IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.214/2019 BETWEEN:
Rajesh @ Basavaraj @ Raju, Aged about 50 years, S/o Monappa, R/o Basavalingappa Nagar, Pachanady, Mangaluru-575 001. ... Appellant (By Sri D. Nagaraja Reddy, Advocate) AND:
State of Karnataka Mangaluru Rural Police Station, By PP, Dakshina Kannada, Mangaluru, Rep. by SPP, High Court Building, Bengaluru-560 001. ... Respondent (By Sri M. Divakar Maddur, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to set aside the judgment and order of conviction and sentence dated 03/04.08.2018 passed by the IV Additional District and Sessions Judge, D.K., Mangaluru in S.C.No.92/2017-convicting the appellant/accused for the offence P/U/S 326, 504, 506 of IPC.
This Criminal Appeal is coming on for Final, Hearing this day, the Court delivered the following:
JUDGMENT This appeal is directed against the judgment and order of conviction and sentence passed by the IV Additional District & Sessions Judge, Dakshina Kannada, Mangaluru, in Case.No.92/2017 dated 03.08.2018.
2. I have heard the leaned counsel for the appellant/accused and the learned HCGP for the respondent-State.
3. Though this appeal is listed for admission, with the consent, the same is taken up for final disposal.
4. The case in brief is that on 09.11.2016, when the complainant went to his neighbour’s house to watch Television, she heard a galata from her house. Immediately she rushed to her house and there she saw her father stabbing her brother-Yashwanth with knife on his chest and stomach, abusing the deceased in a filthy language. On hearing the scream of her brother, neighbours rushed to the spot and separated the appellant/accused and the deceased. Her brother sustained stab injuries and blood was oozing out. When she enquired the appellant/accused, he told that though he was working, he was not helping in household expenditure as such, the quarrel took place between the deceased and appellant/accused. Immediately, the deceased was shifted to A.J.Hospital, wherein the doctors have treated him and admitted as an inpatient and on the basis of the complaint, a case was registered against the accused in Crime No.581/2016 for the offences punishable under Sections 326, 504 and 506 of IPC.
5. After 11 days of the incident, the injured- Yeshwanth succumbed to the injury and thereafter, the Investigating Officer has sought permission for adding Section 302 of IPC against the appellant/accused. Thereafter, after investigation, the charge sheet has been filed against the appellant/accused for the offences punishable under Sections 326, 504, 506 and 302 of IPC before the Magistrate. Learned Magistrate took the cognizance after following the procedure under Section 207 of Cr.P.C and committed the case to the Sessions Court, thereafter, the Sessions Court took the cognizance and secured the presence of the accused and after hearing the learned Public Prosecutor and learned counsel for the accused, the charge was prepared, read over and explained to the accused. The Accused denied the charges and he claims to be tried and as such, the trial was fixed.
6. In order to prove the case of the prosecution, prosecution has got examined 17 witnesses as PW.1 to PW.17 and got marked Exs.P.1 to P.26 and also marked MO.1 to MO.6. Thereafter, the accused was examined under Section 313 of Cr.P.C by putting incriminating material as against accused but accused denied the same, he has not lead any evidence on his behalf.
7. After hearing the learned Public Prosecutor and learned counsel for the accused, the Court below has acquitted the accused for the offence punishable under Section 302 of IPC and has come to the conclusion that the accused has committed the offences punishable under Sections 326, 504 and 506 of IPC and acquitted him for the offence under Section 302 of IPC, challenging the legality and correctness of the said judgment, the appellant is before this Court.
8. I have heard the learned counsel for the appellant/accused and learned High Court Government Pleader for respondent-State.
9. It is the contention of the learned counsel for the appellant that the impugned judgment of conviction and order of sentence is erroneous, capricious and perverse and it is not sustainable in law. The trial Court without properly appreciating the materials on record, has wrongly convicted the accused. He further submitted that at the time of the alleged incident, the quarrel took place and in a spur of moment without there being any intention, accused assaulted the deceased and deceased died after 11 days after the incident. He further submitted that PW.1 has clearly admitted that at the time of incident, she rushed to the spot and noticed the appellant was going out of the house and she has not witnessed to the same but the prosecution has figured PW.1 as the eyewitness and the Court below has believed the said evidence. The sentence imposed by the Court below is harsh and contrary to the facts and circumstances of the case. He further submitted that the accused has not committed any offence punishable under Section 326 of IPC, at the most the accused could have been convicted for the offence punishable under Section 304(2) of IPC and he could have been given a set off for the period which he has been undergone. Already, the appellant/accused is in custody for a period of more than 2 years 9 months, if this Court comes to the conclusion that the appeal has to be dismissed, under such circumstance, the set off may be given for a period, which the accused has already been undergone for the alleged offences. On these grounds, he prayed to allow the appeal and set aside the judgment of conviction and order of sentence.
