IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE B.A. PATIL AND THE HON’BLE MR.JUSTICE R. DEVDAS CRIMINAL APPEAL NO.971/2015 BETWEEN:
Mahesha @ Maheshwarappa S/o Veerabasappa Aged about 55 years R/o Goni Somanahalli Halebeedu Hobli, Belur Taluk Presently R/at Kalanakoppalu Arasikere Town-571 303.
(By Sri Aruna Shyam M., Advocate) … Appellant AND:
The State of Karnataka through Arasikere Town Police Station Arasikere, Represented by State Public prosecutor High Court Buildings Bengaluru-560 001.
… Respondent (By Sri Vijaya Kumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of the Cr.P.C praying to set aside the judgment and order of conviction dated 13.01.2015 passed by the Fast Track Court and Addl. District and Sessions Judge, Hassan in S.C.No.7/2013 – Convicting the appellant/accused for the offence punishable under Section 302 of Indian Penal Code.
This Criminal Appeal coming on for hearing this day, B.A.Patil J., delivered the following:-
J U D G M E N T The present appeal has been preferred by the accused assailing the judgment and order of conviction and sentence passed by the Fast Track Court and Additional District and Sessions Judge, Hassan, in SC.No.7/2013, dated 13/14.1.2015.
2. We have heard the learned counsel Sri Aruna Shyam M., appearing for the appellant and the learned Additional SPP Sri Vijayakumar Majage for the respondent-State.
3. Case of the prosecution in brief is that accused got married the deceased Chandramma who was working as an Assistant in Health Department. The deceased used to tell the complainant that accused has developed and acquainted with bad vices and harassing her for money. It is further case of the prosecution that the deceased visited the house of the complainant about three days prior to the incident and requested him to advise the accused regarding physical and mental torture given to her by the accused for demand of money. In spite of the advise, the accused continued the ill-treatment and harassment against the deceased. On 4.9.2012 at about 8.30 p.m. when the deceased was in her house, accused closed the front door of the house and picked up quarrel with her. He assaulted with chopper on her neck, both hands, stomach, shoulder, chest and caused bleeding injuries and as a result of the same she died on the spot. After receipt of the information, PW.1-complainant came to the spot and filed the complaint as per Ex.P1. On the basis of the said complaint, a case was registered in Crime No.190/2012 against the accused for the offences punishable under Sections 498A and 302 of IPC. After completion of investigation, charge sheet was filed against the accused. Thereafter the committal Court committed the case to the Sessions Court. The Sessions Court took cognizance and after hearing the learned counsel appearing for the parties, the charge was prepared, which was read over and explained to the accused. The accused denied the same and claimed to be tried. As such, the trial was fixed.
4. In order to prove its case, the prosecution in all has examined 20 witnesses as PWs.1 to 20 and got marked 14 documents as Exs.P1 to P14 and 12 Material Objects. After closure of the prosecution evidence, the statement of the accused came to be recorded under Section 313 of Cr.P.C. putting incriminating material as against him, which he denied. He got marked the document at Ex.D1 on his behalf. After hearing the learned counsel appearing for the parties, the trial Court has come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt and convicted and sentenced him to undergo imprisonment for life for the offence punishable under Section 302 of IPC. Challenging the legality and correctness of the impugned judgment and order of conviction and sentence, the accused is before this Court.
5. It is the submission of the learned counsel for the appellant-accused that though the alleged incident has taken place in the house of the accused and motive has been proved, the alleged incident has taken place in spur of a moment as earlier to the incident, the accused picked up a quarrel with the deceased and suddenly he assaulted her with the chopper and as such the trial Court ought to have convicted the accused for the offence punishable under Section 304 Part I or Part II of IPC instead of 302 of IPC. He submitted that the accused was not having any intention to cause the death of the deceased when the alleged incident has taken place. This aspect has not been properly considered and appreciated by the trial Court. On these grounds, he prayed to allow the appeal and to modify the impugned judgment and order.
