IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 5TH DAY OF DECEMBER, 2017 B E F O R E THE HON’BLE MR.JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.501 OF 2012 BETWEEN:
K.S.RAVI S/O SWAMY SHETTY AGED ABOUT 27 YEARS R/O BYADRAHALLI KOPPALU HOUSE KATTAYA VILLAGE & HOBLI HASSAN TALUK & DISTRICT ... APPELLANT (BY SRI ANEES ALI KHAN, ADV.) AND:
STATE OF KARNATAKA BY PANAMBUR CIRCLE NEW MANGALORE, D.K. REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA HIGH COURT BUILDINGS BANGALORE. ... RESPONDENT (BY SMT.NAMITHA MAHESH B.G., HCGP) THIS CRL.A. FILED UNDER SECTION 374(2) OF Cr.P.C. BY THE STATE P.P. PRAYING TO PLEASED TO SET ASIDE THE JUDGMENT AND ORDER DATED 20.04.2012 PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, D.K. MANGALORE, IN S.C.NO.7 OF 2010 CONVICTING THE APPELLANT - ACCUSED FOR OFFENCES P/U/Ss. 307 AND 302 OF IPC, ETC.
THIS CRL.A. COMING ON FOR HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT The brief facts of the prosecution case are as follows:
The deceased Muthamma @ Yellawwa was a native of Chikkagonnagar, Kushtagi Taluk, Koppal District. About six months prior to her death, she had come to Panambur along with her son Yellappa – PW-4 who was aged 8 years. Her husband Balappa had died. About two months prior to her death, she was residing at Thokoor in a rented house along with PW-4 and the accused. Accused was working as a Cleaner in a lorry owned by Udaya Kamath. The accused used to go home after consuming alcohol and abuse the deceased and her son. On 05.09.2009, the accused had given money to the deceased and asked her to pay rent to the landlord and accordingly, she had given the money to the landlord. On the same night, the accused asked the deceased to return the money given by him and assaulted the deceased and PW-4. On the same night, the deceased left the house along with her son PW-4 and slept in the Kudumboor bus-stop, located at Baikampady – Kudumboor road at Baikampady Industrial Area. At about 1.45 a.m. on 06.09.2009, the accused came to the said bus-stop, and on seeing the deceased and PW-4 sleeping there, assaulted PW-4 with a wooden plank on his head. Thereafter, he assaulted the deceased with the same plank on her head. She shouted. At that time, PW-1 who was working as a Security Guard in the factory nearby, heard the cry of a woman, the sound of a falling wooden club and that of a crying child. Immediately he went to the bus-stop. In the torch light, he saw PW-4 crying. When he enquired, PW-4 stated that he and his mother were assaulted with a wooden club when they were both sleeping. PW-1 also saw in the torch light that the deceased was lying in a pool of blood and she was moaning. He also saw the wooden plank. On enquiry, PW-4 narrated what had happened on that day. At that time, PW-1 flashed the torch light around the bus-stop and saw a man running towards Kudumboor. PW-4 identified the man as his father, the accused. Muthamma succumbed to the injuries on the spot. PW-1 returned to the factory and informed the incident to his superiors and returned to the spot. The Panambur Police were informed about the incident over telephone. PW-29 Pramod Kumar, the then CPI came to the spot along with his staff at about 2.20 a.m. and recorded the statement of PW-1, returned to the Police Station and registered a case in Crime No.99 of 2009 in terms of Ex.P1.
2. Investigation was taken up. The accused was arrested on the same day. A charge-sheet was filed against the accused under Sections 324, 307 and 302 of IPC. In order to prove its case, the prosecution examined twenty-nine witnesses, marked twenty-two exhibits along with eighteen material objects. The defence marked twelve exhibits in support of its case. By the impugned Judgment, the accused was convicted for the offence punishable under Section 307 IPC and sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs.3,000/-; in default of payment of fine, to further undergo Simple Imprisonment for six months. The accused was also convicted for the offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-; in default of payment of fine, to further undergo Simple Imprisonment for six months. Both sentences were directed to run concurrently. Fine amount was ordered to be paid to PW-4 Yellappa. Aggrieved by the same, the accused has filed this appeal.
