is alleged that injured Manjunatha revealed that accused No.1 assaulted him with the club, which is contrary to the case of the prosecution. The Investigating Officer, who has been examined, in his cross-examination admits that he did not seize the club. But he gives explanation that the witness contends that the head of deceased was pounded on the road. The prosecution material is contrary to each other and there are material contradictions. First of all, there is delay in lodging the complaint and the version of P.Ws.1, 3 and 9 are different and P.Ws.6, 8 and 15 have not spoken anything about assaulting the deceased with club. Though P.W.6 claims that he is an eyewitness to the incident he has not mentioned anything that accused No.1 assaulted the deceased with club. But he claims that accused No.1 rolled his kerchief to his fist and fisted Manjunatha on his face, as a result, he fell down. The evidence of P.Ws.1, 3, 6 and 9 is inconsistent and contrary to each other. We do not find any reasons to reverse the finding of the trial Court in coming to the conclusion that the prosecution has proved the incident. In order to reverse the finding, there must be cogent evidence before the Court that accused persons have only committed the offence. In the absence of cogent and corroborative evidence, the same cannot be done. The Appellate Court merely forming a second opinion is not sufficient to reverse the findings. The Appellate Court can reverse the findings if the Lower Court ignored the material on record and if it amounts to perversity and causes miscarriage of justice. We do not find any such perversity and miscarriage of justice. The Court below has given its anxious consideration to the material on record.
In view of the discussions made above, we do not find any reasons to set aside the order of acquittal passed by the trial Court. Hence we pass the following:
ORDER Both the appeals are dismissed.
Sd/- Sd/-
JUDGE JUDGE bkp