10. Per contra, the learned High Court Government Pleader vehemently argued and submitted that PW.1 is the sister of the deceased and daughter of the appellant/accused and she is also the complainant and eyewitness has fully supported the case of the prosecution and even another sister, who immediately came to the spot has also categorically deposed about the overt acts of the accused. Even immediately after the incident, the appellant/accused has disclosed that the deceased has not assisted the house, deceased and the accused quarreled and in scuffling with the accused, the accused stabbed the deceased and as a result of the same, the deceased succumbed to the injuries. He further submitted that the accused himself has admitted his presence at the place of the incident has contended that the deceased has suffered one injury but as per post mortem report, there are as many as 12 injuries. He further submitted that the prosecution has brought sufficient evidence before the Court and galata was also witnessed by the neighbours. Taking into all the circumstances, the Court below has rightly convicted the accused for the offence punishable under Section 302 of IPC and has come to the right conclusion and has convicted for the alleged offences. The appellant has not made out any good grounds to interfere with the judgment of the trial Court and deserves to be confirmed. On these grounds, he prayed to dismiss the appeal.
11. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
12. On close reading of the records, it is an admitted fact that the State has not preferred any appeal against the order converting the offence under Section 302 of IPC by giving the benefit and convicting the accused for the offence punishable under Section 326 of IPC and the sentence imposed is not adequate.
13. In order to prove the guilt of the accused, prosecution has examined 17 witnesses. PW.1 is the complainant and she is also the sister of the deceased and daughter of the appellant/accused. In her evidence she has reiterated the contents of the complaint and she has deposed that on 09.11.2016 at 6.30 p.m., when she heard the quarrel, she went to the house and on the back side of the house near wash-stone she show her father was being stabbing her brother with knife on stomach and chest. Immediately her brother fell down and her father was abusing her brother in filthy language and threw the knife and went away from that place and at that time, her another brother came and pacified the quarrel. She has further deposed that the injured was taken to A.J. Hospital and filed a complaint as per Ex.P.1. She has also identified the knife as per MO.1. During the course of cross-examination, nothing has been substantiated to discard the evidence of this witness. All the suggestions have been denied.
14. PW.2-Jayakar, who is neighbour has deposed that after hearing the quarrel, he immediately came and helped the injured to shift him to the Hospital in his car and he is also the witness to the spot Mahazar as per Ex.P.2. In his cross-examination also nothing has been elicited so as to discard his evidence.
15. PW.3-Janardhan who is the witness to Inquest Mahazar as per Ex.P.7. He has also supported the case of the prosecution and identified the photos which are marked at Ex.P.8. All other suggestions have been denied during the course of cross-examination.
16. PW.4 - Smt. Lolakshi, who is the mother of deceased and wife of the accused, who has not supported the case of the prosecution and she has been treated as hostile. Even during the course of the cross-examination by the learned Public Prosecutor, nothing has been elicited to support the case of the prosecution. Even during the course of cross-examination, nothing has been elicited by the learned counsel for the accused.
17. PW.5-Kum. Raveena who is another sister of the deceased has reiterated the evidence of PW.1. Even during the course of cross-examination, nothing has been elicited to discard her evidence. PW.6-Smt. Laxmi who is neighbour has deposed that on 09.11.2016 at about 7.00 p.m., when she was passing through the house of the accused, she heard hue and cry and when she saw, the deceased came from the back door of the house and fell on the ground and at that time, accused stabbed with knife on his stomach and back, by telling that he will kill him. Neighbours and others came and pacified the quarrel. During the course of cross- examination, nothing has been elicited to discard the evidence of this witness. PW.7-Ganesh, a neighbour of the accused has reiterated the evidence of PW.6. PW.8 - Dr.Francis N.P.Montheiro who has examined the deceased on 09.11.2016 at about 7.00 p.m., has stated about the injuries, and issuance of Wound Certificate as per Ex.P.11 and opinion as per Ex.P.12. Much has not been made out from the evidence of PW.8. PW.9-Dr. Goutham is the doctor of K.S.Hegde Hospital, when the injured was again admitted on 11.11.2016 at around 2.50 a.m., he has issued the Injury Certificate as per Ex.P.14 and also the lab report as per Ex.P.15 about the blood group. PW.10 is the Doctor who conducted autopsy over the body of the deceased. In her evidence, she has deposed that she has conducted post mortem on the body of the deceased from 01.10 p.m. to 3.00 p.m. on 21.11.2016 and issued Post Mortem report as per Ex.P.16. She has also opined that the deceased has died due to the complication of septicemia secondary to injuries sustained and has given the final opinion as per Ex.P.17. During the course of cross-examination, nothing has been elicited to discard the evidence of this witness - PW.10. PW.11 is Scientific Officer who examined the articles and issued FSL report as per Ex.P.19. PW.12 is the Head Constable who on the basis of the complaint of PW.1, registered the case and issued FIR as per Ex.P.23. PW.13 is the Investigating Officer who investigated the case and filed the charge sheet against the accused. PW.14 is the Assistant Executive Engineer who prepared the spot sketch as per Ex.P.26. PW.15 is the Head Constable who carried the FIR and submitted to the Jurisdictional Court. PW.16 is the Investigating Officer who partly investigated the case. PW.17 is the ASI who also partly investigated the case during the first period.