6. Per contra, the learned Additional SPP vehemently argued by contending that PWs.1 to 7 are the eye witnesses to the alleged incident who have spoken to the earlier ill-treatment and harassment caused to the deceased by the accused. They also identified the chopper and clothes worn by the deceased. He further submitted that earlier to the alleged incident, accused used to give threat to the deceased that he is going to eliminate her and subsequently on the date of the incident, as per his earlier intention he assaulted her with chopper and caused more than 29 injuries which itself clearly goes to show that he was having an intention to kill the deceased and he has taken away her life. He further submitted that there is no material to show that only with knowledge the accused has committed the alleged offence. But as could be seen from the evidence produced it clearly goes to show that accused was having an intention to cause the death of the deceased. The appellant has not made out any good grounds to interfere with the impugned judgment and order passed by the trial Court. The trial Court after appreciation of the entire evidence on record, has rightly come to the conclusion and rightly convicted the accused. The appeal is devoid of merits and therefore, the same is liable to be dismissed. On these grounds, he prayed to dismiss the appeal.
7. We have carefully gone through the submissions made by the learned counsel appearing for the parties and also re-appreciated the evidence which was produced by the prosecution before the trial Court. Admittedly PWs.1 to 7 are the eye witnesses to the alleged incident. PWs.1 to 3 are the blood relatives of the deceased. PWs.4 to 7 are the neighbours of the deceased. They have also clearly narrated about the incident which has taken place on 4.9.2012.
8. PW.1 has clearly deposed that they heard screaming voice from the house of the deceased at about 8.30 p.m. Immediately they rushed to the spot and the door was closed and accused was also inside the house, they tried to open the door. But accused did not open the door. They tried to brake open the door, one riper part of the door came out and through the same they saw accused was assaulting the deceased with chopper and she was making hue and cry. Thereafter they went through back door and at that time also accused was assaulting the deceased with chopper and she has fallen down. At that time, accused was saying that deceased should die and thereafter by throwing the chopper he ran away from the front door. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness.
9. Even PWs.2, 3, 5 and 7 have also reiterated the evidence of PW.1 and they have also identified the chopper-MO.No.1 so also the clothes of the accused-MO.Nos.11 and 12. Even on going through the evidence of these witnesses, it clearly goes to show that accused used to quarrel with the deceased for demand of money to meet his bad vices.
10. It is the submission of the learned counsel for the appellant that he is not disputing the alleged incident. His only submission is that the alleged incident has taken place in spur of a moment without there being any pre-meditation or intention to cause the death of the deceased and as such he prays to consider the case of the accused under Section 304 Part I or Part II of IPC. In order to substantiate the said contention, accused has to establish that he was not having any intention to cause the death of the deceased and the alleged incident has taken place in spur of a moment and he was having only knowledge and not intention. But as could be seen from the evidence produced before the trial Court it clearly goes to show that consistently accused used to quarrel with the deceased for demand of money. The evidence of PW.4 also indicates that on an earlier occasion also accused has uttered the words that he will take away the life of the deceased, which itself clearly goes to show that the accused was having a clear intention to take away the life of the deceased.
There is no material to show that the accused was not having any intention to cause the death of the deceased.
11. Be that as it may, PW.16, the doctor who conducted autopsy over the body of the deceased has deposed that he found as many as 29 injuries on the dead body including fracture of proximal phalanx of right index and middle fingers. Even the eye witnesses have also deposed that when they peeped through the open space occurred due to removal of one part of the door, the accused was consistently assaulting the deceased with chopper. When the deceased has sustained 29 injuries and the accused has assaulted the deceased repeatedly and caused as many as 29 injuries with MO.No.1- chopper, it clearly goes to show that the accused was having an intention to cause death of the deceased. Under the said facts and circumstances, the contention taken up by the learned counsel for the accused-appellant that the accused was not having any intention to cause the death of the deceased and the alleged incident has taken place in spur of a moment and the trial Court ought to have convicted and sentenced the accused for the offence punishable under Section 304 Part I or Part II of IPC instead of Section 302 of IPC cannot be accepted.
12. We have carefully gone through the impugned judgment and order passed by the trial Court. The trial Court after appreciation of the entire evidence on record has come to a right conclusion. We find no error or illegality in the impugned judgment and order passed by the trial Court and therefore, the same requires to be confirmed.
Hence, the appeal being devoid of merits is liable to be dismissed and accordingly, the same is dismissed.
Sd/- JUDGE Sd/- JUDGE *ck/-