3. Learned counsel for the appellant contends that the Trial Court has committed an error in misreading the evidence and the material on record. The evidence clearly indicates that the accused had no intention to commit the murder of the deceased. Only because she had left him, he went in search of her. The assault was made without any intention to commit murder, but only to teach her a lesson. Under these circumstances, it cannot be held that the accused is guilty of the offence under Section 302 of IPC. Hence, he prays for an acquittal of the accused of the said offences.
4. On the other hand, learned High Court Government Pleader disputes the same. She contends that the entire act is pre-meditated. It is only with an intent to commit murder of both Muthamma and PW-4 Yellappa that the accused went in search of them and having found them, he has brutally assaulted them. Therefore the Trial Court has accepted the case of the prosecution and rightly convicted the accused. Hence, she prays that the appeal be dismissed.
5. PW-1 is the complainant. He was working as a Security Guard in the factory called “Baby Mary” located near the scene of occurrence. He has stated that on 05.09.2011 at about 1.30 a.m., he was on duty in the factory. At that time he heard the loud voice of a woman crying as “Amma”. He also heard the sound of a club falling on the ground. He immediately went to the bus-stop, which was about 30 to 35 meters away. There he saw a child weeping. When he asked the child, he was told that somebody had assaulted the child’s mother and ran away. The witness – PW-1 has stated that he saw the woman lying in a pool of blood with a head injury. He returned to the factory and informed his superior and returned to the spot. The child was not present. He informed about the incident to the police who came there after about half an hour. The complaint was reduced into writing in terms of Ex.P1. He identified the person who was present in the Court as the accused who assaulted the deceased.
PW-1 has further stated that when he asked the child as to who had assaulted, the child answered that his father had assaulted. Therefore PW-1 was treated as hostile and cross-examined by the State Public Prosecutor.
6. PW-2 was working as a Security Guard in the factory called “Manipal Spring” which is located near the scene of occurrence. He has stated that on 05.09.2009 at about 11.00 p.m. he saw a boy and a woman sitting in the Kudumboor bus- stop. On that day at about 1.00 a.m., he heard shouting of a woman as ‘Amma’. He did not go to the spot. He saw a boy at the spot and on seeing light on the road, the boy went behind the bus-stop and after that a lorry passed by and the said boy went towards Kudumboor. He identifies the accused who was present in the Court. In the cross-examination, he has stated that he had seen the accused moving many times prior to the incident and he has also seen the accused on the date of incident.
7. PW-3 is a panch witness to Ex.P3 the spot mahazar.
PW-4 is son of the deceased Muthamma. He was aged about 11 years at the time of giving his evidence. The Trial Judge has asked preliminary questions to him in order to find out his competence to give evidence. Having been satisfied, questions were asked to him. He has stated that he is a native of Chikkagonnagar of Kustagi Taluk, Koppala District. His father’s name is Balappa and after the death of his father about one year prior to the incident, he and his mother came to Mangalore in search of a job. His mother was working in a battery factory. He knows the accused who was present in the Court and he identifies him. They were earlier staying at Paddai and later they shifted their residence to Thokur. The accused was residing with his mother and that his mother had told him to call the accused as “father”. The accused was working as a Cleaner in a lorry. PW-4 has further stated that the accused used to send him daily to bring liquor and after consuming liquor, the accused used to assault him and his mother. About one year back, the landlord demanded rent and his mother gave the money to the landlord which was given to her by the accused. Later the accused came to the house and started a quarrel with him and his mother. Therefore he and his mother left the house and went to Kudumboor bus-stop. They could not go to their village since it was late night and hence, they ate ‘chakkuli’ and were in the bus-stop. The accused first assaulted this witness and later assaulted his mother on her head. His mother shouted as ‘amma’. The accused ran away and hid behind the bus-stop in the bush. Later a watchman from the nearby factory came there and asked him as to what had happened. He narrated the incident. When the said watchman flashed torch light in the surrounding area, he noticed that the accused was behind the bush and on seeing them, the accused ran away. The witness has further reiterated that the accused assaulted him and his mother with a wooden plank MO-7. In the cross-examination, he has denied the suggestion that the police have tutored him. He has stated that nobody has given any instructions to give evidence in a particular manner before the Court. He denied the suggestion that he and his mother sustained injuries because the ceiling of the bus-stop fell on them.