18. On the basis of the above said evidence, by keeping in view the submissions made by the learned counsel for the appellant and on perusal of the evidence of PWs.1, 6 and 7 who are the eyewitnesses to the alleged incident, go to show that PW.1, in her evidence, she has clearly deposed that on 09.11.2016 at about 6.30 p.m., quarrel took place between accused and deceased. At that time, accused raised objection for not bearing the house expenses and providing food by the deceased and the accused took knife and stabbed on the chest and stomach of the deceased. The said evidence of PW.1 corroborate with the evidence of PW.8 who immediately after the incident, examined and issued the Wound Certificate as per Ex.P.11. He has mentioned about 7 injuries and even the history of the incident in the Wound Certificate at Ex.P.11 and that the assault made by his father by using the knife at his residence. PW.2 is the witness who carried the injured immediately after the incident to the hospital, has also reiterated the evidence of PW.1 and even PWs.6 and 7 have also supported the case of the prosecution. They have deposed before the Court below that he is the accused who stabbed on the chest and back of the deceased.
19. Taking into consideration the evidence of these witnesses and the incident, when it is corroborate with each other, it is clear that it is the case where the accused in his residence has assaulted the deceased with knife. Even when the accused came to be examined by putting incriminating material against him, he has admitted his presence and has given his explanation that he has assaulted once that too when quarrel took place. By this part of the evidence, the trial court came to the conclusion that the accused was present, he has assaulted the deceased by stabbing with knife, the deceased got admitted to the hospital and thereafter, he succumbed to the said injuries. But the death is not disputed in this case and a homicidal death. The Doctor who conducted the Post Mortem as per Ex.P.10 in her evidence has deposed that she has conducted post mortem and during the course of cross-examination, she has deposed that the deceased Yashwanth could have been saved, if proper treatment is given at initial stages. In this case, there is a Liver Laceration and due to which there is septicemia and the Liver Laceration can be cured by giving proper treatment. If this evidence is taken into consideration then, under such circumstance, the trial Court has rightly come to the conclusion that it will not attract the provisions of Section 302 of IPC and has rightly convicted the accused for the offence punishable under Section 326 of IPC. Even the evidence of PW.1 and other witnesses clearly go to show that the accused abused in filthy language and even used to utter that he will not leave the deceased and he will take away the life. Under such circumstances, the Court below after considering the evidence has rightly come to the conclusion that the accused has committed the offences punishable under Sections 504 and 506 of IPC. The accused has not made out any good grounds so has to interfere with the judgment of the trial Court.
20. It is the submission of the learned counsel for the appellant/accused that the evidence of PW.10 clearly goes to show that the deceased died due to septicemia and if proper treatment was given to the deceased at initial stages, the life of the deceased could have been saved. Alternatively, he submits that the accused be convicted and sentenced to the period which he has already undergone and he may be given set off as per the provisions of Section 428 of Cr.P.C. I feel that by going through the records, the said submission is having some force and if the accused is convicted for the offence punishable under Section 326 of IPC, the material disclose the fact that scuffle/quarrel took place between accused and his son (deceased) and the accused stabbed on the chest and stomach of the deceased and that the deceased died in the hospital after 11 days of the incident. Even PW.10 in her evidence, she has clearly stated in the cross-examination that liver laceration can be cured by giving proper treatment and the deceased Yashwanth could have been saved if the proper treatment is given at initial stages. As could be seen from the evidence of PW.8, the doctor who took the admission of the deceased in the hospital and the records go to show that he has been discharged and subsequently, he got admitted on 11.11.2016 as per the evidence of PW.9. He was earlier admitted in A.J.Hospital and subsequently, he shifted on 11.11.2019 to K.S.Hegde Hospital that itself goes to show that he was not given proper treatment at an initial stage and because of that, he died.
21. In the facts and circumstances of the case, if the accused is convicted and sentenced for the period which he has already undergone then it would meet the ends of justice.
22. In the light of the discussions held by me above, the conviction of the accused for the offences punishable under Sections 326, 504 and 506 of IPC is confirmed and insofar as the sentence imposed by the Court below for the offence punishable under Section 326 of IPC, is modified and the appellant/accused is sentenced to undergo imprisonment for a period which he has already undergone as on the date and insofar as the fine amount and other conditions are concerned, the same is confirmed. All the sentences must be served concurrently and appellant/accused is entitled for the benefit of set off under Section 428 of Cr.P.C.
23. With the above discussion, appeal is partly allowed and the judgment of conviction is confirmed and sentence is modified as indicated above.
Registry is directed to intimate the concerned Jail Authorities and transmit the operative portion of this judgment forthwith to enable them to release the appellant/accused, if he is not required in any other case.
The concerned Jail Authorities are directed to release the accused forthwith, if he is not required in any other case. The bail bonds/surety bonds if any, pertaining to this case are cancelled.
I.A.No.2/2019 does not survive for consideration, the same is dismissed.
HA/-
Sd/- JUDGE