8. PW-5 is the brother of the deceased who identified the dead body. PW-6 is also another brother who identified the dead body. PW-7 is the owner of the lorry under whom the accused was employed. PW-8 and PW-16 are the panchas to the inquest mahazar Ex.P5. PW-9 is the Police Constable who had seen the deceased and PW-4 sleeping in the bus-stop. PW-10 is the then Head Constable of Panambur Police Station who speaks about the wooden plank MO-7 produced before PW-24 Dr.Pratheek Rastogi for his opinion. PW-11 carried the seized articles to the FSL. PW-12 is the Constable who delivered the FIR to the jurisdictional Magistrate. PW-13 is the Head Constable who speaks about carrying of the dead body to Wenlock Hospital for post-mortem. PW-14 Police Constable speaks about recording of the statement of witnesses given by the I.O. PW-15, the then ASI of Panambur Police Station took PW-4 to Wenlock Hospital for treatment. PW-17 is the doctor who speaks about the injuries sustained by PW-4 and the history with which PW-4 was admitted to hospital. PW-18, the Scientific Officer of FSL, Mangalore speaks about the FSL report Ex.P10 and the Serology report Ex.P12. PW-19 is the neighbour of the deceased who speaks about PW-4 going to her house on the date of incident with an injury on his head. PW-20 is the panch witness to the spot mahazar Ex.P13. PW-21 speaks about the accused working as a Cleaner in the lorry belonging to PW-7 Udaya Kumar and also about payment of Rs.1,000/- to accused on 05.09.2009 in terms of the instructions of PW-7. PW-22 is the Head Constable of Panambur Police Station who received the telephone call about the dead body lying in the bus-stop. PW-23, Head Constable of Panambur Police Station speaks about showing the scene of occurrence to the PWD Engineer. PW-24 conducted the Post-Mortem and submitted the report in terms of Ex.P15. PW- 25, a Junior Engineer of PWD speaks about preparing the sketch of the scene of occurrence as per Ex.P18. PW-26, the Head Constable of Panambur Police Station, visited the scene of occurrence along with PW-29 and arrested the accused. PW-27 recorded the statement of PW-4 under S.164 of Code of Criminal Procedure. PW-28, CPI of Panambur Circle and Investigating Officer has explained about the investigation conducted by him. PW-29, PSI of Panambur Police Station visited the scene of occurrence and recorded the statement of PW-1 in terms of Ex.P1 and registered the case.
9. Based on the evidence as stated above, the Trial Court was of the view that the prosecution has established its case beyond reasonable doubt. The motive of the accused was proved in view of the consistent harassment being meted out by the accused on the deceased by consuming alchohol and assaulting her because of which the deceased and her son PW-4 left the house. The accused went in search of them in order to teach them a lesson. MO-7 was firstly used to assault the boy aged about ten years. Thereafter he assaulted the deceased on the vital part of the body namely, the head. Thus it is clear that the accused had a clear intention to commit murder. Therefore the Trial Court convicted the accused under Sections 307 and 324 of IPC.
10. We do not find any perversity in the finding recorded by the Trial Court that calls for interference. The injured child aged about 10 years is PW-4. His statement was recorded under Section 164 of Cr.P.C. The Magistrate has put questions to him in order to satisfy himself with regard to the ability of the child to tender evidence. Having been satisfied, his evidence was recorded. The evidence tendered by PW-4 is clear and cogent. There is nothing in his evidence to suspect the same. PW-4 has clearly stated with regard to consumption of alcohol by the accused on the date of incident and abusing his mother the deceased as well as PW-4. Unable to bear the torture any more, the deceased and PW-4 left his house to go back to their original village in Kustagi Taluk. Since it was late at night, as no bus was available, they had to sleep in the bus-stop. The deceased came there and by using MO-7 a wooden plank weighing almost about three and a half kilogram assaulted the child PW-4. Immediately thereafter he used the same plank to assault his mother on her head. She succumbed to the head injury on the spot.
11. The motive for the offence is that the deceased and PW-4 abandoned the accused and were going to their Village. This had apparently enraged the accused. In order to teach them a lesson or otherwise, he went in search of them in the middle of the night. Therefore there is ample evidence to show that the accused had a motive to commit an offence against the deceased as well as PW-4. The material on record would indicate that MO-7 was a wooden plank weighing about three and a half kilogram. The case of prosecution is that it was lifted by the accused from the scene of offence with an intention to commit murder. He has brutally assaulted the child aged about ten years with the said wooden plank and immediately used the same weapon to assault the deceased on her head. Therefore it is evident that the only object of the accused was to cause severe injuries on PW-4 as well as the deceased. He has chosen to assault them on vital part of their body.
12. The contention of the appellant’s counsel is that, there was no intention to commit the murder. That the accused wanted to teach them a lesson. However, keeping in mind the manner in which the assault was committed, the weapon that was used, and the assault on the head of the deceased, it cannot be said that the intention of the accused was only to teach them a lesson. The accused has chosen the head to assault the deceased. The evidence on record would clearly indicate that the intention was only to commit the murder of PW-4, as well as the deceased. If not, there would not have been any assault on the head of PW-4, as well as on the deceased.
13. PW-4 was a child aged about 10 years. There was absolutely no necessity for the accused to have even assaulted the child, who according to the prosecution, was sleeping along with his mother. Therefore, it clearly indicates the intent of the accused to commit the murder.
14. After the deceased and PW-4 left the house, the accused went in search of them. It is not the case that the accused went in search of them and made any effort to take them back to the house. In fact, there is no evidence that the accused made any effort to take them back to the house. On the contrary, after he saw the deceased and PW-4, he picks up a wooden plank and assaults them. Therefore, the assault was preplanned. It is with a premeditation that the accused left the house in search of the deceased, as well as the child, PW-4, with an intention to commit their murder.
15. The assault was of such a grave nature, that immediately after the assault, the deceased succumbed to the injuries. PW-17, the doctor, who treated PW-4 has issued the wound certificate in terms of Exhibit-P6, which would indicate that the history of assault by the accused was at about 2.00 a.m., by a wooden stick at Kudumboor, Mangaluru. He has noticed a lacerated wound on the skull measuring 3 cms. x 8 cms., which is bone deep. Therefore, this corroborates the evidence of PW-4 and other eye-witnesses with regard to the assault by the accused on PW-4, as well as on the deceased.
16. Under these circumstances, we are of the view that the trial court has considered the evidence in the right perspective. The evidence of the child has been rightly considered and accepted. The evidence of PW-1, who is the complainant, also supports the case of the prosecution. PW-2 has also supported the case of the prosecution, with regard to the assault.
17. The trial court having rightly considered the material and evidence on record, has come to a just and fair conclusion.
That it is a premeditated murder committed by the accused. He planned to commit the murder. He left the home with a sole intention to commit the murder of the deceased as well as the child, PW-4. He has used MO-7, the wooden plank to commit the murder. Serious injuries were inflicted on the deceased, on her vital parts namely, the head. Therefore, the intention of the accused to commit the murder is manifest from the evidence on record.
18. On considering the entire evidence and the material on record, we do not find any error or perversity in the order of the trial court that calls for interference. We too arrive at the same conclusion, as arrived at by the trial court.
For the aforesaid reasons, the appeal is dismissed. The order dated 20.04.2012, passed by the 1st Additional District and Sessions Judge, D.K. in S.C.No.7 of 2010, is affirmed.
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JUDGE JUDGE sac* / JJ